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

[2016] AATA 648

Okungbowa and Secretary, Department of Social Services (Social services second review) [2016] AATA 648 (29 August 2016)

Division	GENERAL DIVISION
File Number	2015/6307
Re	Lisa Okungbowa
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	29 August 2016
Place	Brisbane

The decision under review is affirmed.

.......................[Sgd].................................................

Senior Member A C Cotter

Catchwords

SOCIAL SECURITY – disability support pension –severe impairment -  whether 20 points or more under the impairment tables – indefinite portability of DSP – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth) s1215, 1217, 1218AAA

Cases

WMKR and Secretary, Department of Social Services [2015] AATA 483,

Glinster and Secretary, Department of Social Services [2015] AATA 800.

Kelly and Secretary, Department of Social Services [2015] AATA  810,

Lee and Secretary, Department of Social Services [2016] AATA 60,

Stojanovski and Secretary, Department of Social Services [2014] AATA 466

Secondary Materials

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

REASONS FOR DECISION

Senior Member A C Cotter

29 August 2016

INTRODUCTION

1. Ms Lisa Okungbowa was granted Disability Support Pension (“DSP”) in 1992.

2. In March 2015, Ms Okungbowa contacted Centrelink regarding the continuation of her DSP payment while travelling in the United States of America for an indefinite period. She arranged for her general practitioner to complete a medical report and subsequently attended, by telephone, a Job Capacity Assessment.  Following that assessment, Centrelink denied Ms Okungbowa’s request for indefinite portability of DSP on the basis that she did not meet the requirement of having a “severe impairment”, nor the “no future work capacity” criterion.

3. Reviews by an Authorised Review Officer (“ARO”), and later by the Social Services and Child Support Division of this Tribunal (“SSCSD”), were unsuccessful. Dissatisfied with the SSCSD decision, Ms Okungbowa has applied for a review of it by the General Division of the Tribunal.

4. For the reasons outlined below, I consider that the SSCSD decision should be affirmed.

   BACKGROUND

5. Ms Okungbowa was originally granted DSP for a musculo-skeletal disorder in January 1992.[1]

   [1] Exhibit 1, T Documents, T 8, page 126, letter from Authorised Review Officer (“ARO”) to Ms Okungbowa dated 25 August 2015.

6. She contacted Centrelink on 20 March 2015 about indefinite portability of her DSP payments while she travelled in the USA.

7. In support of her request, her general practitioner, Dr Vincent Cheng, completed a medical report which identified three conditions that had a significant impact on Ms Okungbowa’s ability to function: Emphysema/Asthma; neuropathic pain to the right leg due to a previous fibula fracture and a previous motor vehicle accident; and Depression and Anxiety Disorder.[2]

   [2] Exhibit 1, T Documents, T 4, page 105, Medical Report (Disability Support Pension Review for Portability) of Dr Vincent Cheng dated 31 March 2015.

8. The Emphysema/Asthma was said to be treated with three different inhalers; that treatment was not expected to change in the future. The symptoms were recorded as shortness of breath and cough. Dr Cheng described the impact on Ms Okungbowa’s ability to function as “endurance; short of breath with exertions”, and thought that impact would persist for more than five years.[3]

   [3] Ibid, pages 106-108.

9. As for the neuropathic pain, Dr Cheng noted that current treatment was by analgesia and Lyrica, a medication for nerve pain, with the latter treatment expected to continue in the future. He noted Ms Okungbowa’s symptoms as “legs pains & swelling; numbness in the legs”, with the impact being on her endurance and her ability to walk/stand/bend. Again, he expected that impact to persist for more than five years.[4]

   [4] Ibid, pages 109-111.

10. The third condition, Depression and Anxiety Disorder, was noted as having a significant impact on Ms Okungbowa’s ability to function, but Dr Cheng did not elaborate further.[5]

    [5] Ibid, page 105.

11. The report also listed Gastro-Oesophageal Reflux Disease (“GORD”) as a condition from which Ms Okungbowa suffered, but noted that it was generally well managed and caused minimal or limited impact on her ability to function.[6] Depression and Anxiety Disorder was also noted in that section. However, its inclusion in that part appears to have been an error, given that Dr Cheng had already specifically nominated the condition as one having a significant impact on Ms Okungbowa’s ability to function.

