Saliba and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1515
•6 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1515
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/80
GENERAL ADMINISTRATIVE DIVISION ) Re JOSEPH SALIBA Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Associate Professor B W Davis AM., (Part-time Member) Date6 July 2007
PlaceHobart
Decision The decision under review is affirmed. ..........(Sgd B W Davis).............................
Part-Time Member
CATCHWORDS
CATCHWORDS
Social Security - disability support pension - eligibility - resident of Malta - severe depression - medication - whether stabilised and treated - medical evidence - SSAT decision - decision affirmed
Social Security Act 1991 and Amendments, Section 94 (a), (b) and (c)
Social Security (International Agreements) Act 1999, Schedule 6 - Agreement between Australia and Malta re Social Security
Tables for the Assessment of work-related impairment for Disability Support Pension
Sayaw and SDFCS (2001) AATA 950
Reissis and SDFCS (2005) AATA 702
Bantick and SDFCS (2003) AATA 472
Ellul and SDFCS (2006) AATA 488
Giddings and SDFCS (2003) AATA 893
SDSS v Pusnjak (1999) 56 ALD 444
McDonald and DGSS (1984) 6 ALD 6
Xerri and SDFCS (2006) AATA 493
REASONS FOR DECISION
6 July 2007 Associate Professor B W Davis AM., (Part-time Member) Decision Under Review
1. The decision under review is a decision made by the Social Security Appeals Tribunal on 22 June 2005, affirming a Centrelink decision of 27 January 2005 to reject the applicant’s claim for disability support pension (DSP).
The Issues
2.1Does the applicant satisfy Section 94(1)(b) of the Social Security Act 1991, in that his impairment(s) attract a rating of 20 points or more under the Impairment Tables?
2.3Does the applicant satisfy section (1)(c) of the Act, in that does he have a continuing inability to work?
Legislation
3. The relevant legislation is:
Social Security Act 1991 and Amendments, Section 94 (a), (b) and (c)
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999, Schedule 6 - Agreement between Australia and Malta
Tables for the Assessment of work-related impairment for Disability Support Pension
Standard of Proof
4. The standard of proof is on the balance of probabilities and to the general satisfaction of the Tribunal.
Background
5. The applicant, Joseph Saliba, resides in Malta and on 2 April 2004 lodged a claim for Australian disability support pension (DSP) with the Maltese authorities, on the basis of prior residential period in Australia. Section 29 of the Social Security (Administration Act) 1999 provides that in such a case the applicant is to be treated as an Australian citizen subject to Australian law for social security purposes.
6. Mr Saliba’s claimed disability is that of psychiatric impairment in the form of severe depression. Mr Saliba is also diabetic and hypertensive.
7. In order to qualify for disability support pension he must meet criteria set out in ss94(1)(a), (b) and (c) of the Social Security Act 1999 namely, have a disability rating of 20 points or more under the Impairment Tables (Schedule 1B) and demonstrate an ongoing incapacity for work.
8. There is a further provision that his condition is to be assessed as at the date of application for DSP and no later than 13 weeks after that date i.e. he must demonstrate that his disabilities have been identified, treated and stabilised within that timeframe (see Division 3 and Part 2, clause 4 of the Social Security (Administration) Act 1999).
9. This provision has been tested in the AAT and Federal Court, see for example Sayaw and SDFCS (2001) AATA 950, Ellul and SDFCS (2006) AATA 488 and Giddings and SDFCS (2003) AATA 893.
10. The respondent does not dispute that Mr Saliba’s disability meets the requirement of s94(1)(a) of the Act, being an acknowledged psychiatric impairment, but the issue is whether he meets provisions of ss94(1)(b) in respect of disability rating and ss94(1)(c) concerning ongoing inability to work.
Medical Evidence
11. Mr Saliba lodged his claim for disability support pension (DSP) on 2 April 2004, thus the relevant period under consideration is 2 April 2004 – 1 July 2004 (13 weeks later). The applicant’s claim was considered by Centrelink but rejected on 27 January 2005, some delay being caused by the need to compile and assess medical evidence. Mr Saliba sought a review of the decision, but it was again affirmed by the original decision-maker on 31 March 2005 and by an authorised review officer (ARO) on 5 April 2005. The applicant then sought review by the Social Security Appeals Tribunal (SSAT) where it was again affirmed on 22 June 2005. Mr Saliba then applied for de-novo review by the Administrative Appeals Tribunal on 19 July 2005.
