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

[2015] AATA 944

El Afchal and Secretary, Department of Social Services (Social services second review) [2015] AATA 944 (8 December 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5267
Re	Yehya El Afchal
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	8 December 2015
Place	Sydney

The Tribunal affirms the decision under review.

...........................[sgd].............................................

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – mental health condition – hearing condition - asthma - whether conditions fully diagnosed, treated and stabilised - impairment ratings – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

8 December 2015

1. Mr El Afchal is currently 19 years old and on 23 October 2013 he lodged a claim for Disability Support Pension (“DSP”) on the basis that he suffered medical conditions which were having an impact on his ability to function.

2. Mr El Afchal’s claim was rejected by Centrelink, both initially and on internal review, on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy s 94(1)(b) of the Act, in that he did not have an impairment of 20 points or more under the Impairment Tables.

3. In a decision dated 30 September 2014 the Social Security Appeals Tribunal (“SSAT”) found that El Afchal’s permanent conditions did not reach the required threshold of 20 points under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act.

4. In these proceedings Mr El Afchal seeks review of the SSAT decision.

5. At the hearing on 29 September 2015 Mr El Afchal was self-represented but assisted by his older sister.

6. After preliminary discussion between the parties the Tribunal adjourned the hearing so that Mr El Achal could obtain further hospital records in respect of his hearing impairment.

7. On 12 November 2015 in a telephone directions hearing the parties agreed that the Tribunal could decide the matter on the papers alone with no further evidence or submissions.

   ISSUES

8. In order to qualify for DSP, Mr El Afchal must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 23 October  2013 and 22 January 2014 (the claim period).

9. Section 94(1) of the Act provides that a 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)the person has a continuing inability to work as defined by the Act.

10. The Respondent concedes and the Tribunal accepts that Mr El Afchal suffers medical conditions that cause impairment and he therefore satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

11. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Determination”) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

12. For the purposes of paragraph 6(3)(a) a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

13. The Introduction to each relevant Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

14. For present purposes the relevant medical conditions to be considered by the Tribunal are a condition affecting mental health function, a condition affecting hearing and asthma.

15. Accordingly, in these proceedings the Tribunal must consider whether during the claim period Mr El Afchal’s impairment was 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.

    Mental Health Function

16. Mr El Afchal’s application is supported by Dr Alsayed, general practitioner, in a Centrelink Medical Report dated 21 October 2013.

17. Dr Alsayed lists “Attention Deficit Hyperactivity Disorder (ADHD)” as a medical condition    with most functional impact. He notes current treatment as “counselling and psychotherapy” but provides no details about the impact of this condition on Mr El Afchal’s ability to function.

18. In a report dated 21 October 2013 Mr Ahmad, psychologist, notes a complex array of symptoms suffered by Mr El Afchal and recommends referral to a paediatrician and a child psychiatrist for further assessment and diagnosis. I note that Mr Ahmad is not a clinical psychologist.

19. In a relatively brief letter dated 30 March 2015 Dr Shamali, psychologist, stated that Mr El Afchal was “assessed ADHD since was 5 yr old and (his parents didn’t want to put him on medication) and ODD (oppositional defiant disorder). He suffers anger problem as well”[sic].

20. Dr Al Shamali noted that Mr El Afchal has been attending regular psychological sessions and commented that his attitude to psychological treatment had been negative and that from clinical observation no significant improvement had been noted.

21. I note that Dr Al Shamali does not appear to be currently registered with the Australian Health Practitioner Regulation Agency as a psychologist.

22. Relevantly, the Introduction to Impairment Table 5 of the Determination, which is to be used where a “person has a permanent condition resulting in functional impairment due to a mental health condition”, states that 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 a psychiatrist)”.

23. There  is no evidence before the Tribunal that prior to the date of claim or during the claim period Mr El Afchal had been diagnosed by a psychiatrist or a clinical psychologist, therefore, the requirements of Impairment Table 5 have not been satisfied which means that a rating under this Table cannot be applied.

    Hearing Function

24. Mr El Afchal has suffered bilateral middle ear disease for many years, with particular concern about the left ear.

25. In a letter to Dr G Kleiner dated 30 April 2008 Dr Harrison, ENT surgeon at Sydney Children’s Hospital (SCH) notes, inter alia, the following:

    “….[t]he left ear is certainly worrying…there is marked thinning and retraction of the tympanic membrane including on the promontory …..in these appears to be adherent and this probably already constitutes an incipient cholesteatoma…the right tympanic membrane looks a lot better…I am concerned that the changes in the left side are likely to be irreversible and that surgery for cholesteatoma could prove to be necessary in the future…

26. In a letter dated 19 January 2009  Dr G Kleiner, ENT surgeon, noted that Mr El Afchal had grommets reinserted at the Chidren’s Hospital and that audiology shows normal hearing on the right and a minimal mid frequency conductive loss on the left.  Dr Kleiner recommended reassessment because of potential further surgery and referral to Prince of Wales Hospital (POW).

