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

Darwiche and Secretary, Department of Social Services (Social services second review) [2019] AATA 1476 (27 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4421
Re:Hoda Darwiche
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:27 June 2019
Place:Sydney

The decision under review is affirmed.
...........................[SGD]............................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – right lower limb condition – mental health condition – where right lower limb condition fully diagnosed, treated and stabilised – where mild functional impairment – where mental health condition not diagnosed, treated or stabilised during the claim period – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Cth)
REASONS FOR DECISION
Professor R McCallum AO, Member
27 June 2019
BACKGROUND

Ms Hoda Darwiche is the Applicant in these proceedings. On 29 April 2016, Ms Darwiche became a victim of crime. She was having a cup of coffee in a Bankstown café when a man wearing a mask came into the café and shot dead a man who was sitting behind her.
Ms Darwiche was hit by a stray bullet which passed through her leg above her right ankle. The bullet broke bones and severed nerves. This impairment is best descried as a right distal tibia fracture. Ms Darwiche states that she also suffers from post-traumatic stress disorder (PTSD) and depression.
Ms Darwiche and her husband have separated. Ms Darwiche lives in a house with her two sons. One son is in secondary school and the younger son is still in primary school.
Ms Darwiche’s husband has the boys from Friday to Sunday each week which means that Ms Darwiche looks after them from Monday to Thursday. Ms Darwiche receives newstart allowance.
On 18 November 2016, Ms Darwiche lodged a claim for disability support pension (DSP). However on 21 August 2017 the Department of Human Services, which is better known as Centrelink, refused her claim.
Ms Darwiche seeks reviews
Ms Darwiche sought review from an authorised review officer (ARO). However, on 20 February 2018 the ARO affirmed the original decision.
Ms Darwiche sought review from the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1). However, on 2 July 2018 the AAT1 affirmed the decision of the ARO.
Ms Darwiche now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).
The relevant legislation
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Ms Darwiche’s circumstances subsection 94(1) relevantly provides:
Qualification for disability support pension
1A person is qualified for disability support pension if:
(a)The person has a physical, intellectual or psychiatric impairment; and
(b)The person’s impairment is of 20 points or more under the Impairment Tables; and
(c)One of the following applies:
(i) The person has a continuing inability to work;
(ii) …
Put simply, I must be satisfied; first, that Ms Darwiche has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Third, I must be satisfied that Ms Darwiche has a continuing inability to work.
The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. In Ms Darwiche’s circumstances, it relevantly provides as follows:
2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)...the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity-such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
…
The term “severe impairment” is explained in subsection 94(3B) of the SS Act as follows:
(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.
Participation in a Program of Support is explained in section 94(3C) of the SS Act as follows:
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
“Work” is defined in subsection 94(5) as follows:
work means work:
(a)that is for at least 15 hours per week 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.
These definitions are complex but, in essence, unless a person has a severe impairment – that is a single impairment assessed at 20 points under an Impairment Table – the person must have participated in a program of support.
Finally, Ms Darwiche’s impairments must be sufficient to prevent her from doing any work independently of a program of support for 15 hours a week within the next two years.
Two other matters require explanation. They are the 13 week qualifying period and the application of the Impairment Tables.
The 13 week qualifying period
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner; however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Ms Darwiche’s eligibility for DSP in the 13 week period commencing on the day on which Ms Darwiche’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Ms Darwiche qualified for DSP between 18 November 2016 and 17 February 2017.
The date of the AAT2 hearing was 18 June 2019 which is two years and four months after the end of the claim period.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33] The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
See also Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].
