Hamdallah and Secretary, Department of Social Services (Social services second review) - [2017] AATA 2032

Hamdallah and Secretary, Department of Social Services (Social services second review) [2017] AATA 2032 (1 November 2017)
Division:GENERAL DIVISION
File Number: 2017/1829
Re:Ezzedine Hamdallah
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:1 November 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..................................[Sgd]......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – application of Social Security (International Agreements) Act 1999 - whether severely disabled - decision under review affirmed
LEGISLATION
Legislation Act 2003 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Al-Janabi v Secretary, Department of Social Services [2017] AATA 1541
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275
Stretch; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1429
Tamua and Secretary Department of Social Services [2016] AATA 757
REASONS FOR DECISION
Member D K Grigg
1 November 2017
INTRODUCTION
INTRODUCTION & CLAIM HISTORY

Mr Hamdallah is a New Zealand citizen and the holder of a visa subclass 444.[1]
[1] Exhibit 1, T Documents, ST8, page 23, Legal Residence Details of Mr Hamdallah.
On 29 February 2016 Mr Hamdallah lodged a claim for Disability Support Pension (“DSP”) describing his medical conditions as follows:[2]
·chronic lower back pain
·severe depression
[2] Exhibit 1, T Documents, T 12, pages 79 – 107, Mr Hamdallah’s Claim for DSP dated 29 February 2016.
Mr Hamdallah claimed that his medical conditions affected his ability to work because of his “back pain, anxiety and panic attacks” and that he is “sleepy all the time”.[3]
[3] Exhibit 1, T Documents, T 12, page 91, Mr Hamdallah’s Claim for DSP dated 29 February 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mr Hamdallah’s claim for DSP on the basis that he did not qualify as “severely disabled” pursuant to the Social Security (International Agreements) Act 1999 (Cth) (“IAA”).[4]
[4] Exhibit 1, T Documents, T 19, pages 131 – 133, Rejection of claim for DSP dated 26 May 2016.
Mr Hamdallah sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful.[5]
[5] Exhibit 1, T Documents, T 30, pages 152 – 159, Decision of ARO dated 10 November 2016.
Mr Hamdallah then lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mr Hamdallah’s claim and affirmed the ARO’s decision on 2 March 2017.[6]
[6] Exhibit 1, T Documents, T2, pages 4 – 8, SSCSD’s Decision and Reasons for Decision dated 2 March 2017.
Mr Hamdallah has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1 – 4, Application for 2nd Review of Decision dated 29 March 2017.

ISSUES FOR DETERMINATION

The legislation relevant to an application for DSP in Australia is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 29 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) identifies, relevantly, that a claim for a social security payment under the Act may only be made by a person who:
(a) is an Australian resident; and

(b) is in Australia.
Section 94(1) of the Act relevantly prescribes that to qualify for DSP under the Act the following requirements must be met (“Section 94 Requirements”):-
(a)the person must have a physical, intellectual or psychiatric impairment;
(b)the person’s impairment must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[8]
(c)the person has a continuing inability to work;
(d)…
(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.
[8] A legislative instrument made under the Act: see Social Security Act 1991 (Cth), section 26(1).

Given that Mr Hamdallah is a citizen of New Zealand, the IAA and the “Agreement on Social Security between the Government of Australia and the Government of
New Zealand” (“NZA”) in Schedule 3 to the IAA are also relevant to his DSP application.
The issues to be determined by this Tribunal are:
(a)whether Mr Hamdallah is entitled to claim DSP in Australia; and, if yes,
(b)the criteria by which Mr Hamdallah is to be assessed in order to qualify for DSP.
The Tribunal has to consider whether Mr Hamdallah is:
(a)required to satisfy the requirements set out in both section 94 of the Act and the NZA; or
(b)only required to satisfy the requirements set out in the NZA.

IS MR HAMDALLAH ENTITLED TO CLAIM DSP IN AUSTRALIA
Operation of the International Agreements Act (IAA)

The current version of the IAA, in force from July 2017, states that it commenced on 20 March 2000.[9] The long title for the IAA provides that it is an “Act to give effect to international social security agreements, and for related purposes.”
[9] If an Act or a provision of an Act is expressed to come into operation on a particular day (whether the expression
The original Agreement on Social Security between the Government of Australia and the Government of New Zealand contained in Schedule 3 of the IAA, came into force on 1 July 2002 (“2002 NZA”). The 2002 NZA was in effect up until a new NZA was tabled in the Parliament on 7 February 2017, which came into force on 1 July 2017 (“2017 NZA”).[10]
[10] 2017 NZA, Article 27.
The 2017 NZA has some substantive differences to the 2002 NZA. For example:
(a)Article 5 has been amended to define New Zealand residents in Australia on Special Category Visas as Australian residents, allowing them to claim the benefits covered by the Agreement; and
(b)Article 12(4), which provided in the 2002 NZA that “No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand” has now been deleted.
The 2017 NZA does not apply to Mr Hamdallah because Article 26(2) of the 2017 NZA provides that where, prior to 1 July 2017, a person has lodged a claim, and is qualified, for a benefit by virtue of Articles 12(4) or 14(2) of the 2002 NZA no provision of the 2017 NZA shall affect that person’s qualification to receive that benefit. Therefore, Mr Hamdallah’s qualification for DSP is to be determined in accordance with the 2002 NZA.
This is important here because, as will be seen below, Mr Hamdallah does not qualify for DSP as an Australian resident under the Act. Therefore, his eligibility for DSP (with respect to the residency requirement) is to be determined by Article 12(4) of the 2002 NZA (but which is not otherwise applicable to DSP claims made after 1 July 2017).
The IAA forms part of the social security law in Australia.[11]
[11] IAA, s 4.
Section 3 of the IAA provides that:
(1) Unless a contrary intention appears, an expression that is used in the Social Security Act 1991 has the same meaning, when used in this Act, as in the Social Security Act 1991.
(2) A reference in this Act (other than the reference in section 4) to the social security law is a reference to this Act, the Social Security Act 1991 and any other Act that is expressed to form part of the social security law.
(3) A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the Social Security Act 1991 or any other Act that is expressed to form part of the social security law. [my emphasis]
Schedule 3 to the IAA contains the 2002 NZA. The preamble to the 2002 NZA provides that Australia and New Zealand agreed to enter into the agreement:
WISHING to strengthen the existing friendly relations between the two countries, and DESIRING to coordinate the operation of their respective social security systems and to enhance the equitable access by people covered by this Agreement to specified social security benefits provided for under the laws of both countries
Article 2(1)(a)(ii) of the 2002 NZA establishes that the 2002 NZA applies to legislation, such as the Act, applying to or affecting the DSP.
Section 6 of the IAA states that the provisions of the 2002 NZA have effect despite anything in the social security law (which includes the Act), in so far as the provision is in force and affects the operation of the social security law.[12]
[12] IAA, ss 6(1) and (2),

Residency Requirement for DSP
Does Mr Hamdallah satisfy the residency requirements under Section 94(1)(e) of the Act

Section 7(2) of the Act provides that a person is an “Australian resident” if they are a person who:
(c)resides in Australia; and
(d)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 Special Category Visa (SCV) holder.
Mr Hamdallah resides in Australia and is the holder of a visa subclass 444. However, he is not an Australian citizen, nor is he the holder of a permanent visa, or a protected SCV. Therefore, Mr Hamdallah does not satisfy the definition of “Australian resident” under section 7(2) of the Act and is not residentially qualified for DSP under the Act.

