Rukhsana Khawaja and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 264

[2013] AATA 264

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1473
Re	Rukhsana Khawaja
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	1 May 2013
Place	Sydney

The decision under review is affirmed.

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

Ms G Ettinger, Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – qualification – applicant suffers from various illnesses and conditions – conditions assessed by way of Job Capacity Assessments – new conditions nominated after application for pension – whether impairments are rateable under impairment tables – whether applicant’s conditions attract an impairment rating of at least 20 points in the relevant period – residency requirement – decision under review affirmed

LEGISLATION

Social Security Act 1991 ss 7, 94

Social Security (Administration) Act 1999 ss 41, 42; Sch 2

Social Security (International Agreements) Act 1999 Sch 3

REASONS FOR DECISION

Ms G Ettinger, Senior Member

1 May 2013

SUMMARY

1. Ms Khawaja, who is 57 years old, was born in Pakistan, and has lived and worked in New Zealand and Australia. Ms Khawaja is a university graduate, has a bachelor’s degree and a master’s degree (studied in her native language), and has certification in aged care studies (conducted in English) from TAFE in Australia. She worked as a teacher in Pakistan, and an aged care nurse both in New Zealand and in Australia. Ms Khawaja arrived in Australia from New Zealand in 2005. She suffers a variety of illnesses and conditions.

2. Ms Khawaja applied for the Disability Support Pension (DSP) on 14 June 2011. She has supported the application with various medical reports from her general practitioner, Dr David Singh. Three Job Capacity Assessments (JCA) have been carried out in connection with her application. Each has found that Ms Khawaja does not meet the threshold 20 impairment points within the relevant period, being 14 June 2011 and 13 weeks following that date (13 September 2011). The assessments are all before the Tribunal.

3. Ms Khawaja faces further issues with regard to the grant of DSP, because she has not met the residency requirements pursuant to the Social Security Act 1991 (the SSA).

4. My task is to consider the relevant legislation, being the SSA, and the Social Security (Administration) Act 1999 (the Administration Act), and to make the correct or preferable decision regarding whether Ms Khawaja qualifies for DSP.

5. Unfortunately whilst I feel sympathy for Ms Khawaja, and understand her argument, on the documentation before me for the relevant period, she does not meet the 20 point threshold required in consideration of section 94(1)(b) of the SSA. Accordingly, although the JCAs and Dr Singh, Ms Khawaja’s general practitioner since 2006, made findings regarding Ms Khawaja’s inability to work, it was not necessary for me to consider this issue.

6. Ms Khawaja’s application for DSP had been rejected by a Centrelink officer, and by the Authorised Review Officer (ARO). She exercised her right to appeal to the SSAT which, on 20 March 2012, handed down its decision to affirm the ARO’s decision. Ms Khawaja then applied for review to this Tribunal. I have decided that taking into account the relevant dates, she does not qualify for DSP. My reasons follow. Despite the lack of success in this application, Ms Khawaja may be able to re-apply for DSP.

7. I note for the sake of completeness that Ms Khawaja’s sister, Mrs Rehana Khwaja who has been supporting her, applied on 10 September 2012 to be joined as a party in this matter. She subsequently withdrew, but stated that she wished to represent the Applicant at the hearing. Ms Rehana Khwaja did not attend with her sister on the day of the hearing.

   ISSUE BEFORE THE TRIBUNAL

8. The issue I need to consider is whether on 14 June 2011, the date of claim, or within 13 weeks of that date, being 13 September 2011, the Applicant met the qualification criteria for disability support pension set out in section 94 of the SSA.

9. In particular, I must decide:

   (a)whether Ms Khawaja has a physical, intellectual or psychiatric impairment;

   (b)whether her impairments attracted an impairment rating of at least 20 points under the Impairment Tables at Schedule 1B to the SSA, and, if so,

   (c)whether she had a continuing inability to work as defined by section 94 of the Act;

   (d)whether the Applicant meets the residency requirements, and if not whether she is eligible for DSP pursuant to the social security agreement with New Zealand.