    [6] Ibid, page 112.

12. The Job Capacity Assessor (“JCA”) who reviewed Dr Cheng’s report and who interviewed Ms Okungbowa, recommended that a total of 20 impairment points be assigned: 10 points each in respect of the Emphysema condition (under Table 1 - Functions requiring Physical Exertion and Stamina) and the spinal disorder (under Table 4 - Spinal Function). The Depression/Anxiety Disorder was not considered to be fully diagnosed, treated and stabilised, such that no impairment rating could be assigned in respect of it. Zero points were assigned in relation to the GORD condition, as it was reported to have minimal or limited impact on ability to function.[7] The JCA also considered that Ms Okungbowa had a baseline work capacity of between zero and seven hours per week, and a capacity of between eight and 14 hours per week within two years, with intervention.[8]

    [7] Exhibit 1, T Documents, T 5, pages 116-118, Job Capacity Assessment (“JCA”) report dated 10 July 2015.

    [8] Ibid, page 119.

13. Based on that assessment, Ms Okungbowa was considered not to have a “severe impairment”. Further, she did not meet the “no future work capacity” requirement, as she had future part-time work capacity. As a consequence, her request for indefinite portability was declined.[9]

    [9] Exhibit 1, T Documents, T 6, pages 122-123, Centrelink letter to Ms Okungbowa dated 16 July 2015.

14. As mentioned earlier, an ARO affirmed that decision[10], with the SSCSD in turn affirming the ARO’s decision.[11]

    [10] Exhibit 1, T Documents, T 8, pages 125-132, ARO’s letter to Ms Okungbowa, and notes, dated 25 August 2015.

    [11] Exhibit 1, T Documents, T 2, pages 3-10, Social Services and Child Support Division (“SSCSD”) decision and reasons for decision dated 4 November 2015.

15. Before I consider the issues raised by the present application, I pause to reflect on the relevant legislative provisions.

    THE LEGISLATIVE FRAMEWORK

16. Section 1215 of the Social Security Act 1991 (Cth) (“Act”) effectively provides that if a person is absent from Australia, they cannot continue to receive social security payments once their absence from Australia exceeds the “maximum portability period” for that payment. The maximum portability period relevant to DSP is a “total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving” DSP.[12] A number of exceptions are listed. However, the one which is relevant in the present case is that found in s 1218AAA of the Act, relating to a “severely impaired disability support pensioner”.

    [12] See Social Security Act 1991 (Cth), s 1217.

17. Section 1218AAA provides that the Secretary may make a written determination that a particular person’s maximum portability period for DSP is unlimited if all the following circumstances exist:

    (a)the person is receiving DSP;

    (b)the Secretary is satisfied that the person’s impairment is a “severe impairment” within the meaning of s 94(3B) of the Act (that is, the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single table);

    (c)the Secretary is satisfied that the person will have that severe impairment for at least the next five years; and

    (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent him or her from performing any work independently of a program of support (within the meaning of s 94(4) of the Act) within the next five years. Section 94(4) states that 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: is unlikely to need a program of support; or is likely to need a program of support provided occasionally; or is likely to need a program of support that is not ongoing.

18. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), a legislative instrument made under the Act.[13] The Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[14] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[15]

    [13] See Social Security Act 1991 (Cth) s 26(1).

    [14] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2).

    [15] See Ibid, s 6(1).

19. Under the Rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[16] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[17]

    [16] See Ibid, s 6(3).

    [17] See Ibid, s 6(4).

20. An impairment rating can only be assigned in accordance with the rating points in each table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[18]

    [18] See Ibid, s 11(1).

21. Eligibility for indefinite portability of DSP is to be determined at the date of claim or request that commenced the decision making process, applying the legislation then in force, and subsequently as circumstances demand.[19] In the present instance, that is 20 March 2015, being the date when Centrelink was asked about the prospect of indefinite portability.

