Mutasim Ahmed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 227
[2013] AATA 227
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2058
Re
Mutasim Ahmed
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 15 April 2013 Date of written reasons 16 April 2013 Place Sydney The Tribunal affirms the decision under review.
...........[sgd].............................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – blindness and astigmatism – impairment rating five points – whether post traumatic stress disorder and depression diagnosed, treated and stabilised – evidence of chronic post traumatic stress disorder and depression – applicant had not sought treatment for either at the relevant time – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 s 42 and Sch 2
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
16 April 2013
BACKGROUND
Mr Mutasim Ahmed arrived in Australia in 2005 as a refugee from Sudan. He receives newstart allowance from Centrelink.
On 9 August 2011, Mr Ahmed applied for a disability support pension (DSP). Centrelink decided he did not qualify for the payment and, in April 2012, the Social Security Appeals Tribunal affirmed that decision.
At a hearing on 15 April 2013, I decided that Centrelink’s decision was correct and that Mr Ahmed did not qualify for DSP when he applied in August 2011.
These written reasons reflect reasons given orally at a hearing on 16 April 2013.
THE LAW
Section 94 of the Social Security Act1991 (the Act) provides that, to qualify for DSP, a person must have:
(i)an impairment rating of 20 or more points; and
(ii)a continuing inability to work:
If a person does not qualify for DSP at the time he or she applies, but becomes qualified within the following 13 weeks, he or she will be entitled to payment. For Mr Ahmed’s application to succeed, he had to qualify for DSP at the time he applied, or by 8 November 2011: s 42 and Sch 2 of the Social Security (Administration) Act 1999.
The Impairment Tables
The Impairment Tables is a legislative instrument determined by the Minister under s 26 of the Act, used to assess how an impairment affects a person’s ability to work.
To be assigned a rating on the Tables, a condition must be permanent, meaning that it has been diagnosed, treated and stabilised, and is likely to persist for more than two years.
MR AHMED’S DISABILITIES
Eye conditions
Mr Ahmed has been blind in his right eye since childhood after suffering an injury, and he has left compound hypermetropic astigmatism. An opthalmologist, Dr Fotor, who saw Mr Ahmed in August 2011, reported that his eye conditions were permanent.
I agree with Centrelink and the Social Security Appeals Tribunal that Mr Ahmed’s blindness in his right eye rates FIVE points on impairment Table 14, and the astigmatism in his left eye rates NIL points on Table 13.
Post-traumatic stress disorder and depression
On 27 October 2011, Mr Ahmed’s general practitioner, Dr Behary, provided a medical report stating that Mr Ahmed was suffering from “depression, stress, anxiety and headache”.
Mr Ahmed did not seek treatment for his depression until 13 August 2012, when Dr Behary referred him to Dr Younan, a psychiatrist. Dr Younan diagnosed Mr Ahmed as suffering from chronic post traumatic stress disorder, chronic depression, and cannabis dependence since he was 18.
Dr Younan reported that Mr Ahmed was suffering from nightmares, flashbacks of severe abuse, suicidal thoughts and sleep disturbance; he was banging his head against walls with the intention of ending his life; he was smoking marijuana and was mentally preoccupied with the total loss of vision in his right eye. He certified Mr Ahmed unfit for work for three months from November 2011 and prescribed antidepressant medication. In October 2012, he certified Mr Ahmed unfit for work for a further three months.
Mr Ahmed told the Social Security Appeals Tribunal he did not seek treatment for his depression because he felt embarrassed and ashamed. He told me the same. I accept what he says. However, he did not see Dr Younan, who diagnosed his psychological conditions and started treatment, until 12 months after he applied for DSP. Even if I accept that Dr Behary had diagnosed parts of his psychological condition, he did not treat those conditions. By the time Mr Ahmed first sought treatment from Dr Younan, his application for DSP had in effect expired.
As Mr Ahmed’s chronic post traumatic stress disorder, chronic depression, and cannabis dependence were not diagnosed and treated within 13 weeks of his application for disability support pension, they cannot be given a rating on the Impairment Tables.
As Mr Ahmed’s total rating was FIVE points at the relevant time, his application cannot succeed.
CONCLUSION
It is not clear whether Mr Ahmed has people in the community who help and support him. He has recently become homeless. He sees no reason to make a further application for DSP and cannot understand why Centrelink does not accept his claim now that it is documented by his doctors. He told me he will not fill in another form. Ms Sharma, who represented Centrelink at the hearing, and the Tribunal, have impressed on him the importance of making a new application if he is to have any chance of qualifying for disability support pension, and have provided him with the application forms. A further application will not necessarily succeed but is a necessary starting point.
Unfortunately for Mr Ahmed, his current application cannot succeed and I must affirm the decision under review.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Toohey. ...........[sgd].............................................................
Associate
Dated 16 April 2013
Date(s) of hearing 15 April 2013 Applicant In person Advocate for the Respondent Department of Human Services, Program Litigation and Review Branch
0
0
0