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

Ispanya and Secretary, Department of Social Services (Social services second review) [2017] AATA 1019 (5 July 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0447
Re:Sameer Ispanya
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:5 July 2017
Place:Sydney

The decision under review is affirmed.
.......................[sgd].................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – multiple conditions – whether depression and PTSD are fully treated and stabilised – whether impairments attract a rating of 20 points or more under the impairment tables – impairments rated at 10 points under the impairment tables – applicant does not qualify for disability support pension – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 94(1), 94(2), 94(5), 94(3B), 94(5), 94(3C)
Social Security (Administration) Act 1999 (Cth), Sch 2
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Ulukut and Secretary, Department of Social Services [2014] AATA 399
REASONS FOR DECISION
Professor R McCallum AO, Member
5 July 2017

The Applicant, Mr Sameer Ispanya was born in Iraq in 1963. He arrived in Australia in 2013 as a refugee from Iraq.
He was accompanied by his wife and their twin sons.
Mr Ispanya applied for DSP on 17 March 2016. Mr Ispanya lodged with the Department of Human Services which is better known as Centrelink, a claim for Disability Support Pension (DSP).
In his application, Mr Ispanya stated that he suffers from: a knee condition, that is a left knee meniscal tear; a neck condition, that is of cervical spondylosis; a shoulder condition, that is of right shoulder bursitis; bilateral carpal tunnel syndrome; depression and anxiety.
On 27 May 2016, Mr Ispanya attended a Job Capacity Assessment (JCA), and the assessor was an occupational therapist.
The assessor held that Mr Ispanya’s knee condition, neck condition, shoulder condition and bilateral carpal tunnel syndrome were fully diagnosed. However, they were not fully treated and stabilised. In relation to Mr Ispanya’s depression and anxiety, the assessor held that this condition had not been fully diagnosed because Mr Ispanya had not seen a psychiatrist or clinical psychologist.
Finally, the assessor held Mr Ispanya’s baseline work capacity to be 15 to 22 hours a week and 23 to 29 hours a week within 2 years.
On 17 June 2016, Centrelink rejected Mr Ispanya’s claim as he did not have a rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).
MR ISPANYA SEEKS REVIEW
Mr Ispanya sought an internal review from an Authorised Review Officer (ARO). However, on 21 September 2016 the ARO affirmed Centrelink’s decision.
Mr Ispanya sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT First Review (AAT1).
On 6 January 2017, the AAT1 affirmed the decision under review. However, its reasons differed from those of the JCA assessor.
First, the AAT1 held that Mr Ispanya’s knee condition was fully diagnosed, treated and stabilised and was assessed at 5 points under table 3 of the Impairment Tables. Table 3 is titled “Lower limb function”.
Second, the AAT1 held that Mr Ispanya’s neck condition was fully diagnosed, treated and stabilised and was assessed at 5 points under table 4 of the Impairment Tables. Table 4 is titled “Spinal function”.
Third, the AAT1 held that Mr Ispanya’s shoulder condition and bilateral carpal tunnel syndrome were fully diagnosed, treated and stabilised. The AAT1 gave them a rating of nil points under table 2 of the Impairment Tables. Table 2 is titled “Upper limb function”.
Finally, the AAT1 held that as none of the medical reports during the claim period from 17 March 2016 to 16 June 2016 discussed Mr Ispanya’s depression and anxiety, it could not be considered under table 5 of the impairment tables. Table 5 is titled “Mental health function”.
Mr Ispanya has applied to the General Division of the AAT which is known as an AAT second review or AAT2.
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Mr Ispanya’s circumstances subsection 94(1) relevantly provides:
Qualification for disability support pension
1A 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;
...
Put simply, I must be satisfied, first, that Mr Ispanya has one or more physical, intellectual or psychiatric impairments. Second that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mr Ispanya has a continuing inability to work.
The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act and it provides as follows:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – 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.
“Work” is defined in subsection 94(5) as follows:
“work” means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
These definitions are complex, but in essence, unless a person has a severe impairment, the person must have participated in a program of support. A severe impairment is defined in subsection 94(3B) of the SS Act as follows:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
This means that in Mr Ispanya’s circumstances, if any of his impairments are assessed at 20 points under one of the Impairment Tables, that impairment will be a severe impairment. If none of Mr Ispanya’s impairments are severe impairments, he will be required to have participated in a program of support.
“Program of support” is defined in subsection 94(5) of the SS Act as follows:
“program of support” means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
