El Mohammed and Secretary, Department of Social Services
[2014] AATA 160
•18 March 2014
[2014] AATA 160
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2347
Re
Feras El Mohammed
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 18 March 2014 Date of written reasons 25 March 2014 Place Sydney The decision under review is affirmed.
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Deputy President RP Handley
Catchwords
SOCIAL SECURITY – Disability Support Pension – impairment tables – whether conditions warranted 20 impairment points under one or more tables – combined impairment assessment of 25 points – continuing inability to work – program of support – completed 11 of the 18 months required – decision affirmed
Legislation
Social Security Act1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4Secondary Materials
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011REASONS FOR DECISION
Deputy President RP Handley
25 March 2014
A brief statement of reasons was delivered orally at the conclusion of the hearing. What follows is a fuller statement of reasons provided at the request of Mr El Mohammed.
Mr El Mohammed has applied for a review of a decision of the Social Security Appeals Tribunal (SSAT) affirming the decision of an authorised review officer (ARO) to refuse his claim for the disability support pension (DSP).
BACKGROUND
Mr El Mohammed is aged 42. He is married with two children and is currently receiving Newstart Allowance. On 6 September 2012, Mr El Mohammed made a claim for the DSP. He stated that he has a back and neck condition, and suffers from osteoarthritis, hypertension, asthma and depression. His claim was supported by a medical report dated 31 August 2012 from his general practitioner (GP), Dr Aiman Alsayed. On 17 September 2012, a Job Capacity Assessment (JCA) was undertaken by Centrelink. This found that Mr El Mohammed’s conditions were not fully treated or stabilised as at the date of claim or within 13 weeks thereafter. He was found to have a baseline work capacity of 15 - 22 hours per week which, with intervention, could increase to 23 to 29 hours per week within two years. On 23 October 2012, Centrelink refused Mr El Mohammed’s claim on the basis that he did not have a sufficient impairment rating to qualify for the DSP.
Following Mr El Mohammed’s request for a review, the decision was affirmed by an ARO on 21 February 2013. The ARO found that two of Mr El Mohammed’s conditions, - asthma and hypertension – were fully treated and stabilised but attracted nil impairment points. On 16 April 2013, the SSAT affirmed the decision but, in addition, attributed 5 impairment points to Mr El Mohammed’s spinal function and also 5 impairment points to his mental health function.
On 15 May 2013, Mr El Mohammed applied to the Tribunal for a further review.
RELEVANT LEGISLATION AND ISSUES
Section 94 of the Social Security Act1991 (Cth) specifies the criteria that an individual must meet in order to qualify for the DSP.
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) one of the following applies:
(i) the person has a continuing inability to work …
There is no dispute that Mr El Mohammed suffers from physical and psychiatric impairments (s 94(1)(a)). However, at issue is whether his impairments were of 20 points or more under the Impairment Tables (s 94(1)(b)) at the date of claim or within 13 weeks thereafter (as to which, see below). The Impairment Tables, contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the 2011 Determination) provide a framework for the assignment of impairment points to a specific condition. The Tables specify effects on the mobility of a person and their everyday life that the decision-maker must consider in determining the level of impairment.
The Impairment Tables contain rules for applying the Tables. Paragraph 5 states:
5 Purpose and design of the Tables
(1) In applying the Tables, regard must be had to the principles set out in subsections (2) and (3).
Purpose and general design principles
(2) The Tables:
(a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b) are function based rather than diagnosis based; and
(c) describe functional activities, abilities, symptoms and limitations; and
(d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Note: impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
Scaling system and descriptors
(3) In the Tables:
(a) subject to section 11, where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment; and
Note: For impairment rating and descriptor see section 3.
(b) the first line of each descriptor, which is formatted in italics, describes the level of impact of the impairment to be identified by reference to the particular examples of functional activities, abilities, symptoms and limitations contained in the numbered paragraphs below it, if any; and
(c) the introduction to each Table sets out further rules with which to apply the Tables and rate an impairment.
Paragraph 6 states relevantly:
6. Applying the Tables
Assessing functional capacity
(1)The impairment of a person must 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.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
The ‘Rules for applying the Impairment Tables’ set out in the 2011 Determination state in paragraph 6(3) that an impairment rating can only be assigned to an impairment caused by a condition that is ‘permanent’ and the resulting impairment is more likely than not, in the light of available evidence to persist for more than two years. Paragraph 6(4) states that a condition is ‘permanent’ if fully diagnosed by an appropriately qualified medical practitioner and if fully treated and fully stabilised.
