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

[2017] AATA 841

Messiha and Secretary, Department of Social Services (Social services second review) [2017] AATA 841 (11 May 2017)

Division:GENERAL DIVISION

File Number(s):      2015/5850

Re:Seham Messiha

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:11 May 2017

Date of written reasons:        8 June 2017

Place:Sydney

The decision under review is affirmed.

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

Bill Stefaniak AM RFD, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – whether applicant suffered severe functional impact on activities – applicant not found to have a severe impairment within one impairment table – decision under review affirmed

Legislation

Social Security Act 1991, s 94(1)(a)

Secondary Materials

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

WRITTEN REASONS FOR ORAL DECISION

Bill Stefaniak AM RFD, Senior Member

8 June 2017

BACKGROUND

1. The Messiha family came to Australia in 2008 and unfortunately it has not worked out as well as they hoped.  Mrs Messiha is tertiary qualified and was an accountant in her native country.  Mr Messiha had teaching qualifications, and was employed in his native country.  He is a tutor. 

2. Not long after the family arrived in Australia the applicant developed some significant health problems.  Specifically, she developed problems in relation to her left shoulder, her spine, she broke her ankle not long after coming here, she has asthma, sarcoidosis, and diabetes, and suffered depression and anxiety.  On a positive note, the applicant’s three children are doing very well.  She has a daughter who is now attending university who, wherever possible, assists the applicant and her father, in taking care of the applicant’s needs.  Another daughter and son are still at school, and help out when they can. 

3. Whilst the applicant did have some assistance from a maid and servants back in Egypt, it appears that she still did a significant amount of work herself there, and it was customary in Egypt that women normally do the housework.  In Australia she worked as a book-keeper and in similar type roles, which were not dissimilar to what she had done in Egypt, although at a lower level perhaps, and, from the evidence, it appears she worked up until mid-2013 when she felt it was impossible for her to work anymore because of her medical conditions. 

4. As a result of not being able to work, and perhaps also because her husband had difficulty in getting work in Australia, (indeed he appears to have only worked for a very short period of time as a tutor, and has been effectively on Newstart ever since), the applicant then made an application for Disability Support Pension (DSP). The application was unsuccessful.  She appealed to the Social Security Appeals Tribunal, the “AAT1”, and was unsuccessful in a decision dated 17 September 2014, one of the main reasons being, at that stage, a psychiatrist and/or clinical psychologist had not diagnosed her condition of depression. 

5. She put in a further application for DSP on 12 January 2015, and in that application included some medical reports, including two reports from Dr Sydney Oen, consultant psychiatrist, dated 6 October 2014, and 16 October 2014 respectively.

6. The report of 6 October 2014 made a formal diagnosis of depression, and Dr Oen said her condition could best be conceptualised as severe and chronic adjustment disorder, with depressed mood.  On 16 October 2014 he provided another report stating the applicant suffered from a severe depressive disorder related to the extremely adverse occupational, financial, and other life circumstances that she finds herself in.  He went on to say she has been receiving treatment since 2009, and is currently trialling new antidepressant treatment. By that I think he meant Tolvan, which she started using from that time. 

7. At this point I say I am certainly satisfied as of October 2014 she was diagnosed with depression and anxiety.

8. As I indicated, she put in another claim on 12 January 2015.  Included in that was a report from Dr Amgad Roman dated 9 January 2015 stating she suffered from lower back pain, shoulder pain, ankle pain, multiple arthritis, depression, generalised anxiety disorder, diabetes, asthma, and sarcoidosis.

9. On 10 March 2015 a Job Capacity Assessor (JCA) assessed the applicant’s medical condition, and allocated zero points under Table 2 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) for osteoarthritis of the right wrist joint; 5 points under Table 4 for spinal disorder; and no points for the lower limb condition and osteoarthritis.  For all the other ailments, the JCA felt that they were not fully treated and stabilised.  The JCA also felt that the applicant had a work capacity of 15 to 20 hours per week, increasing to 23 to 29 within two years, with intervention.

10. On 19 March 2015 the Department rejected the applicant’s claim for DSP because she did not have a rating of 20 points or more under the Impairment Tables. She sought review by an authorised review officer who, on 29 April 2015, affirmed the earlier decision. On 15 July 2015 she requested a review of that officer’s decision and took the matter to the AAT1. The AAT1 heard evidence from the applicant in person, and on 6 October 2015 made its decision. The AAT1 assigned 10 points under Table 5 for mental health, zero points for asthma, diabetes, and sarcoidosis. It declined to award any additional points because medical reports failed to provide clear information about the functional impact in respect of the spine and the upper and lower limbs. As it found the applicant had a rating of 10 points, it stated she failed to satisfy section 94(1)(b) of the Social Security Act 1991 (the Act). The applicant lodged an application to this Tribunal on 9 November 2015 for a review of that decision.

