Moustafa Saad and and Secretary, Department of Social Services
[2015] AATA 160
•19 March 2015
[2015] AATA 160
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0495
Re
Moustafa Saad
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
File Number(s)
2014/0747
Re
Zeinab Saad
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 19 March 2015 Place Sydney The decisions under review are affirmed.
........................................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY - disability support pension - wife pension - cancellation of payments - qualification for indefinite portability - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 94, 1218AAA
CASES
Freeman v Secretary, Department of Social Security (1988) 87 ALR 506
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Professor R McCallum AO, Member
19 March 2015
BACKGROUND
The Applicants, Mr Moustafa Saad and Mrs Zeinab Saad are a married couple. They married in 1985 and they have one daughter and one son.
In 1987, when Mr Saad was working at a Streets Ice cream factory, he suffered an injury to his left hand consisting of lacerations and burns. He underwent numerous surgical procedures and skin grafts.
On 12 August 1993, Mr Saad was granted Disability Support Pension (DSP) because of his left hand injury. Subsequently, Mrs Saad was granted a Wife's Pension (WFD).
On 21 August 1999, Mr Saad's DSP was cancelled due to an overseas absence, however, on 1 September 1999, Mr Saad's DSP was restored.
On 18 March 2013, Mr Saad notified Centrelink that he was intending to travel to Lebanon where he wished to reside permanently. Centrelink advised Mr Saad that a medical assessment would be required to determine if he was medically qualified to receive DSP under the indefinite portability provisions.
On 19 March 2013, Centrelink wrote to Mr Saad requiring him to complete forms before undergoing an assessment to determine whether he can be paid DSP for an indefinite period of time. Mr Saad was notified that he would be reviewed under the new Impairment Tables which commenced operation on 1 January 2012.
On 17 April 2013, a medical report was completed by Dr Awada who referred to severe burn left forearm, hypertension, hyperlipidaemia, diabetes mellitus and anxiety. Mr Saad stated on his form that he had a left hand problem, headaches, diabetes and blood pressure.
On 20 May 2013, a job capacity assessment (JCA) was undertaken, and on 31 May 2013, the JCA report was submitted for clearance. On 16 September 2013, the matter was referred to the Health Professional Advisory Unit (HPAU) for a medical advice. Mr Richard Knoke, Registered Nurse with HPAU, assigned 10 points under table 14 for upper limb injury, nil points for hypertension and nil points for hyperlipidaemia. The anxiety was not considered to be fully diagnosed, treated and stabilised.
On 27 September 2013, the Job Capacity Assessor assessed Mr Saad's impairments as 10 points under table 14 for severe burn left forearm, nil points under table 1 for diabetes, nil points under table 1 for hypertension and nil points under table 1 for hyperlipidaemia. The migraine and anxiety were not fully diagnosed, treated and stabilised. Mr Saad was considered to have a baseline work capacity of 15-22 hours per week.
On 27 September 2013, a decision was made to cancel Mr Saad's DSP because he was assessed as having an impairment rating of 10 points under the Impairment Tables. It was also determined that Mr Saad did not have a “severe impairment” or “no future work capacity”. Accordingly, he was not eligible for indefinite DSP portability and would be subject to the general portability rules if travelling overseas. When Mr Saad was notified, he requested a review of the decision.
As a result of the decision to cancel Mr Saad's DSP, Mrs Saad's WFD was also cancelled and she was notified of the decision, and she also requested a review of this decision.
On 15 October 2013, the Authorised Review Officer (ARO) affirmed both cancellation decisions. Their payments of DSP and WFD continued to be paid pending review.
On 15 October 2013, Mr Saad appealed to the Social Security Appeals Tribunal (SSAT), and on 1 November 2013, Mrs Saad also appealed to the SSAT.
On 10 January 2014, the SSAT affirmed the decisions under review by agreeing with the findings of the ARO.
On 29 January 2014, Mr Saad lodged an application for review of the decision with the Administrative Appeals Tribunal (AAT), and on 11 February 2014, Mrs Saad lodged an application for review with the AAT.
On 29 October 2014, a further JCA was undertaken with Mr Saad. The assessor made the following findings with respect to Mr Saad's impairments. The Assessor assessed the left forearm burn at 10 points under Table 14, the diabetes at zero points under Table 1, the hypertension at zero points under Table 1, and the hyperlipidaemia at zero points under Table 1. The assessor found that Mr Saad's anxiety and depression, headaches and migraines, and lumbar spine lower back pain to be not fully diagnosed, treated and stabilised. The assessor considered Mr Saad's baseline work capacity as 8 to 14 hours per week with future work capacity with intervention increasing to 15 to 22 hours per week within the next two years.
