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

[2021] AATA 2620

Ozkose and Secretary, Department of Social Services (Social services second review) [2021] AATA 2620 (30 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6838

Re:Leyla Ozkose

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:30 July 2021

Place:Sydney

The decision under review is affirmed.

..................................[sgd].....................................

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – entitlement to disability support pension – whether conditions fully treated and stabilised during the qualification period – whether impairment was of 20 points or more under s 94(1)(b) – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Shi v Migration Agents Registration Authority [2008] HCA 31

SECONDARY MATERIALS

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

REASONS FOR DECISION

Chris Puplick AM, Senior Member

30 July 2021

1. Ms Leyla Ozkose (the Applicant) is seeking a review of a decision by the Social Services and Child Support Division of this Tribunal (AAT1) which, on 21 October 2020 affirmed an earlier decision by the Secretary, Department of Social Services (the Respondent) to reject the Applicant’s claim for payment of the Disability Support Pension (DSP).

2. The Applicant lodged her DSP claim on 24 July 2019. It was originally rejected on 15 October 2019 and after the Applicant had sought a review of that decision the rejection decision was confirmed by an Authorised Review Officer (ARO) of the Department on 2 June 2020.

3. When the matter came before the AAT1 that Tribunal upheld the decision of the ARO and did so by giving only oral reasons for that decision. Although the absence of oral reasons deprives this Tribunal of any opportunity to draw upon evidence which might have been presented there, this is not a matter of great moment as the Tribunal is bound to make its decision de novo and on the basis of the evidence before it at the time of its decision-making.[1]

   [1] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].

4. That said, as is explained below, the Tribunal is confined to making its findings as to the degree of the Applicant’s impairments as they were between 24 July 2019 and 23 October 2019. Any evidence which post-dates 23 October 2019 is relevant only to the extent that it sheds light upon matters during that 13-week period in question.

5. The Tribunal conducted its hearing on 19 July 2021 using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols.

   THE DISABILITY SUPPORT PENSION REGIME

6. In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (the Act). Section 94 has three distinct limbs:

   94 Qualification for disability support pension

   (1) 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;

   (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

7. In essence, these key requirements or criteria, amount to this:

   ·the person has a physical, intellectual or psychiatric condition;

   ·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;

   ·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;

   in addition to two further requirements as below:

   ·the person has turned 16; and

   ·the person is an eligible citizen or qualifying resident.

8. Failure to meet any one of these requirements is fatal to an applicant’s claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.

9. In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:

   ·fully diagnosed and documented;

   ·fully treated; and

   ·fully stabilised.

10. These important terms are defined in the Impairment Tables[2] as follows:

    [2] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) (Cth) s 6.

    ...

    Impairment ratings

    (3) An impairment rating can only be assigned to an impairment if:

    (a) the person’s condition causing that impairment is permanent; and

    (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Permanency of conditions

    (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

    (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b) the condition has been fully treated; and

    (c) the condition has been fully stabilised; and

    (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    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.

    Fully stabilised

    (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (a) either the 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 2 years; or

    (b) the person has not undertaken reasonable treatment for the condition and:

    (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

11. Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.

12. A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:

    (a) … doing any work independently of a program of support within the next 2 years; and

    (b) … either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

13. It is within this legislative framework that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.

14. Finally, the DSP scheme has a temporal element to it in that any claim must be assessed with reference to a specific time framework. The Social Security (Administration) Act 1999 (Cth) provides that a claim must be assessed taking as a starting point, the day upon which the DSP application was made and considering the applicant’s eligibility from that date forward within a 13 week period thereafter. This is referred to as the “qualification period”. Only evidence which relates to the applicant’s condition during this period can be taken into account by the Tribunal and any evidence which post-dates the period must, to be accepted, relate specifically to that period.[3]

    [3] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

15. In this instance, the qualifying period commences on the day which the Applicant lodged their application 24 July 2019 and concludes on 2 October 2019.

    CLAIMED IMPAIRMENTS

16. The Applicant claims she has impairments resulting from a number of conditions, each of which must be assessed by the Tribunal. The conditions outlined in her application, as summarised in the Respondent’s SFIC included:

    (a)Chronic lower back pain (lumbar spondylosis);

    (b)Neck pain (cervical spondylosis);

    (c)Depression;

    (d)Carpal tunnel syndrome;

    (e)Severe reflux (GORD[4]);

    (f)Gout; and

    (g)Headaches.

