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

[2017] AATA 719

Bata and Secretary, Department of Social Services (Social services second review) [2017] AATA 719 (16 May 2017)

Division: General Division

File Number(s):      2016/5672

Re:Basim Bata

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:16 May 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – disability support pension – Impairment tables – whether the Applicant's condition is fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Table 5 Mental Health Function – Table 2 Upper Limb Function – Table 3 Lower Limb Function – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security (Administration) Act 1999 (Cth) s 118

Social Security Act 1991 (Cth) ss 94

SECONDARY MATERIALS

Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member A Poljak

16 May 2017

1. Mr Bata, the applicant, has been in receipt of the disability support pension (“DSP”) since 24 December 2009.

2. On 20 October 2016, the Administrative Appeals Tribunal, Social Services and Child Support Division (“SSCSD”) affirmed the decision of an Authorised Review Officer of the Department of Human Services (“Department”) to cancel the applicant’s DSP as determined by the Department on 17 May 2016 (“the Decision”). The basis of the decision was that the applicant ceased to satisfy the criteria for the disability support pension set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”) at the date of cancellation on 17 May 2016 (“Date of Cancellation”). The applicant seeks review of this decision.

3. Section 94 of the Act provides that, to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

4. The applicant had to satisfy these criteria at the date of cancellation.

5. In assessing the applicant’s continued qualification for the disability support pension in 2016, the Department was required to apply the Impairment Tables, pursuant to subsections 27(3) and 27(4) of the Act. The Impairment Tables are stricter than the tables which applied when Mr Bata was first granted the disability support pension on 24 December 2009.

6. The power for the Secretary to cancel the applicant’s DSP is contained in s 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). The cancellation decision takes effect on the day on which it was made, in this case, on the date of cancellation pursuant to ss 118(13) of the Administration Act.

7. The Secretary accepts that the applicant suffers from a number of conditions at the date of cancellation. He therefore satisfies subsection 94(1)(a) of the Act. The issue to be determined in these proceedings is whether the applicant satisfied section 94(1)(b) and 94(1)(c) of the act at the date of cancellation.

8. In addition to the T-documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), the applicant tendered at hearing the report of Dr Mahmoud Abu-Arab, clinical psychologist, dated 12 December 2016, which I have read and considered.

   IMPAIRMENT TABLES

9. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in s 3 to mean “a loss of functional capacity affecting a person’s ability to work that result from a person’s condition”. 

10. Subsections 6(3) and 6(4) provide that impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has being fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years. 

11. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

12. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

13. For multiple conditions causing a common problem, subsection 10(5) and 10(6) of the Impairment Tables 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) …it is appropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    Mental Health Condition

14. The Secretary contends that the applicant’s mental health condition was not fully diagnosed, treated and stabilised at the date of cancellation. I agree for the following reasons.

15. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. Self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. The Introduction to Table 5 of the Impairment Tables provides (inter alia) that a diagnosis of a 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).

16. It appears from the medical evidence that the applicant has been depressed for many years. The applicant advised at hearing that he was in the care of a psychiatrist for many years in Melbourne prior to moving to Sydney in May 2011. He said that he did not consult a psychiatrist or clinical psychologist in Sydney because he could not afford to. The applicant said that since 2012, he has undergone counselling sessions with his general practitioner who also prescribes him medication for his depression. Between the years 2012 to 2014, the applicant advised that he did not take antidepressants but was instead taking Chinese medicine which he found quite effective with fewer side effects.

17. In the Medical Report for DSP dated 23 December 2009, Dr Maccartney, general practitioner, records that the applicant’s condition of “depression” as diagnosed and “confirmed”. Past treatment is noted as antidepressants and current treatment is noted as counselling. In a more recent report dated 2 March 2016, Dr Maccartney notes that the applicant “has struggled with low mood for a long time… He has been prescribed medication with no benefit in the past as well as prolonged psychological therapy.” The diagnosis of depression is listed as “active” from 2003.

18. In a report dated 19 September 2016, Dr Khan, a general practitioner, notes that the applicant has been a patient at Fairfield Central Medical Centre since 5 April 2016. She states that in her opinion the applicant suffers from the condition of long-standing major depression. In a medical certificate for Centrelink dated 23 May 2016, Dr Khan states that the applicant needs psychotherapy.