Under subsection 94(3C) of the SS Act, a person has actively participated in a program of support if the person satisfies the requirements set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
It is not necessary to set out subsections 7(1) and 7(2) of the POS Determination. Suffice to write that these provisions specify persons must participate in programs of support for 18 months in the three years before lodging their claims for DSP.
Finally, Mr Ispanya’s impairments must be sufficient to prevent him from doing any work independently of a program of support for 15 hours a week within the next 2 years.
The Thirteen Week Qualifying Period
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Ispanya’s eligibility for DSP in the 13 week period commencing on the day on which Mr Ispanya’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Ispanya qualified for DSP between 17 March 2016 and 16 June 2016.
The date of the AAT2 hearing was 23 June 2017 which is just over twelve months after the end of the claim period.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:
In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Fanning and Secretary, Department of Social Services [2014] AATA 447 at [31], Deputy President Handley said:
In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Justice Gyles stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “[a]ny 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”.
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision. See also Gallacher v Secretary, Department of Social Services [2015] FCA 1123 per Besanko J at [26 – 29].
The Impairment Tables
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Ispanya are worth 20 points under the Impairment Tables. This requires a few words of explanation.
In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.
Subsection 6(5) of the Impairment Tables provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.
Finally, where a person claims that she or he is suffering from depression etc., the introduction to table 5 of the Impairment Tables which is titled “Mental health function” provides:
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).
THE DOCUMENTARY EVIDENCE
The Tribunal has before it the documents which were forwarded by Centrelink pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents. The Tribunal also has before it a series of later medical reports which Mr Ispanya forwarded to the Tribunal.
THE HEARING
Mr Ispanya attended the hearing. He was accompanied by his wife. Mr Ispanya gave sworn evidence with the assistance of an interpreter in the Assyrian language.
Mr Ispanya said that his knee condition impacted on both knees. He said that he could not stand for a long time. He could walk up stairs slowly, but that it was painful.
Mr Ispanya said that he took the train from Fairfield and then walked from the railway station to the Tribunal.
Mr Ispanya said that he can catch a bus by himself. He said that he can drive a car up to half an hour.
Mr Ispanya was able to sit throughout the hearing which lasted for 1 hour and 5 minutes.
Mr Ispanya gave the following evidence about his neck and spinal condition. He said that he could pick up a light object from the table in front of him. He said that he needed his wife’s assistance to put on his shirt. He said that his wife helped him with his trousers because of his knee pain. It was put to him by the Tribunal that as he could drive a car for half an hour, did he really need his wife’s assistance to put on his trousers. He answered that his main problems were bending and pain in the knees.
In relation to his shoulder and wrist condition, he said that most of the pain was from his shoulders and neck. He said that he can do up buttons and he can use a mobile phone.
Mr Ispanya said that he had depression and that he was currently taking medication for it. He said that he had taken medication for depression since he was in Iraq. He stated that he stopped taking the medication for a short time.
Mr Ispanya said that his psychiatrist told him that he should stop drinking while taking the medication, and that he has ceased drinking alcohol about seven or eight months ago.
Mr Ispanya was asked to describe his daily activities. He said that he watches television and that his wife does the shopping. He said that he occasionally drives himself up to half an hour to attend Church.
Mr Ispanya was asked whether he had participated in a program of support. He said that he commenced a program of support on 17 May 2015. It was suggested to him that the decision of the ARO records that according to Departmental records, he commenced a program of support on 16 September 2015. Mr Ispanya said that he may have commenced the program of support in September 2015.
The Tribunal explained to Mr Ispanya that unless one of his impairments was a severe impairment, he was required to have undertaken a program of support for 18 months before claiming DSP. Mr Ispanya said that he had never been told of this requirement.
CONSIDERATION
I am required to decide, as I stand in the shoes of the Secretary, whether Mr Ispanya qualified for DSP during the claim period, that is from 17 March 2016 to 16 June 2016.
First, I am required to decide whether Mr Ispanya has any impairments. If so, have these impairments been fully diagnosed, treated and stabilised. If so, I must rate each impairment under the relevant table in the Impairment Tables.