10. Ms Khawaja appeared at the Tribunal and represented herself. The Respondent was represented by Mr Cameron Hutchins.

    LEGISLATIVE CONTEXT

11. The relevant legislation is the SSA and the Administration Act.

12. Sections 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Administration Act provide that the relevant period, for consideration of the Applicant’s qualification is 14 June 2011 to 13 September 2011.

    CONSIDERATION OF SECTION 94(1) OF THE SSA

13. In order to decide whether Ms Khawaja’s application for DSP can be granted, I took into account the requirements of section 94(1) of the SSA. I took into account Ms Khawaja’s oral evidence, the JCAs and other documents tendered by both parties, including the reports of Dr Singh. Certain of Dr Singh’s reports were outside the relevant period which I can consider. However in his report of 8 October 2012, he specifically addressed her conditions as they were at the time of her application for DSP.

    WHETHER MS KHAWAJA HAS A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT

14. It is not in dispute, and I accept, that Ms Khawaja suffers various conditions as noted by her doctor and in the JCAs, and with which I will deal below. She meets the criteria in section 94(1)(a) of the SSA in that she has a physical, and a psychiatric impairment.

15. Her conditions include diabetes mellitus, adhesive capsulitis left shoulder, bilateral carpal tunnel syndrome, left elbow fracture, anxiety and depression, iron deficiency, morbid obesity, and cervical spondylosis.

    WHETHER MS KHAWAJA’S CONDITIONS ATTRACTED AN IMPAIRMENT RATING OF AT LEAST 20 POINTS AT THE RELEVANT TIME

16. In order to attract an impairment rating under the Impairment Tables, the Tribunal must be satisfied that any condition for which Ms Khawaja claims, has been fully documented and diagnosed, and has been investigated, treated, and stabilised within the relevant period. The Tribunal would then have to be satisfied that the relevant condition is permanent within the terms of the legislation.

17. Dr D Singh has been Ms Khawaja’s general practitioner since 2006. He has reported a number of times in regard to her various conditions, and given impairment ratings which are noted in the paragraphs below. Unfortunately he did not indicate how he came to those conclusions or what tables he applied, so that I have given more weight to the JCA assessors who used the appropriate tables.

18. Ms Khawaja gave oral evidence at the Tribunal. She told me that she loved her job at the nursing home where she worked from 2005 to 2010. She had studied for a certificate in aged care at TAFE in 2007. Ms Khawaja said that her shoulder problem was the main reason she ceased work, although the injury was not caused by work. She said that she never thought she would be sitting in front of a Tribunal as she had been hardworking all her life.

19. Ms Khawaja said that she had difficulties with mobility, but had come to the Tribunal hearing by train. She was worried about travelling alone because of her conditions, but said that her sister would meet her at the station on her return.

    Left shoulder adhesive capsulitis

20. The Applicant suffers from left shoulder adhesive capsulitis. Dr Singh noted in his reports of 6 June 2011 and 25 July 2011, that the date of onset of the condition was in March 2010, and that it was diagnosed in April of the same year. He noted that future planned treatment included surgery, and that the Applicant had undergone cortisone and dextrose injections which Ms Khawaja said may continue. In his report of 25 July 2011, he indicated that Ms Khawaja had persisting left shoulder pain and stiffness, a weak left arm, restrictions in movement and resultant neck pain. He stated that he expected the condition to persist for more than 24 months, and the effect of the condition on her ability to function was uncertain within that time.

21. In his report of 25 July 2011, Dr Singh stated that Ms Khawaja’s condition had not improved over the past 18 months.

22. In a report dated 18 March 2012 which is outside the relevant period, Dr Singh stated that: Her frozen shoulder has not improved and she has very restricted functional use of her left arm. Ms Khawaja’s oral evidence corroborated that report in regard to her arm.

