Khan and Secretary, Department of Social Services (Social services second review)
[2015] AATA 773
•2 October 2015
Khan and Secretary, Department of Social Services (Social services second review) [2015] AATA 773 (2 October 2015)
Division
GENERAL DIVISION
File Number(s)
2014/4984
Re
Amanat Khan
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 2 October 2015 Place Brisbane The decision under review is affirmed.
..........................[Sgd]..............................................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Applicant in receipt of Disability Support Pension – Applicant wishes to remain overseas for more than usual portability period – Whether portability can be extended – Whether applicant suffers ‘severe impairment’ – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 1217, 1218AAA, 1218AA, 1218AB, 1218, 1218C
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Scrivener and Secretary, Department of Social Services [2014] AATA 537
REASONS FOR DECISION
Dr M Denovan, Member
2 October 2015
INTRODUCTION
The applicant, Mr Amanat Khan, is in receipt of Disability Support Pension (“DSP”). He has family in Pakistan and he would like to reside full time in that country. He seeks exemption from the maximum portability period of his pension.
The legislation places a limit on the period a person in receipt of DSP can remain outside Australia and continue to receive their pension. At the time Mr Khan first approached Centrelink in relation to portability in October 2013, that maximum was six weeks. The law has now changed, and from 1 January 2015 the maximum portability period is four weeks in any 12 month period.[1] There are some exceptions to this rule. The only one of these exceptions that may apply to the applicant in this case requires the applicant to be suffering from a severe impairment,[2] which will continue to be severe and will prevent him from performing any work independently of a program of support within the next 5 years.[3]
[1] Section 1217, Social Security Act 1991 (Cth) (the Act).
[2] Subsection 94(3B) of the Act.
[3] Subsection 1218AAA(1) of the Act.
The Respondent accepts the applicant suffers from a number of conditions and that he qualifies for DSP, however contends that none of the applicant’s conditions can be regarded as severe.
I must decide whether Mr Khan qualifies for an exception to the maximum portability period of six weeks.
BACKGROUND
The applicant has been in receipt of DSP since 11 October 2004.[4]
[4] Exhibit 1, p 173.
On 30 October 2013 the applicant contacted Centrelink and requested an assessment for unlimited portability of his DSP so he could travel to Pakistan.
On 18 November 2013 a medical report prepared by Dr Suthons indicated Mr Khan suffered from the following conditions:
·Chronic pain due to degenerative changes to cervical spine, left shoulder, right and left knees;
·Ischaemic heart disease – coronary artery stent, previous heart attack;
·Diabetes mellitus, type 2;
·GORD – reflux;
·Sleep apnoea; and
·Hypercholesterolemia.[5]
[5] Exhibit 1, p 52.
The applicant was sent for a job capacity assessment (“JCA”), carried out on 22 November 2013.[6] The assessor considered Mr Khan was capable of working eight to 14 hours a week within two years, with mainstream intervention. The assessor considered many of the applicant’s conditions were not fully treated and stabilised, and could not attract an impairment rating under the Impairment Tables. She decided the total impairment points the applicant was entitled to were 5 for his spinal condition, 10 for his knee condition and 10 for the heart condition.
[6] Exhibit 1, p 62.
On 4 January 2014 a decision was made to suspend the applicant’s DSP as he had been overseas for more than six weeks. When he returned to Australia on 23 March 2014 it was restored.
On 28 March 2014 Centrelink rejected the applicant’s claim for unlimited portability and a letter to that effect was sent to him dated 31 March 2014.[7]
[7] Exhibit 1, p 71.
On the 11 July 2014, an authorized review officer (“ARO”) affirmed the decision that the applicant did not qualify for unlimited portability. The Social Security Appeals Tribunal (“SSAT”) affirmed that decision on 28 August 2014.
On 24 September 2014 the applicant applied to the Administrative Appeals Tribunal (“AAT”) for review of that decision.