Does Mr Hamdallah satisfy the residency requirements under the 2002 NZA?

The 2002 NZA needs to be considered because it has effect “despite anything in the social security law” which includes the Act.[13]
[13] See 2002 NZA, Article 2(1)(a)(ii); and IAA ss 4 and 6 referred to above.
The 2002 NZA applies to persons who are Australian or New Zealand residents.[14]
[14] 2002 NZA, Article 3.
Article 5 of the 2002 NZA sets out what is meant by “Australian resident”:
1.“Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. In deciding whether a person is residing in Australia, regard must be had to the following factors:
(a) the nature of the accommodation used by the person in Australia;
(b)the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person’s employment, business or financial ties with Australia;
(d) the nature and extent of the person’s assets located in Australia;
(e)the frequency and duration of the person’s travel outside Australia; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia;
and “residence in Australia” has a corresponding meaning. [my emphasis]
Article 12(4) of the 2002 NZA is also relevant. It provides that:
No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand.
Therefore, as set out in Articles 5 and 12(4) of the 2002 NZA, for the 2002 NZA to apply to Mr Hamdallah, Mr Hamdallah has to either:
(a)comply with the meaning of “Australian resident” as set out in section 7(2) of the Act; or
(b)have lawfully resided in Australia; and
(c)accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand.
The Tribunal has found that Mr Hamdallah does not satisfy section 7(2) of the Act, and as a result does not satisfy section 94(1)(e) of the Act. However, considering the 2002 NZA, it is not in dispute that Mr Hamdallah lawfully resides in Australia and the Secretary accepts that at the time of his DSP claim, on 29 February 2016, Mr Hamdallah had accumulated an aggregate of more than 10 years residence in Australia and/or
New Zealand.
By virtue of section 6 of the IAA, Articles 5 and 12(4) have the effect of overriding
sections 7(2) and 94(1)(e) of the Act., resulting in Mr Hamdallah satisfying the residency requirement for his DSP claim. This was confirmed by the Full Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75 (“Mahrous”).[15] In Mahrous the Court held (at 51) that:
…article 12(4) of the Agreement both describes the category of persons who are “entitled to claim a disability support pension” and identifies those who would satisfy the residence qualification for such a benefit once a claim can be made. Put another way, we would construe article 12(4) to provide that, if a person “has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand”, then that person can not only claim a disability support pension but has also satisfied the residence criterion for that pension. [my emphasis]
[15] As noted earlier, article 12(4) has been deleted from the 2017 NZA. The removal of article 12(4) was in part due
to Mahrous: see Report 170 (May 2017), Commonwealth of Australia, “Social Security Agreement - New Zealand; Nuclear Research Cooperation Agreement; Loan Agreement – International Monetary Fund; Harmonization of Wheeled Vehicles – Revision, Chapter 2, paragraphs 2.14-2.22.
Therefore, the 2002 NZA applies to Mr Hamdallah and entitles him to claim DSP in Australia.

THE CRITERIA BY WHICH MR HAMDALLAH IS TO BE ASSESSED TO QUALIFY FOR DSP

The next issue to be resolved is whether Article 2(2) of the 2002 NZA overrides the requirements in sections 94(1)(a)-(c), or just section 94(1)(c) of the Act.

Criteria to Qualify for DSP under the Act and the 2002 NZA

As referred to earlier, section 94(1) of the Act relevantly prescribes that to qualify for DSP under the Act, the following requirements must be met (“Section 94 Requirements”):-
(a)the person must have a physical, intellectual or psychiatric impairment;
(b)the person’s impairment must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[16]
(c)the person has a continuing inability to work.
[16] A legislative instrument made under the Act: see Social Security Act 1991 (Cth) s 26(1).
Article 2(2) of the 2002 NZA provides that:
For the purposes of this Agreement an Australian disability support pension … 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 they
became severely disabled; 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.
[my emphasis]
“Severely disabled” is defined, relevantly, in Article 1(l)(i) of the 2002 NZA to mean 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:
(aa) to work for at least the next 2 years; and
(bb)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program
“Date of severe disablement” is defined, relevantly, in Article 1(f) of the 2002 NZA to mean:
…the date a person who applies for a disability support pension or invalid’s benefit was first assessed as meeting the criteria for a disability support pension or invalid’s benefit under this Agreement or, where evidence supports an earlier date, the competent institutions may agree on an earlier date
The Secretary contends that a person must satisfy paragraphs 94(1) (a) and (b) of the Act and Article 2(2) of the NZA in order to qualify for DSP on the basis that Article 2(2) does not address or affect paragraphs 94(1)(a) or (b) of the Act.
Article 2(2) expressly limits the DSP to people who meet the three criteria contained therein. Article 2(2) applies to Mr Hamdallah. Therefore, at a minimum Mr Hamdallah has to meet the criteria in Article 2(2) to qualify for the DSP. However, does Mr Hamdallah also need to satisfy sections 94(1)(a) – 94(1)(c) of the Act?
The Secretary contends, and the Tribunal agrees, that section 94(1)(c) of the Act would not apply to Mr Hamdallah because under the Act a continuing inability to work means someone who can work up to 15 hours per week whereas Article 2 of the 2002 NZA provides that the person must be “totally unable” to work. There is no dispute raised that “totally unable to work” means unable to do any work at all. As the 2002 NZA overrides the Act, in so far as the provisions are inconsistent, section 94(1)(c) of the Act has no application when Article 2(2) applies.
What about sections 94(1)(a) and 94(1)(b) of the Act?

Is section 94(1)(a) of the Act still relevant?

