El-Hazzouri; Secretary, Department of Social Services and (Social services second review)

El-Hazzouri; Secretary, Department of Social Services and (Social services second review) [2018] AATA 1821 (18 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/1127
Re:Secretary, Department of Social Services
APPLICANT

AndAhmad El-Hazzouri
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Member
Date:18 June 2018
Place:Sydney

The decision under review is set aside, and in substitution, a decision is made that on
5 August 2016 Mr El-Hazzouri did not qualify for the disability support pension.
.............................[SGD]...........................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - the applicant's impairments do not total twenty points or more under the Impairment Tables - decision set aside and substituted
LEGISLATION
Social Security Act 1994 (Cth) ss 23, 94
Social Security (Administration) Act 1999 (Cth) ss 80, 117, 118, sch 2
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
Dr I Alexander, Member
18 June 2018

The Respondent, Mr El-Hazzouri, who is now 52 years old, had been receiving

Disability Support Pension (DSP) since 2006. He had qualified for the DSP under the Social Security Act 1991 (the Act) when an earlier version of the Impairment Tables was in force.
Electronic records indicate that on 4 December 2015 Mr El-Hazzouri contacted Centrelink by phone regarding “Portability Enquiry, Change of Address/Accommodation Details…..” because he was considering travelling to Lebanon. The records state that Mr El-Hazzouri requested an assessment of his medical conditions to see if he qualified for indefinite portability of his DSP.
In a letter dated 7 December 2015, Centrelink informed Mr El-Hazzouri that a Medical review of his DSP under “1 January 2012 Impairment Tables” would be required and that he may be assessed as no longer being qualified for DSP.
On 14 March 2016 Mr El-Hazzouri and his general practitioner (GP), Dr Matar, submitted the required Medical review forms.
A Job Capacity Assessment (JCA) Report submitted on 18 May 2016 provided an assessment of Mr El-Hazzouri’s functional impairment under the current Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination), which was introduced on

6 December 2011. The assessor, a registered nurse, recommended a rating of 10 points for Spinal Function under Impairment Table 4 and zero points for all other medical conditions.
On 24 June 2016, Centrelink informed Mr El-Hazzouri he was assessed as having an impairment rating of less than 20 points and, therefore, was not qualified for the DSP.
On 5 August 2016, a further notice was sent to Mr El-Hazzouri informing him that his DSP had been cancelled.
On 20 September 2016 the decision to cancel Mr El-Hazzouri’s DSP was affirmed by an Authorised Review Officer (ARO). I note that the ARO confirmed that an impairment rating of 10 points under Impairment Table 4 - Spinal Function was appropriate.
On 24 January 2017 the decision to cancel Mr El-Hazzouri’s DSP was set aside by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). AAT1 decided that Mr El-Hazzouri’s DSP should not have been cancelled.
In these proceedings the Secretary seeks review of the AAT1 decision.
At the hearing, the Secretary, Department of Social Services (Secretary) was represented by a Senior Government Lawyer. Mr El Hazzouri was self-represented but assisted by an Arabic speaking interpreter.
ISSUES
DSP is defined as a social security payment in s 23 of the Act.
Section 80 of the Social Security (Administration) Act1999 (the Administration Act), provides:
1 If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
Section 117 of the Administration Act provides that an “adverse determination means a determination under section 79, 80, 81, 81A or 82.”
Section 118(1) of the Administration Act provides that
1The day on which an adverse determination takes effect in relation to a social security payment is worked out:
(a)in the case of carer payment—in accordance with this section and section 120; and
(b)in the case of any other social security payment—in accordance with this section.
Section 118(13) provides for DSP as follows:
13In any other case, an adverse determination takes effect:
(a)on the day on which it is made; or
(b)if a later day is specified in the determination, on that day.
As the decision to cancel Mr El-Hazzouri’s DSP was an adverse determination within the meaning of s 117 of the Administration Act, Mr El-Hazzouri had to satisfy the requirements of s 94 of the Act as at the date of cancellation of his DSP, that is, 5 August 2016.
Section 94(1) of the Act provides that a person is qualified for DSP 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) ....
The Secretary concedes, and the Tribunal accepts, that Mr El-Hazzouri suffered medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act.
For present purposes, the relevant medical conditions include Type 1 diabetes mellitus (T1DM), depression, low back pain, hypogonadism, testicular cancer, asthma, hypertension, right shoulder tendinosis, osteoarthritis and possible coronary artery disease.
The Impairment Determination requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (para 6(3)(a) of the Impairment Determination).
Paragraph 6(4) of the Impairment Determination states:
4For 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.
The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Also, the Introduction to Table 5 of the Impairment Determination, which is to be used “where the 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 by a psychiatrist)”.
The Secretary contends that at the date of cancellation Mr El-Hazzouri’s mental health condition, depression, was permanent for the purposes of the Impairment Determination and accepts that a rating of 10 points under Impairment Table 5 can be assigned.
The Secretary also so contends that a rating under the Impairment Tables in respect of all Mr El-Hazzouri’s other medical conditions are either zero or cannot be assigned.
At the hearing Mr El-Hazzouri agreed that the medical conditions which have caused most impairment were depression, low back pain and T1DM.
Therefore, the definitive issue in this matter is whether, at the date of cancellation,

