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

Halimi and Secretary, Department of Social Services (Social services second review) [2020] AATA 2878 (12 August 2020)
Division:GENERAL DIVISION
File Number: 2019/1385
Re:Samar Halimi
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna E Burke AO, Member
Date:12 August 2020
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that
Ms Halimi satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby continued to qualify for the Disability Support Pension from the date of cancellation.
.....................[sgd]...................................................
Ms Anna E Burke AO, Member
Catchwords
SOCIAL SECURITY – cancellation of disability support pension – whether qualified – from shoulder condition and depression – whether impairment attracts rating of 20 points or more under Impairment Tables – whether continuing inability to work – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms Anna E Burke AO, Member
12 August 2020

Ms Halimi (the Applicant) is seeking a second-tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) to cancel her Disability Support Pension (DSP) pursuant to s 80 of the Social Security (Administration) Act 1999 (Administration Act). Centrelink is the service provider for Services Australia (formerly the Department of Human Services).
The application was heard via telephone on 9 June 2020. Ms Halimi was self-represented and Ms Anneliese Massey, solicitor of Sparke Helmore Lawyers, appeared for the Respondent. Ms Halimi gave evidence under affirmation and was cross-examined by Ms Massey.
ISSUES IN CONTENTION
The issue is whether Ms Halimi’s DSP should remain cancelled by assessing if she had at the date of cancellation:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which result in impairments attracting 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)a continuing inability to work.
BACKGROUND
Ms Halimi is a 53-year-old woman of Lebanese background, having migrated to Australia as a child. She is divorced and lives with her adult son. Ms Halimi completed year 12, undertook a business course and then worked as a clerical assistant for Medicare for several years, until she retired on the grounds of ill health. Ms Halimi has not been in the paid workforce for over 20 years.
Ms Halimi had been in receipt of the DSP since 9 August 2001.
On 3 September 2019, Centrelink conducted a face to face Job Capacity Assessment (JCA) of Ms Halimi and determined her impairment rating was nil points, finding that:
Psychol/Psychiatric Disorder – other
…
This condition is considered to be fully diagnosed (diagnosed by clinical psychologist with confirmation by GP), but not fully treated or stabilised. The recipient has not consulted with a psychiatrist since 1994. The available information indicates an exacerbation in the condition which has led to the recipient being re-referred for psychologically counselling. Further intervention may result in functional gain.
Symptoms: Dr Ahmed Al-Talib (GP 16.8.2018) reported history of chronic depression (severe) used to affect her ADL. Dr Ahmed Al-Talib (GP 16.8.2018) reported stable on medication. Depression stable, sometimes fluctuation in low mood, can't be bothered, poor concentration.
Recipient reported that she can't be bothered seeing anybody, that her concentration is on and off. When asked about what she does during the day the recipient reported that she lazes around and sometimes goes with a friends to the shops. She stated that she drives short distances (10-15 minutes) and her son also drives her. She reported that whether or not she attends social events depends of her mood, she stated that she sometimes goes for one hour and then leaves. She reported that she is moody. Recipient reported that she is independent with self cares.
…
Musculo-skeletal Disorder – other
…
This condition is considered to be fully diagnosed (confirmed with imaging), but not fully treated or stabilised. The current medical information does not indicate that the recipient has undergone any treatment for this condition since 1992. In addition to this the GP Dr U Rind (15.8.2018) reported that the condition (shoulder pain) is being investigated. Dr A Al-Talib (G) 16.8.2018) did not include this condition in Medical Report Section B SA012. Further assessment and specialist intervention may result in functional gain considering the reported severity of functional impact.
Symptoms: Recipient reported that she has difficulty with heavy lifting and repetitive tasks. She reported that she has difficulty hanging clothes on the washing line (line is low) and that her hands stiffen. She reported that she is able to fasten buttons, lift one litre of milk, and hold a pen and write, can manipulate coins and reach out to pick up an item. She reported that she can unscrew a bottle or jar top depending on the tightness. She reported that she can reach overhead if this is a 'one off’ movement. Recipient agreed that lateral flexion of his neck is not restricted. She reported that sudden neck movements cause blurry vision.
…
Work capacity
…
The customer's FDTS work capacities are 30+ hours per week, as the customer does not have any permanent, fully diagnosed, treated and stabilised medical conditions.
On 13 September 2018, Centrelink advised Ms Halimi by writing that: After considering your circumstances, we have made a decision that you are not eligible for Disability Support Pension.
On 9 October 2018, on internal review, an Authorised Review Officer (ARO) of the Department affirmed the earlier Centrelink decision to cancel Ms Halimi’s DSP. The ARO stated:
I have found that your bilateral shoulder pain and mental health conditions cannot be considered permanent.
Bilateral shoulder pain
In a report dated 15 August 2018 Dr. Rind said you have been diagnosed with bilateral shoulder pain. This is listed as a medical condition that is generally well managed, and causes minimal or limited impact on your ability to function. The doctor states they are currently arranging investigations into the cause of the pain.
A Job Capacity Assessment report dated 6 September 2018 says that ultrasound reports have been provided confirming the presence of subacromial/subdeltoid bursitis in the left and right shoulders. The assessor states you reported completing a pain management program, chiropractic treatment and physiotherapy for this condition 15 to 20 years ago. The historical medical evidence held by the department confirms you consulted a neurologist in August 1992, and a specialist in rehabilitation medicine in October 1991.
You advised the Job Capacity Assessor that you currently have physiotherapy every now and then. You have a hand splint that you wear every few nights, and you take pain medication.
