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

[2019] AATA 120

Nabasango and Secretary, Department of Social Services (Social services second review) [2019] AATA 120 (8 February 2019)

Division:GENERAL

File Number(s):      2017/4138  

Re:Sofia Nabasango

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:8 February 2019

Place:Adelaide

The Tribunal affirms the decision under review.

............................[sgnd]...................................

Senior Member N A Manetta

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment –medical conditions not fully diagnosed, fully treated and fully stabilised during the assessment period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), S 94

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Secretary, Department of Social Services v Sziva [2019] FCA 23

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member N A Manetta

8 February 2019

1. This is an application by Ms Sofia Nabasango seeking a review of a Level 1 decision of this Tribunal, which affirmed decisions taken in the respondent’s Department to reject her application for a disability support pension (DSP). At the hearing before me, Ms Nabasango represented herself, but was assisted in the presentation of her case by her husband, Mr Silotombo; Mr Morris appeared for the respondent.

   CRITICAL QUESTION

2. Hearing the matter afresh on the evidence before me[1], I must decide whether Ms Nabasango met the criteria for a DSP under s 94 of the Social Security Act 1994 at the time she lodged her application or within 13 weeks of that date.  Ms Nabasango lodged her application on 22 June 2016. In my opinion, Ms Nabasango did not meet the criteria.  I set out below my reasons for this conclusion. As Ms Nabasango was not legally represented, I shall express my reasons as simply as possible.

   [1] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

   APPLICANT’S PERSONAL HISTORY

3. I set out below an outline of Ms Nabasango’s personal history. Ms Nabasango was born in 1970 in Mboko, Congo.  Before her emigration to Australia, she worked as a hawker in a local vegetable and fruit market in Zambia. She met her husband there, and they emigrated as a married couple to Australia in 2011. They have a number of children, all but one of whom live with them at home.

4. Unfortunately, Ms Nabasango had a car accident in March 2016 in Munno Para West. The passenger side of the car, where she was sitting, was struck by another car. She was taken to a hospital emergency department but was not admitted.  She was advised to consult her local GP for any further treatment. Her treating GP is Dr Ayaz.  

5. She gave evidence that she returned to hospital about a month or so after the accident. The report from that presentation at the Royal Adelaide Hospital is discussed below.  She gave evidence that she was suffering severe abdominal pain. She said she had not experienced such severe abdominal pain before that bout.  She has continued to suffer from abdominal pain and uses a product called “Anti-Flamme” which she finds provides some, but not complete, relief. “Anti-Flamme” is a herbal relief massage cream, which is available without prescription. She gave evidence she also takes Panadol, which also provides some relief.

6. Rather surprisingly, she has not discussed “Anti-Flamme” with Dr Ayaz, nor discussed with him the fact that the cream is not completely effective.

7. Ms Nabasango also suffers from lower back pain for which she consulted a specialist orthopaedic surgeon, Mr Bajhau.  His letter to Dr Ayaz dated 8 December 2016 (which appears at T15 page 170) is in the following terms:

   I reviewed this lady after her MRI of lumbar sacral spine. This showed broad-based annular bulges at L4/5 and L5/S1 causing mild central canal stenosis. There is also mild to moderate neural exit foraminal narrowing affecting the L4 and L5 nerve roots bilaterally.

   I had offered her CT guided injection but she declined this. I have recommended symptomatic management in the long-term.

8. In cross-examination, Ms Nabasango accepted that she had refused the injection.

9. Mr Silotombo also gave evidence. In addition to the Panadol and “Anti-Flamme” Ms Nabasango uses, he mentioned “Tramadol”, a pain relief medication. He also referred to Amoxicillin, but this is an antibiotic prescribed for bacterial infections.[2]

   [2] At T109, p416, there is a medication summary as at 11 May 2016.  In addition to Tramadol, this summary shows Ms Nabasango was prescribed two high blood pressure medications (Atenol and Exforge HCT), pain relief medication (Brufen, Fexagil, and Panadeine Forte), a constipation medication (Movicol) and eardrops (Kenacomb Otic). 

10. Mr Silotombo described his daily life with his wife, and her limitations in contributing to the running of a busy household and the care of their children. He is presently in receipt of a carer’s allowance to assist him in supporting his wife. I need not set out any of the limitations from which Ms Nabasango suffers because I think the case can be decided on one critical ground.  I now turn to that critical consideration.

    WHETHER CONDITIONS ARE FULLY DIAGNOSED, TREATED AND STABILISED

11. One essential criterion for the DSP is that the condition causing the impairment in question must be fully diagnosed, treated, and stabilised as at the date of the application for the DSP or 13 weeks later: see most recently Secretary, Department of Social Servicesv. Sziva [2019] FCA 23 at [18] to [27], where the relevant regulatory provisions are set out. This is a condition of eligibility which may not be waived. Ms Nabasango’s DSP application form is dated 22 June 2016. I do not find the abdominal pain suffered by Ms Nabasango or her back pain to have been fully diagnosed, treated, and stabilised as at this date or within 13 weeks thereafter.

    Abdominal Pain

12. The report from the Royal Adelaide Hospital Emergency Department dated 29 April 2016 appears in the “T” documents[3].  In respect of the abdominal and lower back pain for which Ms Nabasango had attended the hospital, the report says:

    Significant imaging and repeated review has not revealed obvious anatomic pathology.  Probable soft-tissue injury.

    [3] T144, p470.

13. A recommendation of regular physiotherapy and mobilisation follows. 

14. At the present time, there is no diagnosis of the underlying condition from which Ms Nabasango is suffering.  I cannot conclude on the evidence before me that Ms Nabasango’s condition has been fully diagnosed.  Further investigations are clearly required in respect of her abdomen.

    Back pain

15. So far as her back pain is concerned, I refer again to the injection Ms Nabasango refused in December 2016 to assist in the management of her pain and to the recommendation of regular physiotherapy and mobilization that has not been followed on the evidence before me. Here, I would find that Ms Nabasango’s refusal to undertake medical treatment was not reasonable in the circumstances. Her back condition has not been fully treated.

    I would note for completeness’ sake that Ms Nabasango also suffers from hypertension. There was no suggestion, however, that her hypertension alone would entitle her to a DSP and there is no evidence to that effect before me.

    CONCLUSION

16. I find that both the abdominal and back conditions must be excluded from my consideration in my assessment of Ms Nabasango’s DSP application. The application must fail for this reason.

17. I would add that on my review of the evidence, the degree of impairment Ms Nabasango suffers from her conditions does not reach the level of twenty points under any one table among the Impairment Tables[4].  As she has not participated in a program of support, Ms Nabasango is ineligible to receive a DSP for this reason as well. I need not set out my assessment of her degree of impairment under the Impairment Tables given my conclusion that I may not take into account her abdominal and back pain in any event.

    [4] See the Impairment Tables prescribed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.

    FORMAL DECISION

18. The Tribunal affirms the decision under review.

    I certify that the preceding 18 (eighteen)

    paragraphs are a true copy of the reasons

    for the decision of Senior Member N A Manetta

    ………………[signed]…….………..

    Administrative Assistant Legal

    Date:   08.02.2019

    Dates of hearing:   26 and 29 October 2018

    Representative for Applicant:             Mr D Silotombo

    Representative for Respondent:        Mr O Morris, Department of Human Services