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

Khan and Secretary, Department of Social Services (Social services second review) [2018] AATA 1349 (24 May 2018)
Division:GENERAL DIVISION
File Number: 2017/0147
Re:Michael Khan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:24 May 2018
Place:Sydney

The decision under review is affirmed.

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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – application refused – impairment tables – whether disability is fully diagnosed, treated and fully stabilised – whether impairments attract 20 points or more under the Impairment Tables – upper limb impairments – lower back pain – skin allergies – depression and anxiety – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (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
Ulukut and Secretary, Department of Social Services [2014] AATA 399
REASONS FOR DECISION
Professor R McCallum AO, Member
24 May 2018
INTRODUCTION

The Applicant, Mr Michael Khan, is aged in his fifties.
In 2014, Mr Khan suffered a workplace accident which appears to have brought about upper right arm, right wrist and lower back limitations.
On 4 August 2015, Mr Khan lodged a claim for Disability Support Pension (DSP).
On 27 November 2015, the Department of Human Services, which is better known as Centrelink, refused his claim for DSP.
Mr Khan unsuccessfully sought review from an Authorised Review Officer and then from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).
Mr Khan now appeals to the General Division of the AAT which is known as an AAT2.
THE RELEVANT 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 Khan’s circumstances, section 94(1) relevantly provides:
94 Qualification 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
…
Put simply, I must be satisfied, first, that Mr Khan has one or more physical, intellectual or psychiatric impairments. Second, these impairments must be rated at least 20 points under the Impairment Tables. Third, I must be satisfied that Mr Khan has a continuing inability to work. Finally, Mr Khan’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 two years.
Two other matters require explanation. They are the 13 week qualifying period and the application of the Impairment Tables.
The 13 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 Khan’s eligibility for DSP in the 13 week period commencing on the day on which Mr Khan’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Khan qualified for DSP between 4 August 2015 and 4 November 2015 (the claim period).
The date of the AAT2 hearing was 11 May 2018 which is more than two and a half years 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, Deputy President Handley said:
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 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.
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 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, [25]-[29].
The Impairment Tables
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) is a subordinate legislation which was made under the SS Act.
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Khan 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”.
Subsection 11(1)(c) of the Impairment Tables provides that “if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
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 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 HEARING
Mr Michael Khan attended the hearing and represented himself. The Secretary was represented by Counsel. Mr Khan gave evidence by affirmation. In my opinion, Mr Khan did his best to assist the Tribunal. Mr Khan’s evidence will be unpacked in the following sections of this decision. No other witnesses were called to give evidence. There is extensive documentary medical evidence before the Tribunal.
CONSIDERATION
Paragraph 5.1 of the Respondent’s statement of facts, issues and contentions reads as follows:
The Secretary accepts that the Applicant had physical, intellectual or psychiatric impairments at the date of claim for the purpose of s 94(1)(a) of the Act arising from:
(a)Right shoulder pain (capsulitis)
(b)Pain in the right elbow and wrist
(c)Back pain
(d)Skin allergies, and
(e)Depression and anxiety.
Having regard to the medical evidence before me, I find that Mr Khan suffered from the following impairments during the claim period:
I.The upper limb impairments of right shoulder pain (Capsulitis), together with pain in the right elbow and right wrist;
II.Lower back pain;
III.Skin allergies;
IV.Depression and anxiety.
Paragraph 5.2 of the Respondent’s statement of facts issues and contentions reads as follows:
The Secretary accepts that at the qualification period:
(a)the Applicant’s upper limb conditions and spinal condition were fully diagnosed, fully treated and stabilised
however contends that:
(b)the Applicant’s allergy condition and depression and anxiety were not fully diagnosed, fully treated and stabilised.
Having regard to the medical evidence before me, I find that Mr Khan’s upper limb impairments and lower back pain were fully diagnosed, treated and stabilised during the claim period. Therefore, I am required to assess whether either or both of these impairments warrant points under the impairment tables.
In relation to the remaining impairments of skin allergies, anxiety and depression, I am required to determine whether either or both were fully diagnosed, treated and stabilised during the claim period. If so, I am required to assess them under the impairment tables.
Upper Limb Impairments
As the upper limb impairments of right shoulder pain (Capsulitis), together with pain in the right elbow and right wrist were fully diagnosed, treated and stabilised during the claim period, I am required to assess them under Table 2 of the Impairment Tables which is titled “Upper Limb Function”.
Mr Khan’s impairments are to his right shoulder, right elbow and right wrist. In his evidence, Mr Khan made it clear that he had no difficulties with doing things with his left arm and left hand. He said that he does most things with his left arm and left hand.
Mr Khan said that he can dress and groom himself. Mr Khan also said that he can drive a car for at least one hour. He explained that he does suffer from pain in the right shoulder and right hand.
