Bazzi and Secretary, Department of Social Services (Social services second review)
[2015] AATA 557
•31 July 2015
Bazzi and Secretary, Department of Social Services (Social services second review) [2015] AATA 557 (29 July 2015)
Division
GENERAL DIVISION
File Number(s)
2014/4937
Re
Tabet Bazzi
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date of decision
Date of reasons
29 July 2015
31 July 2015
Place Sydney The Tribunal affirms the decision under review
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Senior Member J F Toohey
CATCHWORDS – social security – disability support pension – diabetes –
hypertension – depression – lower back pain – shoulder, knee, feet and hip pain –
whether conditions fully diagnosed, treated and stabilised – decision under review affirmedLegislation
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
Background
On 4 February 2014, Mr Tabet Bazzi applied for a disability support pension (DSP). He listed his medical conditions as diabetes type I, high blood pressure, depression, back pain, shoulder, neck, hip, knee and ankle pain, swollen feet and ankles, shortness of breath, dizziness and urine problem.
Centrelink decided that Mr Bazzi did not qualify for the pension. On 15 August 2014, the Social Security Appeals Tribunal (SSAT) affirmed that decision.
Mr Bazzi seeks review of the SSAT’s decision. These written reasons reflect reasons given orally at a hearing on 29 July 2015 and explain why I agree that Mr Bazzi did not qualify for DSP when he applied in February 2014.
Who qualifies 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 rated 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 Bazzi had to satisfy these criteria on 4 February 2014 when he applied, or within the following 13 weeks, that is by 6 May 2013: 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. There are 15 tables which are used to assess the functional impact of various impairments. According to whether the impact is nil, mild, moderate, severe or extreme, an impairment is assigned a 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 is fully stabilised, and is more likely than not to persist for more than two years: cl 6(4).
Fully stabilised means either:
a) 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 two 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 two 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.
Program of Support
The meaning of continuing inability to work is set out in s 94(2) of the Act. It includes the requirement that, unless a person has a severe impairment, meaning one which rates 20 points or more under a single Impairment Table, he or she must have actively participated in a program of support: s 94(2)(aa).
Ordinarily, a person must have participated in a program of support for at least 18 months in the 36 months immediately before claiming DSP: Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 cl 5(1) and (2).
Mr Bazzi commenced a program of support in February 2013. The job network provider who was operating the program closed down before he was able to complete the program. However, because he did not commence the program until February 2013, Mr Bazzi could not have completed 18 months before he applied for DSP in February 2014 in any event.
This means that, unless any one of Mr Bazzi’s impairments rated 20 points or more under a single Impairment Table, he could not qualify for DSP during the claim period.
Were Mr Bazzi’s conditions fully diagnosed, treated and stabilised during the claim period?
Diabetes, hypertension, heart disease
Centrelink accepts, and I am satisfied on the information before me, that Mr Bazzi’s diabetes, hypertension and heart disease were all fully diagnosed, treated and stabilised during the claim period. The question is what rating they should be given.
Table 1 (Functions requiring Physical Exertion and Stamina) is used to assess conditions commonly associated with cardiac or respiratory impairment. Table 15 is used to assess conditions which cause involuntary loss of consciousness. These may include epilepsy, some forms of migraine and poorly controlled diabetes. Although Mr Bazzi’s diabetes can affect his concentration, and cause dizziness, headaches and general weakness, there is no evidence that he suffers involuntary loss of consciousness. His diabetes is therefore properly assessed under Table 1.
Where two or more conditions cause a common or combined impairment, a single rating must be assigned to that common or combined impairment under a single table: see cl 11.
Centrelink says, and I am satisfied on the information before me, that the combined effect of Mr Bazzi’s diabetes, hypertension and heart disease during the claim period was at least moderate and rated 10 points under Table 1. The question is whether his impairment had a severe functional impact and so rated 20 points.
For an impairment to rate 20 points under Table 1, a 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.
Mr Bazzi gave evidence that, while he is able physically to walk around a shopping centre or supermarket, or from the car park into a shopping centre or supermarket, he does so only if someone accompanies him because he is fearful of a hypoglycemic attack. For the same reason, he uses public transport only if someone accompanies him. I accept that he is anxious about what might occur but I am not satisfied that Mr Bazzi was unable during the claim period to perform those activities without assistance for the purposes of Table 1.
I note that the report of a job capacity assessment on 26 February 2013 shows that Mr Bazzi reported “regular symptoms of shortness of breath, fatigue and cardiac pain when performing day to day activities around the home” but the information before me does not support the conclusion that he was unable to perform those activities during the claim period. I accept that Mr Bazzi had difficulty performing light household tasks but I am not satisfied that he was unable to perform them at that time.
I find that, during the claim period, Mr Bazzi’s impairment was moderate and rated 10 points on Table 1.
Depression and anxiety
Mr Bazzi was diagnosed with major depression in 2013. He saw Dr Abdul Saad, a clinical psychologist, for treatment over six sessions. In August 2014, Dr B S Keshava, consultant psychiatrist, diagnosed him as suffering from major depressive illness. In August 2014, Dr Saad reported that Mr Bazzi’s symptoms were “likely to fall under a chronic post-traumatic stress disorder (PTSD) with psychotic-like phenomena”.
It may be that Mr Bazzi’s psychological condition was not fully diagnosed during the claim period but I will accept, for the purposes of this decision, that it was. However, it is evident that his condition was not fully treated and stabilised during the claim period, and Mr Bazzi agreed at the hearing that this was so. In August 2014, Dr Saad reported to his general practitioner, Dr Makarie, that he would continue to review Mr Bazzi and would “attempt a trauma based intervention with him”. Mr Bazzi told me that Dr Keshava has recently retired and Dr Makarie is in the process of finding another psychiatrist he can see. Meanwhile, he has had some improvement with medication.
I find that Mr Bazzi’s psychological condition was not fully treated and stabilised during the claim period, meaning that it cannot be given an impairment rating.
Back pain, shoulder, neck, hip, knee and ankle pain, swollen feet and ankles
Mr Bazzi gave evidence that he has recently seen a new doctor who has referred him for nuclear imaging of his whole body in order to determine the cause of the pain he feels throughout his body. The doctor will decide what further treatment might be required after he sees the results of the scans. Mr Bazzi agreed that this is the first time his conditions have been properly investigated.
Mr Bazzi agreed at the hearing that his back pain, shoulder, neck, hip, knee and ankle pain, swollen feet and ankles were not fully diagnosed treated and stabilised during the claim period. It follows that they could not be given an impairment rating.
Consideration
As Mr Bazzi’s impairments rated a total of 10 points during the claim period, the claim for DSP that he made on 4 February 2014 cannot succeed, and I affirm the decision under review.
Mr Bazzi’s second claim for DSP
I understand that Mr Bazzi made a second claim for DSP in June 2015, which application is currently being considered by Centrelink. He produced a copy of the report which his treating doctor has provided in support of his application.
It will be a matter for Centrelink whether to approve Mr Bazzi’s recent claim or not but it might assist his claim if, when he sees a job capacity assessor, the assessor could obtain further information, if necessary, about the functional effect of his impairments from his treating doctors.
29. I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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AssociateDated 31 July 2015
Date(s) of hearing
29 July 2015
Representative for the Applicant
Self-represented
Representative for the Respondent
Ms Rebecca Kougellis, Government Lawyer
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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Disability Support Pension
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Impairment Rating
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Medical Evidence
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