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

Ghattas and Secretary, Department of Social Services (Social services second review) [2018] AATA 3937 (19 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6344
Re:Mr Ashraf Ghattas
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:19 October 2018
Place:Melbourne

The Tribunal affirms the decision under review.

.........[sgd]................................
Ms Anna Burke, Member
SOCIAL SECURITY – disability support pension –– whether qualified – New Zealand citizen – residency requirements – International Agreement – spinal, brain and mental health disorders are fully diagnosed, treated and stabilised - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken - whether severely disabled.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991 (Cth)
Social Security (International Agreement) Act 1999 (Cth), Schedule 3 (Agreement on Social Security between the Government of Australia and the Government of New Zealand)
Cases
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75; (2013) 213 FCR 532
Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541
Secondary Materials
Guide to Social Security Law
Mayo Clinic, Patient Care and Health Information (8 May 2018) < FOR DECISION
Ms Anna Burke, Member
19 October 2018
INTRODUCTION

Mr Ghattas (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (Cth) (the Act).
On 22 February 2017, Centrelink found that Mr Ghattas was not entitled to the DSP as he did not meet the requirements of the Act and Schedule 3 of the Social Security (International Agreement) Act 1999 (the New Zealand Agreement.) Centrelink found that he was not severely disabled as he could work at least eight hours per week for at least the next two years. Centrelink is the service provider for the Department of Human Services.
This application was heard on 3 August 2018. Mr Ghattas was represented by Mr Bates of Berrill & Watson Lawyers. Mr Nguyen of Sparke Helmore Lawyers appeared for the Respondent. The Tribunal was assisted by an Arabic interpreter.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Ghattas:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition which attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables);
(d)has a continuing inability to work and
(e)is severely disabled, in accordance with article 2(2)(a) of the Agreement.
BACKGROUND
Mr Ghattas is a 52 year old dual citizen of Egypt and New Zealand who now lives with his wife and child in Melbourne. Mr Ghattas is a qualified engineer who migrated from Egypt to New Zealand in 2000, where he completed computer science and librarian studies. He subsequently migrated to Australia on a special category visa (subclass 444) in 2011, first settling in Sydney and later in Melbourne.
Mr Ghattas’s qualifications were not recognised in New Zealand so he worked in numerous positions in supermarkets, factories and libraries. He last worked in 2012, prior to his motor vehicle accident.
Mr Ghattas was involved in a motor vehicle accident on 11 July 2012. The effect on him was recorded by the ambulance crew attending the scene of the accident as a vehicle-related trauma of low-impact velocity. Mr Ghattas was travelling at less than 30 km/h in heavy traffic when he was hit from the rear at low speed which caused him to hit the vehicle in front of him after breaking. Minimal damage was recorded to the vehicle. Mr Ghattas was wearing a seatbelt and there was no head strike. Assessment at the scene of the accident by attending ambulance officers reported soft tissue injury. Mr Ghattas was taken from the accident by ambulance to Box Hill Hospital where a CT scan of the brain was reported to be normal. He was sent home later that day after x-rays did not reveal any fractures. Three days after the accident Mr Ghattas returned to the emergency department complaining of nausea, vomiting, dizziness and difficulty walking. He was discharged after a period of observation.
Mr Ghattas received a settlement from the Transport Accident Commission in respect of pain, suffering and damages resulting from the car accident in 2012.
On 10 February 2016 Mr Ghattas made an application for DSP citing his cervical spondylosis, arthritis, nerve impingement, memory disturbances, difficulty concentrating, headaches, stress and depression, the whiplash, back pain, neck and back injury, traumatic brain injury, post-concussional disorder with cognitive, somatic and behavioural disorder issues.
On 14 February 2017 Centrelink organised for a job capacity assessment (JCA) to be conducted on Mr Ghattas. The assessment found that his:
·     spinal disorder was considered to be fully diagnosed, but not fully treated and stabilised as there was an absence of past and future treatment, prognosis and functional impacts. So nil points were awarded under Table 4 – Spinal Function (Table 4) of the Impairment Tables;
·     psychiatric disorder was considered to be fully diagnosed but not fully treated or stabilised, as there was an absence of past and future treatment, prognosis and functional impacts. So nil points were awarded under Table 5 – Mental Health Function (Table 5) of the Impairment Tables;
·     traumatic brain injury was considered fully diagnosed treated and stabilised and there was a moderate functional impact resulting from a neurological or cognitive condition and 10 points were awarded under Table 7 – Brain Function (Table 7) of the Impairment Tables;
·     baseline work capacity was 8-14 hours per week, and 15-22 hours per week within 2 years with intervention;
On 22 February 2017 Centrelink wrote to Mr Ghattas to inform him that his DSP application had been refused. Centrelink found that the Mr Ghattas was not considered to be severely disabled under the Social Security Agreement between Australia and New Zealand and he did not satisfy the normal residency rules to qualify for the DSP.
