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

[2016] AATA 731

Makki and Secretary, Department of Social Services (Social services second review) [2016] AATA 731 (21 September 2016)

Division	GENERAL DIVISION
File Number	2015/2782
Re	Hassan Makki
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	21 September 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – portability period –whether conditions fully diagnosed treated and stabilised – whether rated 20 points or more – whether applicant had continuing inability to work – applicant had not actively participated in program of support – none of applicant’s impairments severe – decision under review affirmed

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999, s 42 and Sch 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member J F Toohey

21 September 2016

Background

1. Mr Hassan Makki was granted disability support pension (DSP) in 2002 on the basis of his depression.  His payment continued until mid-2013 when it was suspended because he was overseas for longer than six weeks.  It recommenced on 12 August 2013 when he returned to Australia.  When Mr Makki sought review of the suspension, Centrelink affirmed its decision and the matter apparently went no further.

2. On 26 June 2014, Centrelink cancelled Mr Makki’s payment when he was again overseas for longer than six weeks.  Mr Makki and Centrelink disagree about whether he sought review of this second decision.  This is discussed in more detail below. 

3. On 11 November 2014, Mr Makki lodged a new claim for DSP.  Centrelink decided that he did not qualify for the pension.  On 7 May 2015, the Social Security Appeals Tribunal (SSAT) affirmed that decision.

   Qualification for the DSP

4. To qualify for the DSP, Mr Makki had to satisfy the criteria in s 94 of the Social Security Act 1991 (the Act). Put briefly, he had to have:

   (i)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Impairment Tables in the Act; and

   (ii)a continuing inability to work as defined in the Act.

5. Mr Makki had to satisfy these criteria on 11 November 2014, when he applied for the DSP, or within the following 13 weeks, that is by 10 February 2015: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this the claim period.

   Summary of the Tribunal’s decision

6. For the reasons that follow, I find that Mr Makki’s impairments did not rate 20 or more points on the Impairment Tables during the claim period.  It follows that his claim must fail and it is not necessary to decide whether he also had a continuing inability to work.  For completeness, however, I have set out below why I find that that Mr Makki also did not have a continuing inability to work.

   The Impairment Tables

7. The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) includes rules for assessing the degree of functional impairment caused by a condition, and for assigning impairment ratings. According to its severity, a condition may be rated between nil and 30 points.

8. An impairment can only be given a rating if the condition causing it is permanent and the impairment is more likely than not to persist for more than two years: paragraph 6(3). 

9. Permanent in the Impairment Tables means that a condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been treated and stabilised, and is more likely than not to persist for more than two years: paragraph 6(4).  Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: paragraph 6(6).

10. In assessing whether a condition is fully stabilised, a decision-maker must consider what treatment or rehabilitation has occurred, whether treatment is still continuing or is planned in the near future, and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years: paragraph 6(5).

    Continuing inability to work

11. The provisions concerning continuing inability to work are quite detailed and complex and comprise two components.

12. Firstly, a person has a continuing inability to work because of an impairment if it is of itself sufficient to prevent him or her from doing any work independently of a program of support within the next two years; and it prevents him or her from undertaking a training activity during the next two years, or such training is unlikely, because of the impairment, to enable the person to do any work independently of a program of support within the next two years: s 94(2) of the Act.

13. Secondly, unless a person has a severe impairment, he or she must have actively participated in a program of support for 18 months in the three years immediately before applying for DSP: s 94(2)(aa). An impairment is severe if it is rated 20 points or more, of which 20 points or more are under a single Impairment Table: s 94(3B).

14. At the time of his application for DSP on 11 November 2014, Mr Makki had not actively participated in a program of support.  This means that, unless one of his impairments is severe, he does not have a continuing inability to work, and his claim must fail.

15. For the reasons below, even accepting that each of Mr Makki’s conditions was fully diagnosed, treated and stabilised during the claim period, I am not satisfied that any of them alone was severe according to the Impairment Tables.

    Were Mr Makki’s conditions fully diagnosed, treated and stabilised during the claim period?