Mr El-Hazzouri’s impairment was 20 points or more under the impairment tables and, if so, whether he had a continuing inability to work.
The Secretary agreed that, as there was no reviewable decision with respect to the application for “unlimited portability”, this issue is not currently before the Tribunal.
Depression
In a report dated 17 August 2017 Dr Moore, Medical Adviser Health Professional Advisory Unit, provided a comprehensive assessment of the relevant available evidence with respect of Mr El-Hazzouri’s mental health condition.
Dr Moore concluded that, at the date of cancellation, Mr El-Hazzouri’s mental health condition was permanent for the purposes of the Impairment Determination and that a rating of 10 points under Impairment Table can be assigned.
Dr Moore also concluded that the available evidence did not support a conclusion that, at that time, he had a “severe” impairment which would allow for a rating of 20 points under Table 5.
Therefore, I am satisfied that, at the date of cancellation, Mr El-Hazzouri’s impairment as a result of his mental health condition was 10 points.
Low Back Pain
Mr Mr El-Hazzouri told the Tribunal that he lives alone and is able to manage all self-care activities albeit with some difficulty. He is able to use public transport and can manage most domestic chores with intermittent assistance from his sister.
Mr El-Hazzouri claims that he suffers persistent low back pain with significant functional impairment.
In a Heath Assessor’s report completed in February 2006 a diagnosis of “low back pain” is noted with symptoms described as “pain in lower back radiating down both legs”.
In a Treating Doctor’s report dated 30 April 2008, Dr Matar noted a diagnosis of “chronic low back pain & IV disc lesion” with symptoms described as “chronic low back pain & frequent severe disabling flares & stiffness & reduced range of motion & numbness/ pins and needles in lower back”.
A CT Scan of the lumbosacral spine performed on 3 March 2011 is reported as an “unremarkable examination” with no evidence of posterior disc bulge or protrusion in the lumbar spine.
An MRI of the lumbar spine dated 5 September 2011 is reported as showing “mild lower lumbar degenerative changes” with “mild facet arthropathy” and no nerve root impingement.
In a medical report date 14 March 2016 Dr Matar noted a diagnosis of “intervertebral disc lesions lumbar spine” and described current symptoms as “low back pain & stiffness & reduced ROM & unable to bend carry lift pull, push ……”.
In a report dated 1 June 2017 Dr Low, Occupational Physician, noted some inconsistency with Mr El-Hazzouri’s reported lower back symptoms and functional impairment when compared with objective observation. Dr Low commented that physical examination was difficult to interpret “due to abnormal pain behaviour”.
Dr Low noted similar inconsistency with the cervical spine assessment.
Dr Low concluded that at the date of cancellation Mr El-Hazzouri back condition was not fully diagnosed, treated or stabilised and that and that further treatment options such as “enrolment in a formalised pain management service” would be beneficial.
Consideration
The issue of Mr El-Hazzouri’s low back is in my view, problematic in that he describes long standing severe symptoms and impairment with no explanation as to the cause of these symptoms or the claimed severity of impairment.
Dr Matar’s diagnosis of “intervertebral disc lesions” is not supported by the findings of the MRI and CT scan performed in 2011.
On the available evidence I am not satisfied that, at the date of cancellation,

