Khoury and Secretary, Department of Social Services (Social services second review)
[2016] AATA 806
•13 October 2016
Khoury and Secretary, Department of Social Services (Social services second review) [2016] AATA 806 (13 October 2016)
Division
GENERAL DIVISION
File Number(s)
2015/6806
Re
Elizabeth Khoury
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mrs J C Kelly, Senior Member
Date 13 October 2016 Place Sydney The decision under review is affirmed.
.................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation of applicant’s pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – spinal condition awarded 10 points under Table 4 – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
CASES
Freeman v Secretary, Department of Social Security [1988] FCA 294
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
13 October 2016
THE DECISION UNDER REVIEW
The applicant, Ms Khoury, seeks the review of the decision of the Social Services and Child Support Division of this Tribunal made on 4 December 2015 (AAT1) which affirmed a decision made on 17 June 2015 cancelling the applicant’s disability support pension (DSP). The applicant had been granted the DSP on 9 September 2009.
For the reasons that follow, the Tribunal affirms the decision under review. However, the Tribunal emphasises that the applicant may reapply for the disability support pension, based on current medical evidence about her various conditions.
THE ISSUES FOR DETERMINATION
There are two issues before the Tribunal:
(a)Is the Tribunal confined to determining whether the applicant qualified for DSP at the date of cancellation on 17 June 2015 or is that determination to be made at the date of the Tribunal’s decision or some other date?
(b)Whether the applicant qualified for the DSP at the date determined in answer to (a).
THE EVIDENCE BEFORE THE TRIBUNAL
The following evidence was before the Tribunal:
·The documents provided to the Tribunal by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975;
·The respondent’s Statement of Facts and Contentions including Annexures 1 to 9;
·Oral evidence from the applicant and her daughter.
THE ASSISTANCE OF AN ARABIC INTERPRETER
At the beginning of the hearing, the Tribunal arranged for an Arabic interpreter to assist with the hearing by telephone. The applicant had not advised the Tribunal before the hearing that she required an interpreter. However, after discussion with the applicant, who had thought she could rely on her daughter to interpret if necessary, she requested a Lebanese Arabic interpreter because she said that Arabic speakers from other countries used some different words. The interpreter who was available was a Syrian Arabic speaker. The Tribunal notes that the applicant has lived in Australia for more than 40 years and does speak and read English, although it accepts that she does not have the command of English that a native speaker does. For much of the hearing, the applicant spoke English. She did not complain of any difficulty understanding the interpreter and thanked him at the end of her hearing. There were occasions when she sought clarification from the interpreter. Once or twice, the applicant’s daughter indicated that there may have been some misunderstanding but that was addressed immediately. The Tribunal did not observe or apprehend that the applicant was unable to participate fully in the hearing because of any language difficulty.
THE LAW
Section 94 of the Social Security Act 1991 (the Act) sets out the matters that must be satisfied to qualify for DSP. Relevantly, it provides:
94(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…
The relevant Impairment Tables (the Impairment Tables) are set out in Part 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, dated 6 December 2011 (the Determination). The Determination and the Impairment Tables are lengthy and complex. The Impairment Tables came into effect on 1 January 2012. Following is a summary of the relevant provisions of the Determination.
“Impairment” is defined in cl 3 of the Determination to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
An impairment rating can only be assigned if the person’s condition causing that impairment is permanent and the impairment is more likely than not to persist for more than two years (cl 6(3) of the Determination).
Clause 6(4) of the Determination provides that a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Clause 6(5) of the Determination requires the following to be considered when determining whether a condition is fully diagnosed and fully treated for the purposes of cls 6(4)(a) and (b):
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Clause 6(6) of the Determination provides that a condition is fully stabilised if:
(a) either the 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 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The impairment of a person must 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 (cl 6(1) of the Determination).
BACKGROUND
The applicant feels that she has been dealt with most unfairly by Centrelink. The cancellation decision was made after she had inquired on 19 February 2015 about receiving her DSP payments in Lebanon for six weeks from 1 July 2015 when she planned to visit her parents. Permission was necessary for payments of DSP while overseas for any period longer than four weeks. Her request resulted in a reassessment of her DSP qualification, which applied the Impairment Tables that came into effect on 1 January 2012. Her 2009 application had been assessed according to different impairment tables and was granted because her spinal condition was assigned 20 points under those different tables.
