Daccache and Secretary, Department of Social Services (Social services second review)
[2015] AATA 596
•14 August 2015
Daccache and Secretary, Department of Social Services (Social services second review) [2015] AATA 596 (14 August 2015)
Division
GENERAL DIVISION
File Number(s)
2014/6520
Re
Abdo Daccache
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 14 August 2015 Place Perth The Tribunal affirms the decision under review.
...(Sgd) CR Walsh.....................................................................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – qualification for unlimited portability of disability support pension – none of applicant’s impairments is a “severe impairment” which attracts 20 points on a single impairment table - decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 27(2) - s 27(4) – s 94(3B) – s 1218AA – s 1218AB - s 1218AAA(1)(a) – s 1218AAA(1)(c) - s 1218AAA(1)(d) – s 1218C
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6(3) – s 6(4) – s 6(5) – s 11(4)
CASES
Froude and Secretary, Department of Social Services [2014] AATA 808
Morton and Secretary, Department of Social Services [2014] AATA 949
Scrivener and Secretary, Department of Social Services [2014] AATA 457Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467; BC 200806838
SECONDARY MATERIALS
Guide to Social Security Law - Part 7
REASONS FOR DECISION
Senior Member CR Walsh
14 August 2015
INTRODUCTION
This application concerns the overseas portability rules for disability support pension (DSP) in Part 4.2 of the Social Security Act 1991 (SSA).
Mr Daccache would like to travel to Lebanon (his country of birth) for about 13 weeks to assist his elderly and ailing mother and continue to receive DSP. The general portability period for a DSP recipient travelling overseas temporarily was reduced from 6 weeks to 4 weeks, in a 12 month period, effective 1 January 2015. Whereas, broadly, DSP recipients with a “severe impairment”, and no future capacity to work, qualify for unlimited portability of their pension under s 1218AAA of the SSA. Consequently, the only way in which Mr Daccache’s desires can be met is if he is eligible for unlimited portability of DSP.[1]
[1] Refer to discussion under the heading “Alternative provisions to extend portability” in paragraphs 85 and 86 below and Part 7 of the Guide to Social Security Law.
Mr Daccache seeks review of a decision of the Social Security Appeals Tribunal (SSAT), dated 24 November 2014, that Mr Daccache does not qualify for unlimited portability of DSP under s 1218AAA of the SSA as he does not have a “severe impairment”, meaning an impairment that attracts 20 points or more under the impairment tables (Impairment Tables) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination), of which 20 points or more are under a single Impairment Table.[2]
[2] S 94(3B) of the SSA.
FACTUAL & PROCEDURAL BACKGROUND
Mr Daccache has been in receipt of DSP since 18 March 1999.
On 18 May 2007, a review of Mr Daccache’s ongoing eligibility for DSP was conducted on 18 May 2007[3] at which time Mr Daccache was assessed as having: (i) a “permanent” spinal disorder, which rated 10 points on Table 5.2 of the Impairment Tables; and (ii) “permanent” osteoarthritis, which rated 10 points on Table 4 of the Impairment Tables. Mr Daccache was also assessed as having a “continuing inability to work” because he has considered to be unable to perform his usual work for more than 30 hours per week within the next 2 years and he was not considered to be able to work for more than 30 hours per week in the next 2 years even with retraining or reskilling.
[3] This assessment was conducted using the Impairment Tables formerly contained in Schedule 1B of the SSA. These Impairment Tables were replaced by the current Impairment Tables on 1 January 2012.
On 16 October 2013, Mr Daccache requested that his medical condition be assessed under the Impairment Tables to consider whether he is eligible for indefinite portability of DSP.
Mr Daccache provided further information about his medical conditions to Centrelink and, on 25 March 2014, was referred to a job capacity assessment. (That is, because of his request for indefinite portability of his DSP, Mr Daccache was required to undergo a review of his qualification for DSP).
On or about 31 July 2014, Mr Daccache provided to Centrelink various medical reports regarding the medical conditions of his mother, who resides in Lebanon.
On 15 August 2014, a Centrelink officer made a decision that Mr Daccache was not eligible for indefinite portability and that his entitlement to DSP would be cancelled from 26 September 2014 because his impairments no longer rated 20 points on the Impairment Tables (Original Decision).
On 15 August 2014, Mr Daccache sought internal review of the Original Decision.