    [19] See WMKR and Secretary, Department of Social Services [2015] AATA 483, [31]; Glinster and Secretary, Department of Social Services [2015] AATA 800, [14]-[15]; Kelly and Secretary, Department of Social Services [2015] AATA 810, [14]-[15] and Lee and Secretary, Department of Social Services [2016] AATA 60, [17]-[18].

22. Finally, I should also briefly mention the Social Security (International Agreements) Act 1999 (Cth) (“International Agreements Act”), which facilitates the payment of social security benefits to Australians who reside in countries with which Australia has social security agreements. Schedule 13 of that Act contains the agreement between the governments of Australia and the USA (“US Agreement”). If the applicant is considered a “severely disabled” DSP recipient (as defined in s 23(4B) of the International Agreements Act), they may qualify to receive Australian benefits in the USA. However, it is important to note that the US Agreement restricts payments to Australians who are residents of the USA and not persons who are simply visitors.[20]

    [20] See Stojanovski and Secretary, Department of Social Services [2014] AATA 466, [7] (Professor McCallum, Member).

    ISSUES FOR THE TRIBUNAL

23. The principal question that falls for my determination is whether, at the relevant time, Ms Okungbowa satisfied the requirements for indefinite portability under s 1218AAA. There being no doubt that she was a recipient of DSP at the relevant time, the remaining issues to decide are:

    (a)whether Ms Okungbowa had a “severe impairment”, as that term is understood under s 94(3B) of the Act;

    (b)if so, whether Ms Okungbowa would have that severe impairment for the next five years; and

    (c)if so, whether the severe impairment would prevent Ms Okungbowa from performing any work independently of a program of support within the next five years, if she remained in Australia.

24. I deal with these questions below.

    CONSIDERATION

    Did Ms Okungbowa have a “severe impairment”?

25. I discuss this question below by reference to each of the impairments identified by Dr Cheng in his report.

    Emphysema/Asthma

26. As mentioned earlier, Dr Cheng said that Ms Okungbowa suffered from shortness of breath and cough which impacted on her endurance. He thought that the effect of the condition on Ms Okungbowa’s ability to function would remain unchanged and/or deteriorate within the next five years.[21] Dr Cheng reiterated those comments in a later report, noting that Ms Okungbowa had suffered from Asthma since childhood and from Emphysema for many years.[22] She had a long history of smoking.[23]

    [21] Exhibit 1, T Documents, pages 107-108, Medical Report (Disability Support Pension Review for Portability) of Dr Vincent Cheng dated 31 March 2015,

    [22] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 27 May 2016 (“Secretary’s SFIC”), Attachment 3, further medical report of Dr Vincent Cheng dated 11 March 2016, page 1.

    [23] Exhibit 1, T Documents, page 108, Medical Report (Disability Support Pension Review for Portability) of Dr Vincent Cheng dated 31 March 2015.

27. The JCA report noted that Ms Okungbowa was hospitalised in 2012 with a lung clot and, against her doctor’s recommendation, had continued to smoke. Ms Okungbowa confirmed that she has shortness of breath “all day, every day” and is unable to walk to her letter box without impact. She told the JCA that her cousin drives her to wherever she needs to go and she only goes shopping on a fortnightly basis, with assistance. She has a constant cough and gets full blown pneumonia. She reports feeling tired and has difficulty sleeping. The JCA determined the condition to have a moderate functional impact.[24]

    [24] Exhibit 1, T Documents, T 5, page 115, JCA report dated 10 July 2015.

28. Ms Okungbowa told the SSCSD that she prepares her own meals, folds her laundry if sitting down (on the edge of a chair), and does some vacuuming every few weeks. She has to be selective when she goes outside, avoiding windy conditions when she has to cover her nose and mouth. The presiding member observed that at the hearing, she spoke quickly and forcefully and appeared to have no difficulty getting her breath; she did not cough at all during the hearing. Ms Okungbowa told the SSCSD about her last trip to the USA in the northern winter of 2014, saying that she was limited in what she could do as everything was closed for the winter. She was, however, able to go out to restaurants and to the Madame Tussaud’s wax museum, and travelled around the city by train, accompanied by friends. She said that she had hoped to visit the Coney Island amusement park and ride on the Ferris wheel, but it was closed. Asked how she would manage to walk around the park, she said that she would have been driven around by buggy.[25]

    [25] Exhibit 1, T Documents, T 2, page 6, SSCSD decision and reasons for decision dated 4 November 2015, [18]-[19].

