Aljashaam and Secretary, Department of Social Services (Social services second review)

[2015] AATA 965

Aljashaam and Secretary, Department of Social Services (Social services second review) [2015] AATA 965 (14 December 2015)

Division	General Division
File Number	2015 / 0943
Re	Qasim Aljashaam
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	14 December 2015
Place	Sydney

The Tribunal affirms the decision under review.

.....................[sgd]...................................................

Mr P W Taylor SC, Senior Member

CATCHWORDS

SOCIAL SECURITY - pensions - disability support pension – whether applicant’s conditions permanent – whether applicant’s conditions fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions rated 20 points or more under the Impairment Tables - decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 27A, 29, 29AB, 33, 42B

Social Security (Administration) Act 1999 s 8, Sch 2 cl 4(1)

Social Security Act 1991 ss 26, 94

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 3, 5, 6, 11, Pt 3

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

14 December 2015

1. Mr Aljashaam was born in Kuwait. He lived there until he was about 22 years old when, in the aftermath of the 1990/1991 Iraq Kuwait war he was arrested, imprisoned for 8 months, tortured and then deported in early 1992.  Thereafter he lived in Iraq for almost 20 years, before the sectarian conflict that festered following the 2003 invasion, caused him to flee.  He left behind his wife and six children.  After arriving in Australia in early 2011 he spent many months in Australian immigration detention, first on Christmas Island and then in the Curtin detention centre.  He was released from detention in late February 2012.

2. Since his release from immigration detention Mr Aljashaam has made several unsuccessful applications for disability support pension (“DSP”).  His most recent application was rejected by Centrelink on 28 October 2014 - on the basis that he did not have a “20 point” impairment rating:  see paragraph 9(d) below.  The Social Security Appeals Tribunal (“SSAT”) confirmed that rejection in its 17 February 2015 decision. 

3. Mr Aljashaam, who is not literate in English, lodged a review application with the Tribunal on 27 February 2015.  The only reason stated in the application was that he was “not satisfied” with the SSAT decision.  In April 2015 he provided a short statement saying he did not know why his application had been refused, and asking that the Tribunal “have  look (sic) and study my case well”.  At the beginning of the present review hearing, Mr Aljashaam informed the Tribunal (via an Arabic interpreter) that (i) he did not have with him, and in any event had not read, the section 37 documents, (ii) had not read the SSAT decision, (iii) did not know why his application had been rejected, (iv) did not really understand the (admittedly complicated) formal criteria governing eligibility for DSP, (v) could not read the parts of the Impairment Tables relevant to his application, and (vi) had not read the Secretary’s submission opposing his review application.  The latter omission was significant because the Respondent’s opposition raised the, potentially unanswerable, ground that Mr Aljashaam had not completed a “program of support”, and thus could not satisfy the “continuing inability to work” qualification requirement:  see paragraph 9(e) below.

4. Mr Aljashaam’s unfamiliarity with the contents of the section 37 documents, and his lack of any real understanding of the relevant eligibility criteria, was confirmed by subsequent interchanges during the course of the hearing.  It was perhaps only partly remedied by an adjournment, which I initiated, during which the hearing interpreter took Mr Aljashaam through the relevant criteria and material in Arabic.

5. The complexity of the relevant DSP eligibility criteria, and the fact of Mr Aljashaam’s English language illiteracy, made the difficulties that became apparent at the beginning of the hearing understandable.  Similar difficulties confront many self-represented applicants.  It is for that reason that the Tribunal has an “outreach” procedure that involves contacting self-represented litigants, informing them of the nature of the review process, confirming receipt of the section 37 documents (with the aid of an interpreter when required), and offering a legal aid duty solicitor appointment (in social security matters only).  That procedure was followed in the present matter and Mr Aljashaam declined the assistance of the duty solicitor.  In addition, it is apparent from the Tribunal’s records that during the Tribunal’s pre-hearing conference process further steps were taken to explain the DSP qualification criteria.  Finally, a handwritten draft letter addressed “Dear Doctor” was given to Mr Aljashaam.  The draft focussed attention on the need to address the questions (i) whether any relevant medical condition was “stabilised” and (ii) the importance of assessing functional impairment within a 13 week qualification period.  Despite those steps having been taken, there is nothing to indicate that this draft letter was actually used.  Certainly no medical report addressed the specificity of the questions raised in the draft letter.