Section 94(1)(a) of the Act provides that one of the criteria that needs to be satisfied to qualify for DSP under the Act is that the “the person has a physical, intellectual or psychiatric impairment”. This is also the requirement of someone who is “severely disabled” under the 2002 NZA.
“Impairment” has the same meaning in Article 2(2) as it does in section 94(1)(a).[17] That is, an “Impairment” means “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[18]
[17] 2002 NZA, Article 3(1) and IAA, s 3(1).
[18] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)
Determination 2011 (Cth), s 3.
The requirement of having an “impairment” is already accounted for in Article 2(2). There is no inconsistency between Article 2(2) and section 94(1)(a) of the Act.

Is section 94(1)(b) of the Act still relevant?

Section 94(1)(b) of the Act provides that one of the criteria that needs to be satisfied to qualify for DSP under the Act is that “the person's impairment is of 20 points or more under the Impairment Tables”. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).
In Al-Janabi v Secretary, Department of Social Security [2017] AATA 1541 (“Al-Janabi”) Deputy-President J Walsh and Member Dr Bygrave found that:
[27]…These ordinary requirements [that an impairment be fully diagnosed, fully treated and fully stabilised] 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” [my emphasis]

This Tribunal respectfully disagrees that the Determination does not form part of the social security law. However, for reasons outlined below, the Tribunal does agree that the Determination is not “picked up” in the 2002 NZA.
Section 3(1) of the IAA provides that a reference in the IAA to the social security law is a reference to the IAA, the Act and any other Act that is expressed to form part of the social security law.
“Social security law" is defined in section 23(17) of the Act as follows:
A reference in this Act to the social security law is a reference to this Act, the Administration Act and any other Act that is expressed to form part of the social security law.
The Administration Act is also a part of the social security law.[19]
[19] Administration Act, s 3(4).
Pursuant to section 8(2) of the Legislation Act:
(2) If a primary law gives power to do something by legislative instrument, then:
(a) if the thing is done, it must be done by instrument; and
(b) that instrument is a legislative instrument.
“Primary law” is defined to mean an Act or an instrument made under an Act, or a provision of an Act or an instrument made under an Act.[20]
[20] Legislation Act 2003 (Cth), s 4.
Section 26 of the Act, the primary law, provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension. The Determination is a legislative instrument made pursuant to section 26(1) of the Act and section 8, Legislation Act 2003 (“Legislation Act”).
According to the Federal Register of Legislation, established under the Legislation Act as a repository of versions (including authorised versions) of Acts and legislative instruments:[21]
‘legislative instruments’ are laws on matters of detail made by a person or body authorised to do so by the relevant enabling legislation.
[21]
Therefore, the Determination is part of the social security law.
There is no dispute that Article 2(2) of the NZA applies to Mr Hamdallah. However, the Secretary contends that even if Mr Hamdallah meets the requirements in Article 2(2), that he is still not eligible for DSP unless he also meets the requirements in section 94(1)(b) of the Act.
The issue is whether an Impairment must satisfy the requirement in section 94(1)(b) of the Act in addition to Article 2(2) of the 2002 NZA.
There is no reference in Article 2(2), or in the definition of “severely disabled” in Article 1(l)(i) of the 2002 NZA, to needing to rate an impairment in the manner set out in section 94(1)(b) of the Act.
Article 2(2) of the 2002 NZA requires only three elements to be met. The first element is that Mr Hamdallah is “severely disabled”. The definition of “severely disabled” in the 2002 NZA clarifies that the impairment being considered must, without taking any other factor into account, make the person totally unable:
(a)to work for at least the next 2 years; and
(b)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.
There is no requirement that the Impairment being considered needs to be rated under the Impairment Tables.The requirement in section 94(1)(b) of the Act is inconsistent with the requirement of the 2002 NZA.
In Mahrous the Full Federal Court said (at [61]):
Article 2(2) …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)).
The Court in Mahrous also explained that (at [64]):
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.

