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

[2021] AATA 3885

Oudah and Secretary, Department of Social Services (Social services second review) [2021] AATA 3885 (22 October 2021)

Division:GENERAL DIVISION

File Number(s):      2021/2353

Re:Shukriyah Oudah

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:22 October 2021  

Place:Sydney

The decision under review is affirmed.

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Mr S Evans, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant’s impairments can be assigned 20 points or more in accordance with the Impairment Tables – relevant legislation and secondary materials considered – medical reports and other evidence considered – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mr S Evans, Member 

22 October 2021

INTRODUCTION

1. Shukriyah Oudah (‘Ms Oudah’) seeks review of a decision of the Social Services & Child Support Division (‘AAT1’) of the Administrative Appeals Tribunal (‘the Tribunal’) dated 6 April 2021. That decision affirmed an earlier decision of a delegate of the Secretary for the Department of Social Services (‘the Secretary’) to reject Ms Oudah’s claim for Disability Support Pension (‘DSP’). 

   BACKGROUND

2. Ms Oudah migrated to Australia on 15 August 2016 as the holder of a Subclass 202 (Special Global Humanitarian) visa with her three adult children. This category of visa entitles Ms Oudah to a qualifying residence exemption, meaning she satisfied the residential qualification criteria for DSP recipients.

3. On 14 December 2017 she contacted the Department of Social Services (‘the Agency’) about making a claim for DSP and lodged a claim the following day. Ms Oudah was 57 years old at the time.

4. The claim was rejected by the Agency on 14 January 2018 on the basis of Ms Oudah being assessed as not having an impairment rating of 20 points or more. On 28 October 2020 she requested a review of the decision to reject her claim, which was affirmed by an Authorised Review Officer (‘ARO’) on 13 November 2020. Ms Oudah sought review at the AAT1 which affirmed the decision to reject Ms Oudah’s DSP application. 

5. Ms Oudah sought review of the AAT1 decision by the General Division of the Tribunal and a hearing was held on 26 August 2021. Ms Oudah was represented by her daughter, Manar Galo. As her representative Ms Galo advocated on behalf of Ms Oudah. In doing so she refused to allow Ms Oudah to answer any questions.

6. The reviewable decision calls into question aspects of Ms Oudah’s evidence. Given the nature of Ms Oudah’s conditions and the medical reports in evidence, it would have assisted the Tribunal to have had Ms Oudah give evidence. In representing Ms Oudah, Ms Galo did not assist the Tribunal in considering the merits of her application.

7. In making this decision, I have done so based on the evidence before the Tribunal, noting the deficit of oral evidence from Ms Oudah as outlined above.   

8. When reviewing the decision I am to consider the evidence as it relates to the 13 week period following application for DSP (‘the relevant period’). The relevant period for the purposes of the reviewable decision is 14 December 2017 to 14 March 2018. Any evidence is relevant only in so much as it relates to Ms Oudah’s conditions during this time.  

   ISSUE TO BE DETERMINED

9. The issue to be determined is whether Ms Oudah is qualified to receive DSP in relation to her claim deemed to have been made on 14 December 2017.   

   CRITERIA TO BE APPLIED

   Qualification for Disability Support Pension

10. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (‘the Act’) sets out the criteria for qualification for payment of DSP. Subsection 94(1) of the Act provides that to qualify for the DSP:

    (a)a person must have a physical, intellectual or psychiatric impairment, or impairments; and

    (b)the impairment(s) must be rated at 20 points or more in accordance with the Impairment Tables; and

    (c)the person must have a continuing inability to work as defined in the Act.

11. The Secretary accepts that Ms Oudah suffered from impairments during the relevant period and that paragraph 94(1)(a) of the Act is satisfied. Based on the evidence I agree with this assessment.

    IMPAIRMENT TABLES

12. The first issue for determination is whether Ms Oudah’s conditions were fully diagnosed, treated and stabilised during the relevant period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

13. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘the Determination’). The Impairment Tables include rules for assigning a rating to determine the level of functional impact of impairments.