With respect to the assignment of an impairment rating, paragraph 10 provides relevantly:
10 Selecting the applicable Table and assessing impairments
Selection steps
(1) Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
…
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), 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.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
If the Tribunal is satisfied that Mr El Mohammed had a combined impairment rating of 20 points or more, at the relevant time, it must determine whether he has a continuing inability to work (s 94(1)(c)). Section 94(2) provides that where an individual does not suffer from a ‘severe impairment’ (defined in s 94(3B) as where 20 points or more are assigned under a single Impairment Table), they must have actively participated in a program of support in order to qualify for the DSP. A program of support is defined in s 94(5) as a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
The Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011, which took effect on 3 September 2011, set out the requirements that must be satisfied for a person to have actively participated in a program of support. Subject to some exceptions that are not relevant in Mr El Mohammed’s case, paragraph 5(2) provides that a person has actively participated in a program of support ‘if the person has participated in the program of support for at least 18 months’ before the relevant date of claim.
Provided Mr El Mohammed has participated in a program of support for the required period of 18 months, section 94(2) specifies the tests for determining whether an individual has a continuing inability to work. The Tribunal must consider whether:
(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.
Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) sets out the requirement that an applicant’s qualification for DSP be assessed as at the date he or she made the claim for the DSP or in the 13 week period following the claim. Mr El Mohammed lodged his claim for the DSP on 6 September 2012. The relevant period, therefore, is 6 September 2012 to 6 December 2012.
IMPAIRMENT ASSESSMENT
As stated above, the first issue for the Tribunal is whether, during the relevant period, Mr El Mohammed’s impairments should have been assessed as having an impairment rating of 20 points or more under one or more of the Impairment Tables (s 94(1)(b)). If 20 points or more are attributable under a single Table, the individual is assessed as having a ‘severe impairment’ under s 94(3B) and is not required to actively participate in a program of support in accordance with s 94(3C) in order to qualify for a DSP.
The Respondent accepts that Mr El Mohammed’s medical conditions should be accorded a total impairment rating of 20 points thereby satisfying s 94(1)(b). However, this is made up of 10 impairment points each for his depression and spinal condition under Tables 4 and 5, and 0 points under Table 1 for his asthma and hypertension. The Respondent therefore contends that Mr El Mohammed cannot be assessed as having a ‘severe impairment’ which would obviate the need for him to actively participate in a program of support. The Respondent says that, at the date of claim, Mr El Mohammed had actively participated in a program of support for 11 and a half months and so cannot satisfy the requirement in s94(1)(c) of having a continuing inability to work.
In his claim for the DSP Mr El Mohammed identified the conditions from which he suffers as being a back and neck condition, hypertension, asthma and depression. Those conditions are addressed in turn below.
Back and Neck Condition
The Respondent accepts that Mr El Mohammed suffers from lumbar and cervical spine pain, which is a permanent condition and fully diagnosed, treated and stabilised. The Respondent contends that the condition warrants an impairment rating of 10 points under Table 4. I have considered Dr Alsayed’s Treating Doctor’s Report dated 31 August 2012, which accompanied Mr El Mohammed’s claim for the DSP. In terms of the impact on his ability to function, which is the focus of the relevant Table, Table 4, I note that Dr Alsayed describes Mr El Mohammed’s current symptoms as “lower back pain radiating to his lower limbs restricting his mobility and capacity to stand, sit, walk or bend” and “severe pain restricting his capacity to work”. In an earlier Treating Doctor’s Report dated 3 February 2012, Dr Alsayed refers to “severe neck pain radiating to his shoulder, affecting and restricting his hands [sic] movements”. Dr Alsayed provided further detail in a report dated 21 July 2013, referring to Mr El-Mohammed being able “to sit up to 20 minutes before changing his posture, standing up to 10 minutes with pain and walking up to 15 minutes”.
Mr El Mohammed also gave evidence about the functional impact of his spinal condition at the hearing. He said the pain from his lumbar spine radiates down both legs, causing numbness. He also has neck pain spreading to his shoulders and head, as a result of which he gets “strong” headaches. Nevertheless, Mr El Mohammed said after being dropped at the station by a friend, he was able to travel by train into the city for the hearing and walk to the Tribunal premises from Town Hall Station. I note he also sat through the first part of the Hearing for one hour and 20 minutes, albeit with some discomfort. Mr El Mohammed said he can turn his head with some difficulty, is able to raise his hands and carry light objects. In my view, his description most closely accords with an impairment rating of 10 points under Table 4 rather than 20 points.
Depression
The Respondent accepts that Mr El Mohammed suffers from depression, which is a permanent condition and fully diagnosed, treated and stabilised. The Respondent contends that the condition warrants an impairment rating of 10 points under Table 5.
Mr El Mohammed said he has been treated by a psychiatrist, Dr Ishrat Ali, since about 2005. At the time Mr El Mohammed made his claim for DSP on 6 September 2012, Dr Ali was away overseas and did not return until April 2013. His Treating Doctor’s Report, dated 4 April 2013, is included in the documents provided to the Tribunal. In that report, Dr Ali confirmed that he has treated Mr El Mohammed since November 2005 and diagnosed Mr El Mohammed’s condition as “Recurrent Psychotic Depression and Dysthymia”. Dr Ali describes Mr El Mohammed’s symptoms as depressed mood, sleep difficulty, poor concentration and not being able to relax. In terms of impact on ability to function, he identifies the impact on Mr El Mohammed’s “neurological/cognitive function (eg. Concentrating, decision making, memory, problem solving)” and specifies that Mr El-Mohammed is “not able to concentrate”.