[my emphasis]
As explained by the Full Federal Court in Mahrous, the words “shall be limited to” in Article 2(2) expressly provides what cases an Australian DSP will be limited to. The ordinary meaning of “limited” means to confine, restrict in size or narrow.[22]
[22] See Macquarie Dictionary Online and Oxford Dictionary Online.
Logan J at first instance in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275 addressed the approach to construction of the 2002 NZA and held that:
[32]…the international agreement…forms a schedule to an Australian Act. That means…the primary object should be to construe all of the provisions in a way which is consistent with the language and purpose of all of the provisions in the statute.
In interpreting the IAA and the 2002 NZA “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation”.[23]
[23] Acts Interpretation Act 1901 (Cth), s 15AA.
Justice Logan explained:
33. Allowance must be made, in terms of the language of the international agreement, for the fact that it is an agreement negotiated between nation states by diplomatic representatives. It has not been drafted by parliamentary counsel. There are many indications in the international agreement that its drafting has this feature. In Art 12, para 4 itself reference is made to an entitlement to claim a Disability Support Pension, “under this agreement”. The claim though for such a pension is one made under the Social Security Act not the International Agreements Act or, for that matter, the international agreement. What the author presumably meant was a claim under whatever was the social security law of Australia governing Disability Support Pensions.
34. The terms of the recital found in Pt A of the international agreement are not to be ignored. An end to which that agreement, as incorporated into Australian law, is directed is the coordination of the two countries’ social security systems and an enhanced and equitable access by people covered by the agreement to specified social security benefits provided for by the law of Australia and New Zealand. One sees, so far as Australia is concerned, that those specified benefits are the Age Pension, the Disability Support Pension and Carer Payment in respect of the partner of a person who is in a receipt of a Disability Support Pension: see Art 2, para 1(a).
Article 2(2) is found in the section called “Legislative Scope” and begins with the words “For the purpose of this Agreement”. The Full Federal Court in Mahrous noted that Article 2 was “critical to understanding the application and content of the Agreement”.[24]
[24] [2013] FCAFC 75, at [27].
For the same reason applied by the Full Federal Court in Mahrous in relation to Article 12(4),[25] the Tribunal considers that Article 2(2) describes the category of persons who are entitled to a DSP benefit. Article 2(2) does not limit itself by referring to who is entitled to claim DSP, rather, it specifically addresses who is entitled to receive the benefit.[26] Section 94(1)(b) of the Act is also specifically concerned with addressing which persons are entitled to receive the DSP and that is why it is overridden by Article 2(2).
[25] [2013] FCAFC 75, at [51].
[26] [2013] FCAFC 75, see discussion at [59].
The IAA reinforces in section 6 that the provisions of the 2002 NZA have effect despite anything in the Act.
In Al-Janabi, a decision made the same day as the hearing of this matter, Deputy-President J Walsh and Member Dr Bygrave were not persuaded that Article 2(2) of the 2002 NZA provided an alternative means of qualification for DSP. They said (at [27]):
…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.
The concern expressed in Al-Janabi appears to relate more to where a person has resided prior to making a claim under the 2002 NZA rather than whether there is any inherent bias against those claiming under the Act rather than under the Agreement. Australia and New Zealand have agreed to treat each other’s citizens as relative equals when it comes to enabling entitlement to claim certain social security benefits. It is not for this Tribunal to determine whether that policy is one that should or should not have been adopted. The 2002 NZA is concerned with equitable access. That does not necessarily mean equal, it means fair and reasonable.[27]
[27] Macquarie Dictionary Online and Oxford English Dictionary Online.
In Stretch; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1429 (“Stretch”) Deputy President Dr P McDermott RFD found (at [11]) that Article 2(2) was not “a self-contained legislative regime relating to the entitlement of the respondent for DSP” because it does not, for example, determine the rate of payment.
The Tribunal agrees that Article 2(2) does not encompass every aspect of a DSP claim or the mechanisms under which it is implemented. However, this Tribunal considers that Article 2(2) is self-contained with respect to entitlement, which is what section 94(1)(b) of the Act applies. There is nothing inconsistent between Article 2(2) and sections 41 and 42 and Part 2 clause 3 of Schedule 2 of the Administration Act, to use the example used in Stretch, and that is why Article 2(2) does not override those provisions. However, there is something inconsistent with Article 2(2) and section 94(1)(b) of the Act. The requirement in Article 2(2) of the 2002 NZA is that the applicant be “severely disabled” which is defined in the 2002 NZA. The requirement is not that the applicant have an impairment or impairments with a total impairment rating of 20 points.
In Tamua and Secretary Department of Social Services [2016] AATA 757 (“Tamua”).Deputy President Alpins, relying on Mahrous, also found that Article 2(2) of the NZA overrides subsections 94(1)(a), (b) and (c) of the Act, such that a person need only demonstrate that they were severely disabled to qualify for DSP.
The Secretary disagrees with the decision in Tamua on the basis that Mahrous is not authority for the proposition that all of section 94 is overridden by the operation of Article 2 and that to find otherwise would “mean that New Zealand citizens would be treated more favourably under the 2002 NZA than Australian citizens who apply for DSP under the Act because a person would only need to address the question of work capacity and would not be required to demonstrate that their impairments were fully diagnosed, fully treated or fully stabilised, or that they had an impairment rating of at least 20 points under the Impairment Tables. This distinctly unfair and unequal treatment is clearly not intended and is at odds with the objective behind the payment of DSP itself.”[28]
[28] Exhibit 2, Secretary's Statement of Facts and Contentions dated 25 August 2017, para 35.
For the reasons outlined this Tribunal disagrees with the Secretary. It is not apparent that New Zealand citizens would be treated more favourably than Australian citizens. The question of work capacity is a significant one and, as also submitted by the Secretary, a much stricter requirement than that under section 94(1)(c) of the Act.[29] Australian citizens are required to have permanent impairment but they are not required to be totally unable to work. Further, as will be seen below, this Tribunal considers that treatment and stabilisation are a relevant consideration when deciding whether someone’s impairment makes them totally unable to work within the next 2 years.
[29] Exhibit 2, Secretary's Statement of Facts and Contentions dated 25 August 2017, para 33.
The Tribunal also notes that the Secretary explained to the Parliamentary Committee considering the proposed 2017 NZA in February 2017 that “limiting the qualification of DSP [in Article 2(2)] reduces the obligations on New Zealand and Australia, as well as assisting people who could not qualify for a support pension outside the Agreement to meet the qualifying requirements of DSP”.[30]
[30] Report 170 (May 2017), Commonwealth of Australia, “Social Security Agreement - New Zealand; Nuclear
Research Cooperation Agreement; Loan Agreement – International Monetary Fund; Harmonization of Wheeled
Vehicles – Revision, Chapter 2, paragraphs 2.16;
Therefore, the Tribunal finds that section 94(1)(b) of the Act does not need to be considered for the purpose of Mr Hamdallah’s DSP claim. The issue to be determined is whether Mr Hamdallah is severely disabled.

IS MR HAMDALLAH “SEVERELY DISABLED”?
Relevant Qualification Date

The issue here is whether there is a date by which Mr Hamdallah must be found to be severely disabled to qualify for DSP.
The generally accepted view of this Tribunal has been that, for the purposes of the Act, the date for determining whether a person meets the Section 94 Requirements is the date the claim for DSP was lodged, unless the person becomes qualified within 13 weeks of lodging the claim, in which case the start day is the day he/she becomes qualified.[31] This is usually referred to as the “qualification period”.
[31] Administration Act, ss 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2.
This generally accepted view derives from the Administration Act.[32]
[32] Administration Act, ss 41 and 42; Schedule 2, rule 3.
Rule 4 of Schedule 2 of the Administration Act sets out a further rule for working out the start date. It relevantly provides:
4 Start day--early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In Al-Janabi, the Tribunal preferred a more limited view of rule 4 than is generally assumed.[33] It found that “a finding [under rule 4(1)(c)] that a person, at claim, will become qualified because of the passage of time of the occurrence of an event within the 13 week period involves an assessment whether becoming qualified is reasonably certain, if not inevitable” and proceeded to consider whether the applicant in that case was qualified for DSP at the date of his claim, but not within 13 weeks thereafter. The Tribunal in Al-Janabi contends that the assessment of whether a person will become qualified within 13 weeks is an assessment that has to be made at the date of the claim, that is, it is forward-looking.[34] The Tribunal said it is not sufficient that an applicant could become qualified within 13 weeks of the date of the claim if the decision-maker could not be certain at the date of the claim that that would occur.
[33] [2017] AATA 1541, at [14].
[34] [2017] AATA 1541, at [11].
Rule 4 provides that if a person will become qualified within 13 weeks of the date of the claim and they in fact do become so qualified, the claim is taken to be made on the first day on which that person became qualified. This Tribunal considers that rule 4(1)(c) is guided by rule 4(1)(d). It is only if the person becomes qualified in fact during the 13-week period that they become eligible for payment of a benefit. Although it can be appreciated that an original decision maker may assess a claim for DSP before the expiry of the 13-week period, it is inevitable that by the time of review by this Tribunal, which is a merits review, whether a person became qualified within 13 weeks is usually able to be determined.
The Tribunal in Al-Janabi gave an example of a situation where a diagnosis made 2 months after a claim of an incurable, untreatable condition, which would mean that the person was qualified for DSP, would be unlikely to meet the requirement in rule 4(1)(c) that at claim they will become qualified within 13 weeks.[35] That may or may not be the case and would depend on the medical evidence. However, this Tribunal considers that if the period in which one could qualify is anytime within 13 weeks from the date of the claim, rule 4(c) seems unnecessary, as only rule 4(d) would be necessary. This Tribunal considers that there is some merit in the view proposed by the Tribunal in Al-Janabi. However, the Tribunal in Al-Janabi made no reference to the Federal Court authority of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252 (and on appeal, Secretary, Department of Employment and Workplace Relations v Harris[2007] FCAFC 130; (2007) 97 ALD 534.)), where Gyles J said at 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time. [my emphasis]
[35] [2017] AATA 1541, at [13].
The Tribunal also notes the decision in Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAR 466, which was approved by Besanko J in Gallacher v Secretary, Department of Social Services[2015] FCA 1123, where Deputy President Handley said at 473 [31]:
In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following [my emphasis]