The current medical information indicates you have not undergone any treatment for this condition since 1992. I also note that in his report dated 16 August 2018 Dr. Al-Talbi did not include this condition in the medical report.
Based on available evidence I have determined the condition is fully diagnosed, however cannot find it to be fully treated and stabilised for the purposes of Disability Support Pension as you are currently undergoing investigations and further medical intervention may result in an improvement to your ability to function within the next two years. I am therefore unable to consider it permanent under social security law and as such cannot assign an impairment rating.
Mental health condition
In a report dated 16 August 2018 Dr. Al-Talbi advised you have been diagnosed with depression, and the onset of this condition was 2001. Past treatment is listed as medication, psychiatrist and psychologist referral, and future treatment is noted as anti-depressant medication. The doctor advised the depression is stable but sometimes fluctuates. You experience low mood and poor concentration.
In a report dated 15 August 2018 Dr. Rind said you have had depression for the past 18 years, and currently see a psychologist. This is listed as a medical condition that is generally well managed and causes minimal or limited impact on your ability to function.
In a report dated 16 August 2018 Dr. Kurt (clinical psychologist) stated you were referred for psychological assessment and intervention by your GP via a mental health treatment plan. You have attended two sessions, and further scheduled a number of appointments until the end of the year. The doctor noted you have a history of depression and generalised anxiety and have sought psychiatric intervention in the past.
A Job Capacity Assessment report dated 6 September 2018 notes that you have not consulted with a psychiatrist since 1994. The assessor considers the available medical information indicates an exacerbation of the depression, which has led to you being re-referred for psychological counselling. The assessor has noted that further medical intervention may result in improvements to your function within the next two years.
Based on the available evidence I have found the condition to be fully diagnosed, however cannot consider it fully treated and stabilised for the purposes of Disability Support Pension. As such an impairment rating cannot be assigned.
On 30 January 2019, the Social Services and Child Support Division (Tier 1) of the AAT affirmed the decision of the ARO to cancel Ms Halimi’s DSP. Tier 1 assigned Ms Halimi an impairment rating of 10 impairment points under Table 5 – Mental Health Function. The Tribunal found that Ms Halimi’s shoulder disorder whilst fully diagnosed was not fully treated and stabilised and as such could not award any points under the impairment tables. The Member found:
Having given consideration to the commentary provided by Dr Al-Tahib and Dr Kurt, and Mrs Halimi’s evidence at the hearing, the tribunal considers the most appropriate interpretation of Mrs Halimi’s condition at the time of review and the subsequent cancellation of her pension was that the condition had been fully treated and stabilised, and that this conclusion is not negated by the recent exacerbation of her symptoms.
In consideration of the application of an impairment rating under Table 5, the tribunal is aware that the level of impairment described by Dr Al-Talib could reasonably be interpreted as being mild. However, Dr Kurt has provided a more specific description of psychological symptoms, and the tribunal accepts Mrs Halimi’s evidence at the hearing that symptoms of this nature are long standing and ongoing. She also commented that she experiences significant interpersonal difficulties because, at times, she will get upset and angry with friends and family, and tell them off, and then feel profoundly upset at what she has done. On balance, and noting the variability in the severity of symptoms over time, the tribunal has assigned a 10 point rating under Table 5 on the basis of moderate impairment in the domains of interpersonal relationships, concentration and task completion, behaviour and work/training capacity.
With regard to the bilateral shoulder pain, the tribunal notes that subsequent imaging studies have been undertaken after the date of cancellation of benefit. While the tribunal is mindful that chronic pain has been diagnosed and treated in the past, the view of the tribunal is that the pain condition was not fully treated and stabilised at the time of cancellation of benefit.
Mrs Halimi has a combined impairment rating of 10 points. As an impairment rating of twenty points has not been established, Mrs Halimi’s circumstances no longer satisfy paragraph 94(1)(b) of the Act. If a person does not satisfy paragraph 94(1)(b), they are no longer eligible to receive disability support pension, and consideration as to whether or not they have a continuing inability to work is not required.
On 8 March 2019, Ms Halimi sought a review of the Tier 1 decision by this division of the Tribunal as she believed the decision was incorrect stating:
Because I have a neck, shoulder, had problem which is making me limited in doing my daily chors… [sic]
I am willing to go to any doctor or test you refer me to…
RELEVANT LEGISLATION AND ISSUES
As Ms Halimi’s DSP was cancelled after the introduction of the Social Security and Other Legislation Amendment Act 2011 and the Impairment Tables. Her eligibility for the DSP must now be determined in accordance with the Impairment Tables.
The power to cancel Ms Halimi’s DSP is provided by s 80 of the Administration Act which provides that, if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, “the Secretary is to determine that the payment is to be cancelled or suspended”.
It follows that in order to qualify for DSP, Ms Halimi must satisfy the requirements of s 94 of the Social Security Act 1991 (the Act) as at 13 September 2018, the date on which Centrelink cancelled her DSP (time of cancellation).
Section 94(1) of the Act provides that a person is qualified 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;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Impairment Tables; s 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 requires 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.
For the purposes of s 6(7) of the Impairment Tables, 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 qualifying period, Ms Halimi suffered any impairment(s) that can be assigned 20 points or more under the Impairment Tables; and, if so, whether she had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Part 2, section 5(2).
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 a person chooses to do or what others can 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 can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
The Guide to Social Security Law reiterates that for a person to qualify for DSP they must have a rating of at least 20 points and a continuing inability to work (CITW). Both aspects are of equal importance. The CITW criteria is that an individual must be unable to work for 15 hours or more per week and be unable to be retrained for such work in the next two years.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the AAT Act, referred to as the “T documents”, and additional medical reports that were lodged by Ms Halimi.