12. In reaching their decisions both Centrelink and the SSAT drew upon a substantial body of medical evidence, including a treating doctor’s report by Dr Xuereb Curmi dated 31 August 2004, reports by consultant psychiatrist Dr J Vella Baldacchino dated 27 March 2004 and 16 July 2006, a Maltese Medical Board report dated 27 May 2004 and a Medical Assessment Report by Dr Mieka Tabart of Health Services Australia dated 21 January 2005. There is also a report by Professor Abraham Galea, psychiatrist, dated 25 January 2006.
13. The treating doctors report by Dr Curmi dated 31 August 2004 notes that:
“… Patient was boarded out of work because of his symptoms in November 2003. He is still having symptoms such as loss of social interaction, loss of memory and feeling very unsure of himself. He is unfit for work since his communication skills and remembering are poor”.
Dr Curmi reported that Mr Saliba’s pharmalogical treatment had been adjusted between March 2004 and August 2004, but the patient’s symptoms persisted, indicating that full treatment and stabilisation had not been achieved at that time.
14. Dr Vella Baldacchino, consultant psychiatrist, noted on 27 March 2004 that Mr Saliba had suffered severe endogenous depression for over two years and had not responded to various courses of anti-depressants and anxielytics. He had progressively became more depressed and withdrawn with cognitive impairment. Dr Baldacchino supported the applicant’s claim for disability pension, as his disability was greater than 20 percent. He was unlikely to benefit from vocational retraining or further rehabilitation.
15. The Maltese Medical Board on 27 May 2004 noted Mr Saliba experienced disturbed sleep, restlessness, crying and lack of motivation. In relation to his psychiatric condition, the Board did not clarify whether the condition was controlled, noting “ups and downs” over six months, but not answering yes or no.
16. A medical assessment report by Dr Mieka Tabart of Health Services Australia dated 21 January 2005 indicated she considered the situation as temporary and the condition should be reviewed in 6 to 12 months time she commented:
“A record of pharmalogical treatment instituted shows highly variable dosages and types of medications used over the last 12 months … It is not uncommon to take quite some time to find the most effective drug regime for each individual suffering depression and anxiety …. pharmalogical treatment does not appear to have been accompanied by regular sustained psychological treatment employing techniques such as cognitive-behavioural therapy.”
A further report by Dr Baldacchino dated 16 July 2006 drew attention to what he regarded as an error in the SSAT decision 22 June 2005 noting that:
“… From the report it transpires that it was repeatedly mentioned that Mr Saliba resorted only to pharmacological treatment but no psychological interventions were undertaken.
There is a very simple explanation for this. It hardly exists in the Maltese archipelago, but is non-existent in the island at Gozo (where Mr Saliba resides)”.
It should be noted, however, that Professor Abraham Galea, psychiatrist, claimed in his report of 25 January 2006 (see below) that Dr Baldacchino could have provided these therapies himself, and perhaps did so, but in the relevant period 2 April 2004 to 1 July 2004, only pharmacologic treatment appears to have been pursued.
17. At the request of Mr Saliba’s lawyer, Professor Abraham Galea, psychiatrist, conducted an examination of the applicant on 25 January 2006, providing a detailed report the same day. Professor Galea noted the need for Mr Salida to be assisted in a variety of ways by his wife Elizabeth, but considered the patient to be deeply distressed most of the day, complaining of sleep disturbance (late insomnia) feeling helpless, socially withdrawn and sometimes experiencing suicidal thoughts. He considered Mr Saliba fully treated, as there had been several protracted consultations with his psychiatrist and he had been treated with an extensive array of antidepressants. He had also been referred twice to Gozo Hospital with a view to finding out whether mood stabilisers were in order, but there was hesitation about treatment because Mr Saliba was not only depressed, but diabetic and hypertensive.
18. Professor Galea considered Mr Saliba met the criteria for s94(1)(b) of the Act, in having a substantial disability, however he did not clarify whether an impairment rating could be assigned or on what basis. He considered the situation stabilised, in that no other measures but social clinical support would be of value and the patient had undergone 3 years of intensive treatment and consultations without marked improvement. He considered it possible Mr Saliba’s condition could deteriorate further and this might increase the risk of suicide.
19. Much of the above evidence was obtained after the relevant period 2 April 2004 to 1 July 2004 and thus is of limited value in the applicant’s case. What it tends to indicate is that despite a range of treatments his situation appears to have deteriorated rather than improved and his disabilities had not been fully diagnosed, treated and stabilised at the time of application for DSP and 13 weeks after.
