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

[2016] AATA 911

Mashhour and Secretary, Department of Social Services (Social services second review) [2016] AATA 911 (16 November 2016)

Division

GENERAL DIVISION

File Number(s)

2016/3318

2016/3319

Re

Mr Akram Mashhour

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	16 November 2016
Place	Melbourne

The Tribunal affirms the decisions under review.

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

Mr Conrad Ermert, Member

SOCIAL SECURITY - Disability Support Pension - whether applicant has physical, intellectual or psychiatric impairments - whether impairments attract 20 or more points under Impairment Tables - whether applicant has a continuing inability to work - whether applicant has actively participated in a Program of Support - decision affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)
Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Mr Conrad Ermert, Member

16 November 2016

INTRODUCTION

1. On 1 October 2015 Mr Akram Mashhour, the Applicant, lodged a claim with Centrelink for a Disability Support Pension (DSP).  Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent.  In his claim Mr Mashhour listed his disabilities as:

   ·Back pain,

   ·Right hand wrist damage,

   ·Mental illness, and

   ·Vision problem.

2. On 20 January 2016 an officer of Centrelink determined that Mr Mashhour was not qualified for DSP (the DSP decision) as his conditions did not attract the required 20 or more impairment points, meaning that he did not satisfy the prerequisites for DSP under the Social Security Act 1994 (the Act) .

3. On 29 January 2016 an officer of Centrelink determined that Mr Mashhour was not qualified for Newstart Allowance as he was not qualified for a medical exemption from the activity test (the Medical Exemption decision).

4. Mr Mashhour sought a review of both decisions.  On 11 March 2016 an Authorised Review Officer (ARO) of Centrelink affirmed both decisions. 

5. Mr Mashhour applied for a review of the ARO decision.  On 9 June 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1):

   ·affirmed the DSP decision; and

   ·set aside the Medical Exemption decision and in substitution made the decision that Mr Mashhour was medically exempt from the activity test for Newstart Allowance for three months from 1 February 2016.

6. This matter is an application for review of the AAT1 decision to affirm the decision to reject Mr Mashhour’s DSP.

   HEARING

7. Mr Mashhour represented himself at the hearing and gave evidence under affirmation.  Mr Tim de Uray, a solicitor in the employ of the Department of Human Services represented the Respondent. 

8. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  I had also the following Supplementary T-Documents:

   ·ST1 – report by Ms Alexandra Ehrenberg, Psychologist, dated 15 July 2016; and

   ·ST2 – report by Dr Raafat Eisa, General Practitioner, dated 2 August 2016.

9. For Mr Mashhour I took in as Exhibit A1 a report of Dr Azad Kadom, General Practitioner, dated 28 October 2016. 

10. For the Respondent I took in for consideration the Statement of Facts Issues and Contentions of the Respondent dated 19 September 2016.

    LEGISLATION

11. The relevant legislation is contained in the:

    ·Social Security Act 1991 (the Act),

    ·Social Security (Administration) Act 1999 (the Administration Act),

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

    ·Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Program of Support Determination).

12. Subsection 94(1) of the Act details the requirements for qualification for DSP as follows:

    (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…

    ISSUES

13. At the commencement of the Hearing Mr de Uray advised that the Respondent was not contesting the AAT1 decision relating to the Medical Exemption.  I will not consider that matter further.

14. The issues I must determine are whether, at the relevant period:

    ·Mr Mashhour has physical, intellectual or psychiatric impairments; and if so

    ·The impairments attract a rating of at least 20 points under the Impairment Tables; and if so

    ·He has a continuing inability to work.

    EVIDENCE

15. Mr Mashhour said that his medical conditions commenced in 2009.  He said that his mental health condition in the form of depression was his most significant impairment.  He said he was in prison for three years, during which time Centrelink stopped his benefits.  Mr Mashhour re-applied for DSP and provided two supporting medical reports from the prison however Centrelink did not accept his claim. 

16. Mr Mashhour said that his wife died while he was in prison and he lost a sister in the war in Syria.  For five years he had not seen his daughter and he had no information about her while in prison.  These events added to his depression.  Mr Mashhour said he has been receiving treatment for his depression since 2005. 

