Firas Sabeei and Secretary, Department of Social Services

[2014] AATA 815

[2014] AATA 815  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2206
Re	Firas Sabeei
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	P W Taylor SC, Senior Member
Date	31 October 2014
Place	Sydney

The decision under review is affirmed.

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

P W Taylor SC, Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support Pension - Psychological injury - Left hand injury - No severe functional impairment - No participation in a program of support - Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 94(1)(b), 94(1)(c), 94(2)(aa), 94(3B), 94(3C)

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011, Rules 6(3) and 6(4)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, Tables 2, 5, 10 and 11

REASONS FOR DECISION

P W Taylor SC, Senior Member

31 October 2014

1. Mr Sabeei is a 33 year old Iraqi national. He holds a class XB, subclass 200, refugee visa and has lived in Australia since his arrival from Syria on 16 July 2013.

2. Because of his Australian residence and refugee visa status Mr Sabeei satisfies the residence eligibility criteria for a disability support pension. On 3 October 2013 he lodged an application for that kind of social security pension. The medical report accompanying his application described two disabling conditions (i) a psychological condition including major depression, post-traumatic stress disorder and anxiety, and (ii) a badly scarred, and permanently flexed, left hand (that condition being the result of an accident when he was a very young infant).

3. Further assessments, carried out for the purpose of determining Mr Sabeei’s application, indicated that he had two further, potentially relevant, medical conditions:

   (a)an ultrasound examination carried out on 24 October 2013 demonstrated that Mr Sabeei had mild-to-moderate hepatic steatosis - a condition commonly referred to as “fatty liver”. In November 2013 Mr Sabeei was awaiting referral and treatment for that condition.

   (b)an 11 November 2013 audiogram revealed that Mr Sabeei had a mild-to-moderate hearing loss in his right ear, and a moderate hearing loss in the left ear. He was recommended to consider bilateral hearing aids and to have a specialist referral for further assessment.

4. Centrelink’s November 2013 decision rejected Mr Sabeei’s disability support pension application, and Centrelink maintained that rejection in a subsequent review on 25 February 2014. On 10 April 2014 the Social Security Appeals Tribunal (the “SSAT”) affirmed Centrelink’s rejection. Mr Sabeei has applied to review the SSAT’s decision.

5. The SSAT’s decision, which the Secretary supports in the present review proceedings, involved the following findings:

   (a)for the purposes of the eligibility criteria in the Social Security Act 1991 (Cth) (“SSA 1991”) s 94(1)(b), Mr Sabeei’s psychological disorder merited only a 10 point impairment score under Table 5 in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “2011 Impairment Determination”)

   (b)Mr Sabeei’s left-hand injury also merited only a 10 point impairment score under Table 2 of the Impairment Tables

   (c)Mr Sabeei’s hearing loss was not fully treated and stabilised, at the time relevant to the assessment of his application, and was not eligible to be allocated an impairment point score: see Rules 6(3)&(4) of the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the “2011 Participation Determination”)

   (d)Mr Sabeei’s liver disorder was also not fully treated and stabilised, at the relevant time, and was also not eligible for an impairment point score

   (e)although Mr Sabeei was not capable of working for at least 15 hours per week, he had not actively participated in a program of support for at least 18 months before his application and was, therefore, not able to establish his entitlement to disability support pension: see SSA 1991, ss 94(2)(aa), (3B), (3C) and clause 5 of the 2011 Participation Determination.

6. The last aspect of the SSAT’s decision, Mr Sabeei’s non-participation in a program of support, is unarguably correct. Because Mr Sabeei only arrived in Australia on 16 July 2013, and had neither started nor completed a program at the time of his October 2013 application, he has no prospect of satisfying any program of support requirement.

7. The reality of Mr Sabeei’s position is, therefore, that unless he can establish a 20 point impairment score under a single Impairment Table, he cannot establish his entitlement to disability support pension. That reality follows from the terms of SSA 1991, ss 94(1)(c), 94(2)(aa), 94(3B) & 94(3C).

8. Two of Mr Sabeei’s medical conditions – his hearing loss and his liver condition – are immaterial to the present review proceedings. Centrelink and the SSAT determined that neither of these conditions was relevantly “permanent” (i.e. it had not been “fully diagnosed … fully treated and … fully stabilised” at the times relevant to his application: see the 2011 Impairment Determination, Rule 6(4)). The SSAT’s determination was correct in that regard but, even if the conditions were regarded as “permanent”, on no view of the evidence could either of those conditions justify a 20 point impairment score under any of the Impairment Tables.

9. There is a 9 January 2014 report by an ear nose and throat (“ENT”) specialist who examined Mr Sabeei and arranged for a CT scan to be carried out. The ENT specialist reported that both Mr Sabeei’s tympanic membranes were scarred. The CT scan showed fluid within the left mastoid air cells and some fluid also in the right mastoid air cell complex. The specialist suggested the possibility of slightly improving Mr Sabeei’s hearing by inserting grommets. That has not been done. Nor has Mr Sabeei started to wear hearing aids.