Mr Khan said that he thinks his right arm impairments have become worse since 2015.
In cross-examination, Mr Khan was asked about his care of his mother. Mr Khan had received a carer’s allowance from March 2016. Mr Khan said that he looks after his mother seven days a week. He said that she needs assistance walking round the house. He can assist by holding onto her inside and outside the house. Mr Khan said that he takes his mother out in the car to go shopping. He said that he assists her to get in and out of the car. He said that he also assists his mother to get in and out of bed.
In cross-examination, Mr Khan said that he could lift a two litre carton of milk in his right hand, but sometimes his right hand and right arm lock up. He said that he can do up buttons when dressing.
After a face to face interview, an assessor wrote a job capacity assessment report dated 27 November 2015 which is approximately a fortnight after the end of the claim period. The assessor spoke on the telephone to Dr Vakeeswaran who is one of Mr Khan’s treating doctors. The assessor wrote as follows:
Discussion with Dr Vakeeswaran on the 17/11/2015 by phone the following information was obtained: the right shoulder capsulitis and right wrist and elbow pain have a mild functional impact on activities using hands and arms. The client has some difficulty with carrying weights more than 2 kilograms as well and has reduced range of movement in the right arm/shoulder.
I have carefully considered the evidence of Mr Khan before this tribunal, and also the documentary medical evidence and the comments of Dr Vakeeswaran. I find that at most, Mr Khan’s upper limb impairments have had a mild functional impact on his activities using hands and arms.
I find that at most, Mr Khan’s upper limb impairments have had a mild functional impact on his activities using his hands and arms. Mr Khan has no difficulty at all using his left shoulder, left arm and left hand. In his evidence, Mr Khan said that he can lift a two litre carton of milk in his right hand. He gave evidence that he assists his mother to get in and out of a car and to get in and out of bed.
I therefore assess Mr Khan’s upper limb impairments at five points under Table 2 of the Impairment Tables.
Lower Back Pain
As the lower back pain impairment was fully diagnosed, treated and stabilised during the claim period, I am required to assess this impairment under Table 4 of the Impairment Tables which is titled “Spinal Function”.
Mr Khan sat throughout the 90 minute hearing of the Tribunal. He said he was in some pain. Mr Khan had no difficulty sitting down and getting up without assistance.
In his evidence, Mr Khan said that he travelled to the Tribunal by bus and that he walked approximately 500 metres to the bus stop. As noted above, he said that he can drive his car for one hour. Mr Khan said that in January 2018, he flew to India, and in February 2018 he stated that he flew to the United Kingdom. He said that he was able to sit throughout these long flights although he was in some pain.
In cross-examination, Mr Khan said that he can bend down and pick up something from the ground most times. He said that when driving, he can turn his head to watch the traffic, although he prefers to use the mirrors on the car.
I note the earlier evidence from Mr Khan which he gave about his upper limb impairments. Mr Khan can dress himself and can assist his mother with her day to day caring which includes assisting her to get in and out of a car or bed.
I have carefully considered Mr Khan’s oral evidence and also the documentary medical evidence before the Tribunal. I find that at most, Mr Khan’s lower back pain impairment has had a mild functional impact on his activities.
Mr Khan can sit for long periods, and can often pick up items from the ground. He can move his head when driving a car and he can assist his mother with getting into and out of a car or bed.
I therefore assess Mr Khan’s lower back pain impairment at five points under Table 4 of the Impairment Tables.
Skin Allergies
I am required to decide whether Mr Khan’s skin allergies were fully diagnosed, treated and stabilised during the claim period.
There is not a great deal of evidence before the Tribunal concerning Mr Khan’s skin condition and whether it has been fully diagnosed, treated and stabilised.
A detailed letter from Dr Ramon Bullock who is an immunologist is before the Tribunal. It is dated 11 April 2015. Dr Bullock notes that he was consulted because Mr Khan was suffering from bouts of lipedema which lead to pigmentation of his lips. After undergoing various tests which Dr Bullock explained in his letter, Dr Bullock wrote as follows:
At this stage in the absence of any major rhinitis or other inhalant symptoms we have not proceeded with immunotherapy. That could be reviewed if he has symptoms that are poorly controlled by medication in the years ahead.
An opinion by Dr Catherine Moore from the Health Professional Advisory Unit is before the Tribunal. This opinion is dated 1 September 2017. After reviewing the medical reports, Dr Moore writes on Mr Khan’s skin condition as follows:
Mr Khan in my opinion could not be considered to have a permanent skin condition that an impairment rating could be given for. He has seen an Immunologist after seeing a Dermatologist. It would seem he was referred to the Dermatologist with some pigmentation on his lips and also intermittent swelling or oedema of his lips. The Dermatologist was concerned that the lip swelling was due to allergy. This can be life threatening if in addition to lip swelling there is swelling of the tongue and blocking of the upper airway.
On the information that I have reviewed it would appear Mr Khan was felt to possibly have an allergy to hair dye. In my opinion one could not state with certainty that for the DSP dates in question (4/8/2015 and within 13 weeks of this date) that Mr Khans skin condition was fully diagnosed. The Immunologist suggests he believes the lip swelling and pigmentation is due to hair dye. Even if the condition was considered fully diagnosed it could not be considered fully treated for the time period 4/8/2015 and for 13 weeks after that date. Treatment for potential chronic allergic skin conditions can take the form of several medications (including antihistamine medications) or possibly desensitisation with regular injections of the allergen.

