James Eid and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2011] AATA 630

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 630

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4672

GENERAL  ADMINISTRATIVE   DIVISION		)
Re		JAMILE EID

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date7 September 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

[sgd]  E A Shanahan

Member

SOCIAL SECURITY – application for disability support pension – failure to satisfy s 94 of the Social Security Act 1991 – decision affirmed

Social Security Act 1991
Social Security (Administration) Act 1999

Secretary, Department of Family and Community Services v Michael (2001) FCA 1811
Re Latchford and Secretary, Department of Employment and Workplace Relations [2007] AATA 1459

REASONS FOR DECISION

7 September 2011 Miss E A Shanahan, Member       

1.Ms Eid lodged an application with Centrelink for the disability support pension (DSP) on 1 April 2010.   Centrelink advised Ms Eid on 3 May 2010 that her claim had been rejected as she did not have an impairment rating of at least 20 points.  At her request, the decision was reviewed by an authorised review officer (ARO).  The ARO affirmed the decision on 17 June 2010.   Ms Eid applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision.  The SSAT affirmed the original decision on 11 August 2010.   Ms Eid applied to the Administrative Appeals Tribunal (AAT) on 29 October 2010 for a review of the SSAT decision.

2.At the hearing Ms Eid was self-represented but assisted by an interpreter in Arabic.  Ms Ailsa Bramley, an advocate with Centrelink, represented the Respondent.  The Tribunal was provided the documents lodged by the Respondent pursuant to s 37 (T-documents, Exhibit R1) of Administrative Appeals Tribunal Act 1975 (the AAT Act).

3.At the hearing Ms Eid presented some documents which were accepted into evidence.  These were:

(a)a report dated 20 August 2011 from Dr Mostafa, her treating general practitioner – Exhibit A1;

(b)an X-ray report regarding the left knee and an ultrasound of the right calf, dated 18 August 2011 – Exhibit A2; and

(c)an ultrasound of Ms Eid’s left shoulder, dated 8 August 2011 – Exhibit A3.

BACKGROUND TO THE APPLICATION

4.Ms Eid arrived in Australia on 9 February 2007.  She could not recall what type of visa she had been issued but described it as a Brides visa. The purpose of her migration was to marry.  It is said that she now has a permanent residency visa.  During her marriage she was subjected to verbal and psychological abuse by her then husband, who is said to be addicted to heroin and marijuana, and also from his mother. Ms Eid left the marital home without any financial support and divorced her husband in 2009. 

5.In July 2009 Ms Eid claimed new start allowance (NSA) and appears to have been paid from 20 April 2009 to October 2010.  On 26 November 2009 she lodged an application for DSP. Centrelink advised her on 21 January 2010 that she was ineligible for the DSP as she did not meet the residence requirements.  On 12 March 2010 Centrelink acknowledged Ms Eid’s intention to claim a payment and concession card.  A second application for the DSP, supported by a treating doctor’s report, was completed on 29 March 2010 and lodged with Centrelink on 1 April 2010. 

6.Dr Mostafa considered that Ms Eid was incapacitated for work because of chronic depression and anxiety and fluctuating hypertension (that was difficult to control). (T-documents p 11)  Dr Mostafa attributed both of these conditions to her abusive marriage.  Dr Mostafa also recorded that Ms Eid had been admitted to hospital on 5 February 2010 for surgical resection of a carcinoma of the left breast, this having been diagnosed in December 2009. 

7.Ms Eid has undergone two job capacity assessments.  The first of these was conducted on 15 December 2009 (T-documents p 7) by an accredited rehabilitation counsellor.  The counsellor found that Ms Eid’s anxiety, depression and hypertension were permanent conditions and the carcinoma of the breast was a temporary condition.  However, none of the conditions were found to be fully diagnosed, treated and stabilised and thus an impairment rating was not attracted under the Tables For The Assessment Of Work-Related Impairment for Disability Support Pension (the Tables) in Schedule 1B of the Social Security Act 1991. The second assessment, dated 13 April 2010, was conducted by a psychologist (T-documents p16).  On this occasion, all three conditions were found to be permanent. However, none of them was found to be fully treated and thereby stabilised.  Once more an impairment rating was not attracted under the Tables.  The psychologist estimated Ms Eid’s future work capacity, with and without intervention, to be 15 to 22 hours per week.  Both assessors  identified several significant barriers to Ms Eid joining the workforce.  These related to her unstable accommodation, her limited support network within Australia, her limited ability to speak and understand English, her low formal education and the absence of any past paid employment.  The assessors recommended appropriate interventions.

8.Ms Eid has received counselling as a form of treatment for chronic depression and anxiety but has only seen a consultant psychiatrist, Dr Ibrahim, on one occasion, on 15 August 2011; following which she was commenced on the antidepressant Lovan.  She is to see the psychiatrist again in mid-September 2011.  Ms Eid does not know what her blood pressure readings have been nor has Dr Mostafa provided any evidence in this respect.  She does suffer attacks of dizziness associated with headache and blurring of her eyesight once every seven to ten days.  These are the only symptoms she attributes to her hypertension.  She takes appropriate medication for her hypertension. 

9.Following surgical resection by partial mastectomy of the left breast carcinoma in February 2010, Ms Eid has undergone a course of chemotherapy.  This was followed by a course of radiotherapy to the residual breast tissue and area of excision. 

