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

[2017] AATA 742

Mahmood and Secretary, Department of Social Services (Social services second review) [2017] AATA 742 (23 May 2017)

Division	GENERAL DIVISION
File Number	2016/3057
Re	Nasir Mahmood
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr D. J. Morris, Member
Date	23 May 2017
Place	Melbourne

The decision under review is affirmed.

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

D. J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – whether qualified – whether impairments fully stabilised – whether fully treated and fully stabilised – proximity of diagnosis of a condition – not qualified for DSP – decision affirmed

LEGISLATION

Acts Interpretation Act 1901, s 36(1)

Social Security Act 1991, ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999, Sch 2, cl 4(1)

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

CASES

Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558

REASONS FOR DECISION

D. J. Morris, Member

23 May 2017

BACKGROUND

1. The Applicant, Mr Nasir Mahmood, applied for Disability Support Pension (DSP) on 27 July 2015.  He underwent a Job Capacity Assessment (JCA) (JCA1) on 15 September 2015, and a further JCA (JCA2) on 27 October 2015.  On 28 October 2015, having assessed his claim, the Department of Social Services (the Department) rejected it.  This was the ‘original decision’.

2. Mr Mahmood sought a review of this decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 16 February 2016 the ARO affirmed the original decision.

3. Dissatisfied with that decision, Mr Mahmood sought a review by the Social Services and Child Support Division of this Tribunal (AAT1).  A hearing was held on 10 May 2016 and AAT1 affirmed the decision.

4. Mr Mahmood sought a review by the General Division of the Tribunal.  It was made clear at the commencement of the hearing that the Tribunal’s task is to consider whether the original decision was the correct and preferable decision.

5. The hearing was held on 8 March 2017.  The Applicant represented himself.  He gave evidence on affirmation and was cross examined by the representative of the Respondent, Ms Kellie Latta.

6. The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.

7. Ms Latta also tendered a  Statement of Issues, Facts and Contentions dated 3 February 2017 which was admitted into evidence as Exhibit R1.

8. Mr Mahmood lodged the following documents in support of his claim, which were admitted into evidence:

   ·Applicant’s Statement of Facts, Issues and Contentions dated 28 February 2017 (Exhibit A1).

   ·Medical letter dated 1 August 2015 from Dr Steven Rome, radiologist, and associated documents (Exhibit A2).

   ·Medical letter dated 15 September 2015 from Dr Paul Lau, radiologist, and associated documents (Exhibit A3).

   ·Medical report dated 4 December 2015 from Dr Claire Mayers, clinical psychologist (Exhibit A4).

   ·Medical report dated 25 October 2016 from Dr Philip Wong, endocrinologist (Exhibit A5).

   ·Centrelink Medical Certificate dated 17 January 2017 from Dr Rubina Rawal (Exhibit A6).

   ·Medical report dated 17 January 2017 from Dr Rawal (Exhibit A7).

   ·Medical report dated 18 January 2017 from Dr Wong (Exhibit A8).

   Qualification for DSP under the Act

9. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

10. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied.  For this reason, it must be established that the person applying has –

    (a)a physical, intellectual or psychiatric impairment; and

    (b)impairment of 20 points or more under the Impairment Tables; and

    (c)a continuing inability to work.

11. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

12. The applicable provision relating to the Applicant’s ability to “work” under subsection 94(1)(c) and section 94(5) of the Act is work that is for at least 15 hours a week.

13. Therefore, for a person to be qualified for DSP, the person must have impairment within the meaning of the Act.  Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables.  Thirdly, the person must have a continuing inability to work.

14. An important additional requirement is, if a person is assigned 20 or more points under one Impairment Table, this means the person’s impairment is then assessed under section 94(3B) to be a ‘severe impairment’.  If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act are applicable, which relate to a person participating in an approved program of support.

    What is the relevant period for considering the claim?

15. The Social Security (Administration) Act 1999 (the Administration Act) provides, at clause 4(1) of Schedule 2, as follows:

    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.

16. Section 36(1) of the Acts Interpretation Act 1901 (the Interpretation Act) sets out in a table how a period of time is to be calculated in legislation where there is no express contrary meaning. Item 5 in the table in section 36(1) of the Interpretation Act states that if the period of time is expressed to begin from a specified day, it does not include that day.

