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

[2017] AATA 1907

Mekonnen and Secretary, Department of Social Services (Social services second review) [2017] AATA 1907 (26 October 2017)

Division:GENERAL DIVISION

File Number:          2017/1689

Re:Hana Mekonnen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:26 October 2017

Place:Sydney

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 21 February 2017 is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – request for indefinite portability – cancellation of disability support pension as a result of review – mental health condition – spinal and back condition – whether the conditions are of 20 points or more under the Impairment Tables – whether conditions were fully treated and stabilised - whether the Applicant has a continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 80

CASES

Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

26 October 2017

BACKGROUND

1. The Applicant, Ms Hana Mekonnen was born in Ethiopia and migrated to Australia in 1991.

2. In early 2008, Ms Mekonnen was granted Disability Support Pension (DSP), owing to her fractures and crush injuries and depression.

3. On 23 May 2016, Ms Mekonnen applied to the Department of Human Services, which is better known as Centrelink, for permanent portability of her DSP as she intended to leave Australia for Ethiopia. Ms Mekonnen wished to continue receiving DSP while residing permanently in Ethiopia.

4. On 23 May 2016, Centrelink sent Ms Mekonnen a notice with details of her medical assessment for permanent portability which read in part as follows:

   You have enquired with this office about going overseas for longer than the maximum portability period.

   You have agreed to undergo an assessment to determine whether you can be paid your Disability Support Pension for an indefinite period of time.

   This assessment must be undertaken in Australia. It will consist of a Medical review of your Disability Support Pension qualification and will apply the 1 January 2012 Impairment Tables which may mean you are no longer assessed as qualified for Disability Support Pension.

5. On 1 January 2012, new tables were introduced to assess impairments for the purposes of DSP. These tables are titled Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).

6. This new regime tightened the criteria for DSP.

7. On 1 August 2016, a job capacity assessment (JCA) report was completed. The JCA report assessed Ms Mekonnen’s Schizophrenia as having a severe impact on her activities and assessed this impairment at 20 points under Table 5 of the Impairment Tables. Table 5 is titled “Mental Function”. The report also assessed Ms Mekonnen’s spinal disorder at 5 points under Table 4 of the Impairment Tables, entitled “Spinal Function”.

8. Ms Mekonnen’s baseline work capacity was assessed at 8 to 14 hours per week.

9. On 5 October 2016, a Centrelink disability officer decided not to accept the JCA report recommendations on the grounds that there was no corroborating evidence, and that her impairments had not been fully diagnosed, treated and stabilised. The officer decided to cancel Ms Mekonnen’s DSP as her impairments were not assessable at 20 points under the Impairment Tables.

10. Ms Mekonnen was notified of the cancellation decision by a Centrelink notice dated 11 October 2016.

11. Ms Mekonnen had sought review from an Authorised Review Officer (ARO) of Centrelink, however, on 11 October 2016 the ARO affirmed the cancellation decision on the grounds that Ms Mekonnen’s impairments were not fully diagnosed, treated and stabilised and could not be assessed under the Impairment Tables.

12. The ARO further held that Ms Mekonnen did not have a continuing inability to work.

13. Ms Mekonnen sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).

14. On 21 February 2017, the AAT1 affirmed the decision to cancel Ms Mekonnen’s DSP. The AAT1 held that Ms Mekonnen’s mental impairment had a moderate impact on her activities and assessed this impairment at 10 points under Table 5 of the Impairment Tables. However, the AAT1 further held that her spinal disorder was not fully diagnosed, treated and stabilised and could not be assessed under Table 4 of the Impairment Tables. The AAT1 did not find it necessary to determine whether Ms Mekonnen had a continuing inability to work.

15. Ms Mekonnen has now appealed to the General Division of the AAT which is known as an AAT second review (AAT2).

    THE LEGISLATION

16. In Ms Mekonnen’s circumstances, the relevant provisions for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

17. Ms Mekonnen received DSP until it was cancelled on 5 October 2016. The power to cancel a social security payment which covers DSP, is found in subsection 80(1) of the Administration Act which provides as follows:

    80  Cancellation or suspension determination

    (1)       If the Secretary is satisfied that a social security payment is being, or has   been, paid to a person:

    (a)who is not, or was not, qualified for the payment; or

    (b)to whom the payment is not, or was not, payable;

    the Secretary is to determine that the payment is to be cancelled or suspended.