16. In his claim the DSP lodged on 11 November 2014, Mr Makki stated that he was suffering from depression, a broken collarbone and back pain. His general practitioner, Dr Kurdo Saeed, provided a medical report dated 10 November 2014 stating Mr Makki had anxiety, depression and insomnia, and multiple problems including tennis elbow, back pain and “discogenic problem”.

    Was Mr Makki’s psychological condition fully diagnosed, treated and stabilised?

17. The Secretary accepts, and I am satisfied, that Mr Makki’s psychological condition was fully diagnosed during the claim period.  Dr Saeed’s report showed he has suffered anxiety and depression since 2002 and had been under the care of Dr Medhat Metry, psychologist, and Dr Mona Idris, psychiatrist. 

18. In a report dated 13 February 2015,   Dr R S Keshava, consultant psychiatrist, stated that he first saw Mr Makki in 2000 when he had a chronic depressive illness.  Although Dr Keshava’s report post-dates the claim period by several days, it is clear from his report that he considered that Mr Makki had continued to suffer from depression, including during the claim period.

19. In a further report dated 21 April 2015, Dr Keshava stated that: he reviewed Mr Makki on 20 April 2015; he was very depressed and suicidal and was being treated with antidepressant medication; he also suffered from chronic back and neck pain.  Dr Keshava said Mr Makki had difficulty travelling for his follow-up reviews and treatment but continued to take his antidepressant and analgesic medication; he was on Pristiq 100 mg daily; he needed ongoing psychiatric and medical treatment, and follow-up, and his prognosis was poor.

20. I am satisfied by these reports that Mr Makki’s psychological condition was fully diagnosed during the claim period.  The next question is whether it was also fully treated and stabilised.  The Secretary says it was not.

21. The decision of the SSAT shows that Mr Makki told that tribunal that his anxiety and depression began 17 years ago when his wife left him; he was unable to sleep and used to take medication but stopped taking it and started taking herbs that he gets from Lebanon, which he was still taking; he had not seen Dr Metry for a long time and he could not remember Dr Idris at all; he had stopped counselling because it made him uncomfortable.

22. Mr Makki’s evidence to this Tribunal about his medication over the years was not entirely clear.  At one point he said his only treatment for many years has been medication which his mother sends him from Lebanon to help him sleep, and herbal medication.  Later, he said he has taken antidepressant medication when his doctors in Australia prescribed it.  I accept that Mr Makki was truthful in his evidence and that any discrepancies in his evidence reflect his mental condition.

23. Dr Saeed’s records show he prescribed antidepressant medication at various times, and Dr Keshava’s report of 13 January 2015 refers to Mr Makki taking Pristiq.  Mr Makki’s Pharmaceutical Benefits Scheme Patient Summary for June 2011 to September 2015 shows that he had prescriptions for antidepressant medication filled on 10 November 2011, 8 December 2011, 30 December 2011, 13 September 2013, 19 October 2013, 5 March 2014, 14 May 2014, 16 May 2014, 19 January 2015, 25 February 2015, 21 March 2015, 14 May 2015, 18 June 2015, 9 July 2015, 6 August 2015, 27 August 2015 and 17 September 2015. 

24. The Secretary submits that Mr Makki had been taking his medication only intermittently up to and during the claim period, and was not taking it consistently until around the end of the claim period.  Without knowing the dosage of each prescription, it is impossible to know how long each was intended to last.  There is also evidence that Mr Makki was overseas at various times leading up to the claim period, during which he would not have been prescribed medication in Australia.

25. Mr Omar Jamal, who assisted Mr Makki at the hearing, submitted that the Tribunal can rely on the “general convention” that, after some time, there is no continuing benefit in seeing a psychiatrist and people rely instead on antidepressant medication.  There is no evidence to support that submission but, even if there were, the evidence before me suggests that, up to and during the claim period, Mr Makki was not taking his medication consistently.  Further, Mr Makki did not start seeing Dr Keshava until February 2015, after the claim period, and started seeing another psychiatrist, Dr Ishrat Ali, in January 2016.

