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

[2019] AATA 4946

Chaker and Secretary, Department of Social Services (Social services second review) [2019] AATA 4946 (22 November 2019)

Division:GENERAL DIVISION

File Number(s):      2019/2701

Re:Hanaa Chaker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:22 November 2019

Place:Sydney

The Tribunal extends until 16 May 2019 the date for filing the application for review of the reviewable decision of 18 March 2019, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). 

.............................[SGD]...........................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement – previously dismissed for non-appearance – whether reinstatement appropriate – reinstatement allowed

PRACTICE AND PROCEDURE – extension of time to lodge application for review – principles to be applied – merits of substantive matter – extension of time allowed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 42A

Social Security Act 1991 s 94

Social Security (Administration) Act 1999 (Cth) schedule 2

CASES

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Lawson and Secretary, Department of Social Security [1997] AATA 719.
Markus and Secretary, Department of Social Services (Social services second review) [2019] AATA 4308

Shi v Migration Agents Registration Authority [2008] HCA 31

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

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

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

22 November 2019

1. The present interlocutory proceedings arose under the following circumstances. On 15 May 2017 the applicant was injured in a motor vehicle accident. On 6 October 2017 the applicant applied for disability support pension (DSP) basing her claim on various impairments including a mental health condition, hearing loss in the right ear, right shoulder pain and lower back pain.

2. On 18 November 2017, the Department rejected her application for DSP. On 17 September 2018, a Departmental Authorised Review Officer (ARO) affirmed the decision to reject the applicant’s claim for DSP. The ARO found that none of the applicant’s claimed health conditions were fully treated and stabilised and determined that the applicant did not have an impairment rating of 20 points of more. On 18 March 2018 the Social Services and Child Support Division (AAT1) affirmed the decision to reject the applicant’s claim for DSP.

3. On 16 May 2019, the applicant’s application for second review was received by the Tribunal. The application was 15 days out of time. On 20 May 2019 the applicant applied for an extension of time.

4. On 5 June 2019 a notice of hearing was sent to the applicant at her residential address, setting the matter down for a telephone hearing on 19 June 2019.

5. On 19 June 2019, at the appointed hour, a call was placed from the Tribunal hearing room to the applicant’s agreed telephone number but the applicant did not answer the telephone. Her application for an extension of time was accordingly dismissed under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). In these proceedings she seeks reinstatement of her application for an extension of time.

6. An interlocutory hearing was held on 9 September 2019 to consider both matters: the request for reinstatement and the application for an extension of time. The applicant appeared in person aided by an Arabic interpreter. She was also assisted by a friend. The Respondent was represented by Ms T Hibberd, from the Department of Human Services.

7. At the hearing before me, the applicant tendered a number of documents relating to her health conditions. It was not immediately clear what relevance those documents might have to these proceedings, but they were received by the Tribunal without objection from the Respondent’s solicitor. They are listed in the Appendix to these decisions.

   REINSTATEMENT

8. The Tribunal may reinstate an application dismissed under s 42A(2) of the AAT Act if it considers it appropriate to do so: s 42A(9). Why did the applicant not answer the phone on 19 June? In her letter dated 8 July 2019 requesting reinstatement the applicant wrote:

   I then received a letter in the mail and a text message saying I will be contacted on 19 June at 10.00 am for a telephone hearing. 

   I waited for them from 6.00 am to 5.00 pm and I received no phone calls.

   I then received a letter via express post the very next day on 20 June, 2019 saying that I failed to attend the phone hearing. 

   I would like to attend in person a hearing (sic) and do not want to have a telephone hearing.

9. At the hearing, the applicant’s friend explained to me that, at 10 am on 19 June 2019, he and the applicant were in attendance at the Sydney Registry of the AAT at 83 Clarence Street. He said they were unaware that the matter was listed for a telephone hearing. They thought they were expected to attend at the Registry office. He says they went to the counter and spoke to an official.  Apparently, that staff member said that the application was incomplete and that additional information was required from a psychiatrist. They went away to assemble that information, which has since been obtained and is now available for the Tribunal to inspect. They were not made aware that the matter was the subject of a telephone hearing at that very time. In any event, this appears to have been a genuine error. During the hearing I confirmed that the applicant’s telephone number was correctly used on the day.