    LEGISLATIVE PRINCIPLES

11. The law in relation to DSP was tightened up in 2011 by the Federal Parliament.  It made it a lot harder to qualify for DSP, the reason being there were as many people on DSP as there were on Newstart.  The rationale was partly to save money, but also to ensure that people who could do some work or study did so, thereby not only saving the taxpayer money, but also assisting them to get more enjoyment out of life by being active and productive in the workplace when they were medically able to do so. 

12. The relevant period which I have to look at, is the period between the date the application was lodged, and 13 weeks after that date.  Namely from 12 January 2015 until 13 April 2015. In  other words, the qualification period.  This certainly restricts the Tribunal’s options and it might be nice, perhaps, if the Tribunal had some discretion to alter that period to a later date if an applicant’s condition worsened.  I do not have that power. I am restricted, in terms of this review, to those dates.  Whilst that is certainly a significant restriction, on the other hand, because this is a pension we are dealing with, the law enables an applicant to make as many applications for any pension he or she may be entitled to, as often as he or she likes. 

13. The Tribunal sees many cases where an applicant might have had three, maybe even four attempts at getting a DSP before they qualify.  It is quite common for an applicant who has appealed a decision in 2015 to have made another, or possibly even two other attempts, and prior to the matter being heard in this Tribunal, be successful in one of those latter attempts at getting DSP.

14. Firstly I have to see if the applicant qualifies for 20 points or more under the Impairment Tables. If the applicant gets 20 points for any one ailment, by itself, there are no other requirements necessary. If the applicant gets 20 points or more, but does not get 20 points for any one table, then there are some further requirements. 

15. Section 94(1)(a) of the Act states that I have to be satisfied that a person has a physical, intellectual, or psychiatric impairment.  There is no dispute there, and accordingly I am satisfied the applicant has that.

16. I also have to be satisfied, apart from the 20 points, that the applicant has a continuing inability to work, including a requirement that the person has participated in a program of support, such as to gain employment, or indeed it can include extra study, and that is if a person does not have a severe impairment which gets 20 points in its own right.

17. I have to also be satisfied, in terms of any medical condition, that it has been fully diagnosed by an appropriately qualified medical practitioner, and that it has been fully treated and stabilised, and is more likely than not to persist for two years. 

18. In doing so I have to consider what evidence there is in support, including corroborating evidence, which is evidence from a medical practitioner, and that means a relevantly qualified medical practitioner, how the condition has been treated, and whether the treatment is going to continue, or what treatment is planned over the next two years.

19. If a person does not get 20 points for any one condition, I also need to look at whether they have participated for the 564 days, which is 18 months, out of the last three years, in a Program of Support (POS). 

    CONSIDERATION

20. In this case the evidence is that whilst the applicant in the three years prior to the relevant period was involved for a total of 631 days in a POS, unfortunately 138 of those days were ‘suspension’ days, which I assume to be because she was ill and could not participate, making the total of eligible days 493.  What that means is if the applicant gets 20 points or more, but not 20 points for any one condition, that would be fatal to her application.  To get over that, an applicant would need a letter sent to Centrelink by the job network provider stating that the applicant cannot participate in any program they offer because of his or her impairment. 

21. So what I now need to look at is, did the applicant, at the relevant time, get 20 points for any one of the tables, because if she did she would qualify without any need to participate in a POS.  There is evidence before the Tribunal which I need to look at, and that includes the evidence given by the applicant and her husband, which does need to be corroborated by independent evidence, namely a suitably qualified medical practitioner or health professional.

22. The evidence of the applicant, in summary, is that she suffered these conditions since not long after she arrived in Australia.  Indeed she said in evidence on the first occasion, and indeed again today, that probably for the last four or five years she has suffered depression, that she has had problems with her left shoulder, her spine, her ankle, which was broken in 2010, and also with her asthma, sarcoidosis, and diabetes. 

23. The main evidence of the applicant focused on her depression and anxiety, and the physical conditions which flowed from her shoulder, her spine, and her ankle condition.  Whilst suffering from diabetes, sarcoidosis and asthma, those three conditions seemed to be well and truly permanent, but relatively well-managed.  It is the other ones that caused her problems, and have done so effectively, from her evidence, and in a major way, from mid-2013 onwards when she had to cease work.  The respondent has correctly submitted that there are some discrepancies between what was told to the AAT1 and the JCA, and indeed on several of the forms, with what was told in evidence before the Tribunal, and I take that into account. 