THE LEGISLATION
The relevant provisions governing eligibility for DSP and for indefinite portability are to be found in the Social Security Act 1991 (Cth) (the SS Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Mr Saad's circumstances, sub-section 94(1) relevantly provides:
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;
The criteria for indefinite portability of social security payments are set out in section 1218AAA and in section 94 of the SS Act. Section 1218AAA relevantly provides:
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years. ...
(5) In this section:
work means work:
(a) that is on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
Section 94 relevantly provides:
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. ...
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
THE CONCESSIONS OF THE RESPONDENT
In the Respondent Statement of Facts and Contentions, it is conceded in paragraph 33 that "...at the time of cancellation, Mr Saad had a 'physical, intellectual or psychiatric impairment' as required by section 94(1)(a) of the Act”.
The Respondent also made the following concession that "Mr Saad was granted DSP prior to 11 May 2005 and therefore, he is subject to the 30 hour rule when determining his capacity for work or retraining" [76] and accordingly "...the Respondent accepts that Mr Saad cannot work at least 30 hours per week and meets the criteria for a continuing inability to work under section 94(1)(c) of the Act” [93].
THE RELEVANT DATE ON WHICH TO DETERMINE MR SAAD'S ELIGIBILITY FOR DSP
This Tribunal is reviewing two decisions. First, the decision made on 27 September 2013 to cancel Mr Saad's DSP, and second, the decision which was also made on 27 September 2013 to cancel Mrs Saad's WFD. The first decision also meant that Mr Saad could not avail himself of the indefinite portability rules as he was no longer entitled to DSP. Furthermore, if Mr Saad was no longer eligible for DSP, then Mrs Saad was no longer eligible for WFD.
In Freeman v Secretary, Department of Social Security (1988) 87 ALR 506, Davies J sitting in the Federal Court of Australia, discussed the nature of reviews by the AAT when reviewing cancellation decisions. Davies J said at [12]:
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal's consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal's jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration ...
THE ISSUES WHICH THE TRIBUNAL MUST DECIDE
The Primary issue I must decide is whether the decision to cancel Mr Saad's DSP on 27 September 2013 was correct. As the Respondent has conceded that Mr Saad meets the criteria specified in paragraphs (a) and (c) of sub-section 94(1) of the SS act. I am simply required to assess whether mr Saad's impairments can be assessed at 20 points under the impairment tables.
If I find that Mr Saad's impairments are assessed at 20 points under the impairment tables, the decision to cancel his DSP will be overturned. This will mean that the decision to cancel Mrs Saad's WFD will also be overturned.
If I also find that Mr Saad has a severe disability, it will be necessary to examine whether or not he meets all of the criteria in the indefinite portability rules. However, if I find that Mr Saad does not have a severe disability, it will be unnecessary to discuss the indefinite portability rules.
THE EVIDENCE OF THE APPLICANTS
The Applicants both gave sworn evidence.
Mr Saad gave his evidence with the assistance of an Arabic interpreter for his oral English appeared to be limited.
Mr Saad explained that his left hand became caught in a machine in 1987 and that it was burned. Mr Saad said that several nerves were transferred from his leg to his injured hand. He said that he can raise his left hand up to shoulder height but no farther. His wife assists him in the shower. He can put on tracksuits and t-shirts, but he said that he can't put his socks on without help. He said that if he goes grocery shopping with his wife he can pick up small items from the shelves with his right hand.
Mr Saad said that his left hand is painful and that he takes morphine in the winter when the pain is worse.
Mr Saad said that he takes medications for diabetes, for blood pressure and for his cholesterol, however, all are well managed.
In relation to his back pain, Mr Saad said that he was in a car accident about four months ago, and since then his pain has become worse.
Mr Saad said that he suffers from depression which came on after his injury. He used to play soccer, but now he just stays at home and watches television. He said that in April 2014 he saw Dr Monir Younan who is a psychologist. Certificates from Dr Monir Younan from April 2014 onwards are before the Tribunal. He said he saw psychologists in the past but he doesn't remember much about these consultations. Mr Saad says he takes valium for his depression. Mr Saad said that he and Mrs Saad live in the garage of a house owned by their two children, to whom they pay rent.
Mr Saad said he wished to live permanently in Lebanon as most of his family was there. He said his wife phoned Centrelink about this. He said he didn't understand that he would be assessed under the new rules, and he hoped that this Tribunal could explain them to him.
Mr Saad was taken to several Centrelink documents which he had signed. He said that his wife fills them in because he cannot read English.