23. I had two further reports of Dr Singh before me which were also outside the relevant period. In the report of 10 September 2012, Dr Singh referred to adhesive capsulitis of the right shoulder for the first time, and also mentioned Ms Khawaja’s restrictions on her left shoulder. In his report of 8 October 2012, he recommended an impairment rating of 10 points be assigned for the Applicant’s upper limb function due to carpal tunnel, shoulder capsulitis and elbow fracture.

24. Ms Khawaja tendered a number of reports of investigations which had been done prior to, and following the relevant period. A report of X-ray and ultrasound of the left shoulder dated 23 April 2010 was Exhibit A1. The conclusions drawn by the radiologist were the presence of supraspinatus tendonitis with impingement of the supraspinatus tendon during abduction.

25. The report of the JCA carried out on 15 June 2011, noted that the condition of shoulder and upper arm disorder Ms Khawaja suffers is fully diagnosed, treated, stabilised and permanent within the meaning of the Act, as reasonable treatment options have been accessed by the Applicant in managing her condition. The assessor recommended a five point impairment rating under Table 3.

26. Table 3 provides in part as follows:

    TABLE 3.UPPER LIMB FUNCTION

    All upper limb problems are assessed under the upper limb Table (Table 3).  Each arm is assessed separately.  Determination of upper limb impairments must be based on a demonstrable loss of function.

    RatingCriteria

    NILCan use dominant limb effectively and/or

    Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

    FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes moderate interference with hand function or manual handling.

    TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

    FIFTEENDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non‑dominant upper limb which causes significant interference with hand function or manual handling.

    TWENTYDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or

    Unable to use non‑dominant upper limb at all.

    THIRTYUnable to use dominant upper limb at all.

27. In his report dated 25 July 2011, Dr Singh noted that the Applicant has very restricted use of her left arm which limits physical activities, and she is unable to return to previous work duties.

28. I had before me a report of right shoulder injections Ms Khawaja underwent on 29 August 2012 (Exhibit A2) and 20 September 2012 (Exhibit A3). She underwent left shoulder injections on 17 September 2010 (Exhibit A5), and 3 November 2010 (Exhibit A6).

29. In a further JCA carried out on 3 August 2011, the assessor recommended a 15 point impairment rating under Table 3, and noted that the shoulder and upper arm disorder was permanent.

30. In a Centrelink Functional Capacity Evaluation Report dated 16 August 2011, the assessor noted that the Applicant had restricted range of movement in her left shoulder. The assessor also noted in regard to the left upper limb that there was Demonstrable evidence of major loss of strength, mobility, coordination, dexterity, and/or sensation of the non-dominant upper limb which causes significant interference with hand function or manual handling. In regard to the right upper limb, the assessor noted Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

31. In a further JCA carried out on 9 November 2012, the assessor recommended a 15 point impairment rating under Table 3 (Exhibit R4), noting that the condition had been optimally treated and stabilised within the relevant period. In assigning this rating, the assessor took into account the effects of the Applicant’s other conditions affecting her left arm that were accepted as permanent. This was to avoid any double counting.

32. The Respondent submitted, noting the assessments of Dr Singh and the JCA, that the condition of left shoulder adhesive capsulitis is permanent within the meaning of the Act, and a 15 point rating for this condition under Table 3 is appropriate. I accepted that rating was appropriate.

33. In his report of 10 September 2012, Dr Singh referred to adhesive capsulitis of the right shoulder for the first time. As the condition of the right shoulder was not within the period which I can take into account, being 14 June 2011 to 13 September 2011, and as I have no indication of whether the condition is permanent, I cannot consider it for the purpose of determining eligibility for DSP as part of this application.

    Bilateral carpal tunnel syndrome

34. The Applicant suffers from bilateral carpal tunnel syndrome which Dr Singh stated has been symptomatic since 2008, with increasing pain, paraesthesia and weakness in both hands. Dr Singh has noted that there is no significant improvement expected with the condition unless the Applicant has surgery.

