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

[2022] AATA 4431

Jashar and Secretary, Department of Social Services (Social services second review) [2022] AATA 4431 (22 November 2022)

Division:GENERAL DIVISION

File Number:          2022/0900

Re:Darren Jashar

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mr A. Maryniak KC, Member

Date of decision:                   22 November 2022

Date of written reasons:        21 December 2022

Place:Melbourne

The Tribunal affirms the decision under review.

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

Mr A. Maryniak KC, Member

Catchwords

SOCIAL SECURITY - Disability support pension - Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - Respondent accepts two claimed conditions fully diagnosed, treated and stabilised - where one condition not fully diagnosed, treated and stabilised - whether conditions attracted sufficient points in Impairment Tables to qualify - decision affirmed

Legislation

Social Security Act 1991 (Cth)

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

REASONS FOR DECISION

Mr A. Maryniak KC, Member

21 December 2022

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an ex tempore decision, they are in fact the reasons for the said decision.

3. An extract of the edited transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

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

Associate

Dated: 21 December 2022

Date of hearing:	22 November 2022
Applicant:	Mr Darren Jashar (self-represented)
Advocate for the Respondent:	Ms Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia

ANNEXURE A

1. This is an application for review of a decision of this Tribunal of 17 January 2022, which affirmed an earlier decision rejecting the Applicant's claim for the Disability Support Pension (‘DSP’) made on 3 May 2021 in respect of his spinal condition, hearing loss and mental health conditions. 

2. The Tribunal is to determine whether the Applicant qualified for DSP during the period 3 May 2021 to 2 August 2021 (‘the Qualification Period’).

3. The Tribunal has considered the documentary evidence before it, together with the submissions of both the Applicant and the Respondent. 

4. Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) provides that qualification for DSP requires that the person has a physical, intellectual or psychiatric impairment. The Respondent accepts that the Applicant meets this requirement under s 94(1)(a) of the Act. However, the difficulty for the Respondent is s 94(1)(b), which requires that a person's impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘the Impairment Tables’).

5. The Impairment Tables focus on the level of functional impact of the Applicant’s impairment rather than his medical conditions. For impairment to be relevant, it must be permanent. In order for it to be permanent, it must be fully diagnosed, treated and stabilised. In order for an impairment to be fully diagnosed and treated, there must be corroborating evidence of the condition.

6. With respect to the spinal condition, the Respondent accepts that this was fully diagnosed, treated and stabilised during the Qualification Period.

7. The Respondent accepts that 10 points can be allocated to the spinal condition. The Respondent also submits, and the Tribunal finds, that there is insufficient evidence before it for 20 points to be allocated under Table 4 for the impairment resulting from the spinal condition. On the evidence, the Tribunal determines that 10 points should be allocated to the spinal condition. 

8. In respect of the hearing condition, the Respondent accepts that the hearing condition is fully diagnosed, treated and stabilised. The Respondent also accepts that 5 points can be allocated pursuant to Table 11. On the evidence, having considered the impairment requirements for 10 points, the Tribunal finds that 10 points cannot be allocated to the hearing condition. Therefore, the Tribunal allocates 5 points to the hearing condition.

9. In respect of the mental health conditions of the Applicant, the Respondent contends that they are not fully diagnosed, treated and stabilised. The Tribunal notes that the Applicant saw a clinical psychologist on 9 February 2011, years before the Qualification Period, but on that occasion, he was diagnosed with depressive episode rather than depression or anxiety.

10. There is simply no evidence before the Tribunal that the Applicant has, during the Qualification Period or relevantly thereafter, seen a clinical psychologist or a psychiatrist regarding his mental health conditions. In those circumstances, and particularly where the Applicant's General Practitioner noted during the Qualification Period that she intended to refer the Applicant to a psychologist or a psychiatrist, the Tribunal is unable to find on the evidence that the mental health condition is fully diagnosed, treated or stabilised. Hence, no points can be allocated.

11. The Tribunal concludes that as at the Qualification Period, the Applicant did not satisfy section 94(1)(b) of the Act. The Applicant's spinal and hearing conditions satisfy both the criteria of an impairment rating of 10 points under Table 4 and 5 points under Table 11 respectively but do not reach the requisite 20 points.

12. In light of the findings in respect of s 94(1)(b), it is not necessary for the Tribunal to consider s 94(1)(c) of the Act.

13. The Tribunal affirms the decision under review dated 17 January 2022.

14. Finally, the Applicant is reminded that this Decision does not prevent him from lodging a further DSP claim in the future. This would involve a later Qualification Period and different medical evidence, if such was obtained.