17. In answer to questions by Mr de Uray Mr Mashhour said:

    ·His depression is getting worse;

    ·His daughter stays with him two or three days a week;

    ·He can not cook for himself, only heating meals left in his refrigerator, and relying on his daughter;

    ·He showers himself, sitting on a chair and using handrails;

    ·He manages to wash his hair and shave;

    ·He sometimes needs help with dressing;

    ·Caring for himself is not really a significant problem but is difficult;

    ·Friends have stopped coming to his house and he does not visit others;

    ·His depression prevents him from taking part in community activities;

    ·He drives to the shops about two kilometres distant; he can not shop by himself and his daughter does it for him;

    ·He described his trip to the Tribunal to attend the hearing:

    o50 metre walk to the bus stop;

    oFour to five minute bus ride to Roxburgh station;

    o35 to 40 minute train ride to Flinders Street station, seated near the door and standing periodically as he cannot sit for long; and

    o15 to 20 minute walk to the Tribunal;

    ·Regarding concentration, sometimes his mind is “somewhere else”;

    ·On television he watches only the Arabic language news dealing with Syria as he is not interested in anything else;

    ·He has good relations with his daughter;

    ·He can sit in a car or a train for 30 minutes if he has to;

    ·He can reach above his head only with his left hand;

    ·He has limited movement in his neck and can not turn his head 90 degrees;

    ·The pain in his back is getting worse;

    ·He can do up his buttons using his left hand and the index finger of his right hand;

    ·He can lift a two litre carton with his left hand;

    ·His daughter carries the shopping bags and he cannot lift a bag heavier than 10 kilograms;

    ·Sometimes he walks 300 metres to a shop;

    ·He can handle coins with his left hand;

    ·He can pick up a pen and write with his right hand;

    ·He sometimes uses the computer for Facebook and to chat with family and friends overseas;

    ·When shopping with his daughter he holds on to the trolley with one hand;

    ·He has difficulty climbing stairs and has handrails at the doors;

    ·He can board buses as they have only one step which is low to the kerb;

    ·He can stand unaided for 10 minutes when necessary;

    ·He can sit for 15 to 20 minutes but has to change position because of his back pain;

    ·He has not undertaken a Program of Support (POS) as he has been exempted four times for a period of three months on each occasion;

    ·During his three years in prison he was certified as unfit for work;

    ·He has a Masters Degree in Engineering;

    ·He lodged his review application using his computer; and

    ·He has been receiving counselling from psychologists for 11 years. 

    TRIBUNAL CONSIDERATIONS

    Relevant Period

18. Schedule 2, subsection 4(1) of the Administration Act requires Mr Mashhour’s qualification for DSP to be determined from the date of his claim to a date 13 weeks thereafter. In this case the relevant period is 1 October 2015, the date of the claim, to 31 December 2015, that being a period of 13 weeks.

    Impairments (Subsection 94(1)(a) of the Act)

19. The Respondent concedes that Mr Mashhour satisfies subsection 94(1)(a) of the Act in that he suffers from the following conditions:

    ·Back condition,

    ·Bilateral knee condition,

    ·Right wrist condition,

    ·Depression,

    ·Cataracts,

    ·Liver condition,

    ·Diabetes, and

    ·Neck condition.

20. There is medical evidence to support these conditions.  I accept the concession and find accordingly.

    Impairment Rating (Subsection 94(1)(b) of the Act)

21. I will now consider whether Mr Mashhour’s impairments attract an impairment rating of 20 or more points in order to satisfy subsection 94(1)(b) of the Act. The Impairment Tables provide the criteria by which impairment points are allocated to impairments.

22. Subsection 6(3)(a) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the impairment is permanent.  Subsection 6(4) provides that a condition is permanent if the condition:

    (a)has been fully diagnosed by an appropriately qualified medical practitioner, and

    (b)has been fully treated, and

    (c)has been fully stabilised.

23. I will consider each condition in turn.

    Back Condition

24. The Respondent concedes that the condition is fully diagnosed, fully treated and fully stabilised.  I am satisfied that the medical evidence supports the concession and I find accordingly. 

25. The Respondent submits that Mr Mashhour’s impairments from this condition attract a rating of 10 impairment points under Table 4 - Spinal Function.  Mr Mashhour also submits that his back condition attracts 10 impairment points.  Nevertheless I will consider whether the evidence supports a higher rating.

26. Under Table 4 the descriptors that must be satisfied for a rating of 20 points are:

    The person is 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.

27. There is no corroborating evidence that Mr Mashhour is unable to perform any of these activities.  Mr Mashhour’s own evidence is that he is capable of performing all of the listed activities, albeit with some difficulty and where necessary with one hand.

28. I am satisfied that Mr Mashhour’s back condition does not attract a rating of 20 points.  I find that the impairment for the back condition attracts an impairment rating of 10 points.