The Tribunal accepts that none of these cases consider the view put forward in Al-Janabi, however, they are authority that can be relied upon to support the view that under the Act, to qualify for DSP, Mr Hamdallah must have met the Section 94 Requirements between 29 February 2016 and 30 May 2016 (“Qualification Period”).
Irrespective of which interpretation of rule 4 is preferred, this Tribunal considers that the rules for calculating the start date under the Administration do not apply by virtue of Article 2(2) of the 2002 NZA.
The Secretary submits that the date of severe disablement is only relevant to a consideration of whether Article 2(2)(b) and (c) of the 2002 NZA is satisfied and that Mr Hamdallah also has to satisfy the requirements of rules 3 and/or 4 of the Administration Act.[36]
[36] Secretary’s Supplementary Submissions dated 9 October 2017, para 10.
This Tribunal, for the same reasoning applied above in relation to section 94(1)(b) of the Act, considers that Article 2(2) further limits the provisions of the Act because it provides that DSP is limited to cases where the person was a resident of either Australia or New Zealand “at the date they became severely disabled” and that prior to the “date of severe disablement” the person was residing in Australia or New Zealand for a period of not less than one year at any time. There is no requirement that the assessment of severe disability be made at the date of the claim, rather one must identify the date the person became severely disabled and then assess if the 2 residency requirements are met. The 2002 NZA has specifically defined the date of severe disablement as being the date the person was first assessed as meeting the criteria for DSP.
Therefore, if Mr Hamdallah is found to be severely disabled, the date at which he became so also needs to be determined. Mr Hamdallah would meet the residency criteria in Articles 2(2)(b) and 2(2)(c) of the 2002 NZA as discussed above in paragraphs 30 to 33.

Requirements for Severe Disability

There are 3 requirements to be met under the definition of “severely disabled” in Article 1(l)(i) of the 2002 NZA.
The first requirement is that Mr Hamdallah has a physical impairment, a psychiatric impairment or an intellectual impairment. The second requirement is that Mr Hamdallah’s impairment/s makes him, without taking into account any other factor, totally unable to work for at least the next 2 years. The third requirement is that Mr Hamdallah’s impairment/s makes him, without taking into account any other factor, totally unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program.

Does Mr Hamdallah have an impairment?

“Impairment” has the same meaning in Article 2(2) as it does in section 94(1)(a).[37] The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[38]
[37] 2002 NZA, Article 3(1); and IAA, section 3(1).
[38] Determination, s 3.

Mr Hamdallah’s Medical Conditions
Spinal Condition

A CT scan of Mr Hamdallah’s lumbar spine in April 2015 indicated that there was:[39]
·moderate spondylotic changes noted at L5/S1
·broad based disc bulging at the L5/S1
·disc encroachment upon the forming S1 nerve roots
·moderate to severe left-sided neural foraminal stenosis at the L5/S1 level
·compression of the exiting left L5 nerve root which was thought to account for Mr Hamdallah’s symptoms of lower back pain with left leg radiation
·broad based disc bulging at L2/L3 and L3/L4
·mild scoliosis of the mid-lumbar spine convex to the left
[39] Exhibit 1, T Documents, T5, pages 66-67, CT scan dated 17 April 2015.
Mr William Mahon, Physiotherapist, reviewed Mr Hamdallah in January 2015 and reported that Mr Hamdallah had:[40]
·hyperalgesia to light touch grossly through the lumbar spine and left lower limb
·pain on weight bearing with the left leg
·pain with any movements of the left leg or lumbar spine
·significant guarding of the erector spinae muscles bilaterally
·neurological exam showed reflexes and dermatomes intact
[40] Exhibit 1, T Documents, T7, page 69, Report of Mr Mahon dated 22 January 2016.
Mr Hamdallah was reviewed by an independent medical examiner in February 2016, Dr Noel Harding. In Dr Harding’s opinion Mr Hamdallah has:[41]
…lumbosacral spondylosis with left L5 radiculopathy and depression, the residual effects of which qualify the claimant for permanent incapacity as Mr Hamdallah is unlikely to ever again be engaged in any occupation for which he is reasonably suited by his education, training or experience
… Chronic lower back pain due to an aggravation of lumbosacral spondylosis following a slip and fall of 13 January 2015.
[41] Exhibit 1, T Documents, ST4, pages 6-8, Report of Dr Harding dated 16 February 2016.
Dr Harding reported that:[42]
·There is no evidence that early referral for surgery improves outcomes
·Mr Hamdallah has reached a stable outcome following nonsurgical treatment therefore I am of the opinion that the spinal injury is stable and stationary
·Mr Hamdallah meets the policy definition of total and permanent disablement in my opinion.
[42] Exhibit 1, T Documents, ST4, pages 6-8, Report of Dr Harding dated 16 February 2016.
In March 2016 Dr El-Mezin, General Practitioner, reported that Mr Hamdallah:[43]
(a)had chronic lower back pain and moderate to severe left-sided neural foraminal stenosis at L5/S1 with the possibility of compression of the L5 nerve root;
(b)was treating his spinal condition with Lyrica and Panadeine Forte; and
(c)was on a waiting list for an orthopaedic surgical follow-up.
[43] Exhibit 1, T Documents, T 14, pages 112-113, Medical report of Dr El-Mezin dated 15 March 2016.
In June 2016 Dr El-Mezin reported that:[44]
(a)he strongly supported Mr Hamdallah’s application for DSP;
(b)he believed Mr Hamdallah “is severely disabled”;
(c)Mr Hamdallah “is not able to work for more than the next 2 years and he is unable to work 8 or more hours a week for the next 2 years”;
(d)Mr Hamdallah is on the waiting list for spinal surgery at PA Hospital.
[44] Exhibit 1, T Documents, T 20, page 134, Report of Dr El-Mezin dated 7 June 2016.
In June 2016 Mr Paul Strongman, Musculoskeletal Physiotherapist at the Specialised Spinal Physiotherapy Clinic of the PA Hospital, reported that Mr Hamdallah:[45]
(a)presented describing “midline paraspinal pain in his lumbar region, which radiates to his left iliac crest” and also describes “generalised left lower limb pain as a result of aggravation of his lumbar spine”;
(b)displayed significant losses of lumbar movement with reproduction of his low back pain;
(c)has had a circumferential loss of sensation in the left lower limb;
(d)displays a reduced ankle jerk reflects on the left lower limb;
(e)reports tenderness to palpation of the lumbar paraspinals and the L5 segment; and
(f)displays lumbar segmental dysfunction with referred leg pain.
[45] Exhibit 1, T Documents, T 21, page 135, Report of Mr Strongman dated 13 June 2016.
In Mr Strongman’s opinion Mr Hamdallah’s signs and symptoms were not consistent with the CT scan of his lumbar spine that was taken in April 2015 and therefore referred him, as requested by Mr Hamdallah, to the orthopaedic spinal surgical unit.
In July 2016 Dr Sultan reported that Mr Hamdallah had lumbosacral spondylosis which was permanent.[46]
[46] Exhibit 1, T Documents, T 22, page 136, Medical certificate of Dr Sultan dated 9 July 2016.
In March 2017 Dr El-Mezin reported that Mr Hamdallah still had continuous lower back pain, a decreased range of movement, and pain radiating to his left leg.[47]
[47] Exhibit 1, T Documents, T 35, page 164, Medical certificate of Dr El-Mezin dated 14 March 2017.