10. I notice this is quite at odds with what the applicant wrote in her letter.  Nevertheless, I think that there may have been some misunderstanding as to what was required on the day and consider that it is appropriate under these circumstances to allow reinstatement.

11. I turn now to the application for an extension of time.

    EXTENSION OF TIME

12. Under s 29(7) of the AAT Act the Tribunal may extend the time for the making of an application if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

13. The principles governing applications for an extension of time are set out in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344, a decision by Wilcox J under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Importantly, Wilcox J stated at p 348 the prescribed period of 28 days is not to be ignored…Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained.

14. Although Hunter Valley was decided under different legislation, the factors identified by Wilcox J are generally regarded as relevant to the exercise of the discretion to grant an extension under s 29.  Those factors include:

    (a)Explanation for the delay

    (b)Whether the applicant has rested on his or her rights

    (c)Prejudice to the Respondent

    (d)Merits of the substantial application (prospects of success)

    (e)Fairness for the applicant and other people

    (f)Is there another avenue of relief?

    Explanation for Delay

15. In the present case the extension sought is for 15 days, from 1 May until 16 May. There needs to be some acceptable explanation of the delay (see Hunter Valley, at p. 348-9). Unfortunately, I was not able to discern any explanation for the delay, other than that the applicant was still trying to assemble the necessary medical information.

    Resting on rights

16. The evidence before the Tribunal points to some confusion on the applicant’s part as to the procedural aspects of this matter. It does not however justify a finding that the applicant was lacking in motivation with respect to her challenge to the reviewable decision of AAT1, or rested on her rights.

    Prejudice to the Respondent

17. Each of the parties has an interest in the finality of administrative proceedings, and to that extent, any uncalled for delay is prejudicial to one or other, or indeed both parties. In this particular case the solicitor for the Respondent did not identify any additional element of prejudice going beyond that which is intrinsic to delay.

    Prospects of success

18. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (See Hunter Valley, at 348-9). The Respondent concedes that it cannot be said that the application has no prospects of success, but argued that there were very limited prospects of success.

    The relevant law

19. The core requirements for eligibility for DSP are that a person has a physical, intellectual or psychiatric impairment scoring at least 20 points or more under the Impairment Tables, and a continuing inability to work (CITW): Social Security Act 1991 (Cth), s 94(1) (SSA). There are of course other requirements under s 94 but they are not relevant for present purposes.

    Continuing Inability to Work (CITW)

20. Section 94(2) of the SSA relevantly provides that a person has a CITW because of an impairment if the Secretary is satisfied that the person has actively participated in a program of support wholly or partly funded by the Commonwealth and the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support (POS) within the next 2 years. 

21. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the 2014 Determination), sets out the requirements for active participation in a program of support. A claimant must participate for at least 18 months during the relevant claim period, which is the period of 36 months ending immediately before the day on which the claim for disability support pension was made: paragraphs 5 and 7(2).

22. If the person has a severe impairment then he or she is exempt from the obligation to participate in a POS.  A person has 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: s 94(3B).

23. It is not challenged that the applicant did not satisfy this requirement, having completed only 290 program support hours. Therefore, the success of her claim depends upon her suffering from a severe impairment during the qualification period. In other words, the applicant would need to have an impairment rating of 20 points based on one of the impairment tables. 

    The impairment tables

24. The Impairment Tables may be found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). 

25. Section 6 of the Instrument sets out the rules for applying the Impairment Tables. Importantly, 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 light of available evidence, to persist for more than 2 years: s 6(3).  Other relevant provisions for present purposes include subsection 6(4) and 6(6).

26. Subsection 6(4) relates to permanency of conditions and provides:

    4 For the purposes of paragraph 6(3)(a) a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

27. Subsection 6(6) provides that a condition is fully stabilised if:

    (a)either 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 2 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 2 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.

28. Subsection 11(5) provides that where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.

    The qualification period

29. The accepted rule is that eligibility for DSP is tested by reference to the applicant’s physical or psychological condition within the 13 week review period commencing on the date of application: see Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; Markus and Secretary, Department of Social Services (Social services second review) [2019] AATA 4308.