On 22 March 2017, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink decision that Mr Ghattas did not have an impairment rating of 20 points or more, did not have a continuing inability to work and was not a resident to qualify for the DSP. The ARO found that Mr Ghattas:
·had 10 points under Table 7 - brain function for his traumatic brain injury;
·had nil points for spinal disorder having found this condition not fully treated and stabilised;
·had nil points for psychological/psychiatric disorder having found this condition not fully treated and stabilised;
·had nil points for migraines having found that this condition is not fully treated and stabilised;
·had not met the program of support requirements as he had not actively participated in a program of support;
·did not have a continuing inability to work; and
·did not meet the residency requirements to qualify for DSP as he was the holder of a subclass 444 special category Visa, and not a permanent visa. Additionally, he did not meet the medical criteria to qualify for DSP under the international Social Security agreement with New Zealand.
On 22 September 2017 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO to reject Mr Ghattas’s DSP claim. The decision was made after the Tribunal deferred the matter to obtain medical and allied health reports held by the Victorian Transport Accident Commission (TAC) and the Victorian Rehabilitation Centre, and subsequently made the following findings:
·Mr Ghattas was not suffering from a brain injury. The persisting cognitive impairments are psychiatric in origin and not due to any neurological disease or brain injury and therefore nil points were awarded under Table 7 of the Impairment Tables.
·there was insufficient reliable evidence for the Tribunal to be satisfied that Mr Ghattas has a psychosis. All the psychologist state there is anxiety and depression. None of them diagnosed a psychosis.
·Mr Ghattas was suffering from cervical spondylosis and disc degeneration causing pain. AAT1 could not rely on the evidence as a true measure of impairment and awarded nil points.
·Mr Ghattas was suffering from lumbar spondylosis and disc degeneration causing lower back pain which had a mild impairment and assigned five points under Table 4.
·Mr Ghattas was suffering from an adjustment disorder with anxiety and depression but it had not been fully treated and stabilised and therefore no impairment rating could be assigned.
·it was unnecessary to make a finding in respect of Mr Ghattas’s continuing inability to work, as he had not met the other eligibility requirements for the DSP.
On 23 October 2017 Mr Ghattas sought a review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (AAT2). He believes the decision made by the Tribunal at first instance is wrong, writing in his application:
The Tribunal member has all but ignored the medical opinions of the applicant’s treating doctors. The Tribunal member has cherry picked the medical evidence to reach a conclusion that the decision of the Department of Health services is correct, ignoring other medical evidence in his summation of the evidence. The decision is one that could not be reasonably reached on the material and evidence provided on the material nor by the evidence provided by the applicant in the first hearing.
In accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), Mr Ghattas’s qualification for DSP is to be determined from the date of his claim 2 May 2016 to a date 13 weeks thereafter, being 1 August 2016 (the qualification period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person qualifies for a 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;
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension;
The Social Security Act defines an Australian resident as a person who:
(a) resides in Australia; and
(b) is one of the following:
i.an Australian citizen;
ii.the holder of a permanent visa;
iii.a special category visa holder who is a protected SCV holder.
The New Zealand Agreement sets out provisions regarding residency. Article 12(4) provides that no person shall be entitled to claim a disability support pension under the Agreement unless they have accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand.
Article 2(2) of the New Zealand Agreement relevantly provides:
For the purpose of this Agreement an Australian disability support pension and New Zealand invalid's benefit shall be limited to cases where:
(a) the person is severely disabled;
(b) the person was a resident of one of the Parties at the date of severe disablement; and
(c) the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.
Article 1(1)(l) of the New Zealand Agreement defines 'severely disabled' as a person who:
(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(ii) to work for at least the next 2 years; and
(iii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or...
For a condition to be a severe impairment s 94(3B) of the Act provides:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person's impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is permanent.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)
Section 6(4) of the Impairment Tables states that 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 Impairment Table provides that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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.
Section 6(7) of the Impairment Tables states that for the purposes of s 6(6) ‘reasonable treatment’ is 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 determinative issue in this review is whether, during the qualification period, Mr Ghattas suffered an impairment of 20 points or more under the Impairment Tables, was severely disabled, and if so, whether he had a continuing inability to work.
Section 5(2) provides that the Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms, and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment. They are not designed to assess conditions.
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned. In other words, a person may be diagnosed with a condition but the impairment rating from the condition may not result in any functional impact on that person.
It is therefore necessary to consider Mr Ghattas’ medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T‑documents). Additional medical reports were provided by Mr Ghattas.
THE CRITERIA BY WHICH MR GHATTAS IS TO BE ASSESSED IN ORDER TO QUALIFY FOR DSP?
The legal representative for Mr Ghattas argued strenuously that Mr Ghattas qualified for the DSP, in accordance with the determination of the Full Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75; (2013) 213 FCR 532, where the court found:
Whilst the use of the word “unless” would in some other contexts indicate a limitation, in the case of article 12(4), we consider that it does no more than set out the boundaries of, or limit, the extent to which s 94(1)(e)(ii) is “overridden”. The effect of article 12(4) is that, where a person has “accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand” in the sense discussed above, he or she is “entitled to claim a disability support pension”. To say a person is entitled to claim a benefit would ordinarily and naturally mean that that person has acquired some entitlement to the benefit, as opposed to having acquired merely a right to claim, in the sense of “request”, the benefit. Indeed, reference to the Macquarie Dictionary on-line and in print (Macquarie, 2008, p 317) indicates that this is in fact the ordinary and natural meaning of the expression “entitled to claim”. Thus, this Dictionary gives the verb “to claim” the primarily meaning of “to demand by or as by virtue of a right; demand as a right or as due” (emphasis added).
