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

[2017] AATA 476

Ighani and Secretary, Department of Social Services (Social services second review) [2017] AATA 476 (13 April 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4750

Re:Ms Farideh Ighani

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr Conrad Ermert, Member

Date:13 April 2017  

Place:Melbourne

The decision under review is affirmed pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

[sgd]........................................................................

Mr Conrad Ermert, Member

SOCIAL SECURITY - Extension to portability period - jurisdiction to review original decision - Disability Support Pension - qualification period - whether physical, intellectual or psychiatric - whether impairments attract 20 or more impairment points - decision affirmed

LEGISLATION

Social Security Act 1991

Social Security (Active participation for Disability Support Pension) Determination 2014

Social Security (Administration) Act 1999Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

CASES

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

Mr Conrad Ermert, Member

13 April 2017

INTRODUCTION

1. On 18 June 2007 Ms Farideh Ighani, the Applicant, was granted a Disability Support Pension (DSP).  On 3 November 2012 an officer of Centrelink suspended the DSP as Ms Ighani was overseas for 13 weeks.  Centrelink is the service provider for the Secretary, Department of Social Services (the Respondent). An officer of Centrelink restored Ms Ighani’s DSP on 1 December 2012.

2. On 11 March 2015 Ms Ighani departed Australia for Iran. On 8 April 2015 an officer of Centrelink suspended her DSP after the maximum portability period of 28 days expired.  On 31 May 2015, while still in Iran, Ms Ighani sustained an injury to her right knee which required surgery. On 8 July 2015 an officer of Centrelink cancelled her DSP (the cancellation decision). 

3. Ms Ighani returned to Australia on 17 August 2015 and on 21 August 2015 she lodged a new claim for the DSP and sought an extension of the portability period.

4. On 21 August 2015 an officer of Centrelink rejected Ms Ighani’s application for an extension of the portability as the injury in Iran occurred after the end of the permitted portability period (the portability decision). Ms Ighani has not sought a review of this decision.  However, as part of this application she now seeks an extension to the portability period.

5. On 29 October 2015 an officer of Centrelink rejected Ms Ighani’s application for DSP on the basis that she did not have a severe impairment and had not actively participated in a program of support (the DSP decision).  On 28 January 2016 Ms Ighani sought a review of the DSP decision.  On 23 March 2016 an Authorised Review Officer (ARO) of Centrelink affirmed the original decision (the ARO decision). 

6. Ms Ighani sought a review of the ARO decision. On 8 August 2016 the Social Services and Child Support Division at tier one of the Administrative Appeals Tribunal (AAT1) affirmed the decision (the AAT1 decision).  On 8 September 2016 Ms Ighani lodged an application for review of the AAT1 decision.

   HEARING

7. Mr Graham Wells, of Social Security Rights Victoria, represented Ms Ighani.  Ms Ighani attended the hearing and gave evidence under affirmation with the help of an interpreter in the Persian language. Dr Omid Akhtar Khavari, General Practitioner (GP) and Dr Ehsan Rahimikia, Consultant Psychiatrist, gave evidence by telephone for Ms Ighani.

8. Mr Joshua Lessing, of Sparke Helmore, represented the Respondent.

9. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  

10. For Ms Ighani I had for consideration the Applicant’s Statement of Facts, Issues and Contentions, undated.  I took in as evidence:

    ·Exhibit A1 - letter by Phillip Crooks, of SensWide Employment, dated 1 December 2016.

11. For the Respondent I had for consideration the Secretary’s Statement of Issues, Facts and Contentions dated 27 February 2017.  I took in as evidence:

    ·Exhibit R1 – Suspension of your Disability Support Pension dated 8 April 2015;

    ·Exhibit R2 – Cancellation of your Disability Support Pension dated 8 July 2015;

    ·Exhibit R3 – Centrelink file note dated 21 August 2015;

    ·Exhibit R4 – letter by Lidia Mawal, Occupational Therapist of Vision Australia, dated 14 November 2016;

    ·Exhibit R5 – medical certificate by Dr Geoffrey Broadhead, Ophthalmic Registrar, dated 8 July 2016; and

    ·Exhibit R6 – report by Dr Christopher Minogue of the Centrelink Health Professional Advisory Unit (HPAU) dated 30 January 2017.

