Antoinette Sukkar and Secretary, Department of Social Services
[2014] AATA 480
[2014] AATA 480
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3927
Re
Antoinette Sukkar
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 16 July 2014 Place Sydney The decision under review is affirmed.
............................[sgd]...........................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - applicant seeks indefinite portability of disability support pension - whether applicant has a severe impairment - decision under review affirmed
LEGISLATION
The Social Security Act 1991 (Cth), ss 27(3), 27(4), 94(3B), 1218AA, 1218AB, 1218AAA
Social Security (Administration) Act 1999 (Cth), s 63(2)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms N Isenberg, Senior Member
16 July 2014
DECISION UNDER REVIEW
The Applicant, Ms Antoinette Sukkar, seeks review of a decision of a delegate of the Respondent, the Department of Social Services, denying her application for unlimited portability of her disability support pension (“DSP”). The Applicant’s basis for the application was her intention to travel to Lebanon for a period longer than 13 weeks. Her application was refused by the Respondent, and also upon internal review. An application for review by the Social Security Appeals Tribunal ('SSAT') was also refused. The Applicant now seeks review by this Tribunal.
The matter was scheduled for hearing on 7 July 2014, but shortly before the hearing the Applicant contacted the Tribunal saying that she was too stressed to talk to the Tribunal at all. Options were discussed and ultimately she requested that the Tribunal make its decision on the papers. The Respondent relied on the material it had provided in the T-Documents (“Section 37 documents”) and its Statement of Facts and Contentions, a copy of which had been provided to the Applicant.
ISSUE TO BE DECIDED
The sole issue for determination by the Tribunal is whether the Applicant meets the criteria for unlimited portability of her DSP.
LEGISLATION
Portability Scheme
Where a person is in receipt of the DSP and is an Australian resident disability support pensioner, the Social Security Act 1991 (“Act”) provides that the maximum portability period of the pension is 6 weeks during any temporary absence. There are, however, some exceptions to this general rule: where the person is terminally ill (s 1218AA), where the person is severely disabled and is wholly or substantially dependent on a family member (s 1218AB), and where the person is a full time student (s 1218). None of these apply to the Applicant in the present matter.
The only exception to the portability rule relevant in this matter is pursuant to s 1218AAA, as set out below.
The relevant legislation is contained in the:
·The Social Security Act 1991;
·Social Security (Administration) Act 1999 (the Administration Act);
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Section 1218AAA: Unlimited portability of disability support pension
For the purposes of indefinite portability, the Applicant must satisfy the requirements of s 1218AAA of the Act, which provides that portability of DSP for an unlimited period may only be granted if all of the following circumstances exist:
·the person is receiving DSP;
·the person's impairment is a severe impairment (as defined in s 4(3B));
·the person will have that severe impairment for at least the next 5 years;
·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 next 5 years.
The Impairment Tables used to assess qualification
On 1 January 2012, the Impairment Tables contained in Schedule 1B of the Act (used to assess the Applicant's initial claim) were repealed and replaced by the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
Centrelink issued the Applicant a notice pursuant to s 63(2) of the Administration Act on 29 October 2012 in relation to assessing her qualification for the DSP. The Impairment Tables in force at that time are to be applied: s 27(3) and s 27(4) of the Act.
Impairment rating of 20 points or more
An impairment rating can only be assigned to a condition causing impairment under if it is permanent. A condition can only be considered permanent if it has been fully diagnosed, treated and stabilised. In this regard, cl 6 of the Impairment Tables provides:
(3)An impairment rating can only be assigned to an impairment if:
(a)The person’s condition causing that impair is permanent; and
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
(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
(c)The condition has been fully stabilised; and
(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.
(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.
(7)For the purpose 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.
(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 limitation.
Clause 5(2) of the Impairment Tables provides that the Impairment Tables are function based rather than diagnosis based, describe functional activities, abilities, symptoms and limitations, and are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Clause 10 of the Impairment Tables further provides:
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
CONSIDERATION OF THE EVIDENCE
There was no dispute that the Applicant is in receipt of a DSP.
It was the Respondent’s submission that the Tribunal could not be satisfied that the Applicant has a severe impairment within the meaning of s 94(3B). Section 94(3B) of the Act provides that 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 fall under a single Impairment Table.
It is in this context that I reviewed the evidence in relation to the Applicant's conditions.
The Applicant, who is currently 60 years old, has been in receipt of DSP since July 2007. On 29 October 2012 she enquired about the portability of her DSP outside Australia.
The Applicant provided a letter from her son, Anthony, who seemed to be under the impression that his mother did not receive DSP.
In support of her application, the Applicant also provided a medical report dated 22 November 2012 completed by Dr Magdy Attia, who has been her GP since January 2009. The report records that the Applicant has thyroid cancer, depression, osteoarthritis of the back and knees as well as vertigo. Each of these conditions is considered in turn below.