6. The disclosure that Mr Aljashaam made at the hearing was readily foreseeable. Its foreseeability, in the light of the evidential inadequacy suggested by the draft “Dear Doctor” letter, and the history of Mr Aljashaam’s previous unsuccessful DSP applications (a matter disclosed in the section 37 documents), raises questions about the effectiveness of the processes of both Centrelink and of this Tribunal. Those questions arise against the background of the statutory obligations imposed by ss 2A, 27A, 33(1AA) and 33(1AB) of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”), and the public interest those obligations are intended to further. Relevant questions prompted by the circumstances of the present matter (and others like it) include the following:-

   (a)why applicants are required to provide Centrelink with information about their language abilities and preferences (see for example Questions 3, 4 & 5 in the standard Centrelink form SA317(b).1404), and whether effective use is made of that information in Centrelink’s communications with applicants

   (b)whether, having regard to the specific obligations contained in the principles of administration stated in section 8 of the Social Security (Administration) Act 1999 (relating to disadvantaged people, linguistic diversity and adequate information relating to review of decisions) reasonable and appropriate procedures both exist, and are followed, within Centrelink, to act upon an applicant’s known language preferences and to provide non-English literate clients with an appropriate understanding of relevant criteria, and the respects in which they are contentious in their particular circumstances

   (c)whether decision makers, at least where they require and obtain information indicating that an applicant requires an interpreter (see Question 3 in the standard Centrelink form SA317(b).1404) comply with the “reasonable steps in the circumstances” notification obligation in s 27A(1) of the AAT Act if they merely provide English language documents, and what other steps they do take in such circumstances

   (d)having regard to the apparently mandatory requirement in s 29(1)(c), the obligation in s 33(1AB), and the discretionary powers conferred in ss 29AB and 33(2A)(c) of the AAT Act, whether, applicants (regardless of their linguistic preferences) should be required (and where necessary assisted) to formulate specific grounds of review before their matters are listed for final hearing by the Tribunal

   (e)whether, having regard to the obligation in s 33(1AB) and the power contained in s 42B of the AAT Act, the Tribunal should only list matters for hearing where applicants have satisfied the Tribunal that they (i) understand the reasons for the decision under review, (ii) understand the substance of the relevant legislative criteria, and (iii) have formulated specific, apparently arguable, grounds of review

   (f)whether, having regard to the provisions referred to in the preceding paragraph, the Tribunal should ordinarily dismiss an application for review where an applicant fails to comply with the requirements referred to in the preceding paragraph.

7. Questions of the kind set out above are not, in any respect, matters of merely intellectual curiosity or rhetorical enquiry. The statutory provisions in the AAT Act to which I have referred suggest that questions of these kinds, and the need to strive to find effective practical answers to them, are important to the Tribunal’s ability to achieve the statutorily mandated desiderata in s 2A of the AAT Act.

   DSP ELIGIBILITY CRITERIA

8. In the circumstances of the present matter, the starting point in addressing the potential grounds of Mr Aljashaam’s application is to understand the relevant eligibility criteria.  They are set out in various places - the Social Security Act 1991 (“SSA”), the Social Security (Administration) Act 1999 (the “Administration Act”); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the 2011 Impairment Determination”), and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the 2011 Participation Determination”).  An important additional requirement is that an applicant must satisfy the substantive eligibility criteria within 13 weeks of their benefit or pension application: see Administration Act Sch 2 cl 4(1).

9. The substantive DSP eligibility requirements involve detailed criteria and informed, but nevertheless impressionistic, evaluations.  The complexity of the eligibility criteria means that any summary of them risks a degree of over simplification.  However it is generally accurate, and certainly convenient, to say that Mr Aljashaam’s qualification for DSP depends on satisfaction that by 12 January 2015 (i.e. within 13 weeks of the 13 October 2014 date of his application):

   (a)he had “permanent” conditions – in the sense that they were fully diagnosed, treated and stabilised, and likely to persist for more than two years: see the 2011 Impairment Determination  subs 6(3)-(7);

   (b)his “permanent” medical conditions resulted in functional impairments that affected his capacity to work and were likely to persist for more than two years:  see the 2011 Impairment Determination ss 3, 6(3) and (8);

   (c)his functional impairments themselves prevented him, within the next two years, from either doing any (ordinarily remunerated) work for at least 15 hours per week, or undertaking a relevant training program: see SSA 1991 ss 94(1)(c), 94(2)(a), 94(2)(b) and 94(5);

   (d)his functional work impairments had an impairment rating of at least 20 points under the relevant Impairment Tables: see SSA 1991 ss 26 and 94(1)(b) and the 2011 Impairment Determination Part 3;

   (e)his qualifying impairment rating included at least 20 points under a single Impairment Table, or he had either completed a program of support, actively participated in such a program for at least 18 months, before his October 2014 application, or his impairment made (or makes) continued participation unlikely to improve his employment capacity:  see SSA 1991 ss 94(1)(c), 94(2)(aa), 94(3B), 94(3C) and 94(5) and the 2011 Participation Determination.