DOES MS HALIMI HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The Respondent accepts that Ms Halimi is suffering from a bi-lateral shoulder disorder, and depression. The Tribunal finds that Ms Halimi was living with impairments during the qualifying period and therefore 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 the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MS HALIMI HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Shoulder disorder
On 15 October 1991, Dr Clayton Thomas, specialist in rehabilitation medicine opined:
I have no doubt that she has developed a left occupational overuse syndrome of a myofascial nature, and I believe that the sequence of events is tenosynovitis due to the tremendous amount of keyboarding that she was doing at the time, developing at her wrist and causing her to hold her hand in an abnormal way, affecting the elbow and subsequently the shoulder and then the shoulder girdle and neck. Once it reaches this proximal musculature, it is extremely hard to eradicate.
On 17 August 2001 Dr Mario Marazita, general practitioner, provided a Centrelink treating doctor’s report for Ms Halimi’s original DSP claim, noting she had been his patient since 1996. He stated Ms Halimi had been diagnosed with myofascial persistent syndrome neck and shoulders chronic pain in the past several years following “repetitive strain” injury, noting a functional overlay. Dr Marazita noted that she was receiving physiotherapy and pharmacological treatment.

On 29 December 2001, Dr Marazita reported a diagnosis of chronic myofascial pain syndrome in the neck and right shoulder; present for several years with chronic pain due to overuse injury. He stated that Ms Halimi had not been responding to treatment; symptoms were aggravated by prolonged physical activity and past treatment included physiotherapy, medication and an exercise regime.
On 11 January 2005, Dr Marazita reported a diagnosis of chronic myofascial pain syndrome of the neck and right shoulder which had been present for several years, with recurrent severe pain in the neck and shoulder due to overuse work-related injury. He noted the symptoms included episodes of pain in the neck and shoulders exacerbated by home duties and tenderness in the cervical and shoulder area. Treatment included physiotherapy, analgesia and exercise. That she was unable to perform repetitive tasks and was unable to lift heavy objects.
On 15 August 2018, Dr Umber Rind, general practitioner, completed a medical report for a DSP review of Ms Halimi, diagnosing her with bilateral shoulder pain myofascial. Dr Rind stated the condition was well managed and caused minimal or limited impact on her ability to function; noting he was currently arranging investigation into the cause.
On 30 October 2018, Ms Kate McManus, physiotherapist, provided a report to Ms Halimi’s general practitioner in which she noted:
Thank you for referring Samar under the EPC program. She presented with a twenty year history of bilateral shoulder pain.
On assessment she had good range of movement in both shoulders with some mild pain at end range elevation. She had poor overall strength in her flexors and abductors and shoulder stabilisers.
Her treatment included soft tissue release of upper trapezius, levator scapular, latissimus dorsi and pec minor. She received thoracic joint mobilisation and a strengthening and stabilisation exercise program for her shoulder. She was also given advice on activity modification.
On 11 December 2018, Dr Edward Roberts reported on a CT spine cervical scan, finding:
Straightening and slight reversal of the normal cervical lordosis. No abnormality of alignment. Minor posterior disc protrusion at C5/6 level eccentric to the left of the midline. Associated mild right C6 exit foraminal stenosis. No foraminal stenosis identified on the left. Background changes of minor facet joint arthropathy. Pre and paravertebral soft tissues are unremarkable. No acute abnormality of the image lung apices.
On 8 January 2019, Dr Edward Roberts reported on a bilateral shoulder x-ray and ultrasound, concluding bilateral subacromial bursitis with subacromial artery impingement at 60 degrees abduction on the right and 30 degrees abduction on the right.
Medical certificates from Dr Al-Talib dated 25 and 29 July 2019 diagnose ongoing neck/shoulder pain secondary left occupational overuse syndrome of myofascial nature. The certificate states the condition is likely permanent and the symptoms are pain, LOM and some numbness.
Ms Halimi advised the Tribunal that she had suffered an injury at work in around 1991 which had left her with chronic ongoing pain particularly in her neck and shoulders. She said that after numerous medical opinions in around 1993 she was advised the pain would be permanent, that she needed to work out how to live with the pain and that she would have to adopt her lifestyle around this permanent condition. Ms Halimi advised that around this time, she retired on the grounds of ill health from Medicare, a job she greatly enjoyed. She was totally and permanently disabled in accordance with Comcare, as she was no longer able to perform repetitive tasks due to her debilitating pain.
Ms Halimi told the Tribunal that from 1991 onwards she had undergone numerous MRIs, x-rays and ultrasounds which all indicated severe damage to her neck and shoulders. Since that time, she said she has needed analgesia to relieve the pain and has seen a physiotherapist regularly to assist with the pain. She has adapted her lifestyle to minimise stress on her neck and shoulders but regardless they become stiff and sore, particularly if she overuses them. When this occurs, she applies hot packs, creams and takes warm showers, but whilst this procedure may ease the pain, it never completely eliminates it. Ms Halimi stated that her general practitioner had never recommended or referred her to a specialist for treatment for the condition. At various time she had issues with her arm and hands and regularly wore a splint to assist with the numbness in her fingers.
The Respondent accepts that Ms Halimi’s bilateral shoulder condition was fully diagnosed at the date of cancellation as confirmed by an ultrasound report conducted 6 September 2018, which found subacromial bursitis present in both shoulders. However, the Respondent contents that Ms Halimi’s bilateral shoulder condition was not fully treated or fully stabilised at the date of cancellation relying on the report of Dr Rind dated 15 August 2018 (one month before the cancellation date), which stated that investigations into Ms Halimi’s shoulder pain were being arranged.
