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

[2023] AATA 3000

Mounir and Secretary, Department of Social Services (Social services second review) [2023] AATA 3000 (29 August 2023)

Division:GENERAL DIVISION

File Number:          2022/8696

Re:Mustapha Mounir

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:29 August 2023

Date of written reasons:        20 September 2023

Place:Melbourne

The decision under review is affirmed.

.............[SGD]..............

Dr L Bygrave, Member

Catchwords
SOCIAL SECURITY – disability support pension – whether medical conditions are fully diagnosed, fully treated and fully stabilised – whether the Applicant’s impairments attract 20 points or more under the Impairments Tables – whether the Applicant has a continuing inability to work – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Dr L Bygrave, Member

20 September 2023

1. This decision and the reasons for this decision were delivered orally on 29 August 2023. The following paragraphs set out my reasons for this decision in writing in accordance with the request by the Applicant, Mr Mustapha Mounir, made on 2 September 2023.

   INTRODUCTION

2. Mr Mounir lodged a claim for disability support pension on 28 February 2022. 

3. Services Australia, both initially and on review, rejected Mr Mounir’s claim for disability support pension on the basis that he did not meet the requirements set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act).

4. Mr Mounir subsequently applied for review to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) and, on 30 September 2022, the AAT1 affirmed the decision of Services Australia.

5. On 20 October 2022, Mr Mounir made an application for review of the AAT1 decision to the General Division of the Tribunal.

6. The application was heard by the Tribunal in Melbourne on 29 August 2023. Following a request by Mr Mounir, the Tribunal consented for him to attend the hearing and give oral evidence by teleconference.

   RELEVANT LEGISLATION

   Qualification for disability support pension

7. The qualification criteria for disability support pension are set out in subsection 94(1) of the Act and include the requirement for Mr Mounir to show he has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment rating of 20 points or more under the Impairment Tables; and

   (c)a continuing inability to work.

8. Mr Mounir must satisfy the qualification criteria on 28 February 2022, the date he made his claim for disability support pension, or within the following 13 weeks: section 42 and Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the qualification period).

   Rules for assigning impairment ratings

9. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).

10. The Impairment Tables Determination includes instructions and rules for assessing impairment and the corresponding rating. Depending on how the impairment affects a person’s ability to function, it may be rated between nil and 30 points.

11. An impairment rating can only be given to a medical condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised, and more likely than not to persist for more than two years: subsection 6(4) of the Impairment Tables Determination.

12. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider whether it has been fully diagnosed by an appropriately qualified medical practitioner; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination.

13. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.

14. Reasonable treatment is described as treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person: subsection 6(7) of the Impairment Tables Determination.

    CONSIDERATION

15. The medical evidence shows Mr Mounir has been diagnosed with ischemic heart disease, diabetes, and tinnitus and hearing loss. Consequently, the Secretary accepts – and I also find – that Mr Mounir had physical impairments during the qualification period and therefore he satisfies paragraph 94(1)(a) of the Act.

16. It follows that the determinative issues in this matter are whether, during the qualification period, Mr Mounir had:

    ·an impairment rating of 20 points or more under the Impairment Tables as required by paragraph 94(1)(b) of the Act; and

    ·a continuing inability to work as required by paragraph 94(1)(c) of the Act.

    Does Mr Mounir have an impairment rating of 20 points or more under the Impairment Tables?

    Ischaemic heart disease

17. Mr Mounir has been diagnosed with ischaemic heart disease (myocardial infarction), which is verified in medical certificates completed by Dr Raymond Khoosal (general practitioner) dating from June 2018.  Relevant to the qualification period, Dr Khoosal set out the following information about Mr Mounir’s ischaemic heart disease in a medical certificate dated 4 January 2022: he has a diagnosis of myocardial infarction with date of onset, 6 June 2018; he experiences symptoms of recurrent chest pains and shortness of breath; he has had past treatment of stent surgery in 2018 and open-heart surgery in 2020, including a triple bypass. This diagnosis and treatments are further confirmed in a brief report by Dr William Wilson (cardiologist) dated 12 May 2022. Other evidence filed with the Tribunal shows Mr Mounir’s treatment includes medications and he has engaged in a cardiac rehabilitation program on two occasions.