   RULES FOR DETERMINING AN IMPAIRMENT RATING

10. The 2011 Impairment Determination (referred to in paragraph 9(a) above) with its prescriptive rules and Tables, governs the assessment of any rating for any impairments resulting from Mr Aljashaam’s medical conditions. Significant aspects of the 2011 Impairment Determination include the following:

    (a)a rating can only be applied to levels of functional impairment, rather than to the diagnosed condition responsible for the impairment:  see the 2011 Impairment Determination subs 5(2)(d), 6(8) and11(5);

    (b)an impairment point rating can only be assigned where (i) conditions are fully diagnosed, treated and stabilised, (ii) those conditions cause functional impairment, and (iii) the impairment is likely to persist for more than two years: see the 2011 Impairment Determination subs 6(1)-6(4);

    (c)diagnosed and relevantly treated chronic pain may itself be characterised as a relevant condition, but must be rated by assessment of its impact on the person’s functional abilities:  see the 2011 Impairment Determination subs 6(9);

    (d)past and planned reasonable treatment, corroborated diagnosis, and the likelihood of significant functional improvement, are relevant to the characterisation of a condition as “fully diagnosed, treated and stabilised”:  see the 2011 Impairment Determination subs 6(4)-(7);

    (e)the Tables provide descriptions of various levels of functional impact (indicated by italicised type). Those levels are accompanied by particular examples of activities, abilities, symptoms or limitations (typically numerically itemised and indicated by ordinary font text). The functional impact of an impairment is to be assessed “by reference to” the listed examples: see the 2011 Impairment Determination subs 5(2)-5(3);

    (f)a person’s impairment rating must be assessed on the basis of what the person can, or could, do normally or habitually, not on the basis of that they choose to do, or on what they can only do rarely: see the 2011 Impairment Determination subs 6(1) and 11(3);

    (g)the functional assessment and rating cannot take into account either uncorroborated symptoms or non-medical factors:  see the 2011 Impairment Determination subs 8;

    (h)a functional impairment must be assessed by applying the Table specific to the particular impairment, and ratings for the same impairment (even where contributed to by several conditions) cannot be assigned under multiple Tables: see the 2011 Impairment Determination subs 10(2) - 10(6);

    (i)in choosing between levels of impairment, the relative descriptors have to be compared, only the specified rating values (and no intermediate values) can be assigned, and the higher rating can only be assigned if all of its descriptors are satisfied:  see the 2011 Impairment Determination subs 11(1)(b), 11(1)(c) and 11(2).

    MR ALJASHAAM’S MEDICAL CONDITIONS

11. Mr Aljashaam’s 13 October 2014 application listed three conditions as the cause of his disabilities.  These were (i) arthritis affecting his knees, (ii) back pain, and (iii) a psychiatric condition, which he compendiously described as involving, “obsessive disorder, anxiety and post traumatic stress disorder”.  He did not give any details of how these various conditions affected him, other than the fact that they caused “fatigue” and “abdominal pain”.

12. Mr Aljashaam’s application was supported by a medical report from his general practitioner, Dr Ismail.  In his 5 September 2014 report Dr Ismail:

    (a)described Mr Aljashaam as having multiple lumbar disc lesions, which he described as conditions that were generally well managed and caused minimal or limited impact on Mr Aljashaam’s functional abilities

    (b)said that Mr Aljashaam had bilateral knee osteoarthritis, which had been diagnosed by an orthopaedic surgeon

    (c)recounted that the arthritis caused painful knee swelling and “difficulty of walking properly”, opined that the condition would continue to be symptomatic for more than two years, and would likely deteriorate, but he gave no other specific information about its impact on Mr Aljashaam’s functional abilities (indeed he omitted to answer a question specifically enquiring about that impact)

    (d)said that Mr Aljashaam had been diagnosed as suffering from “obsessive thoughts and anxiety with depression”

    (e)reported that Mr Aljashaam’s current symptoms involved “obsessive thoughts, low mood, lack of confidence, anxiety and nightmares”, opined that whilst the condition would persist for more than 2 years it would likely fluctuate in its effect, and again refrained from answering a question specifically enquiring about the effect of the underlying condition on Mr Aljashaam’s functional abilities.