10.Dr Catherine Poliness, Ms Eid’s breast surgeon, has reported that the surgery undertaken was a ... wide local excision of the mass in the left breast with sentinel lymph node biopsy, for what was a Grade 3 invasive ductal carcinoma with positive oestrogen and progesterone receptors, no genetic abnormality and all lymph nodes were negative (four in total) for metastases(spread).  Ms Eid’s prognosis is good and she is aware of this fact. 

11.In her recent report of 20 August 2011, Dr Mostafa has confirmed the diagnosis of Ms Eid’s medical conditions and that her anxiety and depression were caused by her stressful marriage.  The development of carcinoma of the breast had added to her underlying stress.  Dr Mostafa did not expect any improvement in Mrs Eid’s conditions over the next two years.  Dr Mostafa also reported that Ms Eid had developed persistent pain in her left shoulder with limitation of movement and that an ultrasound had shown tendinopathy. In addition she complained of pain in her right knee aggravated by walking or standing.  The right knee x-ray is reported as showing early medial compartment degenerative changes without bony abnormality. (Exhibit A2)  The left shoulder ultrasound is reported as showing some changes in the superficial fibres of the supraspinatus tendon but no focal tear.  The joint was otherwise normal.  The ultra-sound of the right calf was normal. 

MS EID’S EVIDENCE TO THE TRIBUNAL

12.Ms Eid brought her medications with her to the hearing and these were identified by the Tribunal according to their labels.  The medications are for her depression, hypertension and analgesics for her shoulder and knee complaint.  She is also taking Tamoxifen because her carcinoma of breast showed oestrogen and progesterone receptor positivity.

13.Ms Eid told the Tribunal she had been informed that her left shoulder symptoms were attributable to the surgery and the radiotherapy and that they would improve.  She had been instructed at Peter MacCallum Clinic as to the exercises she should perform at home to assist in the recovery of a full range of movement of her shoulder.  She understands she is to see a specialist regarding these symptoms but to date has not done so.  She has been taking the analgesics for one month.  She has regular follow-up visits at Peter MacCallum Clinic for her carcinoma of the breast.

14.Ms Eid is currently living with a friend but sometimes she resides with her sister who has been in Australia for the past 10 years.  Ms Eid did not work in any paid occupation in Lebanon.  She said her mother had died and as she was the eldest she had to raise her brothers and sisters.  She had performed sewing and has a sewing machine at home but her use of the machine has been limited by her left shoulder pain.

15.On direct questioning from the Tribunal as to whether her blood pressure had ever been recorded during one of her bouts of dizziness, she did not think that this has been the case. 

RELEVANT LEGISLATION

16.Section 94(1)(a),(b) and (c) provide the criteria for eligibility for the DSP and state:

94Qualification 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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

TRIBUNAL’S DELIBERATIONS

17.Neither party made formal submissions to the Tribunal. The Respondent relied on the Secretary’s Statement of Facts and Contentions. In that document the Respondent acknowledged that Ms Eid satisfied s 94(1)(a) but did not satisfy s 94(1)(b), as none of the medical conditions had been fully diagnosed, treated and stabilised and therefore could not be assigned an impairment rating. Thus, it was not necessary to consider s 94(1)(c)(i) relating to Ms Eid’s continuing inability to work. The Respondent relied on the decision of the Full Federal Court in Secretary, Department of Family and Community Services v Michael (2001) FCA 1811 and the AAT decision in ReLatchford and Secretary Department of Employment and Workplace Relations [2007] AATA 1459, that only permanent rateable conditions can be taken into account for deciding the continuing inability to work issue.  The Respondent asked the Tribunal to affirm the SSAT decision. 

18.This Tribunal’s jurisdiction to review the decision is confined to the period of between 1 April 2010 and 1 July 2010 (clause 4.1.c of Schedule 2 to the Social Security (Administration) Act 1999).

19.Dr Mostafa has attributed Ms Eid’s chronic depression and anxiety to her stressful marriage and the fluctuating hypertension to the psychological disorder which has been aggravated by the additional stress of the diagnosis and treatment of carcinoma of the left breast.  Ms Eid has now removed herself from the stressful environment.  Ms Eid commenced treatment with Dr Ibrahim, the consultant psychiatrist, one week before the hearing and he prescribed antidepressants.  On the basis of Dr Mostafa’s opinion, adequate treatment of the chronic depression and anxiety should render control of Ms Eid’s hypertension achievable.  Ms Eid is aware that her prognosis with respect to her carcinoma of the breast is good.

20.As the treatment of all conditions is ongoing, and in particular the treatment of the psychiatric disorder is in the very early stages, the Tribunal finds that the medical conditions are not fully treated or stabilised.  Therefore, an impairment rating cannot be assigned to the conditions under the Tables. 

21.Ms Eid’s recent symptomatology relating to her right knee and left shoulder have not been fully investigated and treatment has been of one month’s duration.  On the evidence before the Tribunal, appropriate treatment should result in an improvement of these symptoms. 

22.The Tribunal affirms the decision under review as Ms Eid does not meet the requirements of s 94 1(b) of the Act.

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member

Signed:         Dianne Eva
  Clerk

Date of Hearing  22 August 2011
Date of Decision  7 September 2011
Advocate for the Applicant            Self-Represented 

Advocate for the Respondent       Ailsa Bramley,

Centrelink Legal Services Branch