18. Therefore, I am required to decide whether the determination to cancel Ms Mekonnen’s DSP on 5 October 2016 was the correct or preferable decision. In other words, was Ms Mekonnen qualified to receive DSP on 5 October 2016?

19. The criteria for DSP are set forth in section 94 of the SS Act. Subsection 94(1) relevantly provides:

    94 Qualification for disability support pension

    (1)A person is qualified for disability support pension if:

    (c)the person has a physical, intellectual or psychiatric impairment; and

    (d)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (e)one of the following applies:

    (i)     the person has a continuing inability to work;

    ...

20. Put simply, I must be satisfied that on 5 October 2016, first, that Ms Mekonnen has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Ms Mekonnen has a continuing inability to work within the meaning of subsection 94(1)(c)(i), when read together with subsection 94(2) and attendant provisions of the SS Act.

    THE IMPAIRMENT TABLES 

21. Subsection 94(1)(b) of the SS Act obliges me to decide whether the impairments of Ms Mekonnen attain an assessment of 20 points under the Impairment Tables. This requires a few words of explanation.

22. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:

    [5] ...The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to 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: s 6(1) of the Determination.

    [6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

23. Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide, at subsection 6(4), that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.

24. Subsection 6(5) of the Impairment Tables provides that when considering whether a condition is fully diagnosed and treated one must consider:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.

25. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.

26. It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.

27. Finally, where a person claims that she or he is suffering from depression etc., the introduction to Table 5 of the Impairment Tables which is titled “Mental function” provides:

    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).

    THE HEARING

28. Ms Mekonnen attended the hearing and represented herself. She gave sworn evidence.

29. Ms Mekonnen recounted coming to Australia with her Husband in June or July 1991. She has one son.

30. Ms Mekonnen explained that her spinal and mental impairments commenced in 2006 when she was struck by a motorcar. Ms Mekonnen said that she had injuries to her fingers, shoulders, neck and face.

31. Ms Mekonnen said that she does a little bit of shopping, but often she is accompanied by her friend. Ms Mekonnen said that she can drive a car and has done so in the past. However, she said that she no longer drives because of her anxiety.

32. Ms Mekonnen said that she came to the Tribunal on her own by train and walked from the railway station to the hearing.

33. In cross-examination, Ms Mekonnen said that she can get in and out of a chair unaided and that she can climb stairs. She said that she washes her own clothes and hangs them on the balcony to dry.

34. Ms Mekonnen said that she has just completed five sessions of physiotherapy with them occurring in 2017. Ms Mekonnen said that she had five sessions of physiotherapy in 2016. She appeared to say that these five sessions took place after her DSP was cancelled on 5 October 2016, but she was not one hundred percent sure about the dates of these sessions.  I appreciate that English is not Ms Mekonnen’s first language. Several of these sessions may have occurred before 5 October 2016. Ms Mekonnen said that she could not remember whether she had any physiotherapy sessions in 2015.

35. Ms Mekonnen said that she takes Neurofen for her back pain. She said that she takes Neurofen once a day, but in winter she takes it twice daily. Ms Mekonnen said that she had not recently consulted a specialist about her spinal and back condition. She said that she has not visited a pain management clinic.

36. Throughout the hearing, Ms Mekonnen sat on occasions, then stood on occasions and moved around the room.

    CONSIDERATION

37. Paragraph 39 of the Respondent’s statement of facts, issues and contentions provides as follows:

    The Respondent accepts that at the time of cancellation, the Applicant had a ‘physical, intellectual or psychiatric impairment’ as required by subsection 94(1)(a) of the Act.

38. Counsel for the Respondent said that, on the evidence, Ms Mekonnen suffered from a spinal impairment and a mental impairment.

39. On the evidence before me, I find that Ms Mekonnen suffers from the mental impairment of schizophrenia and depression. I further find that she has a spinal impairment. Therefore, Ms Mekonnen comes within subsection 94(1)(a) of the SS Act.

40. Two further issues are before this Tribunal.

    First, are Ms Mekonnen’s impairments assessable at 20 points under the Impairment Tables? In other words, does she comply with subsection 94(1)(b) of the SS Act?

    (b)Second, does Ms Mekonnen have a continuing inability to work pursuant to subsection 94(1) subparagraph (c)(i), when read with subsection 94(2) and attendant provisions of the SS Act?

    ARE MS MEKONNEN’S IMPAIRMENTS ASSESSABLE AT 20 POINTS UNDER THE IMPAIRMENT TABLES?