    BACK PAIN

13. The December 2013 report of a CT scan of Mr Aljashaam’s thoracic and lumbar spine noted him as having a history of right sided sciatica and back pain.  The substance of the scan report described his spine as unremarkable, except for a generalised L4/5 disc bulge.  That bulge was potentially causing nerve root impingement or irritation.  That possibility was consistent with the reported history, and with the contents of a March 2014 report from a general practitioner at an Auburn Medical Practice.  That report, which was clearly written to support one of Mr Aljashaam’s previous DSP claims, said he had “severe back pains referred to his legs” and consequential “difficulty in moving and in walking”. 

14. However, it appears that the Auburn Medical Practice was not Mr Aljashaam’s usual medical adviser.  The medical reports he submitted in support of his previous DSP applications (in August 2012 and February 2013) were from a Liverpool general practitioner who had been Mr Aljashaam’s doctor since May 2012.  Neither report refers to any back or spinal condition.  Dr Ismail’s 5 September 2014 report disclosed that he had been Mr Aljashaam’s doctor since February 2013.  It did assert that Mr Aljashaam had multiple lumbar disc lesions.  But that was in answer to a question about “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”. 

15. Dr Ismail’s September 2014 report therefore provides no support for the proposition that Mr Aljashaam’s back pain, despite a diagnosis of multiple lumbar disc lesions, gave rise to any significant functional disability. No such disability is included in any of the orthopaedic surgeon Dr Walker’s  reports. 

16. There is a 21 March 2015 report, from a colleague of Dr Ismail, which describes Mr Aljashaam as suffering from “severe osteoarthritis in his lumbar spine and left knee”.  It also reports that he cannot do “repetitive movements, bending or twisting of his back”.  But that report is dated months after the end of the relevant 13 week qualification period (see paragraph 9 above) and its opinion about the extent of any disability associated with Mr Aljashaam’s spinal condition, is not supported by any earlier medical report.  Indeed, it is contradicted by the opinion contained in Dr Ismail’s 5 September 2014 report.

17. The SSAT reasons for decision include an account of the evidence Mr Aljashaam gave at the February 2015 hearing (i.e. more than a month before the report referred to the preceding paragraph).  That account attributes to Mr Aljashaam the ability to bend down and pickup objects from the floor, move his head both laterally and vertically, and rotate his trunk laterally.  In eliciting that evidence from Mr Aljashaam the SSAT was obviously having regard to the examples used in impairment “Table 4 - Spinal Function” to illustrate the “no functional impact on activities” category.  Where that category applies the corresponding impairment point rating is zero. 

18. In his evidence in the current proceedings Mr Aljashaam, described his back pain as something that had resulted from his imprisonment in Kuwait. He said it had come and gone over the years. He said he would suffer from back pain if he walked short distances. He said he was even in pain sitting in the chair in the course of the present hearing.

1. There is very little evidence, and in my view really none, to establish that Mr Aljashaam had any significant impairment relating to his back condition during the 13 week qualification period relevant to his October 2014 DSP application.  Such a proposition is explicitly contradicted in Dr Ismail’s 5 September 2014 report.  More specifically, the evidence recorded in the SSAT decision about Mr Aljashaam’s own assessment of his ability to bend and turn his head and trunk would, if accepted, require a conclusion that the relevant impairment point rating is zero.  Again, despite having his attention drawn to that evidence, Mr Aljashaam offered no contradiction or qualification about its accuracy or effect.

2. For the reasons set out above I am satisfied that Mr Aljashaam’s spinal condition merits a zero point rating under Impairment Table 4.

   KNEE CONDITION AND ARTHRITIS

3. Mr Aljashaam suffered the injury to his knee in 1990 and it necessitated surgery later that year.  Dr Richard Walker, an orthopaedic surgeon, reported in June 2012 that Mr Aljashaam had a good range of movement in his left knee but some swelling and pain.  He suspected that the symptoms were related to degenerative changes and organised an MRI examination for further evaluation.  

4. In the August 2012 medical report submitted with Mr Aljashaam’s first application for DSP he was described as suffering from mild osteoarthritis of the left knee.  His only treatment was occasional analgesia (Panadol or Nurofen).  Its impact upon his functional ability was described simply as an inability to stand for any long period. 

5. In January 2013 Dr Walker reported that the MRI scan confirmed his suspicion of degenerative changes in Mr Aljashaam’s left knee.  He considered that Mr Aljashaam was fit to work but only in an occupation that involved desk duties, rather than manual labour or long periods of standing.

