Dehen and Secretary, Department of Social Services

[2014] AATA 90

[2014] AATA 90

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1528
Re	Abdala Dehen
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member Prof R McCallum, Member
Date	10 January 2014
Date of written reasons	24 February 2014
Place	Sydney

The Tribunal affirms the decision under review.

.....[Sgd]...................................................................

Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - applicant seeks indefinite portability of disability support pension - whether applicant has a severe impairment - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 94(3B), 1217, 1218AAA

REASONS FOR DECISION

Ms N Bell, Senior Member
Prof R McCallum, Member

24 February 2014

1. At the conclusion of the hearing of this application the terms of the decision intended to be made and the reasons for it were stated orally. After service upon the parties of a copy of the decision that was made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish it with a statement in writing of the reasons of the Tribunal for the decision.

2. The following statement of reasons, amended and reordered to better exhibit the Tribunal’s reasoning, is drawn from the transcript of the proceedings by Merrill Corporation, the Commonwealth Reporting Service.

3. Mr Dehen has been in receipt of disability support pension since December 1980 and in in July 2012, Mr Dehen lodged a claim for indefinite portability of his pension. Centrelink rejected his claim for indefinite portability. The decision was affirmed, on further internal review, by an authorised review officer and then by the Social Security Appeals Tribunal.

   ISSUES

4. Section 1218AAA(1) of the Act provides for the following criteria for unlimited portability for disability support pension:

   (a)the person is receiving disability support pension;

   (b)the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

   (c)the person will have that severe impairment for at least the next 5 years;

   (d)if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support.

5. It is not in dispute that Mr Dehen is in receipt of disability support pension and satisfies the first requirement of section 1218AAA(1).  The remaining requirements give rise to the issues in this application.

   DOES MR DEHEN HAVE A SEVERE IMPAIRMENT?

6. Section 94(3B) provides:

   Severe impairment

   (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.

7. Mr Dehen currently suffers from:

   (a)cervical spinal and spinal condition;

   (b)psychological condition;

   (c)osteoarthritis of the knees;

   (d)morbid obesity; and

   (e)other conditions, including diabetes, hypertension, sleep apnoea and gouty arthritis.

8. Mr Dehen identified his psychological, neck and back conditions as his biggest problems.

   Psychological condition 

9. Mr Dehen suffers from depression with anxiety disorder and post traumatic stress disorder and undergoes regular psychotherapy, and counselling and is on anti-depressant medications.

10. So turning first to Mr Dehen’s psychological condition and table 5, we were not able to find 20 points for you under that table. 

11. We know that Dr Chowdhury in his report date 8 July 2013 said that Mr Dehen had 20 points but in his report he based that on information which is very different from what you’ve told us today. 

12. We note that today at the hearing you were able to manage the documents that you brought with you, you gave us full answers to questions with lots of detail.  We note that even though you travel with some special seating and some assistance, you’re the person who looks after the immigration and customs things for yourself and your wife.  We found that that indicated that you are able to make decisions and able to concentrate on some things when necessary.  We cannot assess Mr Dehen at 20 points under table 5.

    Neck and back conditions

13. In relation to his spinal function, Mr Dehen sat in a chair in the hearing for much more than 10 minutes. We note that Dr Girgis in his report dated 10 December 2012, writes that Mr Dehen cannot sit for more than 10 minutes, but we observed Mr Dehen sitting for much longer than 10 minutes in the hearing. We find that we cannot assess Mr Dehen as having 20 points of impairments under Table 4.

14. We also note that Dr Girgis assigned a rating of 10 points under Table 1, the table relevant to ‘Functions requiring Physical Exertion and Stamina’. Dr Vuong’s report of 28 June 2013 stated that Mr Dehen’s “conditions have an assignment of 25 under the single impairment table.” In that report he didn’t relate it to the specific tables, it was a general statement of points. 

15. Dr Vuong spoke to the Authorised Review Officer in October 2012. In that conversation, Dr Vuong considered a ten point impairment rating under both Tables 1 and 4 to be appropriate.

16. We also looked at the report of Dr Moore of the Health Professionals Advisory Unit, dated 1 August 2013. We are aware that this Unit did not see or examine Mr Dehen. Dr Moore’s report lends support to the conclusion that Mr Dehen does not have a severe impairment under one impairment table based on the medical evidence provided.

17. Mr Dehen does not have a severe impairment as defined under section 94(3B) of the Act and therefore does not satisfy section 1218AAA(1)(b). It follows that he cannot be paid indefinite portability of his disability support pension.

    DECISION

18. The Tribunal affirms the decision under review.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Prof R McCallum, Member.

........[Sgd]................................................................

Associate

Dated 24 February 2014

Date of hearing	10 January 2014
Applicant	In person
Solicitors for the Respondent	Ms G Heggen, DHS Program Review & Litigation Branch