On 30 January 2015 a JCA file review was completed. The assessor considered that none of Mr Khan’s conditions were fully treated and stabilised and therefore no ratings could be given.
The Secretary’s argument is that Mr Khan does not have any condition that warrants a rating of 20 points or more under a single Impairment Table, and that his impairments do not prevent him performing any work within the next five years.
Mr Khan believes he is unable to work as a result of his medical conditions, and says he cannot understand why he must remain in Australia in order to continue receiving Australian social security benefits. Mr Khan attended the hearing by telephone. He gave evidence calmly, however he became agitated on several occasions during cross-examination. Mr Khan repeatedly interrupted the respondent’s submissions and when asked by the Tribunal to wait his turn to speak, he hung up. Mr Khan made submissions when giving his evidence and also provided a lot of written material now included in evidence. I must decide whether Mr Khan satisfied the legislative requirements to be granted unlimited portability.
RELEVANT LEGISLATION
The Social Security Act 1991 (Cth) (“the Act”) sets out relevant legislation in this matter.
Section 1217 of the Act identifies that the maximum portability period for DSP is
four weeks in any 12 month period.[8] In some very limited circumstances, a person’s maximum portability period for social security payments can be extended.[9] These provisions in the legislation that allow extension do so only for unusual and extreme circumstances, such as terminal or severe illness of the applicant or a family member, natural disaster, political unrest and criminal proceedings. Most of the provisions allowing extension of the portability period are not relevant to Mr Khan’s claim. The only relevant provision is s 1218AAA(1) of the Act which reads:
The Secretary may make a written determination that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person's impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
[8] As stated above, at the time Mr Khan applied for unlimited portability, DSP recipients were permitted to remain outside of Australia for a maximum period of six weeks.
[9] Sections 1218AAA, 1218AA, 1218AB, 1218 and 1218C of the Act.
Accordingly, in order for Mr Khan to meet the requirements for unlimited portability, there must be evidence that he has a severe impairment and that the severe impairment would prevent him from performing any work within the next five years.
Subsection 94(3B) of the Act provides that a person’s impairment is severe if the person’s impairment is made up of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
The relevant Impairment Tables are in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the 2011 Determination”). That Determination provides that, before a condition can be assigned a rating, it must be accepted as a permanent condition, that is, the condition is fully diagnosed, fully treated and fully stabilised, and is more likely than not, in the light of available evidence, to persist for more than two years.[10]
[10] The 2011 Determination, Part 2, cl 6.
Impairment is defined to mean a loss of functional capacity affecting the person’s ability to work as a result of the person’s condition. Section 6 of the Impairment tables requires that a person’s impairment be assessed on the basis of what the person can and cannot do, not on what the person chooses to do or what others do for the person.
A program of support is a program designed to help people prepare for, find, or maintain work. Section 94(4) of the Act defines the phrase “work independently of a program of a support”, to mean that a person is unlikely to need a program of support, or likely to need a program only occasionally, not on an ongoing basis.
CONSIDERATION
As observed by Senior Member Kenny in Scrivener and Secretary Department of Social Services,[11] whilst it may be the case that a person who is in receipt of DSP has a range of conditions that limit his or her ability to work, it does not mean that they can be paid DSP indefinitely whilst they are outside Australia. As explained above, the applicant must also have a severe impairment, and for that to be the case, he must have been allocated 20 or more impairment points from one of the Impairment Tables for his conditions.
[11]Scrivener and Secretary, Department of Social Services [2014] AATA 537 at [27] – [28].
When deciding the appropriate rating from an Impairment Table, it is inappropriate to rely solely on the history provided by the applicant. Functional impairment must be assessed with reference to medical evidence.
Mr Khan was assessed as having 25 impairment points when he was granted DSP. At the time the 25 points was the result of points from a number of tables, Mr Khan was not eligible for 20 or more points from any one table. For the purpose of my decision, Mr Khan’s impairments are to be assessed at the time he applied for indefinite portability.