10. Mr Sabeei had explained to him in the course of the hearing the requirements in the Impairment Tables for an impairment point score of 20: see the description of “moderate” and “severe” functional impairment in Table 11 of the Impairment Tables. He agreed, after that explanation, that his hearing loss could not properly be characterised as severe and could not qualify for a 20 point impairment score.

11. Mr Sabeei’s liver condition was not referred to in the medical report submitted with his October 2013 application. The only significant information about it appears to be the 24 October 2013 ultrasound examination report. There is no other evidence that provides meaningful information about any impairment associated with this condition.

12. Mr Sabeei again had the impairment Table requirements explained to him in the course of the hearing: see the description of “moderate” and “severe” functional impairment in Table 10 of the Impairment Tables. After that explanation Mr Sabeei explained that he now had some dietary restrictions, but gave no information about any functional impairment attributable to his liver condition. He did say he considered that he did have a serious problem with his liver, but he required further tests. He actually had an outpatient clinic appointment that afternoon for further examination. In those circumstances which clearly indicate ongoing investigation, and perhaps an inconclusive diagnosis, there is no basis on which I could determine any impairment point score for Mr Sabeei’s liver condition.

    LEFT-HAND INJURY

13. Mr Sabeei hurt his left-hand at a very young age. The incident resulted in severe scarring and sensory disturbance. A report by a specialist at the Pain and Medicine Research Centre dated 28 January 2014 reported that Mr Sabeei presented with fingers held in a flexed position, a stiff hand, no wrist movement and restricted elbow movements. The report continued on to record that Mr Sabeei complained of pain extending up into his neck, and an inability to move his left shoulder. The reporter commented that Mr Sabeei had to use his right arm to assist in the movements of the left arm at the shoulder when involved in forward flexion and abduction. At the present hearing Mr Sabeei had his left arm in a sling, and the fingers of his left hand appeared to be permanently flexed. According to both the January 2014 report, and Mr Sabeei’s appearance throughout the present hearing, his left hand is, for almost all practical purposes, non-functional.

14. Because of Mr Sabeei’s inability to use his left-hand, a 12 November 2013 Job Capacity Assessment Report assigned him a 10 point impairment score under Table 2 of the Impairment Tables. A subsequent, but avowedly retrospective, assessment by another assessor on 7 August 2014, arrived at the same point score assessment. A particular aspect of that assessment was that whilst Mr Sabeei could not use his left hand and arm to complete any task (involving either fine or gross motor movements), there was nothing impairing the functionality of his right arm. He could use a telephone, manipulate keys, use a computer keyboard and carry small weights with his right arm. Mr Sabeei essentially confirmed this evidence at the present hearing, despite saying that he did not know how to use a computer, and that he found it hard to open any doors that required a double movement – such as the simultaneous turning of both a key and handle. He said that by using his right hand and arm he could use a telephone, sign his name, turn pages, manipulate a computer mouse and get items from a supermarket shelf.

15. Dr Sidrak (Mr Sabeei’s general practitioner) provides the only evidence suggesting that the appropriate impairment point score for Mr Sabeei’s left hand and arm impairments might be 20 points. He suggests, in a report dated 30 June 2014, that Mr Sabeei deserves a 20 point score. However, Dr Sidrak’s opinion does not appear to be informed by an accurate understanding of the relevant Impairment Tables. He describes Mr Sabeei’s inability to use his left hand to hold a pencil, use a computer keyboard or carry weights. But these impairments, affecting only Mr Sabeei’s left hand, do not justify Dr Sidrak’s opinion. Mr Sabeei’s left arm impairment certainly justifies a 10 point impairment score under Table 2 of the Impairment Tables. But the evidence is insufficient to establish his entitlement to a higher point score. A 20 point score, which is the score attributable to “severe functional impact” on upper limb function under Table 2 of the Impairment Tables, simply cannot be derived from consideration of functional impairments that affect only one upper limb. This is readily apparent, in the light of the evidence I have summarised, from the relevant content of Table 2 – which I set out below.

Points

Descriptors

10

There is a moderate functional impact on activities using hands or arms.

16.       (1) The person has difficulty with most of the following:

(a)        picking up a 1 litre carton full of liquid;

(b)        picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)        holding and using a pen or pencil;
(d)        doing up buttons or tying shoelaces;
(e)        using a standard computer keyboard;
(f)         unscrewing a lid on a soft-drink bottle.

20

There is a severe functional impact on activities using hands or arms.