24. Where there is a discrepancy in a situation like this, the normal course for a Tribunal or court is to give greater weight to evidence given closer to the time in question, and that is any evidence that might have been given, for example, between January and April 2015, or indeed before the AAT1, which was in 2016, as that evidence is closer to the relevant period I have to look at. I note that in evidence today, the applicant has indicated that limited weight should be placed on the JCA report because that was not conducted in the presence of an interpreter, despite the fact that she asked for one. 

25. The evidence given by the applicant, and supported in summary by her husband, is that effectively since she stopped work she has not driven, and that her husband, and more recently her eldest daughter, drive her everywhere, and whilst it is unclear from the evidence as to exactly what she could do in the relevant period, it is clear that at that time the housework and the cooking was done by her husband, and/or the children, and that when she went out, she would go out with her husband.  She gave evidence that basically because she did not sleep well, she would get out of bed late, she would lie on the couch or stay in bed, and that the husband and children would do the cleaning and cooking.  She indicated she used to cook and clean until 2013, although that was dropping off bit by bit, and that she has not since that time.  She stated that she could not walk very far, just up and down the driveway, and when she was upset she would go for a walk in the driveway for a few minutes. 

26. In terms of seeking employment and engaging in the POS she was enrolled in, she stated she would attend the POS office, sit there for about an hour, look for jobs on the computer, send her resume, and go home.  If she could not go, she would send a medical certificate with her husband, and they would re-arrange the appointment.

27. She indicated she could not use her left shoulder, and if she overdid the right shoulder she would get pain.  She could pick up things like a cup and tissues, but not from the shelf. She indicated she drops things. She indicated in cross-examination, for example, that she did walk from Wynyard Station to the Tribunal in Clarence Street on the day of the hearing, being supported by her husband.  She managed to get to the AAT1.

28. I take judicial notice of the fact, given that I travel to the Tribunal myself from Wynyard Station, that when a person gets off the train, they can take a lift to the right level, which in the applicant’s case she did, then walk out through the turnstiles, and walk to the elevators or lifts. That would be a distance of maybe 70 to 80 metres.  The applicant  would then walk out the door and cross the road to the Tribunal, probably another 50 metres. I would estimate the distance from getting out of the train to the Tribunal somewhere between 120 and 180 metres. 

29. When the applicant was here on 24 April 2017, she did manage to sit and concentrate for the first hour, but then she experienced problems.  It was then necessary for her to stand up, to move around, and the Tribunal took a series of short breaks to accommodate her.  After the break for the luncheon adjournment when there was about 30 minutes of cross-examination left, the applicant had one of her fainting attacks and was seen to be lying down on a bench outside the hearing room.  She was unable to continue and was assisted by a first aid officer and the matter was adjourned.

30. The applicant appeared at the resumed hearing by phone, supported by her husband.  It was clear that the applicant was not able to continue without a break after about half an hour, and two short adjournments were necessary until she finished her evidence.

31. Evidence of the applicant indicates that the fainting is a daily occurrence.  It is backed up by medical evidence to indicate that she does faint and it appears to be linked to her depression and when things overcome her and stress her, which is quite frequently.  As I indicated, it has been an occurrence for several years now and the medical reports back that up.

32. Her husband gave evidence and indicated that he does all the work, along with the children. That is not normal from the culture he comes from.  He does not necessarily do it willingly, he has to do it. The only time he really does not do it is when he has to do his own job search and undertake his responsibilities in relation to his particular benefits.

33. Several reports were sent to the Tribunal after the date in question.  A report was received  on 1 April 2016 from Dr Roman, stating medical problems in relation to severe lower back pain, neck pain, left shoulder pain, noting her severe difficulties with self-care, independent living and social and recreational activities, which relate to her depression, and stating that she suffers from depression which started in 2009 and is getting worse. The report noted that she had severe difficulties with behavioural, planning and decision making, concentration, social and recreation activities. He noted her asthma problems and in relation to diabetes at that stage, being April 2016, said it was causing severe problems and is uncontrolled, although she tries hard to control it.

34. Dr Oen provided two reports.  In a report dated 1 March 2016, he indicated the applicant had been under his care since 2014 and that symptoms were manifesting in frequent and unpredictable fainting, her family looked after her in the home environment, and most importantly, the circumstances of her life appear unchangeable, and as such it will be likely that her clinical picture will also be unchanged for the foreseeable future.