On 4 September 2014, a Centrelink authorised review officer (ARO) varied the original decision, deciding that Mr Daccache:
(i)continued to be eligible for DSP, as his lower leg condition rated 20 points on Table 3 of the Impairment Tables (Lower Limb Function); and
(ii)was not eligible for indefinite portability of his DSP, because he had some future work capacity (ARO Decision).
On 15 September 2014, Mr Daccache sought review of the ARO decision by the SSAT.
On 24 November 2014, the SSAT affirmed the ARO Decision (SSAT Decision). In the SSAT Decision, the SSAT concluded:
Conclusion
35.The Tribunal finds that Mr Daccache does not have a severe impairment within the meaning of subsection 94(3B). As he fails to meet a qualifying condition of section 1218AAA of the Act, Mr Daccache’s maximum portability period is not an unlimited period.
36.The Tribunal has found that Mr Daccache has impairments which attract 10 points on the Impairment Tables, which is less than the 20 points or more required to qualify for disability support pension. However, a decision on the disqualification is not before the Tribunal.
That is, in the SSAT Decision, although finding that Mr Daccache’s impairments attracted less than 20 points on the Impairment Tables it declined to review the cancellation of DSP issue.
On 16 December 2014, Mr Daccache applied to the Administrative Appeals Tribunal (AAT) for a review of the SSAT Decision.
ISSUES
Consequently, the only issue for consideration by the Tribunal is whether Mr Daccache is qualified for unlimited portability of his DSP. This requires consideration of:
(i)whether Mr Daccache has a “severe impairment”, as defined in s 94(3B) of the SSA;
(ii)if so, whether Mr Daccache is likely to have that severe impairment for at least 5 years;
(iii)whether the severe impairment is likely to prevent Mr Daccache from doing any work independently of a program of support in the next 5 years: s 1218AAA(1) of the SSA.
RELEVANT LAW
Eligibility for unlimited portability of DSP – s 1218AAA
Section 1218AAA of the Social Security Act sets out the conditions that a person must meet to qualify for unlimited portability of DSP, as follows:
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. [Emphasis added]
“Severe impairment” is defined in s 94(3B) of the SSA as follows:
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.
In order for an impairment to be assigned an impairment rating under the Impairment Tables, the condition must be “fully diagnosed”, “fully treated” and “fully stabilized” at the time of assessment: s 6(3) and s 6(4) of the Impairment Tables Determination.
Section 6(5) of the Impairment Tables Determination provides that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following is to be considered:
(i)Whether there is corroborating evidence of the condition;
(ii)What treatment of rehabilitation has occurred in relation to the condition; and
(iii)Whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables Determination provides that, for the purposes of s 6(4)(c) and s 11(4) of the Impairment Tables Determination, an impairment is only “fully stabilized” if either:
(i)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
(ii) The person has not undertaken reasonable treatment for the condition and:
(a)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
(b)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Recently, the Tribunal has expressed competing views whether, when deciding whether a person is entitled to unlimited portability of DSP under s 1218AAA(1) of the SSA, it is required to assess the person’s condition as at the date of the Tribunal’s decision or as at the date on which the person advised Centrelink that they wish to travel overseas.
In Scrivener and Secretary, Department of Social Services [2014] AATA 537, Senior Member Kenny said at [6]:
The issue for determination is whether the applicant satisfied all of the requirements set out in s 1218AAA(1) of the Act. This must have been done the date on which he advised Centrelink that he was considering travel overseas. This was 22 March 2013 (“the relevant date”).
In Froude and Secretary, Department of Social Services [2014] AATA 808, Dr Denovan, Member said at [32]:
Ms Forsyth, for the respondent, correctly contends that this matter is to be distinguished from consideration of DSP eligibility, because in this matter the applicant does not have the benefit of the extra 13 week window in which the severity of his conditions can be assessed. Mr Froude’s impairments are to be assessed at the time he applied for indefinite portability. There is no evidence to suggest Mr Froude’s conditions have changed to any material degree since the date of application.