    [4] Gastro-oesophageal reflux disease.

17. During the course of the hearing the Applicant raised issues with some form of congenital heart condition and indicated that she had seen a cardiologist about these issues as far back as 2017 (she related this as being “two years before her stomach operation” which was in August 2019). However, there is no information at all before the Tribunal related to any heart conditions nor are they mentioned in reports by the general practitioners or supported by any cardiology reports. As such, while the Tribunal accepts that they might constitute problems for the Applicant, they cannot be considered within the scope of this application.

18. In a July 2021 report by Ms Ozdemir (clinical psychologist) a significant number of other medical conditions are alluded to, including thyroid issues, non-insulin-dependent diabetes, rheumatism and fainting. Again, none of these is supported by independent clinical or specialist diagnoses and while each may be relevant to the Applicant’s current state of health, they do not fall within the qualification period to which the Tribunal must have regard.

19. It is useful just to summarise the Respondent’s position across the board as it relates to each of the identified conditions during the qualification period:

Condition	Fully diagnosed	Fully treated	Fully stabilised
Chronic lower back pain	Yes	Yes	Yes
Neck pain	Yes	No	No
Depression	Yes	No	No
Carpel tunnel	Yes	No	No
Severe Reflux (GORD)	Yes	No	No
Gout	Yes	No	No
Headaches	No	No	No

1. It is thus apparent that the Respondent concedes that the Applicant has been diagnosed with the majority of her claimed conditions and that these diagnoses are accepted by the Respondent as having been made relevantly to the qualification period. However, the gravamen of the Respondent’s contentions is, that with the exception of the chronic back pain, each of the other conditions was either the subject of, or susceptible to, ongoing treatment which may in fact have led to an improvement in that condition.

2. If this is so, then clearly those conditions are not fully treated and stabilised as per the definitions of those terms given above.

3. The Tribunal will deal with the contended conditions first before examining the level of impairment caused by the fully diagnosed, treated and stabilised condition of chronic back pain.

   Neck pain

4. The CT cervical scan report of Dr Greg Markson (19 November 2007) identifies mild central canal stenosis at the C6/7 level and mild degenerative facet joint disease bilaterally at the C7/T1 level.[5]

   [5] Tribunal documents (T-documents) at 241.

5. The Respondent’s position on the condition being fully treated and stabilised states merely that:

   “[t]here is insufficient evidence regarding the diagnosis, treatment and prognosis of this condition at that time.”[6]

   [6] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [45].

6. This however does not assist the Tribunal in that there is no guidance as to what the Respondent would regard as “sufficient evidence” for this matter to be determined.

7. The Applicant described to the Tribunal some difficulties which she had with moving her head without moving her whole torso and that she had some problems with reaching up to access items which were above her shoulder level.

8. The Tribunal is inclined to take the position that the treatments which were being provided for the chronic lower back pain were those which were equally suitable for the condition of neck pain which is obviously part of the same suite of impairments. It does not appear possible to distinguish the lower back pain from the neck pain in terms of their functional impairment of the Applicant and, as such the Tribunal finds that the neck pain was fully diagnosed, treated and stabilised during the qualification period.

9. The question of an impairment rating for this condition will be discussed below.

   Depression

10. The reports of Drs Najeed and Chaudhary establish that the Applicant was diagnosed with depression and anxiety.[7] During the qualifying period the Applicant was on a course of medication, including the use of Zoloft.

    [7] T-documents at 156 (Najeed) and 175-176 (Chaudhary).

11. In December 2019 the Applicant commenced seeing a counsellor (Ilknur Aytugrul) who found that she was suffering from General Anxiety Disorder associated with Moderate Depressive Episode and recommended ongoing treatment though Cognitive Behavioural Therapy (CBT). It appears that Mr Aytugural then worked with the Applicant using CBT and that this was still ongoing as at a report of his dated 18 February 2020.[8]

    [8] Ibid at 172 and 177.

12. In April 2020, the psychiatrist, Dr Chaudhary reported that he was continuing to provide treatment for the Applicant which included a variation of her medication and that, as he was planning to retire he recommended that the Applicant be referred to another psychiatrist for what he described as “ongoing and continuing treatment”.[9]

    [9] Ibid at 182.

13. The aforementioned reports of December 2019, February 2020 and April 2020 indicate that the Applicant commenced a course of professional treatment/management of her depressive illness after the end of the qualifying period and that this treatment/management was ongoing and continuing thereafter.

