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

Amini and Secretary, Department of Social Services (Social services second review) [2015] AATA 799 (15 October 2015)

Division

GENERAL DIVISION

File Number

2014/5591

Re

Fatemeh Amini

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 15 October 2015

Place Melbourne
The Tribunal affirms the decision under review.

[sgd]........................................................................
Regina Perton, Member
SOCIAL SECURITY – disability support pension – indefinite portability – whether individual accepted medical conditions attract 20 points for condition – decision affirmed
Legislation
Social Security Act 1991 sections 1217, 1218AAA
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Regina Perton, Member
15 October 2015

Fatemeh Amini, who is in her late fifties, has been in receipt of a disability support pension (DSP) since August 2010. Ms Amini, like other recipients of DSP, can travel out of Australia for a limited time and maintain her DSP payments. Since 1 January 2015 the period allowed for ongoing payment if the DSP recipient is overseas is four weeks in any 12 month period. Longer time periods overseas were previously allowed. In December 2013 the maximum period overseas for maintenance of DSP payment was six weeks. There were then, and still are now, certain limited circumstances where the four week period (or six weeks as it was in December 2013) can be extended.
Ms Amini would prefer to live in Iran as she believes her health is better there. However, she also wishes to maintain her Australian DSP payments whilst living there.
Centrelink records indicate that Ms Amini enquired about indefinite portability of her DSP payments in late 2013. Centrelink advised Ms Amini by letter dated 26 November 2013 that she should complete the relevant forms and that she would be required to undergo a fresh medical review and assessment of her entitlement to DSP. Centrelink also advised that her health would be assessed under current legislative requirements which had been amended since Ms Amini was granted DSP.
On 4 December 2013 Ms Amini applied for a DSP review for portability purposes. On 12 May 2014 Ms Amini was assessed as still being eligible for DSP but that she did not meet legislative requirements for indefinite portability.
Ms Amini sought a review of the original decision by a Centrelink authorised review officer (ARO). On 21 May 2014 the ARO affirmed the original decision.
Ms Amini lodged an application for review of the ARO's decision with the Social Security Appeals Tribunal (SSAT) on 8 September 2014. On 2 October 2014 the SSAT affirmed the ARO's decision to refuse indefinite portability.
On 28 October 2014 Ms Amini lodged an application for review of the SSAT’s decision with this Tribunal.
The Tribunal’s task is to decide whether Ms Amini met any of the criteria for indefinite portability of DSP as at 4 December 2013 or within 13 weeks of that date.
RELEVANT LEGISLATION
Sections 1217 and 1218AAA of the Social Security Act 1991 (the Act) set out the circumstances in which a DSP recipient may be paid beyond the usual entitlement whilst outside Australia.
Section 1217 sets out the maximum portability period which was six weeks at the time Ms Amini applied in December 2013. There were, and still are, extensions possible to the portability periods where there are acute family crises, certain eligible medical treatments or humanitarian purposes. Furthermore, if the recipient is terminally ill, there may be unlimited portability.
Section 1218AAA is the only possible portability provision applicable to Ms Amini as at 4 December 2013:
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1)The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a)the person is receiving disability support pension;
(b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(2)The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:
(a)the person is unable to return to Australia because of either of the following events:
(i) a serious accident involving the person;
(ii) the hospitalisation of the person; and
(b)the person’s portability period for disability support pension had not ended at the time the event occurred.
...
Section 94(3B) of the Act provides the definition of severe impairment as follows:
94(3B)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.
…
The decision maker must consider the medical conditions which Ms Amini was suffering from at the relevant date including whether they were fully diagnosed, treated and stabilised. Centrelink, and the Tribunal, accept that Ms Amini suffered from a number of medical conditions during the relevant period and continues to do so. She therefore has maintained her entitlement to DSP. Whilst Ms Amini’s medical conditions attracted 20 points in total, none of the individual conditions was considered to attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
The Tribunal’s task is to determine whether any of Ms Amini’s individual medical conditions attract an impairment rating of 20 points under a single Impairment Table and thereby qualify as a severe impairment. This requires the Tribunal to consider her various medical conditions individually and determine the impact on her according to the the Impairment Tables.
The legislation only allows for impairment points to be assigned for a particular condition if it has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and fully stabilised, and is likely to persist for more than two years. Section 6 of the Impairment Tables states that:
…
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
…
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:        For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Section 8 of the Impairment Tables sets out what cannot be taken into account.
8Information that must not be taken into account in applying the Tables
(1)...
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
Asthma
Ms Amini told the Tribunal that the condition that impacted on her the most is her asthma. She stated that she is allergic to Australian grasses. Ms Amini said that she had last worked as a hotel housekeeper and left that job in 2005 because of her asthma.
In 2010 Ms Amini was credited with 10 points for her asthma towards achieving qualification for DSP. Taking into account her evidence and that of her general practitioner, Dr Habibi, earlier decision makers were of the view that her asthma rated 10 points on the current relevant table.