35. In his report dated 25 July 2011, Dr Singh noted that the Applicant has bilateral pain and weakness in her hands.

36. The report of the JCA, carried out on 15 June 2011, noted that the condition, which commenced in 2008, is permanent within the meaning of the Act, as reasonable treatment options have been accessed by the Applicant in managing her condition, and there is no significant improvement expected. The assessor noted that the Applicant experiences numbness in her hands at night, which is managed by wearing special gloves. The Applicant told me that only some hours after waking and moving around, does she not experience numbness in her hands during the day. The assessor noted that the condition is considered fully diagnosed, treated and stabilised, and recommended a nil point impairment rating under Table 3.

37. In a JCA, carried out on 3 August 2011, the assessor agreed the condition is considered fully diagnosed, treated and stabilised, and recommended a nil point impairment rating under Table 3.

38. In the Centrelink Functional Capacity Evaluation Report dated 16 August 2011, the assessor noted that the Applicant experiences pain and weakness and numbness at the finger tips. She also has difficulties with using a knife and scissors.

39. In  a report by Dr Singh dated 8 October 2012, (Exhibit R3), he notes that the condition is likely to persist for more than two years, and the Applicant has had increasing pain, paraesthesia and weakness in both hands. He also recommended a 10 point impairment rating encompassing the Applicant’s carpal tunnel syndrome, and other left arm conditions.

40. In a further JCA, carried out on 9 November 2012, (Exhibit R4), the assessor recommended a nil point impairment rating under Table 3. The assessor noted that a collective impairment rating was assigned to both the bilateral carpal tunnel syndrome and the left shoulder conditions to reflect the combined impact on the joints affected.

41. The Respondent submitted taking into account the assessments of Dr Singh and the JCAs, that the condition of bilateral carpal tunnel syndrome is permanent within the meaning of the Act, and a nil point rating for this condition under Table 3 is appropriate.

42. I accepted the Respondent’s submission on the basis that Table 3 reproduced above deals with upper limbs, and note that the main disability is in the left shoulder. The rating of 15 points already accepted reflects the impairment from all conditions affecting the left upper limb accepted as permanent.

    Diabetes Mellitus type 2

43. The Applicant suffers from diabetes mellitus type 2. In his report of 6 June 2011, Dr Singh stated that Ms Khawaja’s diabetes was the condition with the most impact on her ability to function. He noted that the date of onset of the condition was in 1998, and that it was diagnosed in the same year. He further noted in the report of 6 June 2011 that it caused chronic lethargy and tiredness, and increased susceptibility to recurrent infections.

44. As will be noted below, Ms Khawaja reported an infection in her right first toe for which she had surgery in 2011, and which is impacted in its healing by the diabetes.

45. Dr Singh noted that future planned treatment may include insulin therapy, and that he expected the condition to persist for more than 24 months, and to fluctuate within that time. In his further report of 25 July 2011, Dr Singh noted that the diabetes was difficult to control, and there was a possible need for insulin.

46. In his further report, Dr Singh (8 October 2012, Exhibit R3), noted that there would be a possible improvement in control with insulin therapy for the Applicant’s condition. He also mentioned at Exhibit R2 dated 10 September 2012, that diabetic retinopathy may affect the Applicant’s visual acuity with possible deterioration in the future. Ms Khawaja told me that she had had vision problems since 2005. However Dr Singh mentioned it for the first time in his report of 10 September 2012 which did not relate to the period of her current application.

47. Dr Singh noted also that Ms Khawaja’s diabetic peripheral neuropathy was being treated by a neurologist, and was causing numbness and painful paraesthesia in her feet. The Applicant told me about her feet at the hearing. Dr Singh recommended an impairment rating of 10 impairment points be assigned for the Applicant for lower limb function due to peripheral neuropathy. The report of Dr D Rail, neurologist, dated 23 July 2012 (Exhibit A4), indicated that the Applicant developed burning of the feet in the preceding three to four weeks, that is, after the relevant period.