The Impairment Tables
The Impairment Tables are set out in the Determination which is subordinate legislation made under the SS Act. Paragraph 94(1)(b) of the SS Act obliges me to decide whether the impairments of Ms Darwiche are worth 20 points under the Impairment Tables. This requires a few words of explanation.
In 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 is 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:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)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.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “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”.
Paragraph 11(1)(c) of the Determination provides that “if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Finally, Table 5 of the Impairment Tables is titled “Mental health function”. Its introduction provides in part as follows:
Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Self-report of symptoms alone is insufficient.
There must be corroborating evidence of the person’s impairment.
THE HEARING
Ms Darwiche attended the hearing in person and she represented herself. She was accompanied by Mr Michael Khalil who is her carer.
Ms Darwiche gave evidence on oath with the assistance of an interpreter in the Arabic language. Ms Darwiche said that her lower limb impairment had become worse over the last two years.
In my view, Ms Darwiche did her best to assist the Tribunal.
Mr Michael Khalil also gave evidence by affirmation.
I accept that Mr Michael Khalil is Ms Darwiche’s carer. However, from his evidence I did not gain a complete understanding of the nature, duration and extent of the caring tasks which he undertook for Ms Darwiche.
CONSIDERATION
Paragraph 5.1 of the Respondent’s Statement of Facts, Issues and Contentions is as follows:
The Secretary acknowledges that Ms Darwiche had the following impairments during the qualification period for section 94(1)(a) of the Act:
a right lower limb condition; and
a mental health condition.
Having regard to the oral and written evidence before the Tribunal, I find that Ms Darwiche has a right lower limb condition and a mental health condition which satisfy the criterion for impairments under paragraph 94(1)(a) of the SS Act.
Therefore, the first issue which I am required to decide is whether any of Ms Darwiche’s impairments were fully diagnosed, treated and stabilised during the claim period. If I find that one or more of Ms Darwiche’s impairments were fully diagnosed, treated and stabilised during the claim period, I am required to assess them under the relevant Impairment Tables.
The second issue which I am required to decide is whether Ms Darwiche has a continuing inability to work. It will only be necessary to address this second issue if Ms Darwiche obtains an assessment of 20 points under the Impairment Tables.
I shall now examine Ms Darwiche’s impairments.
Ms Darwiche’s lower limb condition
As I noted above, Ms Darwiche was a victim of crime when she was hit by a stray bullet which passed through her leg above her right ankle. Bones were broken and nerves were severed. In medical terms, Ms Darwiche suffered a right distal tibia fracture.
I note the report from Dr Todd Gothelf dated 2 May 2018. Dr Gothelf is an orthopaedic surgeon.
Dr Gothelf wrote in part as follows:
Impression: Hoda [Ms Darwiche] is a 33 year old female who had a gun shot wound 29 April 2016, two years ago which resulted in permanent nerve damage to the superficial peroneal nerve and the tibial nerve. In addition she has a large area of chondral damage of the tibia and talar dome with some fill. She will certainly have permanent symptoms related to her nerve damage. The ankle may experience deep pain due to the chondral damage, and this can also deteriorate and result in arthritis of the ankle. I would consider a right ankle arthroscopy and debridement if Hoda has deep ankle pain. However, most of her pain today seems to be more nerve related. I am to see Hoda again if pain develops in the deep ankle to consider further treatment. If Hoda is interested exploring nerve surgery, she would have to see a nerve repair specialist. I have recommended physiotherapy to continue to help to restore better function.
While Dr Gothelf states that nerve surgery may be a future treatment, I accept Dr Gothelf’s view that Ms Darwiche has permanent symptoms related to her ankle damage.
From the oral and written evidence before the Tribunal, I find that Ms Darwiche’s lower limb condition was fully diagnosed, treated and stabilised during the claim period
Therefore, I am required to assess this impairment under Table 3 of the Impairment Tables. Table 3 is titled “Lower limb function”. I have to determine whether Ms Darwiche’s lower limb impairment has a mild (5 points), moderate (10 points), or severe (20 points) adverse impact when performing activities requiring the use of her legs or feet.
The descriptors in Table 3 for mild (5 points), and for moderate (10 points) are as follows.