29. Ms Okungbowa gave evidence at the hearing before me. She said that she cannot do any housework, apart from doing the washing up while standing at the sink. She does not go outside to hang out her washing as she cannot reach above her head using both arms (using her left arm causes her neck pain[26]). The ground is also uneven.  Her cousin, who used to drive her wherever she needed to go, had since moved away. She has no family or support, apart from an elderly couple nearby, on whom she relies for transport.

    [26] Ibid, page 8,[28].

30. During cross-examination and in response to questions from me, Ms Okungbowa said that she first went overseas in 2008 to Malaysia. She subsequently made two further trips to Malaysia, the last being in 2009 when she married her then husband. In 2010, she travelled to Nigeria to meet her then in-laws. In 2013, she went to California for three months. Her 2014 visit to New York was for three months, staying with friends in the borough of Queens. She reiterated that on that visit, many of the city’s attractions were closed and she spent most of her time inside, recovering from a fall and a bout of pneumonia. She said that during her visit she went shopping twice and went to some restaurants. Ms Okungbowa said that she only travelled on the train once. She did not use any other public transport; her friends drove her around. She said that the flight to New York was about 15 hours. She embarked and disembarked the aircraft in a wheelchair. During the flight, she had to wear a full leg brace to avoid her knee being knocked; she was able to stretch out as there was usually no one in the seat next to her. She estimated that she would have got up once every five to six hours to move up and down the aisle.

31. As to her future plans, Ms Okungbowa said that she intends to leave Australia permanently and live with her friends in Queens. They are planning to drive to Florida, visiting family along the way. She does not know how long that trip will take. I took Ms Okungbowa to the note of a conversation she had with a Centrelink Service Adviser, in which she said that she and her friends were proposing to undertake the trip by coach.[27] She told me that, apart from the subway trip in New York, she had not used public transport since she was injured in a bus accident in 2012.

    [27] Exhibit 1, T Documents, T 10, page 142, Department file note dated 28 April 2015.

32. The relevant Impairment Table is Table 1 (Functions requiring Physical Exertion and Stamina). Based on what Ms Okungbowa told me, the JCA and SSCSD, I agree with the JCA’s and SSCSD’s respective assessments, that her condition has a moderate functional impact.

33. To justify the severe rating (20 points), the person needs to usually experience symptoms (such as shortness of breath) when performing light physical activities and, due to those symptoms, is unable to:

    (a)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

    (b)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

    (c)use public transport without assistance; or

    (d)perform light day to day household activities such as folding and putting away laundry,

    as well as have, or be likely to have, difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours.

34. I do not think there is sufficient evidence to satisfy those descriptors. Ms Okungbowa is able to perform light day to day household activities. Her cousin previously drove her where she needed to go, and she now relies on elderly nearby neighbours, Mr Ronald Pope and his wife, for transport. However, the evidence falls short of establishing that, because of her shortness of breath (as opposed to her spinal or lower limb conditions), she is unable to walk from the car into and around the shopping centre or supermarket without assistance, or use public transport without assistance. Ms Okungbowa produced a statutory declaration by Mr Pope, describing a panic attack that he witnessed her suffer when they were at the shopping centre. Significantly, that declaration was silent as to any restrictions or difficulties that Ms Okungbowa had with walking, either on that or other occasions.[28] Further, Ms Okungbowa’s description of her travel activities, not to mention her obvious ability to endure lengthy plane flights (she told the SSCSD that her only concern with a long flight is anxiety[29]), raise a number of significant doubts in my mind about her ability to meet the descriptors. As a consequence, I am not satisfied that there is sufficient evidence to establish that they are met.

    [28] Exhibit 2, Attachment 4 to the Secretary’s SFIC dated 27 May 2016, statutory declaration of Mr Ronald Pope declared 26 February 2016.

