Kamel El Cheikh and Secretary, Department of Social Services

[2014] AATA 936

[2014] AATA 936

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1197
Re	Kamel El Cheikh
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	17 December 2014
Place	Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s impairment is of 20 points or more under the Impairment Tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Sch 2 cl 4

CASES

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Ulukut v Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

17 December 2014

BACKGROUND

1. The Applicant, Mr Kamel El Cheikh, applied for a Disability Support Pension (DSP) on 6 May 2013. This claim was rejected by Centrelink on 5 September 2013. The Applicant sought review by an Authorised Review Officer (ARO), but on 4 November 2013 the original decision was affirmed. On 13 February 2014, the Social Security Appeals Tribunal (SSAT) also affirmed the decision. This matter is now before this tribunal for review of the decision of the SSAT.

   THE LEGISLATION

2. 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).

3. The criteria for DSP are set forth in section 94 of the SS Act. In the Applicant’s circumstances, section 94(1) relevantly provides:

   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;

   ...

4. Put simply, I must be satisfied, first, that the Applicant has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the relevant impairment tables. Finally, I must be satisfied that the Applicant has a continuing inability to work.

   THE 13 WEEK QUALIFYING PERIOD

5. Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. Clause 4(1) provides:

   If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.

6. 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 the Applicant’s eligibility for DSP in the 13 week period commencing on the day on which the Applicant applied for DSP, and concluding 13 weeks after that day. Therefore, I must determine whether the Applicant qualified for DSP between 6 May 2013 and 4 August 2013.

7. The date of this hearing is 3 December 2014 which is more than 18 months since the Applicant made his claim on 6 May 2013. In these circumstances and given the material before me, I take this opportunity to refer to the relevant case law on the 13 week qualifying period.

8. In Re 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.

9. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:

   [31] 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[in] 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 referable to the applicant’s condition during the relevant period.

   [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J 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, “Any 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”.

   [33] … 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.

10. Therefore, in determining the eligibility of the Applicant to receive a DSP I am confined to examining the Applicant’s impairments during the thirteen week qualifying period.

    THE CONCESSIONS BY THE RESPONDENT AND THE APPLICANT

11. The Respondent concedes that the Applicant has impairments for the purposes of section 94(1)(a) of the SS Act. the Respondent further concedes that the Applicant’s neck and back pain may be assigned 5 points under Table 4 of the impairment tables.

12. The Applicant conceded in his evidence that his condition of depression had not been fully diagnosed, treated and stabilised. The Applicant further conceded that his shoulder pain had not yet been fully diagnosed, treated and stabilised. Accordingly, neither the depression nor the shoulder pain can be assessed under the impairment tables.

    THE MATTERS BEFORE ME

13. The primary matter which I am required to decide is whether pursuant to section 94(1)(b) of the SS Act, the Applicant’s impairments may be assigned a rating of 20 points or more under the impairment tables. If I find in the Applicant’s favour, I am required to further decide whether the Applicant has a continuing inability to work pursuant to section 94(1)(c)(i) of the SS Act and related provisions.

    THE IMPAIRMENT TABLES

14. Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of the Applicant are worth twenty points under the impairment tables. This requires a few words of explanation. The impairment tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination also contains the rules for the application of the impairment tables.

15. In Re 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.

16. Importantly, impairments can only be assigned ratings under the tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.

17. Subsection 6(5) of the Determination 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.

    THE EVIDENCE OF THE APPLICANT

18. The Applicant attended the hearing and gave sworn evidence.

19. The Applicant was born in Lebanon and emigrated to Australia in 2005. The Applicant is married with two small children and he is now in his early thirties. For several years he worked as a storeperson at Woolworths but in either 2010 or 2011 (the Applicant does not remember the exact date), he suffered injuries to his neck and back, and also to his left ankle. He also suffers from pain and stiffness in his left knee. He finished working at Woolworths in February 2012. The Applicant has been in receipt of Newstart Allowance for about two years.

20. The Applicant explained his limitations as follows. He finds it difficult to turn or to bend his head. He gets head aches and takes pain medication for the pains in his neck and back. On most days, he sits down all day and watches television or uses his computer. He cannot dress himself from the waist down. Sometimes his wife or his brother or another family member helps him to dress. He can put his shirt on. He usually needs assistance in taking a shower. His wife does the grocery shopping and the laundry. Various family members do the cooking. The Applicant’s wife does pretty much all of the looking after of their two pre-school children.

21. The Applicant said he can walk around for five minutes, and during the hearing he walked around a little bit. The Applicant carried a back pack, and he said it only contained light items. He travelled by train to attend the hearing and walked from Town Hall railway station to the Tribunal. The Applicant said that he can sit down for more than an hour, and on a good day he can drive for a maximum of one hour. The Applicant said that because of his injured knee he cannot climb any stairs at all.

    THE MEDICAL EVIDENCE

22. I have examined the medical reports in the documents produced by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth). They describe the Applicant’s injuries and medical treatments in some detail.

23. The Applicant principally relies upon a letter from Dr Corey Cunningham, sport and exercise physician, dated 17 July 2014. Given the 13 week qualifying period, I note that Dr Cunningham writes that, “I have been involved in the management of Kamel’s widespread muscular skeletal pain since 2011 and write in support of his application for a Disability Support Pension.”

24. With respect to the Applicant’s neck, back, knee and ankle injuries, Dr Cunningham writes as follows:

    Table 3 – Lower Limb

    Mr El Cheikh has chronic back-related left ankle and lower limb pain due to a L5/S1 disc protrusion and L5 neuropathy. This injury is deemed to cause a moderate functional impact on activities using the lower limbs characterised by inability to use stairs or steps without assistance and difficulty standing for more than 5 minutes at a time.