Mr Khan has been diagnosed with chronic pain as a result of degenerative changes in his cervical spine, left shoulder and knees. There is no table to assess chronic pain and impairment points are allocated on the basis of incapacity that is caused by chronic pain in the various body regions.
Neurosurgeon Dr Wood assessed Mr Khan on 27 May 2014. In his report he provided an additional diagnosis of spondylolic cervical myelopathy, and indicated Mr Khan has been referred for treatment.[12] Until Mr Khan has received treatment for his neck condition, it is not possible to assign him a rating from Table 4. Dr Wood indicated in his report that Mr Khan is awaiting knee replacement. Until that surgery has been performed and his condition stabilised post operatively, Mr Khan cannot be allocated points from Table 3. Mr Khan has some difficulty lifting above his shoulder. It is not clear what the medical cause is for this limitation. From the report of Dr Wood it appears that Mr Khan’s neck condition may be a contributing factor. Until Mr Khan’s neck condition is fully treated and stabilised, the impairment in his shoulder cannot be accurately assessed. He can therefore not be given any points from Table 2 at the time of his application for indefinite portability. Even if Mr Khan was eligible for points from Tables 2-4 at the time of his application, the degree of his impairment, as assessed by the contemporaneous medical evidence, is not severe in any of these regions, and he would not have been eligible for 20 points from Tables 2, 3, or 4.
[12] Exhibit 6 p. 8.
Mr Khan was diagnosed with sleep apnoea in November 2014.[13] At the time of his application for indefinite portability, this condition was not treated or stabilised, therefor it cannot be allocated any points from any of the impairment tables. Dr Suthons listed this condition as one that had no, or minimal, impact on the applicant’s capacity to function,[14] therefore even if the condition were stabilised, it would not attract 20 or more impairment points.
[13] Exhibit 6, p. 2
[14] T Documents, p. 53.
Mr Khan was diagnosed with cataracts in December 2014[15] and is awaiting surgical treatment for this condition. The condition is not fully treated and stabilised, and can therefore not be allocated any impairment points. It is usual for treatment for this condition to result in no or minimal impact on a person’s capacity to function, and it would be extremely unlikely this condition would attract 20 or more impairment points, when it is eventually fully treated and stabilised.
[15] Exhibit 6, p. 46
Mr Khan has a history of ischaemic heart disease with onset in 2003.[16] In October 2013 he was admitted to hospital with unstable angina. He was treated with angiography and insertion of a stent. According to Dr Suthons, the impact of this condition on Mr Khan’s ability to function is poor endurance, he tires easily and he is unable to walk/stand for long periods of time. According to Mr Khan’s cardiologist Dr Mumford, as of 30 June 2014, he has had no further angina and his effort tolerance is stable and he has no signs of cardiac failure.[17] Mr Khan lives alone and has no assistance with activities of daily living. He is able to perform duties of a sedentary nature and use public transport unassisted. Mr Khan does not have an impairment that is severe, and cannot be assigned 20 impairment points from Table 1, used to assess impairment from heart conditions.
[16] T Documents, P. 57 – 59.
[17] Exhibit 6, P. 49.
General practitioner Dr Suthons indicated in her 2013 report that Dr Khan had diabetes Type 2, hypercholesterolemia and GORD ( gastro oesophageal reflux disease), and that all of these conditions cause minimal or limited impact on Mr Khan’s capacity to function.
DECISION
Mr Khan does not have any medical condition that attracts a rating of 20 or more points from a single Impairment Table, and therefore he does not have a severe medical impairment. Consequently, Mr Khan does not meet all of the legislative criteria set out in s 1218AAA(1) of the Act. Specifically he does not meet requirements set out in ss 1218AAA(1)(b) of the Act. There is no need for me to assess the other criteria in s 1128AAA(1) of the Act.
The decision under review is affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member .......................[Sgd].................................................
Associate
Dated 2 October 2015
Date of hearing 21 April 2015 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Portability Period
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Severe Impairment
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Disability Support Pension
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