Thyroid Condition
After being diagnosed with thyroid cancer in 2005 the Applicant underwent a thyroidectomy. Ongoing treatment since then has been by way of daily medication, Oroxine, which she will need to take indefinitely. Dr Attia reports the effect of this condition on the patient's ability to function as expected to remain unchanged within the next five years. He recorded the Applicant’s complaints of tightness around the neck since her surgery. He described her feelings of choking and that she was “nervous, short-tempered which negatively impact on interpersonal relationships”, although it was difficult for me to see how these psychological problems might actually relate to her physical condition.
The Applicant’s condition was assessed in a job capacity assessment. In the report dated 20 March 2013, the job capacity assessor records that the Applicant reported that the condition caused her to experience a feeling of tightness around the neck at the surgery site, which in turn causes her a feeling of choking and being irritable.
The Applicant provided a report from Dr Hoffman dated 13 May 2013.
There was no dispute that this condition is fully diagnosed, treated and stabilised and can be assigned an impairment rating.
The relevant table is Table 1, which provides as follows:
0 There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5 There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
There is no indication of any recurrence of the cancer, or any medical evidence of a functional impact on activities requiring physical exertion or stamina. I consider the appropriate rating for this condition to be nil points under Table 1 for exercise tolerance.
Musculoskeletal Condition
In the report dated 22 November 2012, Dr Attia records that the Applicant suffers osteoarthritis of the back and knees. The condition was listed as a condition that is generally well managed and causes minimal or limited impact on ability to function. No other information was provided, for example, about the need for any treatment. Later in contrast, in a letter dated 14 June 2013, Dr Attia reports that the Applicant suffers “severe back pain with limitation of all movement of the spine”.
Dr Griff Richards, rheumatologist, in a letter dated 20 May 2013 stated that the Applicant has fibromyalgia and osteoarthritis aggravated by the cold climate. He identified “dry warm climate conditions would be beneficial to her health”.
The Applicant told the job capacity assessor she takes daily pain medication, Panadol and Mobic, and has hot baths which provide her temporary relief.
The Applicant is recorded as having told the SSAT that she does housework when she feels alright, helps her husband with his bath, cooks for him, although not every day, and does the shopping with him.
The relevant Tables, in my view, are Tables 3 and 4 for this condition. The Applicant's loss of function resulting from her osteoarthritis occurs when performing activities involving spinal function, and requiring the use of her legs.
Those Tables provide, relevantly:
Table 3 – Lower Limb Function
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Table 4 – Spinal Function
10 There is a moderate functional impact on activities involving spinal function.
(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 up out of a chair (if not
independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(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.
The Applicant's loss of function resulting from her osteoarthritis occurs when performing activities involving spinal function, and requiring the use of her legs. I consider the appropriate rating to be 10 points under Table 4 for the impact the condition has on spinal function and 5 points under Table 3 for the impairment to lower limb functioning.
In order for 20 points to be awarded under Table 3, there would need to be severe functional impact, such as an inability to walk around a shopping center unassisted. In order for 20 points to be awarded against Table 4 there would need to be severe limitations on a person, such that they are unable to sit for 10 minutes, or are unable to turn their head. No evidence of such limitations has been provided.
I note that the SSAT preferred to assign an impairment rating against Table 1 (set out above), functions requiring physical exertion and stamina and concluded a rating of 10 points for moderate functional impairment was appropriate. I do not consider this to be an appropriate Table in circumstances where there are Tables that specifically address functionality arising from musculoskeletal conditions. Even if Table 1 were relevant, a rating of 20 points is not warranted. Furthermore, if Table 1 were used for the Applicant’s musculoskeletal condition, as well as the thyroid condition, the Applicant’s combined rating under that Table still does not reach 20.
Vertigo
Dr Attia reports the Applicant has benign positional vertigo. He records this condition as having minimal or limited impact on the Applicant’s functioning.
Dr Attia’s diagnosis is confirmed by Dr Jonathon Ell in a letter dated 11 November 2012, where he records that past treatment was of a repositioning manoeuvre which resulted in significant improvement. Future treatment by the same method would be required should the symptoms return or be exacerbated.
In February 2014 the Applicant was referred again to Dr Gil Kleiner, ENT specialist. He wrote that the Applicant continued to complain of recurrent episodes of benign positional vertigo. Dr Kleiner performed a repositioning manoeuvre and the Applicant was to see him again if her condition recurs and he would perform another manoeuvre. Dr Kleiner found no impediment to the fitting of hearing aids. No further symptoms have been reported since having treatment, nor was any information available about the fitting of hearing aids.
The relevant Table is Table 11, which provides:
0
There is no functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:
(a) can hear a conversation at average volume in a room with an average level of background noise (e.g. other people talking quietly in the background); and
(b) does not have to turn the television volume up louder than others in the household to hear clearly; and
(c) the person does not need to use a hearing aid, cochlear implant or other assistive listening device.
5
There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:
(a) has some difficulty hearing a conversation at an average volume in a room with background noise (e.g. other people talking quietly in the background); and
(b) may use a hearing aid, cochlear implant or other device; and
(c) has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise; or
(2) The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).
I consider the appropriate rating to be nil.