Table 1 of the Impairment Tables, Functions requiring Physical Exertion and Stamina is the applicable table to be used for asthma. The Tables are based on the impact on a person of their condition, not the condition itself.
Ten points are awarded for satisfying the following criteria:
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)    is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)    has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i)    use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)    perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
For 20 points to be awarded on the basis of severe functional impact, the relevant criteria under the Table are:
There is a severe functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)    walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)    walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)   use public transport without assistance; or
(iv)   perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
Ms Amini’s general practitioner, Dr Habibi, provided a report on 3 December 2013 (although the date is filled in as 3/12/11, it is clear from the date at the front of the document and accompanying documents that it was 3/12/13). He described the date of onset of the asthma as 1999 diagnosed by a respiratory physician overseas and that Ms Amini had recently attended the emergency department at the Royal Melbourne Hospital. Her treatment since 1999 has been a Ventolin puffer and a Seretide puffer. Her future planned treatment included seeing a new specialist. Her current symptoms were shortness of breath, wheezing, cannot walk far. Dr Habibi expected the condition to continue to impact on Ms Amini for more than five years. He stated that her condition was expected to deteriorate stating as she gets older lung function will deteriorate.
On 30 June 2014 Dr Habibi provided a certificate stating that Ms Amini had been his patient for a few years. It was his understanding that Ms Amini had applied for DSP and he stated that he fully supported her application, listing ten conditions from which she suffered with the first on the list being severe asthma on Ventolin and symbicort, and solone for acute exacerbations.
On 23 September 2014 Dr Habibi certified that Ms Amini:
…has been a patient of mine for the past few years. She has multiple medical conditions in particular her asthma is very severe and needs constant use of medication.
Ms Amini’s evidence before a Job Capacity Assessor (JCA) of Centrelink on 15 January 2014 and before the SSAT, as well as this Tribunal, is that she has some difficulties with domestic tasks but she does achieve them eventually, spreading them out so she does not overdo it. Ms Amini is single and rents a room which she maintains. Ms Amini does not drive and goes shopping by public transport. She does not require assistance to use public transport. Ms Amini usually only buys small amounts of groceries at a time.
The Tribunal finds that 10 points should be allocated for asthma under the Tables. It is not satisfied that Ms Amini meets the criteria for 20 points and therefore does not meet the definition of severe impairment for her asthma.
Lower Back pain
The original decision maker determined that Ms Amini’s back pain condition was fully diagnosed, treated and stabilised during the qualification period. Five points was awarded under Table 4 of the Impairment Tables, Spinal Function.
In December 2013 Dr Habibi recorded that Ms Amini had been suffering back pain since 2000. He stated that she has had xrays/CT before. Dr Habibi stated that Ms Amini’s current treatment was medication, namely Celebrex since 2000 and Lyrica since 2013. He stated that Ms Amini had seen a physiotherapist in 2011. Dr Habibi described Ms Amini’s symptoms in December 2013 as lower back pain, radiation to legs, limited range of movement. He stated that his patient cannot stand for long time. He also stated that osteoarthritis gets worse with age.
The JCA reported in January 2014 that Ms Amini was able to sit for 20 minutes and has difficulty bending to floor heights. The SSAT reported that Ms Amini had said that her back condition restricted her bending. She indicated that could bend to pick up a cup from a coffee table, push a trolley when shopping and sit for 30 minutes wearing a brace. When asked by the Tribunal who had prescribed the brace, Ms Amini said a member of her family had donated it to her but Dr Habibi was aware she wore it.
Ms Amini said that she could not lift anything heavy. She said that she is so used to the pain that sometimes she can reach upwards and sometimes she cannot. Ms Amini said that she can turn her neck but there is some associated pain sometimes. She can get out of a chair but it can be painful.
When asked about flights to Iran and back in July 2013, February 2014 and in recent months, Ms Amini said that she always takes an aisle seat and puts a pillow behind her back.
For five points under Table 4 of the Impairment Tables the criteria set out for a mild functional impact on activities involving spinal function are as follows:
(1)The person has some difficulty in:
(a)Activities over head height (e.g. activities requiring the person to look upwards); or
(b)Bending to knee level and straightening up again without difficulty; or
(c)Turning their trunk or moving their head (e.g. to look to the sides or upwards)
For 10 points under Table 4 of the Impairment Tables the criteria set out for a moderate functional impact on activities involving spinal function are as follows:
(1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get out of a chair (if not independently mobile in a wheel chair).
For 20 impairment under Table 4 the criteria set out for a severe functional impact involving spinal function are as follows:
(1)The person is unable to:
(a)perform any overhead activities; or
(b)turn their head, or bend their neck, without moving their trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
Based on the evidence before it, the Tribunal is satisfied that Ms Amini should be allocated 5 or 10 points for her spinal condition. Although she suffers pain and/or discomfort when undertaking various activities, she was able to do light household tasks, pick up a coffee cup from a coffee table and able to get out of a chair without having someone else help.

