Moanes Kamal and Secretary, Department of Social Services
[2014] AATA 806
•30 October 2014
[2014] AATA 806
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1713
Re
Moanes Kamal
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr C Ermert, Member
Date 30 October 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Mr C Ermert, Member
SOCIAL SERVICES – Disability Support Pension – Impairment Tables – functional impairment – whether impairment rating of 20 points – 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) Determination 2011
Cases
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Lukin v Secretary, Department of Social Services [2014] AATA 563
Summers v Secretary, Department of Social Services [2014] AATA 165
REASONS FOR DECISION
Mr C Ermert, Member
30 October 2014
INTRODUCTION
In 2010 Mr Kamal, the Applicant, was diagnosed with ischaemic heart disease (IHD). In December 2010 he was treated with coronary artery bypass grafts. On 3 July 2013 Mr Kamal submitted a claim for disability support pension (DSP) to Centrelink. Centrelink is the service provider for the Department of Social Services, the Respondent. On 22 August 2013 a Centrelink employee decided that Mr Kamal was not qualified for the payment of DSP because he did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the original decision).
On 29 August 2013 Mr Kamal’s treating general practitioner (GP), Dr M Yacoub, completed a medical report stating that Mr Kamal had noninsulin-dependent diabetes mellitus in addition to his IHD. On the same day, Mr Kamal requested a review of the original decision. On 22 February 2014 an authorised review officer (ARO) from Centrelink affirmed the original decision.
Mr Kamal applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. On 20 March 2014 the SSAT affirmed the ARO’s decision. On 4 April 2014 Mr Kamal lodged an application with this Tribunal for a review of the SSAT’s decision.
This matter is the review of the SSAT’s decision.
THE HEARING
Mr Kamal represented himself at the hearing and gave evidence under oath, with the assistance of an interpreter in the Arabic language. He was supported by his wife who also spoke to the Tribunal. Mr Adrian Pascale, a departmental lawyer represented the Respondent.
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 also had before me the following Supplementary T-Documents (the ST-documents):
·ST1 – Report from Associate Professor A Ajani dated 19 June 2014;
·ST2 – Medical Report from Dr Yacoub dated 15 July 2014; and
·ST3 – Report from the Health Professional Advisory Unit (HPAU) prepared by Dr I Smith, dated 5 August 2014 (amended 15 September 2014).
I also accepted into evidence the Secretary’s Statement of Facts and Contentions dated 18 September 2014.
THE LEGISLATION
The relevant legislation is contained in the:
·Social Security Act 1991 (the Act);
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
·Social Security (Administration) Act 1999 (the Administration Act).
THE ISSUES
Section 94 of the Act prescribes the qualifications for DSP:
(1)A person is qualified for disability support pension if:
(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;
…
In the Secretary’s Statement of Facts and Contentions the Secretary accepts that during the relevant period Mr Kamal suffered impairments resulting from ischaemic heart disease and type II diabetes mellitus, and satisfied paragraph 94(1)(a) of the Act.
The remaining issues I must determine are whether, during the relevant period, Mr Kamal’s impairment attracted a rating of 20 points or more under the Impairment Tables. And if so, whether he has a continuing inability to work.
THE RELEVANT PERIOD
As a preliminary issue, Mr Pascale submitted that the Social Security (Administration) Act 1999 (the Administration Act):
provides the general rule that the start date of the relevant period is the date on which the claim is made (sections 13, 41, 42 and Schedule 2 subclause 3(1)). If a claimant is not qualified at the date of the claim but becomes qualified within the ensuing 13 weeks the start day is the date they became qualified (Schedule 2 subclause 4(1)).
Mr Pascale contended that as Mr Kamal lodged his claim on 3 July 2013, he needed to qualify for DSP between 3 July 2013 and 2 October 2013 inclusive, a period of 13 weeks.
In accordance with the provisions of the Administration Act, I find that the relevant period during which Mr Kamal needed to qualify for DSP is between 3 July 2013 and 2 October 2013 inclusive.
THE EVIDENCE
Mr Kamal stated that the SSAT’s decision was not fair and that the Member did not properly consider his condition. He said his heart is disabled. He stated he had provided to Mr Pascale reports by a medical professor and his GP. He said his GP reported that his conditions prevent him from working 15 hours per week.
In his cross-examination, Mr Pascale asked Mr Kamal if his condition had changed since July 2013. Mr Kamal said it was hard to define any particular point of time but his condition had slowly got worse. He said his condition was unpredictable and his heart palpitations could occur at any time of day, even while lying down and sleeping. Some days he could feel well but on other days his condition would recur. Mr Kamal said that overall his condition was worse now than in July 2013.
