Al-Salem; Secretary, Department of Social Services and (Social services second review)

Al-Salem; Secretary, Department of Social Services and (Social services second review) [2018] AATA 2745 (10 August 2018)
Division:GENERAL DIVISION
File Number: 2017/4635
Re:Secretary, Department of Social Services
APPLICANT

AndSabah Al-Salem
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:10 August 2018
Place:Perth

The Tribunal sets aside the decision of the AAT1. In substitution for the decision of the AAT1 so set aside, the Tribunal determines that the Respondent does not qualify for DSP.
........[Sgd]................................................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – mental health – Post-traumatic stress disorder – left foot – impairment tables – credibility and truthfulness – did Respondent have 30 impairment points – continuing inability to work – participation in program of support – decision under review set aside – DSP application not approved
LEGISLATION
Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c), s 94(2), s 94(3B), s 94(3C), sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(6),
s 6(7), s 7, s 8, s 8(1), s 9, s 10, s 11, s 11(1)(c)
Social Security Administration Act 1999 (Cth) – s 179, s 196
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – s 7(1), s 7(2)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Ulukut and Secretary, Department of Social Services [2014] AAT 399
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
10 August 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 29 June 2017. This decision set aside a decision to reject the claim of Mr Al-Salem for Disability Support Pension (DSP) lodged on 22 July 2016 (T2 4) (A1).
INTRODUCTION
On 22 July 2016, Mr Al-Salem lodged a claim for DSP involving a list of medical conditions (T26 202) (A1). These medical conditions include:
Erythrocytosis; hypertension; hypercholesterolemia; obstructive sleep apnoea; testicular varicocoele (sic); memory impairment; anxiety; depression; sciatica; diabetes mellitus, type 2; foot surgery 03/2015; and foot surgery 07/2015 (T26 202) (A1).
The Applicant, the Secretary of the Department of Social Services, lodged this claim for review on 4 August 2017 on the basis that AAT1 erred in deciding that Mr Al–Salem’s medical conditions generated 30 points under the Impairment Tables (T1 2; T2 11) (A1).
The Applicant contends:
The Social Services and Child Support Division of the Administrative Appeals Tribunal erred in deciding that Mr Al-Salem satisfied paragraphs 94(1)(a),(b)and(c) of the Social Security Act 1991 when he made his claim for disability support pension on 14 July 2016. In particular the Tribunal erred in:
1assigning 20 impairment points under Table 5 of the Social Security (Tables for the Assessment Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination), based on the impairment arising from Mr Al-Salem’s mental health condition.
2assigning 10 impairment points under Table 3 of the Determination, based on the impairment arising from Mr Al-Salem’s left foot degeneration condition; and
3finding that Mr Al-Salem had a continuing inability to work (T1 2) (A1).
The Respondent’s claim for DSP was rejected by an officer of Centrelink and Mr Al-Salem was advised of this rejection by letter dated 26 September 2016 (T31 223) (A1). The reason for rejection of the application was on the basis that Mr Al-Salem had failed to attain an impairment rating of 20 points or more (T31 223) (A1).
Mr Al-Salem sought a review and this was conducted by an Authorised Review Officer (ARO) who on 6 February 2017 determined the following:
You have the following permanent condition: Post Traumatic Stress Disorder/depression,
Your conditions of diabetes, hypertension, hypercholesterolemia, sleep apnoea, Testicular varicocele and spondylolisthesis are considered to have minimal or limited impact on your ability to function and therefore nil impairment ratings have been assigned.
Your on-going left foot pain is not considered to be fully treated or stabilised and therefore no impairment rating can be assigned.
Your total impairment rating is 10 points.
You do not have an impairment rating of 20 points or more.
You do not have a continuing inability to work 15 hours per week or more because of your impairment (T38 249-250) (A1).
As a result of the decision of the ARO, the Respondent lodged an application with AAT1.
In a decision dated 29 June 2017, the AAT1 set aside the decision under review and remitted the matter back to the Chief Executive Centrelink for reconsideration in accordance with the direction that Mr Al-Salem satisfied subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act) when he made his claim for DSP on 14 July 2016 (T2 4) (A1).
On 4 August 2017, the Secretary applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the AAT1 decision dated 29 June 2017 (T1 1-3) (A1).
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The matter was heard in Perth on 3 July 2018. The Applicant was represented by Mr Burgess of Sparke Helmore and the Respondent appeared in person with the assistance of an interpreter.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Act and the Administration Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) person has a continuing inability to work;
(ii) …
Accordingly, for a person to be qualified for DSP, the person must satisfy all of the following criteria including:
·having a physical, intellectual or psychiatric impairment; and
·the impairments must be assigned a rating of 20 or more points under the impairment tables; and
·the person must have a continuing inability to work.