14. Subsection 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables. Section 6 provides that a condition can only be assigned an impairment rating if it is considered permanent. A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. 

15. For the purposes of the Impairment Tables, subsection 6(5) outlines what is to be assessed in determining whether a condition can be considered fully diagnosed and fully treated:

    (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

16. When applying the Impairment Tables, subsection 6(1) requires that when assessing functional capacity: 

    (1)  The impairment of a person must 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.

17. Subsection 8(1) provides that when applying the Impairment Tables, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

    Chronic pain condition

18. Ms Oudah has reported suffering from pain including severe headaches, lower back pain, neck pain, knee pain, foot pain and shoulder pain. As of the date of her application, the cause of her pain had not been determined. An MRI scan report dated 27 June 2017 indicates the imaging showed ‘[m]ultilevel mild degenerative disc disease’ in Ms Oudah’s spine and a ‘[s]uggestion of a small L5/S1 posterior annular tear’. Neurosurgeon Dr Renata Abraszko writes on 19 July 2017 that the MRI showed a minor disc bulge and no significant compression of the nerve root and recommends further testing.

19. Ms Oudah underwent chiropractic treatment for neck, shoulder, lower back and leg pain and her treating chiropractor Rukshana Master reported in a letter dated 15 September 2017 that Ms Oudah experienced a 70 percent improvement in the pain and following treatment she was able to perform household chores with ease. However, due to muscle weakness and arthritis of the spine the pain had reoccurred. Ms Oudah is reported to have attended an appointment for further chiropractic treatment during the qualification period. 

20. Ms Oudah’s general practitioner Dr Haythem Amir referred her to neurosurgeon Dr Paul Teychenne, rheumatologist Dr Loretta Rozario and cardiologist Dr Gamal Nashed.

21. The referral to Dr Teychenne indicates that Dr Amir was seeking assessment and advice on managing Ms Oudah’s chronic headaches. A subsequent report from Dr Teychenne dated 31 May 2018 records Ms Oudah experienced headaches, spinal pain and limb weakness but does not provide a diagnosis or treatment recommendations. A further report dated 16 July 2018 indicates that further EMG muscle sampling was recommended in order to assess spinal cord and peripheral nerve function.

22. Dr Rozario writes on 24 July 2018 that following a CT of Ms Oudah’s cervical spine and an MRI of her lumbar spine, she recommended Ms Oudah undergo a bone scan and bone density scan and provided a working diagnosis of fibromyalgia.

23. In an earlier report dated 30 June 2017 Dr Nashed records that Ms Oudah reported atypical chest pain but testing returned normal results and she was negative for ischaemic heart disease. Following the referral from Dr Amir, Dr Nashed writes on 15 May 2018 that an assessment revealed that Ms Oudah was stable from ‘the cardiac point of view’.  

24. Based on the evidence I am satisfied that the cause of Ms Oudah’s pain related conditions was still under investigation during the qualification period. As late as 13 June 2018 Dr Rozario was recommending further testing to confirm her working diagnosis of fibromyalgia. Dr Rozario and wrote on 24 July 2018 that she was ‘at a loss to explain her symptoms which appear to be totally out of proportion to the objective abnormalities as well as the imaging abnormalities’.

25. In relation to Ms Oudah’s headaches, Dr Teychenne wrote on 27 August 2018 that he suspected that they were arising from the cervical spine but does not provide a diagnosis. 

26. In the absence of a diagnosis and evidence of accompanying treatment during the qualification period, I find that Ms Oudah’s chronic pain conditions were not fully diagnosed and treated prior to or during the qualification period and consequently no impairment rating can be assigned. 