    LEGISLATION

12. The relevant legislation is contained in:

    ·Social Security Act 1991 (the Act);

    ·Social Security (Administration) Act 1999 (the Administration Act);

    ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

    ·Social Security (Active participation for Disability Support Pension) Determination 2014 (the POS Determination).

    ISSUES

13. There are two issues for determination:

    ·whether this Tribunal has jurisdiction to consider and make a decision in regard to an extension of the portability period; and

    ·whether, in the qualifying period, Ms Ighani was qualified for DSP.

    PRELIMINARY ISSUE: EXTENDED PORTABILITY

14. As the finding on this issue would affect the case to be presented in regard to Ms Ighani’s qualification for DSP I proceeded to consider the extended portability application as a preliminary issue.

15. Mr Wells contends that the Tribunal has jurisdiction to review the portability decision.  He accepts that Ms Ighani originally planned to return to Australia on 16 June 2016 and that is outside the 28 day portability period.  He submits that Ms Ighani’s English language skills are very limited and she understood that she would be able to have her DSP re-instated on her return, as had occurred on a previous occasion.  Mr Wells submits that Ms Ighani broke her leg in Iran prior to the cancellation of her DSP.  He contends that the Tribunal has jurisdiction to find that Ms Ighani’s portability period should be extended to cover her period of absence from Australia and that her DSP payments should be re-instated.

16. In support of his contention, Mr Wells cites the decision of the High Court in the matter of Shi v Migration Agents Registration Authority [2008] HCA 31 (30 July 2008) in which, at paragraph 43, Kirby J said “… the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision …”.  Mr Wells contends that, following the reasoning in Shi the fact of Ms Ighani’s broken leg and subsequent hospitalisation is highly relevant and can be considered by this Tribunal in support of extending Ms Ighani’s portability period.

17. The Respondent contends that the Tribunal does not have the jurisdiction to review the portability decision as the decision has not been before an ARO or the AAT1 for review. In support of the contention the Respondent cites the provisions of section 179 of the Administration Act which provide that an application may be made for an AAT second review of a decision of the AAT on AAT first review. 

18. In considering the submission I note that in paragraph 43 of Shi Kirby J went on to say that it is “… the fact that the review contemplated by s 43 of the AAT Act is one addressed to a “decision”, inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review”. 

19. In this case the relevant enactment is the Administration Act. Section 179 of the Administration Act provides that an application may be made to the AAT for a second review of a decision of the AAT on AAT first review.  Ms Ighani has not sought a first AAT1 review of the portability decision.  Mr Wells contends that Ms Ighani intended to seek such a review as part of her application for review of the DSP decision.  He contends that her limited English language skills were the cause of her misunderstanding.

20. Ms Ighani had an opportunity to canvas this issue at the AAT1 hearing but did not do so.  Mr Wells submitted that her representatives did not pursue the issue for reasons unknown.  Nevertheless, the result is that the portability decision was not considered by the AAT1.  The AAT1 made no decision in relation to the issue. 

21. As a result, there is no AAT first review decision on the portability issue before me to consider. Consequently, the provisions of section 179 of the Administration Act do not apply to this issue and there is no enactment that provides jurisdiction to this Tribunal to consider the matter. 

22. I find that I do not have the jurisdiction to review the portability decision. 

23. I presented my finding orally to the parties and adjourned the hearing briefly to allow Mr Wells to explain the finding and its ramifications to Ms Ighani.

    DSP ISSUE

    Qualification Period

24. Schedule 2, section 4(1) of the Administration Act requires Ms Ighani’s qualification for DSP to be determined from the date of her claim to a date 13 weeks thereafter. In this case I find that the qualification period is 21 August 2015, the date of the claim, to 20 November 2015, that being a period of 13 weeks.

25. This finding was not contested by Mr Wells.

    EVIDENCE

    Ms Ighani

26. Ms Ighani said she first qualified for DSP in 2006 or 2007.  Her conditions at that time were her eyes and a frozen shoulder.  She said that her conditions during the Qualifying Period were her broken knee, her depression, and glaucoma in her right eye.  She said that in the time since the Qualifying Period she suffered from her right eye, double vision in her left eye, her broken knee and her depression which had become worse.