Article 2 of the Agreement shows what article 12(4) contemplates by a person becoming “entitled to claim a disability support pension under th[e] Agreement”. The effect of article 2(1)(a)(ii) is that a person (who falls within article 3) may, under the Agreement, claim a disability pension for which the Social Security Act makes provision. The effect of article 12(4) is that where a person has “accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand” that person can seek a disability support pension as of right, providing he or she satisfies article 2(2) (and any other relevant provision of the social security law that has not been overridden by the Agreement).
Article 2(2), not article 12(4), is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement. Thus, article 2(2) expressly provides that “[f]or the purposes of this Agreement an Australian disability support pension ... shall be limited to cases where” the person is severely disabled (article 2(2)(a), read with article 1(1)(l)); was a resident of Australia or New Zealand at the date of severe disablement (article 2(2)(b), read with article 1(1)(f)); and was residing in New Zealand for a period of not less than one year at any time prior to the date of severe disablement (article 2(2)(c)). …
Further, to construe article 12(4) of the Agreement in the manner for which the Secretary contends would not be justified in light of the preamble to the Agreement. If article 12(4) is construed as the Secretary contends, the article will not “enhance ... equitable access” to disability support pensions. So construed, article 12(4) would, for example, place claimants under 20 years of age at a disadvantage compared with claimants 20 to 64 years of age: see [48] above.
A disability support pension is only available under the Agreement where a person is severely disabled, in accordance with article 2(2)(a), and otherwise satisfied the residence requirements in article 2(2). Where a person has an impairment sufficient to qualify as severely disabled, it is unsurprising that article 12(4) treats residence in Australia and New Zealand as equivalent, in order, as the preamble states, “to enhance ... equitable access” to disability support pensions. The position of a severely disabled person necessarily attracts unique considerations and calls for special provision, in order to meet this object.
When a claim for a disability support pension was made on behalf of the respondent on 2 March 2011, the respondent had more than 10 years of residence in New Zealand and Australia and thus met the residence criterion in article 12(4). Pursuant to article 12(4) of the Agreement, the respondent was “entitled to claim a disability support pension”. This meant that, under the Agreement, not only could he claim a disability support pension but he also satisfied the residence criterion for the pension set out in this article. By virtue of s 6 of the International Agreements Act, this residence criterion overrode the residence requirement in s 94(1)(e)(ii) of the Social Security Act. In the circumstances of the case, the respondent can be taken to be eligible to receive a disability support pension from the date when his parents first claimed the pension on his behalf.

Mr Ghattas’s legal representative referred the Tribunal to the court’s finding in Mahrous that The effect of article 12(4) is that, where a person has “accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand” in the sense discussed above, he or she is “entitled to claim a disability support pension. Mr Bates submitted that there was no requirement to assess Mr Ghattas under the terms of the Act because the terms did not apply in his circumstances.
Mr Nguyen disagreed and submitted that the court in Mahrous had explicitly acknowledged that an individual needed to meet the criteria under both the New Zealand Agreement and the Act in order to qualify for DSP. He cited the court’s finding that “The effect of article 12(4) is that where a person has “accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand” that person can seek a disability support pension as of right, providing he or she satisfies article 2(2) (and any other relevant provision of the social security law that has not been overridden by the Agreement).”
The Tribunal does not accept that an international agreement can displace the provisions of statute. In effect, this would result in New Zealand citizens having an easier path to qualify for DSP than Australian citizens. The Tribunal instead concurs with the decision of Deputy President Walsh in Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541:
Having considered the New Zealand Agreement as a whole, the Tribunal is not persuaded that article 2(2) provides an alternative means of qualification for disability support pension. It seems unlikely this was ever intended. Indeed, the alternative view would lead to a situation where an Australian citizen, born in Australia and who had lived most of their life here, could rely on the New Zealand Agreement to qualify for disability support pension, if they happened to have lived in New Zealand for 12 months or more as a child, for example. It is difficult to discern why such an individual, who would not need to rely on the New Zealand Agreement to meet the necessary residency tests, should be relieved of requirements to have an impairment rating of at least 20 points under the Impairment Tables and a continuing inability to work (including meeting the program of support requirements if they did not achieve an impairment rating of 20 points under a single Table). And, as the Secretary submits, it is difficult to see why it would be intended that a person who relies on the New Zealand Agreement would not have to meet the requirements for any condition/s to be fully diagnosed, fully treated and fully stabilised before impairment might be assessed, these requirements applying to claimants relying on the Act alone. These ordinary requirements derive from the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination); the relevant determination not being part of the social security law, it is therefore not picked up in the New Zealand Agreement.
DOES MR GHATTASHAVE A PHYSICAL, INTELLECTUAL, OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, a person must firstly suffer from an impairment.