6. In February 2013 Mr Aljashaam’s general practitioner addressed the functional impact of his knee condition in a further medical report submitted in connection with an application for DSP.  This report described the functional impact of the condition merely as “difficulty climbing stairs”.

7. Mr Aljashaam’s knee condition was the subject of a functional impact assessment by an exercise physiologist in early March 2013, in connection with earlier applications for DSP.  In his report of that assessment the physiologist recorded Mr Aljashaam’s history of difficulty with prolonged walking and standing but a contemporary ability to stand for 15 minutes and walk for 30 minutes. The physiologist concluded that Mr Aljashaam did not merit any impairment rating for his knee condition - because he did not require any walking aid, and could stand for longer than 10 minutes. 

8. Dr Walker provided a further report on 10 September 2013.  In that report he recounted Mr Aljashaam’s request for a certificate that his knee condition totally disabled him from all forms of work.  Dr Walker refused to provide such a certificate, and restated his view that although Mr Aljashaam had a chronic, and permanent, arthritic condition he was fit for work involving “desk duties”.

9. As I have earlier noted, Dr Ismail’s 5 September 2014 report included no details of any functional impairment related to Mr Aljashaam’s knee condition.  However in an 11 September 2014 medical certificate in which he certified Mr Aljashaam as totally unfit for any work, Dr Ismail recorded him as suffering from fluctuating symptoms of left knee pain. 

10. Following Mr Aljashaam’s 13 October 2014 DSP application he was assessed by a rehabilitation counsellor on 28 October 2014.  The counsellor noted the contents of Dr Walker’s 29 January 2013 report, and then set out his own assessment of Mr Aljashaam’s lower limb function.  The counsellor concluded that Mr Aljashaam merited a five-point impairment rating under impairment “Table 3 – Lower Limb Function” - on the basis that he had some difficulty walking to local facilities and said he could stand and walk for only 5 to 10 minutes at a time.

11. Dr Walker provided a further report on 20 January 2015. In that report he repeated his opinion that Mr Aljashaam had moderately advanced arthritis.  He noted that “on review today he has restricted range of motion” but this included flexion to beyond 100 degrees.  He adhered to his previous view that any surgical remedy was inappropriate and that Mr Aljashaam should “continue with his non-operative measures and manage his day-to-day activities as best he can”.  Dr Walker did not include any specific description of any functional limitations that restricted those day-to-day activities.

12. In its February 2015 reasons for decision the SSAT recorded Mr Aljashaam’s account of his functional abilities.  According to that account he could undertake all daily tasks of self grooming and care, and did not use any walking aids.  He could go to a shopping mall, use public transport and drive a car.  The SSAT concluded that Mr Aljashaam could walk without difficulty around his home and local community area, kneel, squat and rise to the standing position without difficulty, stand unaided for 10 minutes and climb stairs - albeit slowly and with difficulty.  The SSAT decided that, having regard to the relevant Impairment Table (Table 3 - Lower Limb Function), Mr Aljashaam’s knee condition did not merit any impairment rating.

13. In the course of the hearing in the present proceedings Mr Aljashaam referred to his previous knee surgery. He regarded it as unsuccessful.  He said his left knee tended to swell when he walked.  In order to demonstrate his concern about the “clicking” sound he said his knee made, he stood up (unassisted) and flexed his knee vigorously several times.  That demonstration produced audible sounds of crepitus in his left knee.  But it also demonstrated a very significant range of movement - as Dr Walker had previously reported.  Mr Aljashaam complained that walking caused him pain and that he could not run.  However, Mr Aljashaam did not offer any contradiction of the contents of the findings in the SSAT’s reasons for decision. This was despite the fact that I adjourned the proceedings to ensure the contents of those reasons were interpreted to him.

14. In the circumstances I have set out above, I am comfortably satisfied that Mr Aljashaam’s knee condition merits only an impairment rating of zero under Impairment Table 3.

    MENTAL ILLNESS

15. During the period Mr Aljashaam was in immigration detention in 2011 psychometric testing reported him as symptomatic for post-traumatic stress disorder “PTSD”) - related partly to his previous incarceration in Kuwait.  A counsellor who assessed him at that time recorded that he presented with severe depression.  The counsellor was concerned that the detention environment was adding to his depression.