The AAT Hearing
20. Telephone hearings were conducted between Australia and Malta on 2 and 3 May 2007. Mr Saliba did not give evidence but was represented by Dr Joseph Grech of counsel. The respondent was represented by Mr Brian Sparkes.
21. It was intended that four witnesses would be called, namely Mr Jonathon Saliba on behalf of his father; Dr Vella Baldacchino, psychiatrist; Dr Mieka Tabart of Health Services Australia; and Professor Abraham Galea, psychiatrist. Because of severe communication difficulties and breakdowns only Jonathan Saliba, Dr Tabart and Professor Galea, (the latter unaffirmed) were heard. All parties were invited to make final submissions in writing within 14 days. Only Dr Grech chose to do so, but the respondent did not receive a copy and argued the material should be given little weight. DEWR provided its own final submissions on 4 May 2007.
22. After brief opening submissions at the AAT hearing on 2 May, Jonathan Saliba was sworn and gave evidence about Joseph Saliba’s disabilities and the way they affected his everyday life. He visited his father each day and noted his deep depression, sometimes aggressiveness and withdrawal from society. He considered the condition was permanent, despite medical treatment which he and his parents could barely afford, indeed his father owned money to others but could not repay it. His father received free medical support at Gozo Hospital, but any diagnosis or treatment in Malta involved him taking his father there and meeting all costs involved.
23. Dr Mieka Tabart of Health Services Australia gave evidence on 3 May 2007, reiterating her view that pharmaceutical treatment did not suffice alone and there were psychiatric treatments available which Mr Saliba did not appear to have received. The patient needed sustained treatment and give it might have some prospect of reasonable improvement. She had not see Mr Saliba, because of his residency in Malta, however she considered the documentation was comprehensive enough to identify the disability and comment on treatment regimes. She was puzzled as to why more comprehensive psychiatric regimes had not been pursued.
24. Attempts were made to contact Dr Baldacchino but failed. Professor Abraham Galea was contacted and provided supplementary comment on his report of 26 January 2006 stressing that Mr Saliba’s disabilities were now known, treated and stabilised to the extent that no improvement from his current condition was likely, he regarded it as permanent. He considered that Australian authorities failed to understand the limited nature of medical resources in Malta and the limited prospects that Mr Saliba faced, given his condition which had now been treated for three years without recovery or improvement.
Analysis
25. The Tribunal is required to conduct a de-novo review of all available evidence, taking into account statutory and policy provisions, as well as any relevant prior case determinations.
26. The evidence is clear that Joseph Saliba has suffered extreme depression from 2003 or earlier, complicated by diabetes and a hypertensive condition which may have limited therapeutic regimes. Various pharmaceutical remedies have been attempted but these appear not to have resulted in improvement. The situation with psychiatric treatment is less clear, but again no improvement is discernible, indeed the medical reports indicate his condition may have worsened. Most reports seem to treat the condition as permanent.
27. As early as Dr Baldacchino’s report of 27 March 2004, a claim was made that the disability rating was at least 20 per cent, but no justification or actual rating was provided. Other medical reports indicate the disability is severe, but no attempt has been made to suggest a disability rating nor has it been feasible to do so, given that stabilisation of the impairments has not occurred. More specifically it is clear that during the relevant period of DSP application, 2 April 2004 to 1 July 2004 Mr Saliba’s disabilities had not been fully diagnosed, treated and stabilised as s94(1)(b) requires in order to qualify for disability support pension. Centrelink was thus correct in rejecting his application of 2 April 2004.
28. Given the above there is no need to test whether the applicant met the provisions of s94(1)(c) of the Act., about an ongoing incapacity for work. Although Dr Tabart held out some hope employment could be resumed if partial rehabilitation was achieved, all other parties appear to regard Mr Saliba’s disability as permanent, rendering him incapable of work.
29. Having carried out a comprehensive de-novo review the Tribunal finds on the balance of probabilities Mr Joseph Saliba was not entitled to receive disability support pension in April 2004 i.e. the decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 2 and 3 May 2007
Date of Decision 6 July 2007
Counsel for the Applicant Dr Joseph Grech of Counsel
Solicitor for the Applicant
Counsel for the Respondent Mr B Sparkes
Solicitor for the Respondent Centrelink Legal
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