Hearing Loss
Dr Attia also reports the Applicant has moderate to profound hearing loss but she does not require hearing aids at this stage. In a letter dated 14 June 2013, Dr Attia reported hearing aids will be fitted. By the time of the SSAT hearing she still did not have a hearing aid. The Applicant provided a report from Audio Clinic dated 4 December 2013 which noted that she had attended for audiometric assessment that day. No further information was provided.
The Introduction to Table 11 provides that the Table should be applied with the person using any prescribed hearing aid, if used. On the basis that hearing aids are to be fitted, I consider this condition cannot be considered fully treated and stabilised, as future planned treatment may result in significant functional improvement.
Urinary Incontinence
In a report dated 13 May 2013, Dr Gabriel, the Applicant’s treating gynecologist reported the Applicant has been receiving treatment for vaginal prolapse and urinary incontinence since 2007. In a report dated 14 June 2013, Dr Attia confirmed that the Applicant requires the use of incontinence underwear day and night.
The Applicant provided a letter from Dr Viola Gabriel, obstetrician and gynecologist dated 13 May 2013. The doctor wrote that the Applicant continues to have issues with urinary incontinence.
Table 13 provides as follows:
0
There is no functional impact on maintaining continence of the bladder and bowel.
(1) The person:
(a) is always continent of the bladder and bowel; and
(b) does not have a stoma (e.g. colostomy, ileostomy) or use a catheter or other collection device to manage continence.
5
There is a mild functional impact on maintaining continence of the bladder or bowel.
(1) At least one of the following ((a), (b), (c), (d), (e) or (f)) applies:
Bladder
(a) the person has minor leakage from the bladder (e.g. a small amount of urine when coughing or sneezing) at least once a day but not every hour;
(b) the person has urgency (e.g. has to get to a toilet very quickly and has difficulty ‘holding on’ to urine) or has occasional (at least weekly) loss of control of the bladder;
(c) the person has difficulty passing urine (e.g. has to strain or has restricted flow of urine or has difficulty emptying the bladder);
Bowel
(d) the person has minor leakage from the bowel (e.g. enough faecal matter to soil underwear but not outer clothes) more than once a week but not every day;
(e) the person has urgency or occasional (at least monthly) loss of control of bowel;
Continence aids
(f) the person has a stoma, or uses a catheter or other collection device to manage their continence independently without any difficulties and does not need any assistance.
I consider the condition is appropriately rated at 5 points.
Depression
Table 5 of the Impairment Tables is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition. However, the Introduction to Table 5 provides that a diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner, with evidence from either a psychiatrist or clinical psychologist.
In the treating doctor's report, Dr Attia records the onset of this condition followed a diagnosis of Applicant’s cancer in 2007. Treatment by the way of medication was recorded, with further treatment identified as medication, with counselling. The job capacity assessor, in the report dated 20 March 2013, recorded that the Applicant's treating doctor had arranged a psychologist referral two years ago, but the Applicant stated it “was of no comfort to her”. The Applicant provided a letter from Dr Attia dated 14 June 2013 in which the doctor wrote that, in addition to medication, the Applicant was seeing a psychologist for cognitive behavioural therapy. The Applicant provided an unsigned report, addressed to Dr Attia, from Mindful Solutions, consultant psychologists, dated 28 June 2013. It reported that the Applicant had attended two counselling sessions – on 14 and 21 June 2013. The sessions were to address symptoms of adjustment, anxiety and depression, which had developed from 2005, in response to a number of stressors, including health and family challenges. Further review was scheduled for 19 July 2013. I note that no diagnosis was made in the report.
The Applicant provided a letter from another GP, Dr James Lahood, dated 21 May 2014 in which the doctor wrote that the Applicant had been prescribed Lexapro in the past and had trialed Zoloft and Cipramil.
As no evidence of a diagnosis has been made by a psychiatrist or clinical psychologist, the condition cannot be considered permanent for the purposes of qualification for DSP: see introduction to Table 5.
In any event, in my view, even if there were a diagnosis, the condition cannot be considered fully treated and stabilised at the relevant time, as the evidence suggests the Applicant would benefit from further counselling.
Even if the condition were able to be rated, the descriptor for a rating of 20 impairment points is as follows:
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
While I am prepared to accept that the Applicant may be stressed and that her physical conditions exacerbate that stress, there is no evidence that the Applicant meets most of the criteria in this descriptor.
CONCLUSION
As appears to have been explained to the Applicant on several occasions to date - but is worth repeating - just because a beneficiary of DSP has a range of conditions that might limit his or her ability to work, that does not mean that person can be paid DSP indefinitely while they are outside Australia. I have considered all the Applicant’s conditions and have found that the Applicant does not have a “severe impairment” (as defined), in that she does not have an impairment rating of 20 impairment points for a condition or combination of conditions under a single Impairment Table.
The Applicant therefore does not satisfy the unlimited portability criteria as the Applicant does not have a “severe impairment” for the purposes of disability support pension under s 94 of the Act. Having formed that that view it is unnecessary for me to consider whether the Applicant meets any of the remaining essential criteria.
DECISION
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 Ms N Isenberg, Senior Member ........................................................................
Associate
Dated 16 July 2014
Applicant Self-represented Solicitors for the Respondent Department of Human Services
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