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

[2018] AATA 227

Sedkaoui and Secretary, Department of Social Services (Social services second review) [2018] AATA 227 (19 February 2018)

Division:GENERAL DIVISION

File Number(s):      2016/5843

Re:Billal Sedkaoui

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:19 February 2018

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – cancellation – whether applicant qualified at date of cancellation – whether fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – continuing inability to work – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94(1)

Social Security (Administration) Act 1999 (Cth) s 80

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

19 February 2018

1. Mr Billal Sedkaoui, the applicant, has been in receipt of the disability support pension (“DSP”) since November 2009.

2. On 6 June 2016, the Department of Social Services (“the Department”) determined that the applicant was no longer qualified for DSP on the basis that at the date of cancellation, he did not satisfy the eligibility criteria set out in section 94 of the Social Security Act 1991 (Cth) (“the Act”). The applicant’s DSP was cancelled from 6 June 2016 (“date of cancellation”) pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).

3. On 5 July 2016, an Authorised Review Officer (“ARO”) affirmed the decision of the Department to cancel the applicant’s DSP and on 4 October 2016, the Social Security and Child Support Division of this Administrative Appeals Tribunal (“SSCSD”) affirmed the decision of the ARO. This is the decision under review in these proceedings.

   RELEVANT LAW

4. Section 94 of the Act provides that to qualify for payment, a person must have a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and a continuing inability to work as defined in the Act.

5. In assessing the applicant’s continued qualification for the disability support pension in 2016, the Department was required to apply the Impairment Tables, pursuant to subsections 27(3) and (4) of the Act. The Impairment Tables are stricter than the tables which applied when the applicant was first granted the disability support pension on November 2009.

6. The power for the Secretary to cancel the applicant’s DSP is contained in section 80 of the Administration Act. The cancellation decision takes effect on the day on which it was made, in this case on the date of cancellation pursuant to s 118(13) of the Administration Act.

   Impairment tables

7. The Impairment Tables include rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. 

8. Subsections 6(3) and 6(4) provide that an impairment can only be given a rating on the Impairment Tables if the condition is considered permanent. A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated; fully stabilised; and it will more likely than not, persist for more than two years.

9. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, subsection 6(5) instructs that a decision- maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

10. Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (emphasis added)

11. For multiple conditions causing a common problem, subsections 10(5) and 10(6) of the Impairment Tables provide:

    (5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    (6) …it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.

    IMPAIRMENTS

12. The Secretary accepts that the applicant suffered from a number of conditions at the date of cancellation. He therefore satisfies subsection 94(1)(a) of the Act.

13. The issue to be determined in these proceedings is whether the applicant satisfied subsections 94(1)(b) and (c) of the Act at the date of cancellation.

    Rheumatoid Arthritis

14. The applicant’s rheumatoid arthritis was fully diagnosed, treated and stabilised at the date of cancellation, and affected his upper and lower limbs and spine. This is supported by the evidence of Dr Houfani, Dr Alsayed and Professor Youssef.

15. The question then to be determined is the level of functional impairment.

16. In a Job Capacity Assessment Report dated 24 May 2016, the applicant reported the functional impact for this condition as follows: “approximately 2-3 times weekly he requires help from his wife to shower and dress. Client reported the day of the assessment pain levels were quite good and he had dressed himself including trousers with a zipper and a shirt with a number of buttons…Client confirmed that he can also usually walk his children to school as it is nearby. Client reported he can sometimes open jars and bottles depending upon symptom levels…Client confirmed he took the stairs at the front of the building to attend the assessment. Client confirmed he can now drive…”

17. In a report dated 11 July 2017, Professor Youssef assesses the applicant’s level of impairment in respect to upper limb function, lower limb function and spinal function. He reports as follows:

    With respect to Table 2 - upper limb function - he would fit into the no functional impact category. Although he may have some minor difficulty picking up a two litre carton of liquid or carrying a full shopping bag, he does not have any difficulties handling very small objects, doing up buttons or reaching up or out to pick up objects. Therefore, he does not have difficulty with “most” of the items under the definition.

    With respect to Table 3 - lower limb function - according to the definition provided there is no functional impairment. Although he may have some difficulty walking to local facilities, walking around a shopping mall without a rest and some difficulty climbing stairs, he is able to stand for more than ten minutes and does not require a walking stick or lower limb prosthesis.