However, in Morton and Secretary, Department of Social Services [2014] AATA 949 (Morton), I said at [48]:
The Secretary contends that the relevant date for the purposes of s 1218AAA(1) of the SSA is the date on which Mr Morton advised Centrelink that he was considering travelling overseas, namely 30 January 2013. This contention is based on what the Tribunal said in Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [6]. I do not accept this contention. There is nothing in s 1218AAA of the SSA, the other provisions of the SSA, associated legislation or relevant extrinsic materials to support this proposition. As the High Court made clear in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467; BC200806838, subject to any indication to the contrary, the task of the AAT is to make the correct and preferable decision based on the facts and circumstances as they exist at the time of its decision.
The Secretary’s contention is that the preferred approach is the approach taken by me in Morton. On this approach, it is open to the Tribunal to take into account all evidence of Mr Daccache’s medical conditions which is available at the time of the hearing of his application. Following what I said in Morton, these reasons consider Mr Daccache’s qualification for unlimited portability of his DSP based on the relevant medical evidence to date, as set out below.
MEDICAL EVIDENCE[4]
X-ray of left knee and lower leg and lumbar sacral spine by Dr E Brecher, Radiologist, dated 28 October 2013
[4] In chronological order.
The “Report” on Mr Daccache’s left knee x-ray, dated 28 October 2013, reads:
There is an old healed fracture of the left lateral tibial plateau. There is moderate heterogeneity of mineralisation of the proximal left tibia bone. There is no evidence of left-sided knee effusion. The left knee is located in anatomic position.
The “Report” on Mr Daccache’s lumbar spine x-ray, dated 28 October 2013, reads:
There is mild kyphosis of the lumbar spine, possibly positional in nature or due to muscle spasm. There is no evidence of an acute fracture or subluxation of the lumbar spine. There is mild to moderate degenerative disc disease located at the L4/L5 level. There is no evidence of a pars defect of the lumbar spine.
There is mild levoconvex scoliosis of the lumbar spine. There are surgical clips overlying the right hemipelvis.
Both sacroiliac joints are normal.
The “Report” on Mr Daccache’s lower leg x-ray, dated 28 October 2013, reads:
There is no evidence of an acute fracture of the left tibiofibular bones. There is an old healed fracture of the lateral tibial plateau. There is vertical radiolucency overlying the lateral tibial plateau which could potentially represent a residual radiolucent fracture line.
There are ghost defects located within the proximal shaft of the left tibial bone related to prior surgical hardware. Please correlate clinically. The left ankle and knee joints are intact.
CT of lumbar spine by Dr E Brecher, Radiologist, dated 10 November 2013 (Letter from Mr Daccache to Tribunal, dated 17 January 2015)
Findings and observations from the CT of Mr Daccache’s lumbar spine were summarised in the report, dated 10 November 2015, as follows:
There is mild to moderate degenerative disc change located at the L3-L4 level and mild degenerative disc disease located at the L4-L5 level. There is grade 1 retrolisthesis of L3 on L4 and L4 on L5 of up to 0.3 cm. There is mild kyphosis of the upper lumbar spine.
Centrelink Medical report for DSP by Dr R Bhasin GP, dated 2 December 2013
Dr Bhasin described Mr Daccache’s condition with the most impact as “chronic pain following left tibial plateau fracture”, with a date of onset of 12 July 1992. The current treatment for the condition was Panadol, Mobic and Temazapan. Future or planned treatment would be as required, such as analgesia or referral to a pain clinic. The current symptoms of this condition were said to include constant pain in both lower legs and knee joints and parathesia in both legs. The impact of this condition on Mr Daccache’s ability to function was said to include limited endurance due to chronic pain, walking with a limp and using crutches to get around, and being very anxious and distressed most times. Dr Bhasin said that the impact of the condition would continue for more than 5 years and remain unchanged.
Dr Bhasin described Mr Daccache’s second condition as chronic back pain due to degenerative disc disease and a large synovial cyst compressing L5 nerve root, with a date of onset of 1992. Mr Daccache was referred to a neurosurgeon on 2 December 2013 and current treatment also included Panadol and Mobic. A current symptom was back pain that was persistent and radiated down both legs. The impact on Mr Daccache’s ability to function was said to include limited endurance due to pain, limited mobility due to pain and very anxious and distressed by pain. Dr Bhasin considered that the impact of this condition was likely to persist for more than 5 years and deteriorate over this time.
Dr Bhasin also noted that Mr Daccache had other conditions that were generally well- managed and cause limited impact on his ability to function. These conditions are severe anxiety, hypertension and GORD.