27. Ms Ighani said that each day she suffered pain, stress and anxiety.  She slept poorly and would wake up late in the morning.  In answer to questions from Mr Wells she said:

    ·she could sometimes get up in the morning by herself but would need assistance one or two days a week;

    ·because of her should pain she needed assistance every day to get dressed;

    ·her family prepared breakfast for her;

    ·she could move around the house by herself using a walking stick;

    ·she used a wheelchair only when her leg was broken;

    ·she had glaucoma only in her right eye; her left eye had some vision;

    ·when shopping she was always assisted by her sister or brother-in-law;

    ·she could not leave the house by herself because she might fall because of her eyesight and that she was afraid that something might happen to her;

    ·her sister and family assist in doing her washing and hanging out the clothes to dry; and

    ·she needed assistance with everything.

28. When asked how her conditions were now compared with the way they were in the Qualifying Period, Ms Ighani said her mental condition was worse, and she also had the broken leg.

29. In answer to questions from Mr Lessing, Ms Ighani said:

    ·in November 2015 she was still waiting for cataract surgery;

    ·she does not use aids for vision other than for contact lenses or glasses;

    ·her right shoulder is the problem;

    ·during the Qualifying Period her left shoulder was fine although it is now becoming a problem;

    ·she has not seen a medical specialist about her shoulder;

    ·she agreed with the statement of Dr Khavari in his reports of 18 December 2013 and 15 December 2015 that it was impossible for her to lift heavy objects repeatedly for a long time;

    ·she can lift a glass of water with her left hand;

    ·she can hold and use a pen;

    ·her depression has become worse since August 2015 because of the rejection of her claim for DSP; she has since been to a psychiatrist and clinical psychologist for treatment;

    ·until the rejection of her DSP claim her depressive conditions was fairly well managed;

    ·she fractured her knee on 31 May 2015 when she fell on a step at night;

    ·she had had surgery on her knee in Iran and on her return to Australia;

    ·in 2016 she was referred to the Austin Hospital for physiotherapy treatment which she still attends and also sees a chiropractor;

    ·from 14 March to 19 June 2009 to she travelled to Iran with her sister;

    ·from 4 August to 1 December 2012 she travelled to Iran;

    ·from 6 June to 5 July 2013 she travelled to Turkey;

    ·from 11 March to 17 August 2015 she travelled to Iran, on which trip she broke her knee;

    ·she never travelled on her own; only with her sister and family;

    ·her travelling companions would handle her luggage; and

    ·she agreed as correct that she first attended SensWide Employment on 9 November 2015, that she had a medical exemption from 9 November 2015 to 8 February 2016, and that she did not attend SensWide Employment until after April 2016.

30. In response to further questions from Mr Wells, Ms Ighani said she first realised she was depressed and anxious about things many years ago when her mother died and her brother committed suicide.  She said she decided to see a psychiatrist after coming back from Iran.  Until then she did not see a specialist as she had no money.  Ms Ighani said the treatment with the medications had made a tiny bit of improvement to her condition.

    Dr Ehsan Rahimikia, Consultant Psychiatrist

31. Dr Rahimikia said he first saw Ms Ighani is 2016.  He considered she suffered from major depressive disorder of a moderate severity.  When asked about her condition during the Qualifying Period, Dr Rahimikia said that at the time she was more depressed than usual, being very anxious about the rejection of her DSP claim and also about financial issues.  He said she was not able to function at all.  She could not get out of the house.  She was not sleeping. 

32. When asked if Ms Ighani’s condition was permanent, fully treated and fully stabilised, Dr Rahimikia said she has been seen by a psychiatrist and been treated by a psychologist.  She has had depression for a long time.  At times it was more manageable but towards the end of 2015 it was more severe.

33. When asked if Ms Ighani was able to work or study, Dr Rahimikia opined that, if she had no problems other than her psychiatric problems she would not be able to undertake a full-time or permanent job. He did not think she could manage to work for 15 hours per week. He said that improvement in her condition would take a long time, however, there has been some improvement as a result of her treatment with medications.