16. In March 2012, six months before he made his first DSP application, Mr Aljashaam was assessed by a registered psychologist.  The psychologist reported that his PTSD condition was fully diagnosed and had been aggravated by recent immigration detention.  Later assessment by another counsellor in August 2012 again reported that Mr Aljashaam had psychometric testing scores which indicated that he was symptomatic for PTSD, anxiety and depression.  At that time, and through until at least April 2013, he was receiving treatment, in the form of counselling and psychotherapy from another registered psychologist.  By April 2013 the psychologist considered that he required antidepressant medication and continuing psychotherapy including cognitive behavioural therapy.

17. In the medical reports submitted in August 2012 and February 2013 in connection with Mr Aljashaam’s previous applications for DSP his PTSD / major depression was reported as the condition that had most impact upon him. However, that impact was described in the August 2012 report only as “poor communication”.  In the February 2013 medical report its impact was described, somewhat vaguely, as difficulty in concentrating and with interpersonal relationships.  However, the treating psychologist’s April 2013 report, after briefly referring to his symptoms of obsessive thoughts, difficulty in sleeping and difficulty in concentration, described him as “unfit for work due to medical conditions and stress”. It is by no means clear that this reference to “medical conditions” was a reference to the limited psychological symptoms described, or a reference to other, unstated, matters.

18. Mr Aljashaam’s mental health was the subject of a further report by a psychiatrist on 16 June 2013. The history recorded in that report included symptoms of nightmares, sleep disturbance and flashbacks to the 1990/1991 war, as well as a tendency to anger in social interaction.  The psychiatrist diagnosed Mr Aljashaam as suffering from PTSD and prescribed Epilim (a medication whose uses include mood stabilisation).  The reported medication strategy was to build up the dose “based on his response and potential emergent side-effects”.  The psychiatrist added the obscure, and apparently inaccurate, comment that Mr Aljashaam had “physical injuries that might take long to be cured if it will be cured at all”.  The psychiatrist said he was guarded about Mr Aljashaam’s prognosis.

19. That report was then followed by two reports from another consultant psychologist in October 2014 and 1 July 2015 (the latter much more than 13 weeks after the October 2014 application).  There are some difficulties with the October 2014 report - because the paragraph containing the specific diagnosis refers to another patient.  However I assume that reference is merely mistaken - because the following paragraph does name Mr Aljashaam, and the report then continues on to assess his mental health needs. Significantly, the report also indicates that Mr Aljashaam has been recommended to undertake ongoing counselling, and to consult a psychiatrist in the nearest future.

20. That recommended psychiatric assessment appears to have been carried out on 11 November 2014 by a consultant psychiatrist, Dr Alhajali.  His report contained a diagnosis of symptoms of anxiety in the form of chronic PTSD.  It then set out a four point management plan.  The plan included (i) education about the nature of Mr Aljashaam’s symptoms, (ii) a change in medication, (iii) supportive psychotherapy in the form of cognitive behavioural therapy, and (iv) lifestyle changes, including exercise and structured activities to assist in reducing the level of tension and distress.  Despite this management plan Dr Alhajali pessimistically opined that it was unlikely Mr Aljashaam “would show much improvement in coming years with possible further deterioration”.  Also despite the management plan, Dr Alhajali noted that he had not arranged any further consultation with Mr Aljashaam, other than raising the possibility of a review in 12 months’ time. 

21. The medication change Dr Alhajali recommended in his 11 November 2014 report was a change from Lovan 20 mg to Cymbalta 60mg.  Previously Mr Aljashaam’s medication had been:

    (a)August 1991 to about March 1992:  Lexapro - dose not known

    (b)July 1992:  Lexapro - 10 mg tablet - although an August 2012 psychologist’s report suggests that either this was a more recently prescribed medication or that Mr Aljashaam was not reliably compliant in taking it

    (c)25 February 2013:  Lexapro - 10 mg tablet

    (d)16 June 2013:  current medication described as Escitalopram oxalate (i.e. Lexapro) 20 mg tablet (suggesting an increase in the dose since February 2013) - recommended by the psychiatrist Dr Allam to commence Epilem 100 mg tablet and increase dose based on his response

    (e)5 September 2014:  current medication described as “Lovan 20 mg” - suggesting that Dr Allam’s June 2013 recommendation had either not been followed or had produced no acceptable response.  Past medication described, without particulars, as Aropax 20 mg.  However notes contained in the Rehabilitation Counsellor’s October 2014 report suggest that Mr Aljashaam had only begun to take Lovan in August 2014

    (f)November 2014:  current medication again described as “Lovan 20mg”.  Dr Alhajali’s 11 November 2014 report notes that previous medication had been “Lexapro 20 mg and Epilim with limited effects”

    (g)January 2015:  current medication again described as “Lovan 20mg” - a description which is not consistent with the November 2014 recommendation or the subsequent July 2015 report of Dr Alhajali, where he stated that Mr Aljashaam had been taking Cymbalta 60mg “for the last 8 months”.