Job Capacity Assessment Report, dated 25 March 2014 (T25, p97)
Mr Daccache was referred to a face to face job capacity assessment (JCA) conducted by a rehabilitation counsellor.
The assessor found that Mr Daccache’s lower limb condition was permanent and fully diagnosed, fully treated and fully stabilised. An impairment rating of 10 points on Table 3 was recommended on the basis that Mr Daccache cannot walk far outside his home and needs to drive to get to shops and local facilities, and that he is able to use public transport or a motor vehicle and walk around a shopping centre or supermarket.
In the supporting reasons, the assessor noted that Mr Daccache said that he can use public transport, but prefers to use his own vehicle. He independently goes to the shops and uses the trolley as a ‘crutch’. Mr Daccache reported to the assessor that he is independent in all home activities although he paces himself accordingly.
The assessor found that Mr Daccache’s spinal condition was permanent and fully diagnosed, but was not fully treated and stabilised, with Mr Daccache having recently been referred to a neurosurgeon.
The assessor noted that Mr Daccache’s anxiety, hypertension and GORD were noted as having minimal impact on his ability to function.
Mr Daccache’s baseline work capacity was considered to be 8-14 hours per week, increasing to 15-22 hours per week with intervention.
Centrelink Health Professional Advisory Unit Opinion by Dr C Minogue, dated 1 May 2014 (T26, p103)
Dr Minogue, of Centrelink’s Heath Professional Advisory Unit (HPAU), reviewed the various medical evidence that has been provided to Centrelink throughout Mr Daccache’s DSP case, including the evidence provided in late 2013, and agreed with the job capacity assessor that Mr Daccache was no longer qualified for DSP.
Medical report by Dr T Mwiti, Department of Pain Management, dated 22 July 2014
In this medical report, dated 22 July 2014, Dr Mwiti said:
·Mr Daccache presented with a longstanding history of worsening back pain;
·the low back pain is described as dull and constricting, radiating to the gluteal region, aggravated by lying supine for lengthy periods and relieved by change of position;
·there is associated weakness of the lower limbs within increasing difficulty in walking;
·the leg pain is described as electric shock-like that begin from the knees and spread to the ankles and is described as distinct from the back pain;
·Mr Daccache also reports on and off neck pain, which is a dull ache to the shoulders with no associated weakness or sensory loss;
·Mr Daccache lives alone and is functional, does housework and gardening;
·upon examination, Mr Daccache was found to be in fair general condition, but was preoccupied with pain and walked with a crutch;
·examination findings included the following:
(i)back examination showed normal curvature, tenderness in the left lumbrosacral paraspinal regional, limited extension and left rotation motion of the lumbar spine, normal range of motion on the cervical spine;
(ii)upper limb examination showed upper limbs were essentially normal; and
(iii)lower limb examination showed surgical scar on left lower limb, left leg colder than the right, slightly tender swelling on the anterior aspect of the left leg, non-pulsatile, good ranges of motion across all the joints of the lower limbs, normal muscle bulk and tone, decreased strength on dorsiflexion of the left foot, hypoatgesia to pain prick and hypoaesthesia in the left L5 dermatome; and
·in view of worsening back pain and weakness of the lower limbs since the last CT scan, a neurosurgical review was recommended.
Notes of telephone conversation between Dr Bhasin and the ARO on 4 September 2014
Notes of a telephone conversation between the ARO and Dr Bhasin, on 4 September 2014, state:
I advised Dr Bhasin that Abdo told me that he does require assistance from other people at times with walking and standing from a sitting position. I asked Dr Bhasin if Adbo would require assistance from another person to walk, stand from a sitting position and use public transport. He said yes, that going by Abdo’s physical state he would need assistance from other people and he would definitely need assistance from others with using public transport.
I noted that Dr Bhasin said in his medical report that Adbo was being referred to a neurosurgeon but his condition was still expected to deteriorate. Dr Bhasin said it will get worse with age. He said that treatment by a neurosurgeon won’t cure the condition but it might provide relief.
I asked Dr Bhasin about Abdo’s work capacity. Dr Bhasin said he was aware that Abdo had done some work as a translator until he couldn’t carry on with it any more. He said that Abdo should be capable of this work again, but for less than 15 hours per week.