The Respondent argued that there was no medical evidence in relation to the treatment or prognosis of Ms Halimi’s shoulder condition as at the date of cancellation. The Respondent noted Ms Halimi had not seen a neurologist or a pain specialist in relation to her shoulder pain for over 20 years. They argued that whilst Ms Halimi had said she had seen a physiotherapist every now and then, there was no evidence to corroborate physiotherapy treatment prior to the date of cancellation. The Respondent noted the report of Ms McManus was dated six weeks after cancellation and did not specify any dates as to when treatment was provided.
Ms Halimi rejected the contention of the Respondent and reiterated that this condition was long standing and that she had undertaken all recommended treatment. She was not of the opinion that investigation was being arranged to see if her condition could be resolved or improved, but she said she had reviews over the years to ascertain the best treatment options to assist with her debilitating pain. However, she again contended that treatment would only ever alleviate her pain and not return her to any sort of functional capacity. She told the Tribunal that since 1993 she had been advised that she had a permanent condition that she had to learn to live with. Ms Halimi said that after she was injured at work and had to leave a job she loved, she had attempted pain management and rehabilitation to return to work, but to no avail. She said her marriage ended but she was blessed to have her two sons who she depended on greatly.
Ms Halimi was insistent that her JCA went for 10 minutes, leaving no time for her to fully explain her situation. She was willing to go to any doctor to be assessed. She said that her condition had started at work in her shoulders, predominately her right shoulder but both shoulders give her pain. She told the Tribunal her pain is genuine, and she is not trying to be ‘shifty’ and if she was, she would have provided more doctors reports. She said she has been dealing with her condition and pain for the last 20 years. She said she gets numbness in her fingers, often wakes in the morning with numbness and can spend whole days trying to manage her pain by relaxing, as doing anything strenuous makes her condition worse. She told the Tribunal that she had been advised by one doctor to abort her second child as she would not be able to carry the baby and breast feed, as she was advised this again could worsen her situation. She has asked the doctors over the years to send her to a specialist but whilst she has had countless x-rays, ultrasounds and scans, no doctor has ever really followed through on referring her to a specialist to see if any more could be done. She has been led to believe there are no options for her but to learn to live with her condition. She does not have a dedicated GP at present and sees whoever is available at the medical clinic she attends and does not believe the doctors at the clinic are fully aware of her situation.
The Respondent argued that if the Tribunal finds that the Applicant’s shoulder condition was fully diagnosed, treated and stabilised, which was not conceded, the appropriate Table to assess any resulting functional impairment from this condition was Table 2. The Respondent noted that pursuant to the introduction of Table 2, self-reported symptoms alone are insufficient to support a functional impairment rating, and there must be corroborating evidence of any self-reported impairment. A mild impairment rating under Table 2 requires that Ms Halimi had difficulty with most of the following:
(a)picking up heavier objects;
(b)handling very small objects;
(c)doing up buttons;
(d)reaching up or out to pick up objects.
At the hearing, Table 2 – Upper Limb Function of the Impairment Tables (Table 2) was explored in respect of the functional impact of Ms Halimi’s shoulder condition, with a focus on whether or not she had a moderate impairment.
Table 2 – Upper Limb Function – 10 points
There is a moderate functional impact on activities using hands or arms.
(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
Ms Halimi gave evidence that at the date of cancellation she:
·had no issue with lifting a carton of milk but could not lift heavy objects.
·could pick up a box but not a bulky object. She said that her boys did all her heavy lifting and heavy work around the house such as vacuuming. The rest of the housework she takes her time doing, such as one load of washing a day or cooking one meal every few days.
·could hold a pen for a few minutes but after a while her fingers went numb and she started to get pain. The pain was in her hand and arm and went up into her neck and shoulders. When cooking, she got her sons to do the stirring.
·could do up buttons and shoelaces, but she didn’t really have to as she wore slip on shoes and mainly clothes with zips and maybe one button.
·had not used a computer since she left work due to her injury. She said that she does not know how to use a computer but got pain if she sent a long text message from her phone.
·sometimes could unscrew jars, but again relied on her sons for opening jars as her fingers get numb.
The Respondent contented that there was limited corroborating evidence of any functional impairment resulting from Ms Halimi’s shoulder condition relying upon the following:
(a)Dr Marazita’s report of 11 January 2005 which stated that Ms Halimi was unable to perform repetitive tasks or lift heavy objects;
(b)Dr Rind’s report of 15 August 2018 which observed that Ms Halimi’s bilateral shoulder pain was generally well managed and caused minimal or limited impact on her ability to function;
(c)The JCA assessor on 3 September 2018 reported that Ms Halimi was able to fasten buttons, lift a one litre carton of milk, hold a pen and write and manipulate coins. The assessor noted she had difficulty with heavy lifting and repetitive tasks, but that lateral flexion of her neck was not restricted.
The Respondent contended that the available evidence does not corroborate that Ms Halimi had difficulties with most of the descriptors associated with a mild impairment rating. Accordingly, the Respondent argued that if the Tribunal finds that the Applicant’s shoulder condition was full diagnosed, treated and stabilised, which was not conceded, it attracted a nil impairment rating at the date of cancellation.
The Tribunal was satisfied on the medical evidence that Ms Halimi’s long standing shoulder condition was fully diagnosed, treated and stabilised at the date of cancellation. The Tribunal relied upon:
·Dr Clayton’s 1991 report in which he first diagnosed occupational overuse syndrome of a myofascial nature.
