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

[2020] AATA 1859

Farhat and Secretary, Department of Social Services (Social services second review) [2020] AATA 1859 (29 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5381

Re:Ghada Farhat

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:29 May 2020

Date of written reasons:        22 June 2020

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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

Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether impairments fully diagnosed, fully treated and fully stabilised – whether applicant has an impairment rating of 20 points or more under the Impairment Tables – whether applicant has continuing inability to work – whether applicant has severe impairment – whether applicant has completed program of support – Meniere’s disease – lower back pain – PTSD – synovitis of shoulder and upper arm – retinal disease – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 18B, 43
Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2, pt 2, cl 4

CASES

Negri v Secretary, Department of Social Services [2016] FCA 879

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

WRITTEN REASONS FOR DECISION

Mr S Evans, Member

22 June 2020

INTRODUCTION

1. Ghada Farhat is the applicant in this matter. She applied for disability support pension (“DSP”) on 30 August 2018. Her claim was rejected by Services Australia, formerly known as the Department of Human Services (“the Respondent” also known as “Centrelink”) on 13 September 2018.

2. Ms Farhat sought review of the decision to reject her application. On 1 March 2019 an Authorised Review Officer (“ARO”) affirmed the decision.

3. Ms Farhat sought review of the ARO’s decision before the Social Services and Child Support Division of this Tribunal (“AAT1”). On 26 July 2019 the AAT1 affirmed the ARO’s decision to reject Ms Farhat’s claim for DSP. On 29 August 2019 Ms Farhat sought review of the AAT1’s decision before the General Division of the Administrative Appeals Tribunal (“the Tribunal”).

   HEARING

4. The matter was heard on 29 May 2020. Ms Farhat was self-represented and both she and the Respondent appeared via telephone in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).

5. At the hearing, Ms Farhat was provided an opportunity to present her case and did so with the assistance of an interpreter. Ms Farhat’s son also provided evidence at the hearing.

6. At the conclusion of the hearing, the Tribunal affirmed the decision under review and gave oral reasons for its decision as permitted under subsection 43(2) of the AAT Act. The Tribunal considered it was appropriate to do so particularly in circumstances where Ms Farhat required an interpreter.

7. Ms Farhat sought a statement in writing of the reasons for the decision under subsection 43(2A) of the AAT Act. The Tribunal therefore provides reasons in writing for the decision which, in accordance with subsection 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

8. In accordance with the Federal Court decision in Negri v Secretary, Department of Social Services [2016] FCA 879, these written reasons are consistent with the oral decision given and do not contain altered or new reasoning, but it is hoped that they explain in a fuller way the reasons why the Tribunal decided to affirm the original decision to refuse Ms Farhat’s application for DSP.

   CRITERIA TO BE APPLIED

   Qualification for disability support pension

9. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of DSP:

   (1) 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;…

10. The Impairment Tables[1] referred to in paragraph 94(1)(b) of the Act, are designed to assign ratings to determine the level of functional impact that an impairment has on an applicant. Only medical conditions that are permanent, have been fully diagnosed, fully treated and fully stabilised and are likely to persist for at least two years, can be allocated points under the Impairment Tables.

    [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Impairment Tables”).

11. Subsection 6(6) of Part 2 of the Impairment Tables sets out the requirements for a condition to be fully stabilised:

    (a)either the 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 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

12. Reasonable treatment is defined at subsection 6(7) of the Impairment Tables as treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    The qualification period

13. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by sch 2, pt 2, cl 4 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

14. As noted, Ms Farhat lodged her claim for DSP on 30 August 2018 and that triggers the assessment process to determine the eligibility of the Applicant. Ms Farhat must qualify for DSP on the date of the claim or within 13 weeks thereafter (i.e. 29 November 2018). I will refer to this as the “qualification period”.

15. The practical implications for this matter are that the Tribunal can only consider Ms Farhat’s conditions and qualification for DSP during the qualification period.

16. Following this, the Tribunal notes that the medical reports that come into being after the relevant period are only pertinent to the extent that they refer to Ms Farhat’s conditions during the qualification period.

    Continuing inability to work

17. Paragraph 94(1)(c) of the Act requires that to be eligible for DSP a person must have a continuing inability to work.

18. Subsection 94(2) of the Act states that the requirement for a continuing inability to work is satisfied if the person has a severe impairment – meaning they have an impairment of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. Alternatively, they have actively participated in a “program of support” and their impairment is of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, in the next two years.

    ISSUES

19. The issue for the Tribunal to determine is whether Ms Farhat qualified for the DSP during the qualification period.

    EVIDENCE AND CONDITIONS

    Background

20. Ms Farhat told the Tribunal this was her second application for DSP. During cross-examination, Ms Farhat confirmed that she lives with her son, daughter-in-law and grandchildren. She is unable to help look after her grandchildren on account of her health. She cannot shower by herself and requires assistance from her daughter-in-law.