Letter from Ms F Pithawalla, Psychologist, undated (stamped by the SSAT as received on 24 November 2014)
An undated letter from Ms F Pithawalla, Psychologist, records that Mr Daccache had been a client of the counselling team at 360 Health + Community since 23 September 2014 and had so far attended 9 sessions.
Ms Pithawalla said of Mr Daccache that:
He identified his main concerns to be stress over portability period, anxiety, depression, poor sleep, pain management, not coping well and fleeting suicidal thoughts without plan or intent. Protective factors included his mom. Mr Daccache seemed motivated to implement strategies discussed.
Letter from Dr R Mernon, Chronic Pain Registrar, dated 9 December 2014
In his letter dated 9 December 2014, Dr R Menon summarised Mr Daccache’s conditions as:
chronic low back pain, synovial cyst protruding from the left L5/S1 facet compressing on L5 nerve root, previous multiple interventions for pain management, pain catastophising, on-going depression, hypertension.
Dr Menon also wrote that Mr Daccache was in poor spirits and his pain remained more or less unchanged. He further wrote that he had commenced Mr Daccache on a trial of Tramadol and trialled a cessation of pregabalin. Mr Daccache was referred to a further MRI for lumbar and cervical spine, but the results were not expected to show any significant difference or change, particularly requiring surgical intervention. The mainstay treatment was considered to be rehabilitation and exercise.
Letter from Dr R Bhasin, GP, to Dr R Sekhon, Psychiatrist, dated 13 January 2015
In a letter to Dr R Sekhon, Psychiatrist, dated 13 January 2015, Dr Bhasin advises that Mr Daccache’s current medication comprises Panadol Osteo, Ramance, Somac, Temaze and Tramadol.
Letter from Dr R Sekhon, Psychiatrist, to “Whom it May Concern”, dated 11 February 2015
In a letter dated 11 February 2015, Dr Sekhon reports that he conducted a comprehensive psychiatric review on 11 February 2015. Dr Sekhon concluded that Mr Daccache has the following chronic difficulties:
1. Major depressive disorder
2. Chronic post-traumatic stress disorder
3. Chronic/complex pain
4. Psychosocial difficulties and social isolation.
In relation to Mr Daccache’s psychiatric symptoms, Dr Sekhon made the following comments:
In regards to his psychiatric symptomogly, Mr Daccache gives a 22 year history of un-wellness due to the impact of the [1992 motorcycle] accident on his physical health, earning capacity and marriage. His main symptoms include pervasive depressed mood, impaired energy, anhedonia, anxiety regarding his future, fleeting thoughts of suicide (various plans including lacerating his wrists and walking into oncoming cars), helplessness and hopelessness. In addition, the accident has precipitated post-traumatic symptoms in regards to his experiences in Lebanon during the Civil War, including flashbacks and nightmares, poor sleep, increased startle response and nocturnal panic episodes. On further questioning, there was no evidence of mania, psychosis, malingering or a factitious disorder. He denied thought of self-harm or of revenge.
He is seeing a psychologist regularly and plans to continue to do so.
On mental examination, Mr Daccache presented as a well-groomed gentleman who was in obvious discomfort during the interview. He made good eye contact and a good rapport was established. His mood was depressed and affect was restricted. His speech was normal and he displayed no signs of formal thought disorder. His thought content was centred around his chronic condition and its impact on his quality of life and functioning, admitting to fleeting thoughts of suicide (with plans/the deterrent being the impact on his mother), denied thoughts of self-harm or of harming others and there were no delusions evident. There were no perceptual anomalies. He was cognitively intact and presented as a gentleman with average intelligence. His judgement was intact and he had insight into his condition.
Dr Sekhon also suggested that Mr Daccache would be “debilitated by his conditions indefinitely and [would] require at least 10 years of treatment” and that he would be “unable to return to any form of employment”. Dr Sekhon recommended that Mr Daccache’s treatment be regular psychiatric reviews, regular clinical psychology input, medication (with the anti-depressant Mirtazapine being commenced) and regular GP and pain specialist review.