27. Extracts from Sydney Children’s Hospital (SCH) ENT Clinic note, inter alia,  the following:

    ·8 December 2009: “13 yr old …chronic supportive OM…Bilateral grommets in 08 …L tympanic membrane retracted …..ear is safe at this stage…plan for review early next yr.”

    ·13 September 2011 state inter alia: “discharging (L) ear …(R) TM Intact ….(L) TM purulent discharge ….Ciloxin drops…”

    ·14 February 2012 : “…presents for  F/U today…mother states hearing reduced on left…(L) purulent discharge…(R) NAD

    ·27 March 2012: “…superior perforation (L) ear drum 7 discharge…CT petrous bones…”

    ·8 May 2012 : “…improving discharge…refer to Dr Kertesz”.

28. In a letter to Dr Kertesz, ENT surgeon, dated  8 May 2012 the SCH ENT registrar noted, inter alia, the following:

    Thank you for reviewing Yehya who is a 16 year old boy ……. with left sided chronic secretory otitis media….. [h]e was initially reviewed at the end of May 2012 with an ongoing left-sided – foul- smelling otorrhoea associated with mild otalgia. He had no associated features of vestibular dysfunction or cranial neuropathy at that stage. He had no significant prior ear surgery however, has had a long history of a discharging left sided ear....audiogram had showed significant  hearing loss on the left ……his CT scan of the petrous temporal bone showed bilaterally opacified middle ear with extension into the mastoid attic. There was no obvious evidence for erosion of the scutum bilaterally or the ossicles.

29. Extracts from ENT Outpatients Dept. noted, inter alia, the following:

    ·11 December 2012: “p/o (L) cholesteatoma 1^st stage…book…second stage for late 2013…”

    ·9 January 2013: “Hx (L) cholesteatoma + (L) CWU mastoidectomy…due for 2^nd look Dec 2013…otorrhoea/ dc…tymp mildly retracted but intact”.

30. A SCH audiology report dated 8 September 2014 notes, inter alia, noted:

    …Pure tone audiometry showed hearing is within normal limits in the right ear with a moderate to severe mixed hearing loss in the left ear. Thresholds in both ears have deteriorated since the last assessment in January, particularly in the left ear…The benefit of a left hearing aid and his eligibility for fully subsided aids through Australian hearing was discussed with Yehya today. He is not interested in pursuing this option at this time.

31. In a letter dated 14 October 2014 Ms Morgan, Audiologist at Australian hearing , notes, inter alia, the following:

    Yeyha Elafchal was seen for hearing assessment following a recent referral because of difficulties hearing and as a result of recent surgery in the left ear… Yehya reports that he experiences constant tinnitus “buzzing” in both ears which is tolerable most of the time…pure audiogram…shows essentially normal hearing in the right ear and asymmetrical mild to severe mixed hearing loss in the left ear…speech audiometry results for the left ear show a score of66% at an amplified level with masking noise presented in the opposite ear. A hearing aid for the let ear has been recommended and Yeyha has chosen a Completely – In - The - Canal (CIC) hearing aid.

    Consideration

32. It is clear from the evidence that Mr El Afchal has significant hearing loss in the left ear and I am satisfied that this is permanent for the purposes of the Impairment Determination.

33. On consideration of the descriptors in Impairment Table 11 and the evidence before the Tribunal I am satisfied that there is a mild functional impact on activities involving hearing function so that an impairment rating of 5 points can be applied.

    Asthma

34. In his report of 23 October 2013 Dr Alsayed lists “bronchial asthma” as a condition which has significant functional impact and notes current treatment as “Symbicort Turbohaler and Ventolin CFC Free Inhaler”. He provides no details about the impact of this condition on Mr El Afchal’s ability to function.

35. In a Job Capacity Assessment Report submitted on 5 November 2013 the assessor noted as follows:

    Client and his mother advised that his asthma may be triggered by his smoking, cooking fumes, pollens and physical exertion. He uses the inhalers which usually addresses his asthma symptoms when required and there is nil functional impact. This condition is considered fully diagnosed, treated and stabilised as bronchodilators generally relieves the symptoms and client does not require further treatment as there is nil functional impact.

36. The assessor recommended an impairment rating of 0 points under Impairment Table 1.

37. I am satisfied there is no other evidence before the Tribunal to support a rating under Impairment Table 1 of greater than 0 points.

    DECISION

38. For reasons set out above I am satisfied that during the claim period Mr El Afchal did not have an impairment of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

39. The decision under review is affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

........................[sgd]...........................................

Associate

Dated 8 December 2015

Date(s) of hearing	29 September 2015
Date final submissions received	23 October 2015
Applicant	In person
Advocate for the Applicant	Aliyah Hamoui
Solicitors for the Respondent	Department of Human Services