Cetin and Secretary, Department of Social Services (Social services second review)
[2015] AATA 563
•4 August 2015
Cetin and Secretary, Department of Social Services (Social services second review) [2015] AATA 563 (4 August 2015)
Division
GENERAL DIVISION
File Number(s)
2015/0161
Re
Ali Cetin
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 4 August 2015 Place Sydney The Tribunal affirms the decision under review.
.................................[sgd].......................................
Professor R McCallum AO, Member
CATCHWORDS
Social Security – Disability Support Pension – Maximum Portability Period – whether the Applicant has a severe impairment – decision under review affirmed.
LEGISLATION
Social Security Act 1991 ss 94(3B), 94(4), 1217, 1218AAA
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
REASONS FOR DECISION
Professor R McCallum AO, Member
4 August 2015
INTRODUCTION
The Applicant, Mr Ali Cetin was born in Turkey and in 1998 he immigrated to Australia. In 1999, Mr Cetin was granted a refugee/humanitarian visa (subclass code 866) which permitted him to remain in Australia permanently. In that same year, his wife joined him in Australia. They have two daughters and one son, however, they are now separated
On 25 May 2011, Mr Cetin lodged a claim for Disability Support Pension (DSP) with Centrelink which was subsequently granted to him being backdated to 13 May 2011. His impairments were assessed in conformity with the old Impairment Tables which were then in force.
On 9 September 2013, Mr Cetin requested unlimited portability of his DSP so that he could travel to Turkey. He was advised by Centrelink that he would be assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) which came into force on 1 January 2012. The Determination contains the Impairment Tables, which I will address later in this decision.
On 18 November 2013, a medical report was completed by Dr Habiboglu, Mr Cetin's treating doctor. Dr Habiboglu indicated that Mr Cetin was suffering from ischaemic heart disease and lumbosacral disc herniation.
On 19 November 2013, Mr Cetin filled in a Work Capacity form, on which he indicated that he was suffering from ischaemic heart disease, lumbosacral disc herniation and anxiety/depression.
On 19 February 2014, a Job Capacity Assessment was undertaken at Merrylands Centrelink office. The report from this assessment was finalised on 24 February 2014. The assessor assigned 10 points under Table 1 of the Impairment Tables for Mr Cetin's ischaemic heart disease, 10 points under Table 4 for his spinal disorder, and 10 points under Table 5 for his mental health function, giving Mr Cetin a combined impairment rating of 30 points. The Assessor further held that while Mr Cetin's upper arm and shoulder impairment (tennis elbow) was diagnosed, it was not fully treated or stabilised. In relation to his lower right leg impairment, the assessor found that it was not fully diagnosed, treated and stabilised.
Mr Cetin was assessed as having a baseline work capacity of 0 to 7 hours per week increasing to 8 to 14 hours per week within 2 years with intervention.
On 20 June 2014, Centrelink decided to refuse Mr Cetin unlimited portability of his DSP on the basis that he did not have a 'severe impairment' and was able to work 8 to 14 hours per week. Mr Cetin sought review from an Authorised Review Officer and then from the Social Security Appeals Tribunal (SSAT), but to no avail.
In its decision dated 15 December 2014, the SSAT stated as follows:
6. The Tribunal was satisfied from the oral and documentary evidence before it that at the date of his claim for unlimited portability Mr Cetin has the medical conditions of ischemic heart disease, back and neck pain, right and left arm pain, anxiety and depression and right leg pain.
7. Via the interpreter and with the assistance of his daughters, the Tribunal learned that;
Mr Cetin is able to walk around a shopping centre without assistance; he is able to walk from a carpark to a shopping centre and can use public transport without assistance, although prefers to be accompanied because of his physical restrictions and lack of English. He is able to undertake light gardening such as watering the lawn. All activities are done in a self-paced fashion as over exertion does cause a shortness of breath and excessive sweating;
- Mr Cetin has good co-ordination of his upper limbs. There is no orthopaedic restriction. He does have some weakness. He can carry light objects and does not have a prosthesis. He can use a mobile phone, pen or pencil and can turn the pages of a book without assistance;
- With regards to lower limb function, Mr Cetin can walk unaided. He can use public transport. He can stand up a seated position without assistance;
- As regards neck and back function, Mr Cetin can undertake overhead activities, albeit not repetitively, can rotate and bend his neck and spine and can remain seated for more than 10 minutes, (sitting tolerance was observed to be 35 minutes at the hearing);
- With regards to mental health function, Mr Cetin can self-care, travel alone to familiar areas, maintain stable relationships with his family (daughters), concentrate on a task for more than 10 minutes, such as watching television or following a conversation and can engage in planning and decision making although at times admits, particularly after a restless sleep, that he prefers isolation.
8. The Tribunal finds that the oral evidence of functional ability was consistent with the documentary evidence in the papers.