18. Based on the medical evidence, I am satisfied that Mr Mounir’s ischaemic heart disease was fully diagnosed, fully treated and fully stabilised during the qualification period.

19. Mr Aston Vass (exercise physiologist) provided a written report dated 28 June 2021 and spoke with Services Australia on 12 November 2021 in relation to Mr Mounir’s functional capacity. Mr Vass stated Mr Mounir experiences symptoms of shortness of breath and fatigue from ischaemic heart disease, and attends exercise physiology appointments although he ‘had a break from attending onsite during COVID-19 pandemic lockdown’.[1] Mr Vass provided other details that included that Mr Mounir has:

    Shortness of breath and fatigue on physical exertion, including for: walking (could manage about 10 minutes at normal pace & would then require a break); stair climbing (struggles with the 10 steps at the clinic) & would have difficulty with home tasks such as vacuuming, sweeping or changing bed sheets; but would be able to manage light duties such as dishes or food preparation, if not requiring prolonged standing or lifting.[2]

    [1] Exhibit T-T67, 209.

    [2] Exhibit T-T67, 209.

20. Notably, this assessment by Mr Vass is consistent with Mr Mounir’s oral evidence to the Tribunal. At the hearing, Mr Mounir said he experiences shortness of breath and chest pain when undertaking daily activities. He said he lives alone in a second-floor apartment and needs to walk up and down stairs to access his apartment. Mr Mounir said he is able to walk, albeit slowly, for approximately 15-20 minutes and rests if he has shortness of breath and chest pain. He said he is able to walk to the local shops from his home approximately every second day and can take public transport by himself without the assistance of another person.

21. Mr Mounir said he receives assistance from a carer (provided by his local council) who attends his apartment once a fortnight to change his bedsheets, clean and vacuum. He said he also receives assistance with shopping, as he is unable to walk upstairs to his apartment while carrying groceries. He said he is able to do his own washing/light laundry, wash dishes and do ‘a little bit’ of cooking, so long as he does not need to stand for long periods. He confirmed he can undertake paperwork and light sedentary activities such as participating at the Tribunal hearing via teleconference.

22. I consider the relevant table in accordance with the Impairment Tables Determination is Table 1 – Functions requiring Physical Exertion and Stamina. Based on the functional impact of Mr Mounir’s ischaemic heart disease on activities requiring physical exertion or stamina, I am satisfied Mr Mounir meets the descriptors of moderate functional impact and assign 10 points. I am not able to assign more than 10 points as Mr Mounir does not meet the descriptors for 20 points under Table 1 – Functions requiring Physical Exertion and Stamina because there is no evidence that he requires the assistance of another person to walk around or into a shopping centre or supermarket, to use public transport, or to perform light day to day household activities.

    Diabetes

23. A medical certificate by Dr Khoosal dated 4 January 2022 stated Mr Mounir was diagnosed with diabetes from a ‘young age’, and set out a history of past and current (as at 4 January 2022) treatment.[3]

    [3] Exhibit T-T78, 221.

24. Further medical evidence filed with the Tribunal shows Mr Mounir:

    ·attended a specialist diabetes clinic at the Royal Melbourne Hospital on 26 April 2021, 6 September 2021 and 17 January 2022;

    ·had a discharge diabetes management plan written for him on 17 October 2022, more than four months after the qualification period; and

    ·attended insulin stabilisation appointments at the Royal Melbourne Hospital Diabetes Education Service in December 2022, more than six months after the qualification period.

25. I am satisfied the medical evidence shows Mr Mounir participated in further clinical treatments for diabetes after the qualification period, and Mr Mounir also confirmed this at the hearing. I therefore find Mr Mounir’s condition of diabetes was fully diagnosed, but not fully treated or fully stabilised during the qualification period. For this reason, I am unable to assign any points for Mr Mounir’s diabetes under the Impairment Tables Determination.