26. In the absence of evidence of more consistent treatment over the years, and the absence of evidence that Mr Makki’s doctors considered the herbal and other medication he was taking was beneficial, I am not satisfied that his psychological condition was fully treated and stabilised during the claim period.  That said, the long standing nature of his condition suggests the possibility that further improvement, with or without treatment, was unlikely.

27. I will assume, without finally deciding, that Mr Makki’s psychological condition was fully diagnosed, treated and stabilised during the claim period and will consider what impairment rating it should be given.

    Mental health function: impairment rating

28. According to Table 5 (Mental Health Function), there is a mild functional impact (rating five points) on activities involving mental health function if:

    1The person has mild difficulties with most of the following:

    (a)     self care and independent living;

    (b)     social/recreational activities and travel;

    (c)     interpersonal relationships;

    (d)     concentration and task completion;

    (e)     behaviour, planning and decision-making;

    (f)     work/training capacity.

29. According to Table 5, there is a moderate functional impact (rating 10 points) on activities involving mental health function if the person has moderate difficulties with most of the functions described above, and severe functional impact  (rating 20 points) on activities involving mental health function if a person has severe difficulties with most of those activities.  The Table provide examples to assist in determining the degree of impact.

30. In his report which accompanied Mr Maki’s claim for DSP, Dr Saeed stated that the impact of his psychological condition on his ability to function was: [indecipherable].  Dr Keshava reported on 13 February 2015 that Mr Makki was not fit for any gainful employment and was totally and permanently incapacitated.  He did not provide any further details.

31. In a letter dated 2 February 2016 to Dr Saeed, Dr Ishrat Ali, consultant psychiatrist, reported that he saw Mr Makki on 13 January 2016.  He said:

    On further examination of his mental state there was no evidence of psychosis, brain damage or any other problem.  He appeared to be functioning at an average level of intelligence and he had reasonable insight into his condition.

32. Although Dr Ali refers to a “further” examination, it is clear from the conclusion of his report that this was the first time he had seen Mr Makki.  He said it was therefore “difficult to give an opinion about his long-term fitness to work” but he noted the opinion of Dr Keshava who had “treated him for at least 15 years” that Mr Makki would never be able to work.  In fact, Dr Keshava’s reports make clear that he did not see Mr Makki for 15 years up to 2015.  Given that he saw Mr Makki only once and was unable to give an opinion about his fitness for work, Dr Ali’s report does not assist me.

33. Mr Makki gave evidence that his depression means he cannot sleep, he cannot concentrate, he forgets a lot and he is fatigued; he is able to do most things but has to do them cautiously and slowly; his social life and interpersonal relationships are affected “a lot”.

34. The Secretary submits that, even if Mr Makki’s psychological condition was fully treated and stabilised during the claim period, it did not rate more than five points.  I agree.  In any event, it was not severe according to the Impairment Tables and did not itself rate 20 points. 

    Was Mr Makki’s spine condition fully diagnosed treated and stabilised?

35. The Secretary submits that this condition was not fully diagnosed treated and stabilised during the claim period. I agree.

36. Dr Max Ellis, orthopaedic surgeon, saw Mr Makki for assessment in connection with a claim for compensation for a work-related injury in 2004.  In a report dated for November 2013, Dr Ellis stated that he injured his neck in the 2004 incident, and degenerative changes in his neck and back were aggravated by a motor vehicle accident in 2009. He wrote:

    Radiological investigation is incomplete and at least CT scanning; preferably MRI examination should be performed of his cervical and lumbar spines, which would help in the assessment and planning of future management.

37. The Secretary says, and I accept, that Dr Ellis’ report suggests that Mr Makki’s neck and lower back conditions were not fully diagnosed during the claim period.  A CT scan of his lumbar spine was not performed until 11 December 2015.  As well, Dr Saeed did not refer Mr Makki for treatment for his pain until June 2015.

38. Against that evidence, in further reports also dated 4 November 2013, Dr Ellis assessed Mr Makki’s whole person impairment for the purposes of his workers compensation claim and assigned percentage impairments for his cervical and lumbar spine conditions and his shoulder condition, indicating that he considered they were permanent at that time. 

