Ridha and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 113

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 113

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5993

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ATEKA RIDHA

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS  

Respondent

DECISION

Tribunal Miss EA Shanahan

Date19 February 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) EA Shanahan

Member

SOCIAL SECURITY – cancellation of disability support pension (DSP) based on long term survival from treated renal carcinoma – disability impairment score 15 – other conditions not permanent fully treated or stabilised - decision affirmed

Administrative Appeals Tribunal Act s 37

Social Security Act 1991 s 94(1)(a), (b), (c), (d) & (e)(ii) and Schedule 1B

REASONS FOR DECISION

19 February 2009 Miss EA Shanahan     

1.      On 26 April 2007 a Centrelink delegate decided to cancel Mrs Ridha’s disability support pension (DSP) on the basis that she no longer qualified for DSP.  Centrelink is an agent of the Department of Education, Employment and Workplace Relations (the Department) for assessing and determining eligibility for DSP among other income support measures.  An Authorised Review Officer (ARO) from Centrelink affirmed the decision.  Mrs Ridha applied to the Social Security Appeals Tribunal (SSAT) for a review of the decision.  On 14 November 2007 the SSAT also affirmed the decision.  Mrs Ridha has now applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the SSAT decision.

2. Mrs Ridha represented herself before the Tribunal, with the help of her daughter and Ms Eljari, an interpreter in the Arabic language. Ms Kayren Paul, an advocate from Centrelink, represented the Respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).

ISSUES

3.      The issues before the Tribunal were:

(a)Was cancellation of Mrs Ridha’s DSP the correct decision?

(b)Does Mrs Ridha have the necessary 20 impairment points under the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act), in order-to satisfy s 94(1)(b) of the Act?

4.      Mrs Ridha is 46 years old.  She left school after year nine when her family shifted from Iraq to Syria in 1980.  Despite a three month English language course she is not literate in English.  She married in 1983 and migrated to Australia with her family in 1988.  She has four children aged between 13 and 23 years.  Mrs Ridha has never worked for a salary.

5.      Starting when she was a teenager, Mrs Ridha suffered approximately four bouts of undiagnosed abdominal pain per year.  In 1999 she developed a right loin ache.  Investigation led to the diagnosis of a right renal cell carcinoma.  On 10 September 1999 Mrs Ridha underwent surgery and her right kidney was removed.  She made an uneventful recovery.  There was no evidence of spread of her carcinoma.  Her prognosis was regarded as favourable.  

6.      Mrs Ridha also has a long history of asthma requiring treatment.  Following the removal of her kidney, she developed depression which was brought on by the malignancy but also contributed to by lack of extended family support and by her homesickness for Syria. 

7.      Mrs Ridha is afraid the carcinoma will re-occur and also of damaging her remaining left kidney by taking medication.  She has not taken the anti‑depressive medication prescribed for her because of this fear.  The prescribed drug also caused dryness of the mouth.  She has also seen an Arabic-speaking psychologist and a psychiatrist and has had psychological counselling on two or three occasions.  She cannot afford ongoing treatment.

8.      Mrs Ridha was granted DSP in 2002 on the basis that she had an impairment rating of 15 points for asthma and 10 points for the renal malignancy under the Impairment Tables.  In 2007, given the passage of time since the removal of her kidney, Centrelink reassessed Mrs Ridha’s capacity for work.  In the interim her depression had become more manifest, her longstanding varicose veins problem had started making her legs ache and she developed a small left inguinal hernia.  Her current symptoms are lethargy, fleeting abdominal pain, depressed mood, poor appetite, poor concentration, aching legs and shortness of breath on exertion.

9.      In 2007 Centrelink re-assessed Mrs Ridha’s impairment.  Based on regular reports from Mrs Ridha’s treating doctor and the result of a job capacity assessment, Centrelink confirmed the impairment assessment of 15 points for bronchial asthma.  However, Centrelink reduced the impairment assessment of the malignancy to zero.  Mrs Ridha had undergone regular follow-ups for the malignancy and checking of her renal function.  Both the general practitioners who had seen her had found no incapacity relating to the removal of her right kidney.  Mrs Ridha’s depression was considered permanent but had not been fully investigated or treated.  Her name has been placed on waiting lists at two public hospitals for surgical treatment of the varicose veins and the hernia.  Thus no points could be allotted for the depression, varicose veins and hernia as they were either not permanent or had not been fully treated and stabilised as required by Schedule 1 B of the Act.

RELEVANT LEGISLATION

10. The relevant legislation is contained in s 94 of the Act. In particular, s 94(1)(a), (b) and (c) are attracted:

(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; …

Mrs Ridha meets the requirement of s 94(1)(d) and s 94(1)(e)(ii).

11. Schedule 1B of the Act provides tables for the assessment of work-related impairment for disability support pension, which allows Centrelink to assess an Applicant’s level of disability.

EVIDENCE BEFORE THE TRIBUNAL

12.     With the assistance of the interpreter Mrs Ridha explained her fears of damaging her remaining kidney and the effect this has had on the development of her depression.  This also is the major reason why she has refused to take anti-depressant medication. 

13.     The Tribunal explained in simple terms the methods employed in Australia for assessing a patient’s response to surgical treatment and the prognostic importance of long term survival from malignancy.  Very simplistically, based on known statistics, it may be said that the patient who is alive and well, with no evidence of the recurrence or metastases five years after definitive treatment is regarded as cured.  Mrs Ridha’s follow up has been regular, her renal function has never been described as abnormal and there is no evidence of recurrence or metastases.  The Tribunal also explained how this impacted on her DSP; in that given the passage of time, now nearly 10 years, and her physical functioning, she no longer qualifies for 10 impairment points due to her past renal carcinoma.

14.     Mrs Ridha confirmed via the interpreter that she understood the Tribunal’s explanation.  She went on to say that before the operation the risks of surgery and prognosis with respect to recurrence or metastases had been explained to her husband who passed the information on to her.  After the surgery similar discussions were held with the treating surgeon.  This information had alarmed her as in her home country no patient would be given such detailed information or even told of the diagnosis of cancer.

15.     The Tribunal Member, who is medically qualified, also explained that the drug Lexapro, which had been prescribed for her, was not associated with renal side effects.  She was advised to return to her psychiatrist, take the anti-depressant for a period of six months while undergoing renal function monitoring and then have her depression re-assessed by the psychiatrist.  She would then be required to undergo job capacity assessment once more.  It was explained that if she had not derived any benefit from a course of psychiatrist supervised treatment she could then re-apply for the DSP.  Mrs Ridha agreed to follow these recommendations.

16.     Ms Paul agreed to make enquiries into the availability of further Government- funded psychiatric counselling. 

17.     She understood that she did not qualify for the DSP as of April 2007 and that she still does not qualify. 

18.     The Tribunal believes Mrs Ridha has understood both the reasons for the cancellation of her DSP, better understands her medical condition and will follow the recommended course of further treatment.

19.     The decision under review is affirmed. 

I certify that the nineteen (19) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss EA Shanahan

(sgd):Leah Berardi

Clerk

Date of Hearing  27 January 2009
Date of Decision  19 February 2009
Self represented Applicant       Mrs A Ridha
Advocate for the Respondent   Ms Kayren Paul, Centrelink