34. In answer to questions from Mr Lessing, Dr Rahimikia said:

    ·his opinions on her condition during the Qualifying Period were speculative, based on her history;

    ·her vision, knee pain, and DSP rejection aggravated her depression;

    ·her earlier depression was more manageable and was at a low point at the end of 2015;

    ·before seeing him Ms Ighani had had some psychological treatment including the prescription of medications;

    ·as part of his treatment plan he prescribed the use of an augmenting agent which he expected should result in some improvement; and

    ·before seeing him Ms Ighani had undertaken all reasonable treatment under her GP.

35. When asked by Mr Wells if he expected the treatment to result in a significant difference to Ms Ighani’s condition, Dr Rahimikia said it was hard to predict.  There should be some improvement, but not significant improvement.

    Dr Omid Akhtar Khavari, GP

36. Dr Khavari said he had been qualified as a doctor for four years.  He has been treating Ms Ighani for three years.  He said she presents with the following conditions:

    ·chronic depression – referred to a psychiatrist and taking medications;

    ·chronic shoulder pain – under treatment;

    ·right knee – underwent surgery in Iran, under the care of an orthopaedic specialist at the Austin Hospital;

    ·eye problems – her glaucoma is getting worse; under care with the Eye and Ear Hospital;

    ·both wrists – recently experiencing pain and discomfort.

37. Dr Khavari said that all the above conditions except the wrist condition were diagnosed by 2015. He considered the conditions to be permanent in the terms of the Impairment Tables.  He opined that Ms Ighani was not able to work or study for 15 hours per week because of her sight and because she could hardly walk.  He said her depression affected her concentration.

38. When asked which conditions he would classify as severe Dr Khavari said:

    ·eyesight;

    ·depression;

    ·knee (moderate to severe); and

    ·wrists and trigger finger, but these were only recent conditions.

39. Mr Lessing referred to the report dated 15 December 2015 in which Dr Khavari recorded a focal tear in the Supraspinatus tendon.  Dr Khavari said the tear could not be repaired surgically.

40. When asked by Mr Lessing about the diagnosis of glaucoma, Dr Khavari said he was not a specialist in that area and could not answer.

41. Dr Khavari agreed that Ms Ighani’s depression deteriorated during August to November 2015, causing him to refer her to the psychiatrist and psychologist.

    TRIBUNAL CONSIDERATIONS

42. Section 94(1) of the Act details the requirements for qualification for DSP as follows:

    (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…

    Physical, Intellectual or Psychiatric Impairment (subsection 94(1)(a) of the Act)

43. The Respondent accepts that during the Qualifying Period Ms Ighani suffered the following conditions giving rise to impairments for the purposes of subsection 94(1)(a) of the Act:

    ·Low back and right hip pain;

    ·Eye conditions;

    ·Cervical spine (neck) / shoulder condition;

    ·Depression;

    ·Right lower limb / knee condition;

    ·Hypothyroidism;

    ·Vitamin D deficiency;

    ·Osteoporosis; and

    ·Hypertension.

44. I am satisfied that the medical evidence supports this concession and I find accordingly.

    Impairment of 20 Points or more (subsection 94(1)(b) of the Act)

45. Section 6 of the Impairment Tables provides that an impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent.  A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.

46. I will consider each condition in turn.

    Low Back and Right Hip Pain

47. I note the report of Dr Joanne Gardiner, GP, dated 25 June 2007 which records a diagnosis of osteoarthritis in the lumbar spine based on the result of a CT scan undertaken on 26 March 2007.  I am satisfied that the condition is fully diagnosed in the terms of the Impairment Tables.

48. The Respondent contends that the condition cannot be considered as being fully treated and fully stabilised on the basis that Ms Ighani commenced chiropractic treatment around the time of the Qualifying Period and that there is a lack of specialist intervention regarding the marked degenerative change to the L5-S1 facet joints noted on the CT scan dated 26 March 2007.

49. I consider the following reports to be relevant:

    ·Dr Gardiner dated 25 June 2007 which records current and future treatment for the condition as physiotherapy;

    ·Dr Anne-Marie Diggins dated 30 January 2013 which records:

    Arthritis – Pain free – Has been seen at Austin Rheumatology – has been discharged.

