Askandr and Secretary, Department of Social Services (Social services second review)
[2016] AATA 469
•4 July 2016
Askandr and Secretary, Department of Social Services (Social services second review) [2016] AATA 469 (4 July 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5686
Re
Helmy ASKANDR
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal D. J. Morris, Member
Date 4 July 2016 Place Melbourne The Tribunal affirms the reviewable decision.
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D. J. Morris, Member
Catchwords
SOCIAL SERVICES – Disability Support Pension (DSP) – qualifying period – whether impairments fully diagnosed, fully treated and fully stabilised – whether impairments are permanent – congenital condition assigned impairment rating – oral medical condition linked to undiagnosed mental health condition – not qualified for DSP – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
D. J. Morris, Member
4 July 2016
BACKGROUND
Mr Helmy Askandr seeks a review of the decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) to cancel his Disability Support Pension (DSP).
The hearing was held on 15 June 2016. Mr Askandr represented himself and was assisted at the hearing by Mr Tarun Kaldra of Action on Disability within Ethnic Communities. The Respondent was represented by Mr Tim de Uray. Mr Askandr gave evidence under oath and was cross-examined by counsel for the Respondent.
The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents and supplementary T-documents).
The Applicant tendered the following documents:
·Document headed ‘Statement supporting my Disability support pension review’, received by the Tribunal on 5 May 2016;
·Letter from Professor Michael Aldred, The Royal Dental Hospital of Melbourne, dated 16 February 2016;
·Letter from Dr Anjana Satraswathyamma of Cairnlea Superclinic dated 14 February 2016;
·Medical Certificate of Dr Samir Ibrahim, undated referring to a consultation on 11 February 2016;
·Letter from Nadia Christofidis, Counsellor, undated referring to a consultation on 27 January 2016;
·Medical Certificate from Ms Elzbieta Hodgins dated 25 February 2016;
·Medical Certificate from Ms Elzbieta Hodgins dated 4 April 2016;
·Letter from Dr Eiman Al-Raheb dated 2 March 2016;
·Letter from Ms Elzbieta Hodgins dated 9 June 2016;
·Letter from Paul Cabrera, Careers Australia, dated 14 June 2016.
At the hearing, the Tribunal requested that the Secretary make available to both the Tribunal and the Applicant a copy of the second Job Capacity Assessment Report (JCA2) dated 3 March 2016, and this was done on 16 June 2016.
FACTS
Mr Askandr is a 40 year old gentleman who was granted the DSP on 21 October 2003.
Section 63 of the Social Security (Administration) Act 1999 provides that the Secretary of the Department of Human Services (the Department) may, among other things, require the recipient of a DSP to undergo a medical examination.
On 6 March 2015 the Department issued a notice to Mr Askandr under this section, to review his eligibility to receive DSP.
Dr Paul McGuire, General Practitioner, provided a medical review of the Applicant dated 17 March 2015. Mr Askandr attended a Job Capacity Assessment (JCA1) on 16 April 2015.
On 3 June 2015 an officer of the Department made the decision to cancel the Applicant’s DSP and he was notified of this decision by letter of the same date.
The Applicant sought a review of this decision. An authorised review officer considered the decision and on 26 June 2015 affirmed the decision. Mr Askandr sought a review of the authorised review officer’s decision to cancel the DSP by the Social Security and Child Support Division of this Tribunal (AAT1). A hearing was held on 1 September 2015 and 7 October 2015.
On 7 October 2015, AAT1 affirmed the Department’s decision. Mr Askandr sought a review of the decision of AAT1 before this Tribunal.
The purpose of this hearing, therefore, is to review the original decision of the Department’s officer to cancel the DSP on 3 June 2015.
QUESTION BEFORE THE TRIBUNAL
Was the Applicant qualified to receive the DSP on 3 June 2015, that being the date on which it was cancelled?
Qualification for DSP under the Act
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Social Security Act 1991 (the Act) and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has –
(a)a physical, psychological or mental impairment;
(b)the impairment or impairments must attract a rating of 20 or more points under the Impairment Tables; and
(c)a continuing inability to work.
As Mr Askandr was granted DSP on 21 January 2003. As the medical review took place after 1 January 2012, the Impairment Tables implemented from 1 January 2012 and set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) are applicable.
The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 30 hours a week.
In accordance with section 80(1)(a) of the Social Security (Administration)Act 1999, the Secretary must cancel a DSP if the person receiving it no longer qualifies. The Notice of Cancellation to Mr Askandr is dated 3 June 2015, so that is the relevant date for the Tribunal to consider the Applicant’s eligibility.
Does the Applicant have a physical, intellectual or psychiatric impairment?
Dr McGuire’s medical review of 17 March 2015 stated a diagnosis of Erb’s palsy [of the right arm], a congenital condition. This diagnosis is consistent with other documents relating to the Applicant’s medical history, such as the medical reports of Dr T. Paulson dated 8 June 2001 and Dr D. Rowais dated 29 February 2002. The Erb’s palsy significantly limits the functional use of the Applicant’s right arm.