The Tribunal is not satisfied that Ms Amini should be allocated 20 points for her chronic low back pain under the Impairment Tables.
Hearing loss
Table 11 of the Impairment Tables details the impairment ratings for Hearing and other Functions of the Ear.
Ms Amini was assessed in 2009 by Australian Hearing who diagnosed significant hearing loss. The JCA in January 2014 stated that Ms Amini was unable to wear bilateral hearing aids as they caused pain. Ms Amini said that it can be more difficult to hear when there is background noise or when on the telephone. She told the Tribunal that she turns up the volume on her television set. She conceded that she can hear a fire alarm and that she could watch television, particularly in Farsi, without captions. She cannot use sign language and can hear people if they speak at a loud volume without a lot of background noise. The JCA noted that Ms Amini appeared to be able to hear her. The Tribunal also notes that it was able to communicate with Ms Amini without her using any supportive equipment.
Dr Habibi in his letter of 30 June 2014 stated that Ms Amini suffered from severe bilateral hearing loss which had recently been assessed in Iran.
To obtain 20 points under Table 11 for hearing loss, all of the factors set out below must be met. It is not an either/or situation unlike most other tables:
There is a severe functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device or technology or sign language interpreting.
(1)The person:
(a)has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. ‘Look out!’)); and
(b)is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and
(c)is reliant on captions to follow a television program or movie; and
(d)needs to use a captioned telephone; and
(e)is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading, other non-verbal communication method (e.g. note taking) to converse with others; or
(2)The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
The Tribunal is not satisfied that Ms Amini meets the very stringent criteria for 20 points in relation to hearing loss. The Tribunal finds that the evidence does not enable Ms Amini’s hearing loss to be described as having a severe functional impact on her.
Depression and Anxiety
Table 5 of the Impairment Tables details the impairment ratings for Mental Health Function. The Introduction to Table 5 states:
Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
At the date of the application for indefinite portability, Ms Amini’s condition had not been diagnosed by a psychiatrist or clinical psychologist. Dr Rosalind Case, Registered Clinical Psychologist, first saw Ms Amini in November 2014, some 11 months after Ms Amini had made the application on 4 December 2013. After testing and interview, Dr Case diagnosed Ms Amini as being in the extremely severe range for depression, anxiety and stress when compared to the general populations.
Dr Case stated that further assessment was required to investigate the nature of Ms Amini’s anxiety symptoms. She also recommended that Ms Amini engage in six to 10 sessions of cognitive behavioural therapy.
Dr Fariba Kavianpour, Clinical Psychologist, provided a report dated 3 March 2015 in which she advised that she was now Ms Amini’s treating psychologist. Dr Kavianpour stated that Ms Amini is suffering from depression and anxiety in the context of severe physical health conditions including asthma that impact on her ability to function.
Dr Case’s report and that of Dr Kavianpour, were both prepared long after 4 December 2013. The Tribunal finds that as at 4 December 2013, Ms Amini’s mental health condition could not be considered to be fully treated and fully stabilised. Therefore no points can be assigned for her mental health condition.
Other conditions
On 23 January 2015 Dr Habibi provided a further report. He stated that Ms Amini was suffering from haemorrhoids. She was awaiting a colonoscopy at the Western Hospital. The Tribunal finds that as at 4 December 2013, the condition of haemorrhoids was not fully treated and therefore no points could be awarded for that condition.
Dr Habibi’s report of 30 June 2014 also listed a number of other conditions not considered above:
…
Bilateral pes planus associated with feet pain unable to stand on her feet for long periods
…
Urge and stress incontinence for which is using pads
…
Snoring associated with sleep apnoea
Nasal blockage associated with turbinate hypertrophy
Varicosities lower legs
Hiatus hernia
There is no evidence before the Tribunal to indicate that any of those conditions rates 20 points under a single Impairment Table.
Conclusion
The Tribunal is in no doubt that Ms Amini is suffering from a number of medical conditions. She remains qualified for DSP. However, none of her impairments can be individually assigned 20 points under a single Impairment Table. Ms Amini therefore does not qualify for an unlimited portability period on the basis of a severe impairment.
As at 4 December 2013 Ms Amini’s medical conditions do not allow her to return to Iran and maintain her Australian DSP payments. None of the other possible ways of qualifying for indefinite portability applies to Ms Amini.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
[sgd]........................................................................
Associate
Dated 15 October 2015

Date of hearing 29 July 2015

Applicant In person

Solicitors for the Respondent Tim Noonan, Centrelink Program Litigation and Review Branch

[2015] AATA 799

15 October 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Division	GENERAL DIVISION
File Number	2014/5591
Re	Fatemeh Amini
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Regina Perton, Member
Date	15 October 2015
Place	Melbourne

Date of hearing	29 July 2015
Applicant	In person
Solicitors for the Respondent	Tim Noonan, Centrelink Program Litigation and Review Branch