HANNA, Raad and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2013] AATA 697

[2013] AATA 697

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/1131

Re

HANNA, Raad

APPLICANT

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

RESPONDENT

DECISION

Tribunal
Senior Member N Isenberg
Dr Toh

Date 27 September 2013

Place Sydney
Decision Summary
The decision under review is set aside.
..............[sgd]..........................................................
Senior Member N Isenberg
Catchwords
SOCIAL SECURITY - disability support pension - physical impairment - entitlement to disability support pension - whether the Applicant had an impairment rating of 20 points or more under the impairment tables - whether the Applicant had a “continuing inability to work” - the decision under review is set aside.

Legislation
Social Security Act 1991 ss 94, 27
Social Security (Administration) Act 1999 ss 4(1)
Cases
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Danny Harris [2010] FCA 360
Re Sargeant and Secretary, Department of Family and Community Services (2005) AATA 1076
Re Muir and Secretary, Department of Employment and Workplace Relations (2005) AATA 902
Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517
Re Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56
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REASONS FOR DECISION
Senior Member N Isenberg
Dr Toh
27 September 2013
Background

On 11 June 2009, the applicant, Raad Hanna arrived in Australia with his family from Iraq via Lebanon and was paid newstart allowance from this date. On 18 May 2011 the applicant expressed an intention to claim disability support pension (‘DSP’) and on 23 May 2011, he lodged a claim for DSP, together with a treating doctor’s report completed by Dr Emil Guirguis on 18 May 2011. The applicant was reported to be suffering from advanced arthritis of the spine and joints and morbid depression.
His claim was rejected by the Respondent (‘Centrelink’), on internal review and by the Social Security Appeals Tribunal. While Centrelink agreed that the Applicant suffers from a number of conditions it did not accept that his various conditions were necessarily permanent nor that they would attract the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (“the Act”). Further, Centrelink did not accept that he meets the other requirement of eligibility for disability support pension, that is, a continuing inability to work.
On 11 October 2012, the applicant was granted DSP under the new Impairment Tables.
ISSUES BEFORE THE TRIBUNAL
·Were the Applicant’s conditions between 23 May 2011 and 22 August 2011 fully diagnosed, treated and stabilised?
·If so, did the Applicant have an impairment rating of at least 20 points under the Impairment Tables?
·If so,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: HANNA, Raad and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 697
Case: [2013] AATA 697
Decision Date

CaseChat Overview and Summary

The case between Raad Hanna and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs concerns a dispute over the applicant's eligibility for a disability support pension (DSP). The applicant argued that his mental and physical impairments qualified him for DSP, and he sought review of a decision by the Administrative Appeals Tribunal (AAT) that he did not meet the criteria for the pension. The primary issue before the court was whether the applicant's impairments were permanent and stabilised as required by the relevant legislative framework. Specifically, the court had to determine whether the applicant's psychiatric and physical conditions met the criteria for permanence and stability necessary for an impairment rating under the Impairment Tables.

The court examined the applicant's medical history, including his treatment in Lebanon and subsequent assessments in Australia. It noted that the applicant's psychiatric condition, which he had been treated for in Lebanon, was not fully documented in the medical records provided. The court also considered the evidence of two experts, Michael Chalouhi, a registered occupational therapist, and Charlette Yaako-Khanania, a registered psychologist. While the court acknowledged that Ms Yaako-Khanania's insights into other job capacity assessments were limited due to her not being the original author of those reports, her ability to explain aspects of the job capacity assessment reports was deemed useful.

After reviewing the evidence, the court concluded that the applicant's impairments were indeed permanent and stabilised, as required by the legislation. The court found that the applicant's psychiatric condition, as well as his physical impairments, met the necessary criteria for an impairment rating of at least 20 points. The court further determined that the applicant's impairments resulted in a continuing inability to undertake any work for at least 15 hours per week over the next two years. Consequently, the court found that the applicant was qualified for DSP and set aside the AAT's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant also required for cross-examination Michael Chalouhi, Registered Occupational Therapist and a job capacity assessor who assessed the applicant on 29 November 2012, and Charlette Yaako-Khanania, registered psychologist, who assessed the applicant on 11 December 2012. Ms Yaako-Khanania was also asked a number of questions about job capacity assessments (‘JCAs’) other than her own. Little weight can be attached to her evidence in that regard, because she was not the author of the reports. She was, however, able to explain some features of the reports. CONSIDERATION OF THE EVIDENCE AND FINDINGSWhat are the Applicant’s Permanent Conditions?9.Before an impairment rating can be assigned under the Impairment Tables, the requirement set out in the Introduction to the Impairment Tables (“the Introduction”) must be satisfied. The main requirement is that an impairment must be fully diagnosed, treated and stabilised and permanent before an impairment rating can be assigned. Paragraph 4 of the Introduction deals with the requirement that the impairment be stabilised. It provides that before ‘a rating can be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised’. Paragraph 5 of the Introduction then states that the ‘condition must be considered permanent’. It provides that after ‘a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if, in the light of available evidence, it is more likely than not that it will persist for the foreseeable future’. Paragraph 6 of the Introduction provides that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred, whether treatment is still continuing or is planned in the near future, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years. In Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938, this Tribunal discussed the concept of permanence under the Act and said (at [22]):The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance. Psychiatric condition14.The applicant gave evidence that he had brought to Australia medication for his psychiatric condition which had been prescribed by a doctor in Lebanon, where he had been for a year prior to his emigration. He did not know the name of the medication or the doctor who prescribed it other than that he was a psychiatrist. He consulted him 12-13 times over the year he was in Lebanon for “stress” in relation to his experiences in Iraq. The history of the applicant’s condition is best otherwise considered by a review of the available medical evidence in chronological order.

Decision

Reasons for decision

We therefore find that the applicant was, at the relevant date, qualified for DSP because he had an impairment, which is properly rated under the Impairment Tables at, at least 20 points. We also find that because of the impairment, he had a continuing inability to undertake any work for at least 15 hours per week in the next two years. DECISION The decision under review is set aside.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1131
Re	HANNA, Raad
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

Tribunal	Senior Member N Isenberg Dr Toh
Date	27 September 2013
Place	Sydney