14. Prior to the hearing the Tribunal was presented with a detailed report by Ms Rashia Ozdemir,[10] a registered psychologist who has seen the Applicant on two occasions and conducted several sessions with her over the telephone. Ms Ozdemir’s report is comprehensive and based on both interviews and recognised DSM-5[11] validating tests. Her diagnoses of Persistent Depressive Disorder (Dysthmia), with Anxious Distress, Late Onset, Severe; Generalised Anxiety Disorder with Panic Attacks and Post-Traumatic Stress Disorder are clearly based upon well tested evidence.

    [10] Report by Ms Ozdemir dated 7 July 2021 (Ozdemir Report).

    [11] Diagnostic and Statistical Manual of American Psychiatric Association – Fifth Edition.

15. Ms Ozdemir’s report notes that there has been a “significant deterioration in her ability to function daily at home and in the community.”[12]

    [12] Ozdemir Report at 13.

16. The Tribunal accepts Ms Ozdemir’s report as a proper diagnosis of the current state of the Applicant’s mental health but notes that it does not address directly any such diagnoses related to the qualification period and indeed it notes both a deterioration in her condition to the current point of not now being amenable to further treatment. As such it may be taken to describe a condition fully diagnosed, treated and stabilised as at the date of this hearing but not during the qualification period.

    Carpal tunnel syndrome

17. A medical certificate of Dr Selim (14 December 2018) and Report of Dr Hossain (10 January 2019) confirm the diagnosis of carpel tunnel syndrome.[13]

    [13] T-documents at 96 (Selim) and 98 (Hossain).

18. In September 2019 and July 2020, two separate specialist neurologists recommended that the Applicant undergo carpal tunnel release surgery[14] which she did successfully in November 2020. After the successful surgery her neurologist recommended that this be augmented by ongoing physiotherapy.[15]

    [14] Ibid at 153-155 (Daud) and 202-203 (Dowla).

    [15] Ibid at 250-251.

19. The recommendation for surgery was made in September 2019, which is within the qualification period, but it was not acted upon during that period. This again brings into question the definition of what constitutes a condition being fully treated. An impairment rating can only be assigned to a condition which is “permanent”.[16] A condition can only be “permanent” if it is likely to persist for more than two years and there is no treatment continuing or planned during that period.[17]

    [16] Impairment Tables s 6(3).

    [17] Ibid ss 6(4) and 6(5).

20. It is clear that during the qualification period the Applicant’s condition of carpal tunnel syndrome was amenable to treatment and that treatment had been recommended. That treatment was subsequently undertaken, apparently with some degree of success, and recommendations of ongoing treatment were made suggesting that further improvement in her condition could be anticipated.

21. The condition of carpel tunnel syndrome was therefore not fully treated and stabilised during the qualification period.

    Severe reflux (GORD)

22. This was diagnosed by Dr Selim in December 2018.[18] The Applicant then clearly took a series of steps to address the problem.

    [18] T-documents at 96.

23. In the first instance, in July 2019 she attended an Upper GI Reflux Clinic where she was assessed for ani-reflex surgery and booked for gastroscopy and other testing.[19] She then had laparoscopic surgery in August 2019 with attendant follow-up arrangements[20] and was thereafter scheduled to undergo barium swallow procedures on 14 October 2019.[21]

    [19] Ibid at 138.

    [20] Ibid at 141-145.

    [21] Ibid at 159.

24. All these procedures took place within the qualification period, but as a result of these interventions further assessments were made. The tests conducted as a result of the July 2019 assessment resulted in a further report in May 2020 wherein Dr Garg, a senior resident medical officer, reported that the Applicant required further oesophageal manometry and pH studies.[22]

    [22] Ibid at 187. Oesophageal manometry measures the contractions of the oesophagus while swallowing.

25. In evidence the Applicant told the Tribunal that she was awaiting a date for further surgery and indeed that this had been the case for some 18 months.

26. The fact that treatment was being undertaken during the qualification period and that treatment was extended beyond it and indeed is ongoing, means that the condition cannot be taken to have been fully treated and stabilised as required.

    Gout

27. There is a reference to gout in Dr Selim’s report of 17 December 2019[23] which, while itself outside the qualification period would nevertheless import that the Applicant suffered gout at the relevant time. However, there is no indication that any treatment was prescribed for the condition and none was referred to when the matter was raised in the Tribunal’s hearing.