Centrelink advised the applicant in a letter dated 20 February 2015 that the assessment to determine whether she could be paid DSP for an indefinite period “may mean you are no longer assessed as qualified for” DSP because the 1 January 2012 Impairment Tables would apply.
The applicant completed the necessary form for the assessment and provided a medical report from her general practitioner, Dr Pich. Dr Pich has been treating the applicant since 2007. The applicant attended a face to face job capacity assessment (JCA) on 11 March 2015. The JCA assessor sought a second opinion from the Health Professional Advisory Unit (HPAU) in relation to the rating to be assigned to the spinal condition and whether the mental health condition may be considered to have been fully diagnosed, treated and stabilised. The HPAU agreed that the JCA was correct. The JCA was submitted on 4 June 2015.
The applicant left Australia on 24 May 2015 and was overseas when the decision to cancel her DSP was made on 17 June 2015. The decision was to take effect on 29 July 2015. The applicant was not available to contact by telephone when the decision was made.
The DSP was suspended on 21 June 2015 because the applicant had been overseas more than 28 days. She returned to Australia on 22 July 2015 because of the cancellation and/or suspension decision. The DSP was reinstated as of 22 July 2015. The applicant contacted Centrelink on 23 July 2015 seeking a review of the cancellation decision.
The applicant’s mother died in Lebanon on 11 August 2015. The applicant left Australia on 12 August 2015. The Authorised Review Officer made a decision affirming the cancellation decision on 14 August 2015. On 27 August 2015 the DSP was suspended because the approved reason for portability had ended. The applicant returned to Australia on 24 September 2015. The DSP was reinstated as of 24 September 2015. Following the AAT1 decision, the cancellation decision came into effect on 22 December 2015.
THE DATE OF ASSESSMENT OF THE APPLICANT’S IMPAIRMENTS AND THEIR IMPACT ON HER CAPACITY TO WORK
The Tribunal finds that it has to assess the applicant’s impairment and incapacity for work as at the date the decision to cancel her DSP was made, that is, 17 June 2015. That finding accords with the decision in Freeman v Secretary, Department of Social Security [1988] FCA 294, which was referred to with approval in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 by Hayne and Heydon JJ at [101] and by Kiefel J at [144] and [145]. However, the Tribunal may take into account evidence that came into existence after the cancellation date in making that determination, to the extent the evidence is relevant to the Tribunal’s task.
CONSIDERATION AND FINDINGS
The respondent accepts that at the cancellation date, the applicant suffered from four medical conditions: non-insulin dependent diabetes, a lower limb condition, a spinal condition, and a mental health condition. These are the conditions in contention in these proceedings.
The applicant was very upset at times during the hearing. One matter that seemed to concern her was that the Tribunal might not think that she was being honest. The Tribunal accepts that the applicant was an honest witness.
Non-insulin dependent diabetes
The respondent accepts that on the cancellation date, the applicant’s non-insulin dependent diabetes condition was fully diagnosed, treated and stabilised.
The reports of Dr Pich dated 26 February 2015 and 28 July 2015 say, in summary, that the condition is generally well managed, causes minimal impact on her ability to function, is under “good control with oral medications” and that there are “no signs of complication at this stage”.
In the medical report form she filled out for Centrelink on 26 February 2015, the applicant recorded two diabetes medications she was taking. When asked at the hearing about the impact diabetes had on her life, the applicant talked about taking tablets for the condition, losing weight, her sugar reading being too high at seven, how she had sought the advice of a dietician, and followed that advice. She did not describe any impairment arising from the condition.
On the material before the Tribunal, and assessing the condition against Table 1, the Tribunal finds that the appropriate rating is 0.
The lower limb condition
The respondent accepts that the applicant’s lower limb condition was fully diagnosed at the cancellation date. Dr Pich diagnosed the condition as Peripheral Vascular Disease in his report dated 18 September 2009.
The respondent contends that the lower limb condition was not fully treated and stabilised at the cancellation date and therefore cannot be assigned an impairment rating. The Tribunal accepts this is so for the following reasons.