    ·Dr Khavari dated 15 December 2015 which records “Her regular treatment is having Physiotherapy and Chiropractor assistance once a week on a regular basis …”

1. The only prescribed treatment is physiotherapy.  I find no prescription for chiropractic treatment or more specialist intervention.  Dr Khavari reports that Ms Ighani is undertaking physiotherapy treatment.  I am satisfied that the condition is fully treated.

2. There is no evidence of further treatment prescribed by a doctor that is likely to result in significant functional improvement.  I am satisfied that the condition is fully stabilised.

3. As the condition is fully diagnosed, fully treated and fully stabilised I am able to assign an impairment rating from the Impairment Tables.  The relevant table is Table 4 – Spinal Function. The Introduction to Table 4 states that self-report of symptoms alone is not sufficient.  There must be corroborating evidence of the person’s impairment from relevant medical practitioners. 

4. Relevant corroborating evidence is contained in the report of Dr Gardiner who describes the impact of this condition as “… difficulties with sitting and using computer … unable to tolerate more than ½ hour in one position eg. sitting at computer screen”.  Dr Diggins reports that Ms Ighani is pain free from the arthritis.  Dr Khavari provides no evidence on the functional impact of this condition.

5. For a rating of a mild functional impact attracting five impairment points the descriptors in Table 4 require the person to have some difficulty in:

   (a)activities over head height (e.g. activities requiring the person to look upwards); or

   (b)     bending to knee level and straightening up again without difficulty; or

   (c)     turning their trunk or moving their head (e.g. to look to the sides or upwards).

6. There is no evidence that Ms Ighani has difficulties from her lumbar spine condition in any of these activities.  Accordingly, her impairment from this condition does not attract a rating of five points.  I assign an impairment rating of zero points to this condition.

   Eye Conditions

7. The eye conditions for consideration are myopia, cataracts, macular degeneration and glaucoma. 

   Myopia

8. The Respondent accepts that Ms Ighani’s myopia was fully diagnosed during the Qualifying Period.  The reports of Dr Jackson, dated 18 April 2012, Sandra Au, dated 16 January 2015, 25 February 2015 and 27 October 2015 support the diagnosis.  I find that the condition of myopia was fully diagnosed during the Qualifying Period.

9. In considering whether the condition was fully treated I note the report of Sandra Au dated 27 October 2015 in which she reports an intended review on 10 November 2015 for the delivery of a new left contact lens.  I note also the report of Dr Kerry Matthews dated 15 January 2016 which reported “Myopic degradation and lacker cacks [sic] are stable from previous assessments.  Next optometric review in 24 months”.  From these reports I am satisfied that Ms Ighani’s myopia was fully treated and fully stabilised during the Qualifying Period.  Accordingly, I am able to assign an impairment rating to this condition.

10. I am satisfied from the medical reports that Ms Ighani suffers at least a mild functional impact from myopia.  In considering whether a higher impairment rating could apply I note that for a moderate rating attracting 10 points the person “needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks”.  Ms Ighani’s evidence was that she does not use such aids or devices.  Accordingly, the highest rating that can be assigned to this condition is five points.

    Cataracts

11. The Respondent accepts that Ms Ighani’s cataracts were fully diagnosed during the Qualifying Period.  The medical reports from 2007 onwards support the diagnosis. 

12. However, in considering whether the condition was fully treated and fully stabilised I note that Sandra Au reports that on 27 October 2015 Ms Ighani was already booked for cataract surgery to her left eye.  Dr Matthews reports that her double vision would improve after her left cataract surgery.  I accept this as evidence that the cataract surgery was expected to significantly improve Ms Ighani’s vision impairment.

13. I am satisfied that the eye condition of cataracts was not fully treated during the Qualifying Period.  Accordingly, it is not permanent in the terms of the Impairment Tables and cannot be assigned an impairment rating.