Assessing impairments and assigning an impairment rating
The Impairment Tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The tables contained within the Determination are referred to as the Impairment Tables.
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Respondent are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5] The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance on how to assess information and evidence using the Impairment Tables and how to assign impairment ratings. In particular, subsection 11(1)(c) of the Determination states that:
if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
Continuing inability to work
As set out above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:
(1)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
[Emphasis added.]
“Severe impairment” is defined in subsection 94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
[Original emphasis.]
Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister.
Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
Qualification Period
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine Mr Al-Salem’s claim for DSP in the 13 week period commencing on the day on which his claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case, the 13 week period is from the 22 July 2016 to 21 October 2016 inclusive, and is known as the Qualification Period.
For a claim to be successful, a person must be qualified for DSP during the qualification period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1]).
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
ISSUES
The key issue for the Tribunal to consider is whether Mr Al-Salem was qualified for DSP during the Qualification Period for the purposes of section 94(1) of the Act.
This requires consideration of whether at the time of the Qualification Period:
(a)the Respondent had any physical, intellectual or psychiatric impairment; and
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Respondent had a ‘continuing inability to work’ as defined in subsection 94(2) of the Act.
EVIDENCE
The Tribunal received the following evidence:
·Exhibit A1 – The T documents (T1-T50 pp1-286).
·Exhibit A2 – The Secretary’s Statement of Facts and Contentions (the Secretary’s Statement) dated 13 April 2017.
·Exhibit A3 – The Secretary’s List of Authorities.
·Exhibit A4 – Attachment A to the Secretary’s Statement of – Verifact report dated 30 October 2017.
·Exhibit A5 – Attachment B to the Secretary’s Statement – Report of Dr Lawrence Terace dated 17 January 2018.
·Exhibit A6 – Attachment C to the Secretary’s Statement – Notice pursuant to section 196 of the Administration Act dated 11 October 2017.
·Exhibit A7 – Attachment D to the Secretary’s Statement – Response to the notice pursuant to section 196 of the Administration Act from the Centre Manager dated 23 October 2017.
·Exhibit A8 – The Secretary’s commissioning letter to Dr Lawrence Terace dated 26 February 2018.
·Exhibit A9 – USB containing surveillance footage received on 7 February 2018.
·Exhibit A10 – The Secretary’s hearing certificate dated 28 March 2018.
·Exhibit A11 – Curriculum Vitae of Dr Lawrence Terace – Tendered at hearing on 3 July 2018.
·Exhibit R1 – Respondent’s Statement dated 23 May 2018.
·Exhibit R2 – Report of Dr Fatin Wajdi dated 6 March 2018.
·Exhibit R3 – Report of Dr Wajdi dated 21 May 2018.
·Exhibit R4 – Report of Dr Susan Lutton dated 28 October 2016.
·Exhibit R5 – Report of Dr Lutton dated 10 April 2018.
·Exhibit R6 – Letter of Professor Gerard Hardisty dated 10 May 2018
·Exhibit R7 – Letter from Mr Patrick Owen, Centre Management dated 18 May 2018.
·Exhibit R8 – Respondent’s statement in response to the surveillance material dated 11 March 2018.
·Exhibit R9 – Letter of Dr Lutton dated 14 December 2017.
·Exhibit R10 – report of Dr Wajdi dated 22 August 2017.
·Exhibit R11 – Letter from Essential Personnel dated 4 September 2017.
·Exhibit R12 – Letter from Mr Owen dated 18 May 2018 – tendered at hearing on 3 July 2018.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Tribunal notes the following contained in the Secretary’s Statement:
4.2In support of his claim, Mr Al-Salem provided a medical report by Dr Lutton, Consultant Psychiatrist, dated 15 June 20163. Dr Lutton, reported ‘he also suffers from chronic post traumatic (sic) stress disorder’.
4.3In support of his claim, Mr Al-Salem provided a medical report by Dr Wajdi dated 8 August 2016 that noted that Mr Al-Salem was receiving treatment for the above listed conditions. The report noted, ‘his most troubling issue now is the ongoing foot pain following non union of a fracture of his left foot sustained in 2014. So far he needed to have two surgeries, but ended up having a flat foot and walks with the aid of a walking stick. He may still require another surgery’.
4.4Mr Al-Salem’s orthopaedic surgeon, Dr Hardisty provided a report on 9 August 2016 confirming the extent of the left foot injury and noting:
He has an ongoing problem with an accessory navicular that is loose and causing him pain. He may require surgery on this but Sabah is attempting to try to keep going with a walking stick and orthotics. It still causes him to limp. He has a flat foot that even if we do surgery for his navicular will not change.
