Ayoub and Secretary, Department of Social Services (Social services second review)
[2016] AATA 71
•27 January 2016
Ayoub and Secretary, Department of Social Services (Social services second review) [2016] AATA 71 (27 January 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2668
Re
Ayoub Ayoub
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 27 January 2016 Date of written reasons 11 February 2016 Place Sydney The Tribunal affirms the decision under review.
...........................[sgd].............................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – lower back condition – diffuse idiopathic skeletal hyperostosis (DISH) – lower limb condition – osteoarthritis of knees – diabetes – high blood pressure – high cholesterol – conditions fully diagnosed, treated and stabilised – whether conditions rated 20 or more points – program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
11 February 2016
BACKGROUND
Mr Ayoub Ayoub suffers from a chronic lower back condition, osteoarthritis in both knees, diabetes, high blood pressure and high cholesterol. On 6 November 2014 he applied to Centrelink for a Disability Support Pension (DSP). On 10 January 2015, Centrelink decided that Mr Ayoub did not qualify for the DSP.
On 30 April 2015, the Social Security Appeals Tribunal (now the Social Services and Child Support Division of the Administrative Appeals Tribunal) affirmed Centrelink’s decision. Mr Ayoub seeks review of that decision.
The written reasons reflect reasons given orally at the conclusion of a hearing on 27 January 2016.
QUALIFICATION FOR DSP
The legislation concerning DSP is in the Social Security Act 1991 (the Act). Section 94 provides that, to qualify for DSP, a person must have:
(i)a physical, intellectual or psychiatric impairment, or impairments, which rates at 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
To qualify for DSP, Mr Ayoub had to satisfy these criteria on 6 November 2014, when he applied for the DSP, or within the following 13 weeks, that is by 5 February 2015: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.
THE IMPAIRMENT TABLES
The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). They are used to assess the functional impact of various impairments. According to whether the impact is none, mild, moderate, severe or extreme, an impairment is assigned a corresponding rating of zero, five, ten, twenty or thirty points.
A rating can only be given to an impairment if the condition causing it is permanent: cl 6(3)(a). Permanent means that the condition is fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised, and is more likely than not to persist for more than two years: cl 6(4).
The Secretary accepts, and I am satisfied, that each of Mr Ayoub’s conditions is fully diagnosed, treated and stabilised.
DID MR AYOUB HAVE AN IMPAIRMENT RATING OF 20 POINTS OR MORE DURING THE CLAIM PERIOD?
On 3 November 2014, Mr Ayoub’s general practitioner, Dr Maher Milad, completed a report to support his application for DSP. Mr Ayoub has also submitted reports from consultant neurologist, Dr Bassel Hassan, concerning his lower back condition.
Lower back condition
In his report dated 3 November 2014, Dr Milad described Mr Ayoub’s back condition as “chronic lower back condition (DISH) (diffuse idiopathic skeletal hyperostosis)” which had its onset in 2002. An x-ray report, dated 31 October 2014, attached to Mr Ayoub’s application, confirmed the diagnosis. Dr Milad described the functional impact as “not fit for physical work, not fit for bending/lifting”.
Reports from Dr Hassan in August 2015 confirm that Mr Ayoub has “severe lumbar spine spondylosis with severe canal stenosis at L4/5, confirmed on CT scan”. Dr Hassan stated that, given the degree of canal stenosis, Mr Ayoub “may need surgical decompression in the future” but Mr Ayoub was “not keen on this”. Dr Hassan gave the opinion that the stenosis “may be amenable to major surgery”, but by the time Mr Ayoub recovered from the major surgery, he would “probably be approaching retirement age”. In a report dated 31 August 2015, Dr Hassan said Mr Ayoub had agreed to see a spinal neurosurgeon “to discuss his options”.
As I understand it, the Secretary’s position is that Mr Ayoud has two separate back conditions: DISH, which the Secretary accepts was fully treated and stabilised during the claim period, and the severe canal stenosis which was not.
There is no evidence before me as to the difference between the two conditions but it makes no difference to the outcome of Mr Ayoub’s application. If they are taken to be separate conditions, then the canal stenosis was, on the information before me, not fully treated and stabilised during the claim period because further treatment was under consideration. If DISH is to be viewed as a separate condition, while it was fully treated and stabilised, I find that it rated five points.