·Dr Tieppo’s 1993 report in which he documented the ongoing impact this condition has had both on Ms Halimi’s physical and mental wellbeing.
·Dr Marazita’s numerous reports in which he diagnosed chronic myofascial pain syndrome in the neck and right shoulder. These reports stated the condition was present for several years with chronic pain due to overuse injury, which had not responded to treatment.
·Ms McManus’s 2018 report in which she advised of the physiotherapy treatment received by Ms Halimi and observed her 20 year history of shoulder pain.
·Dr Al-Talib’s 2019 diagnosis of ongoing neck and shoulder pain, secondary to occupational overuse syndrome of myofascial nature.
The Tribunal accepts that Ms Halimi had been living with pain for many years, following an exacerbation of underlying pathology from repetitive work. She had been attempting to manage the pain through various treatment regimens and had been seeking assistance from her numerous doctors to find solutions to her condition. In the end she had been led to believe and fully accepted that she had a permeant condition and would never improve as articulated by Dr Tieppo in 1993:
Samor’s understanding of her illness is that the muscles are tired and her blood circulation is down. Her greatest fear is that the pain and limitations to her activity will persist indefinitely. In fact her understanding of a recent visit to the specialist was that the pain would remain permanently. The major consequences of the illness for her are firstly that she misses the stimulation of the work environment. She feels there is a hole left in her life and was unable to consider how it might be filled should she not return to work. Secondly, I think most significantly, as a consequence of her injury her plans to have a second child have been postponed. She had planned to have been pregnant at the beginning of last year. However, she claims that the chiropractor advised her against this and it was supported by her specialist. The message was that her pain might worsen in having to care for an infant and her mental state was not good.
The Tribunal observed that Ms Halimi repeated on numerous occasions that she had been advised by “the proper doctor” that she had to learn to live with her condition and it would never improve. Fundamentally, she was told she had to accept a life with pain. The Tribunal observes that this is not an uncommon outcome of various workplace injuries and is tragic that people become medicalised by their injuries and not rehabilitated. The Tribunal finds Ms Halimi’s condition had been fully treated and stabilised to allow her to manage her pain. That the reported investigation into the cause of the condition by Dr Rind had occurred in 2018, but this had not result in any referrals or treatment to improve her functionality in her neck and shoulders. The Tribunal noted that any treatment into the condition would be difficult in light of her functional overlay.
The Tribunal finds that Ms Halimi’s right shoulder condition was having a moderate impact on her functionality at the time of cancellation as she self-reported and as corroborated by her treating medical practitioners: she was unable to pick up heavy objects; had difficulty handling small objects; could not physically use a keyboard; could not perform repetitive tasks; could not undertake heavy household chores; suffered constant pain and had restricted movement in her fingers/hand/arm and shoulder. The Tribunal assigns ten points under Table 2 – Upper Limb Function for this condition, as the impact of the condition was causing Ms Halimi moderate difficulty with managing most daily activities requiring the use of the hands and arms.
Depression
On 26 April 1993, Dr Tieppo, consultant psychiatrist, opined:
Her affect was reactive, anxious depressed at times angry about her illness and disability. The major theme was her concern that there would be no change in her physical condition…
I agree with you that she now has significant depressive and anxiety symptoms superimposed on her physical condition. On this assessment she does not have the features to make a diagnosis of a major depressive disorder. The psychological symptoms appear related to her perceptions of what she has been told by health professionals. These I have outlined above, in particular that the pain is likely to be permanent and the need to postpone having her second child.
On 17 August 2001, Dr Marazita reported a diagnosis of anxiety and depression presenting with clinical features of feelings of anxiety, loss of motivation, depressed mood, impacted sleep. He noted that this had been ongoing for several years and Ms Halimi was receiving counselling.
On 29 December 2001, Dr Marazita reported a diagnosis of depression with clinical features of emotional instability, sleep disturbance, loss of motivation and avoids social interaction. He stated Ms Halimi had been treated with antidepressants.
On 11 January 2005, Dr Marazita reported a diagnosis of anxiety and depression. He noted the onset of symptoms were associated with chronic pain syndrome and her condition was well controlled with medication and counselling.
On 15 August 2018, Dr Rind, opined Ms Halimi had been suffering depression for the past 18 years and was currently seeing a psychologist.
On 16 August 2018, Dr Ahmed Al-Talib, general practitioner, in a DSP medical review claim form reported a history of chronic depression described as severe which affect her abilities of daily living. He noted that she was stable on medication and her functionality presented as “sometimes fluctuation in low mood, can't be bothered” and “poor concentration”.
On 16 August 2018, Dr Esma Kurt, clinical psychologist, reported:
This letter serves to inform you that Samar Halimi was referred for psychological assessment and intervention by her GP via a mental health treatment plan. She has attended two sessions and has a number of appointments scheduled until the end of the year.
Samar presented with a history of depression and generalised anxiety and had sought psychiatric intervention in the past. She is currently on Lovan 40mg daily. We will work on improving your mood and behavioural engagement, and decreasing symptoms of anxiety.
On 13 December 2018, Dr Kurt reported:
Samar has attended six sessions of therapy since 1/8/2018 and presented with symptoms consistent with a of [sic] Major Depressive Disorder-Recurrent and symptoms of Generalised Anxiety Disorder. She also has a history of depression, precipitated by her workplace injury 20 years ago. Samar was seen by a psychiatrist during this time and was on anti-depressant medication for many years. She is currently prescribed Lovan 60 mg daily and has re-engaged with a psychiatrist, Dr Brian Rigby.