17. Therefore, the two questions for the Tribunal to consider are: was Mr Mahmood qualified for DSP on the date he lodged his claim, 27 July 2015? If not qualified on that date, applying the provisions of clause 4(1) of Schedule 2 of the Administration Act and the Interpretation Act, did the Applicant become qualified on a day within the 13 week period from 28 July 2015 to 27 October 2015? I will call this period ‘the claim period.’

    Does the Applicant have a physical, intellectual or psychiatric impairment?

18. On 27 July 2015, Mr Mahmood lodged a claim for DSP and cited the following conditions: Osteoporosis; depression; anxiety, lower back pain; and diabetes.  The JCA conducted on 15 September 2015 considered that the Applicant suffered from “lower back pain, depression, asthma, diabetes, hypertension and hypercholesterolemia”.

19. The Tribunal had before it a number of medical reports, in particular a medical report dated 28 November 2013 completed by the Applicant’s treating general practitioner, Dr Rawal. Dr Rawal said that the condition with the most impact on Mr Mahmood was “severe osteoporosis” with an onset date of October 2013 and a corroborating diagnosis from Dr Philip Wong, endocrinologist.  The second condition Dr Rawal recorded was asthma. She also listed non-insulin dependent diabetes, depression, high cholesterol and high blood pressure as other medical conditions of Mr Mahmood which were generally well managed and caused him minimal or limited impact on his ability to function.

20. Having considered this evidence, the Tribunal finds that Mr Mahmood satisfied section 94(1)(a) of the Act when he lodged his claim in that he had impairments, namely   osteoarthritis, depression, asthma, diabetes, hypertension and hypercholesterolemia.

    What is the correct rating under the Impairment Tables?

21. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions (see Part 2, section 5(2)).

22. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

23. Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

24. Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than two years.

25. Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

26. The Impairment Table Determination also provides, at section 6(8), that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.  In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.

27. It is necessary, therefore, to consider Mr Mahmood’s medical conditions with reference to the applicable Impairment Tables.

    Osteoarthritis condition

28. Dr Rawal’s 23 October 2015 medical certificate states a diagnosis of:

    Chronic Spinal Pathology – Osteoporosis with Multiple Fractures; Multilevel Costovertebral Degenerative Joint Disease and Upper Spondylosis, L:4/5 Spinal Canal Stenosis and marked Bilateral Neuroforaminal Narrowing, moderate Bilateral C4/5, left C5/6 Exit Neuroforaminal Narrowing.

29. JCA2 recommended that this condition be considered fully diagnosed, fully treated and fully stabilised.

30. Mr Mahmood told the JCA he had pain in his neck and lower back which radiated to his left hip.  He said he had difficulty in bending and reaching up, for instance he said he had difficulty washing his hair.  He said he had difficulty sitting for longer than 30 minutes and driving for longer than about 10 to 15 minutes.

31. Mr Mahmood said that Dr Wong had diagnosed osteoporosis in late 2013 and that he has been consulting with Dr Wong every six months.  He said that he is taking medication for his pain and he was following a high calcium diet and undertaking weight-bearing exercise, as recommended by his physician.  He said that he slipped in the shower in 2012 and fractured his toe and fell again in 2013, breaking his foot.  He told the Tribunal in cross-examination that he has been taking Lyrica since late 2014 or early 2015.  When asked about how the condition affects him day to day, Mr Mahmood said he was at risk of increased fractures, which made him apprehensive and that he could not stand for long.  He said he could bend to his knees and could lift a weight less than 3 kilograms but not more without some risk of fracture.  He said he could use public transport in 2015 but not now.

32. He told the Tribunal that he could drive before 2013 but stopped owing to back pain and then neck and shoulder pain.  He said he was able to walk to the local shops, which took around 5 minutes.

33. After considering the medical evidence and the Applicant’s discussions with JCA2 and evidence to this hearing, I am satisfied that Mr Mahmood should be assigned points for his osteoporosis under Table 4 – Spinal Function.  Applying the Descriptors for that table for ‘moderate’ functional impact, in particular (1)(a) and (b), I find that Mr Mahmood is correctly assigned 10 impairment points for this condition in the claim period.

    Asthma condition

34. In her November 2013 medical report, Dr Rawal stated that the onset of Mr Mahmood’s asthma is “1970s”.  In her later report of 23 October 2015 she describes this condition as “Severe Asthma.”  The date of onset was confirmed in cross-examination by the Applicant.  She said that treatment included oral steroids and inhalers and that Mr Mahmood had consulted with a respiratory physician, Dr Hart, in August 2012.  She said that the condition led to shortness of breath, a cough and tiredness.  Dr Rawal said that Mr Mahmood could not work in a dusty environment due to a constant cough and that he was prone to chest infections.