Mr El-Hazzouri’s condition of “low back pain” was fully diagnosed, treated and stabilised and therefore a rating under the impairment Tables cannot be assigned.
T1DM
Mr El-Hazzouri told the Tribunal that he was diagnosed with T1DM in infancy and has been on insulin all his life. He explained that his diabetes has always been difficult to treat and his blood glucose control has generally been poor.
Mr El-Hazzouri claims that the management of his diabetes is time consuming because of the need for up to 6 daily injections and frequent visits to health care professionals.
The Tribunal was provided with several letters and reports from various endocrinologists who have been treating Mr El-Hazzouri between 2002 and 2017.
The majority of the documents indicate that Mr El-Hazzouri’s condition was diagnosed in about 1987 when he was 21 years old. These documents confirm that Mr El-Hazzouri’s condition has been persistently difficult to control and refer to indifferent compliance with reference to medication, diet, exercise as well as blood glucose monitoring.
In August 2017, Mr El-Hazzouri was referred to the Endo-Diabetes Clinic at Concord Hospital.
In a letter dated 18 August 2017 Dr Andrew Hannaford, Endocrinology trainee, stated inter alia as follows
Mr Ahmad El-Hazzouri is a 51 year old gentleman with poorly controlled type 1 diabetes with recent chest pain concerning for coronary ischaemia. At present glycaemic control is suboptimal…Our goal is to improve his glycaemic control and cardiovascular risk though adjusting his medications and aggressive lifestyle intervention……..
Dr Hannaford listed a number of recommendations including working together with the clinic’s diabetic educators to titrate his insulin for improved blood glucose control; consideration of continuous glucose monitoring; referral to cardiology outpatients for review of recent chest pain; enrolment in a three-monthly diabetes cycle of care; modification of diet with a reduction in cereal carbohydrate and an increase vegetable intake; and encouraging an increase in physical activity.
Consideration
When considering whether a chronic medical condition has been fully treated and fully stabilised it is, in my view, important to recognise that over time symptoms and / or impairment may fluctuate so treatment will need to be modified.
The available evidence suggests that for various reasons Mr El-Hazzouri’s diabetes treatment has been suboptimal for some time and therefore his condition has been poorly controlled and unstable.
The treatment intervention proposed by Dr Hannaford, twelve months after the date of cancellation, in my view, represents a clear escalation in care which is likely to improve the stability of Mr El-Hazzouri’s condition and assist in reducing his risk of unwanted complications
Therefore, on consideration of the available evidence, I am satisfied that at the date of cancellation Mr El-Hazzouri’s T1DM was not fully treated and fully stabilised so that a rating under the Impairment Tables cannot be assigned.
Testicular Cancer
In a brief letter dated 18 April 2016 Dr Mak, Medical Oncology registrar, confirmed that in March 2015 Mr El-Hazzouri was diagnosed as suffering from “right testicular cancer” which was treated with right sided orchidectomy and radiotherapy.
Dr Mak stated that Mr El-Hazzouri remained on active surveillance with regular clinical reviews and that at his last review in March 2016 there was no evidence of recurrence.
At the hearing Mr El-Hazzouri told the Tribunal that he continues to suffer intermittent right sided groin pain as well as urinary symptoms and diarrhoea which he attributed to the postoperative radiotherapy.
In his report of 1 June 2017 Dr Low noted that Mr El-Hazzouri stated that following his treatment for testicular cancer he had some difficulty with urinary continence but now experiences symptoms only from “time to time”.
In her report of 17 August 2017 Dr Moore concluded that Mr El-Hazzouri’s testicular cancer was fully diagnosed but not fully treated at the date of cancellation.
On 4 May 2016 Dr Moore contacted Dr Mak by telephone and indicated that she was told that the prognosis for testicular cancer is usually good and that the “majority of patients will not have any symptoms within 24 months”.