In his Treating Doctor’s Report dated 31 August 2012, Dr Alsayed refers to the symptoms of Mr El Mohammed’s “Major Depressive Disorder” as “depressed mood, anxiety, poor memory, poor concentration, sleep disturbance, withdrawal from social contacts, low self-esteem, panic attacks”. With regard to its impact on Mr El Mohammed’s ability to function, Dr Alsayed refers to “poor concentration to perform tasks or communications”.
Mr El Mohammed told me that when he arrived at Town Hall Station on his way to the Tribunal, he got lost and spent one and a half hours trying to find the Tribunal’s premises, asking about 30 people for directions in the process. At home, he spends much of his time alone, or sits with his wife and the few friends who come to visit. Sometimes he goes shopping with his wife but he prefers not to go out. He is disturbed by the noise made by his young children, who are aged three and a half and two, and he gets nervous as a result. He no longer has many friends and only occasionally goes out to meet them.
He sometimes watches television, but only for short periods. He does not read. He sleeps badly and the medication does not help. There are many things he does not remember.
Mr El Mohammed said that, after he was treated by Dr Ali in Bankstown Hospital in about 2005, he spent 2006 and 2007 in Syria where be obtained treatment. He went to Syria again in 2009 returning in 2011. Most of his family are in Syria. He got married and his wife arrived in Australia for the first time in November 2011 and has looked after him ever since. She makes all the arrangements, pays the bills, etc.
Mr El Mohammed said there is little more Dr Ali can do for him. Mr El Mohammed also sees a psychologist, Mr Medhat Metry, who he saw most recently five days ago. His wife takes him to appointments.
The relevant table for the assessment of the functional impact of Mr El Mohammed’s condition is Table 5. I note the introduction to Table 5 states that “There must be corroborating evidence of the person’s impairment”. In Mr El Mohammed’s case, the Treating Doctor’s Report completed by Dr Al Sayed on 31 August 2012, and by Dr Ali on 4 April 2013, are the most relevant reports in respect of Mr El Mohammed’s condition during the period 6 September 2012 to 6 December 2012. On the basis of this evidence and Mr El Mohammed’s account of the impact of his depression, it is appropriate to make an assessment of 10 points under Table 5. In my view, Mr El Mohammed’s depression had a moderate functional impact on his activities at the relevant time. He does not need help with self-care but goes out infrequently, albeit that he did travel by train to the Tribunal on his own. He has difficulty maintaining friendships and feels socially isolated, he finds it difficult to concentrate and follow instructions - for example, to find the Tribunal’s premises despite having been here before - he has difficulty coping with stress, and leaves decision-making and the making of necessary arrangements to his wife. Nevertheless, in my view, he coped reasonably well on his own at the Hearing, spoke coherently and was able to present his case.
Hypertension and Asthma
The Respondent accepts that Mr El Mohammed suffers from hypertension and asthma, which are both permanent conditions and fully diagnosed, treated and stabilised. The Respondent contends that these conditions warrant an impairment rating of nil points under Table 1, which is the relevant table for functions involving physical exertion or stamina. I note a recent medical assessment dated 12 March 2014, by Dr Christopher Minogue, Occupational Physician, of the Centrelink Health Professional Advisory Unit, assessed the functional impact of these under the Table at 5 impairment points. In my view, this is appropriate. Mr El Mohammed’s evidence is that these conditions, which are long-standing, are well-controlled with medication most of the time, but the other medication he takes for his pain sometimes interferes with his blood pressure, causing this to fall and leaving him feeling dizzy and sick.
Combined Impairment Assessment
My assessment is the Mr El Mohammed has a total impairment of 25 points under the Impairment Tables referrable to the relevant time of 6 September 2012 to 6 December 2012.
CONTINUING INABILITY TO WORK
The further issue is whether Mr El Mohammed had a continuing inability to work (s 94(1)(c)). Because he does not, in my view, suffer from a ‘severe impairment’, meaning where 20 points is assigned under a single Impairment Table, in order to satisfy the requirement that he has a continuing inability to work, he must have actively participated in a program of support for a period of 18 months at the date of claim.
Mr El Mohammed was referred to MTC Bankstown on 20 September 2011. At the date of his claim – 6 September 2012 – Mr El Mohammed had only participated in a program of support for a period of 11 and a half months, and did not, therefore, satisfy the requirements.
Thus, he did not satisfy s 94(1)(c) of the Act and did not qualify for the DSP at that time. I note that he has since lodged a new claim for the DSP which has been granted.
DECISION
The decision under review to refuse Mr El Mohammed’s application for the DSP is affirmed
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley .......................[sgd].................................................
Associate
Dated 25 March 2014
Date(s) of hearing 18 March 2014 Date final submissions received 18 March 2014 Applicant In person Advocate for the Respondent K Martini; Department of Human Services
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