35. In his evidence, Mr Mahmood said he had seen Dr Hart because his asthma had worsened.  He agreed that he was working full-time at that time as an accountant and continued to work until the end of 2012 when his contract ended.  He said that his cough had gradually worsened with stress after he lost his employment.  Mr Mahmood said he was not referred again to a specialist and Dr Rawal changed his medication and his condition became a bit better.  He said that he changed his inhaler and changed his medication in late 2015 or early 2016.

36. The JCA2 recommended that Mr Mahmood’s asthma be regarded as ‘permanent’ in that it was fully diagnosed, fully treated and fully stabilised.  The JCA noted Dr Rawal had reported a permanent cough and Mr Mahmood reported chest tightness and that he avoided stairs wherever possible.  He said he could walk to the local shops, which were close by, but his condition could be aggravated by walking for more than 50 metres, especially on uneven ground.

37. The correct table in the Impairment Tables for assessing this condition is Table 1 – Functions requiring Physical Exertion and Stamina.  After carefully considering the evidence of Dr Rawal and the Applicant, and taking into account that this is a long-standing condition and that new medications, including inhalers, become available, notwithstanding Mr Mahmood had not recently seen a respiratory specialist when he lodged his claim, I am satisfied on the medical history that this condition may be allocated impairment points.  In terms of the functional impact on the Applicant, applying the Descriptors in Table 1, I find that the correct allocation of impairment points for this condition is 5 impairment points.  The condition has a mild functional impact.  A higher assignment of impairment points is not supported on the Descriptors by Mr Mahmood’s evidence.

    Diabetes

38. Dr Rawal reported that Mr Mahmood had non-insulin dependent diabetes mellitus.  Mr Mahmood told the Tribunal this condition was well-controlled.  Dr Rawal stated in November 2013 that this condition caused minimal or limited impact on the Applicant’s ability to function day to day.

39. I find that this condition fulfils the requirements in the Determination of being a ‘permanent’ condition.  Applying section 11(5) of the Impairment Tables, I find that zero impairment points must be assigned for Mr Mahmood’s diabetes.

    Hypertension and hypercholesterolemia conditions

40. Mr Mahmood in his evidence said that these two conditions were well-controlled and they did not cause him problems in his day to day functions.

41. I find, on the basis of the medical evidence, that these conditions are fully diagnosed, fully treated and fully stabilised.  On that evidence, and on Mr Mahmood’s own evidence, applying section 11(5) of the Determination, as these conditions do not cause him impairment, they are assigned a zero impairment point rating.

    Depressive condition

42. The Tribunal had before it a medical certificate of Dr Rawal dated 6 August 2015 which confirmed the diagnosis of “Anxiety-generalised/Depression”, with a date of onset of 15 October 2007.  As mentioned above, in her medical certificate signed on 28 November 2013, Dr Rawal listed this condition as one which is generally well managed and caused limited or minimal impact on Mr Mahmood’s ability to function.

43. The relevant Impairment Table for assessing the functional impact of a mental health condition is Table 5.  In the Impairment Tables Determination, the Introduction to Table 5 states as follows:

    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).

44. Dr Rawal is a general practitioner and without detracting from her stated diagnosis, for the Tribunal to allocate impairment points to Mr Mahmood for this condition, there must be a corroborating diagnosis by a psychiatrist or a clinical psychologist.  This is a mandatory prerequisite for the assignment of impairment points for any mental health condition. The Tribunal had before it a diagnosis by Dr Claire Mayers dated 14 December 2015.  Dr Mayers said:

    This letter is being written to confirm that Nasir Mahmood has the following mental health diagnoses, that were originally diagnosed by his GP, Dr R Rawal:

    GAD (Generalised anxiety disorder)

    During assessment it became clear that the level of anxiety that Mr Mahmood experiences impacts his life everyday.  He experiences intrusive, anxious thoughts, which in term impacts his ability to concentrate when trying to complete everyday tasks.  Within the last four months, Mr Mahmood has developed headaches, but reports that medical investigation has shown no cause.  It is thought these headaches may be related to stress and anxiety.

    Depression

    Mr Nasir [sic] described feeling sad and empty.  It seemed that his multiple medical conditions, which cause him pain and impair his ability (he described having to limit his driving due to pain in his shoulders), coupled with his struggle to maintain regular employment, have left him feeling worthless.  It seems that as his pain gets worse, this limits his ability to partake in activities he enjoys (e.g. outings with his children), which in turn, exacerbates the depression. 