    [29] Exhibit 1, T Documents, T 2, page 8, SSCSD’s decision and reasons for decision dated 4 November 2015, [29].

1. I therefore find that while Ms Okungbowa has a moderate functional impairment under Table 1, there is insufficient evidence to satisfy the requirements for a severe rating under that table.

   Spinal disorder and lower limb pain

2. In his first medical report, Dr Cheng described Ms Okungbowa’s current symptoms as “legs pains & swelling; numbness in the legs”. He said that the condition and its treatment impacted on her endurance and ability to walk/stand/bend. Dr Cheng said that he expected the current impact on Ms Okungbowa’s ability to function to persist for more than five years.[30]

   [30] Exhibit 1, T Documents, T 4, pages 110-111, Medical Report (Disability Support Pension Review for Portability) of Dr Vincent Cheng dated 31 March 2015.

3. In his further report of 11 March 2016, Dr Cheng added to his earlier comments, saying that Ms Okungbowa had been suffering “chronic low back pain, legs pain, neck pain and tension headaches, R ankle pain as a result of her MVA [motor vehicle accident] in 1986, bus accident in late 2012 and fracture R fibula in 2013”. He said that she also suffered from neuropathic pain and peripheral neuropathy of axonal type which had been proven on a nerve conduction study. Dr Cheng said that she has trouble managing her pain and sometimes managing day to day activities due to her pain. In June 2015, he referred her to a chronic pain specialist, however she failed to attend that appointment. Dr Cheng said that Ms Okungbowa has trouble with bending, prolonged standing and walking long distances due to her disabilities. She often gets swelling of the legs/ankles and now uses a walking stick for mobility.[31]

   [31] Exhibit 2, Secretary’s SFIC dated 27 May 2016, Attachment 3: further medical report of Dr Vincent Cheng dated 11 March 2016, page 2.

4. In her interview with the JCA, Ms Okungbowa estimated that she could walk for 10 to 15 minutes. She could stand for about five to 10 minutes. Bending is difficult and she is unable to take stairs. She reported difficulty with overhead activities and being unable to vacuum or carry heavy loads. When shopping, she uses a trolley for support. She is able to turn her head freely to the right hand side only.  The report noted that Ms Okungbowa was involved in a bus accident in 2013 when her leg was broken in five places. She was unable to weight bear for five months. She had three sessions of physiotherapy and does her own exercises. However, she said that there is no further treatment she could have, apart from a full knee replacement. She reported using a wheelchair when in crowds and wearing a full leg brace to protect her knee cap. The JCA concluded that the condition was fully diagnosed, treated and stabilised and that it had moderate functional impact.[32]

   [32] Exhibit 1, T Documents, T 5, pages 115-116, JCA report dated 10 July 2015.

5. Ms Okungbowa told the SSCSD hearing that she cannot look up or back too far and cannot put her chin to her chest, as pain catches where the skull meets the back of her neck. She cannot turn her neck to the left, but can to the right. She cannot reach to the clothesline with her left arm as it causes neck pain. Nor can she bend to the floor or bend to the knees without experiencing shooting pain. Ms Okungbowa says she spends a lot of time sitting in her lounge room, but has to reposition herself every five to 10 minutes. She has trouble lying comfortably and only gets three to four hours of sleep at night due to the pain. Ms Okungbowa told the SSCSD that she is unable to get off the floor unaided, or get off the bed at the doctor’s surgery. Despite what she told the JCA, she said that she did use the vacuum cleaner, but only every few weeks. She reiterated that she cannot walk for more than 20 minutes as her feet develop a burning pain. Sometimes, she is unable to walk to her letter box and it takes her 20 minutes to walk from her bedroom to the lounge room.[33]

   [33] Exhibit 1, T Documents, T 2, page 8, SSCSD decision and reasons for decision dated 4 November 2015, [28]-[30].

6. At the hearing before me, Ms Okungbowa said that she is in constant pain, taking Morphine twice a day. The pain has been so severe, that she has asked her doctor to amputate her leg.  She has not used public transport since her bus accident in 2012. On returning from California in 2013, she suffered further injury when collecting luggage at the baggage carousel. 