    Pelvic floor condition and bowel condition

27. On 15 March 2017 Ms Oudah was examined by Dr Lucia Saliba, a breast, endocrine and general surgeon. Dr Saliba diagnosed Ms Oudah with constipation and significant pelvic floor dysfunction with a possible uterine prolapse. In a medical report Dr Saliba writes she advised Ms Oudah to increase the amount of fibre in her diet and to drink more water. She also recommended Ms Oudah walk and use Benefibre and Movicol to help regulate her bowel. Dr Saliba referred Ms Oudah to a gynaecologist for further examination and states that she may eventually require colorectal surgery to address the pelvic floor dysfunction.

28. On 25 May 2017 Ms Oudah consulted with colorectal surgeon Dr Katherine M Gibson who noted a ‘chronic posterior anal fissure with associated fibrotic scar tissue’. She recommended Ms Oudah undergo a colonoscopy but there is no evidence of her having done so.

29. Dr Saliba reports Ms Oudah had suffered from chronic constipation for 22 years. However, there is some indication that Ms Oudah suffers from faecal incontinence and Dr Amir identified faecal incontinence in her past medical history in a referral letter dated 28 April 2018.  

30. In considering the evidence it does not appear that Ms Oudah followed the recommendation of Dr Gibson to undertake a colonoscopy. Similarly it is unclear whether she followed the advice of Dr Saliba in relation to changing her diet and exercise regime. Consequently, I am not satisfied that this condition was fully treated and stabilised during the qualification period and cannot be assigned an impairment rating.

    Mental health conditions

31. Ms Oudah consulted with psychologist Medhat Metry who reports on 1 December 2017 that Ms Oudah appears to be suffering from mixed anxiety and depression. She received 6 psychological therapy sessions in the form of cognitive behaviour therapy and Mr Metry reports  ongoing symptoms of depression and anxiety. He also observed that she continued to complain of chronic pain and headaches. He provides a recommendation of anti-depressant medication and continued therapy.

32. The Secretary contends that Ms Oudah’s conditions identified by Dr Hassan have not been diagnosed or confirmed by a psychiatrist or clinical psychologist as is required under the Impairment Tables and therefore cannot be assigned an impairment rating.

33. In considering the evidence, there is no indication of continued treatment by Mr Metry. An employment services assessment report dated 5 February 2018 records that she ‘recently commenced taking anti-depressant medication’ and reported it was helping. It appears that Ms Oudah told the AAT1 that she was prescribed anti-depressant medication but ceased taking it after one or two months because it caused drowsiness. This account is consistent with Dr Amir’s referral to Dr Teychenne on 26 March 2018 when he writes that Ms Oudah is not taking any regular medications.

34. In considering the evidence, it appears that Ms Oudah did not continue the treatment recommended by Mr Metry.

35. Impairment Table 5 Mental Health Function requires that a diagnosis be made by an appropriately qualified medical practitioner, which includes a psychiatrist, with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist. As Ms Oudah’s mental health condition had not been diagnosed or confirmed by a psychiatrist or clinical psychologist as required under the Impairment Tables, it cannot be assigned an impairment rating. 

    Eye conditions

36. On 18 April 2017 Ms Oudah consulted eye physician and surgeon Dr Chris Brown in relation to a watery eye. He reports that he identified a blockage in the left nasolacrimal system but reports that she did not wish to go ahead with a dacryocystorhinostomy. 

37. Dr Brown also reported that Ms Oudah’s visual acuity was 6/36 in both eyes and stated it was likely her decreased vision was due to amblyopia.

38. In considering the evidence, I am not satisfied that Ms Oudah’s watery eye was fully treated or that her amblyopia was fully diagnosed. As such, her eye conditions cannot be assigned an impairment rating.

    CONCLUSION

39. As Ms Oudah’s impairments do not rate 20 or more points on the Impairment Tables, she is unable to satisfy paragraph 94(1)(b) of the Act and her claim for DSP cannot succeed. It is therefore not necessary to consider whether she also had a continuing inability to work during the relevant period.

    DECISION

40. For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 22 October 2021

Date(s) of hearing:	26 August 2021
Advocate for the Applicant:	Ms M Galo
Solicitor for the Respondent:	Ms L Boyd, Hunt & Hunt Lawyers