22. Notwithstanding the comment in his 11 November 2014 report (that he had not arranged any further review of Mr Aljashaam, but would be happy to review him in 12 months’ time) Dr Alhajali provided a further short certification letter on 31 January 2015.  In that letter he expressed the opinion that Mr Aljashaam was “incapable of work or study and meets the criteria for DSP”.  (I note that nothing in the content of that certificate displayed the psychiatrist’s knowledge of what those criteria were). 

23. Dr Alhajali provided a further, and detailed, report in July 2015.  In that report, and surprisingly in view of the statement in his 11 November 2014 report that I referred to in the previous paragraph, he stated that Mr Aljashaam had been his patient “since 11 November 2014” and that he had “reviewed him on different occasions”.  In relation to the latter statement the report contained no details of either the number, or the date, of those “different occasions”.  The report described Mr Aljashaam’s complaints of chronic insomnia and recurrent nightmares.  It then continued on:

    He feels anxious and worried with recurrent irritability and anger outbursts and a decline in memory and attention with dissociative periods. He feels fearful and threatened more so at night time. He spends most of his time at home, fearful of leaving the house and feels paranoid that people are watching him.  He fears losing his way when outside of home and not being able to find his way back.

    … He feels low in mood most of the time and on occasions, has had fleeting suicidal thoughts.

    He is frequently fearful and frightened and on occasions he becomes paranoid that people and cars are following him.

24. Dr Alhajali’s report then went on to clarify that his diagnosis (“chronic anxiety disorder in the form of PTSD with chronic symptoms of depression”) was based on the initial psychiatric interview in November 2014 and the subsequent (but unspecified) interviews.  Dr Alhajali then described the treatment he had prescribed since November 2014 as including the antidepressant medication.  But apart from referring to previous treatment and psychotherapy, the report discloses no information in relation to the implementation of the management plan he refers in his November 2014 report.

25. Thereafter in his July 2015 report Dr Alhajali expresses the opinion that Mr Aljashaam’s diagnosed condition gives rise to severe functional impairment and merits a 20 point score under the relevant Impairment Table.  The contents of this report thereafter indicate that he has expressed that opinion with regard to “Table 5 - Mental Health Function” and, in particular, the descriptions and examples appropriate to the 20 point “severe functional impact” descriptors in that Table. More specifically, in relation to those descriptors, Dr Alhajali recounted Mr Aljashaam as:

    (a)having become increasingly dependent on care from friends in performing most activities of daily living and in particular shopping, cleaning, cooking, showering, travelling and financial management

    (b)having showed limited ability in social interaction with others and difficulty in forming relationships

    (c)having difficulty maintaining concentration for more than a few minutes

    (d)having difficulty in learning new tasks (for example an inability to learn to use public transport independently) and having deficits in his planning ability and executive functioning.

26. Given the July 2015 date of Dr Aljahali’s most recent and detailed report, it is of limited relevance in determining whether Mr Aljashaam’s psychiatric condition was relevantly “permanent” within the 13 week qualification period that ended on 12 January 2015.  The principal difficulty relates to the question whether or not Mr Aljashaam’s condition had been fully treated and stabilised within the qualification period.  They are essential aspects of satisfaction that his condition was “permanent” and thus eligible for an impairment score rating:  see paragraph 10 above.  The difficulty arises because of (i) the limited evidence of effective treatment that Mr Aljashaam has undertaken, (ii) the history of partially intermittent, and changed antidepressant medication, including the very recent medication change recommended by Dr Aljahali in November 2014, (iii) the management plan recommended in November 2014, and (iv) the fact that the opinions expressed in Dr Alhajali’s July 2015 report are explicitly based, at least in part, on information which results from interviews and treatment experience that occurred after 11 November 2014 and is not shown to relate to the state of affairs in the 13 week qualification period.  In particular, Dr Alhajali’s comment (on page 4 of his July 2015 report) that Mr Aljashaam “has been increasing becoming dependent on care” explicitly records a deteriorating state of affairs and requires the conclusion that the doctor’s opinion is based upon the totality of information available as at 11 July 2015, rather than the state of affairs in the 13 week qualification period.  That inference is partly corroborated by the disclosure that Mr Aljashaam made at the SSAT hearing on 17 February 2015.  There he reported that his mental health symptoms were deteriorating.  It is more significantly corroborated by the July 2015 report from the psychologist who referred to 15 sessions with Mr Aljashaam since September 2014, and reported his opinion that “the recent decline in his mental health obstructs Mr Aljashaam’s ability to work or study”.