7. Ms Okungbowa said that after going shopping for 35 minutes, her leg would swell and she would be in pain. She then has to take fluid tablets.

8. Having regard to those reports, the appropriate tables to consider are Table 3 (Lower Limb Function) and Table 4 (Spinal Function).

9. To be classed as having a severe impairment (20 points) under Table 3, it is necessary to show that the person was unable to do any of the following:

   (a)walk around a shopping centre or supermarket without assistance;

   (b)walk from the carpark into a shopping centre or supermarket without assistance;

   (c)stand up from a sitting position without assistance,

   as well as require assistance to use public transport.

10. I do not consider that these descriptors are met.  Although she might experience some difficulty, Ms Okungbowa is able to walk from a carpark into, and around, a shopping centre without assistance. There is no suggestion that she is unable to stand up from a sitting position without assistance. On the contrary, she told me that on overseas flights she was able to stretch out, as usually there was no one in the seat next to her. Every five or six hours, she would get up and move up and down the aircraft aisle.

11. For Table 4, a 20 point rating is to be assigned where the person is unable to: perform any overhead activities; or turn their head, or bend their neck, without moving their trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes. On the evidence before me, I am not satisfied that these descriptors are met. While Ms Okungbowa experienced difficulties with overhead activities, there was no evidence that she was unable to undertake them at all. She is able to turn her neck to the right. There is no evidence that she is unable to pick up a light object from a desk or table. It is clear from her overseas air travel that she can remain seated for longer than 10 minutes at a time.

12. It follows from what I have said that I do not think that Ms Okungbowa’s relevant impairment is severe, so as to warrant the assignment of 20 points under either Table 3 or Table 4. The highest I would rate her impairment would be moderate under either table.

    Depression and Anxiety Disorder

13. As I mentioned earlier, Dr Cheng’s first report nominated Depression and Anxiety Disorder as having a significant impact on Ms Okungbowa’s ability to function, but provided no further detail. His later report added some information, noting that she had suffered from the condition for ”many years” and that her treatment included relaxation, the referral to a psychologist in 2012, and medication.[34]

    [34] Exhibit 2, Secretary’s SFIC dated 27 May 2015, Attachment 3, further medical report of Dr Vincent Cheng dated 11 March 2016, page 1.

14. Ms Okungbowa told the JCA that the condition is chronic, well managed and has no or minimal impact on function. She said that at that stage she was accessing no treatment for Depression “and refuses to”.[35]

    [35] Exhibit 1, T Documents, T 5, page 117, JCA report dated 10 July 2015.

15. At the hearing by the SSCSD, Ms Okungbowa told the presiding member that she has not seen a psychiatrist or clinical psychologist.[36]

    [36] Exhibit 1, T Documents, T 2, page 10, SSCSD decision and reasons for decision, [37].

16. The only other evidence produced on behalf of Ms Okungbowa was the statutory declaration of Mr Pope, which detailed his firsthand account of an anxiety attack that Ms Okungbowa suffered.[37] In the absence of corroborating medical evidence, I do not believe that advances the matter.

    [37] Exhibit 2, Secretary’s SFIC dated 27 May 2015, Attachment 4, statutory declaration of Mr Ronald Pope declared 26 February 2016.

17. The lack of medical evidence is relevant in two respects. First, there is no evidence of the diagnosis of the condition having been confirmed by a suitably qualified specialist psychiatrist or clinical psychologist as required by the Introduction to the relevant table, Table 5 (Mental Health Function). The condition cannot therefore be said to have been fully diagnosed at the relevant time. Second, Ms Okungbowa’s comments to the JCA suggest that she was not having any treatment at the relevant time. It is therefore doubtful that the condition could be said to have been fully treated and stabilised. Consequently, there can be no assignment of impairment points as the condition was not fully diagnosed, treated and stabilised.

18. Even if an impairment rating could be assigned, I consider that 0 points would be assigned under Table 5, in light of Ms Okungbowa’a confirmation to the JCA that the condition had no or minimal impact on function.

