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

Hamza and Secretary, Department of Social Services (Social services second review) [2019] AATA 4306 (23 October 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6616
Re:Mohamed Hamza
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 October 2019
Place:Sydney

The decision under review is affirmed.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether applicant’s impairments total twenty points or more under the Impairment Tables – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act1991 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
23 October 2019

Mr Mohamed Hamza (the Applicant) contacted the Department (the Respondent) on 9 February 2018 in relation to claim for Disability Support Pension (DSP) and then lodged a claim for DSP on 16 February 2018. Once a claim is lodged, an assessment process begins to determine the eligibility of the applicant for the DSP which must take place as of the date of the claim or within 13 weeks thereafter. That is any time between February 2018 and 11 May 2018.[1]
[1] The Secretary concedes the date of the application should be taken as the date the Applicant first made contact with the Department rather than the date of the formal lodgement of the claim form. Respondent’s Statement of Facts, Issues and Contentions at [16].
This is what may be referred to as “the qualification period.”
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the applicant’s health, changes in their status or acquisition of additional medical or psychological conditions.[2]
[2] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
These may be material factors in any future application/claim made but they are not germane to the present assessment, except to the extent they may shed light on the applicant’s condition during the qualifying period.[3]
[3] Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
Whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to the review of DSP matters. The Tribunal can consider only matters within the qualifying period and it has no legislative authority to do otherwise.
When the Applicant’s case was considered by the Department, following a Disability Support Pension Medical Assessment Recommendation[4] a decision was made on 26 February 2018 to reject the application. This rejection was based on assessment that the claim was “manifestly medically ineligible” as the claimed conditions were not fully diagnosed, treated and stabilised as required by the legislation (see below). The Applicant sought a review of this decision and this matter was examined afresh by an Authorised review Officer (ARO) of the Department who, on 23 July 2018, affirmed the original decision.
[4] Section 37 Tribunal Documents at [159]-[160].
The Applicant sought a further review of this decision by the Social Services and Child Support Division of this Tribunal (AAT1) which, on 3 October 2018 affirmed the original decision.[5] The AAT1 only gave an oral decision in the matter and the Applicant did not seek a written statement of their reasons, as he was entitled to do.[6] In any event, this Tribunal would not be bound by the reasons or decisions of AAT1 but must treat the matter as a de novo hearing, within the restrictions outlined above related to information which was current and relevant during the qualifying period. The Applicant’s appeal to this Tribunal was made on 12 November 2018 and heard on 16 October 2019.
[5] Ibid at [3].
[6] Administrative Appeals Tribunal Act 1975 s. 43(2A).
THE DISABILITY SUPPORT PENSION (DSP)
In order to qualify for the DSP an applicant must fulfil certain criteria which are set out in the Social Security Act1991 (the Act) in section 94 which has three distinct limbs:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension 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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
In essence these requirements or criteria amount to this:
·the person has a physical, intellectual or psychiatric impairment;
·the person rates 20 points or more on the Impairment Tables (which are a set of criteria established to assess the level of impairment set out in a Determination made under s 26 of the Act). Points may be accumulated for a variety or number of conditions or in certain circumstances awarded directly for one condition of particular severity;
·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a programme known as the supported wage system;
·the person has turned 16; and
·the person is an eligible citizen or resident.
Failure to meet any one of these requirements is fatal to the application and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing those Points, the condition (however defined) giving rise to the impairment must be :
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[7] as follows:
[7] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 pt 2 s 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) 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.
Fully diagnosed and fully treated
(5) 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.
Fully stabilised
(6) 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.
Each of these conditions must be met before any points on the Impairment Tables can be considered or awarded.
A continuing inability to work is defined in subsection 94(2) of the Act. In effect it means that the impairment prevents the person from:
(a) … doing any work independently of a program of support within the next 2 years; and
(b) … either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
THE APPLICANT’S CONDITIONS
The Applicant has claimed that he suffers a degree of incapacity or disability resulting from the following conditions:[8]
(i)Osteoarthritis
(ii)Bulging disc in the lower back
(iii)Thoracic spinal condition
(iv)Right knee condition
(v)Morbid obesity
(vi)Difficulty sleeping (sleep apnoea)
(vii)Psoriatic arthritis.
[8] Section 37 Further Supplementary Documents at [272].
He claims that these conditions prevent him from being able to sit or stand for long periods of time and they result in having problems sleeping.
As has been explained, before any points can be assigned against any impediment, using the Impairment Tables, each condition has to be accepted as being fully diagnosed, treated and stabilised during the qualifying period.
Prior to consideration of the individual conditions, the Tribunal takes note of the fact that several of these conditions are claimed, by the Applicant to have been ones from which he has suffered for many years, and some are of more recent origin.
The Applicant told the Tribunal that he had suffered from diabetes for over ten years and that this was related to his condition of obesity. In 2015 he had lap band surgery and has lost a considerable amount of weight since then.[9] He says that his condition of psoriatic arthritis is also of long-standing and affects the movement in many off his joints, particularly his hands. Both of these conditions are related to his problems with sleep apnoea.
[9] Ibid at [262].
His physical impairments in terms of his knee condition resulted from a work-related injury sustained in November 2015 which in turn caused his back-related conditions and his difficulties in walking and standing.[10]
[10] Ibid at [259].
CONSIDERATIONS
The Tribunal will examine each claimed condition accordingly, although it will be sensible to treat the claims of osteoarthritis, spinal condition and knee condition together.
Based upon medical assessments and a medical certificate issued by Centrelink,[11] the Secretary concedes that these linked conditions were fully diagnosed at the relevant time.[12] However the Secretary argues that they were not fully treated and stabilised.
[11] Section 37 Tribunal Documents at [123].
[12] Respondent’s Statement of Facts, Issues and Contentions at [31].
In coming to this conclusion the Secretary relies upon a number of medical reports, each of which indicates that, during the qualifying period, the Applicant was assessed as being either in need of further assessment[13], or undertaking remedial therapies each of which suggested that an improvement in the Applicant’s condition was possible.[14] The fact that these reports suggested the need for further examination or assessment means that the conditions were not fully treated and the prospect of future improvement means that they were not fully stabilised.
[13] Referral by Dr Kumar to Dr Liew (9 November 2017); Referral by Dr Kumar to physiotherapist and exercise physiologist (9 November 2017 and 15 December 2017); recommendation from Dr Kariappa (radiologist) for CT or MRI evaluation (7 November 2017); comments of Dr Needham regarding dosage changes and value of further MRI investigation and improvements recorded by Dr Nagaromi with further treatment suggested (23 January 2017): at Section 37 Tribunal Documents at [105], [113], [114], [110], [117] and Supplementary Tribunal Documents at [201] respectively.
[14] Certificate of Capacity from WorkCover NSW (12 January 2017) regarding exercise programme and hydrotherapy treatment and from Mr Matthew Craig (Exercise Physiologist) (31 January 2018) regarding an individualised treatment plan leading to improvements in Applicant’s condition: Section 37 Tribunal Documents at [100] and [122] respectively.
In evidence to the Tribunal the Applicant stated that he had been advised that he should consider surgery on his knee but, given he is now only 37 years of age, it would be advisable to wait until he is older. In a report of 24 October 2018 Dr Needham (Consultant in Rehabilitation and Pain Medicine) also makes suggestions about future “stem therapy which is very expensive and effectiveness is unproven. Synvise injection could possibly give significant duration of symptom reduction and cost is considerable but not excessive.”[15]
[15] Section 37 Supplementary Tribunal Documents at [227].
The Tribunal has noted that evidence adduced after the qualifying period may only be used where it sheds light on the applicant’s condition during that period. The Secretary contends that reports from the ARO to the effect that the Applicant had advised him of recommendations that he have cortisone injections[16] and that a number of medical practitioners provided information about the Applicant’s continuing involvement in courses of treatment and therapy indicated that the Applicant was still exploring a variety of treatment and management options,[17] hence could not be considered to be in a stabilised condition related to his impairment.
[16] Ibid at [170].
[17] Dr Needham (25 July 2018; 24 October 2018 and 20 March 2019) at Section 37 Tribunal Documents at [174] and Supplementary Tribunal Documents at [227] and 241] respectively. Dr Kumar (8 August 2016 and 27 August 2018) and Dr Dowla (28 July 2018) at Section 37 Tribunal Documents at [179], [185] and [176] respectively. Dr Liew (25 October 2018) at Supplementary Tribunal Documents [226].