19. The applicant’s Medicare and PBS records demonstrate that the applicant has not undertaken any counselling or psychological sessions from 1 January 2012 to December 2016. The records also show that the applicant has not taken any medication for his mental health condition between 1 January 2012 and August 2016 when he was prescribed Sertraline (after the cancellation date). Based on this evidence, it appears that the applicant’s mental health condition has been untreated for almost 5 years and there is no evidence, other than that of the applicant, to suggest that his mental health condition has ever been treated.

20. Unfortunately for the applicant, there is no evidence before me from a psychiatrist or clinical psychologist, other than from Dr Abu-Arab, a clinical psychologist, who the applicant saw for the first time on 12 December 2016 (after the cancellation date). While the notes and reports of Dr Maccartney and Dr Khan make reference to a diagnosed mental health condition, the only evidence that I have before me supporting such a diagnosis is that of Dr Abu-Arab.

21. As I have already stated, for me to find that the applicant’s mental health condition was fully diagnosed at the date of cancellation there must be corroborating evidence by an appropriately qualified medical practitioner pursuant to the introduction to Table 5 of the Impairment Tables.

22. Due to the lack of corroborating, contemporaneous medical evidence, the applicant mental health condition cannot be considered permanent as at the date of cancellation and therefore, an impairment rating cannot be assigned.

    Upper Limb Condition – Left Shoulder

23. The Secretary concedes and I accept, that the applicant’s left shoulder condition was fully diagnosed, treated and stabilised at the date of cancellation. This is supported by the evidence of Dr Maccartney and Dr Khan.

24. The Job Capacity Assessment report dated 13 May 2016 (“JCA”), records that the applicant “reported experiencing pain in his left shoulder (non-dominant arm) when he moved his arm. He stated that he has no difficulties with picking up heavier objects (example a 2 L carton of milk) and doing up buttons”. The applicant was “observed to be able to handle very small objects (example screw cap) and reach up or out to pick up objects”.

25. The SSCSD notes in its reasons for decision at [19], that the applicant has “good right arm function and is right-handed”. It is noted that the applicant “uses his right arm to do most things. With his right arm he can pick up a shopping bag, handle coins, use a keyboard pick up small objects. With his left hand he can use a pencil and pickup light objects”.

26. Based on this evidence and having regard to the descriptors contained in Table 2 of the Impairment Tables, I am satisfied that the applicant functional impact, as a result of his left shoulder condition, warrants nil points under Table 2 of the Impairment Tables.

    Upper Limb Condition – Right Shoulder

27. The Secretary contends that the applicant’s right shoulder condition was not fully treated or stabilised at the date of cancellation. I agree for the following reasons.

28. In Medical Certificates dated 20 May 2016 and 27 June 2016, Dr Khan states that this condition is temporary and is “likely to improve in three months”.

29. In light of this medical evidence I am satisfied that the applicant’s right shoulder condition was temporary. It follows that it cannot be rated under the Impairment Tables.

    Lower Limb Condition – Knee Condition

30. The Secretary concedes and I accept that the applicants the condition was fully diagnosed treated and stabilised at the date of cancellation. This is supported by the evidence of Dr Maccartney and Dr Khan.

31. The applicant’s evidence before the SSCSD was that he could stand for 7 to 10 minutes; could walk for 6 to 7 minutes before needing to rest; uses a walking stick and has difficulty with stairs and public transport. This level of function is consistent with that recorded in the JCA.

32. At hearing, the applicant stated that he uses his walking stick to get around but not for a long distance. He says that he needs to rest every 70 to 100 m and cannot get up and down stairs.

33. Based on the evidence and having regard to the descriptors contained in Table 3 of the Impairment Tables, I am satisfied that the applicant functional impact as a result of his lower limb condition warrants 10 points under Table 3 of the Impairment Tables.

    Nasal Condition

34. The Secretary contends and I agree, that the applicant’s nasal condition was not fully treated or stabilised at the date of cancellation.

35. In the report dated 2 March 2016, Dr Maccartney notes “Chronic obstruction – on waiting list for septoplasty and inferior turbinectomies”.

36. Accordingly, I am not satisfied that this condition was fully treated and stabilised at the date of cancellation. It follows that it cannot be rated under the Impairment Tables.

    Continuing Inability to Work

37. As the applicant’s impairments do not rate 20 or more points on the Impairment Tables. It is therefore not necessary to consider whether he had a continuing inability to work at the date of cancellation. 

    DECISION

38. For all of the reasons given above, I affirm the decision under review.  The applicant may apply for DSP again at any time.