35. On 5 June 2016, Dr Oen prepared a further report and stated that as a result of the distress caused by the move to Australia, which proved to be somewhat disastrous, the applicant has developed bizarre and unusual patterns of fainting.  He talked of alcohol abuse and running away from family.  He rated her self-care and independent living skills as being moderately difficult, similarly her social and recreational activities. Concentration and task completion, he said varied from moderate to severe, and it was impossible to predict when she would not be able to concentrate on a task for more than ten minutes, and when she might be able to concentrate for longer. Regarding behaviour, planning and decision-making, he said she had great difficulty coping in any situations with stress, pressure or performance, and her reaction to that would either be to faint or to get up and leave.  He assessed her work and training capacity as being severely affected by her mental health and he felt it unlikely she could attend work, education or training on a regular basis, over a lengthy period, without either fainting or running away.  He did not think she would be able to work 15 hours per week, independent of a POS.

36. Dr Roman, her GP, gave evidence.  Indeed, he provided a written statement and also answered a number of questions put to him before the Tribunal.

37. He currently sees her three or four times a month.  In 2015, he saw her 12 times and during the relevant period I am looking at, five times.  He confirmed he had sent her to the specialists referred to in the evidence before the Tribunal and he certainly feels that now all of her conditions could be classed as fully stabilised and treated, certainly as at the date of hearing. In terms of the depression, he has sent her to a number of psychologists.  He refers to her depression and indeed some of the other illnesses, as being now a chronic condition.

38. He was adamant in terms of answering questions by counsel from the respondent and, in relation to the depression issue, he indicated that he did refer her to the psychiatrist in October 2014 who gave her a new drug to trial, which she would have done for some six months before he started prescribing the same drug in April 2015.  When asked whether he would agree that because of the different medication, the condition was not fully treated, he said, “It was treated, but not stabilised”.

1. As I indicated, I am not going to put much weight on what is in the JCA report, because of the issues as to whether the applicant understood it, but I do note, in relation to her application, in a 30-page document on 12 January 2015, she did indicate that, in answer to a question, “Do your disabilities, illnesses or injuries make it difficult for you to use public transport?” she said “No.” 

2. She gave evidence, as I said, at an earlier occasion before the AAT1.  As a result of her evidence, the AAT1 found that she suffered from depression, she had poor motivation, neglected her domestic responsibilities, was isolated socially, had mood swings and outbursts. The AAT1 found that, on the evidence before it, she was generally independent in her self-care, although she sat down in the shower, and her daughter had to wash her hair, and she had some difficulty with lifting, bending and overhead activities, and had reduced sitting, standing and walking tolerances.  Also, that she suffered from asthma, diabetes and sarcoidosis, which was well-managed, generally, and had limited functional impact.

3. The AAT1 found, at [39] in its reasons for decision, that the change of treatment for depression in 2014 would not significantly improve her mental health, without the aforementioned life changes, and therefore considered her depressive condition to be permanent for pension purposes.  The AAT1 made findings in relation to her mental health function (see [40] to [43] of the AAT1’s reasons for decision), using impairment Table 5, and allocated her 10 points. The AAT1 found that it did not support a view that she had severe difficulties with most of the six descriptors necessary, and therefore awarded 10 points, and not 20.

4. Having looked at what the AAT1 said at [40] to [43], assessing her as at the time it did, which is what I have to look at now, I would be inclined to agree with that assessment.

5. I would not, however, necessarily agree with the AAT1, who linked in the spinal, upper and lower limb pain to her perception of pain being part of the depressive condition.  Indeed, I would tend to agree, regarding Table 4, that points should be awarded, in that 5 points certainly would seem relevant to me, because of the difficulties she would experience in activities over head height, or bending down to knee level. Dr Oen indicated when she bent over, she could only bend over about 20 centimetres, and the tip of her fingers would be close to about a metre off the floor.

6. Indeed that would mean she could not bend to knee level, certainly without difficulty.  Indeed, it might be said she may also potentially qualify for 5 points at the relevant time for activities using her lower limbs (see Table 3), although I note in part two there, she certainly, at the time, was able to stand for more than 10 minutes and certainly could mobilise effectively, maybe using a walking stick.  Mobilise effectively meaning walk around a bit, so it might be difficult there.  But, I would certainly think 5 points for Table 4 could have been awarded.