In the part of the medical report the applicant filled out for Centrelink on 26 February 2015, she noted that it was possible she would have a future operation due to unbearable pain in her legs. She also stated that she had an appointment to see a specialist on 24 March 2015.
In his report of 28 July 2015, Dr Pich wrote that the applicant was on a waiting list to see Dr Vicaretti (vascular and endovascular surgeon). In his report of 25 April 2016, Dr Pich listed the impairments the applicant suffered as a consequence of her lower limb condition by June 2015. However, the applicant acknowledged at the hearing that she had had surgery for that condition carried out by Dr Vicaretti in April 2016, which had relieved those symptoms. Dr Vicaretti had also operated on the applicant eight years ago. The applicant continues to be under Dr Vicaretti’s care. She said that she has pain in her leg which is being investigated.
The Tribunal finds that the applicant’s lower limb condition was not fully treated and stabilised at the cancellation date and therefore cannot be assigned an impairment rating.
The spinal condition
The respondent accepts that, at the date of cancellation, the applicant’s spinal condition had been fully diagnosed, treated and stabilised and that a rating of 10 points under Table 4 is appropriate.
In the medical report to Centrelink dated 26 February 2015, Dr Pich recorded the following in relation to the applicant’s spinal condition. He diagnosed severe lower back pain and disc protrusion at L4/5, and stated that the date of onset was May 2011. The applicant’s treatment was constant analgesia, intermittent physiotherapy, and an exercise program. Planned/future treatment for the applicant was an appointment with a spinal surgeon for an opinion about surgery. The applicant was very compliant with recommended treatment. She suffered almost constant pain, back stiffness and weak legs. The applicant had progressive onset of low back pain. X-ray and CT scans confirmed osteoarthritis in the facet joints and disc disease at L4/L5. Dr Pich described the impact on the applicant’s ability to function as almost constant pain, analgesia causing drowsiness and weak legs. He expected the impact on the applicant’s condition to persist for more than five years and to deteriorate in the next two to five years.
The date of onset given by Dr Pich in that report is clearly an error made by a busy doctor. Medical records before the Tribunal show that a CT scan in 2004 identified a disc protrusion at L4/5 and the applicant was admitted to emergency in May 2005 for low back pain. She was granted the DSP in 2009 because of this condition. This is a long-standing condition.
The Tribunal assigns a rating of 10 points under Table 4 – Spinal Function. The Tribunal has carefully considered the applicant’s evidence recorded in the AAT1 decision and given at the hearing before this Tribunal, the reports of Dr Pich dated February and July 2015 and April 2016, and the information in the JCA reports of June 2015 and April 2016.
To be assigned 20 points under the Impairment Tables, the person must be 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 form a desk or table; or
(d)remain seated for at least 10 minutes.
The evidence, including the applicant’s evidence, does not support a finding that she suffers from any of those impairments.
The mental health condition
The respondent accepts that the applicant has a mental health condition that was fully diagnosed at the cancellation date as required in the Introduction to Table 5 of the Impairment Tables, despite the fact that Mr Cipriani, clinical psychologist, provided the diagnosis after the cancellation of date.
However, the respondent contends that the applicant’s mental health condition had not been fully treated and stabilised at the date of cancellation and therefore could not be given a rating under the Impairment Tables. He relies on the June 2015 JCA report that states that the applicant was not being actively treated.
The first reference to any mental health condition suffered by the applicant was in the Centrelink medical report Dr Pich filled out on 15 September 2009. He diagnosed anxiety disorder with agoraphobia. The treatment was counselling and oral medication. The impact on ability to function was “fear of getting out of the house & crowded spaces”. Dr Girgis-Dawoud wrote in a letter dated 18 September 2009 that the applicant suffered from anxiety with frequent exacerbation.
Other evidence, including the applicant’s evidence at the hearing, shows that her mental health condition was a consequence of her losing her business and properties to the bank in about 2009. She claimed that her daughter-in-law borrowed money against the properties without the applicant’s knowledge. The applicant had worked very hard for 40 years and had lost everything. She is estranged from her son and her daughter-in-law. The Tribunal accepts Dr Pich’s opinion expressed in the medical report he filled out for Centrelink on 26 February 2015 that this is the condition that impacts most on the applicant. That is consistent with the applicant’s written and oral evidence.