39. The reason for the apparent discrepancy in Dr Ellis’ reports is not clear.  I will assume, for the purpose of this decision, that Mr Makki’s neck and lower back conditions were fully diagnosed, treated and stabilised during the claim period. 

    Spinal function: impairment rating

40. According to Table 4 (Spinal function), there is a mild functional impact (rating five points) on activities involving spinal function if a 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).

41. Table 4 provides there is a moderate functional impact (rating 10 points) on activities involving spinal function where a 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).

42. For impairment of spinal function to be severe, and rate 20 points, a 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 from a desk or table; or

    (d)            remain seated for at least 10 minutes.

43. Mr Makki gave evidence that, when he has pain in his neck and lower back, he needs to rest; there are times when he cannot turn his neck; he does things as best as he can and puts up with the pain; sometimes, when looking up, he feels dizzy and faint; he can bend forward but has pain down his back when he does.

44. The Secretary says that, even if I accept that Mr Makki’s spine condition was fully diagnosed treated and stabilised, it did not rate more than five points during the claim period.  Even if I accepted that Mr Makki’s impairment was moderate, I do not accept that it was severe.  It follows that it did not rate 20 points during the claim period.

    Was Mr Makki’s shoulder condition fully diagnosed treated and stabilised?

45. Mr Makki suffered an injury to his right shoulder around 1987.  The Secretary accepts, and I am satisfied, that this condition was fully diagnosed during the claim period.

46. Dr Ellis reported on 4 November 2013 that there was weakness in his right hand grip and right arm as a result of his injury.  He reported that acromioplasty would be expected to increase his range of movement and decrease pain levels in the right shoulder, “if the MRI findings were positive for rotator cuff tearing”.

47. Mr Makki gave evidence that he did not have the recommended surgery because of a conversation he had with a doctor who was treating his son in St George Hospital.  According to Mr Makki, the doctor told him there was no guarantee that acromioplasty would be successful and so he decided against it.  It is clear, from the circumstances of the conversation, that this doctor did not have access to Mr Makki’s records.

48. Given the recommendation of Dr Ellis, who is a specialist, I am not satisfied that Mr Makki’s shoulder condition was fully treated and stabilised during the claim period.  Even if it was, however, it would rate at most five points on Table 2 (Upper Limb Function), and even that is doubtful given Mr Makki’s evidence indicating he did not have difficulty during the claim period with most of the activities specified for that rating.

    Was Mr Makki’s knee condition fully diagnosed treated and stabilised?

49. Dr Ellis reported that Mr Makki injured his left knee in an accident at work in 1987.  Dr Saeed’s clinical notes confirm the date of injury.  In respect of his knee, Dr Ellis said on 3 November 2013 there was “no assessable impairment today”.  Dr Saeed reported on 10 November 2014 that Mr Makki was unable to stand or walk for a long time; his condition was expected to persist for more than 24 months and the effect on his ability to function within the next two years was uncertain. Beyond this, there is limited medical about Mr Makki’s knee condition. 

1. The absence of evidence makes it difficult to assess whether this condition was fully treated and stabilised but, given it is long standing, and that no doctors appear to suggest further treatment is required, I will assume it was fully treated and stabilised during the claim period.

2. Mr Makki gave evidence that his knees hurt when he walks and he has to rest; sometimes he cannot manage the stairs at home but at other times he can; if he is not in pain, he can stand without difficulty, otherwise he has to sit; at exceptional times, when the pain is severe, he will use a stick; he takes Panadol when he feels pain in his knees, and he rests; he avoids putting strain on the knee, and does hand massage to relieve the pain.

3. The Secretary says that, even if this condition was fully treated and stabilised, it did not rate more than nil points on Table 3 (Lower Limb Function) during the claim period.  Even if I accept that it rated five points because Mr Makki has some difficulty sometimes with walking and climbing stairs, and sometimes is unable to stand for more than 10 minutes, it is clear that it was not severe according to the Impairment Tables.

4. Table 3 provides that impairment of lower limb function is severe if a person is unable to:

   walk around or shopping centre supermarket without assistance; walk from the car park into a shopping centre or supermarket without assistance; stand up from a sitting position without assistance; and requires assistance to use public transport. 

