Halimi and Secretary, Department of Social Services (Social services second review) - [2020] AATA 2878

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…

Details

AGLC: Halimi and Secretary, Department of Social Services (Social services second review) [2020] AATA 2878
Case: [2020] AATA 2878
Decision Date: 12 August 2020

CaseChat Overview and Summary

This matter concerned an appeal by Ms Halimi against the cancellation of her Disability Support Pension (DSP) by the Secretary of the Department of Social Services. The central dispute was whether Ms Halimi continued to qualify for the DSP at the time of the cancellation, specifically whether her impairments met the threshold required by the Impairment Tables and whether she had a continuing inability to work. The Administrative Appeals Tribunal (AAT) was tasked with determining these issues.

The legal issues before the Tribunal were whether Ms Halimi suffered from a physical, intellectual, or psychiatric impairment; whether these impairments, once fully diagnosed, treated, and stabilised, attracted a rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; and whether she had a continuing inability to work. The Tribunal was required to assess these criteria as they stood at the date of the cancellation of her DSP.

The Tribunal found that Ms Halimi did suffer from impairments, specifically a bilateral shoulder disorder and depression, satisfying the first limb of the qualification criteria. Crucially, the Tribunal was satisfied that her shoulder condition attracted 10 points under Table 2 (Upper Limb Function) and her depression attracted 10 points under Table 5 (Mental Health Function), thus meeting the 20-point threshold. Furthermore, the Tribunal concluded that Ms Halimi had a continuing inability to work, meaning she was unable to work for 15 hours or more per week and could not be retrained for such work within the next two years. Consequently, the Tribunal set aside the decision under review and substituted a determination that Ms Halimi continued to qualify for the DSP at the date of cancellation.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 FINDINGSEvidence 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.