    [23] Ibid at 173-174.

28. The condition cannot be considered fully diagnosed, treated and stabilised.

    Headaches

29. The problem with headaches was outlined is but briefly mentioned in the original application and is referenced (“migraine which sometimes leads to losing eyesight”) in Ms Ozdemir’s report. However, there is no medical evidence before the Tribunal which would establish even a preliminary diagnosis of this condition as an impairment and so it cannot be further considered.

    ASSESSMENT OF IMPAIRMENT

1. The Tribunal has found that the conditions of chronic back pain and neck pain are both fully diagnosed, treated and stabilised. However, as noted, the Tribunal made its finding in relation to the neck pain as an associated condition with the back pain and as a manifestation of the same underlying impairment.

2. In the Rules of Applying the Impairment Tables[24] it is made clear that where two or more conditions combine to cause a single common impairment then they should be assessed together and not dealt with as separate items and not have a separate impairment rating attached to each. The Tribunal must follow this course of action and then assign an impairment rating to the condition of “severe back and neck pain” (lumbar and cervical spondylosis).

   [24] Part 2, Rule 10(5).

3. The relevant Impairment Table is Table 4 – Spinal Function. It sets out a series of criteria for the assignment of either 5, 10 or 20 points as follows:

5

There is a mild functional impact on activities involving spinal function.

(1)       The person has some difficulty in:

(a)       activities over head height (e.g. activities requiring the person to look upwards); or

(b)       bending to knee level and straightening up again without difficulty; or

(c)       turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)       The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)       the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)       the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)       the person is unable to bend forward to pick up a light object placed at knee height; or

(d)       the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)       The person is unable to:

(a)       perform any overhead activities; or

(b)       turn their head, or bend their neck, without moving their trunk; or

(c)       bend forward to pick up a light object from a desk or table; or

(d)       remain seated for at least 10 minutes.

1. The Tribunal notes the report of Dr Hossain of 10 January 2019 in which he assesses the Applicant’s mobility levels, remarks on the strength and variability of the pain suffered by the Applicant and that “power in the lower limbs was well preserved”.

2. The Tribunal questioned the Applicant about which of the various tasks she was able to complete and where she was compromised in her mobility. She was asked to relate these impairments back to her condition, as best she can remember during the qualification period. The answers which she gave, when taken together with her reported impairments related to her neck condition; especially in relation to independent head movement, level of capacity to manage overhead tasks and ability to remain seated would lead the Tribunal to assign a rating of 10 (ten) points on this Table at that time, although a higher rating might be considered in terms of current presentations.

   DISCUSSION

3. Analysis of the Applicant’s conditions during the qualification period would lead to an overall impairment rating of ten points, clearly below the minimum threshold of 20.

4. However, the evidence before the Tribunal in terms of Ms Ozdemir’s comprehensive report, new information about cardiology issues, evidence of deterioration in musculoskeletal strength and the presentation of information about migraines, diabetes, fainting and rheumatism, all suggest that the best course of action for the Applicant is to lodge a new claim for the DSP which could be assessed on the basis of this new evidence.

5. The Tribunal can and should give no guarantee or speculate about any outcome of such an application, but it seems eminently suggested in all the circumstances.

6. Similarly, because no rating of 20 points or more has been found, it is not necessary for the Tribunal to consider the third limb of the DSP requirements related to inability to work or programmes of support (PoS). Nevertheless, the Tribunal documents[25] show that the Applicant has, since the qualification period, been involved in a PoS with WISE Employment in Auburn. Within the parameters of any new application, this involvement and the permitted exemptions from parts thereof would be able to be taken into consideration.

   [25] T-documents at 228.

7. It was obvious in the Tribunal’s hearing that the Applicant was a person of some strength and determination. She was honest and forthright about the matters raised with her. At the same time, it was equally obvious that she suffers from a number of both physical and mental health challenges which need to be addressed. She has herself been, to use the words of the Respondent’s representative “diligently undertaking treatment” and there are some of her conditions which remain open to further interventions and hopefully improvements. There are others such as her musculoskeletal and mental health problems which appear less so, whatever their status may have been during the qualification period.

   DECISION

8. The decision under review is affirmed.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.....................................[sgd]...................................

Associate

Dated: 30 July 2021

Date(s) of hearing:	19 July 2021
Advocate for the Applicant:	Mr M Uluc
Solicitors for the Respondent:	Ms L Boyd, Hunt & Hunt Lawyers