The overwhelming weight of medical evidence and the numerous reports from general practitioners, specialists and exercise therapists clearly indicate that during the qualifying period the Applicant was an active participant in a variety of interventions aimed at either refining his treatment options, based on gathering further data or in actual programmes designed to improve his immediate wellbeing.
As such, it must be concluded that, during the qualifying period the Applicant’s conditions related to his osteoarthritis, spinal and knee conditions were not fully treated and stabilised as required by the Act.
Given this, it is not necessary to make any assessment of the degree of impairment, which certainly existed in terms of a compromise with a state of complete wellbeing and freedom from any pain or inconveniences, related to the Impairment Tables.
However, for the sake of completeness, and in the event that the Tribunal is fund to be in error in relation to its conclusions about the treatment and stabilisation of the Applicant’s conditions, the Tribunal has examined the various medical and physiotherapy reports which describe the Applicant’s impairments or physical limitations.
The Applicant claims that he cannot sit or stand for long periods of time and that he has problems sleeping.[18] The physiotherapist (Mr Selim Vanlioglu) recommends that the Applicant avoid aggravating activities such as prolonged sitting and standing[19] and Drs Dowla, Kumar and Needham note mobility restrictions and problems with prolonged walking.[20]
A detailed WorkCover NSW certificate of capacity does not support a claim of being unable to sit for prolonged periods of time, advises against standing for more than 20 minutes at a time or bending or twisting when this can be avoided, but notes no restrictions on an ability to drive.[21]
Impairment Table 3 (Lower Limb Function) provides that in order to quality for 5 points on the Table here has to be mild functional impact upon a persons’ ability to walk to local facilities or walking around shops or supermarkets; difficulty in climbing stairs, an inability to stand for more than 10 minutes or the need for a prosthesis or walking stick. Although Dr Needham suggests that a walking stick might be beneficial,[22] taken together, the Applicant clearly does not meet the 5 point threshold and, were an assessment to be made on Table 3 the only rating possible would be 0.
In relation to Impairment Table 4 (Spinal Function), in order to qualify for 5 points an Applicant must be compromised in having some difficulty to reach over head height; bending without difficulty or turning their head or turn or moving their head in all directions. None of the medical reports suggests that these conditions cannot be met, although there is some evidence to the effect that the Applicant has been advised to avoid bending where possible. On the other hand, the Applicant told the Tribunal that he was unable to “sustain overhead activities” and had been unable to do so since his accident in 2015. To reach 10 points there must be an inability to sustain overhead activities, move their head in all directions, bend forward to pick up a light object at knee level or require assistance to get out of a chair.
[18] Section 37 Tribunal Document at [153].
[19] Section 37 Supplementary Tribunal Documents at [214].
[20] Section 37 Tribunal Document at [175], [179] and [241] respectively.
[21] Ibid at [99]-[102].
[22] Ibid at [241]. Dr Needham notes that the Applicant “was reluctant” to take up this suggestion, Supplementary Tribunal Documents at [268] and the Applicant told the Tribunal he rejected this suggestion because “seeing a walking stick makes people judge you.”
A generous assessment of the Applicant’s condition might assign a 10 point rating. A 5 point rating is more likely. The Tribunal would not agree with the Secretary’s conclusion that only a 0 point rating could be signed.
Other conditions noted by the Applicant in various reports include: problems sleeping (sleep apnoea)[23]; diabetes[24], hypertension and anxiety disorder,[25] obesity[26] and psoriatic arthritis.[27]
[23] Ibid at [216], [220], [238].
[24] Ibid at [216], [220], [238].
[25] Ibid at [20], [238] and Further Supplementary Documents at [272].
[26] Ibid at [272].
[27] Idem and Supplementary Tribunal Documents at [216].
However, no medical evidence is submitted in relation to any of these. The only matter which appears to have come under formal assessment at any stage is the matter of psoriatic arthritis where the ARO in their report wrote:
“There is minimal medical information on any past or current treatment you have received for the above condition. The absence of medical information regarding treatment does not allow for a determination to be made about whether the condition has been fully treated and if further improvement can be expected. In addition, there is no information about the functional impact resulting from this condition.”[28]
[28] Section 37 Tribunal Documents at [170].
This assessment resulted from the Applicant having made a further claim for DSP (see below) and for this condition being assessed in accordance with the Impairment Table ratings on Table 14 (Functions of the Skin).
The absence of any medical information about any of the other conditions referred to in various medical reports or claims means that none of them can be taken into account in assessing this application for DSP.