    Macular Degeneration

14. The Respondent accepts the condition of macular degeneration to be fully diagnosed.  I note the diagnosis of underlying macular degeneration in the report of Dr Gardiner dated 22 January 2007.  In her report dated 25 June 2007 Dr Gardiner records macular degeneration as a condition having minimal or limited impact on ability to function.

15. I am satisfied that at the time of the Qualifying Period macular degeneration was fully diagnosed.  There is no record of treatment or further investigation into this aspect of Ms Ighani’s vision impairments.  I am satisfied that during the Qualifying Period macular degeneration was fully treated and stabilised. 

16. In considering an impairment rating for this condition I accept the opinion of Dr Gardiner that the condition has minimal or limited impact on Ms Ighani’s ability to function.  I assign an impairment rating of zero points to this condition.

    Glaucoma

17. Although a diagnosis of glaucoma is recorded in the report of Dr Khavari dated 15 December 2015 and subsequent reports, I note the comments of Dr Minogue of the HPAU who recorded:

    “Dr Khavari attached a letter dated 27/10/15 from an optometrist Ms S Au.  Dr Khavari’s reportage of glaucoma appears to be incorrect as right eye intraocular pressure (IOP) was measured as 18 mmHg (16 in January 2015) and the normal range is 10-21;  the optometrist did not mention this diagnosis … An optical dispensing optometrist Mr K Matthews … considered that IOP reducing medication (for glaucoma, for which there was no evidence) was not needed and advised the patient of such”

18. Dr Khavari acknowledged in his oral evidence that he was not qualified to comment on the diagnosis of glaucoma.  As there is no specialist diagnosis of glaucoma, I am not satisfied the condition is fully diagnosed.  As a result I am unable to assign an impairment rating to this condition.

    Cervical Spine / Right Shoulder Condition

19. The AAT1 was satisfied that the Ms Ighani’s longstanding shoulder issues were fully diagnosed, treated and stabilised.  However the AAT1 did not have available to it the report of Dr Minogue of the HPAU.  As a result of his review of the available medical reports he records:

    “The diagnosis of frozen shoulder (adhesive capsulitis) is not plausible over such a prolonged timeframe, as the expectation is of complete or near-complete spontaneous recovery of function within about 4 years maximum … The cervical spine MRI findings in 2014 indicated impingement of left C6 and C8 nerve roots, which may be of limited clinical relevance as Ms Ighani seems to have had more trouble with her right arm.  Nonetheless an opinion from a neurosurgeon would have been worthwhile on the basis of the MRI findings, and it is quite possible that the GP Dr Diggins made such a referral, which for whatever reason was not followed up.

    On the available evidence the right upper limb symptoms could well be related more to cervical spondylosis than to shoulder joint pathology.  Chiropractic techniques are unlikely to be of much if any benefit for this condition, and neck manipulations would be contraindicated in the presence of nerve root impingement.  In the apparent absence of a specialist neurosurgical opinion to date, I consider it reasonable for the upper limb condition to be deemed not fully diagnosed, treated or stabilised.”

20. Dr Minogue calls into question the diagnoses of frozen shoulder and raises the possibility of the symptoms being related to cervical spondylosis.  His report suggests that an opinion from a specialist neurosurgeon would be required to fully diagnose the condition. 

21. I accept that Dr Minogue formed his opinions after a review of all the available medical evidence.  I accept that without a specialist neurosurgeon’s opinion Ms Ighani’s right upper limb conditions cannot be considered as fully diagnosed, and I find accordingly.  As a result I am unable to assign an impairment rating to the condition.

    Depression

22. The Introduction to Table 5 – Mental Health Function requires that “the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).” 

23. Although Ms Ighani claims that her mental health condition was examined by a psychiatrist in Iran there is no evidence of that before me.  The first diagnosis of a mental health condition by an appropriately qualified medical practitioner is that of Dr Rahimikia dated 23 May 2016.  That date is after the Qualifying Period. 

24. I find that during the Qualifying Report Ms Ighani’s mental health condition was not fully diagnosed in the terms of the Impairment Tables.  As a result I am unable to assign an impairment rating to the condition.

