Fikremariam Abraha and Secretary, Department of Social Services
[2015] AATA 472
•20 May 2015
[2015] AATA 472
Division GENERAL ADMINISTRATIVE DIVISION File Number
2015/0918
Re
Fikremariam Abraha
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 20 May 2015 Date of written reasons 30 June 2015 Place Sydney The decision under review is affirmed.
..........................[sgd]..............................................
Prof R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension - whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairment rated 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 Sch 2 cl 4
CASES
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Prof R McCallum AO, Member
30 June 2015
INTRODUCTION
Mr Fikremariam Abraha, the Applicant, was born in Ethiopia in 1965 and subsequently immigrated to Australia in 1993. He has worked as a nurse’s assistant in Australia, and in 2012 he also spent some time working as a cleaner.
On 21 August 2014, Mr Abraha expressed an intention to claim Disability Support Pension (DSP). On 1 September 2014, he lodged a claim for DSP, together with a medical report from his treating doctor, Dr Aslam Hameed, who stated Mr Abraha was suffering from “depression with anxiety” and “diabetes mellitus type 2”.
His claim was rejected by Centrelink and he sought review of this decision. An Authorised Review Officer (ARO) affirmed the decision under review and concluded that Mr Abraha’s depression was not permanent because it had not been fully treated and stabilised. It was also noted that Mr Abraha had not met the program of support requirements nor did he have a continuing inability to work.
Mr Abraha appealed to the Social Security Appeals Tribunal (SSAT) which affirmed the decision under review. The SSAT concluded that Mr Abraha’s diabetes, depression with anxiety and alcohol addiction were not fully diagnosed, treated and stabilised during the relevant period.
Mr Abraha now appeals to this Tribunal.
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. Section 94(1) relevantly provides:
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;
...
Put simply, I must be satisfied, first, that Mr Abraha has one or more physical, intellectual or psychiatric impairments. Second, that these impairments must be rated at least 20 points under the Impairment Tables (found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination)). Finally, I must be satisfied that Mr Abraha has a continuing inability to work.
THE 13 WEEK QUALIFYING PERIOD
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. This clause is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Abraha’s eligibility for DSP in the 13 week period commencing on the day on which Mr Abraha applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Abraha qualified for DSP between 1 September 2014 and 1 December 2014.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referable to the applicant’s condition during the relevant period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
Therefore, in determining Mr Abraha’s eligibility to receive DSP I am confined to examining his impairments during the thirteen week qualifying period.
THE CONCESSIONS OF THE RESPONDENT
Paragraph 20 of the Respondent’s Statement of Facts and Contentions states:
The Respondent accepts that during the claim period, the Applicant had a “physical, intellectual or psychiatric impairment” as required by section 94(1 )(a) of the Act.
My understanding is that the Respondent concedes that Mr Abraha suffers from depression with anxiety, and also diabetes mellitus type 2. There is far less evidence on hepatitis B and alcohol dependence.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether Mr Abraha’s impairments are worth twenty points under the Impairment Tables. This requires a few words of explanation. The Impairment Tables are found in the Determination, which also contains the rules for the application of the Impairment Tables.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states at [5]-[6]:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.
[6] The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, and stabilised and is likely to persist for more than two years.
Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.
Depression is covered by Table 5 of the Impairment Tables which is titled “Mental Health Function”. The Introduction to Table 5 provides in part as follows:
Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·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).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
In other words, for depression to be fully diagnosed, treated and stabilised during the claim period, it is necessary for there to be medical evidence from a psychiatrist or clinical psychologist concerning the depression and treatment undertaken.
CONSIDERATION
I have read the documentary evidence before this Tribunal, in particular the Respondent’s Statement of Facts and Contentions and the T-Documents. I have also had regard to a further medical report from Dr Hameed dated 15 May 2015, which was handed up by Mr Abraha at the commencement of the hearing without objection. Mr Abraha also gave sworn evidence and I found him to be a truthful and witness.
Depression
The Introduction to Table 5 makes it clear that I cannot regard Mr Abraha’s depression as being fully diagnosed, treated and stabilised unless there is evidence from a psychiatrist or from a clinical psychologist, together with a general practitioner. In evidence before me, and from the documentary evidence, it is clear that Mr Abraha has not seen a psychiatrist. He cannot afford to see a psychiatrist privately, and when he visited Canterbury Hospital he told me, in evidence, that because he is homeless and does not have an address, he is unable to see a psychiatrist. Mr Abraha has also not seen a clinical psychologist, although I note that he has had some counselling. I therefore cannot assess Mr Abraha’s depression with anxiety under Table 5.
Alcohol Dependence
Mr Abraha’s alcohol dependence is noted in one or more reports by Dr Hameed, who suggested that Mr Abraha undertake counselling. It appears that Mr Abraha has undertaken very little counselling.
For the purposes of DSP, alcohol dependence is also assessed under Table 5. As above, as there is no evidence from a psychiatrist or a clinical psychologist, I am therefore unable to assess Mr Abraha’s alcohol dependence.
Diabetes
In relation to Mr Abraha’s diabetes mellitus type 2, I note that in his reports Dr Hameed states that it is well managed, of minimal impact, and that he hopes it will improve. Given that Dr Hameed hopes that it will improve, I am unable to assess the diabetes under the Impairment Tables. I note also, in evidence before me, that Mr Abraha said that he does not like taking his medication. Therefore, it is unlikely the condition could be considered fully treated or stabilised.
Hepatitis B
There is very little, if any, medical evidence with respect to Mr Abraha’s Hepatitis B. For this reason, I am therefore unable to assess this impairment under the Impairment Tables.
DECISION
The decision under review is affirmed.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Prof R McCallum AO, Member ..........................[sgd]..............................................
Associate
Dated 30 June 2015
Date of hearing 20 May 2015 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Impairment Rating
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Medical Evidence
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Disability Support Pension
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