The Tribunal takes note of the fact that the Applicant has made further claims for DSP, dated 12 October 2018 and 7 February 2018, each of which was rejected. In each case, assessments made confirmed the initial assessment that the conditions in question, while fully diagnosed were not fully treated and stabilised.[29]
[29] Section 37 Supplementary Tribunal Documents at [228] and [242].
Although these assessments are not those relevant to the Tribunal’s immediate considerations, they provide some confirmation in relation to the assessments made related to the relevant qualifying period. Even the most contemporary medical reports suggest that further treatment options should be considered, and while the Applicant himself told the Tribunal that “I can’t get any better”, this is not what the medical evidence suggests.
In some respects the most relevant of all the medical evidence is that provided in the Independent Medical Examination undertaken by Orthopaedic Surgeon Dr John Harrison AM in relation to the workers compensation claim arising from the work accident of 13 November 2015. This report obviously both post-dates the accident and pre-dates the qualifying period. In that report Dr Harrison writes that although Mr Hamza “has not responded well to conservative care to date”, his recommendations were for greater physiotherapy, enhanced use of hydrotherapy practices leading to a prognosis that his condition may well improve in “response to an altered pattern of treatment as suggested.”[30] The weight of medical evidence suggests that this continues to be the case.
[30] Section 37 Further Supplementary Tribunal Documents at [263] and [266].
CONCLUSIONS
The evidence before the Tribunal points to a clear conclusion that while the Applicant has a number of medical conditions which have been fully diagnosed and some of which result in a variety of mild impairments to his daily living routines, none of them were, at the qualifying period, as required by the legislation, fully treated and stabilised.
This means that the Applicant cannot advance through the DSP process to have his impairments assessed against the ratings in the Impairment Tables. However, were such an assessment to be made, it is not possible on the material relevant to the qualification period that the Applicant could reach even 10 points and certainly could not rate above that.
This means that the Applicant cannot qualify for consideration for the DSP.
This finding, in turn, means that it is not necessary to consider the third limb of section 94 of the Act relating to any participation in a programme of support or continuing inability to work.[31]
[31] For the sake of the record it might be noted that the Applicant had participated in programme of support for a period of 302 days which is considerably fewer than the 546 days required to be completed in the relevant period. Section 37 Tribunal Documents at [204] and Supplementary Tribunal Documents at [253].
Should there be significant changes in any of the Applicant’s conditions, such that they could be regarded as having become fully stabilised and treated, the Applicant is at liberty to make a further claim for DSP at any time.
DECISION
The decision under review is affirmed.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM ,Senior Member

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Associate
Dated: 23 October 2019

Date(s) of hearing: 16 October 2019

Applicant: In person

Solicitors for the Respondent: M L Dennis, Department of Human Services

[2019] AATA 4306

23 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	16 October 2019
Applicant:	In person
Solicitors for the Respondent:	M L Dennis, Department of Human Services