21. She travelled overseas to Germany to see her other children who live in Europe between 20 November 2019 and 11 February 2020. She travelled with her grandson. She said that on the return trip to Australia she had an attack of Meniere’s disease. She had been provided medication for the flight by a doctor in Germany.

    Meniere’s disease and hearing loss

22. Ms Farhat suffers from Meniere’s disease and it is accepted by the Respondent that this condition is fully diagnosed. The Employment Services Assessment Report (“ESA report”) indicates that at the time of assessment, 29 October 2018, Ms Farhat was “awaiting specialist treatment with an ENT surgeon”. Dr Peter Winkler, ear surgeon, saw Ms Farhat at the Fairfield Hearing Clinic on 6 November and 27 November 2018. He reported on 27 November 2018 that she had had vertigo since she was 28 years old and “her management is complex and it is possible that the next step available to her is intratympanic Gentamycin on the left side”. He further recommended she be referred to Royal Prince Alfred hospital for consideration of this treatment and suggested that she try a “course of Endep 10mg at night increasing to 20mg if there is no initial improvement”. On 11 December 2018 Dr Winkler wrote that Ms Farhat “would benefit from a hearing aid on the left [ear]”.

23. At the hearing Ms Farhat confirmed that she had not proceeded with the intratympanic Gentamycin (“ITG”) and hearing aid. In reference to the ITG, she said that she did not want to proceed with treatment which her doctors had given her alternative advice on, and that a hearing aid does not make sense given that her condition results in too much noise.

24. The Respondent contends that investigating ITG treatment and the provision of a hearing aid was ongoing during the qualification period and further investigation was planned. Consequently, Ms Farhat’s Meniere’s disease and left ear hearing loss remained in the stages of treatment and investigation during the qualification period and cannot be considered fully treated and stabilised.

25. Whilst the Tribunal accepts Ms Farhat’s evidence that she had concerns about the treatments, it is the case that she had not completed the exploration of what constitutes reasonable treatment during the qualification period. General Practitioner Dr Atheel Alexander reported in February 2020 that Ms Farhat has “exhausted” her effective treatment options and that “no improvement is expected at this stage”. However, this report is substantially outside the qualification period.

26. Although the Tribunal accepts that Ms Farhat suffers from Meniere’s disease, it is necessary to consider whether this condition was fully diagnosed, fully treated and fully stabilised during the qualification period. As the condition was not fully treated and stabilised during the qualification period, it is not able to be assigned an impairment rating and it is not necessary for the Tribunal to determine an appropriate impairment rating for the condition.

    Lower back pain

27. A CT Scan was conducted on Ms Farhat’s lower back in August 2018 and it is recorded that she has a history of “low back pain and bilateral leg pain. Numbness in the left leg down to the knee”. A Patient Health Summary from All Care Mediclinic dated 22 August 2019 recorded her as suffering from Lower Back pain “mild to moderate central canal stenosis L4/5, L3/4”.

28. The Respondent submits that Ms Farhat’s lower back pain should be allocated “no more than 5 points under Table 4 (Spinal Function)”. Dr Alexander reports that “Lumbar spines canal stenosis which cause bad backpains affect ability to stand, sit and lift, seen by specialist” in February 2019. The specialist that Dr Alexander appears to be referring to was Dr Antoine Sanki who writes that Ms Farhat has been under his care “for the last few months regarding her left sciatica pain, caused by lumbar radiculopathy”.

29. Dr Sanki’s report is dated 17 January 2019, which would indicate that Ms Farhat had not consulted him until many months after the qualification period. As this condition was yet to be investigated by Dr Sanki during the qualification period, this condition was not fully treated and stabilised and ineligible to be assigned an impairment rating. If it were to be assigned a rating, the Tribunal considers that a rating of 5 points would be appropriate given the evidence available.

    PTSD

30. Consultant Psychologist Dr Mukesh Kumar reported on 1 August 2018 that Ms Farhat “reports a long history of anxiety and depressive symptoms which are in the context of multiple traumatic and stressful life events”. Dr Kumar notes that she is, for example, afraid of being alone and sleeps poorly. He diagnosed Post Traumatic Stress Disorder and recommended medication including Escitalopram 20mg, Olanzapine 10mg and a reduction to nil of benzodiazepines. It is also recommended she continue counselling through STARTTS (Service for the Treatment and Rehabilitation of Torture and Trauma Survivors).

31. Dr Sanki is reported by the ARO to have determined on 19 November 2018 that significant improvement is expected in the next two years but the evidence before the Tribunal does not support this finding.