    Table 4 - Spinal function

    Mr El Cheikh has documented both C3/4, C5/6 and L5/S1 disc pathology which are chronic and have failed to respond to treatment. They cause cervical and lumbar spinal pain and dysfunction as well as referred left arm and left leg symptoms and disability.

    According to Table 4, he is considered to have a moderate to severe functional impact, characterised by difficulty moving his head to look in all directions, inability to bend forward to pick up a light object based at knee height and requires assistance to complete daily showering.

    My opinion is that Mr El Cheikh will not have any capacity to work for 8 hrs/week within the next 2 years.

    ... Mr El Cheikh is also limited in his ability to undertake any training activity during the next 2 years, due to the fact that travel, sitting tolerance remains very limited. This unlikely to improve within the next 2 years.

25. Mr Johan Cullen, an accredited exercise physiologist, completed a Job Capacity Assessment report on 28 August 2014. In this report, he wrote the following about Dr Cunningham’s letter:

    During discussion with Dr Corey Cunningham (22/08/2014) he stated his report was based on the clients self reported functional impacts, his own clinical observations and a table of impairments that the client had brought along to the appointment. During discussion with Dr Cunningham, he confirmed that he had noticed inconsistencies in self reported functional impacts. Dr Cunningham stated the client drives himself to the clinic, and is required to navigate stairs, use a lift, sit, transfer from sit-to-stand, and walk to attend appointments. Dr Cunningham stated the clients condition has not deteriorated since onset however remained the same. Client was observed to transfer from sit-to-stand without noticeable difficulty on the day of assessment (18/08/2014). He was observed to walk with normal gait throughout the office. He requested to use the lift, due to difficulty with navigating stairs. At the previous assessment, he stated he had nil difficulties with navigating the 4 steps at his place of residence.

26. In the decision under review, the SSAT wrote:

    [18] Table 4 is for spinal function. Mr El Cheikh has some difficulty with over head height activities, with bending and with turning his head from side to side. At the hearing he was able to lean forward to pick up the items on the table in front of him, was able to handle his back pack without difficulty and did not need assistance to get up out of his chair. The tribunal was not persuaded that the adverse functional impact on activities involving spinal function can be described as “moderate” and therefore assigned an impairment rating of five points from Table 4...

    [21] Table 3 is for lower limb function. Mr El Cheikh can walk to his local facilities and is able to kneel and squat. Mr El Cheikh’s evidence did not convince the tribunal that he has particular difficulty climbing stairs. He can stand for more than ten minutes. The tribunal found that there is no adverse impact on activities requiring the use of Mr El Cheikh’s lower limbs and assigned an impairment rating of nil points from Table 3...

    CONSIDERATION

27. I have carefully considered the evidence of the Applicant, the medical reports, the letter from Dr Cunningham dated 17 July 2014, the Job Capacity Assessment report by Mr Cullen dated 28 August 2014, and the evidence before the SSAT.

28. Dr Cunningham was not called to give evidence at this hearing. In the light of the written comments of Mr Cullen in his Job Capacity Assessment report of 28 August 2014, I give the 17 July 2014 letter of Dr Cunningham less weight.

29. The appropriate table for the Applicant’s neck and back impairments is Table 4 which is titled “Spinal Function”.

30. I find that the Applicant’s neck and back impairments do not have a moderate function on his activities and cannot be assigned a rating of 10 points under Table 4. The relevant descriptor for 10 points reads as follows:

    There is a moderate functional impact on activities involving spinal function.

    (1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a)   the person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b)   the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)   the person is unable to bend forward to pick up a light object placed at knee height; or

    (d)   the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

31. However, I find that the Applicant’s neck and back impairments have a mild functional impact on his activities, and accordingly I assign a rating of 5 points under Table 4. The descriptor for 5 points reads as follows:

    There is a mild functional impact on activities involving spinal function.

    (1)The 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).

32. With respect to the Applicant’s lower limb impairments the appropriate table is Table 3 titled “Lower Limb Function”.

33. In his evidence before me, the Applicant said that he cannot climb stairs. The SSAT assessed the lower limb impairments of the Applicant as having a rating of nil points. The descriptor for nil points reads as follows:

    There is no functional impact on activities requiring use of the lower limbs.

    (1)The person can:

    (a)   walk without difficulty on a variety of different terrains and at varying speeds; and

    (b)   walk without difficulty around the home and community; and

    (c)   kneel or squat and rise back to a standing position without difficulty; and

    (d)   stand unaided for at least 10 minutes; and

    (e)   use stairs without difficulty.

34. I have found this a difficult issue, however, from the oral and written evidence before me, I find that the lower limb impairments of the Applicant have a mild functional impact on his activities. The descriptor for 5 points reads as follows:

    There is a mild functional impact on activities using lower limbs.

    (1)At 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

    (2)At 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 prosthesis or a walking stick.

1. Accordingly, I assign the Applicant’s lower limb impairment a rating of 5 points under Table 3.

2. The Applicant’s impairments have been assigned a total rating of 10 points under the impairment tables. As the Applicant’s impairments do not rate at least 20 points under the impairment tables pursuant to section 94(1)(b) of the SS Act, it is unnecessary for me to decide whether he has a continuing inability to work within the meaning of section 94(1)(c)(i) of the SS Act and related provisions.

   DECISION

3. The decision under review is affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 17 December 2014

Date of hearing	3 December 2014
Applicant	In person
Solicitors for the Respondent	Mr G Lozynsky, Department of Human Services