It causes him pain but Sabah is coping at the moment with a stick. I will be reviewing him in three months time.
…
4.10On 6 October 2016, Dr Hardisty authored a report, which noted that Mr Al-Salem’s lower limb condition had deteriorated and that he was ‘having trouble walking any great distance or staying on his feet for any period of time’. Dr Hardisty opined that Mr Al-Salem would be unlikely to be able to continue working and that he would support him in an application for DSP.
4.11On 13 October 2016, Mr Al-Salem completed a Centrelink Business Details Form in which he noted that he owned and operated a business trading as Hussein Hair Dressing. He answered ‘No’ to a question asking ‘Have you stopped working in your business?’. In answer to a question asking him to ‘Provide details of the type of duties you perform and the number of hours you spend each week on these duties’ Mr Al-Salem answered:
•Oversight business – 8 hours
•Managing business bills – 8 hours
•Daily business requirements – 8 hours
•Managing customer serv (sic) – 8 hours
•Others – 8 hours
4.12On 16 October 2016, Dr Wajdi provided a report noting that in light of Mr Al-Salem’s foot problems, spinal disc disease and worsening depression, it was unlikely that he would be able to continue working.
…
4.14On 28 October 2016, Dr Lutton authored a report addressed to Centrelink. The report noted that Mr Al-Salem had been a patient of ASeTTS since 2014. Dr Lutton noted that:
Currently he is as stable as we can achieve and I do not consider there will be any further improvement in his functioning. It is reasonable to accept that he is permanently traumatized and copes day to day by maintaining a fairly solitary life style especially as interpersonal interactions often remain irritable and defensive.
In addition Sabah is ongoingly (sic) disabled by a foot fracture that has failed to heal such that he is now quite limited in his mobility and needs a walking aide (sic) at all times.
The combination of these factors has led to significant overall disability which I would have no difficulty rating at 20 points in view of his social isolation, restricted interpersonal interactions, persistent symptoms of trauma with sleep disturbance and the additional physical limitation.
In view of the above I am writing to support his application for re-instatement of his Disability Support Pension which he let lapse by his failure to attend his Centrelink appointment due to his social isolation and limited physical mobility.
…
4.17By report dated 16 February 2017, Dr Hardisty confirmed his opinion that Mr Al-Salem’s lower limb condition had reached maximal medical improvement and that he did not consider that further surgery would improve the condition.
4.18By report dated 15 March 2017, Dr Susan Lutton noted that Mr Al-Salem’s ‘day to day functioning is limited and restricted to remaining within the house and caring for his dog… I do not consider that he could engage in any form of employment which would be at risk to precipitate decompensation… In view of this complexity I continue to rate his psychiatric disability at 20 points’. Dr Lutton’s report did not disclose any mention of Mr Al-Salem’s management and ownership of his hair dressing business or grocery business (A2 2-6).

In response to the decision by AAT1, the Secretary embarked upon a course of securing further evidence of the Respondent’s medical conditions through optical surveillance by Verifact. This surveillance resulted in a written report (A4) and video footage (A9).
The Applicant provides the following narrative:
…The report revealed that surveillance footage was captured of Mr Al-Salem engaging in work at ‘Hussein Hair Dressing’ and ‘Fresh and Easy’ grocery store on the following days:
·12 October 2017
·16 October 2017
·17 October 2017
·18 October 2017
·21 October 2017
·23 October 2017
·24 October 2017
·25 October 2017
·26 October 2017
·27 October 2017
4.23The Secretary also requested Mr Al-Salem be reviewed by Dr Terace, psychiatrist. Dr Terace provided a report on 17 January 2018 assessing Mr Al-Salem’s mental health condition. Following his interview with Mr Al-Salem and a review of all available material (excluding the surveillance material) Dr Terace concluded that:
…prior to viewing the surveillance material, I concluded that there was a disparity between my direct observations of Mr Al-Salem in the Mental State Examination and the claims of total incapacity for employment.
4.24Following his review of the surveillance material, Dr Terace reported:
61.I am thus presented with evidence, if it has veracity and validity, to support the view that Mr Al-Salem is not a credible or reliable historian and that there is disparity between the objective evidence that you have provided, and the subjective description Mr Al-Salem provides of himself at interview.
62.Given that disparity and the grossness of the inconsistencies, I am compelled to strongly consider that the person represented in the video surveillance was not the same person described to me at interview, nor by the medical evidence that he provided to me at interview in the said documents.