   Evidence of Mr Makki’s daughter

5. Mr Makki’s daughter, Jennifer Khalil, told the Tribunal that, during the claim period, she would visit her father each day to help him with cleaning and cooking and other activities.  She said he was always in pain and needed a lot of help.  At that time, she was receiving a carer payment and carer allowance in respect of the care she provided to him.  At the same time, she had infant twins to care for and, from January 2015, was studying for three days a week.

6. I accept that Ms Khalil helped her father every day and that he relied on her for assistance.  However, it does not itself answer whether he qualified for DSP at that time.

   Continuing inability to work

7. The provisions concerning continuing inability to work are quite complex and it is not necessary to go into them in detail here.  Importantly, unless a person has a severe impairment, he or she must have actively participated in a program of support for 18 months in the three years immediately before applying for DSP: s 94(2)(aa).

8. At the time of his application for DSP on 11 November 2014, Mr Makki had not actively participated in a program of support. This means that, unless one of his impairments was severe, he did not have a continuing inability to work, and the claim he made for DSP on 11 November 2014 must fail.

9. For the reasons above, I am not satisfied that any of Mr Makki’s impairments were severe during the claim period.  It follows that he did not have a continuing inability to work and his claim must fail.

   The cancellation decision

10. Centrelink records show that Mr Makki left Australia on 15 May 2014.  His “portability period” ended six weeks later, on 26 June 2014.  Mr Makki returned to Australia on 26 October 2014.  In the meantime, his DSP had been suspended and then cancelled. 

11. The records show that Mr Makki contacted Centrelink on 27 October 2014 and asked for his “portability” to be extended. He provided documents to support his claim that he was unable, for various reasons, to leave Lebanon in time to return before the “portability period” expired.  

12. On 13 November 2014, Mr Makki’s request for a “portability extension” was rejected.  The records show that, on that date, a Centrelink officer spoke to Mr Makki and:

    [E]xplained to customer has not been approved for an extension. [C]ustomer understood and did not wish to appeal.

13. Mr Makki has no recollection of this conversation.  He maintains that he wanted the portability decision reviewed but Centrelink officers advised him to make a new claim for DSP.

14. Mr Jamal submitted at the hearing that Mr Makki would have asked for a review of the portability decision and it was probable that the Centrelink records produced to the Tribunal were incomplete.  Mr Jamal pointed to Mr Makki’s request for internal review of the 2013 suspension of his DSP and the decision of an Authorised Review Officer to affirm the suspension. 

15. I do not accept that submission.  It may well have been Mr Makki’s intention to seek further review of the decision but there is no evidence that he did.  In any event, this Tribunal has no jurisdiction directly to review a decision by Centrelink; it has jurisdiction to review a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) which replaced the SSAT.  There has been no application by Mr Makki to the SSCSD and no decision that this Tribunal can review.

16. If, as Mr Jamal suggests, the Centrelink officer misunderstood his conversation with Mr Makki, or if he was given incorrect advice concerning his review rights, Mr Makki is entitled to make a claim under the Scheme for Compensation for Detriment caused by Defective Administration scheme.  The Tribunal has no power in respect of such claim.

    Conclusion

17. For the reasons above, even if I accept that each of Mr Makki’s conditions were fully diagnosed, treated and stabilised during the claim period, they would rate at most a total of 15 points, but more probably 10 points.  As Mr Makki did not have an impairment rating of 20 points or more, his claim must fail.

18. Further, Mr Makki did not have a continuing inability to work because he had not actively participated in a program of support which he was required to do because none of his impairments alone was severe according to the Impairment Tables.

19. Given that Mr Makki was receiving DSP for many years, I appreciate, that he may have difficulty understanding this decision.  However, just because a person is receives a payment for many years, it does not follow that they continue to qualify for it. 

20. For these reasons, I affirm the decision under review.

I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated 21 September 2016

Date(s) of hearing	5 & 15 September 2016
Advocate for the Applicant	Mr Omar Jamal
Solicitors for the Respondent	Ms A Fletcher, Department of Human Services