Dr McGuire also listed other conditions of the Applicant, namely “Anxiety and depression, PTSD, agoraphobia” and cited an onset of “2006”. Dr McGuire’s report stated that the treating doctor’s medical reports were not available but that the 2006 date is taken from the Applicant being involved in a petrol station robbery that year, which led to him experiencing a variety of recurring symptoms including low mood, anxiety, insomnia, poor concentration, intermittent suicidal ideation and feelings of hopelessness.
Dr McGuire stated that the Applicant suffers from other medical conditions, namely asthma, oesophagitis, hypertension and temporomandibular joint (TMJ) dysfunction, but that in his view these were generally well-managed and caused minimal or limited impact on his ability to function.
The Respondent accepted that Mr Askandr suffers from a number of physical and psychological impairments which had an impact upon his ability to function in the period in question.
The Tribunal finds that the Applicant does have a physical, intellectual or psychological impairment, so he satisfies section 94(1)(a) of the Act.
I will consider the Applicant’s stated medical conditions in turn, in regard to how they should be assessed under the Impairment Tables.
What is the correct rating under the Impairment Tables?
Erb’s palsy condition
The correct Impairment Table to consider the functional impact of the Applicant’s condition of Erb’s palsy is Table 2 – Upper Limb Function. When considering how this Impairment Table applies in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.
In particular, Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.
In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed by an appropriately qualified medical practitioner, and the condition must be fully treated and fully stabilised.
The Applicant gave evidence to the Tribunal about difficulties he has experienced from birth because of the condition of Erb’s palsy. Several medical reports before the Tribunal said that the effect is that the Applicant’s right arm is essentially paralysed and of very limited use.
Dr McGuire stated that Mr Askandr’s right arm weakness (palsy)…grossly limits manipulative skills and function. Also has developed [right] shoulder pain.
The Health Professional Advisory Unit of the Department reported on 14 May 2015 that the Applicant’s Erb’s palsy diagnosis:
is confirmed, and surgical and physical therapy options have been explored. The impact of the condition has stabilised, and no further treatment or improvement is reasonably expected.
Mr Askandr gave evidence about the functional impacts of the Erb’s palsy, including difficulties in using a standard keyboard and difficulties with buttons and zippers. He said he could not lift a box, even if light, because it required two hands. The Applicant gave evidence that he uses a computer for email and for his tertiary studies, but finds it challenging because he can only type slowly. The Tribunal notes that Mr Askandr writes and has full use of his left arm.
The Tribunal finds that the Applicant’s condition of Erb’s palsy is fully diagnosed, fully treated and fully stabilised, in the terms set out in the Rules applicable to the Impairment Tables.
The Tribunal further finds that, with reference to the evidence to this Tribunal, to AAT1 and the corroborative written medical reports and the descriptors in the Impairment Tables, there is a moderate functional impact from this condition.
The Tribunal considers that the assignment of 10 points is appropriate for the Applicant’s condition of Erb’s palsy.
Anxiety and depression conditions
Dr McGuire’s medical report of 17 March 2015 referred to the Applicant suffering from Anxiety and depression, PTSD and agoraphobia.
The Applicant gave evidence to the Tribunal about experiencing a violent robbery in 2006. Dr McGuire cites this unpleasant experience as effectively being the cause of Mr Askandr’s mental health conditions.
The Tribunal had before it a medical history which referred to low mood, feelings of hopelessness, and lethargy and insomnia.
Mental health conditions must be considered with reference to Table 5 – Mental Health Function, of the Impairment Tables. Table 5 requires, in the introduction, which forms part of the Minister’s Determination:
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).
Dr McGuire is a General Practitioner, so therefore the Applicant’s mental health condition must also be diagnosed by a psychiatrist or a clinical psychologist. The difficulty for Mr Askandr is that there was little evidence before the Tribunal that he had consulted with a psychiatrist or a clinical psychologist in the relevant period, that is before 3 June 2015.
A medical report which might possibly fulfil this essential criterion in the Determination, in relation to assessing a mental health condition, and which was before the Tribunal, was an undated letter from Dr Michael Maloney, Psychiatrist, whom the Applicant consulted. Dr Maloney said, for reasons he set out, that he was unable during that consultation to properly diagnose Mr Askandr’s mental health conditions.
Mr Askandr provided a letter taking issue with Dr Maloney’s assumptions, and reiterated that view in the hearing. It is not necessary for me to consider Dr Maloney’s assumptions or assertions, except to the extent of making clear that in my view this particular medical report neither helps nor hinders the Applicant’s case, because no diagnosis was made and the date of the consultation is not provided.
Mr Askandr gave evidence of seeing Dr Samir Ibrahim, Psychiatrist, and provided the Tribunal with a number of medical reports and certificates from Dr Ibrahim and from Ms Elzbieta Hodgins. In his medical report dated 2 May 2016, Dr Ibrahim states that the Applicant attends the rooms every 2 months or so. In questioning before the Tribunal, Mr Askandr agreed that he did not commence seeing Dr Ibrahim until later in 2015, when he was placed on certain medications to assist him.