Second, if the impairments of Mr Ispanya receive a rating of 20 points under the Impairment Tables, I am required to decide whether Mr Ispanya has a continuing inability to work.
Knee Condition
Having regard to the medical evidence before the Tribunal, I find that Mr Ispanya suffers from a knee condition, that is a left knee meniscal tear, and he also suffers from osteoarthritis of the knee. The medical evidence shows that he may need knee replacements later on. I find that this knee condition has been fully diagnosed, treated and stabilised during the claim period.
I am required to assess this knee condition under table 3 of the Impairment Tables. The descriptors for a mild functional impact on activities are as follows:
There is a mild functional impact on activities using lower limbs.
1At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)the person has some difficulty climbing stairs; and
2At least one of the following applies:
(a)The person is unable to stand for more than 10 minutes;
(b)The person can mobilise effectively but needs to use a lower limb or prosthesis or a walking stick.
Given Mr Ispanya’s evidence that he can walk for short distances, can climb stairs albeit with some pain, and can drive for up to half an hour, I find that at most his knee condition has a mild functional impact on his activities which is worth 5 points under table 3 of the Impairment Tables.
Neck Condition
Mr Ispanya suffers from a neck condition, that is of cervical spondylosis, which also impacts on his spine.
From the medical evidence before the Tribunal, I am prepared to find that this neck condition was fully diagnosed, treated and stabilised during the claim period.
I shall now assess this neck condition under table 4 of the Impairment Tables. The descriptors for a mild functional impact on activities are as follows:
There is a mild functional impact on activities involving spinal function.
1The person has 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).
From his evidence, Mr Ispanya can pick up a light object from the table in front of him and he can drive a car for up to half an hour. However, he does have some difficulty in bending. I find that his neck condition has a mild functional impact on his activities and I assess it at 5 points under table 4 of the Impairment Tables.
Shoulder Condition
From the medical evidence before the Tribunal, I find that Mr Ispanya suffers from a shoulder condition, that is of right shoulder bursitis, and bilateral carpal tunnel syndrome. Not without a little hesitation, I find that these conditions were fully diagnosed, treated and stabilised during the claim period. I am required to assess these conditions under table 2 of the Impairment Tables which is concerned with upper limb functions. In table 2 it is stated that:
There is no functional impact on activities using hands or arms.
1The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.
The descriptors for a mild functional impact on activities are as follows:
There is a mild functional impact on activities using hands and arms.
1The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)handling very small objects (e.g. coins);
(c)doing up buttons;
(d)reaching up or out to pick up objects.
In his evidence, Mr Ispanya said that he can do up buttons and use a mobile phone. He said that he does need some assistance in putting on a shirt, but this appears to be related to his neck condition which has already been assessed under table 4.
Accordingly, I find that Mr Ispanya’s shoulder condition and bilateral carpal tunnel syndrome to be assessed at nil points under table 2 of the Impairment Tables.
Depression
In a report from Dr Emad Girgis, who is a clinical psychologist, dated 23 March 2016, Dr Girgis states that Mr Ispanya suffers from depression and severe post traumatic stress disorder (PTSD). Accordingly, I find that Mr Ispanya’s depression was fully diagnosed during the claim period.
The more difficult issue is whether the depression and PDST were fully treated and stabilised during the claim period.
Dr Mukesh Kumar who is a consultant psychiatrist, wrote a report on Mr Ispanya which is dated 30 November 2016. This report in part is as follows:
On mental state examination, he presents as a middle aged man of average build. He was dressed neatly and his overall grooming and hygiene were fair. He was easy to engage in a conversation and was able to articulate his thoughts rationally and logically. He reports his mood as “low” and his affect was depressed. He denies any thoughts of self-harm or suicide and there were no psychotic symptoms during the interview. His insight and judgment are fair.
Opinion: post traumatic stress disorder, major depression, alcohol dependence
Management: I have provided information on illness, treatment options and follow up arrangements. If not done recently, I suggest the following investigations: FBC, EUC, LFT and a TFT. I have discussed the impact of the alcohol intake on his condition. Sameer is in the precontemplation state and is unsure if he wants to reduce or cease the drinking. He has also declined the option of an inpatient detoxification. He believes the alcohol helps him sleep. If he changes his opinion on this matter, he can have outpatient detox, however he will have to see you on a daily basis until the detox is completed. I suggest alcohol withdrawal scale and substituting alcohol with Diazepam. I also suggest commencing Sertraline 50mg daily. Please also refer him to a psychologist for ongoing cognitive behavior therapy. I will review his mental state regularly.
This report was written more than five months after the end of the claim period. Given the recommendations of Dr Kumar for further investigation and treatment, I find that during the claim period Mr Ispanya’s depression and PTSD were not fully treated and stabilised. Therefore, I am unable to assess this impairment under table 5 of the Impairment Tables.
FINDINGS ON IMPAIRMENTS
For the reasons set out above, I make the following findings.
First, I find Mr Ispanya’s knee condition to be assessed at 5 points under table 3 of the Impairment Tables.
Second, I find Mr Ispanya’s neck condition to be assessed at 5 points under table 4 of the Impairment Tables.
Third, I find Mr Ispanya’s shoulder condition and bilateral carpal tunnel syndrome to be assessed at nil points under table 2 of the Impairment Tables.
Finally, I find that Mr Ispanya’s depression and PTSD were not fully treated and stabilised during the claim period and cannot be assessed under table 5 of the Impairment Tables.
Therefore, as Mr Ispanya’s impairments are assessed at 10 points under the Impairment Tables, he does not qualify for DSP under section 94(1)(b) of the SS Act.
CONTINUING INABILITY TO WORK
As Mr Ispanya does not qualify for DSP, it is strictly not necessary for me to comment on whether he has a continuing inability to work. I simply note that from his evidence which I have set out above, Mr Ispanya did not participate in a program of support for at least 18 months before he claimed DSP. I advise Mr Ispanya to complete a program of support before he decides whether or not to make a further claim for DSP.
DECISION
The decision under review is affirmed.

I certify that the preceding 78 (seventy -eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

.......................[sgd].................................................
Associate
Dated: 5 July 2017

Date(s) of hearing: 23 June 2017

Applicant: In person

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

[2017] AATA 1019

5 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date(s) of hearing:	23 June 2017
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis, Department of Human Services