48. Both of Dr Singh’s reports of 10 September 2012 and 8 October 2012 were outside the relevant period, although I noted that in the latter, Dr Singh claimed to be describing the conditions Ms Khawaja suffered on 14 June 2011, the date of application for DSP. The reports may assist with any further application Ms Khawaja would like to make.

49. Dr Singh recommended an impairment rating of 10 impairment points be assigned for the Applicant re physical exertion and stamina due to morbid obesity, diabetes and anaemia.

50. The report of the JCA carried out on 15 June 2011, noted that the condition could not be considered to be fully treated and stabilised, as the Applicant had not attended a diabetes clinic, seen a diabetes educator, or undergone assessment by an endocrinologist. That was also the conclusion of the JCA carried out on 3 August 2011.

51. The JCA carried out on 9 November 2012, noted that the condition could be considered permanent, even though Ms Khawaja had not explored all reasonable treatment options at the relevant period. The JCA noted that treatment with insulin therapy would likely result in stabilisation and improved management of the condition.

1. The Respondent submits that based on the available medical evidence, in particular noting the reports of Dr Singh and JCAs, the medical condition of diabetes was not fully treated and stabilised at the time of the claim or within 13 weeks, and cannot be assigned an impairment rating under section 94(1)(b) of the Act. On the basis of the medical evidence referred to above, that is Dr Singh and the JCAs, I agreed with the Respondent’s submissions.

   Morbid obesity

2. The Applicant suffers from morbid obesity for which no significant improvement was expected according to Dr Singh. He noted that the date of onset of the condition was in or before 2007, but has progressed due to the Applicant’s inability to exercise due to her physical disabilities.

3. The JCA carried out on 3 August 2011 noted that the condition was considered temporary, as the Applicant had only reported weight gain within the 12 months prior to the assessment, and the Applicant may have improved with new treatment.

4. A further medical report by Dr Singh dated 8 October 2012 noted that treatment is difficult due to the Applicant’s ongoing weight gain, and affects her ability to function with reduced exercise capacity, breathlessness and lethargy.

5. The JCA carried out on 9 November 2012 noted that the condition could not be considered fully treated or stabilised, as the Applicant may benefit from further reasonable intervention and weight management strategies.

6. The Respondent submitted that based on the available medical evidence, in particular noting the reports of Dr Singh and the JCAs, the condition of morbid obesity was not fully treated or stabilised at the time of the claim or within 13 weeks, and cannot be assigned an impairment rating under section 94(1)(b) of the Act. On the basis of the medical reports and JCAs, I accepted the submissions of the Respondent.

   Iron deficiency

7. The Applicant suffers from iron deficiency/anaemia. Dr Singh has noted that the Applicant experiences chronic lethargy and weakness due to the condition, and is being treated with iron supplements. He also said in his report of 18 March 2012 (outside of the relevant period), that Ms Khawaja was booked for gastroscopy and colonoscopy in order to investigate her ongoing anaemia.

8. The first mention of iron deficiency in a JCA before the Tribunal, was that carried out on 3 August 2011, which noted that the condition is permanent within the meaning of the Act. The assessor noted that the condition has minimal functional impact on the Applicant. The assessor therefore recommended a nil point impairment rating under Table 20.

9. Table 20 provides in part as follows:

   TABLE 20.MISCELLANEOUS – MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

   Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

   RatingCriteria

   NILControlled hypertension

   Malignancy in remissions with a good to fair prognosis

   Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

   TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

   Hypertension that is difficult to control despite intensive therapy but without end-organ damage.

   Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

   Heart/Liver/Kidney transplants – well controlled (well functioning) with only mild systemic symptoms.

   FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.

   Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

   TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.

   …

10. In Dr Singh’s report dated 8 October 2012, he noted that the Applicant had a hysterectomy in 2008 for severe menorrhagia relating to her iron deficiency. He also noted that the anaemia had persisted, and had been aggravated by chronic illnesses and poor diet relating to the Applicant’s depression. He also recommended a 10 point impairment rating encompassing the Applicant’s diabetes, obesity, and anaemia.