32. Dr Alexander reports on 23 July 2019 that Ms Farhat’s anxiety and mood changes were symptoms of her condition, and the medications she took for it exacerbated the dizziness she experienced, presumably in reference to her Meniere’s disease symptoms. He also records that the condition is “less worse now but may expect exacerbation any time badly and worse”.

33. In light of the evidence, it is reasonable to conclude that Ms Farhat actively manages her mental health condition through medication supplemented with regular counselling. It is less clear the exact nature of the impairments caused by her condition, and if the condition was fully treated and stabilised during the qualification period.

34. As of 28 September 2018 Dr Kumar recommended significant changes to her medication regime including working to reduce benzodiazepines. Dr Kumar reports that Ms Farhat “believes the Escitalopram is not helping and does not want to continue with it”. He suggests a reduction prior to commencing on Venlafaxine 75 mg daily. At the hearing Ms Farhat told the Tribunal that her condition improved after taking medication she was prescribed whilst recently in Germany.

35. As Ms Farhat’s mental health condition treatment was evolving during the qualification period and it cannot be determined that it will not improve within the next two years, the Tribunal accepts it was diagnosed, but not fully treated and stabilised. Consequently, it is not eligible to be assigned an impairment rating.  

    Synovitis, shoulder and upper arm disorder

36. Following an x-ray and ultrasound performed on 23 August 2018, Ms Farhat has been diagnosed with synovitis of the right thumb carpometacarpal joint with no significant features of osteoarthritis or an erosive arthropathy in the region. Physiotherapist Mr Hicham Zraika confirmed the diagnosis in a report dated 28 August 2018. Ms Farhat provided no further evidence in relation to this condition during the hearing. It is being treated through use of pain killers.

37. The ESA report confirmed that she had not engaged in any other treatment in relation to this condition.

38. There is insufficient information before the Tribunal to make an assessment of this condition against the Impairment Tables.

    Retinal disease

39. The Respondent accepts that this condition is fully diagnosed, but not fully treated and stabilised during the qualification period. Ms Farhat reported that she has undergone seven laser surgeries on her eyes to treat this condition, one of which was in Australia. Dr Alexander reported in July 2019 that she had “operations for it feels better now since operation, accordingly her treatment is reasnoble [sic], her condition is stable now”.

40. Even if accepted by the Tribunal, there is insufficient information about this condition and the impairment it causes to Ms Farhat for the Tribunal to make an assessment against the Impairment Tables.

    Continuing inability to work

41. Ms Farhat has not participated in a program of support in the three years prior to making her application for DSP. As none of the exemptions in subsections 7(3)-(5) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) apply, Ms Farhat does not meet the requirements for having participated in a program of support. Consequently, she is required to demonstrate she has a severe impairment in order to satisfy paragraph 94(1)(c) of the Act.

42. Ms Farhat claimed that she was not informed of the requirement to participate in a program of support in order to qualify for DSP in the absence of a severe impairment. There is no evidence before the Tribunal that would indicate this is the case. Ms Farhat told the Tribunal that this was her second application for DSP. As this is Ms Farhat’s second application for DSP, it seems unlikely that she would not have been aware of the need to have a continuing inability to work in order to qualify for DSP. I note also that the AAT1 decision records “[Ms Farhat’s] son always goes to the Disability Employment Service provider appointments with her”.

    CONCLUSION

43. When determining an application for DSP the Tribunal is constrained by the requirements of the Act. The Respondent accepts, and the Tribunal agrees, that Ms Farhat had an impairment that meets the requirement of paragraph 94(1)(a) of the Act during the qualification period.

44. It was explained during the hearing that in order for Ms Farhat in order to qualify for DSP she is required to meet the requirement for 20 points under a single Impairment Table as she does not meet the requirements for having participated in a program of support.

45. Based on her evidence, Ms Farhat’s Meniere’s disease in particular causes her functional impairment. She had, during the qualification period, reasonable treatment options which were still under active consideration. Consequently, the condition was not fully treated and stabilised and therefore cannot be assigned an impairment rating.

46. Unfortunately for Ms Farhat, the same was the case for her back pain and PTSD, the other conditions which cause the most impairment to her. As was explained to Ms Farhat using the interpreter available at the time, if her conditions were to be fully treated and stabilised and able to be assigned an impairment rating, and she was rated 20 or more points under the Impairment Tables, in the absence of a severe impairment, she will need to complete the program of support requirements in order to satisfy paragraph 94(1)(c).

    DECISION

47. For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 22 June 2020

Date(s) of hearing:	29 May 2020
Applicant:	In person
Solicitors for the Respondent:	Services Australia