27. Having regard to the recent change of medication recommended in November 2014, the further treatment implicit in the management plan Dr Aljahali then outlined, as well as Mr Aljashaam’s disclosure that his past treatment had been interrupted, partly because of his changes of address, health professionals moving from one practice to another and his own lack of motivation in pursuing treatment, the SSAT was not satisfied that Mr Aljashaam’s mental health condition had been fully treated and stabilised within the 13 week qualification period.  I am of the same view - principally for the reasons set out in paragraph 44, and having regard to the history of medication changes discussed in paragraph 39.  Consequently, the condition is not eligible for any rating under the Impairment Tables.

28. Even if I were of the view that Mr Aljashaam’s mental health condition was eligible for an impairment score rating, I would not be satisfied, and I am not satisfied, that his functional impairment within the 13 week qualification period can properly be classified as “severe” so as to merit the 20 point rating suggested in Dr Aljahli’s July 2015 report.  In that report Dr Aljahali set out a description of functional limitations that are much more extensive and severe than any of the more contemporaneous assessments - including those of Dr Ismail (the 5 September 2014 report), the psychologist who saw him on ten occasions between mid-2012 and April 2013 (the 29 April 2013 report), the psychiatrist who saw him in June 2013, and the psychologist who saw him on five occasions prior to 11 September 2014.

29. Furthermore, some aspects of the information upon which Dr Alhajali based his July 2015 opinion are either contradicted by other evidence or do not, in my view, justify the weight that Dr Aljahali attached to them.  For example the propositions that Mr Aljashaam could not use public transport, and was dependent on care in most activities of daily living, is simply inconsistent with the evidence Mr Aljashaam gave the SSAT, and which is recorded in paragraph 7 of its 23 February 2015 reasons.  There is a similar inconsistency with the statements Mr Aljashaam is reported to have made in the course of the Rehabilitation Counsellor’s assessment on 28 October 2014 - that he was independent with self-care, did some household chores, lived with a friend and was visited by friends who provided him with support.

1. Mr Aljashaam gave limited evidence in these proceedings of the extent of his activities and difficulties.  This was perhaps understandable - in view of the matters to which I referred in paragraph 3 above.  He reported difficulties in sleeping, and difficulty in building relationships with other people.  But that limited evidence does not materially assist in characterising him as having “severe” difficulties with interpersonal relationships - one of the relevant examples in Table 5. 

2. A friend who has known Mr Aljashaam for about 8 months, and thus could not be shown to have any knowledge of his circumstances in the relevant qualification period, gave some additional evidence.  He said that Mr Aljashaam lived in an apartment with other people.  He visited Mr Aljashaam two or three times a week.  He sometimes buys him groceries, and helps him with his laundry and meals. 

3. This evidence is also limited both in its scope and in its utility in providing a factual basis for arriving at satisfaction that Mr Aljashaam has a severe functional impairment, because of his mental health condition, for the purposes of Impairment Table 5.  On the contrary, whilst the totality of Mr Aljashaam’s evidence, and that of his friend, is consistent with his having difficulty with some aspects of daily care (specifically attending to having proper meals) and difficulty with interpersonal relationships, it stops short of conveying satisfaction that those difficulties could merit characterisation as anything other than “moderate” at best.  Such a conclusion is supported by the limited functional impact reported by Dr Ismail in his September 2014 report.  A “moderate functional impact” attracts an impairment score of only 10 points under Table 5.

   IMPAIRMENT SCORE FINDINGS

4. Mr Aljashaam has a zero point score for his back and knee conditions.  His mental health condition was not relevantly “permanent” within the relevant 13 week qualification period, and is not eligible for any impairment score.  Even if that condition were eligible for a score, the evidence of the extent of his level of functional impairment, as it existed within the qualification period, is that his impairment was only moderate, rather than properly assessable as “severe”. 

5. The consequence of these findings is that Mr Aljashaam does not have a 20 point score.  His October 2014 application did not satisfy the relevant eligibility criteria for DSP.

   DECISION

6. The decision under review is affirmed.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of

..........................[sgd]..............................................

Associate

Dated 14 December 2015

Date of hearing	13 October 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services