9. The Tribunal further finds the above level of capacity does not attract a severe impairment rating with reference to Table 1 (the Table used to assess physical exertion and stamina), Table 2 (the Table used to assess upper limb function), Table 3 (the Table used to assess lower limb function), Table 4 (the Table used to assess spinal function) and Table 5 (the Table used to assess mental health function). At best, his stated level of incapacity falls within the mild to moderate categories.
Mr Cetin now appeals to this Tribunal.
LEGISLATION
The relevant provisions governing portability of DSP are set out in the Social Security Act 1991 (Cth) (the SS Act). Section 1217 of the SS Act specifies general portability rules. It is not necessary to set this provision out. Suffice to write that with respect to DSP, the maximum portability period at the time Mr Cetin made his application in 2013 was six weeks. This meant that persons who were receiving DSP at that time could travel outside Australia for six weeks and still be paid DSP. If they travelled outside Australia for more than six weeks, they would not be paid DSP for any period beyond the previous maximum portability period of six weeks. Since the date of Mr Cetin’s application, the general portability period has been shortened from six weeks to 28 days.
Unlimited portability of DSP is covered by section 1218AAA of the SS Act. It relevantly provides:
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, 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 meaning of subsection 94(4)) within the next 5 years.
...
(5) In this section:
work means work:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
Put simply, section 1218AAA of the SS Act enables the Secretary to make a written determination that a person's portability of her or his DSP it unlimited where, first, the person is receiving DSP. Second, where the Secretary is satisfied that the person’s impairment is a severe impairment within the meaning of subsection 94(3B) of the SS Act. Subsection 94(3B) provides:
(3B) 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 are under a single Impairment Table.
As is explained by subsection 94(3B) of the SS Act, an impairment will be severe if it is assessable at 20 points under one of the tables of the impairment tables.
Third, where the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years. Finally, where the Secretary is satisfied that, 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 meaning of subsection 94(4) within the next 5 years. Subsection 94(4) of the SS Act provides:
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
It is only where these four matters are satisfied that a person in receipt of DSP may obtain unlimited portability and live overseas for an indefinite period while still receiving her or his DSP.
ISSUES BEFORE THE TRIBUNAL
For Mr Cetin to succeed, I must be satisfied of the four matters set out in section 1218AAA of the SS Act which I have just enumerated.
In relation to the first matter, it is clear that Mr Cetin is in receipt of DSP. Paragraph 32 of the Respondent's Statement of Facts and Contentions provides:
32. There is no dispute that the Applicant has a 'physical, intellectual or psychiatric impairment' and is in receipt of DSP.
The second matter before me as I stand in the shoes of the Secretary, is whether I can be satisfied that Mr Cetin has a severe impairment. Third, I must also be satisfied that this impairment will subsist for at least the next five years.
Finally, I must be satisfied that Mr Cetin's severe impairment will prevent him from performing any work independently of a program of support within the next five years.
For me to be satisfied that one of Mr Cetin's impairments is a severe impairment, that impairment must be assessed at 20 points under one of the tables of the impairment tables.
THE IMPAIRMENT TABLES
The impairment tables warrant a few words of explanation. As previously mentioned the Impairment Tables are found in the Determination. The Determination also contains the rules for the application of the Impairment Tables.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.
Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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.
Section 10 of the Determination is important. Sub-section 10(5) states:
(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.
Subsection 10(6) then provides:
(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.
THE DOCUMENTARY EVIDENCE
The Tribunal had before it the following documents. The Secretary’s Statement of Facts and Contentions; the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents; medical reports supplied by Mr Cetin on 17 March 2015; and further medical reports supplied by Mr Cetin on 22 June 2015. Much of the documentary evidence comprises medical reports and medical certificates.
THE EVIDENCE OF MR CETIN
Mr Cetin attended the hearing. He was accompanied by one of his daughters. Mr Cetin gave sworn evidence through an interpreter.
In relation to his ischaemic heart disease, Mr Cetin explained that he had two heart attacks in 2011 and in 2014. He still smokes 15 to 20 cigarettes each day, although he used to smoke more.
Mr Cetin said he does go shopping with family members, but he sits at the shops while they do the shopping. Mr Cetin said that he can walk unaided from the carpark to the shopping centre. He said that he sometimes drives a car, but that he has not driven in the last two weeks.
When asked whether he could lift up his hands, Mr Cetin lifted them halfway, but said it was painful. He said he could lift up a book from the table, but only with his right hand.
Mr Cetin said he had depression, and that he could no longer show affection to anybody. He said that he had suicidal thoughts because on occasions he had thought of taking over doses of his medication, but he has never done this.
Mr Cetin said that each day he gets up and mainly watches television. He can wash up his cup, and on occasions he can hang a garment on the clothes line.
Mr Cetin gave evidence of his back pain and his slipped disk. He said that when sitting the pain was radiating down to his right leg. At the hearing, Mr Cetin was able to sit for approximately one and a half hours before the hearing broke for ten minutes.
Mr Cetin said that he spends most days alone. He used to walk to a coffee shop, but over the last two weeks the increased pain in his leg has made this impossible.