Samar reports persistent low mood, anhedonia, difficulty with attention and concentration, has sleep disturbance, increased irritability and anger, increased fatigue and lack of energy, impatient and intolerant, feelings of worthlessness, and frequent thoughts of death. Samar feels ‘shaky’ and lightheaded, and finds it difficult to stop her worrying. Samar’s difficulties have exacerbated since her DSP was reviewed and revoked.
A medical certificate from Dr Al-Talib dated 29 July 2019 states that Ms Halimi’s diagnosis is depression and the fluctuating symptoms of the condition include low mood, low energy and poor sleep.
The Respondent accepts that Ms Halimi’s psychological condition was fully diagnosed at the date of cancellation. The Respondent relied upon the diagnoses of major depressive disorder (recurrent) and generalised anxiety by Dr Kurt (clinical psychologist) in her report of 16 August 2018 and that of Dr Rind (GP) of 15 August 2018 who reported Ms Halimi had experienced depression for the past 18 years.

Ms Halimi advised that her mental health condition fluctuates, and she had been suffering from severe depression since her workplace injury in 1991. She said that she has struggled accepting her new situation of living with severe pain and used to spend much of her day crying. She told the Tribunal her depression was serve, long standing and she had undertaken all treatment options, including being on and off anti-depressants since 1993. She felt at times those prescribed were not working, but she was on them currently and found they were helping modulate her conditions, but that at no stage has she ever been advised that her condition will improve. She said she has increased her dosage three-fold in recent times, and this is helping but she still has her moments. She said she has benefited from seeing a psychologist over the years and more recently having a subsidised mental health plan. Ms Halimi saw a psychiatrist and psychologist last year, but she did not see the point in talking to someone about her condition as it just brings up the past which upsets her and does not offer any solutions for her situation. She said she lives for her sons and without them she simply would not be here.
However, the Respondent submitted that Ms Halimi’s major depressive disorder and generalised anxiety disorder were not fully treated or fully stabilised as at the date of cancellation, relying on the following evidence:
·Dr Tieppo’s (consultant psychiatrist) report of 26 April 1993 which found Ms Halimi had significant depressive and anxiety symptoms but did not present with the features for a diagnosis of major depressive disorder. Dr Tieppo recommended supportive psychotherapy.
·Dr Marazita’s (GP) report of 29 December 2001 which stated Ms Halimi was prescribed Aurorix (anti-depressant) medication (300mg). Dr Marazita’s further report of 25 September 2003 said Ms Halimi’s anxiety had been treated since April 2000 and she had continued with Aurorix medication with “good effect”.
·Dr Rind’s (GP) report of 5 August 2018 said Ms Halimi did not have a condition that caused a significant impact on her ability to function. He said she had experienced depression for the last 18 years and was currently seeing a psychologist.
·Dr Kurt’s report of 16 August 2018 found Ms Halimi was referred to her for psychological therapy by her GP under a mental health treatment plan and she had attended two sessions with a number of further sessions planned until the end of the year. Dr Kurt also reported that treatment would focus on improving Ms Halimi’s mood and behavioural engagement as well as decreasing her symptoms of anxiety. Dr Kurt reported that Ms Halimi was prescribed Lovan (40mg) daily.
·Dr Al-Talib’s (GP) report of 16 August 2018 which stated Ms Halimi’s depression was currently treated with Lovan and she had been treated by a psychiatrist and with psychological intervention in the past.
·The JCA assessor of 6 September 2018 reported that Ms Halimi had last seen a psychiatrist 15 to 20 years ago, had been taking her anti-depressant medication “on and off” until six months ago when she started taking them consistently and that she had seen a clinical psychologist twice.
·Dr Kurt’s report of 13 December 2018 said that Ms Halimi had attended six sessions of therapy since 1 August 2018, was currently prescribed Lovan (60mg) and had reengaged with a psychiatrist.
The Respondent contented that Ms Halimi’s psychological conditions appeared to have been exacerbated in mid-2018 as she re-engaged with a psychologist at the date of cancellation, and Dr Kurt reported further therapy sessions were planned. The Respondent argued the planned future treatment may reasonably result in a significant functional improvement, specifically as Dr Kurt reported the focus of the therapy was to improve Ms Halimi’s mood, behavioural engagement, as well as decrease her symptoms of anxiety.
The Respondent also noted the evidence does not demonstrate any ongoing psychological therapy under the care of a psychologist (prior to Dr Kurt), nor is there any evidence of a consultation with a psychiatrist since 1993. The Respondent argued that the referral to a psychologist and the identification of goals of future therapy support the contention that Ms Halimi’s psychological conditions were not fully treated or fully stabilised as at the date of cancellation. Accordingly, despite the long-standing nature of her psychological conditions, they submitted her mental health conditions were not fully treated and stabilised at the date of cancellation.
The Respondent contented that if the Tribunal finds that Ms Halimi’s mental health conditions were fully diagnosed, treated and stabilised at the cancellation date, which was not conceded, they submitted that the appropriate table to assess any resulting impairment is Table 5.
At the hearing, Table 5 – Mental Health Function of the Impairment Tables (Table 5) was explored in respect of the functional impact of Ms Halimi’s mental health condition, with a focus on whether or not she had a moderate impairment at the date of cancellation:
Table 5 – Mental Health Function – 10 points
There is a moderate functional impact on activities involving mental health function.
(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.
Ms Halimi gave evidence that at the cancellation date:
·overall, she was alright with self-care, but often she couldn’t be bothered getting showered or dressed and often relied on her sons to do heavy household chores.
