Mohammad Oriakhel and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 448
•16 July 2012
[2012] AATA 448
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5106
Re
Mohammad Oriakhel
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Ms G Lazanas, Senior MemberDate 16 July 2012 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Presiding Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables – job capacity – functional effect
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
REASONS FOR DECISION
Ms N Bell, Senior Member
Ms G Lazanas, Senior Member
Mohammad Oriakhel arrived in Australia from Afghanistan, via Pakistan, in 2008. He came as a refugee, having sustained a gunshot wound at the hands of the Taliban in Afghanistan in 1997, after working as a journalist in the media relations division of an Afghanistan government department.
Mr Oriakhel claimed disability support pension on 7 March 2011. A Centrelink officer rejected Mr Oriakhel’s claim on the basis that he had insufficient points under the Impairment Tables under the Social Security Act 1991 to qualify for disability support pension. The officer also found that Mr Oriakhel is able to work for 15 to 22 hours per week. This decision was affirmed on further internal review and by an authorised review officer and the Social Security Appeals Tribunal.
Mr Oriakhel currently suffers from:
(a)Eye squint;
(b)Ischaemic heart disease;
(c)Gastric reflux;
(d)Hypertension;
(e)Depression; and
(f)A painful left leg.
ISSUES
Section 94 of the Act provides for the following requirements for eligibility for disability support pension:
i) a physical, intellectual or psychiatric impairment; and
ii) an impairment rating of at least 20 points or more under the Impairment Tables in Schedule 1B to the Act; and
iii) a continuing inability to work.
The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Mr Oriakhel during the period from the date of his claim and for the following 13 weeks may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the Impairment Tables as they were during that 13 week period, that is, from 7 March to 6 June 2011.
It is not in dispute that Mr Oriakhel has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in this application.
DOES MR ORIAKHEL HAVE AN IMPAIRMENT RATING OF AT LEAST 20 POINTS?
The introduction to the Impairment Tables provides that in order for a medical condition to be allocated points under the Tables, it must be diagnosed, treated and stabilised. The condition may then be accepted as permanent if it is more likely than not to persist for more than two years.
We will deal with each of Mr Oriakhel’s conditions in turn.
Eye Squint
Mr Oriakhel said he has had a problem with his left eye since he was ten years old. He described it as photosensitive, out of alignment, with deteriorating vision and gradually becoming worse. He has been referred to Professor Paul Mitchell at Westmead Hospital and has an appointment to see Dr Stephen Hing, Ophthalmologist, in relation to possible surgery.This condition has not yet been treated and stabilised. It follows that it cannot attract an impairment rating.
Ischaemic Heart Disease
Mr Oriakhel saw Dr Aggrey Kiyingi, cardiologist at the end of July 2011. This date is outside the relevant period for assessment of qualification for disability support pension. In his report of 26 July 2011, Dr Kiyingi described the various examinations and investigations he had performed, and his conclusion that “there is a strong suspicion of underlying myocardial ischaemia”. Dr Kiyingi said he intended to start Mr Oriakhel on a therapeutic trial of medication. It could not be said that, during the relevant period, Mr Oriakhel’s heart condition was diagnosed, treated and stabilised. Consequently, the condition cannot be rated under the Impairment Tables.
Gastric Reflux
Mr Oriakhel said he previously suffered from gastric reflux but now he is able to control it with medication. It has no functional effect on him and so it cannot attract an impairment rating.
Hypertension
Mr Oriakhel said his blood pressure is now at a normal level after a course of blood pressure medication. With no functional effect on him, Mr Oriakhel’s hypertension cannot be assessed.
Depression
Notwithstanding his experiences in Afghanistan, Mr Oriakhel said his depression started when he was unable to find adequate housing. He said he and his wife and two children are living in one bedroom. He has applied to the NSW Department of Housing for emergency housing but says he was told that because he is not a pensioner then he does not qualify and will have to wait years before appropriate accommodation is available to him.
However, he also described the nightmares he has as a result of his experiences in Afghanistan. He said he has had counselling for these things in the past.
More recently, he has seen a counsellor for depression. Ms Popal, psychologist, said in her report of 30 January 2012 that Mr Oriakhel had been receiving treatment for anxiety and depression since 9 January 2012. She described his presenting problem as his unsuccessful search for accommodation for himself and his family, his nightmares about being attacked and his grief over his mother’s recent death.
Clearly Mr Oriakhel’s psychological condition had not been treated prior to the relevant period. It cannot be assessed under the Impairment Tables.
Painful Left Leg
There is no dispute that Mr Oriakhel’s leg condition is permanent, having been fully diagnosed, treated and stabilised.
Mr Oriakhel said he can only walk for 10 minutes at a slow pace before he has to rest before walking further. He described walking to the bus stop closest to his home at Parramatta to catch a bus to Parramatta station and said he has to stop and have a rest along the way. Even when shown a map, he was unable to point to the position of the bus stop. He was unable to approximate the distance he is able to walk in 10 minutes.
Mr Oriakhel attends English lessons for three hours on five days per week. He said he takes the bus to Macquarie Street, Parramatta where the lessons are held. He also attends his general practitioner, Dr Safi, regularly, close to the station, and takes the bus there.
Mr Oriakhel denied telling Dr Safi that he cannot walk more than a couple of hundred metres, but agreed that it is easier for him to walk when it is warm.
He said he has the same difficulties with walking that he had in the relevant period.
He said he is unable to squat and denied having told the Social Security Appeals Tribunal that he can. Rather, he did not understand what was meant by the word “squat”. Similar difficulty in communication arose in the hearing before this tribunal, even with the assistance of an interpreter.
The table relevant to the lower limbs is table 4. It provides:
TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NILWalks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TENDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTYDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTYPain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
·requires quad stick, crutches or similar walking aid, or
·is unable to transfer without assistance.
FORTYUnable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
We consider that Mr Oriakhel’s leg pain causes a moderate rather than major interference with walking. Although it may not be by choice, given the requirements placed on him to attend English language lessons for five mornings per week, he demonstrates an effective and independent mobility, travelling by bus to his classes and to appointments with his doctors. We accept his evidence that he is unable to squat.
We cannot be comfortably satisfied that Mr Oriakhel’s pain restricts him to walking to 50-250m or less at a time. The evidence on the issue of how far Mr Oriakhel can walk was contradictory or unavailable in part.
For these reasons we conclude that Mr Oriakhel’s leg condition attracts an impairment rating of 10 points under the Impairment Tables.
On the basis of the above conclusions, Mr Oriakhel does not meet the requirement for 20 points under the Impairment Tables. It follows that he does not qualify to be paid disability support pension. There is no need to reach a conclusion on his continuing ability to work.
We are mindful of Mr Oriakhel’s heart condition and the eye squint for which he is about to obtain treatment. It may be that once treatment has concluded and the conditions have stabilised he would benefit from making another claim for disability support pension so that his current diagnosed, treated and stabilised conditions may be assessed against the Impairment Tables. We also note, however, that amendments to the Social Security Act introduced amended Impairment Tables and no assessment of any of Mr Oriakhel’s conditions has been made under those amended tables. It may be that such an assessment would yield an even less favourable result for him.
Finally, we are mindful of Mr Oriakhel’s difficult and inadequate accommodation with his wife and their two children living in one room. We acknowledge the effect of this on his psychological wellbeing and we encourage the administrators of public housing to recognise his need for adequate and alternative accommodation.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of ......[Sgd]..................................................................
Associate
Dated 16 July 2012
Date of hearing 27 June 2012 Applicant
Solicitors for the Respondent
In person
Ms G Heggen, Centrelink Program Litigation and Review Branch
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