63.In summary, based purely by comparison of the surveillance material to the video surveillance and the medical evidence Mr Al-Salem provided to me at interview, I am compelled to consider that there are inconsistencies that are so substantial as to suggest or support the need for consideration of conscious exaggeration or fabrication of some claims.
64.That surveillance imagery is not sufficient to exclude the presence of a psychiatric disorder, but on the balance of probabilities, it appears to be sufficient evidence, assuming that imagery has validity and veracity, to lead me to conclude that more reliance is required upon the objective than the subjective in this case.
4.25In considering the diagnosis of Mr Al-Salem’s condition, Dr Terace opined that he did not have sufficient evidence to dispute the ‘diagnoses of the past’ provided by Dr Lutton of PTSD and depression, but found that at the interview with Mr Al-Salem, those diagnoses (if valid) appeared to be in remission. He noted that:
21.Therefore, if Mr Al-Salem’s history had veracity, then there is no reason why he could or would not have suffered a Post-Traumatic Stress Disorder and a Major Depressive Disorder in the past.
22.My findings in the present do not enable him to meet full criteria for each disorder, but do not exclude the likelihood that each disorder was present in the past, assuming the veracity of his history.
4.26In considering whether the condition was fully, diagnosed, treated and stabilised, Dr Terace expressed his concern that Dr Lutton had been deceived by Mr Al-Salem, thereby denying Dr Lutton the ability to fully treat Mr Al-Salem’s condition.
4.27When asked to assess Mr Al-Salem’s impairments under the Impairment Tables, Dr Terace expressed his concern that he could not conclude that the condition was permanent due to the inconsistencies in the evidence. In particular, he noted that during the qualification period Mr Al-Salem’s condition may be considered to be fully diagnosed, fully treated and fully stabilised ‘only if we accept the veracity of his history and that he is a credible and reliable historian which is placed in serious doubt by the surveillance provided’.
4.28In considering the impairment ratings assigned by Dr Lutton, Dr Terace noted26:
83.In comparing that surveillance to the letter provided to me by Mr Al-Salem from Dr Susan Lutton, Consultant Psychiatrist dated 28 October 2016 at the interview, the surveillance is very inconsistent with her descriptions in the following way –
83.1 That he copes day-to-day by maintaining a fairly solitary lifestyle, especially his interpersonal relationships often remain irritable and defensive.
84.I cannot exclude that interpersonal relationships often remain irritable and defensive, but the surveillance, if valid, does not support a solitary lifestyle.
85.Nor does it support her descriptions of limited mobility and needing a walking aid at all times, as specifically stated therein.
86.Nor is it completely consistent with Dr Lutton’s statement of –
‘…no difficulty rating at 20 points in view of his social isolation, restricted interpersonal interactions, persistent symptoms of trauma with sleep disturbance and the additional physical limitation.’
4.29Dr Terace provided an assessment under Table 5 but noted that his assessment assumed ‘the veracity of the history and the credibility and reliability of the historian, and the absence of exaggeration of psychological symptoms, impairment or disability – which is not supported by the surveillance which is to the contrary’:
•Self-care and independent living – 0 points
•Social/recreational activities and travel – unable to estimate
•Interpersonal relationships – 5 points at most
•Concentration and task completion – 5 points at most
•Behaviour, planning and decision making – 5 points
•Work/training capacity – 5 points
4.30In assessing Mr Al-Salem’s work capacity, Dr Terace concluded that Mr Al-Salem’s psychiatric condition would not render impairments sufficient to prevent him from undertaking a variety of employments for at least 15 hours per week, independently of a program of support within 2 years from the date of claim 22 July 2016 (A2 6-9).
The Tribunal notes that the Secretary secured a report and documents from the Centre Manager of Bentley Plaza Shopping centre pursuant to section 196 of the Administration Act (A6). The Secretary’s Statement contains the following:
On 23 October 2017, Mr Patrick Owen (Asset Manager) provided responses to those questions. Mr Owen noted that Mr Al-Salem operated two businesses in the centre, being Hussein Hairdresser (since January 2013) and Fresh & Easy (since July 2017). Mr Owen estimated that Mr Al-Salem would usually be in attendance at the centre seven days a week, although he would not necessarily be present for the whole day. Mr Owen noted typical interactions that he would have with Mr Al-Salem included:
•    Saying ‘Hello’ as we pass in the mall area;
•    A meeting in the office to discuss leasing matters;
•    A text message relating to an issue with another tenant or an issue within the Centre; and
•    A meeting at his shop to discuss operational matters such as repair and maintenance queries.
The Respondent’s response to the evidence of Dr Terace, Verifact and the Centre Manager is contained accordingly:
23 May 2018
Statement by Sabah Al Salem
With reference to my attached statement dated 11/03/2018 in which I explained breifly (sic) all the circumstances which I am facing in my life and the continuing pain and struggle. I am attaching:
•          previuos (sic) and current medical statement by Dr. Faten Wajdi.