Cervical Spine

In September 2016 a CT scan of Mr Hamdallah’s cervical spine found severe changes of cervical spondylosis and multilevel foraminal narrowing at various levels.[48]
[48] Exhibit 1, T Documents, T 28, page 150, CT report dated 24 September 2016.
Dr Nagwa Farag reported in September 2016 that he arranged for Mr Hamdallah to have an MRI.[49]
[49] Exhibit 1, T Documents, T 29, page 151, Report of Dr Farag dated 28 September 2016.
In March 2017 Dr El-Mezin reported that Mr Hamdallah still had neck pain.[50]
[50] Exhibit 1, T Documents, T 35, page 164, Medical certificate of Dr El-Mezin dated 14 March 2017.

Mental Health

In September 2015 Dr El-Mezin referred Mr Hamdallah to Dr Baqir, Psychiatrist and Psychotherapist, for a review regarding his stress, anxiety and depression.[51]
[51] Exhibit 1, T Documents, ST1, page 1, letter from Dr El-Mezin to Dr Baqir dated 25 September 2015.
Dr Baqir reported in November 2015 that in his opinion Mr Hamdallah presented “with a history consistent with a major depressive episode with a partial response to a trial of Pristiq 50mg, complicated by comorbid chronic pain, issues related to work and financial and psychosocial stressors”.[52]
[52] Exhibit 1, T Documents, ST3, pages 4-5, Report of Dr Baqir dated 4 November 2015.
In November 2015 Ms Kholoud Abdulla reported that Mr Hamdallah had debilitating depression and was not functioning very well. Mr Abdulla was concerned about Mr Hamdallah’s state and requested that Dr El-Mezin review his medication.[53]
[53] Exhibit 1, T Documents, T6, page 68, letter from Ms Abdulla to Dr El-Mezin dated 18 November 2015.
In February 2016 Ms Abdulla reported that Mr Hamdallah:[54]
(a)has been receiving ongoing psychological treatment from her since May 2015;
(b)suffers from depression and anxiety which “occurred in the context of discrimination and abuse at work”; and
(c)has chronic pain and financial stress which has caused his depression and anxiety to progressively deteriorate;
(d)has had thoughts of suicide and has attempted suicide;
(e)exhibits symptoms of marked neurovegetative disturbance including insomnia, little appetite, severe low mood, marked social withdrawal and frequently staying in bed crying;
(f)feels hopeless and helpless and alienated; and
(g)has poor attention and concentration.
[54] Exhibit 1, T Documents, T8, page 70, report of Ms Abdulla dated 10 February 2016.
On 16 February 2016 Mr Hamdallah was referred again to Dr Baqir for his severe depression which had not been improving with medications.[55]
[55] Exhibit 1, T Documents, T9, page 71, report of Dr Adel El-Mezin dated 16 February 2016.
In March 2016 Dr El-Mezin reported that Mr Hamdallah had severe depression and was taking medication and having ongoing counselling.[56]
[56] Exhibit 1, T Documents, T 14, pages 115-116, Medical report of Dr El-Mezin dated 15 March 2016.
In April 2016 Dr Baqir reported that Mr Hamdallah:[57]
·remained severely depressed and that although he has been adherent to the recommended treatment, there has been no improvement since October 2015
·has a depressive disorder which is persistent and chronic and had responded poorly to treatment despite adherence to medication and counselling
·chronic pain disorder and ongoing psychosocial stressors
·had had an adequate trial of medications
[57] Exhibit 1, T Documents, ST6, pages 12-13, report of Dr Baqir dated 2 April 2016.
Dr Baqir recommended that Mr Hamdallah continue his current treatment, but that should his mood deteriorate he would recommend considering switching his medication. Dr Baqir also recommended that Mr Hamdallah should see a psychologist for psychological intervention for pain management. [58]
[58] Exhibit 1, T Documents, ST6, pages 12-13, report of Dr Baqir dated 2 April 2016.
Dr Baqir reported that “in my opinion he remains chronically impaired and not fit to work or study at this stage due to the complexity of his condition and the severity of depression.” [59]
[59] Exhibit 1, T Documents, ST6, pages 12-13, report of Dr Baqir dated 2 April 2016.
In May 2016 Ms Abdulla reported that Mr Hamdallah was still suffering from depression and anxiety, was chronically impaired and not fit to work or study due to the complexity of his situation and mental health condition and had responded poorly to therapy and that he would continue to receive psychological treatment.[60]
[60] Exhibit 1, T Documents, T18, page 130, Report of Ms Abdulla dated 23 May 2016.
In June 2016 Dr El-Mezin reported that:[61]
(a)he strongly supported Mr Hamdallah’s application for DSP;
(b)he believed Mr Hamdallah “is severely disabled”;
(c)Mr Hamdallah “is not able to work for more than the next 2 years and he is unable to work 8 or more hours a week for the next 2 years”;
(d)Mr Hamdallah has a depressive disorder which is presented as a chronic condition and has responded poorly to treatment despite adherence to medication and counselling;
(e)he has chronic pain disorder;
(f)Mr Hamdallah is chronically impaired and not fit to work or study this stage due to the complexity of his condition and the severity of his depression.
[61] Exhibit 1, T Documents, T 20, page 134, Report of Dr El-Mezin dated 7 June 2016.
In July 2016 Dr Sultan reported that Mr Hamdallah had depression which was permanent.[62]
[62] Exhibit 1, T Documents, T 22, page 136, Medical certificate of Dr Sultan dated 9 July 2016.
In July 2016 and August 2016 Ms Abdulla provided further reports repeating what she wrote in her reports of February 2016 and May 2016.[63]
[63] Exhibit 1, T Documents, T 23, page 137, Report of Ms Abdulla dated 13 July 2016; T26, page 140, Report of Ms
Abdulla dated 24 August 2016.
In August 2016 Dr Mohammed Rahman certified that Mr Hamdallah:[64]
·“is severely disabled and is not able to work for more than 2 more years”
·has been reviewed regularly by psychiatrists, psychologists and is waiting for spinal surgery
·“due to the complex nature of his illness he may be reconsidered for DSP”
[64] Exhibit 1, T Documents, T 24, page 138, Report of Dr Rahman dated 1 August 2016.
Dr Farag reported in September 2016 that Mr Hamdallah “suffers long-term depression and post-traumatic stress disorder after long history of torture in the middle east and loss of his job and financial difficulty here in Australia”.[65]
[65] Exhibit 1, T Documents, T 29, page 151, Report of Dr Farag dated 28 September 2016.
In January 2017 Dr El-Mezin reported that Mr Hamdallah:[66]
·is severely disabled and will not improve nor will he be able to work a minimum for the next 2 years
·is completely unable to work 8 or more hours a week for at least the next 2 years
·has a depressive disorder which is presented as a chronic condition and has responded poorly to treatment despite adherence to medication and counselling;
·has chronic pain disorder and ongoing psychosocial stresses;
·“is totally chronically impaired not fit to work or study at this stage due to the complexity of his condition and the severity of his depression”.
[66] Exhibit 1, T Documents, T 31, page 160, Report of Dr El-Mezin dated 30 January 2017.
Ms Abdulla wrote a letter to Centrelink in February 2017 “to advocating for Mr Hamdallah”. Ms Abdulla writes that she believes the decision to reject Mr Hamdallah’s DSP claim “was unfair”. Ms Abdulla says:[67]
Mr Hamdallah has been suffering from long time now the medical and psychiatric difficulties which have adversely affected on his ability to work. He would not be able to undertake part-time or full-time work. He’s been receiving psychiatric and medical treatment which is complicated by chronic pain for some time now over his condition has not improved and remains stable. He has responded poorly to treatment…[His] mental health situation has not improved with therapy. He struggles to leave the house, only out of necessity, is not socialise, he continues to suffer from insomnia and feels very depressed. He isolates himself remaining in his room, he has very minimal contact with his family. Mr Hamdallah’s plea is a genuine one. Please take his difficult situation into consideration.”
[67] Exhibit 1, T Documents, T 33, page 162, Report of Ms Abdulla dated 9th every 2017.
Dr Farag also wrote a letter to Centrelink in February 2017 saying that he believes the decision to reject Mr Hamdallah’s DSP claim “is unfair”. Dr Farag says:[68]
“Mr Hamdallah suffers long-term physical and mental illness that prevent him from sustain long-term employment in part-time or full-time base. He suffers long-term major depression, he is receiving regular counselling sessions with his clinical psychologist, as well he is on antidepressant under the supervision of a psychiatrist. His condition is not better with maximum treatment he is having. Also he suffers long-term lower back pain with compression of left L5 which result on constant pain interfere with his mobility at his sleep. He also suffers sever (sic) cervical spondylosis with nerve compression at level CVI, C7 with ongoing pain and weakness of both arms. I support is appeal on this regard and I’m waiting for your kind support and for decision.”
[68] Exhibit 1, T Documents, T 34, page 163, Report of Dr Farag dated 16 February 2017.
In March 2017 Dr El-Mezin reported that Mr Hamdallah still had depression and that he was suffering from “depressed mood, insomnia, anxiety, lethargy, loss of interest, chronic pain, [and a] loss of appetite”.[69]
[69] Exhibit 1, T Documents, T 35, page 164, Medical certificate of Dr El-Mezin dated 14 March 2017.