30. Paragraph 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) which provides: 4  Start day—early claim

    1If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

31. It follows that if a person is clearly qualified for DSP at the date of the hearing before the Tribunal, but not so qualified at the end of the 13 week review period, the Tribunal has no alternative but to suggest that he or she file a fresh application: see for example Lawson and Secretary, Department of Social Security [1997] AATA 719.

32. While the focus is upon the applicant’s medical conditions as at the date of the qualification period, matters such as reports created outside that period may be relevant to the extent that they cast light on the applicant’s medical condition during the qualification period.

33. In considering the prospects of success of the substantive application, the Tribunal is required to focus on the 13 week qualification period running from 6 October 2017 to 5 January 2018. Any condition must be fully diagnosed, treated and fully stabilised by the end of that period.

    The degree of impairment under the tables

34. The applicant was identified by AAT1 as having the medical issues relating to the following areas of impairment: mental health, hearing, and upper and lower back.  The internal review office found zero points for each impairment table. The Respondent has indicated that the applicant’s health condition has not been considered under the Impairment Tables as they have been found to be not fully treated and stabilised: RSFIC 30(a).

35. The present state of the material before the Tribunal supports a finding that none of the health impairments suffered by the applicant would satisfy the requirement of an extreme impairment, other than, possibly, the applicant’s mental health condition.

36. Turning specifically to that condition, it should be said that there is evidence before the Tribunal that during the relevant period, the applicant did suffer from a depressive disorder.

37. As to whether the condition was permanent, as required by subsection 6(4) off the Impairment Tables Rules, the position is more difficult. The requirements have been set out above.

38. AAT1 concluded that the condition was fully diagnosed at the date of the claim. This conclusion was based on some medical reports and also from observing the applicant at the hearing. Apart from some curious features of the applicant’s behaviour, the AAT1 referred to a number of medical reports including:

    i.Letter from Dr Ishrat Ali, psychiatrist, dated 20 January 2017 diagnosing depression and adjustment disorder;

    ii.Letter from Medhat Metry, psychologist, dated 9 May 2017 reporting symptoms of Depression and treatment including four sessions of cognitive behaviour therapy;

    iii.The referral letter from Dr Alsayed to Ms Metry dated 7 July 2017 indicating the prescription of psychological medications.

39. The AAT1 was however unable to conclude that the mental health condition was fully treated and stabilised, finding:

    [26] There was no clear evidence at the date of the claim regarding the likely prognosis of [the applicant’s] mental health condition…

    [27] The Tribunal acknowledges [the applicant’s] presentation and distressed mental state during the hearing; however the Tribunal can only assess the evidence available at the date of claim as her mental health condition may have worsened since the date of the claim.

40. The observations made by AAT1 concerning the applicant’s demeanour during the AAT1 hearing suggest that the applicant suffers from a mental illness. There is, in addition to this somewhat subjective assessment, additional information now supporting the claim that the applicant suffers from a mental illness.  This includes:

    a.Various letters prepared by Dr Aiman Alsayad addressed “to whom it may concern” relating to various conditions including major depressive disorder which he regarded as “fully stabilised”- see letters dated 12 January 2018; 22 January 2018; and 1 May 2019;

    b.A report dated 5 March 2018 by Dr Jeff Bertucen, consultant psychiatrist, Assess Medical Group, referencing to the development of “a major depressive illness since shortly after her arrival in Australia, in the context of an unsatisfactory marriage”.  Importantly, he considered that her symptoms have stabilised given that she is receiving/has received an adequate repertoire of appropriate psychiatric treatments;

    c.A letter dated 9 April 2019 from Medhat Metry, MM Psychological Support Services relating to ongoing treatment for anxiety and depression;

    d.A letter dated 13 April 2019 from Dr Hecham Alhajali to Dr Alsayad relating to management of anxiety/PTSD diagnosing chronic psychotic symptoms most likely schizophrenia and emotional dysregulation and limited independent living skills and comorbid borderline intelligence;

    e.A letter dated 24 August 2019 from Dr Hecham Alhajali to Dr Alsayad relating to psychiatric assessment, confirming chronic psychotic symptoms and expansive mood due to Schizoaffective Disorder. He states that she has permanent mental illness and would always require support.  She is unable to work or study currently and in the next 2 years, therefore I would support her application for DSP.