    Knee Condition

29. The Respondent concedes that the condition is fully diagnosed, fully treated and fully stabilised.  I am satisfied that the medical evidence supports the concession and I find accordingly. 

30. The Respondent submits that Mr Mashhour’s impairments from this condition attract a rating of 5 impairment points under Table 3 - Lower Limb Function.  Mr Mashhour makes no submissions on this rating.  I will consider whether the evidence supports a higher rating.

31. Under Table 3 the descriptors that must be satisfied for a rating of 10 points are:

    1At least one of the following applies:

    (a)The person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

    (b)The person is unable to use stairs or steps without assistance; or

    (c)The person is unable to stand for more than 5 minutes; and

    2The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

    3This impairment rating level includes a person who can:

    (a)Move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

    (b)Move around independently using walking aids (e.g. quad stick, crutches or walking frame).

32. There is no corroborating evidence that Mr Mashhour is unable to perform any of the activities listed in (1).  Mr Mashhour’s own evidence is that he is capable of performing all of the listed activities.  He walks to the nearby shop.  He is able to use stairs and steps without assistance from another person albeit by holding on to a handrail.  He is able to stand for 10 minutes when necessary.

33. I am satisfied that Mr Mashhour’s knee condition does not attract a rating of 10 points.  I find that the impairment for the knee condition attracts an impairment rating of 5 points.

    Right Wrist Condition

34. The Respondent concedes that the condition is fully diagnosed, fully treated and fully stabilised.  I am satisfied that the medical evidence supports the concession and I find accordingly. 

35. The Respondent submits that Mr Mashhour’s impairments from this condition attract a rating of 5 impairment points under Table 2 - Upper Limb Function.  Mr Mashhour makes no submissions on this rating.  I will consider whether the evidence supports a higher rating.

36. Under Table 2 the descriptors that must be satisfied for a rating of 10 points are:

    1The person has difficulty with most of the following:

    (a)Picking up a 1 litre carton full of liquid;

    (b)Picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

    (c)Holding and using a pen or pencil;

    (d)Doing up buttons or tying shoelaces;

    (e)Using a standard computer keyboard;

    (f)Unscrewing a lid on a soft-drink bottle.

37. There is no corroborating evidence that Mr Mashhour is unable to perform any of the listed activities.  Mr Mashhour’s own evidence is that he is capable of performing most of the listed activities.  He can pick up a 2 litre carton with his left hand.  He can hold and use a pen and can write with his right hand.  He can do up his buttons using both hands.  He can use a computer keyboard. 

38. I am satisfied that Mr Mashhour’s wrist condition does not attract a rating of 10 points.  I find that the impairment for the wrist condition attracts an impairment rating of 5 points.

    Depression

39. The Respondent concedes that the condition is fully diagnosed, fully treated and fully stabilised.  I am satisfied that the medical evidence supports the concession and I find accordingly. 

40. The Respondent submits that Mr Mashhour’s impairments from this condition attract a rating of 5 impairment points under Table 5 - Mental Health Function.  Mr Mashhour submits that the condition has existed since 2005 and he has been receiving counselling since then.  He relies on the reports of Dr Kadom and Ms Ehrenberg.  I will consider whether the evidence supports a higher rating.

41. Under Table 5 the descriptors that must be satisfied for a rating of 10 points are:

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

    (a)Self care and independent living;

    Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

    (b)Social/recreational activities and travel;

    Example 1:  The person goes out alone infrequently and is not actively involved in social events.

    Example 2:  The person will often refuse to travel alone to unfamiliar environments.

    (c)Interpersonal relationships;

    Example:  The person has difficulty making and keeping friends or sustaining relationships.

    (d)Concentration and task completion;

    Example 1:  The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

    Example 2:  The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

    (e)Behaviour, planning and decision-making;

    Example 1:  The person has difficulty coping with situations involving stress, pressure or performance demands.

    Example 2:  The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

    (f)Work/training capacity.

    Example:  The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

42. The Introduction to Table 5 states that self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.  I note the following corroborating evidence relating to Mr Mashhour’s functional impairment:

    ·Medical certificates by Dr Eisa, General Practitioner, dated 4 May 2015 and 4 August 2015 which records: “poor mood – lack of interest – no energy”;

    ·Medical report by Dr Eisa dated 15 May 2015 which record:

    “Current Symptoms: Very poor Mood – depressed, No Energy – Disinterested – Painful Memories”;

    ·Job Capacity Assessment Reports dated 3 July 2015 which records:

    “…The client reported that he is living independently and is independent with self care.  The client reported that he does not have any support to live independently. 