Points

Descriptors

5

There is a mild functional impact on activities using lower limbs.

(1)       At least one of the following applies:

(a)       the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)       the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)       the person has some difficulty climbing stairs; and

(2)       At least one of the following applies:

(a)       the person is unable to stand for more than 10 minutes;

(b)       the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)       At least one of the following applies:

(a)       the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)       the person is unable to use stairs or steps without assistance; or

(c)       the person is unable to stand for more than 5 minutes; and

(2)       The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)       This impairment rating level includes a person who can:

(a)       move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)       move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

From the evidence before the Tribunal, and especially from the oral evidence of Ms Darwiche, I find that she does not fulfil the criteria specified in Table 3 for a moderate adverse impact when performing activities requiring the use of her legs or feet.
Under descriptor 1 for a moderate impact, at least one of the activities specified in paragraphs (a), (b) or (c) must apply. I shall examine these paragraphs in turn.
(a) Is Ms Darwiche unable to walk far outside her home and needs to drive or get other transport to local shops or community facilities?
In her evidence before the Tribunal, Ms Darwiche said that she sometimes uses a walking stick to assist with her mobility. She said that in summer she uses a walking stick twice a month. However, in winter, Ms Darwiche said that she uses the walking stick often as her leg gets stiff in winter. Ms Darwiche said that she can walk for ten minutes and then must have a rest.
In his evidence, Mr Michael Khalil said that he thought Ms Darwiche could walk for about 15 minutes before resting. No doubt she walks slowly. Ms Darwiche says that she drives to the shops to do grocery shopping.
Having regard to this evidence, I find that Ms Darwiche is able to walk outside her home for at least ten minutes.
(b) Is Ms Darwiche unable to use stairs or steps without assistance?
In her evidence, Ms Darwiche said that she can get upstairs. Sometimes she uses her bottom and she has to walk on her toes.
In his report dated 2 May 2018, Dr Tran says that Ms Darwiche can manage steps, although they are troublesome.
I find that Ms Darwiche can use stairs without assistance.
(c) Is Ms Darwiche unable to stand for more than 5 minutes?
In his report dated 2 May 2018, Dr Tran says that standing for more than ten minutes aggravates Ms Darwiche’s pain and swelling.
I find that Ms Darwiche is able to stand for more than five minutes.
Descriptor 2 for a moderate impact is joined to descriptor 1 by the conjunction (and). This means that the criteria in both descriptors must be fulfilled.
I find that Ms Darwiche does fulfil the criteria for descriptor 2.
In her evidence, Ms Darwiche said that she does drive her car to do the shopping. She is often accompanied by her oldest son. Ms Darwiche said that she walks around the supermarket and holds onto the trolley. Ms Darwiche said that she can reach up and put groceries into the shopping trolley.
In his evidence, Mr Michael Khalil said that she had driven her car to the shops and could walk around the supermarket albeit holding onto the shopping trolley.
However, as Ms Darwiche does not fulfil the criteria in descriptor 1, she cannot be assessed as having a moderate functional impairment under Table 3.
From the evidence before the Tribunal, I find that Ms Darwiche does fulfil the criteria in Table 3 for a mild adverse impact when performing activities requiring the use of her legs or feet. Ms Darwiche fulfils the criteria in descriptor 1 as she does have some difficulty walking to local facilities, walking around a supermarket and climbing stairs. Ms Darwiche does fulfil the criteria in descriptor 2 because she is unable to stand for more than 10 minutes.
I therefore find that Ms Darwiche’s lower limb condition has a mild adverse impact when performing activities requiring the use of her legs or feet. I assess her lower limb conditions at 5 points under Table 3 of the Determination.
Ms Darwiche’s mental health condition
As I noted above when examining the Determination, the diagnosis of a mental condition must be made by a psychiatrist or by a clinical psychologist.
Ms Darwiche first consulted Dr John Roberts who is a psychiatrist, on or about 1 May 2018. This was more than one year and two months after the end of the claim period. In his detailed report dated 11 May 2018, Dr Roberts made a provisional diagnosis of PTSD.
Given that this provisional diagnosis was well outside the claim period, I find that Ms Darwiche’s mental health condition was not fully diagnosed during the claim period.
Even if I was minded to regard her PTSD as fully diagnosed during the claim period, it is clear that this mental health condition was not fully treated and stabilised during the claim period.
In his report dated 11 May 2018, Dr Roberts wrote as follows:
In regard to medication I think it is reasonable to attempt to increase her intake of Efexor and assess response.
In regard to the medications taken it would be reasonable to, at a later date to discuss tapering her narcotic analgesia.
I have arranged to review her at a future date.
In his later report dated 11 June 2018, Dr Roberts wrote as follows:
Ms Hoda [Ms Darwich] returned to see me on 29 May 2018.
She referred to the taking of Efexor XR 75mgms per day commenting that if she feels she wants more she takes more.
I indicated to Ms Darwiche that she was not using the Efexor optimally and that she should try to build her dose of Efexor up so that she is taking a target dose of 225 to 300mgms.
I suggested that she increase her Efexor by 75mgms every five days.
Ms Darwiche commented that she would like to return to work and travel in tourism.
In terms of her formal diagnosis, I am of the view that as previous stated that she fulfils the diagnostic criteria for PTSD.
I have arranged to review her at a future date and will write to you as to her developments as treatment continues.
These two reports show that Ms Darwiche’s PTSD was still being treated by the use of medications in May and June of 2018.
I therefore find that Ms Darwiche’s mental health condition was not fully treated and stabilised during the claim period. Therefore, I am unable to rate it under Table 5 of the Impairment Tables. Table 5 is titled “Mental Health Function.”
As Ms Darwiche has only obtained a rating of 5 points under the Impairment Tables, she does not comply with paragraph 94(1)(b) of the SS Act and cannot qualify for DSP. Therefore, it is not necessary for me to examine whether Ms Darwiche has a continuing inability to work within the meaning of sub-paragraph 94(1)(c)(i) and (2) of the SS Act.
FINDINGS
In this decision, I have set out the evidence and the findings which I have made with respect to Ms Darwiche’s application for DSP. These findings are as follows:
First, I find that Ms Darwiche has a lower limb impairment and a mental health impairment and therefore fulfils the criteria in paragraph 94(1)(a) of the SS Act.
Second, I find that Ms Darwiche’s lower limb condition was fully diagnosed, treated and stabilised during the claim period, and was assessable at 5 points under Table 3 of the Impairment Tables.
Third, I find that Ms Darwiche’s mental health condition was not fully diagnosed, treated and stabilised during the claim period and could not be assessed under Table 5 of the Impairment Tables.
Fourth, as Ms Darwiche has only obtained a rating of 5 points under the Impairment Tables, she does not comply with paragraph 94(1)(b) of the SS Act and cannot qualify for DSP.
DECISION
The decision under review is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

.................................[SGD].......................................
Associate
Dated: 27 June 2019

Date(s) of hearing: 18 June 2019

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

[2019] AATA 1476

27 June 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Natural Justice

Procedural Fairness

Appeal

Date(s) of hearing:	18 June 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services