As at 26 February 2015, Dr Pich planned to refer the applicant to a psychiatrist. That has not eventuated. Dr Pich’s diagnosis was depression. He reported the applicant’s symptoms to be emotionally labile, suicidal thoughts and insomnia. He described the impact on her ability to function as “no motivation, no sleep pattern, very lethargic, poor concentration”. He expected the condition to persist for more than five years and to remain unchanged, although he also wrote that it may improve but it was difficult to predict.
In his report dated 25 April 2016, Dr Pich said that the applicant had not seen a clinical psychologist or psychiatrist “yet”. He incorrectly states that the applicant’s mother passed away in June 2015.
The applicant did not report that she was taking any medication for her mental health condition in February 2015 when she completed the medical report for Centrelink. Dr Pich appeared to report at that time that the applicant had been taking Cymbalta 60 mg, one a day, from July 2010 and was doing so at 26 February 2015. However, it is clear from the PBS Patient Summary for the period 1 September 2011 to 9 August 2016, that she had not been prescribed Cymbalta, that is Duloxetine, until 25 July 2015. She had been prescribed Diazepam (Valium) in November and December 2012 and Temazepam in July 2014, but not consistently. The Tribunal finds that the applicant was not taking medication for her mental health condition as of the cancellation date.
The Medicare Report for the applicant for the period 1 September 2011 to 8 August 2016, shows that the applicant did not see a psychologist until she saw Mr Cipriani on 9 November 2015.
The Tribunal accepts that the applicant had been prescribed medication and had seen a psychologist sometime before 1 September 2011. It accepts that she had had counselling sessions at Dr Pich’s practice while he was treating her.
Based on the evidence of the applicant and the report of Dr Pich dated 25 April 2016, the Tribunal makes the following findings. The applicant returned to Australia from visiting her parents in Lebanon on 22 July 2015 because of the cancellation and suspension of her DSP. She did not want to return to Australia. Dr Pich reported that when her mother died, the applicant became suicidal, demanding that she be allowed to go to Lebanon for the funeral. Her children arranged the money and organised for her to return. She returned to Lebanon for the funeral. Dr Pich said: “[h]er depression has worsened since returning to Sydney and currently being looked after by a Clinical Psychologist”.
The reports of Mr Cipriani, clinical psychologist, dated 23 November 2015 and 16 May 2016 do not assist the Tribunal because they do not assess the applicant’s condition at the time of cancellation on 17 June 2015. The death of the applicant’s mother occurred after that date. Mr Cipriani does not specifically refer to the impact that event and the surrounding circumstances had on the applicant’s mental health condition.
On the evidence before the Tribunal, it finds that the applicant’s belief that she has been treated unfairly by Centrelink arises from the fact that she felt that she had been forced to return to Australia following the cancellation/suspension of her DSP in June 2015 and consequently was not in Lebanon when her mother died. She was very upset when speaking about those events. Her sense of loss was exacerbated by the fact that she has lived in Australia for 40 years, returned to Lebanon for the first time 20 years ago, and had returned thereafter only for periods of weeks. She had missed being with her mother during those years and because of Centrelink, she was not with her mother when she died.
The evidence set out above, shows that the applicant was not taking medication for her mental health condition at the cancellation date. Her only treatment was counselling at Dr Pich’s practice. Dr Pich had planned to send her to a psychiatrist in February 2015. Her condition deteriorated when her mother died. She has been seeing a clinical psychologist and has been taking medication since that time.
The Tribunal finds that the applicant’s mental health condition was not fully treated and stabilised as of the date of cancellation and cannot be given an impairment rating.
DECISION
The Tribunal finds that at the date of cancellation, the applicant’s rating under the Impairment Tables was 10. She did not qualify for a disability support pension. The decision of the Social Services and Child Support Division of this Tribunal made on 4 December 2015 (AAT1), which affirmed a decision made on 17 June 2015 cancelling the applicant’s disability support pension (DSP), is affirmed.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member ................................[sgd]........................................
Associate
Dated 13 October 2016
Date(s) of hearing 19 September 2016 Applicant In person Solicitors for the Respondent A Fletcher, Department of Human Services
Key Legal Topics
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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