Conclusion on Impairments

The Secretary accepts that Mr Hamdallah suffers from impairments during the Qualification Period.[70]
[70] Exhibit 2, Secretary's Statement of Facts and Contentions dated 25 August 2017, para 63.
In light of the above medical evidence I conclude that during the Qualification Period,
Mr Hamdallah suffered from a Spinal Impairment and a Mental Health Impairment and that the requirement in section 94(1)(a) of the Act and the first requirement of the definition of “severely disabled” under the 2002 NZA has been met.

Do Mr Hamdallah’s impairments make him, without taking into account any other factor, totally unable to work for at least the next 2 years?

The Secretary submits that Mr Hamdallah is not totally unable to work for at least the next two years and is not unable to benefit within the next two years from participation in a rehabilitation program. While the Secretary acknowledges that there appears to be a consensus amongst Mr Hamdallah’s treating doctors that he is unable to work as a result of his medical conditions, the Secretary agrees with the assessment of Dr Armstrong that Mr Hamdallah has some capacity for work within the next two years in an appropriate sedentary role, which is consistent with his level of impairment. The Secretary submits that it is unclear whether Mr Hamdallah's treating doctors have taken into account factors other than the Applicant's impairments in expressing their view about his work capacity.[71]
[71] Exhibit 2, Secretary's Statement of Facts and Contentions dated 25 August 2017, para 85.
The Tribunal agrees with the acknowledgement of the Secretary that Mr Hamdallah’s doctors generally concede that Mr Hamdallah is unable to work because of his Impairments.
In April 2016 the JCA considered that Mr Hamdallah had a temporary work capacity of 0-7 hours per week but that with intervention he would have a capacity within 2 years to work 15-22 hours per week.[72]
[72] Exhibit 1, T Documents, T 16, pages 121-127, JCA Report dated 18 April 2016.