    I see from the records that Mr Mahmood has been taking the antidepressant Zoloft for the past 6.5 years, and that this dose was increased approximately 1 year ago.  He reports that he takes this medication consistently.

    It is my opinion that Mr Mahmood’s anxiety and depression are chronic conditions.

45. In cross-examination, Mr Mahmood at first said that he first saw Dr Mayers in June 2015, three and a half months before he lodged his claim and then said that “maybe it was September; I don’t remember exactly when.”  As a clinical psychologist, Dr Mayers is in the category of medical professionals qualified to provide a diagnosis of a mental health condition and although the Tribunal has only the evidence of the Applicant of when he first saw her (which is not clear from her 14 December 2015 letter), the Respondent submitted that his depressive condition could be regarded as fully diagnosed.

46. In his written statement, the Applicant sought to rely on the decision in Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 and in particular the passages in that decision relating to changes in medication for a mental health condition not being, by virtue of that fact alone, necessarily fatal to the assessment of such a condition, if long-standing, as being fully diagnosed, fully treated and fully stabilised.

47. In cross-examination, Mr Mahmood said he had received counselling from Dr Mayers and that he was no longer seeing her.  He said that Dr Mayers had advised Dr Rawal to increase his dosage of Zoloft.  He said he had not consulted with a psychiatrist.  When asked about Dr Rawal’s categorisation of his depression as a condition that had minimal impact on his ability to function, Mr Mahmood agreed with that assessment in the claim period, but said that it was “gradually worsening”.  He said that he could not afford ongoing counselling recommended by Dr Rawal because he had been jobless since December 2012. 

1. The Respondent’s written statement accepted that Mr Mahmood’s mental health condition can be considered fully diagnosed.  However, with the lack of clear evidence before me of when Mr Mahmood first consulted with Dr Mayers, I cannot conclude from her 14 December 2015 letter (written two months after the end of the claim period) that Mr Mahmood’s mental health condition was fully diagnosed at that time.  It is not evident from that letter when she first examined the Applicant.  Even if there was clear evidence of a diagnosis by Dr Mayers before or in the claim period, the Applicant told the hearing that Dr Mayer’s had recommended to Dr Rawal that she increase his medication.  That by itself might not lead me to conclude the condition was not stabilised but I must also consider Mr Mahmood’s oral evidence about this condition in 2015 and now, and that he felt this condition was “gradually worsening”.  With all of these ingredients, I do not find that the mental health condition was then fully diagnosed, fully treated nor fully stabilised. 

2. In this finding, I do not detract from the reasoning in Re Eid, but it is clearly distinguishable from Mr Mahmood’s circumstances.  Mrs Eid had a long-standing diagnosis of a significant mental health condition which was slightly changed in how it was characterised but not in its fundamental functional impact on her.  Mrs Eid had also undergone seven months of regular counselling in the lead up to her claim.  That is not the case in Mr Mahmood’s circumstances.

3. Whilst I am sympathetic to Mr Mahmood’s evidence about his inability to afford the psychological counselling recommended by his general practitioner, I am obliged to consider this claim according to the rules in the Determination.  I find that no impairment points can be assigned for this condition.

   Conclusion

4. The Tribunal finds that the Applicant is assigned a total of 15 impairment points for his medical conditions in the claim period, 10 points under Table 4 and 5 points under Table 1. Section 94(1)(b) of the Act requires the assignment of 20 or more impairment points to a claimant at the time he made his claim or in the 13 weeks thereafter. Mr Mahmood did not meet the requirements of section 94(1)(b) at that time, so this application for DSP cannot succeed.

5. Each part of section 94 must be satisfied for a person to be qualified for DSP. As Mr Mahmood’s application has not met the requirements of section 94(1)(b), it is not necessary for me to go on to consider whether he satisfies section 94(1)(c) in regard to a continuing inability to work.

6. This will be a disappointing outcome for the Applicant but it is open to him to make a fresh claim for DSP if his medical conditions have deteriorated since his claim.

7. The Tribunal finds that the original decision was correct; Mr Mahmood was not qualified for DSP on the date of his claim and nor did he become qualified in the 13 week period thereafter.

   DECISION

8. The decision under review is affirmed.

56.     I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member D. J. Morris.

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

Associate

Dated 23 May 2017

Date of hearing	8 March 2017
Applicant	In person
Advocate for Respondent	Ms Kellie Latta, Sparke Helmore