Letter from Dr Paras Malik, Chronic Pain Registrar, to Dr R Bhasin, dated 25 February 2015
In a letter to Dr R Bhasin, dated 25 February 2015, Dr Paras Malik, Chronic Pain Registrar, made the following comments in relation to Mr Daccache’s symptoms and functional capacity:
He reports significant discomfort in both legs, the left more so than the right and is described as a burning and heaviness sensation from the knees to the ankles bilaterally with sharp stabbing pain experienced in the left anterior shin. Abdo also reports a sensation of increased warmth in the left leg since prior sympathectomy. His lower leg symptoms are aggravated by certain positions whilst seated and his neck pain is not as bothersome as his leg pain. ...
Functionally. Abdo mobilises reasonably well with one crutch and performs light gardening however this is become increasing difficult for him. He is still able to cook for himself. He also finds reading and language studies are helpful to him.
Letter from Dr R Sekhon, Psychiatrist, to “Whom it May Concern”, dated 30 July 2015
In a letter to “Whom it May Concern”, dated 30 July 2015, Dr Sekhon, Psychiatrist, states that Mr Daccache remains “debilitated” by major depressive order, chronic post-traumatic stress disorder, chronic complex pain and psychosocial difficulties and that:
He is unwell from his major depressive disorder and unable to work for at least 10 years. This condition is fully diagnosed and treated and stabilized.
ANALYSIS
Receiving DSP – a 1218AAA(1)(a)
It is not in dispute that Mr Daccache is receiving DSP and therefore satisfies s 1218AAA(1)(a) of the SSA: refer to paragraph 17 above.
Severe impairment – s 1218AAA(1)(b), (c) & (d)
To have a “severe impairment”, as defined in s 94(3B) of the SSA and for the purposes of s 1218AAA(1) of the SSA, Mr Daccache would need to have an impairment that attracts 20 points on a single Impairment Table: refer to the definition of “severe impairment” in paragraph 18 above.
Based on the relevant medical evidence (summarized above), the Tribunal makes the following findings in relation to whether any of Mr Daccache’s impairments (being a lower leg condition, spinal condition, and mental health conditions) attract at least 20 points on a single Impairment Table and, therefore, constitute a “severe impairment” as defined in s 94(3B) of the SSA and for the purposes of s 1218AAA(1)(a),(b) and (c) of the SSA.
Lower leg condition
Mr Daccache’s lower leg condition is fully diagnosed, fully treated and fully stabilised and can therefore be allocated an impairment rating. The appropriate table to consider is Table 3 of the Impairment Tables (Lower Limb Function).
To attract 20 points under Table 3 of the Impairment Tables the following criteria must be satisfied:
(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), that is, 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 functional impact of Mr Daccache’s condition has been described by medical experts as follows:
·Dr Bhasin, in the medical report for DSP dated 2 December 2013, describes the impact of this condition as causing limited endurance due to chronic pain, walking with a limp and using crutches to get around (see paragraph 31 above);
·Dr Mwiti, in the medical report dated 22 July 2014 notes that Mr Daccache faces increasing difficulty in walking, but further notes that he lives alone and is functional, does housework and gardening (see paragraph 41 above);
·Dr Bhasin verbally told the ARO on 4 September 2014 that Mr Daccache would require assistance from another person to stand from a sitting position, walk and use public transport (see paragraph 42 above); and
·Dr Malik, in his letter dated 25 February 2015, said that Mr Daccache mobilises reasonably well with 1 crutch and performs light gardening, although this is becoming more difficult (see paragraph 51 above).
Mr Daccache provided the following evidence about the functional impact of his leg condition to the JCA assessor:
·He cannot walk far outside the home and needs to drive to shops and other local facilities;
·He is able to use public transport but prefers to use his own vehicle;
·He is able to independently walk around a shopping centre and uses a shopping trolley as a crutch; and
·He is independent in all home activities but paces himself accordingly: see paragraph 36 above.
Mr Daccache provided the SSAT with the following information about the functional impact of his leg condition:
·he is in pain 24/7 and the pain is in both legs and knees;
·he lives alone and takes care of all his own self care needs including washing, dressing and cooking. He does things at his own pace;
·he can sit for about an hour before needing to move. Getting up from a sitting position is difficult and he needs to use his crutch to do so;
·he is able to mow the lawn;
·He goes for a walk every day and can walk for about 3km before he has to stop and rest;
·He does his own shopping using a basket. He only ever buys enough at one time for the basket to be a comfortable weight. He does not like using the shopping trolleys as he has difficulty controlling them while using a clutch; and
·When he travels overseas he is able to board the aircraft unaided using a crutch.