While Ms Hodgins’ various reports and certificates were tendered, they do not provide much assistance to the Applicant because she is a Mental Health Nurse Practitioner. This means she is not among the class of persons who must diagnose a mental health condition for assessment under the Impairment Tables, as set out above.
The Tribunal finds, as a matter of fact, that there was no secondary intervention by a psychiatrist or a clinical psychologist and no diagnosis of a mental health condition in relation to the Applicant by a psychiatrist or a clinical psychologist in the relevant period.
Accordingly, no rating can be assigned under the Impairment Tables in relation to Mr Askandr’s mental health conditions of anxiety and depression, PTSD and agoraphobia.
Other medical conditions
As mentioned above, Dr McGuire diagnosed a number of other medical conditions relating to the Applicant, namely asthma, oesophagitis, hypertension and TMJ dysfunction.
Dr McGuire said in his 17 March 2015 medical report that these medical conditions were generally well-managed and caused minimal impact on the Applicant’s ability to function. Mr Askandr said that he regarded these conditions as well-managed. This is consistent with the contents of JCA1 and JCA2.
In regard to the TMJ Dysfunction, the Tribunal had before it medical reports dated 9 July 2015 and 16 February 2016 from Professor Michael Alfred, of The Royal Dental Hospital of Melbourne. Professor Aldred advised that Mr Askandr has been a patient at the Oral Medicine Clinic of The Royal Dental Hospital of Melbourne since August 2014 regarding a 3-4 year history of facial pain. Professor Aldred said:
A diagnosis of temporomandibular disorder has been made. This pain is related to his long history of anxiety and depression. When his mood deteriorates his symptoms of facial pain increase. He has been treated with a splint and medication. In this respect, his condition is stable but continues to be a problem.
Professor Aldred went on to say that temporomandibular disorder is a facial pain that is chronic in nature and can be disabling and interfere with the ability of an affected individual to live a normal life and to work.
Although Professor Aldred says he first saw Mr Askandr on 8 July 2015, i.e. after the date of the reviewable decision, the Tribunal considers his written reports as relevant evidence to consider, because they refer to Mr Askandr having been a patient at the hospital in relation to the TMJ dysfunction since 2014.
The JCA2 dated 3 March 2016 noted that the Applicant told the assessing officers that the TMJ dysfunction caused ongoing pain and difficulties with eating, and that treatment with splinting and medication have had little effect.
It would seem to me that there is no reason not to accept Professor Michael Aldred’s stated diagnosis. The difficulty for the Applicant in the Tribunal linking the TMJ dysfunction to Mr Askandr’s anxiety and depression is that that latter condition has not been fully diagnosed, fully treated nor fully stabilised.
Professor Aldred in his letter dated 16 February 2016 said the Applicant had a history of depression and anxiety. It is not clear whether this was reporting what the Applicant had told him, or whether that conclusion was drawn from other material. Professor Aldred stated he had prescribed a course of clonazepam and a different splint, made of softer material, which had proven to be more comfortable for the Applicant. This supports a conclusion that this condition is not fully treated, and the Tribunal so finds.
Professor Aldred has the medical expertise to convey a diagnosis of the oral condition. However he refers, without apparent corroborative evidence, to the Applicant’s long history of anxiety and depression. Given the stated nexus between the jaw disorder and the Applicant’s mental state, the Tribunal concludes that the TMJ dysfunction cannot be considered to be fully diagnosed.
The Applicant did not assert that the TMJ dysfunction had a significant functional impact on his ability to work. Though no doubt such chronic pain would be very troublesome, in this instance it cannot be assigned points under the Impairment Tables.
The Tribunal therefore finds that the Applicant’s other conditions, asthma, oesophagitis, hypertension and TMJ dysfunction, do not attract points under the Impairment Tables.
CONCLUSION
The Tribunal found Mr Askandr to be a frank and open witness. In his Statement lodged with the Tribunal and dated 18 May 2016, he said that he has been employed for 18 years and wanted to continue to contribute to the Australian community, even though he said his disability severely affects his capacity to work. He told the Tribunal he has been working 15 hours a week for a major retailer, that he had received a Certificate IV in Accounting, and that he had attended some workshops with the view to becoming an interpreter. Mr Askandr also provided evidence that he was currently enrolled in a Diploma of Community Services and said he would like to find work as a case worker or a counsellor. The Tribunal commends the Applicant on his approach to continuing education, which will enhance his employability options in the future.
However, for a person to be eligible for DSP, each part of section 94 of the Act must be satisfied. As the Tribunal has found that the Applicant is correctly allocated a total of 10 points, the requirements of section 94 (1)(b) of the Act are not satisfied. The consequence is that the Applicant was not qualified for DSP on the relevant date, 3 June 2015.
As all three sub-parts of section 94(1) must be satisfied, it is not necessary for the Tribunal to go on to consider whether the Applicant has a continuing inability to work.
The Tribunal understands that this outcome will be disappointing to the Applicant and notes that it is open to him to make a future application for DSP.
The reviewable decision is affirmed.
62. I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member
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Associate
Dated 4 July 2016
Date of hearing 15 June 2016 Applicant In Person Advocate for the Respondent Mr Tim De Uray, Department of Human Services,
FOI & Litigation Branch
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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