Table 4 (Spinal Function) provides for the following ratings:
0 There is no functional impact on activities involving spinal function.
(1) The person can:
(a)bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5 There is a mild functional impact on activities involving spinal function.
(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).
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.
Mr Ayoub gave evidence that he can drive his car approximately two kilometres to his stonemason business where he used to work, and back, although sometimes he does not drive because of back pain. He is able to walk approximately 200 metres to the shops with his wife, and back, although at times he has to rest on the way. He can sit for up to an hour sometimes, although usually less. He acknowledged that he sat outside the hearing room for approximately 40 minutes before the hearing started but said sometimes he “just has to”, especially when he is tired. I observed Mr Ayoub to sit for approximately 30 minutes during the hearing.
I am satisfied, on the information before me, that Mr Ayoub’s permanent lower back condition has at least a mild functional impact on activities and rates five points on Table 4. The information before me does not support the conclusion that his condition has a moderate functional impact according to Table 4 and nothing in the information before me supports the conclusion that it has a severe impact on his ability to function.
Even if I accepted that Mr Ayoub’s back condition rated 10 points, his claim cannot succeed for the reasons set out below.
Osteoarthritis in both knees
Mr Ayoub says that, although he can able to walk approximately 200 metres to the shops and back, his knees have given way four or five times without warning and he has fallen over. There is no medical evidence to support this. He gave evidence that he can walk down stairs without using a stick or handrail although he uses the handrail sometimes.
Table 3 (Lower Limb Function) provides for the following ratings:
0 There is no functional impact on activities requiring use of the lower limbs.
(1) The person can:
(a)walk without difficulty on a variety of different terrains and at varying speeds; and
(b) walk without difficulty around the home and community; and
(c)kneel or squat and rise back to a standing position without difficulty; and
(d) stand unaided for at least 10 minutes; and
(e) use stairs without difficulty.
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) i.e. 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.
The Secretary maintains that Mr Ayoub’s knee condition has a mild impact of his ability to function. I am satisfied, on the information before me, that it has at least a mild functional impact on activities and rates five points on Table 3. The information before me does not support the conclusion that it has a moderate functional impact and nothing in the information before me supports the conclusion that it has a severe impact on his ability to function.
Even if I accepted that Mr Ayoub’s knee condition rated 10 points, his claim cannot succeed for the reasons set out below.
Diabetes, high blood pressure and high cholesterol
Dr Milad listed these conditions in part of the pro forma report that provides for “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”.
Mr Ayoub says his diabetes and high blood pressure make him feel weak sometimes but he trusts Dr Milad’s assessment and does not dispute it. On this basis I am satisfied that a rating of zero points for each is appropriate.
CONTINUING INABILITY TO WORK
To have a continuing inability to work, a person must satisfy the requirements in s 94(2) of the Act. One of those requirements is that a person has actively participated in a program of support: s 94(2)(aa).
In accordance with the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011, ordinarily, a person must have participated in a program of support for at least 18 months in the 36 months immediately before claiming DSP: cl 5(1) and (2). There are some exceptions to this rule but none applies to Mr Ayoub.
Mr Ayoub first participated in a program of support on 23 December 2014. He stopped participating on 15 January 2015. Even had he continued, he had not participated before making his claim for DSP on 6 November 2014.
A person who has a severe impairment, meaning one which rates 20 points or more under a single Impairment Table, is not required to have completed a program of support in order to have a continuing inability to work: s94(2).
The effect of these provisions is that, unless any one of Mr Ayoub’s impairments rates 20 points or more under a single Impairment Table, he did not have a continuing inability to work during the claim period.
As Mr Ayoub had not participated in a program of support before applying for DSP, and as none of his conditions rated 20 points on a single Table, he did not have a continuing inability to work during the claim period.
CONCLUSION
For the reasons I have given, I find that Mr Ayoub’s back and knee conditions rated five points each during the claim period. Even if I accepted that each rated ten points, I am not satisfied that either rated 20 points on its own. As Mr Ayoub had not participated in a program of support before applying for DSP, he did not have a continuing inability to work during the claim period. It follows that his claim must fail.
I affirm the decision under review.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey ........................[sgd]................................................
Associate
Dated 11 February 2016
Date(s) of hearing 27 January 2016 Applicant In person Solicitors for the Respondent Ms Kate Martini, Solicitor
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Benefits
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Continuing Inability to Work
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Disability Support Pension
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