•          previous and current medical statement by Dr. Susan Lutton.
•          new medical statement by Ass. Professor Gerard Hardisty.
•          a statement by the center (sic) management office of Bentley Plaza Shop.
In this statement I would like to express my wonder about how the department dealing with my case by spending so much time and money, although everything is very clear about my medical and mental conditions and well being which clearly explained and supported by qualified doctors and specialists.
Looking into Dr. Terace exaggarate (sic) report of fifty two pages in which he repeated himself and turning around some points many times, a report which can be summarize in a few pages only. So kindly with your advice I would like to invite Dr. Terace to stay and live with me for one week for him to see how I spend my nights, then he will be able to assess my health conditions correctly.
Also I would like to bring to your attention that I never thought to be a useless person. And always willing to make my living cost. And as I realised that I will never be able to get any work opportunity, I mistakenly started a business to support myself. But due to my sickness and language barriers I never succeed here in Australia and thankfully without the help and advice from couple of friends I would be broke by now and lost my house.
At the end, I have nothing to add more than kindly asking you to carefully consider my circumstances and the struggles I am facing medically, mentally and financilly (sic) from this case. Looking ahead for your just and fair decision (sic).
Yours faithfully
Sabah Al Salem (R1).
A further statement is provided by the Respondent dated 11 March 2018:
I am writing this statement in response to the surveilance (sic) conducted by Verifact againest (sic) me, and the report of Dr. Lawrence D Terace who interviewed me on 18/12/2017.
I would like to bring to your attention the following:
That I am not a dead person, although I have bad medical conditions which affected me badly. I still could do some basic daily activities. As the surveilance (sic) video showing me doing very minor activities involve mobing (sic) a floor of five sequare (sic) meter (sic), moving between the two shops short distances of a few meters (sic), checking some delivery products, collecting the money from the till, open and close the door and putting a very light small coffee table and chairs outside to sit on it most of the times as the video is showing.
Although Dr. Terace should not assess my foot conditions as he said in his report, but he did. I would like to bring to attention that I did two operations and was not treated correctly and I have pain most of the times especially when I walk more than ten minutes where I need a walking aid to manage as my foot start to swell. When I went to the interview I used the walking aid as I have to walk a quite long distance each way from the car park to the doctor office, and this is really affecting my foot and the pain develop. But when I just walk a few meters (sic) within my shops or my house I do not need the walking aid as I can sit when I feel the pain. I assure you that I struggle with my foot, a matter which can be proven medically 100% and you can conduct further assessment on it.
For my social life, I would like to confirm that I do not have any family member or relatives in Australia, and nobody come to my house except when I need him, a young Libyan boy (Mr. Alex) who cut his hair in my shop. And there are two elderly retired persons (a Palestinian Mr. Hishmeh and an Egyptian Mr. Ibrahim) whom they frequently come and sit outside the shop even if I am not there and they are mainly customers. And the only trusted person to me is Mr. Albattal who I met also in my shop as a customer, he is helping anyone in the community and he never visited me at home.
My personal life is very lonely, I am not married and do not trust women. My protector is my dog who stay at night near my bedroom door, and without him I can not (sic) sleep for one minute.
For using my mobile much, it is my old sick mother in Canada, who I worry for and she worries about me. I received many calls from her and some calls from my three sisters who live in different countries. In addition to some calls from Arab grocery suppliers.
For my work history, Dr. Terace in his report misunderstood my work in Iraq. I joined the army at very young age and shortly escaped and hide within the family. And always work with my father in the family realestate (sic) business. I never work for anybody in my life.
The killing of my caring father pushed me and forced my mother to escape iraq. When I arrived to Australia with no English, I realised that I will never be able to find a job. So my mother transferred the family money for me to buy a house. As I do not have any qualifications or trade, I thought to make a business to survive as all my life depend on the family business. So I open a barber shop, and all I do is open and close the shop, sometimes mob (sic) the floor and provide hospitality for the customers: water or coffee. I have an accountant and two barbers doing the job which end me with a little profit as I am not doing the job and never been a barber.
Also at the beginning a few years ago I was misled by an Iraqi family from Sydney to open a resturant (sic) and I lost in this deal $26000 from my family money.
As you notice I am always trying to make my living to become independent. As for the last two years I was surviving on the little profit of the barber shop plus little money from the Centerlink (sic) which is in total for my house bills and feeding the dog. I am struggling and spend from my home equity.