    The client reported that he has resumed his normal friendships since being released from prison.  He travels independently when accessing the community and is able to use public transport.  He has regular contact with family overseas via the Internet.  The client does not refuse to travel independently in the community. 

    The client reported that he has a strained relationship with his daughter, whereby she is able to contact and visit him, however, he does not know where she lives and is restricted from contacting her himself.  The client has been able to resume friendships after three years in jail and has regular contact with family members.

    The client reported some difficulty with concentration but is able to spend time on the Internet and watching television.

    There is no evidence of significant difficulties in behaviour, planning or decision-making.  None reported by the client or in MR.

    The client has not worked since 2005, when he closed his business due to a marriage breakdown.  The client re-married again, however, his second wife has passed away”.

    ·Ms Ehrenberg, Psychologist, dated 15 July 2016 which records:

    “My assessment indicates that he meets criteria for Major Depressive Disorder and Post-Traumatic Stress Disorder.  Akram completed the Kessler-10 (K-10) assessment of psychological distress and Beck Depress Inventory (BDI); his ratings on these assessments indicated severe psychological distress and severe depression respectively.

    While Akram has improved moderately in terms of his depressed mood, increased activity and moments of optimism, I do not feel he has made significant enough progress to discontinue psychotherapy.  Akram continues to experience distressing levels of low mood and trauma symptoms that I hae (sic) not been able to completely shift.  I have suggested to Akram that he may experience benefit from seeing a different therapist to hopefully assist him with his residual symptoms …”.

1. From the corroborated evidence I am satisfied that at the relevant period Mr Mashhour satisfied the following descriptors:

   ·(1)(b) Example 1 – Dr Eisa reports poor mood, lack of interest, disinterested and no energy.  This evidence corroborates that of Mr Mashhour in which he said that his depression prevents him from taking part in community activities; and

   ·(1)(e) Example 1 – Dr Eisa reports mood difficulties and depression.  Ms Ehrenberg reports a condition of severe depression with the impact of the condition including distressing levels of low mood for which Mr Mashhour has been seeking treatment for the past four years, which includes the relevant period.

2. I am not satisfied that the corroborated evidence supports the remaining descriptors.  As a result I am not satisfied that Mr Mashhour has moderate difficulties with most of the listed criteria.  Accordingly I find that his impairment does not attract a rating of 10 points and I assign five points to this impairment.  

   Cataracts

3. The Respondent contends that at the relevant period this condition was not fully diagnosed, fully treated or fully stabilised.  The Respondent submits that Mr Mashhour underwent surgery for his cataracts in February and April 2016, outside the relevant period.  Mr Mashhour makes no submissions in regard to this condition.

4. On 15 May 2015 Dr Eisa lists Mr Mashhour’s cataracts as a medical condition in a category of conditions that are generally well managed and causes minimal or limited impact on ability to function. Dr Eisa provides the annotation: “Cataract – not managed”.  Dr Eisa referred Mr Mashhour to the Alfred Hospital.  In a reply dated 23 June 2015 the Specialist Consulting Clinics stated “Unfortunately, due to an increase in demand for appointments of a non urgent nature, a wait list has been established, and your name has been added to it”. 

5. I find that, at the relevant period, the cataract condition is not fully diagnosed, fully treated or fully stabilised at the relevant period.  As a result I am unable to assign an impairment rating to the condition.

   Liver Condition

6. I note the report of MIA Radiology dated 13 November 2015 which records “Evidence of mild fatty infiltration of the liver with a focal area of fatty sparing seen adjacent to the gallbladder bed”.  I accept that the condition has been fully diagnosed. 

7. At the AAT1 hearing Mr Mashhour said that the liver condition has no functional impact on him.  It does not stop him from undertaking any activities.  At this hearing Mr Mashhour made no submissions relating to his liver condition. 

8. Although the condition has been fully diagnosed I have no evidence before me that the condition has been fully treated or fully stabilised.  As a result I am unable to assign an impairment rating to the condition.

   Diabetes

9. In considering this condition I note the following reports:

   ·Dr Eisa dated 3 July 2015 which records a diagnosis of NIDDM (Non Insulin Dependent Diabetes Mellitus); and

   ·Job Capacity Assessment Report dated 20 January 2016 which records:

   “Letter completed by Dr. Eisa (03/07/2015) indicates a diagnosis of recently non-insulin dependent diabetes mellitus.  At that time the client had been referred to a diabetes intake worker at the Dianella Community Health Service.  No other information was provided regarding treatment, prognosis or functional impact”

10. I am satisfied that the condition was fully diagnosed, but, without additional medical evidence I am not satisfied that the condition has been fully treated and stabilised.  Accordingly I am unable to assign an impairment rating to this condition. 