    Spinal Condition

41. There is very little evidence before me about Ms Mekonnen’s spinal condition.

42. On 7 June 2016, Dr Ban Yagoub filled out a Centrelink report for Ms Mekonnen’s application for permanent portability of her DSP.

43. Dr Yagoub noted that Ms Mekonnen suffered chronic neck and back pain. However, Dr Yagoub did not set out any medical treatment which had been undertaken for this condition such as visiting specialists.

44. There is no evidence that Ms Mekonnen saw a specialist about her spinal and back condition. In her evidence, Ms Mekonnen said that she had not attended a pain management clinic. She said that she took Neurofen for her back pain.

45. Ms Mekonnen has had five physiotherapy sessions this year.

46. On the evidence before me, I find that Ms Mekonnen’s spinal condition was not fully diagnosed, treated and stabilised on 5 October 2016. Therefore, this impairment cannot be assessed under the Impairment Tables.

    Schizophrenia and Depression

47. There is more medical evidence about Ms Mekonnen’s schizophrenia and depression.

48. Dr Melissa Renzenbrink, a Psychiatry Registrar from the Manning Unit, Concord Centre for Mental Health, wrote a letter dated 19 January 2016. It read in part as follows:

    Hana was treated as an inpatient at the Manning Unit in Concord Centre for Mental Health from 23/10/2015 to 22/12/2015. She was diagnosed with a psychotic relapse of schizophrenia and was treated with a long-acting injectable antipsychotic mediation aripiprazole.

    Hana reportedly incurred a parking fine shortly before admission and it is likely that she was mentally ill with acute psychotic symptoms at the time.

49. In his report dated 7 June 2016, Dr Ban Yagoub states that Ms Mekonnen suffers from schizophrenia and major depression. He wrote that its date of onset was 2006 after a motor vehicle accident, and that the current treatment is antipsychotic injections monthly.

50. Ms Sophia Tran (Provisional Psychologist) and Ms Jo Hew (Supervising Clinical Psychologist), wrote a letter dated 10 October 2016. It states in part as follows:

    My client, Hana Mckonnen (sic), has requested and given me permission to write this letter regarding our psychological therapy sessions. Hana was referred to me by a case manager at Auburn Community Health Centre, and she has been attending fortnightly psychological therapy sessions with myself since 05/09/2016 at Auburn Community Health Centre. We have been addressing Hana's depression using Cognitive Behavioural Therapy methods. Hana has been punctual and engaged in her sessions with me.

51. Ms Dilan Sellahewa, who is a Provisional Psychologist, wrote in a letter dated 13 March 2017 as follows:

    I am writing to confirm that Ms. Mekonnen has been consulting me for psychotherapy to address symptoms of depression. I have seen Ms. Mekonnen for two sessions to date; the first session occurred on 30/01/17, and the second session occurred on 13/03/17. A third session has been scheduled for 27/03/17, with the expectation that Ms. Mekonnen will be offered fortnightly sessions thereafter. Ms. Mekonnen has expressed an intention to continue attending these consultations. 

52. Having regard to the medical evidence before me, I find that Ms Mekonnen’s schizophrenia and depression were fully diagnosed on 5 October 2016.

53. The more difficult question is whether these mental impairments had been fully treated and stabilised on 5 October 2016.

54. In her letter of 10 October 2016 which I have quoted above, Ms Tran recounts that Ms Mekonnen has been attending fortnightly psychological sessions using Cognitive Behavioural Therapy since 9 September 2016.

55. In her letter dated 13 March 2017 which I have also quoted above, Ms Sellahewa wrote that she has been giving Ms Mekonnen psychotherapy since 30 January 2017 and that as of 13 March 2017 these sessions are ongoing.

56. Having regard to this evidence, I find that Ms Mekonnen’s mental impairments were not fully treated and stabilised on 5 October 2016. Therefore Ms Mekonnen’s mental function cannot be assessed under the Impairment Tables.

57. I therefore find that Ms Mekonnen does not comply with subsection 94(1)(b) of the SS Act and does not qualify for DSP.

58. It is not necessary to examine whether or not Ms Mekonnen has a continuing inability to work.

59. I appreciate that my decision differs from that of the AAT1 which held that Ms Mekonnen’s mental condition was fully diagnosed, treated and stabilised on 5 October 2016, although the AAT1 also held that Ms Mekonnen did not qualify for DSP. However, more recent medical evidence was before me which was not before the AAT1.

    DECISION

60. The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 21 February 2017 is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated: 26 October 2017

Date of hearing:	13 October 2017
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Department of Human Services