As I need to make an income to survive and by having loan facility on my house, when the near shop close down by the previous owner, an Iraqi man who use to work in the shop for many years, convince me to take it and he will manage it for me and that I could make living of it.
So I unfortunatly (sic) again took the shop and I ask Mr. Albattal to call Mr. Cary (sorry if spell wrong) to tell him that I want to withdraw my pension claim, and he did. But a while later and before Mr. Cary send me the documents to sign, we become aware that Spudshed shop will open near me in the same complex. This affected badly my new business and hardly making the running cost with some loss according to my accountant. This has put extra stress and pressure on me, which force me to keep my claim for pension.
I always tried to pull myself out of my isolation to improve my mental conditions and wellbeing, but failed and put more strain and pressure on myself. And because of my psycological (sic) conditions I made many wrong decisions and trouble myself more and more.
I would like to express my dissatification (sic) about the report of Dr. Terace in which he described me very engaging in my interactions in the interview. It was hard on me to understand every question, so I try my best to concentrate to understand. Also he was unfair in interfering with assessing my foot conditions. And he never aware how I spend my nights lonely with fear and isolation. And accusing me of understanding the English language. If that the case I would be a better and healthier person as understanding the language putting on me a big deal of stress and anxiety as always I need someone to help me. And I would like you to conduct on me English assessment. And would like to assure you that my cabablity (sic) of reading and writing English is nothing with zero level. And for speaking and listening after seven years in Australia just understanding the basic every day language, academically my English is zero.
Kindly I am asking you to fully consider my medical conditions and betwwen (sic) your hand all the reports about it.
Sabah Al Salem
11/03/2018 (R8).
The Secretary makes the following contentions relating to the medical conditions of the Respondent:
5.9The Secretary accepts that Mr Al-Salem had impairments for the purposes of paragraph 94(1)(a) of the Act. However, the Secretary contends that Mr Al-Salem’s condition that caused these impairments was not fully diagnosed, treated and stabilised at the qualification period, or, even if they were, that the impairments they caused did not rate 20 points under the Impairment Tables. The Secretary also contends that Mr Al-Salem did not have a continuing inability to work during the qualification period. Mr Al-Salem therefore does not satisfy paragraphs 94(1)(b) or (c) of the Act.
…
Mental health condition – Table 5
5.18In accordance with the report of Dr Terace dated 17 January 2018, the Secretary contends that Mr Al-Salem’s mental health condition was not fully treated and fully stabilised during the qualification period. Accordingly, on that basis, an impairment rating cannot be assigned to any impairment the condition may cause. The Secretary relies on Dr Terace’s comments that:
during the qualification period Mr Al-Salem’s condition may be considered to be fully diagnosed, fully treated and fully stabilised only if we accept the veracity of his history and that he is a credible and reliable historian which is placed in serious doubt by the surveillance provided.
5.19In light of the significant inconsistencies noted by Dr Terace, the Secretary contends that the Tribunal should be hesitant to accept Mr Al-Salem’s evidence where it is not supported by objective facts. In particular, the report of Dr Terace should be preferred over the evidence of Dr Lutton, where Dr Lutton’s evidence appears to be based on an incomplete or inaccurate history reported by Mr Al-Salem. Dr Lutton’s reports do not acknowledge any knowledge of the extent of Mr Al-Salem’s employment activities and Dr Lutton has not been privy to the surveillance material.
…
Lower limb condition – Table 3
5.23The Secretary accepts that Mr Al-Salem’s lower limb condition was fully diagnosed, treated and stabilised and that the resulting impairment can therefore be rated under Table 3 of the Impairment Tables. In this respect, the Secretary notes the opinion of Dr Hardisty dated 16 February 2017 in which the doctor noted that the condition had reached maximal medical improvement and that it was unlikely that surgery would improve the condition.
…
5.26Whilst Mr Al-Salem used a walking stick when he attended his doctors and the AAT1 hearing, the surveillance footage of Mr Al-Salem shows him (over a period of 10 days) being able to effectively mobilise without the use of a walking stick. In light of the significant inconsistencies in the evidence, the Secretary contends that the Tribunal should accept the objective surveillance evidence over Mr Al-Salem’s self reporting and presentations at his doctors’ and the Tribunal.
…
5.28The Secretary relies on the surveillance footage which clearly shows Mr Al-Salem undertaking the following tasks:
·Vigorously cleaning the floors without the use of a walking aid;
·Standing up from a seated position without assistance;
·Entering and exiting from his business without assistance or the use of a walking aid;
·Entering and exiting from his grocery store without assistance; and
·Inspecting goods in a truck in the car park outside of his grocery store without assistance or the use of a walking aid (A2 12-17).