Both parties accept that Mr Ghattas is suffering from spinal, brain and mental health conditions. Accordingly, the Tribunal finds that Mr Ghattas is suffering from an impairment and meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments are assigned a rating of 20 points or more under the Impairment Tables.
Additionally, s 94(1)(e) of the Act outlines the residency requirements to qualify for the disability support pension. Mr Ghattas was not a resident as defined by the Act nor did he have 10 years of qualifying Australian residence at the time of his application. Therefore, he can only qualify for the disability support pension in accordance with Schedule 3 of the New Zealand Agreement. It is agreed that Mr Ghattas had an aggregate of 10 years residence in Australia and/or New Zealand and therefore the provisions of the New Zealand Agreement apply.
DOES MR GHATTAS HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Traumatic brain injury
Dr Jane Mitchell, radiologist, verified a CT brain scan on Mr Ghattas on 21 September 2012, on which she reported:
Clinical notes: head injury persistent cognitive decline
Findings: There is normal appearance of the cerebral and cerebellar parenchyma with normal grey/white matter differentiation. The ventricle and suical pattern is within normal limits
no intra-nor extra axle haemorrhaging is identified
Moderate mucoperiostoal thickening is identified with the ethmoidal air cells.
No fracture of the skull bolt is identified on bone window
Conclusion: unremarkable CT brain
Dr Vaidya Bala, consultant physician in rehabilitation medicine, in a report of 16 November 2012 opines: my impression is that this gentleman has sustained a mild brain injury complicated with post concessional disorder with cognitive, somatic behavioural issues.
Dr Tah Wei Hau, the general practitioner who had been treating Mr Ghattas since 2013, advised in a TAC medical certificate of 31 July 2015 that his clinical diagnosis (based on his examination of Mr Ghattas) was of a mild closed head injury resulting from an accident on 11 July 2012.
Dr Bala, in a medico-legal report dated 27 July 2015 opined that:
Whether the injury or condition has stabilised: in my clinical opinion, the client’s initial medical condition which is a mild traumatic brain injury has resolved and stabilised completely. The client has been subsequently complicated with post concussion disorder presenting with intermediate headaches and dizziness which appear to be rather re-presenting episodically. In my clinical opinion, there appears to be a significant self perceived disability and presentation that is impacting on stabilisation of his symptoms. However from an impairment perspective his clinical condition has stabilised.
With the injury is likely to deteriorate further over time: in my clinical opinion, the mild traumatic brain injury had completely resolved. The client will quite possibly experience experiencing recurrent episodes of dizziness, loss of balance and heightened psychological symptoms of anxiety and depression indefinitely.
The likely future need if any for surgery, maintenance type treatment of pain control: in my clinical opinion, the client does not require any further surgical intervention. The client needs to be monitored by general practitioner for ongoing pain management using simple analgesics and adopting nonpharmacological interventions. The client should not be prescribed with any opioid analgesic due to high risk of addiction and psychological dependence. The client would also benefit with clinical psychological counselling which can be triggered by his general practitioner is required.
The effects of the injury or condition on our client’s capacity for employment: My clinical opinion the client does have the physical capacity to return to alternative duties, however, the current barriers appear to be a self perceived disability and heightened psychological stresses with anxiety and depressive symptoms. The client also has a poor understanding of his clinical condition which all acts as a significant barrier for his return to work and independent living. To further complicate the situation the client is also experience some psychotic thoughts as stated by Dr Tom Eimany in his letter dated 3 September 2014 complicating his psychological situation further requiring assessment. Overall my clinical opinion the client psychological status is going to be a barrier capacity to return to suitable employment
Effects of the injury or condition upon activities of daily living, or on domestic, leisure or social activities: I last reviewed the client on 24 September 2014. At that stage the client was physically independent with his transfers and mobilisation the single point stick short distances, however, chose to use an electric scooter for long distance mobility. He stated that he was independent with self-care and light domestic tasks, however, I’m unable to comment on his community activities of daily living. It appears that his psychological status was impacting on his independent living and to self advocate for himself as stated by Dr Tom Eimany psychiatrist in his letter dated 3 September 2014
Dr Tom Eimany, consultant psychiatrist at the Victorian Rehabilitation Centre, in a report of 12 April 2016 opined that Mr Ghattas:
…..suffers from mild brain injury with post concussive disorder. He has developed psychotic illness characterised by severe thought disorder. Associated with that is also some depression and anxiety symptoms.
He currently experiences a result of his head injury cognitive impairment in the form of impaired memory, concentration and information processing speed, and dizziness and back pain
He is severely impaired by symptoms and has to utilise a scooter to get around. He also requires notes to do even simple task due to impaired memory.
He is currently on risperidone 4 mg and sertraline 300mg daily. For pain he is receiving the wrecker, panadol osteo.
I strongly advocate that he be given disability support pension.
Mr Bates argued that Mr Ghattas sustained a brain injury as a result of a motor vehicle accident in 2012 and has not been able to work since. He also submitted that this has been recognised by the courts through settlement with TAC and in respect of superannuation payouts.
The Respondent contended that Mr Ghattas was not suffering from a brain injury during the qualification period as there was no diagnostic test or cognitive function assessment which supports a finding of any ongoing impairment due to Mr Ghattas mild traumatic brain injury.