·she did not travel anywhere unfamiliar and she was often very concerned about getting lost and not knowing how to cope. She said she had no confidence and couldn’t follow a GPS. She only drove short distances locally, as she found it difficult concentrating and has had experience running a red light. She is fearful for hers and others safety when she is driving.
·she had friends and a large, supportive family who supported her. She saw them occasionally but often couldn’t be bothered and she regularly went ‘berserk’ at them. She said she is surprised they are still friends with her. She got angry and often cries easily. She said she needs to get out and about, but often has to force herself to do this.
·she had great difficulty concentrating and completing tasks. She said she regularly re-watched TV shows to understand what had taken place. She often got lost in conversations and had to write down all appointments in her diary otherwise she would not recall them. She said her sleep pattern was all over the place and this greatly impacted her ability to function.
·she had great difficulty making decisions and was constantly changing her mind and needed the reassurance of others. She gave an example that she could not even decide on a dress for her son’s wedding, ‘changing her mind a 100 times’. She got stressed easily at situations and would often get into ‘rages’ with family and friends. She said she was often very lethargic as her sleep pattern was very erratic.
·she had no capacity for work or training and did not have the patience or ability to concentrate. She said that losing her job ‘depressed the hell out of her’ and that she would dearly love to return to work but just thinking about it causes her great stress and anxiety. She said that she had attempted to complete a course as recommended by her current job provider, but she could not use the keyboard or concentrate, and relied upon her son to do the work for her. She explained that she sat next to him as he typed all the answers.
The Respondent argued that having regard to the available evidence and the descriptors in Table 5, Ms Halimi’s major depressive disorder and generalised anxiety disorder did not result in any assessable functional impairment. The Respondent relied on the following evidence:
·Dr Marazita’s report of 29 December 2001 which stated that Ms Halimi’s depression caused emotional instability, sleep disturbance, loss of motivation, and avoidance of social interactions.
·Dr Marazita’s report of 11 January 2005 which stated that Ms Halimi’s psychological conditions were well controlled with medication.
·Dr Rind’s report of 15 August 2018 which stated that Ms Halimi did not have a condition that caused a significant impact on her ability to function.
·Dr Al-Talib’s report of 16 August 2018 which stated that Ms Halimi’s depression was stable, but sometimes fluctuated with low moods, poor sleep, poor concentration and no motivation.
·Dr Kurt reported therapy would focus on improving Ms Halimi’s mood and behavioural engagement, decreasing her symptoms of anxiety.
·At the JCA on 3 September 2018, Ms Halimi reported to the assessor that she “can’t be bothered seeing anybody”, her concentration is “on and off”, she lazes around during the day, sometimes goes with friends to the shops, would attend social events depending on her mood and was independent with her self-care.
The Respondent submitted the available evidence corroborated the Applicant having had mild difficulties, at most, with:
(a)social/recreational activities and travel;
(b)concentration and task completion; and
(c)behaviour, planning and decision-making.
For Ms Halimi to be assigned an impairment rating of five points under Table 5, the Respondent submitted the evidence had to corroborate that the Applicant had difficulties with “most” of the descriptors.
Accordingly, the Respondent contended that, as at the date of cancellation, the evidence does not support a finding that Ms Halimi’s had a mild impairment under Table 5. Further, the Respondent argued that if the Tribunal found Ms Halimi’s psychological conditions resulted in mild difficulties with most of the descriptors under Table 5, her difficulties were no more than “mild” and that a higher impairment rating should not be assigned.
The Respondent argued that Dr Kurt’s report of 13 December 2018, which noted Ms Halimi’s symptoms of low mood, difficulty with attention and concentration, sleep disturbance, increased irritability and anger, fatigue and lack of energy, worthlessness and thoughts of death, could not be relied upon by the Tribunal. This was because these symptoms were observed two months after the cancellation date, and she observed Ms Halimi had experienced an exacerbation of her symptoms since the cancellation of her DSP. The Respondent argued that instead the Tribunal should have regard to a rating that best reflects Ms Halimi’s overall functional ability according to the contemporaneous evidence at the date of cancellation.
The Tribunal is satisfied on the medical evidence that Ms Halimi’s long standing mental health condition was fully diagnosed, treated and stabilised at the date of cancellation. The Tribunal relies upon the initial the diagnosis of Dr Tieppo in 1993 who found Ms Halimi had significant depressive and anxiety symptoms. The Tribunal also relies on the more recent report of Dr Al-Talib in 2018, who observed that Ms Halimi’s depression was stable. The Tribunal finds that Ms Halimi has undertaken and continues to undertake appropriate and reasonable treatment for her mental health condition, having utilised anti-depressant medication and undertaken psychotherapy on and off for the last 20 years.
The Tribunal concurs with the findings of the Member at Tier 1 that Dr Kurt provided a more specific description of psychological symptoms and accepts Dr Kurt’s considerations of Ms Halimi’s mental health condition and its impact on her functionality. Dr Kurt’s opinion reflected the findings of numerous other specialists who had observed and treated Ms Halimi. His report synthesised these findings and reflected on the exacerbation of her condition brought on by the cancellation of her DSP.
The Tribunal does not concur with the view of the Respondent that planned future treatment may reasonably result in a significant functional improvement. Dr Kurt reported the focus of the therapy was to improve Ms Halimi’s mood, behavioural engagement, as well as decrease her symptoms of anxiety. The Tribunal envisions that this treatment was to reduce Ms Halimi’s exacerbated anxiety brought on by the cancellation of her DSP and not to return her to a state of job readiness.