7. So, largely agreeing with the AAT1, who had the benefit of considering evidence more closely to the period in question than I did, I would, assuming I accept the AAT1’s ruling that they consider the depression fully stabilised and treated at the time, accept that 15 points could have been awarded.

8. There is also considerable merit (and indeed Dr Roman seemed to concur) in the view  that it could be argued that the depression at the time was not fully treated and stabilised because of the change of medication, and that would then mean that, because of that, no points at that time could be awarded for depression. However, because that is an academic argument, I do not need to decide that.

9. It would seem to me, clearly, that the applicant may be entitled to 15 points and, if I am wrong there, and if she is entitled to some more points for another area, it would be no more than 5 in any of the other tables.  I cannot, in looking at the evidence, find any area where she would get 20 points for any one condition, as at the relevant time period.  Because of the fact that she has only done 493 days of the relevant program, she does need, at the time, 20 points for one of those ailments.

10. It is, however, clear to me, from the evidence and from observing the applicant, that I can make the following factual findings.

11. Firstly, because of the evidence corroborating her fainting attacks, and the fact that she effectively fainted at the Tribunal, I accept that as genuine. Secondly, because this is such a strict law and I have to look at a certain period of time, that whilst she does not qualify on the facts applicable at that time, it is clear that things have become worse since April 2015, especially in relation to the mental health issues.

12. I would agree with Dr Oen in his June 2016 assessment, that the applicant could not attend work, education or training regularly because of her mental health condition and her fainting attacks. He makes a lot of sense when he says she could not work 15 hours independently of a POS.  Indeed, I strongly think that that was the situation even two years ago.  But, because of the law in relation to the 20 points, unfortunately the decision made not to grant her the pension on that occasion, was correct.

13. Looking at the matter today and looking at Table 5, her mental health problems, I would have to say that she has severe difficulties with most of the following:

    (a)She has great difficulties with self-care and independent living.  Indeed, she does not live independently and her family does everything for her.  She well and truly qualifies on that score.

    (b)In relation to social and recreation activities and travel, she does not even travel alone to familiar areas.  She goes everywhere with a family member. Apart from relationships with her family, there do not appear to be any other social activities she goes to, other than occasionally going out with her husband. 

    (c)In terms of interpersonal relationships, she certainly has very limited social contacts. In fact, virtually none.

    (d)In terms of concentration and task-completion, an example is, “A person has difficulty concentrating on any task or conversation for more than 10 minutes,” she is able to do that still, but not all the time.

    (e)The fifth point is her “behaviour, thoughts and conversation are significantly and frequently disturbed,” and certainly, there is evidence of that. 

    (f)And finally, “The person is unable to work or attend education or training on a regular basis over a lengthy period due to ongoing mental issues,” clearly it seems she satisfies that.  And indeed, even during the period we are looking at, she had significant absences from work because of medical reasons.

14. In my view as at today, she would qualify for 20 points under table 5 and probably would have so qualified since early to mid-2016.

15. It is because of these mental health problems and especially because she faints on a daily basis, which I am satisfied is genuine, and there is corroborating evidence to that effect, which makes it seem impossible for her to participate properly in any program of work support or training, unless there were some considerable allowances made in any program, which I think would probably be quite difficult.

16. It appears some of her other conditions may have worsened, but in terms of her other ailments, I cannot see anywhere else where she would get 20 points for any one of them  at present, but no doubt she may well qualify for extra points for some other ailments.

17. It is highly unfortunate that she has had these conditions, especially as she was working up until 2013.  It is understandable that she feels she has let her family down, but it is all part of being a family, to look after each other, in sickness and in health and she can take pride in her children’s achievements, and the fact that she has such a loving husband.

18. What I would suggest to her is, if she wishes to pursue DSP, to have another go, to see Dr Roman again, to take Dr Roman the documents she has, especially the Impairment Tables, so he can do full assessments on not only the depression, which I believe he now can do as it has been diagnosed by an appropriate medical practitioner, but also all her other conditions and he can apply them in accordance with the Impairment Tables.

19. It may also be prudent to get a further updated report from Dr Oen.  It would be sensible for the applicant to go to have a chat to her local Centrelink office.  Or, indeed, perhaps getting some assistance from a community support person who speaks Arabic and who is aware of the requirements in relation to the number of impairment points needed and who may be able to help with any new application. 

    CONCLUSION

20. Formally, the decision of the AAT1 will be affirmed. The applicant can always make a new application for DSP, and also the unsuccessful party may lodge an appeal to the Federal Court. 

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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

Associate

Dated: 8 June 2017

Date(s) of hearing:	27 April & 11 May 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services