    GORD

19. In his first report, Dr Cheng nominated this condition as one which was well managed and which had minimal or limited impact on Ms Okungbowa’s functional ability.[38]

    [38] Exhibit 1, T Documents, T 4, page 112, Medical Report (Disability Support Pension Review for Portability) of Dr Vincent Cheng dated 31 March 2015.

20. Ms Okungbowa confirmed to the JCA that while the condition was chronic, it was well managed and had no or minimal impact on function.[39]

    [39] Exhibit 1, T Documents, T 5, page 116, JCA report dated 10 July 2015.

21. Based on Dr Cheng’s assessment and Ms Okungbowa’s self-report to the JCA, it is clear that this impairment could not be considered “severe” under the relevant table. Indeed, given the absence of detailed medical evidence, I believe that zero points, or at best, five points, should be assigned under Table 10 (Digestive and Reproductive Function).

    Other conditions

22. Dr Cheng’s further medical report noted that Ms Okungbowa has suffered from lumbar spina bifida, cervical spondylosis for ”many years”.[40]

    [40] Exhibit 2, Secretary’s SFIC dated 27 May 2015, Attachment 3, further medical report of Dr Vincent Cheng dated 11 March 2016, page 1.

23. Given the long standing nature of the condition and the fact that it was not specifically mentioned by Dr Cheng in his first report, I agree with the Secretary’s contention[41] that the functional impact is likely to have already been properly incorporated into the pre-existing assessments; the moderate rating of 10 points under Table 4 clearly incorporates an assessment of Ms Okungbowa’a spina bifida.

    [41] Exhibit 2, Secretary’s SFIC dated 27 May 2016, [4.57].

    Impairment ratings – summary

24. To summarise, I do not consider that any of Ms Okungbowa’s impairments are severe in the sense that they attract 20 points or more under a single table.

25. Consequently, Ms Okungbowa failed to satisfy the second requirement of indefinite portability contained in s 1218AAA(1)(b) of the Act, namely that the applicant have a severe impairment, as defined.

    Will Ms Okungbowa have the severe impairment for at least the next five years?

26. Dr Cheng expects the functional impacts from Ms Okungbowa’s conditions to persist for more than five years from 20 March 2015[42]. However, in light of my findings above, this requirement cannot be satisfied because Ms Okungbowa did not have any severe impairments.

    [42] Exhibit 2, Secretary’s SFIC dated 27 May 2016, Attachment 3, further medical report of Dr Vincent Cheng dated 11 March 2016.

27. Accordingly, Ms Okungbowa does not satisfy this requirement of indefinite portability in s 1218AAA(1)(c) of the Act.

    Will the severe impairment prevent Ms Okungbowa from performing any work independently of a program of support within the next five years?

28. In view of the conclusions I have reached in relation to paragraphs (b) and (c) of s 1218AAA(1), it is not necessary for me to address this question; Ms Okungbowa did not, in my opinion, have any “severe impairment” which prevented her from performing any work.

29. However, for the sake of completeness and in case I am wrong in my conclusions in relation to paragraphs (b) and (c), I make the following observations.

30. I note that the JCA concluded that Ms Okungbowa had a baseline work capacity of between zero and seven hours per week. That was expressed to be in the area of light, less skilled work, such as light packaging and labelling work. The JCA also identified the same areas of suitable work when assessing Ms Okungbowa’s capacity for work within two years with mainstream intervention, at between eight to 14 hours per week.

31. Ms Okungbowa did not seek to challenge that evidence or produce evidence to the contrary.

32. In the absence of evidence to the contrary, I would be inclined to accept the JCA’s assessment.

    Other matters- the US Agreement

33. As Ms Okungbowa is not presently a resident of the United States, it is unnecessary, and premature, to consider whether she would be entitled to the payment of benefits pursuant to the US Agreement.

    CONCLUSION

34. For the reasons I have outlined above, I do not consider that Ms Okungbowa’s impairments were “severe”. Consequently, she did not qualify for unlimited portability of her DSP. The decision to refuse her request in that regard was correct.

35. Accordingly, the decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

.........................[Sgd]...............................................

Associate

Dated  29 August 2016

Date of hearing	29 July 2016
Applicant	By phone
Solicitors for the Respondent	Clayton Utz