Mr Pascale took Mr Kamal to the Job Capacity Assessment Report dated 17 July 2013 in which the Job Capacity Assessor (JCA) recorded:
Symptoms of clients: reported he is able to walk up to 30 mins with a rest in-between (after 15 mins and client indicated SOB), is able to sit and stand for prolonged periods of time. Difficulties with climbing stairs. Client reported that sleep is disturbed as he experiences increased heart rate at times, the client reported some minor chest pains at times. client (sic) reported that his personal care is independent and clothing is independent with some minimal assistance form (sic) his wife. Client is able to managed (sic) domestic chores such as preparing a simple lunch and at times tends to his plants/watering them, all other domestic duties are performed by his wife as they always have been.
Mr Pascale asked if this was a fair summary of what Mr Kamal told the JCA. Mr Kamal initially said that he could not remember what he told the JCA but later accepted that he provided the information to the JCA in response to the JCA’s questions.
Mr Pascale then asked if the report was a fair summary of what he could do in July 2013. Mr Kamal said that sometimes he was able to do those things, but sometimes not. Mr Kamal said that he can do the daily duties but not every day. Mrs Kamal explained that watering the garden involved only the turning on of a tap as there was a watering system in place. She said that she does all the cooking and prepares his lunches. Mr Kamal added that his wife has always done all the domestic activities.
In answer to Mr Pascale’s questions, Mr Kamal said that:
·to get to the Tribunal hearing he drove to the station and caught a train to the city;
·He is able to drive for short distances; for longer distances his wife drives;
·He can walk to the train station and library which are about 100 metres from home, but must sit and rest before he can walk home;
·He does not know whether he can walk for 15 minutes as he does not look at his watch when walking;
·At home he does not take out the rubbish, collect mail from the letterbox, or wipe down benches; his wife does everything so that he can rest.
Mr Pascale asked when Mr Kamal last undertook any studies. Mr Kamal said he could not recall exactly when. However, he thinks he did his last studies in December 2013. He said he was doing a Centrelink program for Newstart Allowance. The venue was two train stops away. He said he attended part-time. He said the course involved sessions of instruction for two hours which were followed by a break, followed in turn by sessions of some extra-curricular activities such as a discussion session. Mr Kamal said the daily program was scheduled from 9 am to 3 pm. He said that if he did not feel well he would leave after the break. If he was not tired and was enjoying the sessions he would stay longer.
SUBMISSIONS
Mr Kamal said he had nothing to add to what he had already said.
Mr Pascale said he relied on the Secretary’s Statement of Facts and Contentions.
In regard to Mr Kamal’s IHD, Mr Pascale accepted that it was fully diagnosed, treated and stabilised. He submitted that both the JCA and the ARO assigned an impairment rating of five points to this condition. However, Mr Pascale agreed with the SSAT which found that 10 points was a more appropriate rating. He relied on the assessment of Dr Smith of the HPAU, noting that Dr Smith spoke with Dr Yacoub, in making his assessment. Mr Pascale submitted that Mr Kamal did not dispute the evidence of the JCA.
Mr Pascale contended there was no medical evidence that supported a rating of 20 points under Table 1: Functions requiring Physical Exertion and Stamina of the Impairment Tables, noting that the descriptors in paragraphs (1)(a) and (1)(b) would have to be satisfied to achieve that rating. He added that the assistance referred to in paragraph (1)(a) referred to assistance from another person, not the assistance of an object or physical aid, citing the decision in Summers and Secretary, Department of Social Services [2014] AATA 165.
Mr Pascale stressed that the decision must be made by considering Mr Kamal’s condition during the relevant period. Any deterioration in Mr Kamal’s condition since that time cannot be taken into account. In the Secretary’s Statement of Facts and Contentions, Mr Pascale submitted at paragraph 25:
The Federal Court and Tribunal have made it clear that any subsequent evidence or change in health is irrelevant to the issues which arise in the application except insofar as it may cast light on the position during the relevant period (see Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 per Giles J, Lukin and Secretary, Department of Social Services [2014] AATA 563).
In regard to Mr Kamal’s diabetes mellitus, Mr Pascale accepted that the condition was fully diagnosed, treated and stabilised. Mr Pascale contended that there was limited evidence of any functional impact. He submitted it should be rated under Table 1 together with the IHD. He contended that if the condition were rated separately it would constitute double counting which is not allowed under clauses 10(5) and 10(6) of the Impairment Tables.
Mr Pascale contended that the maximum impairment rating for Mr Kamal’s conditions is 10 points. He contended that Mr Kamal does not satisfy subsection 94(1)(b) of the Act and he does not qualify for DSP.
Mr Pascale added that, if required for consideration, his submissions regarding Mr Kamal’s inability to work are those contained in the Secretary’s Statement of Facts and Contentions.
