Joseph and Secretary, Department of Social Services
[2014] AATA 149
•19 March 2014
[2014] AATA 149
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1569
Re
Safwat Joseph
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 19 March 2014 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - applicant seeks indefinite portability of disability support pension - whether applicant has a severe impairment - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 94(3B), 1217, 1218AAA
REASONS FOR DECISION
Ms N Bell, Senior Member
19 March 2014
Mr Joseph has been in receipt of disability support pension since July 2006. In September 2012 Mr Joseph lodged a claim for indefinite portability of his pension. Centrelink rejected his claim. The decision was affirmed, on further internal review, by an authorised review officer and then by the Social Security Appeals Tribunal.
ISSUES
Section 1218AAA(1) of the Act provides for the following criteria for indefinite portability of disability support pension:
(i)the person is receiving disability support pension;
(ii)the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(iii)the person will have that severe impairment for at least the next 5 years;
(iv)if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support.
It is not in dispute that Mr Joseph is in receipt of disability support pension and satisfies the first requirement of section 1218AAA(1). The remaining requirements give rise to the issues in this application.
DOES MR JOSEPH HAVE A SEVERE IMPAIRMENT?
Section 94(3B) provides:
Severe impairment
(3B) 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.
Mr Joseph currently suffers from the following conditions:
(a)Depression
(b)Back condition;
(c)Left shoulder condition; and
(d)Other conditions including Osteoporosis and carpel tunnel.
Depression
Mr Joseph has been suffering from chronic depression since 1996. He has been on medication since that time and sees a psychologist and a psychiatrist.
In the Medical Report form dated 13 September 2012, attached to the application for indefinite portability, Dr Nada, Mr Joseph’s treating doctor, included his mental health impairment as a condition that will significantly reduce his life expectancy. Dr Nada diagnosed “Endogenous Depression which fluctuate[s] between Moderate and Severe Depression” and the date of onset was sometime in 1996. In the section of the report on conditions that have a significant impact on Mr Joseph’s ability to function, Dr Nada wrote: “Depression interferes with [his] ability to concentrate stay motivated and communicate with other people.” Dr Nada listed his symptoms as:
Insomnia, Poor Concentration, Agitation, low mood and Motivation
Pt. gets suicidal thoughts when in flare up [and] getting into Severe Depression
Dr Younan, his psychiatrist, diagnosed Mr Joseph with chronic neurotic depression with a number of severe depression phases, in a report dated 19 July 2010. He stated that Mr Joseph has been under his care since January 1996.
Ms Hend Saab, his psychologist, has been seeing Mr Joseph since April 2010 when he commenced cognitive behaviour therapy. Since 2013 Mr Joseph commenced to see Mr Emad Girgis, psychologist, who has continued this therapy. Mr Girgis in his report dated 2 December 2013 wrote:
Some of the contributing factors to Mr Joseph’s disorder are his separation from his wife, the deteriorated relationships with his son and daughter. Mr Joseph also feels isolated as he is hardly in contact with his family. The feeling of isolation and loneliness has exacerbated Mr Joseph’s symptoms to heighten and disturbing levels.
Mr Joseph told the Tribunal that he no longer has any friends. At home, he gets no help except from his daughter who sometimes comes and helps him with bathing and providing meals.
Mr Joseph came to the Tribunal in a taxi from Blakehurst.
Mr Joseph said he last visited Egypt sometime in November 2013 and prior to that, in December 2012 as indicated by government travel movement records. On both occasions he went alone. He said he was assisted with a wheelchair at the airports and that he required one because of severe back pain which makes him unable to walk.
He said he spends his time reading or watching television. He also said that he sleeps a lot. He said, on average he would spend an hour reading, but if he is in ill health he can only do ten minutes because of the pain in his back and his general psychiatric mood.
Mr Joseph said that sometimes his condition is so bad, that he does not want to see any doctors, or take any medication or have the will to live.
Mr Joseph said he can dress himself but cannot bathe himself. His daughter assists him in showering. She washes his hair and his clothes. He says she works five days a week but visits him 2-3 times a week.
He said that a year ago, she sometimes did not come at all and during those times, his then friends would come and help when he was living in housing commission accommodation.
He does not do any household tasks and his daughter shops for him. He said he sometimes goes to the shops alone perhaps twice in a month.
In light of this evidence, I considered Mr Joseph’s depression against Table 5. The job capacity assessor, Chrisi, a Registered Psychologist, assessed him as having ten points under the table:
10
The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
In order for Mr Joseph to meet the ‘severe’ rating under Table 5, he has to experience severe difficulties with most of the following:
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Mr Joseph’s independent travel, his apparent ability to conduct himself with focused attention and articulated concentration throughout the Tribunal hearing, and his enduring relationship with his daughter and his relatives in Egypt lead me to the conclusion that his psychiatric condition does not create severe limitations in most of the activities set out above.
His treating professionals all suggested that Mr Joseph’s condition will improve if he is in the care of his family in Egypt, a supportive environment for him. They reported that he feels much better cared for and protected when he is there. I appreciate that Mr Joseph feels this way, however the tables do not assess level of care or treatment.
I cannot assess Mr Joseph’s psychiatric condition as attracting more than 10 points under the table.
Back condition
In Dr Nada’s Centrelink medical report form dated 13 September 2012, she listed Mr Joseph’s back condition as also having significant impact on his ability to function, providing the following diagnosis: “Multilateral [d]egenerative changes in LS spine worse at L4/5 and L5/S1 with [n]erve root compression at L5/S1, nerve root to the left. This causes chronic back pain and limitation on mobility.” She wrote that he has been receiving physiotherapy since May 2012 and also received a steroid injection twice in 2012.
On the condition’s functional impact on Mr Joseph, Dr Nada wrote that it affects his ability to bend, stand, sit for long periods of time and walk. She wrote that he uses a walking stick and agrees that the impact of this condition is expected to exceed five years.
A rating of 20 under Table 4 requires:
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
There was no expert medical evidence that made an assessment by reference to these precise criteria. On Mr Joseph’s own evidence, he can turn his head to the right or left, bend forward to pick up a glass of water from a table, sit for more than 10 minutes at a time and he can comb his hair.
I cannot assess Mr Joseph’s spinal function as attracting more than 10 points under the impairment tables.
Shoulder condition
Dr Nada’s Centrelink medical report in September 2012 listed a left rotator cuff tear with impingement causing chronic pain. He takes tramadol for treatment and also receives physiotherapy.
Dr Nada, in a report dated 27 May 2013, said the “multiple musculoskeletal issue” causes Mr Joseph much chronic pain and disturbed sleep and that the depression is aggravated by his pain. She said that he has seen a rheumatologist, unidentified, who diagnosed him with left frozen shoulder.
Even assuming that Mr Joseph’s shoulder condition has been fully treated and stabilised, a rating of 20 under Table 2 requires:
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
There is no evidence of a level of upper limb functional impairment that satisfies these criteria.
There is no evidence to suggest that Mr Joseph’s other conditions would attract a rating of 20 points under any relevant table.
It follows that, because Mr Joseph cannot be assessed as having 20 points under any one table of the Impairment Tables, he does not have a severe impairment within the meaning of the Act. Consequently, he does not satisfy the requirement in section 1218AAA(1)(ii) and so does not qualify to receive indefinite portability of his disability support pension.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. .......[Sgd].................................................................
Associate
Dated 19 March 2014
Date of hearing 9 December 2013 Date final submissions received 23 January 2014 Applicant In person Solicitors for the Respondent G Lozysky, DHS Program Litigation Review Branch
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