In his evidence before the Tribunal, Mr Bullock said that he had seen a number of doctors, and that he had tried various remedies, but to no avail.
Having regard to Mr Khan’s evidence and to the medical reports before the Tribunal, I find that Mr Khan’s skin condition was not fully diagnosed, treated and stabilised during the claim period. Therefore, I cannot assess it under the Impairment Tables.
Depression and anxiety
I am required to decide whether Mr Khan’s depression and anxiety were fully diagnosed, treated and stabilised during the claim period.
In 2013, Mr Khan commenced seeing Ms Miram Boulos who is a psychologist. Ms Boulos wrote on 6 November 2015 as follows:
Mr Khan was referred to me on the 06/07/2013 for psychological treatment. He was referred to me under the Better Access to Mental Health Care initiative. Mr Khan has attended all his appointments since that time; he has attended 24 appointments in total.
Mr Khan continuously engages in sessions and has been seeking to establish a positive future for himself and his family.
However, as I recounted when unpacking the Impairment Tables, mental functions under Table 5 can only be diagnosed by a psychiatrist or a clinical psychologist. Ms Boulos not a clinical psychologist.
Mr Khan did consult Dr Catherine Hurrell who is a clinical psychologist shortly before 18 July 2016. In her letter dated 18 July 2016, Dr Hurrell writes in part as follows:
He has consulted with me for the management of Major Depressive Disorder (DSM-V) and co-morbid anxiety and stress symptoms. He also reported chronic pain due to a work-related injury he sustained in 2014.
Mr. Kahn reports that his mood is severely depressed and anxious most days, experiences little interest/sense of pleasure in life, low motivation, difficulty sleeping, highly fatigued, difficulties with concentration and memory, reduced appetite (and weight loss) and feelings of worthlessness and guilt…
Test Results
Mr. Kahn was administered the Depression, Anxiety and Stress Scales (DASS-21). His scores are as follows:
Depression         42       Extremely Severe
Anxiety                16       Severe
Stress                 26       Severe
Mr. Kahn was also administered the Patient Health Questionnaire (PHQ-9) as a measure of current depression symptoms. His score was 21 and is indicative of severe depression. He reports that symptoms of depression make it "very difficult" for him to complete tasks and fulfil responsibilities, such as take care of things in his life (e.g., home), work and interact with other people.
This diagnosis was made seven months after the claim period. Furthermore, it is clear that the depression and anxiety were not fully treated and stabilised during the claim period.
A letter from Dr Vakeeswaran dated 31 January 2017 is before the Tribunal. Dr Vakeeswaran writes that Mr Khan is still receiving psychological therapy and taking anti-depressant medication. This letter was written some 14 months after the end of the claim period.
Having regard to the evidence which I have summarised, I find that Mr Khan’s depression and anxiety were not fully diagnosed, treated and stabilised during the claim period. Therefore I cannot assess these impairments under the Impairment Tables.
Conclusion
As Mr Khan’s impairments have been assessed at 10 points under the Impairment Tables, he does not comply with section 94(1)(b) of the SS Act. Mr Khan does not qualify to receive DSP.
It is not necessary for me to determine whether Mr Khan has a continuing inability to work within the meaning of section 94(1)(c)(i) and attendant provisions of the SS Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate
Dated: 24 May 2018

Date(s) of hearing: 11 May 2015

Applicant: In person

Counsel for the Respondent: S Thompson, Department of Human Services

[2018] AATA 1349

24 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	11 May 2015
Applicant:	In person
Counsel for the Respondent:	S Thompson, Department of Human Services