Dr Bhasin’s oral evidence to the ARO, on 4 September 2014, is the only evidence to suggest that Mr Daccache is unable to (i) walk around a shopping centre or supermarket without assistance; (ii) walk from the carpark into a shopping centre or supermarket without assistance; and (iii) stand up from a sitting position without assistance, and that he requires assistance to use public transport: see paragraph 42 above.
However, this evidence directly contradicts Mr Daccache’s own evidence to the JCA assessor (see paragraphs 35 and 36 above), the SSAT and the AAT. Mr Daccache’s evidence is that he lives alone and does his own shopping. This would not be possible if he required the assistance of another person with walking around a supermarket, walking from the carpark to a supermarket and standing from a sitting position.
Consequently, Mr Daccache’s impairment from his lower leg condition does not rate 20 points on Table 3 of the Impairment Tables. As such, Mr Daccache’s lower limb condition does not constitute a “severe impairment” as defined in s 94(3B) of the SSA and for the purposes of s 1218(1) of the SSA.
Spinal condition
In his report dated 2 December 2013, Dr Bhasin noted that on 2 December 2013 he had referred Mr Daccache to assessment by a neurosurgeon: see paragraph 32 above. Neurosurgical review was also recommended by Dr Mwiti in his report of 22 July 2014: see paragraph 41 above. Nothing in the more recent evidence provided to the Tribunal suggests that the neurosurgical review has taken place. It can be anticipated that upon review by a neurosurgeon and implementation of treatment recommended by a neurosurgeon, Mr Daccache may experience some functional improvement.
Based on the relevant medical evidence, Mr Daccache’s spinal condition is not presently “fully treated” and “fully stabilized” (nor was it when he applied for unlimited portability of his DSP on 16 October 2013). Accordingly, Mr Daccache’s spinal condition cannot be assigned a rating on the Impairment Tables: see paragraph 19 above.
Even if the Tribunal were to find that Mr Daccache’s spinal condition was or is “fully diagnosed”, “fully treated” and “fully stabilized”, the condition does not attract 20 points under the relevant Impairment Table, being Table 4 of the Impairment Tables (Spinal Function).
To attract 20 points under Table 4 of the Impairment Tables the following conditions must be met:
(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.
The following medical evidence addresses functional impact of Mr Daccache’s spinal condition:
·In his report dated 2 December 2013, Dr Bhasin describes the functional impact as limited endurance due to pain and limited mobility due to pain (see paragraph 32 above); and
·In his report dated 22 July 2014, Dr Mwiti noted that upon examination, there was limited extension and left rotation motion of the lumbar spine and normal range of motion on the cervical spine (see paragraph 41 above).
There is no evidence establishing that Mr Daccache is unable to perform any overhead activities or turn his head or bend his neck without moving his trunk and such a finding would be inconsistent with the evidence of Dr Mwiti that Mr Daccache has normal range of motion on his cervical spine.
Although there is evidence to suggest that Mr Daccache has problems with his lumbar spine and may have limited mobility due to pain, there is no evidence establishing that this limitation in mobility is so extensive that Mr Daccache is unable to bend forward to pick up a light object placed on a table, as required by Table 4 of the Impairment Tables. In his evidence before the SSAT, Mr Daccache said that he can remain seated for about an hour before needing to move, so it follows that he could remain seated for at least 10 minutes.
Consequently, Mr Daccache’s spinal condition does not constitute a “severe impairment” as defined in s 94(3B) of the SSA and for the purposes of s 1218AAA(1) of the SSA.
Mental health conditions
The medical evidence indicates that Mr Daccache suffers from a number of mental health conditions, including severe anxiety, depression, major depressive disorder, chronic post-traumatic stress disorder, chronic /complex pain and psychosocial difficulties and social isolation: see paragraphs 48, 49 and 52 above.
At the time Mr Daccache asked for his eligibility for unlimited portability to be tested, there was no evidence to support a finding that his mental health condition was “permanent” and “fully diagnosed”, “fully treated” and “fully stabilized”. There was no evidence establishing that Mr Daccache had recently consulted a psychiatrist or psychologist, or that he was receiving any treatment in relation to his mental health conditions.