I accept that following his initial treatment for testicular cancer Mr El-Hazzouri’s continued to suffer residual symptoms. However, as his DSP was cancelled just over 12 months after the completion of treatment with radiotherapy and the limited corroborative evidence I am not persuaded that his condition was fully stabilised at that time.
Therefore, a rating under the impairment tables cannot be assigned.
Right shoulder
An ultrasound examination of the right shoulder performed on 8 August 2016 is reported as showing “mild changes of insertional supraspinatus tendinosis, without evidence of tear. Mild subacromial/subdeltoid bursitis”.
Ultrasound-guided right shoulder injections were performed on 18 October 2016, 23 December 2016 and 25 May 2017.
Clearly the right shoulder condition was not fully diagnosed, treated and stabilised at the date of cancellation and therefore a rating under the impairment Tables cannot be assigned.
Coronary Artery Disease
There is no objective evidence before the Tribunal that Mr El-Hazzouri was diagnosed as suffering from coronary artery disease prior to the date of cancellation.
In his letter of 18 August 2017 Dr Hannaford recommended a referral to cardiology for review of recent chest pain “given his high underlying risk for coronary artery disease”.
In a letter dated 11 August 2017, Dr Soji Swaraj, Consultant Endocrinologist, confirmed that Mr El-Hazzouri has been seen by a cardiologist who was planning “some functional imaging of his coronaries”.
Clearly, at the date of cancellation, this condition had not fully diagnosed, treated and stabilised and, therefore, a rating under the Impairment Tables cannot be assigned.
Hypogonadism
I accept that at the date of cancellation the condition of “hypogonadism” was permanent for the purposes of the Impairment Determination.
Mr El-Hazzouri continues to be treated with regular injections of “Reandron”. In his report dated 18 August 2017, Dr Hannaford noted Mr El-Hazzouri had “normal hair distribution, normal muscle bulk” as well as normal blood hormone levels.
I am satisfied that there is no evidence of functional impairment with respect to this condition, therefore, the rating under Impairment Tables is zero.
Hypertension
There is no objective evidence before the Tribunal that Mr El-Hazzouri in fact suffers from hypertension.
In a letter dated 12 October 2004 Dr Ross, endocrinologist, noted that Mr El-Hazzouri was not regularly taking Coversyl, which “was prescribed for nephron protection despite his reasonably normal blood pressure”.
In a letter dated 5 March 2007 Dr Obaid, endocrinologist, noted that Mr El-Hazzouri “denies hypertension”.
Clearly a rating under the Impairment Tables cannot be assigned.
Other medical conditions
Other medical conditions that have been listed in the available documents include asthma, hay fever, GORD, hernia, osteoarthritis, hypercholesterolaemia, fractured clavicle and carpal tunnel syndrome.
In my view there is insufficient evidence before the Tribunal with respect to these conditions to make any reasonable assessment for the purposes of the Impairment Determination.
DECISION
For reasons set out above, the Tribunal is satisfied that, at the date of cancellation on

5 August 2016, Mr El-Hazzouri’s impairment was not 20 points or more and, therefore, he did not satisfy s 94(1)(b) of the Act. This means that he did not qualify for the DSP and that the decision to cancel his pension was correct.
The decision under review is set aside, and in substitution, a decision is made that on 5 August 2016 Mr El-Hazzouri did not qualify for the DSP.

I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

............................[SGD]............................................
Associate
Dated: 18 June 2018

Date(s) of hearing: 4 June 2018

Solicitors for the Applicant: B Salaji - Department of Human Services

Respondent: In person

[2018] AATA 1821

18 June 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Appeal

Procedural Fairness

Date(s) of hearing:	4 June 2018
Solicitors for the Applicant:	B Salaji - Department of Human Services
Respondent:	In person