Monira MAKRAM and Secretary, Department of Social Services

[2015] AATA 408

[2015] AATA  408

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4957
Re	Monira MAKRAM
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	10 June 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

10 June 2015

BACKGROUND

1. On 3 October 2013 Ms Makram lodged a claim for Disability Support Pension (DSP) on the basis that her medical conditions were having an impact on her ability to function.

2. In the claim form Ms Makram described her medical conditions as “back pain, depression, memory not good”.

3. Ms Makram’s claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not have a continuing inability to work and had not actively participated in a program of support (POS).

4. On 4 September 2014 the Social Security Appeals Tribunal (SSAT) found that Ms Makram did not qualify for DSP on the basis that she did not satisfy the requirements of section 94(1)(b) of the Social Security Act 1991 (the Act) in that her impairment rating under the Impairment Tables was not 20 points or more.

5. In this proceeding Ms Makram seeks review of the SSAT’s decision of 4 September 2014.

6. At the hearing Ms Makram was self-represented and assisted by an Arabic language interpreter.

   ISSUES

7. In order to qualify for DSP Ms Makram had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim in accordance with the requirements of the Social Security (Administration) Act 1999, that is, between 3 October 2013 and 2 January 2014 (the claim period).

8. Section 94(1) of the Act provides that 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 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

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

9. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

10. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and

    ·fully treated (paragraph 6(4)(b)), and

    ·fully stabilised (paragraph 6(4)(c)).

11. Also, the Introduction to each Impairment Table stipulates that self-report of symptoms alone is insufficient and that there “must be corroborating evidence of the person’s impairment”.

12. In addition, Table 5 of the Determination is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition. The Introduction to Table 5 states that 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 a psychiatrist)”.

13. It is agreed that Ms Makram suffers a spinal condition (lumbar spine degeneration) and mental health condition (depression and anxiety) and therefore satisfies s 94(1)(a) of the Act.

14. The respondent accepts that Ms Makram’s spinal condition is permanent for the purposes of the Impairment Determination and contends that a rating of 10 points under Table 4 can be assigned.

15. In respect of Ms Makram’s mental health condition the respondent contends that during claim period this condition was not fully diagnosed, fully treated and fully stabilised and as such a rating under Impairment Table 5 cannot be assigned.

16. The respondent also contends that Ms Makram could not satisfy section 94(1)(c) of the Act. As she did not have a severe impairment as defined in the section 94(3B) of the Act and had not actively participated in a POS as required by section 94(2)(aa) she did not have a continuing inability to work.

17. After due consideration of the evidence before the Tribunal I am satisfied that Ms Makram’s  spinal condition is permanent and that this condition has a moderate impact on her activities involving spinal function so that a rating of 10 points under Table 4 can be assigned.

18. Therefore, the definitive issues in this proceeding are whether during the claim period:

    ·Ms Makram’s mental health condition was fully diagnosed, fully treated and fully stabilised; and if so

    ·whether a rating of 10 points or more under Table 5 could be assigned; and if so

    ·whether Ms Makram had a continuing inability to work.

    Ms Makram’s Mental Health Condition

19. There is evidence before the Tribunal that Ms Makram has suffered symptoms of depression and anxiety since 2012 and has had intermittent treatment with counselling and anti-depressant medication.

20. However there is no evidence that she had been seen by a psychiatrist or clinical psychologist until July 2013.

21. In a letter dated 24 September 2013 Mr Girgis, a clinical psychologist, confirms a diagnosis of Major Depressive Disorder and indicates a treatment program involving Cognitive Behavioural Therapy and “psycho-education”.

22. Mr Girgis indicates that the treatment plan will exceed 24 months but provides no details as to Ms Makram’s clinical impairment at that time, the frequency of any treatment or the likely prognosis.  

23. At the hearing Ms Makram told the Tribunal that she was living in Queensland between May 2013 and December 2013 and that she travelled back to Sydney for consultations on about three to four occasions over a six month period.

24. In a report dated 12 November 2014, which appeared to be largely a copy of the earlier letter, Mr Girgis confirms Ms Makram “has been a client of services since July 2013 and continues to attend the clinic”.

25. Mr Girgis indicates that he has assessed “the degree of her mental condition as severe” but provides no reasons to support his assessment. He also states that Ms Makram’s mental state “has been fully treated and stabilised” but provides no relevant details to support his opinion.

    CONDIDERATION

26. After due consideration of all the evidence before the Tribunal, I am satisfied that during the claim period Ms Makram’s mental health condition was fully diagnosed. However, in my view, there is insufficient evidence to support a conclusion that the condition was fully treated and stabilised. Therefore, during the claim period Ms Makram’s mental health condition was not permanent for the purposes of the Impairment Determination and a rating under Table 5 cannot be assigned.

27. Accordingly, during the claim period Ms Makram had a composite rating under the Impairment Tables of only 10 points and therefore did not satisfy the requirements of section 94(1)(b) and was not qualified for DSP.

28. Although it not necessary for the Tribunal to consider whether during the claim period Ms Makram had a continuing inability to work I believe it would be useful to comment on this issue.

29. If I had accepted that during the claim period Ms Makram’s mental health condition was permanent I am satisfied that there was insufficient evidence to support a conclusion that a rating of greater than 10 points could have been assigned.

30. This means that Ms Makram did not suffer a severe impairment as defined in section 94(3B) and was therefore required to have actively participated in a POS as outlined in the Social Security (Requirements and Guidelines- Active Participation for Disability Support Pension) Determination 2011(the POS Determination).

31. Although Ms Makram did intermittently participate in a POS, the documentary evidence before the Tribunal indicates but she had not satisfied the requirements as outlined in the POS Determination and therefore would not have qualified for DSP.

    DECISION

32. The decision under review is affirmed.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

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

Dated 10 June 2015

Date of hearing	15 May 2015
Applicant	In person
Solicitor for the Respondent	L James; Department of Human Services