Mr Cetin agreed that he had been admitted to the Auburn Hospital last year. The discharge document in the T documents states that Mr Cetin was admitted on 1 July 2014 and was discharged the following day. Mr Cetin disagreed and said that he was in hospital on one occasion in 2014 for nine days. He said that he had given the hospital reports to his family doctor.
On 4 August 2014, Mr Cetin travelled by air in economy class to Turkey. He said that his doctors stated that he could fly so long as he took his medicine. Mr Cetin said that he travelled to Turkey to attend his brother's funeral and to see his mother.
Mr Cetin said that he can dress himself and wash himself, although on occasions his children help him when his neck is sore.
CONSIDERATION
The primary issue which I am required to decide, is whether any of Mr Cetin's impairments are severe impairments. For an impairment to be severe it must be assessed at 20 points under one of the tables in the impairment tables.
Ischaemic heart disease
Mr Cetin's ischaemic heart disease is assessable under table 1 of the Impairment Tables titled "Functions requiring Physical Exertion and Stamina". For this impairment to be assessed as severe, that is assessed at 20 points under table 1, it must be shown that Mr Cetin cannot without assistance from another person, walk from a carpark to a shopping centre, use public transport or undertake light household duties.
From the evidence before me, Mr Cetin can walk unaided from the carpark to the shopping centre, he can take public transport, and he can undertake some light household duties such as washing his cup and hanging out a garment on the clothes line.
I find that Mr Cetin's ischaemic heart disease is not a severe impairment because it is not assessable at 20 points under table 1 of the Impairment Tables.
Spinal disorder
Mr Cetin's spinal disorder is assessable under table 4 of the Impairment Tables which is titled "Spinal Function". For this impairment to be assessed as severe, that is for 20 points under table 4, it must be shown that Mr Cetin cannot perform any overhead activities, cannot turn his head or neck without turning his trunk, bend forward to pick up an object or sit for more than 10 minutes.
From the evidence before me, Mr Cetin can carry light objects, he can pick up a book in his right hand, and at the hearing he was able to sit for approximately one and a half hours.
I find that Mr Cetin's spinal disorder is not a severe impairment because it is not assessable at 20 points under table 4 of the Impairment Tables.
Depression
Mr Cetin's depression is assessable under table 5 of the Impairment Tables which is titled "Mental Health Function". For this impairment to be assessed as severe, that is assessed at 20 points under table 4, it must be shown that Mr Cetin has severe difficulties with most of the following tasks:
(a) self-care and independent living;
(b) social/recreational activities and travel;
(c) interpersonal relationships;
(d) concentration and task completion;
(e) behaviour, planning and decision-making; and
(f) work/training capacity.
From the evidence before me, Mr Cetin can self-care, and he can travel using public transport. In relation to concentration and task completion, Mr Cetin was able to concentrate throughout the hearing which lasted approximately two and a half hours. While Mr Cetin does have some difficulties with interpersonal relationships, from the evidence before me, those difficulties are not severe. Therefore, Mr Cetin does not have severe difficulties with most of the tasks set out in the above list.
I find that Mr Cetin's depression is not a severe impairment because it is not assessable at 20 points under table 5 of the Impairment Tables.
Other impairments
In his medical report dated 18 November 2013, Dr Habiboglu, Mr Cetin's treating doctor, did not mention Mr Cetin's upper arm and shoulder impairment (tennis elbow), and his lower right leg impairment. In the work capacity form which Mr Cetin filled in on 19 November 2013, he did not mention these impairments.
Mr Cetin has had 3 cortisone injections and physiotherapy to treat this upper arm and shoulder impairment. The assessor who undertook the job capacity assessment report dated 24 February 2014 noted that "The client may benefit from specialist consultation to explore further treatment options."
From the evidence before me, I find that Mr Cetin's upper arm and shoulder impairment has not been fully treated and stabilised and is not assessable under the Impairment Tables.
I note that in his evidence before me, Mr Cetin said that the pain in his right leg had increased in the last two weeks. I also note the brief report titled “right lower limb arterial Doppler ultrasound” by Dr Dart dated 29 May 2015. However, in my view there is insufficient medical evidence before me to conclude that Mr Cetin's right leg impairment has been fully diagnosed, treated and stabilised.
I find that none of Mr Cetin's impairments are assessed as severe under any of the tables in the Impairment Tables. This means that Mr Cetin is unable to access the unlimited portability rules for his DSP as he has not met all of the criteria in section 1218AAA of the SS Act.
Therefore, it is not necessary for me to decide, either, whether any of Mr Cetin's impairments will subsist for at least the next five years, or whether any of Mr Cetin's impairments will prevent him from performing any work independently of a program of support.
DECISION
I affirm the decision under review.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ...................................[sgd].....................................
Associate
Dated 4 August 2015
Date(s) of hearing 30 June 2015 Applicant In person Solicitor for the Respondent George Lozynsky, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Administrative Review
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Judicial Review
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Statutory Interpretation
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Mental Health Function
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Spinal Function
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Functions Requiring Physical Exertion and Stamina
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