41. There does appear to have been a decline in the applicant’s mental health over the past four years. I note that in 2017 the concern was with PTSD and depression, whereas later reports refer to the possibility of an emerging schizo-affective disorder with psychotic features.

42. I am required to consider whether, on the basis of this material, the Applicant would have a prospect of success by proving at the substantive hearing the relevant condition was, during the qualification period, fully stabilised. In approaching this task I am conscious of the fact that it is not appropriate to conduct in effect a wholesale substantive review of the facts in issue. However, one must venture some way down the path in order to determine whether the applicant’s claim lacks any reasonable prospect of success.

43. As noted above, at paragraph [27] in order to find that a condition is fully stabilised, the inquiry must focus on the nature of the treatment and the prognosis; or, where there was no treatment, whether improvement was unlikely or there was a compelling reason for the lack of treatment. The terms of the subsection are set out above.

1. There is evidence that the applicant was receiving psychological or psychiatric treatment during the review period, being 6 October 2017 to 5 January 2018, as outlined in the Respondent’s Submissions at [30(d)].  There is no suggestion that this treatment was in any way unreasonable.

2. The question for the substantive hearing is whether it can be said that, as of 5 January 2018, any further reasonable treatment would have been unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years. The question is not only as to what might reasonably have been said by the decision-maker, at that point in time, on the basis of information then available, with regard to the prospects of functional improvement. It is what the material now before the Tribunal shows about the likelihood or otherwise, at that point in time, of functional improvement to the requisite degree.

3. I recognise that there is a degree of artificiality about this sort of inquiry. In effect, the Tribunal will be asked to determine what was unlikely at a certain time in the past and to treat any subsequent information as relevant only to the extent that it informs that question, regardless of what else it might show. 

4. And of course reports about the applicant’s mental health prepared since the end of the review period are relevant to the extent that those reports cast light on the applicant’s mental health during the review period, and its likely impact upon functional impairment.[1] They have no wider purpose.

   [1] Shi v Migration Agents Registration Authority [2008] HCA 31.

5. It is a complex medical question as to whether the nature of the applicant’s mental health condition, as it stood during the qualification period, was such that any further reasonable treatment for that condition was unlikely to result in functional improvement to a level enabling the person to undertake work in the next two years.

6. As noted above, more recent medical reports point to a further decline in the applicant’s mental health. It may be suggested that the more recent reports speak to a new and qualitatively different mental illness than the disorder with which the applicant presented during the qualification period. However, it is not apparent that the later medical reports (that is, those prepared after 5 January 2018) have no potential relevance to an assessment of the applicant’s mental health as it stood during the review period.

7. The solicitor for the Respondent contends that any change to medication during the qualification period would imply that the applicant’s mental health condition was not fully treated and stabilised during the review period. With respect, whether this is so would depend on the state of the medical evidence as to the purpose of such variations to the medications prescribed. The fact that, for example, particular medication is discontinued or exchanged for another would not, a priori, suggest that the underlying illness is not stabilised.  It would depend on the state of the medical evidence.

8. I have listed the documents that were handed up by the Applicant at the hearing.  I have not needed to refer to all of them, and largely confined my attention to those relating to the mental health condition.

9. On the basis of the material now before the Tribunal, I am not satisfied that the applicant’s claim for DSP has no reasonable prospect of success. The 2018 material referred to above supports a finding that, at the relevant time, the applicant suffered from a mental illness and that the condition was fully stabilised. The subsequent 2019 material supports this hypothesis and is not inconsistent with it, although it does raise the possibility that her mental health condition may now be differently characterised.

   Fairness to the applicant and other people

10. Considerations of fairness as between the applicant and other persons in a like position are relevant to the Tribunal’s discretion to grant an extension of time. In the concatenation of factors relevant to the exercise of discretion this is a powerful consideration, but in the circumstances of this case does not count strongly against the applicant.

    Other avenues of relief

11. The solicitor for the Respondent suggested that the applicant was not without other avenues of relief, specifically, filing a fresh application for DSP. This is undoubtedly true, and is a factor to be taken into account. However, given the work involved in making a fresh application with supporting material, and the potential for further delays it is, with respect, not to be counted heavily against her, given her specific disabilities.