Mr Kamal’s final submissions were that his medical and health conditions are apparent only to himself. He said he has provided medical reports from three separate sources all of which say that he is not able to work for 15 hours per week.
TRIBUNAL CONSIDERATIONS
I note Mr Kamal’s evidence that he told the JCA in July 2013 that he was able to:
·walk for up to 30 minutes with a rest after 15 minutes;
·sit and stand for prolonged periods of time;
·manage domestic chores such as preparing a simple lunch; and
·at times tend to his plants/watering them.
Further contemporaneous evidence is contained in Mr Kamal’s claim for DSP in which he indicated:
·he was studying for 20 hours per week at AMES Education,
·his conditions did not make it difficult for him to use public transport, and
·his conditions make it difficult to care for himself.
Medical evidence submitted during the relevant period is contained in the reports by Associate Professor Adjani dated 17 June 2013 and Dr Yacoub dated 27 August 2013. Professor Adjani reported the impact on Mr Kamal’ ability to function as significant reduction in endurance + chronic fatigue. Dr Yacoub reports endurance problems – Moanes gets tired easily, quickly because of his heart condition. Neither report provides detail of the impact of the condition on Mr Kamal’s ability to perform the functions specified in Table 1 of the Impairment Tables.
Although not related to his condition during the relevant period, I consider the following evidence casts light on the Mr Kamal’s condition at the time. Mr Kamal’s evidence at the hearing was that he is currently able to:
·walk 100 metres to the train station and library, and after a rest, to walk home again;
·use public transport, giving no evidence of a need for assistance;
·perform household activities but not every day, noting that his wife performs these domestic tasks for him, as she has always done.
In regard to sedentary tasks lasting at least three hours, I note Mr Kamal’s evidence that he was able to attend a training course involving two hours of instruction followed by other activities. Mr Kamal said he would stay for the other activities if he was not tired and if he was enjoying the activity.
The recent report by Associate Professor Ajani confirms the diagnoses of Mr Kamal’s conditions and notes his symptoms of chest pain and some breathlessness upon exertion. He states also I feel that his cardiac condition has impacted on his ability to perform work …. However, the report is not related to the relevant period. Furthermore, it lacks details of the functional impairment resulting from Mr Kamal’s conditions and does not assist in the assessment.
The recent report by Dr Yacoub records Mr Kamal’s current symptoms as endurance problems – gets tired easily, quickly because of his heart condition – Moanes cannot work because he gets from time to time some atypical chest pain – he cannot work 15 hrs per week. Again, the report is not related to the relevant period. Furthermore, it also lacks detail regarding the functional impairment resulting from Mr Kamal’s conditions and does not assist in the assessment.
In preparing his report Dr Smith of the HPAU reviewed all the available medical reports. In addition, he records that he called Dr Yacoub to obtain more detail. His report includes:
Dr Yacoub was forthcoming and knowledgeable regarding his patient. He confirmed that Mr Kamal was short of breath after walking 50-100 metres, and was able to selfcare and attend to light activities. He stated that it was theoretically possible for Mr Kamal to perform clerical activities, should such a job be available.
Although the comments attributed to Dr Yacoub are not related to the relevant period, I consider they throw light on Mr Kamal’s impairment during the relevant period. Mr Kamal’s evidence is that his condition has deteriorated since July 2013. Accordingly, I consider that the functional impairments recorded by Dr Smith would be no worse in the relevant period and are likely to be less severe than those indicated from the current evidence. I note that Dr Smith’s assessed impairment rating for the relevant period is 10 points.
The Impairment Table relevant to Mr Kamal’s conditions is Table 1 – Functions requiring Physical Exertion and Stamina. The descriptors for a rating of 20 points are that the person:
(a)Usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre of supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre of supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
After considering all the available evidence I am satisfied that Mr Kamal’s functional impairments are not consistent with those required for a rating of 20 points under Table 1.
The descriptors for a rating of 10 points are that the person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
I am satisfied that Mr Kamal’s functional impairments are consistent with those required for a rating of 10 points. Accordingly, I find that the correct impairment rating for Mr Kamal’s conditions during the relevant period is 10 points.
As Mr Kamal’s impairment rating is not 20 points or more he does not satisfy the requirements of section 94(1)(b) of the Act. Therefore, there is no need for me to consider whether Mr Kamal has a continuing inability to work under section 94(1)(c). I find that Mr Kamal does not qualify for the payment of DSP under section 94(1) of the Act.
I affirm the decision under review.
I certify that the preceding 45 (forty‑five) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member. [sgd]........................................................................
Associate
Dated 30 October 2014
Date of hearing 3 October 2014 Applicant In person Advocate for the Respondent Mr A Pascale, Department of Human Services
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