    With respect to Table 4 - spinal function - there is no functional impairment as he can bend down to pick up a light object off the floor, turn his trunk from side to side and turn his head to look to the sides or upwards. [Emphasis added]

18. The evidence of Professor Youssef is reinforced by the applicant’s apparent ability to undertake regular overseas travel, both before and after the date of cancellation.

19. It appears from the medical evidence that the applicant suffers “flare ups” of his condition. However, even if the condition was fluctuating or episodic, paragraph 11(4) of the rules to the Impairment Tables provides:

    When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes of fluctuations as appropriate.

20. I do not have before me any medical evidence detailing the extent of the flare ups suffered by the applicant, nor the frequency and his level of functional impairment during these times.

21. Having careful regard to the descriptors contained in Tables 2, 3 and 4, I agree with Professor Youssef that the applicant’s rheumatoid arthritis condition warrants no impairment points under each table.

    Mental Health Condition

22. The Secretary contends that the applicant’s mental health condition was not fully diagnosed, treated and stabilised at the date of cancellation. I agree for the following reasons.

23. It is important to note that self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. Table 5 of the Impairment Tables is to be used when a person has a permanent mental health condition resulting in functional impairment. The Introduction to Table 5 of the Impairment Tables provides (inter alia) that a diagnosis of a condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

24. In this case, there is no evidence of a diagnosis from a psychiatrist prior to Dr Ali, consultant psychiatrist, seeing the applicant on 1 November 2016, some five months after the applicant’s DSP was cancelled. It is also noted in the report by Dr Ali, that the applicant was treated by a psychiatrist, Dr Haider Maghazaji in Lakemba. However, the Secretary has been unable to find the registration details of a psychiatrist with that name.

25. In a report dated 22 June 2017, Mr Metry, consultant psychologist, reports that the applicant has been under his care in 2009 and 2010 and was diagnosed with an adjustment disorder with depressed mood and panic attacks. I do however note that Mr Metry is a registered psychologist and not a clinical psychologist.

26. As the requirement for a diagnosis under Table 5 is not met, it follows that an impairment rating cannot be assigned for this condition.

    Diabetes

27. The Secretary contends, and I agree, that the applicant’s diabetes cannot be considered as fully diagnosed, treated and stabilised at the cancellation date because of the lack of corroborating medical evidence. In any event, the functional impairment associated with this condition appears minimal.

28. On 14 November 2009, Dr Alsayed reported that the applicant’s non-insulin-dependent diabetes was a condition that was generally well managed or had a limited impact.

29. On 2 February 2016, Dr Houfani reported the applicant’s medical condition of diabetes was generally well managed and caused minimal or limited impact on his ability to function.

30. As I am not satisfied that this condition was fully diagnosed, treated and stabilised at the cancellation date, no impairment rating may be assigned to this condition.

    Other Conditions - Obesity and Chronic Pain

31. In regards to the applicant’s alleged condition of obesity, there is a lack of evidence as to treatment, stability of this condition or any resultant functional impairment. 

32. On 2 February 2016, Dr Houfani listed obesity as a condition that was generally well managed and caused minimal or limited impact on the applicant’s ability to function. On 9 June 2016, Dr Houfani stated that the applicant was dieting and taking medication to try and lose weight under a GP exercise program.

33. In regards to the applicant’s alleged chronic pain condition, there is again very limited evidence about this condition. On 9 June 2016, Dr Houfani referred to the applicant having “chronic disabling pain” due to his arthritis however there is no other evidence as to treatment and/or functional impairment that this condition has on the applicant.

34. It follows that no impairment rating may be assigned to this condition.

    CONTINUING INABILITY TO WORK

35. As the applicant’s impairments do not rate 20 or more points on the Impairment Tables, it is therefore not necessary to consider whether he had a continuing inability to work at the date of cancellation.

    DECISION

36. For all of the reasons given above, I affirm the decision under review. 

37. The applicant may apply for DSP again at any time. 

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 19 February 2018

Date(s) of hearing:	27 October 2017
Applicant:	In person
Solicitors for the Respondent:	Mr J Kim, Department of Human Services