Under cross examination before the Tribunal, the Respondent stated the following:
·He arrived in Australia from war torn Iraq.
·His father was killed in front of him.
·He was unable to work and used close friends to assist him with all things to do with his private and business life.
·He undertook military service in Iraq.
·He was referred to a letter from Dr Lutton dated 15 March 2017 and agreed that he said his day to day functioning was about remaining in the house and caring for his dog (T43 259) (A1). He clarified with the words “most of the time”.
·He did not know where Dr Lutton got the impression that his day to day functioning was limited to his house and dog.
·When asked why he did not disclose to Dr Lutton about his ownership of two shops, he replied “because she did not ask”.
·The Respondent had been seeing Dr Lutton for two years.
·He told Dr Terace, “I go to the shops and sit around”. “I only told him about the hairdresser shop”.
·He has never worked.
·He only answered questions put to him by Dr Terace.
·He eats next door to the hairdresser shop.
·The evidence indicates that he saw Dr Terace for two hours with a friend and interpreter. He claimed that it was only for 10 minutes and later changed this to a short time. He claimed that in any event, this was a short time in which to make an assessment.
·He was referred to a Centrelink form (T35 234) (A1). He agreed that he had signed it, however, he claimed that the content of the document was put in by a friend. He could not remember the form but trusted people to fill in paper work for him. He signed it with no idea what it contained.
·He claimed that the information contained in the Centrelink form to which he was referred at question 49 was incorrect (T35 232) (A1).
·With reference to the surveillance, he agreed to opening the store, putting tables outside, mopping the floor on one occasion, and taking money from the “Till”.
·In the AAT1 decision, he told the Tribunal he had no interest in running the business (T2 9) (A1). Yet, the surveillance shows that he regularly attended the business he owned.
·He claimed that Mr Al Battal, his friend, present at the Tribunal on the day of the hearing prepared his statement in response to the surveillance material (R8). He was asked if he agreed with the content. He said yes.
·He was referred to the notice pursuant to section 196 of the Administration Act (A6). He claimed that the Centre Manager was not at the shopping centre seven days per week.
·He said in respect to the AAT1 decision concerning going shopping sometimes, that this was not correct and a matter of interpretation (T2 9) (A1).
·He can walk without a walking stick, dependent upon the pain and he drives between the shops and his home daily.
·He claimed that the statement by AAT1 that “he can only manage walking for 10-20 minutes” is incorrect.
·He claimed he could walk 15-20 minutes with rest without a walking stick and can stand for greater than 10 minutes.
·He claimed he did not tell Dr Lutton at (T36 235) (A1) that he walked with an aid at all times or that he told doctors that he can’t walk without a walking stick.

Mr Al Battal, a close friend and confident of Mr Al-Salem gave the following evidence:
·He claimed that he has known Mr Al-Salem for three years.
·He has consistently filled out forms and read incoming correspondence for Mr
Al-Salem.
·He said that Mr Al-Salem did not trust anyone other two to three close friends who he relies heavily on.
·He said that Mr Al-Salem rings him 10-20 times a day.
·He said that he struggles with his relationship with Mr Al-Salem, because of the demands it puts on his own family life.
·He uses all means to calm Mr Al-Salem down, when he becomes stressed and irate.
·Mr Al Battal has been in Australia for about 30 years.
·He is an architect by profession.
·He also serves his community as a volunteer.
Under cross-examination by Mr Burgess, Mr Al Battal stated that:
·the consultation between Dr Terace and Mr Al-Salem took two hours;
·the Centrelink form that the Respondent had given evidence with respect to was not in his hand writing (T35 234) (A1); and
·he wrote the contents of Mr Al-Salem’s response to the Surveillance material at the request of Mr Al-Salem (R8). The methodology followed he would write it, read it back to Mr Al-Salem and make amendments as required. This process took a week.
Dr Terace gave evidence at the hearing. He is a qualified Medical Doctor since 1987, and a specialist (Consultant Psychiatrist). Since 1994, he has held the qualification of Fellow of the Royal Australian and New Zealand College of Psychiatrists. His curriculum vitae was provided to the Tribunal (A11).
He made the following corrections to his report:
·Page 12 point 8 – the word “as” to be included between the words “between” and “a”;
·Page 12 point 9 – the words “hours per week” to be substituted with “days per week”;
·Page 27 paragraph 56 – the words “2 weeks” to be substituted with “4 weeks”; and
·Page 42 paragraph 7.5 – the word “subjective” to be substituted with the word “objective” (A5).
Dr Terace went through the methodology of his assessment which reflected the contents of his report (A5).