Dr Armstrong is a Medical Advisor from the Health Professional Advisory Unit and prepared a report for this hearing. Dr Armstrong reviewed the medical reports discussed above and considered that Mr Hamdallah’s “future work capacity is likely to be 8-14 hours/week in an appropriate sedentary role”. Dr Armstrong acknowledged that
[73] Exhibit 2, Secretary's Statement of Facts and Contentions dated 25 August 2017, Annexure A, Report of
Dr Harding dated 13 July 2017.
Dr Harding reported that Mr Hamdallah could not work in an “occupation for which he is reasonably suited” but said the Act requires consideration of any mainstream employment. Dr Armstrong also acknowledged that Dr El-Mezin said Mr Hamdallah was unable to work 8 hours/week but says he does not explain why.[73]
The definition of “severely disabled” does not specify that the person concerned must be totally unable to work in any specific role, such as a role previously held. There is no limitation placed on the meaning of work.
Even if it is accepted that Mr Hamdallah was totally unable to work at the time of his claim, there is no evidence that this will be the case for the next 2 years. In this regard, the Tribunal considers that the level of treatment undertaken and the degree of permanency of Mr Hamdallah’s impairments are relevant because if there is evidence that there is reasonable treatment that could be undertaken and that that treatment may result in a significant functional improvement. It could therefore not be said that Mr Hamdallah would be totally unable to work for the next 2 years.
In relation to Mr Hamdallah’s spinal impairment and chronic lower back pain, the medical evidence establishes that:
(a)Mr Hamdallah was on a waiting list for an orthopaedic surgical follow-up;[74] and
(b)a Musculoskeletal Physiotherapist Specialist Spinal Physiotherapy Clinic of the Princess Alexandra Hospital considered that Mr Hamdallah’s signs and symptoms were not consistent with the CT scan taken in April 2015 and therefore referred him to the orthopaedic spinal surgical unit.[75]
[74] Exhibit 1, T Documents, T 14, pages 112-113, Medical report of Dr El-Mezin dated 15 March 2016; T 20,
page 134, Report of Dr El-Mezin dated 7 June 2016.
[75] Exhibit 1, T Documents, T 21, page 135, Report of Mr Strongman dated 13 June 2016.
This is evidence that there is possibly treatment for Mr Hamdallah’s spinal condition which may result in significant functional improvement in Mr Hamdallah’s ability to work within the next 2 years. At the time of Mr Hamdallah’s claim for DSP, and by the time of the hearing, he had not yet been seen by an orthopaedic specialist. Further there is no evidence that Mr Hamdallah has undertaken any pain management program or seen a pain specialist to assist with his chronic pain. Dr Baqir recommended in April 2016 that Mr Hamdallah see a psychologist for psychological intervention for his pain management. There is no evidence that Mr Hamdallah would be unable to access that treatment within 2 years.
Subsequent to the hearing Mr Hamdallah obtained and submitted a further medical report from Dr Baqir and a referral letter from Dr Farag.[76] In Dr Baqir’s latest report Dr Baqir:
(a)refers to the fact that Mr Hamdallah is still on a waiting list to see a specialist at the Princess Alexander Hospital;
(b)recommended that Mr Hamdallah discuss with Dr Farag:
(i)being referred to Metro South Addiction and Mental Health Services Mood Disorder Unit for treatment of his refractory depression;
(ii)a follow up on review by the orthopaedic and pain services.
[76] Report of Dr Baqir dated 18 October 2017 and Letter from Dr Farag to Metro South Mental Health Services dated
19 October 2017.
This report confirms that Mr Hamdallah has still not had the recommended treatment.

Dr Farag finally referred Mr Hamdallah to Metro South Mental Health Services on 19 October 2017, 18 months after Dr Baqir initially recommended Mr Hamdallah receive psychologist review.
Dr Farag, in a letter dated 19 October 2017, now reports that Mr Hamdallah is on a waiting list for pain management and has been on that waiting list for a year. However, no mention was made of this in any of Dr Farag’s earlier reports. Mr Hamdallah has now provided the Tribunal with a copy of a letter from Dr Farag to Metro South Central Referral Hub dated 12 October 2016 regarding “opinion and management of his severe neck pain”. However, this does not appear to be a referral to a pain specialist and is more a request for a diagnosis and recommendations for treatment of the condition. There is no information provided from Metro South Central Referral Hub regarding this referral. Again, this indicates that at the date of Mr Hamdallah’s DSP claim, and the date of this decision, Mr Hamdallah has not been fully treated for his conditions such that it cannot be said he would be totally unable to work within the next 2 years.
Given that these treatment and diagnosis recommendations have not been followed or undertaken to date by Mr Hamdallah, the Tribunal finds that it cannot be said that

Mr Hamdallah is totally unable to work for at least the next 2 years.
In relation to Mr Hamdallah’s mental health impairment, Dr Baqir reports that
[77] Secretary’s Supplementary Submissions dated 9 October 2017
Mr Hamdallah’s depression is complicated by, among other things, comorbid chronic pain and recommended that Mr Hamdallah see a psychologist for psychological intervention for his pain management as this may assist. While Mr Hamdallah had seen Ms Abdulla for psychological treatment, she is not a psychologist. Dr El-Mezin confirmed at the hearing that Ms Abdullah is a social worker and that he referred Mr Hamdallah to her because she speaks Arabic. The Secretary provided further information regarding Ms Abdulla’s qualifications after the hearing which discloses that Ms Abdulla obtained her counselling qualifications from the University of Queensland in 2002 and that she is qualified to provide 80160- Professional attendance for the purpose of providing focussed psychological strategies services.[77]
However, a social worker or counsellor is not a clinical psychologist, psychologist or a pain management specialist and that was the recommended treatment for both
Mr Hamdallah’s chronic pain and his psychological symptoms. Given that he has not had the appropriate recommended treatment, and that it is likely that if Mr Hamdallah was to obtain appropriate chronic pain specialist treatment that this would also improve his mental health, it cannot be said that Mr Hamdallah would be totally unable to work within the next 2 years. Further, the evidence of some of Mr Hamdallah’s treating doctors is that he is unable to work 8 or more hours a week, not that he is totally unable to work at all.

Do Mr Hamdallah’s impairments make him, without taking into account any other factor, totally unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program?

For the reasons given in paragraphs 139 to 143, the Tribunal finds that it cannot be said that Mr Hamdallah’s impairments would make him totally unable to benefit within the next 2 years from participation in the program of assistance or rehabilitation program.

Conclusion on severe disability

The Tribunal finds that Mr Hamdallah is not severely disabled as defined in the 2002 NZA and therefore does not qualify for DSP.

DECISION

Mr Hamdallah’s claim fails because he did not qualify for DSP under the 2002 NZA.
The decision under review is affirmed.

I certify that the preceding 147 (one hundred and
forty-seven) paragraphs are
a true copy of the reasons
for the decision herein of Member D K Grigg

............................[Sgd].........................................
Associate
Dated: 1 November 2017

Date of hearing:

Final Submissions Received:

26 September 2017

26 October 2017

Applicant:

Solicitors for the Respondent:

By phone

Mr Rick McQuinlan

Department of Human Services

"come into operation" or "commence" is used), it comes into operation at the start of the day: Acts Interpretation
Act 1901 (Cth), s 3.