The Tribunal finds that this condition was having a moderate impact upon Ms Halimi’s functionality. As she reported, and as corroborated by her treating general practitioner, psychiatrist and psychologist, she had moderate difficulties with self-care, social activities, interpersonal relationships, concentration and task completion, behaviour planning, decision-making and work training capacity. The Tribunal therefore awards this condition 10 points under Table 5 as this best reflects the functional impact of this condition at the cancellation date.
IMPAIRMENT RATING
The Tribunal determines Ms Halimi’s overall impairment rating based on the oral evidence she provided at the Tribunal, corroborating evidence from her treating doctors, the findings of numerous JCAs, the determination of the ARO and the Tier 1 decision.
The Tribunal has found that Ms Halimi has an overall impairment rating of 20 points, having awarded her 10 points under Table 2 – Upper Limb Function and 10 points under Table 5 – Mental Health Function. Therefore, Ms Halimi satisfies s 94(1)(b) of the Act.
DOES MS HALIMI HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, Ms Halimi must not only satisfy the requirement that she has impairments that can be assigned 20 points or more under the Impairment Tables, she must also demonstrate that she has a continuing inability to work. In accordance with s 94(3A), as Ms Halimi’s was receiving DSP and was given notice under subsection 63(2) or 63(4), she does not have to actively participate in a program of support as set out in section 92(2)(aa) of the Act.
The Respondent contended that Ms Halimi did not have a continuing inability to work as defined in subsections 94(2) or 94(5) of the Act, whilst also accepting she was not required to undertake a program of support requirement.
The Respondent contended Ms Halimi did not have a continuing inability to work, arguing that within two years of the cancellation, she had a capacity to work 15 hours per week or was able to undertake a training activity likely to enable her to do any work within the next two years (of the cancellation date). The Respondent argued the JCA dated 6 September 2018 should be considered, submitting that at the date of cancellation, Ms Halimi had a capacity to work 15 to 22 hours per week in light, less-skilled work, with the following interventions:
vocational rehabilitation,
(b)psychological assessment and intervention; and
(c)a pain management program.
The Respondent contended that the conclusion of the JCA should be preferred, because the assessor has specialised knowledge and experience in “identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity”. The Secretary also relied on the authority in Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902, where the Tribunal stated at [43]:
The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.
The Respondent therefore contended that Ms Halimi did not satisfy either paragraph 94(2)(a) or (b) of the Act at the date of cancellation and therefore did not have a continuing inability to work as required by s 94(1)(c).
The JCA dated 6 September 2018 stated:
The customer's FDTS work capacities are 30+ hours per week, as the customer does not have any permanent, fully diagnosed, treated and stabilised medical conditions.
Rationale:
Mental health impacts may result in some reduction in concentration, recall, efficiency in task completion and demotivation that may affect endurance. Impacts may affect social interaction within vocational context impacting upon capacity to develop and maintain effective workplace relationships, and may affect capacity for working with customers, or in high stress contexts.
Neck condition may result in episodic pain affecting concentration, endurance and may result in reduced ROM with neck function and reduced tolerance for activities involving frequent turning of head and may have associated impacts upon arm function.
Shoulder condition may result in restricted range of movement, weakness and chronic pain symptoms resulting in reduced capacity to persist with manual dexterity and manual handing tasks, with reduced tolerance to persist at such tasks and episodic fluctuations affecting endurance and concentration when experiencing increased pain.
It is anticipated that with disability specific intervention (DES-ESS), including specialised job search, employment support and vocational assessment and counselling work capacity will increase from 8-14 to 15-22 hours per week.
Interventions
Interventions that were identified for this client
Intervention:               Vocational rehabilitation (V51) Intervention:
Intervention:               Psychological/cognitive assessment/intervention (P55)
Intervention:               Pain management program (M55) Intervention:
The Tribunal has considered the nature of Ms Halimi’s long standing medical conditions and their impact on her physical and mental functions. The Tribunal finds she had a continuing inability to work. The Tribunal relies upon the assessment of the JCA assessor (who is considered to have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity) dated 6 September 2019, quoted above. The assessor identified serious functional impacts of Ms Halimi’s medical conditions, which they identified as presenting complex barriers and restrictions on her ability to work.

The Tribunal also relied upon the report of Dr Kurt’s of 13 December 2018 which concluded:
Samar’s depression is chronic and though she may experience improvements at times, will likely persist. Her depression may impact on her ability to seek and maintain employment. She will benefit from ongoing psychological support and intervention as well as pharmacotherapy.
Based on the evidence before it, the Tribunal finds that Ms Halimi had a continuing inability to work which satisfies s 94(2) of the Act.
CONCLUSION
The Tribunal is satisfied that, at the date of cancellation, Ms Halimi was qualified to receive the DSP as her impairments attracted 20 impairment points under the Impairment Tables. Her shoulder condition attracted 10 points under Table 2 – Upper Limb Function and her depression attracted 10 points under Table 5 – Mental Health Function. Additionally, Ms Halimi satisfied s 94(1)(c) of the Act as she had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that

Ms Halimi satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby continued to qualify for the Disability Support Pension at the date of cancellation.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

.............[sgd]............................
Associate
Dated: 12 August 2020

Date of hearing: 9 June 2020

Date of final submission: 20 July 2020

Applicant: By telephone

Advocate for the Respondent: Ms Anneliese Massey

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 2878

12 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	9 June 2020
Date of final submission:	20 July 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms Anneliese Massey
Solicitors for the Respondent:	Sparke Helmore Lawyers