    Right Lower Limb / Knee Condition

25. There is no disagreement that Ms Ighani’s right knee condition was fully diagnosed at the Qualifying Period.  In regard to treatment for the condition I note that Ms Ighani was required to attend the Austin Hospital on 13 November 2015 for the removal of metalware from the right patella (knee).  On 24 December 2015, following her surgery, Ms Ighani was referred to attend the Austin Hospital Physiotherapy Outpatient Clinic.

26. I note also the Medical Certificate of Dr Khavari dated 20 December 2015 in which he records that the condition is Temporary and the symptoms are likely to show considerable improvement within 2 years.

27. I am satisfied that during the Qualifying Period the condition was neither fully treated nor fully stabilised.   As a result I cannot assign an impairment rating to the condition.

    Hypothyroidism

28. The Respondent accepts that hypothyroidism was fully diagnosed, fully treated and fully stabilised during the Qualifying Period.  I am satisfied that the medical evidence supports this concession and find accordingly. 

29. In considering the condition for an impairment rating I note there is no evidence of the condition having any functional impairment on Ms Ighani.  As a result I assign a rating of zero impairment points to this condition.

    Vitamin D Deficiency

30. In the hand-written extension to her report dated 22 January 2007 Dr Gardiner records the condition of Severe Vitamin D deficiency and prescribes medication.  There are no subsequent mentions of the condition or functional impact arising from the condition.

31. In the absence of further recordings of the condition I accept that it is fully diagnosed, fully treated and fully stabilised and causing no minimal impact on Ms Ighani’s ability to function.  I assign an impairment rating of zero to this condition.

    Osteoporosis

32. The Respondent accepts that the condition is fully diagnosed, fully treated and fully stabilised.  I am satisfied that the medical evidence supports this concession and I find accordingly.

33. In considering an impairment arising from the condition I note the report of Dr Khavari dated 18 December 2013 in which he records osteoporosis as a condition that causes minimal or limited functional impact.

34. I assign an impairment rating of zero to this condition.

    Hypertension

35. The only report of hypertension is contained in the JCA report dated 21 October 2015 in which he records “Client reported a diagnosis of Hypertension and she has been treated with the following medication; anapril.  Client reported that her condition is well managed with medication”.

36. Without a diagnosis by an appropriately qualified medical practitioner I do not accept that the condition is fully diagnosed.  Accordingly, I cannot assign an impairment rating to the condition.

    Total Impairment Rating

37. I have found that in the Qualifying Period Ms Ighani’s conditions attracted the following assessments:

    ·Low back and right hip pain – zero impairment points;

    ·Myopia – five impairment points;

    ·Cataracts – not fully treated; unable to assign an impairment rating;

    ·Macular degeneration – zero impairment points;

    ·Glaucoma – not fully diagnosed; unable to assign an impairment rating;

    ·Cervical spine / shoulder condition – not fully diagnosed; unable to assign an impairment rating;

    ·Depression – not fully diagnosed; unable to assign an impairment rating;

    ·Right lower limb / knee condition – not fully treated, not fully stabilised; unable to assign an impairment rating;

    ·Hypothyroidism – zero impairment points;

    ·Vitamin D deficiency – zero impairment points;

    ·Osteoporosis – zero impairment points; and

    ·Hypertension – not fully diagnosed; unable to assign an impairment rating.

    The total impairment rating in the relevant period is 5 points.  This is not sufficient to satisfy the requirements of subsection 94(1)(b) of the Act.

    CONCLUSION

38. As Ms Ighani’s impairments do not satisfy subsection 94(1)(b) of the Act, she cannot meet all the requirements of section 94(1) of the Act.  As she cannot meet all the requirements of section 94(1) I have no need to consider the provisions of subsection 94(1)(c) of the Act.

39. I find that, during the Qualifying Period, Ms Ighani is not qualified for the receipt of the DSP.  This means that the decision of the AAT1 is the correct decision.

    DECISION

40. I affirm the decision under review.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

[sgd]........................................................................

Associate

Dated:   13 April 2017

Date(s) of hearing:	8 March 2017
Advocate for the Applicant:	Mr Graham Wells
Solicitors for the Applicant:	Social Security Rights Victoria
Advocate for the Respondent:	Mr Joshua Lessing
Solicitors for the Respondent:	Sparke Helmore