    Neck Condition

11. Neither the Respondent nor Mr Mashhour make any submissions in regard to a neck condition.

12. I note that the AAT1 found that the condition was diagnosed but not fully treated or stabilised.  I have no evidence and have received no arguments that give me reason to reconsider this finding. 

    Total of Impairment Ratings

13. In considering the assignment of impairment ratings I have found the following in regard to the claimed conditions:

    ·Back condition – impairment rating of 10 points under Table 4;

    ·Knee condition – impairment rating of 5 points under Table 3;

    ·Depression – impairment rating of 5 points under Table 5;

    ·Right wrist condition – impairment rating of 5 points under Table 2;

    ·Cataracts – not fully diagnosed, fully treated or fully stabilised; unable to assign an impairment rating;

    ·Liver condition – not fully treated or fully stabilised; unable to assign an impairment rating;

    ·Diabetes – not fully treated or fully stabilised; unable to assign an impairment rating; and

    ·Neck condition – not fully treated or fully stabilised; unable to assign an impairment rating.

14. At the relevant period the assigned impairments rate 25 points from four Impairment Tables. 

    Continuing Inability to Work (subsection 94(1)(c))

15. Subsection 94(1)(c)(i) of the Act relevantly requires a person to have a continuing inability to work to be qualified for DSP.  Subsection 94(2)(aa) of the Act provides relevantly that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that the person has actively participated in a Program of Support (POS).  The exception to this requirement is if the person has a severe impairment.

16. Subsection 94(3B) provides that a person’s impairment is a severe impairment if the impairment attracts 20 or more points under the Impairment Tables, of which 20 or more points are under a single Impairment Table.

17. At the relevant period Mr Mashhour does not have an impairment that attracts a rating of 20 points from any one table.  Accordingly he does not have a severe impairment within the meaning of subsection 94(3)(b) of the Act and therefore does not satisfy the exception to the rule.  For Mr Mashhour to satisfy the requirements of subsection 94(2)(aa) of the Act, he must therefore have actively participated in a POS.  The requirements relating to active participation in a POS are contained in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). 

18. Part 2 section 7 of the POS Determination relevantly provides that a person has actively participated in a POS for at least 18 months within the three years immediately before the date of the claim, or:

    ·completed a POS that was less than 18 months duration (s 7(3));

    ·was participating in a POS that was terminated because the person was unable, because of his impairment,  to improve his capacity to find employment (s 7(4));

    ·was participating in a POS at the end of the period and is prevented by his impairment from improving his capacity to find employment (s 7(5)).

19. Mr Mashhour contends that he received four exemptions from the POS requirement, each of three months duration.  He said he did not refuse to participate in a POS.  He said he was not offered a POS because of his exemptions. 

20. Mr de Uray submits that Mr Mashhour has not at any time in the three year period completed a POS.  He submits that there is no evidence that any of the exceptions contained in subsections 7(3) to 7(5) of the POS Determination apply to Mr Mashhour.

21. I note from the records (T-Documents, page 143) that Mr Mashhour has not actively participated in a POS for 18 months before his date of claim (s 7(2)).  I have no evidence to show that Mr Mashhour satisfies the requirements of subsections 7(3), 7(4) or 7(5) of the POS Determination.  I am not satisfied that Mr Mashhour satisfies the relevant requirements of the Determination and I find accordingly.

22. I find that Mr Mashhour has not actively participated in a POS in the terms for the POS Determination.  As a consequence he does not satisfy the requirements of 94(2)(aa) and does not have a continuing inability to work in the terms of the Act.

    CONCLUSION

23. I have found that Mr Mashhour has a number of conditions that satisfy subsection 94(1)(a) of the Act.  The impairments resulting from the conditions attract a total of 25 impairment points which satisfies subsection 94(1)(b) of the Act.  However Mr Mashhour does not have a continuing inability to work in the terms of the Act as a consequence of having a severe impairment or completing a POS. As such, he does not satisfy the requirements of subsection 94(1)(c) of the Act.

24. As he does not satisfy each of the provisions of subsection 94(1) of the Act, he is not qualified at the relevant period for the receipt of DSP.

    DECISION

25. I affirm the decisions under review.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated 16 November 2016

Date of hearing	31 October 2016
Applicant	In person
Advocate for the Respondent	Mr Tim de Uray
Solicitors for the Respondent	Department of Human Services, Freedom of Information & Litigation Branch