11. In the JCA carried out on 9 November 2012, the assessor recommended a nil point impairment rating under Table 1. The assessor noted that the Applicant reported that her exercise tolerance was not affected by this condition, as it was adequately managed with medication and regular blood test reviews. At the hearing, Ms Khawaja denied she had informed the assessor of the above, and informed me that she had said she was feeling tired, and now taking two tablets a day instead of one.

12. The Respondent submitted, taking into account the assessments of Dr Singh and the JCAs, that the condition of iron deficiency is permanent within the meaning of the Act, and that a nil point rating for this condition under Table 1 is appropriate. I considered Table 20 more appropriate to rate anaemia, and found that a nil impairment point rating was appropriate in this case.

    Infection in right first toe

13. The Applicant suffered from an infection in her right first toe in 2011. Dr Singh noted in his report of 6 June 2011, that the Applicant spent five days in hospital in May 2011 for surgery on the toe, and treatment with antibiotics. He noted that significant improvement was expected of the condition, and that the Applicant was limited in standing or walking.

14. The JCA carried out on 15 June 2011 noted that the condition is considered temporary. There was no current treatment being undertaken to manage the condition, and there was no future treatment planned for the condition and improvement was expected.

15. A further JCA dated 9 November 2012 notes that the Applicant reported that the condition presented no continuing functional impact following surgery in 2011, and that the condition was considered temporary.

16. The Respondent submitted, taking into account the assessments of Dr Singh and the JCAs, that the condition of infection in the right first toe was temporary at the relevant period, and therefore cannot be assigned an impairment rating under the Tables.

17. I am satisfied from the evidence that notwithstanding the toe has been slow to heal due to Ms Khawaja’s diabetes, and possibly other of her conditions, that at the relevant period it was properly considered a temporary condition, and cannot therefore be assigned an impairment rating.

    Left elbow fracture

18. The Applicant suffered a left elbow fracture in 2008. Dr Singh noted in his report dated 6 June 2011 that the condition was being treated with immobilisation and physiotherapy, and resulted in permanent reduced movement and strength. Ms Khawaja’s evidence was that the elbow gave no trouble, but that her arm and hand were weak.

19. In his report dated 8 October 2012, Dr Singh noted that the left elbow fracture was slow to heal, and resulted in permanent deformity associated with reduced movement and function of the left elbow.

20. The JCAs carried out on 15 June 2011 and 3 August 2011 assessed the left elbow fracture and the left shoulder adhesive capsulitis under Table 3 in a combined rating. The combined rating was 15 points under Impairment Table 3.

21. In a Centrelink Functional Capacity Evaluation Report dated 16 August 2011 the assessor noted that the Applicant reported the condition had no functional impact and did not elicit any symptoms.

22. In a further JCA on 9 November 2012, the condition was considered temporary, as the Applicant reported that she had had no physiotherapy to treat the condition, and that it does not have any functional impact. Ms Khawaja told me that the elbow did not give her trouble, but that her arm and hand were weak.

23. The Respondent submits, taking into account the assessments of Dr Singh and the JCAs, that the condition of the left elbow fracture is temporary, and therefore cannot be assigned an impairment rating under the Tables.

24. I am satisfied from the evidence of Dr Singh and Ms Khawaja that the left elbow itself has healed, and of Ms Khawaja’s evidence that it caused her no trouble. I agreed with the assessment of 15 impairment points given for the upper limb, (excluding the elbow), as mentioned above, pursuant to Table 3.

    Depression and anxiety

25. The Respondent suffers from depression and anxiety. I noted that Dr Singh did not mention depression in his reports of 6 June 2011 or 25 July 2011.