During the hearing Mr Ghattas was asked about the impact of the accident in 2012, in which the ambulance accident report noted minimal damage to his vehicle. In response, he stated: the car was written off. What do you imagine happened to the person inside and that problems started later on, during the accident I didn’t feel anything but problems came later on.
However, there was no medical evidence during the qualifying period which indicated that Mr Ghattas suffered from a mild brain injury which impacted his functional ability in respect of brain activity and therefore nil points could be awarded under Table 7 - Brain Function.
Cervical spine condition / Lumbar spine condition
In his undated medical report for Mr Ghattas’ DSP claim, Dr Hau diagnosed cervical spondylosis with C5/6 and C6/7 disc depression, with multilevel neural foraminal narrowing from C3 level to C7 level with impingement. Symptoms were recorded as neck and lower back pain with radiography. The impact on function was that Mr Ghattas was unable to sit, stand or walk for prolonged periods; and that his condition had worsened after his motor vehicle accident in 2012.
Dr Jaiman Emmanuel, consultant radiologist, reported on 15 April 2015 on an MRI of Mr Ghattas cervical spine, concluding: cervical spine moderate to severe spondylosis changes with multilevel neural foraminal narrowing from C3 level to C7 level with impingement of the existing nerve roots as described.
Dr Caroline Tan, consultant neurosurgeon, in a medical report dated 9 July 2015 to TAC, seeking funding for surgery for Mr Ghattas, opines:
Ashraf has been consulting me for multiple complaints are alleged to have resulted from his involvement in a motor vehicle accident in 2012. Among these complaints his neck pain, pain down the left upper limb and numbness in the third to fifth digits to the left-hand.
He has undergone MR investigation and certainly has severe degenerative disc disease with resultant severe right C4, moderate bilateral C5, moderate bilateral C6 in very severe left C7 foraminal stenosis. I do believe that he probably has symptomatic left cervical radiculopathy.
The treatment options for cervical radiculopathy has been discussed with him and surgery is in my view the most effective treatment in terms of symptomatic relief and durability of the result.
In a medical report dated 16 July 2015 to Mr Ghattas’ lawyers, Dr Tan opines:
I clinical assessment radiological investigation supports a diagnosis of cervical spine degeneration, in particular left-sided cervical radiculopathy. I also believe there is probably additional diagnosis of active depression and anxiety.
…
The foraminal stenosis seen on his cervical spine MRI can be treated surgically and indeed will be most effectively treated this way, however the need for surgery is not absolute and many of his diverse symptoms are not totally unrelated to the foraminal stenosis and therefore will not respond to surgery. Mr Ghattas clearly has a chronic pain syndrome and that appears to be impounded and exacerbated by poor physical condition, depression and possibly also anxiety.
The Respondent accepted that Mr Ghattas’ cervical spine condition was fully diagnosed at the date claimed as he suffered from degenerative changes and cervical spondylosis. However, the Secretary did not accept the condition was fully treated or stabilised because recommended interventions, which they considered reasonable, had not been undertaken. Therefore, they argued nil points should be awarded to this condition under Table 4- Spinal Function.
Mr Ghattas’s legal representative argued that Mr Ghattas suffers from various physical ailments that have a restrictive effect on his ability to leave his house and he requires the use of a mobility scooter.
In assessing Mr Ghattas’s level of impairment arising from the condition, the Tribunal considered the evidence from his doctors and from Mr Ghattas himself regarding his daily activities, as against the descriptors for a severe impairment under Table 4:
There is a severe functional impact on activities involving spinal function.
(1)       The person is unable to:
(a)       perform any overhead activities; or
(b)       turn their head, or bend their neck, without moving their trunk; or
(c)       bend forward to pick up a light object from a desk or table; or
(d)       remain seated for at least 10 minutes.
Mr Ghattas told the Tribunal that since the accident his actual movement has slowed down greatly and the pain affects him daily. He cannot stand for long periods of time, cannot walk and has had numerous falls since 2014. He stated that he no longer drives his car but travels with his wife. She is still on her learners permit but he hopes she will get her full licence so he will no longer have to supervise her when driving. Mr Ghattas also stated that he uses a walking stick but he does not walk much, relying upon his motorised scooter for all his mobility needs.
There was no corroborating medical evidence at the date of claim which indicated that Mr Ghattas could not perform overhead activities, bend forward to pick up a light object from a table or turn his head/neck without turning his trunk. His cervical spine condition was not impacting his functional ability. Therefore, the Tribunal awards nil points under Table 4 to this condition.
The Respondent accepted that Mr Ghattas’s lumbar spine condition was fully diagnosed at the date of claim, as reported in the MRI of 13 September 2015. However, they did not accept the condition was fully treated or stabilised as no recommended physiotherapy had been undertaken. Therefore, Mr Nguyen argued that nil points should be awarded for this condition under Table 3 - Lower Limb Function.