Mrs Saad also gave evidence through an Arabic interpreter. Mrs Saad does speak reasonable English, but she was more comfortable utilising the services of the interpreter.
Mrs Saad said that Mr Saad receives Newstart Allowance and she receives Carer Payments. Mrs Saad said that if she and her husband had known that Mr Saad's pension would be in jeopardy by having him re-assessed, they would never have sought indefinite portability.
Mrs Saad said that she assists her husband with bathing and dressing.
Mrs Saad was taken to several social security forms which she had filled in. She conceded that she may have been mistaken when ticking various boxes.
THE DOCUMENTS BEFORE THE TRIBUNAL
I have examined the following documents which are before this Tribunal. They are: the Respondent’s statement of facts and contentions; the documents produced by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), which are known as the T documents; a Medical Report by Dr C K Awada dated 12 September 2014; the JCA report dated 25 September 2014; and a series of medical certificates and letters from the Applicants, including two medical certificates handed to the Tribunal on the morning of the hearing.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of the Applicant are worth twenty points under the impairment tables. This requires a few words of explanation. The impairment tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). This Determination also contains the rules for the application of the impairment tables.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the impairment tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.
Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: 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(6) provides, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.
It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.
CONSIDERATION
I am now required to examine Mr Saad's impairments to determine whether their assessment under the impairment tables warrants an assessment of 20 points.
In relation to Mr Saad's left arm impairment, I have examined the medical reports and Mr Saad's evidence. Table 2 of the impairment tables is titled "Upper limb functions". If I were to assess Mr Saad under table 2, I would assess his impairment as having at most only a mild impact worth no more than 5 points. However, in my view, the appropriate table is table 14 of the impairment tables which is titled, "Functions of the skin" because his skin was burnt. In my view, his left arm condition has a moderate impact on his functions warranting an assessment of 10 points under table 14.
In relation to Mr Saad's diabetes mellitus, hypertension (that is high blood pressure) and hyperlipidaemia, I find that they were all fully diagnosed and treated at the date of cancelation. From the medical reports and from Mr Saad's evidence, I find they are well managed by medication and diet. Accordingly, I assess each of them at nil points under table 1 of the impairment tables.
In relation to Mr Saad's depression, and anxiety, I note that this condition was not mentioned on the DSP form which he filled out, no doubt with the assistance of his wife dated 17 April 2013. I further note that in the course of inquiries, the ARO spoke with Dr Awada on 14 October 2013. Dr Awada said that he had suggested to Mr Saad that he should see a psychologist, however, Mr Saad failed to do so. From Mr Saad's evidence and from the documentary evidence, in April 2014 Mr Saad did see Dr Monir Younan who is a psychologist.
On this evidence, I find that at the date of cancelation, Mr Saad's depression and anxiety were not fully diagnosed, treated and stabilised. Accordingly, the depression and anxiety is not assessable under the impairment tables.
In relation to Mr Saad's headaches and/or migraines, I find there is insufficient evidence before me to show that the headaches were fully diagnosed, treated and stabilised at the date of cancelation.
In relation to Mr Saad's lumbar spine and lower back pain, I note that in his evidence, Mr Saad said that his lower back pain had increased since he had a car accident in about November 2014. In his report dated 12 September 2014, Dr Awada stated that he had recommended physiotherapy. In the JCA report dated 25 September 2014, it is stated that Mr Saad did undertake three physiotherapy visits from September to November 2013. I find that Mr Saad's lumbar spine and back pain were not fully diagnosed, treated and stabilised at the date of cancelation.
I find that Mr Saad's impairments are assessable at 10 points under the impairment tables. As Mr Saad's impairments are not assessable for 20 points, the decision to cancel his DSP was correct. Therefore, the decision to cancel Mrs Saad's WFD was also correct.
As Mr Saad's impairments are not assessable at 20 points, I further find that Mr Saad does not have a severe impairment for the purposes of the indefinite portability rules.
I find this to be a sad case. Mr Saad has not worked since his accident in 1987. He did receive DSP from 1993 until its cancelation in September 2013. In my view, had Mr and Mrs Saad realised that the post-2011 rules for the DSP would put Mr Saad's DSP in jeopardy, I find that they would not have sought a reassessment for the purposes of indefinite portability.
However, the reassessment was undertaken and I have found that the decisions to cancel Mr Saad's DSP and Mrs Saad's WFD were correct. I trust that Centrelink will offer the Applicants every possible assistance.
DECISIONS
The decisions under review are affirmed.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum, Member .........................[sgd].......................................
Associate
Dated 19 March 2015
Date(s) of hearing 26 February 2015 Applicant In person Solicitors for the Respondent Department of Human Services
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