However, in his letter, dated 11 February 2015, Dr Sekhon, Psychiatrist, states that Mr Daccache has a major depressive disorder, chronic post-traumatic stress disorder, chronic/complex pain and psychological difficulties and social isolation: refer to paragraph 48 above. Based on Dr Sekhon’s report, the Tribunal considers that Mr Daccache’s mental health conditions can now be accepted as having been “fully diagnosed”.
In a subsequent letter, dated 30 July 2015, Dr Sekhon states that Mr Daccache is:
…unwell from his major depressive disorder and unable to work for at least 10 years. This condition is fully diagnosed treated and stabliised. [Emphasis added]
Based on Dr Sekhon’s report, dated 30 July 2015, the Tribunal accepts that Mr Daccache’s mental health condition is fully diagnosed, fully treated and fully stabilized: see paragraph 52 above.
The issue then becomes whether this impairment attracts 20 points under a single Impairment Table (i.e. is a “severe impairment” as defined in s 94(3B) of the SSA and for the purposes of s 1218AAA(1) of the SSA). The appropriate Impairment Table to consider is Table 5 of the Impairment Tables (Mental Health Function).
To attract 20 points under Table 5 of the Impairment Tables the following criteria must be satisfied:
The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
There is limited evidence on the functional impact of Mr Daccache’s mental health condition. However, based on the presently available evidence, it is not open to conclude that Mr Daccache has severe difficulties with any of the criteria in (1)(a) to (f) of Table 5 of the Impairment Tables, as set out immediately above.
As such, the Tribunal considers that Mr Daccache’s mental health conditions do not constitute a “severe impairment” as defined in s 94(3B) of the SSA and for the purposes of s 1218AAA(1) of the SSA.
Conclusion on severe impairment
For the above reasons, the Tribunal finds that Mr Daccache does not have any impairment that rates 20 points on a single Impairment Table. Consequently, Mr Daccache does not meet the requirements for unlimited portability of his DSP in s 1218AAA(1)(b) of the SSA: see paragraph 17 above.
Severe impairment for at least 5 years
It follows from the Tribunal’s finding that that Mr Daccache does not have a “severe impairment”, as defined in s 94(3B) of the SSA and for the purposes of s 1218AAA(1)(b) of the SSA, that Mr Daccache does not have a “severe impairment for at least the next 5 years” for the purposes of s 1218AAA(1)(c) of the SSA: see paragraph 17 above.
Work capacity in next 5 years
It follows from the Tribunal’s finding that that Mr Daccache does not have a “severe impairment”, as defined in s 94(3B) of the SSA (and for the purposes of s 1218AAA(1)(b) and (c) of the SSA), that Mr Daccache does not have a “severe impairment” that “would prevent [him] from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next five years” for the purposes of s 1218AAA(1)(d) of the SSA.
In any event, the weight of evidence, including evidence from Mr Daccache himself, does not support a finding that Mr Daccache would be unable to perform any work independently of a program of support within the next 5 years.
Alternative provisions to extend portability
For completeness, the Tribunal notes that s 1218AAA of the SSA is not the only means by which a DSP recipient may have his or her portability extended. However, in Mr Daccache’s case, s 1218AAA of the SSA is the only relevant provision for consideration.[5]
[5] See, for example, s 1218AA of the SSA (Unlimited portability period for disability support pension – terminally ill overseas disability support pensioner), s 1218AB of the SSA (Extended portability period for disability support pension) and s 1218C of the SSA (Extension of person’s portability period – general).
For example, s 1218C of the SSA (Extension of person’s portability period – general), contains a discretion for the general extension of portability and one of the factors that may warrant extended portability includes the serious illness of a family member of the person (as is the case with Mr Daccache’s mother). However, portability can only be extended pursuant to s 1218C of the SSA where the event that gives rise to the extended portability request occurs while the person is already outside of Australia and before the person’s general portability period expires. Therefore, it cannot apply in the present case where Mr Daccache is seeking to extend his portability prior to leaving Australia in order to enable him to spend a longer period with his unwell mother in Lebanon.
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding 87 (eighty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ....(Sgd) A Tran....................................................................
Administrative Assistant
Dated 14 August 2015
Date of hearing 6 August 2015 Applicant In person Representative for the
RespondentMs A Ladhams Solicitors for the Respondent
Australian Government Solicitor
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