The Respondent noted that Mr Ghattas reported using a mobility scooter and walking stick. However, Mr Nguyen contended there was no evidence that Mr Ghattas required the use of such aids. To support this assertion he relied upon the report of Dr Tan dated 16 July 2015, in which she stated that Mr Ghattas chose to use an electric scooter for long distance mobility and that he was physically and functionally independent. The Respondent referred to rule 6(1) of the Impairment Tables which provides that, when assessing functional capability impairment, the person must be assessed on the basis of what the person can or cannot do, not on the basis of what the person chooses to do or what others do for the person.
Mr Bates provided a medical certificate from Dr Hau, Mr Ghattas’s general practitioner, dated 12 July 2016, which stated:
on the balance of probabilities, I have considered part three – the tables in the above-mentioned satisfies at least 20 points under the tables because he has a severe impairment on activities requiring physical exertion or stamina.
The functional impact upon Mr Ghattas was explored under Table 3 of the Impairment Tables as his accepted condition primarily impacts on his lower limbs. In particular, the Tribunal explored his capacity in respect of a ‘severe functional impact’ under Table 3.
There is a severe functional impact on activities using lower limbs.
(1)       The person:
(a)       is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b)       requires assistance to use public transport.
(2)    This impairment rating level includes a person who requires assistance to:
(a)       move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)       move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Mr Ghattas told the hearing:
·his wife did the majority of the shopping and occasionally he would assist her but he was unable to walk around the shopping centre or supermarket without assistance;
·that he utilised his scooter wherever he can and when he can’t use the scooter he walks with his stick;
·that he couldn’t walk from the carpark into a shopping centre without assistance; he would utilise his scooter to the door of the shopping centre or supermarket and inside the shopping centre/supermarket if able. He would utilise his stick if he could not take the scooter inside (Mr Ghattas was on his scooter during the hearing).
·that he can’t stand up from a sitting position without using his stick or another solid object such as a desk.
·that he no longer uses public transport because they have a car, but he would need assistance with public transport as he cannot stand for long periods of time, has difficulty walking and has had numerous falls.
The medical evidence at the during the qualification period indicated that Mr Ghattas was unable to sit, stand or walk for prolonged periods. His cervical spine condition was having a mild impact on his functional ability. Therefore, the Tribunal awards him 5 points under Table 3 for this condition.
Mental Health
Dr Hau, in his undated medical report for Mr Ghattas’s DSP claim, diagnosed depression which resulted in low mood, low drive and low energy. The condition impacted Mr Ghattas’s functional ability as he was unable to concentrate and was too tired for standard activities. Again, this condition had worsened after the motor vehicle accident in 2012.
A report from Robert Kedge, RPN3, dated 21 April 2014 states:
Ashraf Ghattas has been inferred and accepted by mental health harp who operate from Sunshine Hospital. The aim of MH harp is to reduce the number of presentation by clients the emergency department at both Footscray and Sunshine Hospital, who have mental health issues, usually anxiety and depression.
In the last 12 months Ashraf has had 4 presentations to ED, and 4 admissions into hospital. On two occasions he was assessed by ECATT as he presented with suicidal ideation, though he denied this when seen at home on 11/04/2014. He will be seen weekly by MH HARP depending on his needs.

In a medical report for AustralianSuper dated 24 September 2014, Dr Tom Eimany, psychiatrist, opines that Mr Ghattas suffers from post concessional syndrome and major depression which results in severe dizziness, unsteady gait, low mood, markedly impaired memory/concentration and severe headaches. He is unable to walk and stand safely for extended periods. He requires help with most tasks that require thinking and judgement.
The Respondent accepted that Mr Ghattas’s mental health condition was fully diagnosed at the date of claim. However, they did not accept the condition was fully treated or stabilised as Ms Jeanie Dougall, registered psychologist, had expressed a view that she expected ongoing improvement and benefit in Mr Ghattas psychological health from ongoing counselling sessions on a fortnightly basis for the next 12 months. Therefore, Mr Nguyen argued nil points should be awarded this condition under Table 5.
Mr Bates provided a medical report for the hearing from Dr Eimany, dated the 12 April 2016, which states:
Ashraf suffers from mild brain injury with postconcussive disorder. He has also developed psychotic illness characterised by severe thought disorder. Associated with that is also some depression and anxiety symptoms.
He currently experiences a result of his head injury cognitive impairment in the form of impaired memory, concentration in formation processing speed and dizziness and back pain.
He is severely impaired by symptoms and has to utilise a scooter to get around. He also requires notes to do simple tasks due to him(his) impaired memory.
He is currently on risperidone 4mg and sertraline 300mg daily. The pain he receives Lyrica, Panadol osteo.
I strongly advocate that he be given disability support pension.
Dr Brendan Heyman, consultant psychiatrist, stated in a medicolegal report dated 9 June 2017:
What can be said, is consequent to the motor vehicle accident he has developed a chronic adjustment disorder with depression and anxious mood. This has occurred consequent to his injuries, his ability to return to work his financial predicament etc.
There also appears to be evidence of chronic pain disorder associated with both psychological factors and a general medical condition. He has ongoing and disproportionate pain than expected from the nature of the injury sustained. He also has some atypical features, including the apparent dizziness and unsteadiness, which appears to be a somatoform component. Increasingly he has become invested in the sick role and is dependent on his wife. Over time he has ceased ambulating without a stick and now largely uses a motorised scooter.