The Tribunal found the evidence of Dr Terace to be compelling, honest and truthful. His assessment of Mr Al-Salem at the end of the analysis was that at this point in time Mr
Al-Salem suffers from a mild to moderate depressive disorder. That is not to say that earlier medical assessments were not correct. Those assessments were made with the best information available at the time and the narrative provided by Mr Al-Salem.
Dr Terace, in line with his methodology, watched the video surveillance tape. His conclusion was that the images were significant and not just images by chance.
The Tribunal notes that the observations of Mr Al-Salem were initially over a five hour period extended to a further five hours over 10 individual days (A4).
Dr Terace concluded that after viewing the video and taking into consideration all medical reports and assessments that he had before him at the very least there was a question mark over the history of Mr Al-Salem and that his depression was not in the severe category.
Under cross-examination from Mr Al-Salem; Dr Terrace stated that:
·he had not taken a photo of the medication that Mr Al-Salem showed him during this hearing;
·he saw Mr Al-Salem once for two hours;
·he reviewed all the medical reports at the time and also for the purpose of this Tribunal hearing; and
·he was not a specialist in lower limbs.
The Tribunal has reviewed all the evidence before it including the video on the USB. It has a real concern in respect to the veracity of the evidence of Mr Al-Salem. The story he has told is full of contradictions and inconsistencies. The optical video evidence and the evidence of the Centre Manager makes it difficult for the Tribunal to determine if Mr
Al-Salem is telling the truth.
The Australian taxpayer expects those people being recipients of pensions to be in need of such assistance. In this case before the Tribunal, it is not clear that the Respondent fits into that category.
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
The Tribunal accepts from the evidence before it that the Respondent suffers from impairments to satisfy the requirements of section 94(1)(a) of the Act.
There is sufficient medical evidence before the Tribunal to come to that conclusion.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
Mental Health
On the basis of the evidence of Dr Terace, the Tribunal finds this condition to be fully diagnosed, treated and stabilised (FDTS).
Whilst the recommendation from Dr Terace is that Mr Al-Salem suffers from mild depression, the Tribunal observed him for almost three hours during the hearing and considered all the available evidence.
The Tribunal concludes that Mr Al-Salem did not have difficulties with:
·self-care and independent living;
·social interaction;
·interpersonal relationships;
·concentration;
·behaviour, planning and decision making; and
·managing the two shops that he owns.
The Tribunal therefore concludes that whilst this condition is FDTS, it generates zero points under the Impairment Tables.
Lower Limb
The Tribunal has considered all the evidence before it including the inconsistencies and contradictions over the capacity of Mr Al-Salem to walk with and without an aid, in this case a walking stick.
The Tribunal finds that Mr Al-Salem can:
·walk without difficulty;
·walk without difficulty around the home and community;
·stand unaided for at least 10 minutes; and
·sit and stand up (without assistance).
The Tribunal therefore concludes that whilst this condition is FDTS, it generates zero points under the Impairment Tables.
Other Conditions
The Tribunal has no evidence before it to support the contention of functional impairment for the medical conditions of – hypertension, hypercholesterolaemia, obstructive sleep apnoea, testicular varicocele, lower back pain and diabetes mellitus.
These conditions were not considered FDTS and therefore, an impairment rating cannot be assigned.
Whether the Applicant has a continuing inability to work (CITW)
The Tribunal finds that Mr Al-Salem’s impairments received an impairment rating of zero and therefore, he fails to satisfy section 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider section 94(1)(c) of the Act.
For the sake of completeness, should the Tribunal find that the Respondent satisfies section 94(1)(b) of the Act, the Respondent would nevertheless fail to satisfy section 94(1)(c) of the Act. According to section 94(3B) of the Act, the Respondent did not have a severe impairment, and, according to section 94(3C) of the Act, the Respondent did not actively participate in a program of support (POS).
The Respondent lodged his application for DSP on 22 July 2016. To have actively participated in a POS, this must have occurred for 18 months in the 36 months prior to the date of the claim. There is no evidence before the Tribunal to indicate that this occurred.
On this basis, it is highly unlikely that this application would have succeeded, regardless of whether 20 impairment points could be assigned.
DECISION
The Tribunal sets aside the decision of the AAT1. In substitution for the decision of the AAT1 so set aside, the Tribunal determines that the Respondent does not qualify for DSP.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.......[Sgd].................................................................
Administrative Assistant Legal
Dated: 10 August 2018

Date of hearing: 3 July 2018

Representative for the Applicant: Ashley Burgess

Solicitors for the Applicant: Sparke Helmore

Respondent: In person

[2018] AATA 2745

10 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	3 July 2018
Representative for the Applicant:	Ashley Burgess
Solicitors for the Applicant:	Sparke Helmore
Respondent:	In person