    Hearing loss and tinnitus

26. The medical evidence shows Mr Mounir has been diagnosed with hearing loss and tinnitus. I have had regard to a medical report by Ms Elizabeth Rose (consultant otolaryngologist) dated 21 January 2021 that stated Mr Mounir had experienced ‘sudden hearing loss in his right ear’ in April 2020, but his hearing had come ‘back to normal with a mild high frequency loss’ and ‘no abnormality of the inner ear’.[4] A report by Mr Orlando Zilich (audiologist) dated 15 March 2021 stated Mr Mounir reported problems with his hearing and communication in environments with background noise and due to tinnitus, and an audiometry assessment ‘showed a mild to moderate, mixed hearing loss in the left ear and a moderately severe to severe, mixed hearing loss in the right ear’.[5] Mr Zilich proposed Mr Mounir trial ‘bilateral hearing aids’.[6]

    [4] Exhibit T-T23, 130.

    [5] Exhibit T-T33, 145.

    [6] Exhibit T-T34, 147.

27. Mr Mounir’s oral evidence at the Tribunal hearing was consistent with Mr Zilich’s reports.  Mr Mounir said he experiences tinnitus in his right ear ‘all the time’ and ‘ringing and buzzing’ that is ‘severe’. He said he uses a hearing aid in his right ear to participate in conversations, such as the hearing, and also has a hearing aid for his left ear but does not always use it. He said he does not answer his telephone when he is outside as he has difficulties with background noise and has to shout.

28. Mr Mounir told the Tribunal he was able to participate in the hearing using his telephone on speaker. I note that Mr Mounir communicated his views about relevant matters and clearly answered questions at the hearing. He said he was able to participate in the hearing because there was no background noise and he used his right ear hearing aid.

29. Based on the evidence, I am satisfied that Mr Mounir’s hearing loss and tinnitus was fully diagnosed, fully treated and fully stabilised during the qualification period. The relevant table under the Impairment Tables Determination is Table 11 – Hearing and other Functions of the Ear. I find this condition has a mild functional impact on activities involving hearing (communication) function or other functions of the ear for Mr Mounir and assign 5 points in accordance with the descriptors in Table 11 because Mr Mounir has difficulty hearing with background noise, experiences ringing in his ears and uses a hearing aid in his right ear. I am unable to assign 10 points for Mr Mounir’s hearing loss and tinnitus under Table 11 of the Impairment Tables Determination because there is no evidence that he meets the descriptors of a moderate functional impact on activities involving hearing when he uses a hearing aid or other assistive listening device, or that he requires sign language interpreting. Mr Mounir participated in the hearing by telephone without a T switch and provided no evidence that he is partially reliant on lip-reading or a recognised sign language.

    Inflammatory arthritis

30. An undated medical report from Dr Mel Carroll (rheum SMR) stated Mr Mounir had a ‘new diagnosis’ of ‘inflammatory arthritis’ with onset in June 2022.[7] As this diagnosis was made after the qualification period, I cannot make a finding that this condition was fully diagnosed, fully treated and fully stabilised during the qualification period. For this reason, no points can be assigned for this condition under the Impairment Tables Determination.

    [7] Exhibit ST-S20, 38.

    CONCLUSION

31. Based on the evidence, I am not satisfied that Mr Mounir met the requirement in paragraph 94(1)(b) of the Act during the qualification period because his impairments were not rated at 20 or more points under the Impairment Tables.

32. As I find Mr Mounir did not meet the disability support pension criteria in paragraph 94(1)(b) of the Act, it is not necessary to consider whether he had a continuing inability to work as required by paragraph 94(1)(c) of the Act.

    DECISION

33. The decision under review is affirmed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.................[SGD].................

Associate

Dated: 20 September 2023

Date of hearing:	29 August 2023
Applicant:	Self-represented
Advocate for the Respondent:	Ms Georgia Wilson
Solicitors for the Respondent:	Minter Ellison