At the hearing, Table 5 was explored in respect of the functional impact of Mr Ghattas’s mental health condition, with a focus on whether or not he has a severe impairment.
An impairment rating of 20 points will be assigned under Table 5 where there is a
severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)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.
(b)(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)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.
(d)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.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)(f)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.
Mr Ghattas advised the Tribunal that he:
·is unable to look after himself. He said that on some days he can perform some activities, but others he cannot. It is sometimes possible for him to do activities independently but he is always tired afterwards and needs to rest. He said he is fully dependent upon his wife;
·is socially withdrawn, avoids people and fundamentally doesn’t engage with people. He had discussed this problem of communicating with other people with the psychologist. He had tried to undertake volunteer work with the Smith Family but had stopped as he had difficulty interacting with people;
·has a great deal of difficulty interacting with other people and rarely left his home. He said he wakes up tired and his wife gets their son ready for school and he must go with her to drop their son off because she only has a learner’s permit. Once they get home he must rest again. He may do a bit of shopping to assist his wife; but again, he must rest. In the afternoon he picks up his son from school with his wife. He then watches a little bit of television, takes his medication and goes to bed. He does attend church on Sundays so his son can go to the Sunday school but fundamentally he stays in the car and doesn’t interact with anybody. He told the Tribunal I’m not a social person. I don’t really mix with other people;
·has great difficulty concentrating, that he forgets things and his memory is no good. He writes himself notes when going to the doctor or shop and then forgets he has written the note. He will make himself a coffee and forget about it. So he will put it in the microwave to warm it up and then will forget about it and only discovers it when he goes the microwave maybe a day or two later. He can’t complete a whole task and is unable to assist with cooking anymore. He no longer reads as he gets half-way through an article and can’t remember what he’s been reading. He gets very frustrated and quit his volunteer work because he was embarrassed by his inability to concentrate;
·can’t make decisions or plan. His new medication was helping him stop the bad thoughts which came into his mind but the side-effects of the medication were impacting his sleep. He told the Tribunal that his son tells him off because he can never remember anything. He recounted a period in 2013 when his wife returned to Egypt for medical attention and he was left to look after their son alone. He was unable to do so and the Department of Human Services intervened, placing his son into care for a short period and Mr Ghattas was eventually taken to hospital. At the suggestion of his priest, he then travelled to Egypt with his son, to leave him in the care of his wife and her family in Egypt. He could not recall the trip but he had utilised wheel chair facilities at all airports;
·has no ability to work or train.
Mr Ghattas’s mental health condition (described as a chronic adjustment disorder or somatoform disorder with anxiety and depression) had been fully diagnosed, treated, and stabilised and was having a severe functional impact on his activities. It was difficult to distinguish whether Mr Ghattas’s inability to perform activities such as self-care, independent living and concentration were caused by the perceived pain from injuries from his motor vehicle accident or from the pain from his spinal condition, or whether it was a result of his mental health condition.
Mr Ghattas’s appearance and testimony at the Tribunal emphasised his absolute belief that he had been involved in a serious car accident which had left him a crippled mess unable to cope with life because of his injuries. He has debilitating pain and poor concentration and memory because of his traumatic brain injury. Mr Ghattas’s self-diagnosis was not borne out by the medical evidence or the physical evidence of the accident. However, it may be accounted for by his diagnosis of Somatoform disorder (SSD), which is characterised by an extreme focus on physical symptoms (such as pain or fatigue) that causes major emotional distress and problems functioning. Individuals with SSD often think the worst about their symptoms and frequently seek medical care; continuing to search for an explanation even when other serious conditions have been excluded.[2] Health concerns may become such a central focus of the individual’s life that it is hard to function, sometimes leading to disability.[3]
[2] Mayo Clinic, Patient Care and Health Information (8 May 2018) < Ibid.
Mr Ghattas’s mental health condition was having a severe impact on his functionality, as he:
·had difficulty with self-care and independent living;
·fundamentally doesn’t do much, is withdrawn, avoids people and is severely depressed and anxious;
·had an inability to interact with other people;
·had great difficulty with concentration and memory;
·had disturbed behaviour and thoughts, resulting in his inability to plan and make decisions;
·was unable to work or train because of his inability to make decisions, plan and manage interpersonal relationships.
Therefore, the Tribunal awarded this condition a rating of 20 points under Table 5 of the Impairment Tables.
DOES MR GHATTAS HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mr Ghattas must not only satisfy the requirement that he has an impairment with a rating of 20 points or more under the Impairment Tables, but he must also demonstrate that he has a continuing inability to work. Mr Ghattas would be considered to have a continuing inability to work if his impairment is of itself sufficient to prevent him from doing any work independently of a program of support. The Tribunal found that Mr Ghattas’s impairment was severe and therefore was of itself sufficient to prevent him from doing any work independently of a program of support or undertaking any training activity during the next two years. Mr Ghattas therefore satisfies thes 94(1)(c)(i) requirement under the Act.