26. However, in his reports dated 10 September 2012 and 8 October 2012, Dr Singh mentioned Ms Khawaja’s anxiety and depression. In the later report he stated that she suffered the condition at 14 June 2011 when she applied for DSP. Dr Singh noted that the condition first appeared in 2009. He noted also that the Applicant has had treatment with counselling and medication, but that there are persisting symptoms, including lethargy, depressed mood, poor concentration, memory impairment, social isolation, frequent teariness, headaches, and suicidal thoughts. He recommended an impairment rating of 20 points be assigned for the Applicant’s mental health function due to major depression.

27. Anxiety and/or depression were not mentioned in the JCAs dated 15 June 2011 and 3 August 2011.

28. In the JCA dated 9 November 2012, the assessor noted that the Applicant had past and current treatment including counselling and medication. She denied having had any consultations with a psychiatrist or clinical psychologist.

29. I am mindful of Ms Khawaja’s evidence that she feels depressed and anxious, and that she suffers lethargy which may also result from her obesity, diabetes and anaemia. I accepted the Respondent’s submission that the anxiety and depression had not been identified in previous medical reports within the relevant period, had not been treated or stabilised at the relevant time, and could not therefore be taken into account for this application. Accordingly the condition cannot be assigned an impairment rating in connection with this application.

    Cervical spondylosis

30. The Applicant suffers from cervical spondylosis. In his report dated 8 October 2012, Dr Singh noted that the Applicant has suffered neck pain and reduced neck mobility since 2008, and had been treated with analgesia and physiotherapy. He has recommended an impairment rating of 5 points be assigned for the condition.

31. In the JCA dated 9 November 2012, the assessor noted that the Applicant denied knowledge of this condition, and any treatments or interventions associated with this condition. Due to this fact, and the lack of medical evidence in previous medical reports, this condition was not assigned an impairment rating.

32. I accepted the Respondent’s submission that, taking into account the assessments of Dr Singh and the JCAs, the condition of cervical spondylosis and neck pain cannot be assigned an impairment rating due to lack of medical information to enable me to determine whether the condition was fully diagnosed, treated and stabilised within the claim period.

    Other conditions

33. In a medical report dated 18 March 2012, Dr Singh noted that the Applicant also suffers the conditions of hypertension and umbilical hernia. He reported that the Applicant is on a waiting list for surgery for the hernia, and that her hypertension has been difficult to control, and requires higher doses of medication.

34. The Respondent submitted that, due to a lack of further medical evidence to support Dr Singh’s report, the conditions of hypertension and umbilical hernia cannot be assigned an impairment rating. I am mindful the conditions were first raised outside the relevant dates and there is no information regarding their treatment, stabilisation and permanence. Accordingly, they cannot be taken into account in connection with this application.

    SUMMARY REGARDING IMPAIRMENT POINTS

35. I am mindful that I must consider Ms Khawaja’s conditions and resulting impairment within the relevant period 14 June 2011 to 13 September 2011. In doing so, I have taken into account Ms Khawaja’s evidence, (some of which was unclear, particularly as to dates), the reports of Dr Singh, the other medical evidence including radiological investigations, the JCAs and the Centrelink Functional Capacity Evaluation Report.

36. Ms Khawaja’s conditions include diabetes mellitus, adhesive capsulitis left shoulder, bilateral carpal tunnel syndrome, left elbow fracture, anxiety and depression, iron deficiency, morbid obesity, and cervical spondylosis.

37. The most significant, and those for which Ms Khawaja could obtain an impairment rating in the relevant period, are adhesive capsulitis of the left shoulder, bilateral carpal tunnel syndrome, and anaemia. Table 3 deals with upper limb impairment, and Ms Khawaja was rated 15 impairment points. The anaemia causes no functional impairment, and is rated nil points.

38. The other conditions to which I have referred above cannot be assigned impairment ratings for reasons given above.

39. I had reports of Dr Singh before me which were outside the relevant period. In the report of 10 September 2012, Dr Singh referred to adhesive capsulitis of the right shoulder for the first time, and also mentioned Ms Khawaja’s restrictions on her left shoulder. As the condition of the right shoulder was not within the period which I can take into account, being 14 June 2011 to 13 September 2011, and as I have no indication of how permanent the condition is, I cannot comment further. It cannot be counted towards eligibility of a DSP as part of this application. The same goes for the Ms Khawaja’s hypertension, anxiety and depression, cervical spondylosis and neck pain, and umbilical hernia.