    CONCLUSION

12. There is still the hurdle noted at the outset, that the applicant has not given a clear and consistent explanation for the 15 day delay in this case, other than that the applicant was still trying to assemble the necessary medical information. Taking into account all relevant factors including especially the applicant’s mental health, I think that she should receive some leniency. I am satisfied that in all the circumstances it is reasonable to grant the application for an extension of time.

13. The application for review was filed on 16 May 2019. The Tribunal therefore extends until 16 May 2019 the date for filing an application for review of the reviewable decision of 18 March 2019, pursuant to s 29(7) of the AAT Act

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...............................[SGD].......................................

Associate

Dated: 22 November 2019

Date(s) of hearing:	9 September 2019
Applicant:	In person
Solicitors for the Respondent:	Ms T Hibberd - Department of Human Services

APPENDIX

Documents received:

1. Various medical reports addressed “To whom it may concern” dated 12 January 2018; 22 January 2018; and 1 May 2019 prepared by Dr Aiman Alsayad relating to various conditions;

2. Various referral letters from Dr Aiman Alsayad including:

   (a)7 July 2017 – to Dr Nazneed Akhter for opinion and management of neck, shoulder, jaw and back pain following  car accident;

   (b)7 July 2017 – to Medhat Metry for onion and management of PTSD;

   (c)2 November 2017 – to the audio hearing clinic for opinion and management of hearing problem following car accident;

   (d)20 November 2017 – to Mrs Rania Wansa for opinion and management of neck, back and shoulder pain following car accident;

   (e)20 November 2017 – to Mr Nadeem Sheikh for opinion and management of neck, back and shoulder pain following car accident;

   (f)23 November 2017 – to Dr Hani Kammoun relating to jaw and teeth fracture following car accident;

   (g)23 November 2017 – to Dr Younan re PTSD;

   (h)11 December 2017 – to Dr Alan Cheng for management blocked nose, nasal bleeding and headache following car accident;

   (i)11 December 2017 – to Dr Bassel Hassan for opinion and management relating to post accident injuries;

   (j)11 January 2018 – to Dr Ishrat Ali for opinion and management for depression/depression disorder following car accident.

3. The applicant also provided various reports including:

   (a)Various documents relating to motor vehicle accident on 15 May 2017 including Discharge Referral from Bankstown Hospital;

   (b)Undated letter (marked A14) from Dr Nazneed Akhter addressed to whom it may concern following car accident;

   (c)A report dated 5 March 2018 by Dr Jeff Bertucen, consultant psychiatrist, Assess Medical Group;

   (d)A report (Impairment Assessment) dated 5 March 2018 by Dr Jeff Berucen, prepared at request of Mr Barakat (AJB Lawyers);

   (e)A report by Dr James Bodel dated 20 March 2018 assessing impact of injuries following car accident. Report notes This lady has had minimal treatment.  She has not stabilised.  I do anticipate that she will make further progress over time.

   (f)A report (Impairment Assessment) dated 20 March 2018 from Dr James Bodel;

   (g)Letter dated 3 September 2018 from Dr Monir Younan to Dr AIman Alsayad following interview with applicant;

   (h)A report (Impairment Assessment) dated 8 November 2018 from Dr Ken Howison to Mr Adrian Barakat, AJB Lawyers, relating to impairment loss for ear, nose and throat impairment;

   (i)A letter dated 9 April 2019 from Medhat Metry, MM Psychological Support Services relating to ongoing treatment for Anxiety and Depression;

   (j)A letter dated 13 April 2019 from Dr Hecham Alhajali to Dr Alsayad relating to management of anxiety/PTSD diagnosing chronic symptoms most likely schizophrenia and emotional dysregulation and limited independent living.

   (k)A letter dated 24 August 2019 from Dr Hecham Alhajali to Dr Alsayad relating to psychiatric assessment, confirming chronic psychotic symptoms and expansive mood due to Schizaffective Disorder. He states that she has permanent mental illness and would always require support.  She is unable to work or study currently and in the next 2 years, therefore I would support her application for DSP.

   (l)Various reports dated 14 May 2018 and 11 April 2019 relating to hearing loss.