Mr Ghattas attended Matchworks for Disability Employment Services from 17 July 2015 to 30 June 2017 as a discretionary participant. As he was not in receipt of Newstart allowance, he was not compulsorily required to attend. He had not met the required 18 months participation before he lodged his claim on 2 May 2016 and therefore has not completed a program of support. Consequently, he does not satisfy s 94(3C) of the Act.
Dr Tom Eimany, psychiatrist, in a medical report dated 29 September 2014, opined that it is very unlikely Mr Ghattas will return to work in any capacity, now or at any time into the future
Dr Tan, consultant neurosurgeon, in a medical report to Mr Ghattas’s lawyers dated 16 July 2015, opines: There is no medical reason to support any contention that he is totally incapacitated for any employment for which he is suited by virtue of his prior work experience and education. Neither would he have full capacity for suitable employment as he probably does have symptomatic cervical radiculopathy. Therefore he does have some capacity for suitable employment.
Ms Jeanie Dougall, registered psychologist, in a medico-legal report dated 26 October 2016 opined:
I’m of the opinion that Mr Ghattas is not fit for any employment duties at this time. His adjustment disorder symptoms are simply too severe at present and need to be reduced and managed appropriately before considering any form of return to work. The current primary barrier to his recovery and his return to work is the severity of his current psychological and physical symptoms. He simply is too unwell at present to even consider a possible return to work at this stage and requires ongoing intensive psychological counselling … At the time of writing this report, I’m of opinion that he is currently unable to work for the time being and the foreseeable future.
Dr Michael Epstein, psychiatrist, in a medico-legal report dated 18 May 2017, stated:
Ashraf Ghattas was injured in a minor transport accident on 11 July 2012 and has become severely disabled despite a lack of objective pathology.
He appeared to have developed a chronic pain disorder with both psychological factors and a general medical condition that is the initial bruising arising from the transport accident and still has pain involving much of his body. Diagnosed terms have changed since he was last seen the current enlivened diagnosis is a Somatoform symptom disorder with predominant pain
From a psychiatric point of view he still has a major depressive disorder of moderate severity, present to a lesser degree before this accident that appeared to have been exacerbated by his ongoing perception of pain coming from the accident.
His diagnosis for improvement remains poor and his condition is still stable. He is unable to return to the workforce in any capacity because of his perception of his degree of disability. His quality of life has diminished markedly affecting his work capacity, his relationship and his recreational enjoyment.
A JCA report of 27 January 2017, undertaken by a registered psychologist during a face-to-face assessment, found that Mr Ghattas had a baseline work capacity of 8‑14 hours per week, as:
The client has been diagnosed with multiple medical conditions. It is assessed that the symptoms and functioning impact that the client experiences (mobility restrictions, dizziness, physical restrictions, difficulty with overhead activities, cognitive impairment including memory and concentration, social isolation, irritability) have a moderate impact on daily functioning therefore the clients work capacity is recommended to be eight-14 hours per week
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal as to whether the conclusions in a JCA report should be preferred to those in a medical report for the purpose of assessing a continuing inability to work. I do not think an absolute preference should be expressed for either report; rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or made assessments that formed part of the report), the duration and frequency of the report, the writer’s relationship with the subject of the report, and the reliability and depth of the analysis within the report.
Numerous psychiatrists and psychologists who have assessed Mr Ghattas in respect of his TAC claim and his DSP claim have determined that he is unable to work now or into the future. However, the majority have indicated that with intensive psychological counselling he should be able to return to the workforce. Mr Ghattas has no identified physical barrier which would impact his functional ability to return to the workforce. The latest JCA assessment undertaken on 27 January 2017 did identify significant barriers to Mr Ghattas returning to the workforce. As Mr Ghattas has 20 points under one table, the Tribunal found that he has a continuing inability to work.
IS MR GHATTAS SEVERELY DISABLED?
In accordance with the New Zealand Agreement, Mr Ghattas’s impairments must make him (without taking into account any other factor) totally unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program.
For the reasons given in paragraphs 77 to 84, it cannot be said that Mr Ghattas’s impairments would make him totally unable to benefit within the next two years from participation in the program of assistance or rehabilitation program.
CONCLUSION
The Tribunal has awarded 5 points to Mr Ghattas under Table 3, as he has mild but not severe issues with his lower limbs. Additionally, the Tribunal has awarded 20 points under Table 5 to Mr Ghattas, as he has a severe functional impact from his mental health condition.
However, at the date of his application, Mr Ghattas was not qualified to receive the DSP. While his impairments attracted a total of 25 impairment points across two Impairment Tables (20 of which had been allocated under one table), but he was not found by the Tribunal to be severely disabled as required by the New Zealand Agreement.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

[sgd]..................................
Associate
Dated: 19 October 2018

Date of hearing: 2 August 2018

Advocate for the Applicant:
Mr Michael Bates

Solicitors for the Applicant: Berrill & Watson Lawyers

Advocate for the Respondent: Mr Nguyen

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 3937

19 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	2 August 2018
Advocate for the Applicant:	Mr Michael Bates
Solicitors for the Applicant:	Berrill & Watson Lawyers
Advocate for the Respondent:	Mr Nguyen
Solicitors for the Respondent:	Sparke Helmore Lawyers