    WHETHER MS KHAWAJA HAD A CONTINUING INABILITY TO WORK AS DEFINED BY SECTION 94 OF THE ACT

40. As I have found that Ms Khawaja’s conditions do not meet the threshold 20 impairment points in the Impairment Tables at Schedule 1B to the SSA, I do not have to consider whether she had a continuing inability to work at the relevant time.

41. However, for the sake of completeness, I note that Dr Singh wrote in his report of 25 July 2011, that Ms Khawaja had multiple physical restrictions which impacted on her ability to be employed. He also, curiously, and in direct contradiction of Ms Khawaja’s evidence, which was that she had completed tertiary degrees and a certificate in aged care, stated that she had restricted education and language skills. He added: would make retraining very difficult. Pt [patient] is genuinely disabled with no realistic likelihood of reemployment.

42. In his report of 18 March 2012, Dr Singh noted that the Applicant has multiple chronic/permanent disabilities and should be entitled to a disability pension as she is genuinely permanently unfit for gainful employment (T14/155).

43. I noted from the JCA of 3 August 2011, a record of a conversation with Ms Khawaja as follows: Assessor has discussed with client services offered by DES/DMS. Client advised she felt she would be able to undertake full time study and could participate in job preparation. Client [advised] she felt she would be able to work in light duties, but may need some [retraining]. Ms Khawaja said in reply to the above that she may have been misunderstood as she meant she could do short courses to prepare for a desk job, not physical work.

44. As I have noted above that Ms Khawaja does not meet the 20 impairment points threshold in order to consider her inability to work, I did not fully explore the tests in section 94(1)(c) of the SSA. All three JCAs which were before me have reported that Ms Khawaja could work, initially 15 – 22 hours per week, and increasing to 23 – 29 hours per week with support, and following rehabilitation.

45. I agreed with the Respondent that taking into account the assessments, the Applicant’s permanent medical conditions would not of themselves prevent her from doing any work as defined in section 94(5) of the SSA within the next two years. Those same medical conditions would not prevent her from undertaking a training activity within the next two years which would be likely to enable her to do work.

    RESIDENCY ISSUES

46. There is another issue impacting upon Ms Khawaja’s qualification for DSP, which is the residency requirement. Section 94(1)(e) of the SSA provides in part as follows:

    A person is qualified for disability support pension if:

    (e)  the person either:

    (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

    (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

    …

47. It is not in dispute that Ms Khawaja has been a resident of Australia since 2005, and that prior to this, she was a New Zealand resident. Accordingly, she has not been resident in Australia for 10 years.

48. Section 7 of the SSA provides that a person is not regarded as an Australian resident unless they are a citizen, hold a permanent visa or are a protected Special Category Visa (SCV) holder. The Applicant is not a citizen or the holder of a permanent visa or a protected SCV holder. She is therefore not an Australian resident for the purposes of the SSA, and she has neither 10 years qualifying Australian residence nor a qualifying residence exemption.

49. I am mindful that New Zealand residents are entitled to certain Australian social security payments, including DSP under Schedule 3 to the Social Security (International Agreements) Act 1999. However, the payment of DSP to an applicant who is a New Zealand resident is limited by Article 2 to cases where the applicant is severely disabled, a threshold the Applicant does not meet because she has not reached the threshold impairment points in section 94(1)(b) of 20 points.

50. Accordingly Ms Khawaja’s application cannot succeed.

    DECISION

51. The Tribunal affirms the decision under review.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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

Associate

Dated 1 May 2013

Date of hearing	4 April 2013
Applicant	In person
Advocate for the Respondent	Mr C Hutchins