17.       (1) Most of the following apply to the person: 

(a)        the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b)        the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

(c)        the person has difficulty using a computer keyboard despite appropriate adaptations;

(d)        the person has severe difficulty using a pen or pencil;

(e)        the person has severe difficulty turning the pages of a book without assistance

PSYCHOLOGICAL DISORDER

1. Dr Sidrak’s 5 October 2013 medical report recorded that Mr Sabeei had been diagnosed as suffering from major depression/post-traumatic stress disorder and panic attacks. The diagnosis of those conditions was stated to have been confirmed by a psychiatrist, Dr Philips. The then current treatment for those conditions was medication (Avanza), psychotherapy and STARTTS counselling. (STARTTS is an acronym for the organisation known as NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.)

2. The 12 November 2013 Job Capacity Assessment Report assigned an impairment rating of 10 points on Table 5 of the Impairment Tables. This assessment indicated moderate difficulties with social recreational activities and travel, difficulties with interpersonal relationships, concentration and task completion, behaviour planning and decision-making and work or training. That assessment was repeated in the later, retrospective, report dated 7 August 2014. It corresponds with the evidence, noted in the SSAT’s reasons, that Mr Sabeei had a good relationship with his wife and four year old son, goes to church, goes out for walks and participated in the SSAT hearing logically and effectively, without any apparent disturbance of thought.

3. Mr Sabeei’s participation in the present proceedings, which involved both careful attention to the translation of a substantial amount of written information (including relevant sections of the Impairment Tables) and translated interchanges between Mr Sabeei and myself, was similarly characterised by apparently logical comprehension and expression, and sustained concentration in following all the matters that were raised in the course of the hearing.

4. In his evidence Mr Sabeei described his ability to go shopping with his wife, and occasionally on his own - to deal with simple errands. He also described going for walks with his son, and taking him to the park to play. He said he could use public transport, and had actually come to the Tribunal hearing alone – getting the assistance of passers-by in obtaining directions to the Tribunal’s Market Street, Sydney address.

5. In the circumstances I have recounted in the previous paragraphs it would not be appropriate to assessment Mr Sabeei’s diagnosed psychiatric conditions as giving rise to the kind of severe impairment that would be required to sustain a 20 point impairment score under the relevant Impairment Table. That conclusion is again readily indicated when regard is had to the relevant parts of Table 5 – which I set out below.

Points

Descriptors

10

There is a moderate functional impact on activities involving mental health function. 

23.       (1) The person has moderate difficulties with most of the following: 

(a)      Self-care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)     social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)     concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book);

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions). 

(e)      behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)      work/training capacity. 

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings

20

There is a severe functional impact on activities involving mental health function.

24.       (1) The person has severe difficulties with most of the following:

(g)      Self-care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(h)     social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(i)      interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(j)      concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(k)      behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(l)      work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness

1. Mr Sabeei does have some difficulty with independent living, and is clearly quite reliant on his wife. However, the causes of his difficulties include illiteracy (both English and Arabic), his extremely limited spoken English, as well as his impaired left hand.  Mr Sabeei’s recreational and social activities are also limited, but that limitation is also partly attributable to his communication difficulties (specifically, his lack of spoken English) the recency of his arrival in Australia, and to the fact that he only has two family members living in Australia (an older brother and a younger sister). He visits, or receives visits from, his siblings quite regularly (as often as several times a week). Within his circle of family members, including his wife and son, Mr Sabeei says he has good relationships. I have already commented on Mr Sabeei’s apparently attentive participation in the present review hearing, notwithstanding the significant difficulties associated with his illiteracy and lack of spoken English. Mr Sabeei did lament that he has not been able to find work, and fears that he has little prospect of succeeding in finding work. But that difficulty exists for a number or reasons – principally because of his impaired left hand, and the language and literacy difficulties that are, at present, likely to significantly limit his employment prospects in relation to non-manual work. There is no adequate evidentiary basis to opine that mental illness renders Mr Sabeei unable to attend work, education or training. In these circumstances, Mr Sabeei is not – for the purpose of Table 5 of the Impairment Tables - severely impaired by his psychiatric disorders.

   CONCLUSION

2. Mr Sabeei’s impairments do not merit a 20 point score under any single Impairment Table. That means that, for the purposes of the legislatively defined criterion in SSA 1991, s 94(3B) - he does not have a severe impairment. Neither can he satisfy the alternative requirement of having actively participated in a program of support for the required period. This is because he had only been in Australia for three months before his application, and no relevant exemption (of the kind set out in clauses 5(3)to 5(5) of the 2011 Participation Determination) applies to him: see SSA 1991, s 94((2)(aa), s 94(3C).

   DECISION

1. The decision under review is affirmed.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of P W Taylor SC, Senior Member

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Associate

Dated 31 October 2014

Date of hearing	16 October 2014
Applicant	In person
Solicitors for the Respondent	Mr G Lozynsky, Department of Human Services