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

[2018] AATA 3910

Shafqat and Secretary, Department of Social Services (Social services second review) [2018] AATA 3910 (16 October 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4416

Re:Naveed Shafqat

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:16 October 2018

Place:Sydney

The decision under review is affirmed.

..............................[SGD]...................................

Senior Member Linda Kirk

CATCHWORDS

SOCIAL SECURITY - disability support pension - eligibility - whether applicant satisfied s 94(1)(b) of Social Security Act 1991 (Cth) - impairment tables - whether conditions were fully diagnosed, treated and stabilised - which medical condition can be given an impairment rating - bilateral deep vein thrombosis - depression and PTSD - chronic pain

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 42

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member Linda Kirk

16 October 2018

BACKGROUND

1. Mr Naveed Shafqat (‘the Applicant’) suffers from a number of medical conditions which he claims make it difficult for him to work, or to look for work. 

2. On 26 May 2016, the Applicant applied for the Disability Support Pension (‘DSP’). On 1 September 2016, his application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’), and on 25 January 2017, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).

3. The Applicant applied to the Social Security and Child Support Division of this Administrative Appeals Tribunal for review (‘SSCSD’). In a decision dated 22 June 2017, the SSCSD affirmed the decision of the ARO refusing the Applicant’s claim for DSP as he did not satisfy section 94(1)(b) of the Act.

4. On 27 July 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the SSCSD decision.

5. The matter was heard by the Tribunal in Sydney on 16 July 2018. The Applicant attended the hearing in person and was self-represented. During the Respondent’s closing submissions, the Applicant left the hearing and did not return.

   ISSUES AND LEGISLATION

6. The issue before the Tribunal is whether the Applicant qualified for DSP at the relevant time.

7. Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) in order to qualify for DSP, the Applicant must satisfy the requirements of section 94 of the Act as at the date he made his claim, 26 May 2016, or within 13 weeks of lodging the claim, that is between 26 May 2016 and 26 August 2016 (‘the qualification period’).

8. Section 94(1) of the Act provides that a person qualifies for the DSP 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.

9. The Respondent concedes and the Tribunal agrees that the Applicant suffered medical conditions that caused impairment during the qualification period, and therefore he satisfies section 94(1)(a) of the Act at the time of his claim for DSP.

10. It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, the Applicant had:

    ·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and

    ·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).

    Impairment Tables

11. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).

12. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

13. The Introduction to each relevant Table requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.

14. Part 2 of the Impairment Tables details the 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.”

15. Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Section 6(4) of the Impairment Tables, provides that a condition is ‘permanent’ if it:

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

    (b)has been fully treated; and

    (c)has been fully stabilised; and

    (d)is more likely than not to persist for more than two years.

1. In assessing whether a condition is fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, section 6(5) of the Impairment Tables 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.

2. For the purposes of the Impairment Tables, section 6(6) defines fully stabilised to mean:

   (a)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:

   (c)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

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

3. The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.

4. Reasonable treatment is defined in section 6(7) of the Impairment Tables as treatment that:

   (a)is available at a location reasonably accessible to the person; and

   (b)is at a reasonable cost; and

   (c)can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)is regularly undertaken or performed; and

   (e)has a high success rate; and

   (f)carries a low risk to the person.

5. 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:

   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)

   Medical conditions

6. The Applicant claims that during the qualification period he suffered from the following conditions:

   1.Bilateral deep vein thrombosis

   2.Depression and PTSD

   3.Chronic pain

7. The first issue for determination by the Tribunal is whether the conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating may be assigned for functional impairment in accordance with the Impairment Tables.

   Which of the medical conditions can be given an impairment rating?

   Condition 1 – Bilateral deep vein thrombosis

8. The Respondent accepts that at the qualification period the Applicant suffered from deep vein thrombosis which was fully diagnosed, treated and stabilised at that time.[1]  It also accepts that the condition is inoperable and has not improved despite the Applicant being under the care of a vascular surgeon since 2014.[2]

   [1] Respondent’s Statement of Facts, Issues and Contentions (SFIC) paragraph 5.15.

   [2] Respondent’s SFIC paragraph 5.15.

9. On 25 May 2016, the Applicant was under the care of Associate Professor Freeman who opined that the Applicant had been wearing compression stockings but had not noticed ‘any real improvement’ in his condition.[3]  On 15 July 2016, his General Practitioner Dr Lim reported the condition caused constant leg pain affecting his mobility.[4] On 16 September 2016 (outside the qualification period) Dr Lim reported the condition caused intermittent leg tenderness and restricted his mobility, and that his specialist (Assoc. Professor Freeman) had confirmed that the condition could not be surgically corrected.[5]

   [3] T Documents, T7 page 130.

   [4] T Documents, T8 page 131.

   [5] T Documents, T12 page 142.

10. Based on the evidence before it, the Tribunal finds that the Applicant’s deep vein thrombosis condition was fully diagnosed, treated and stabilised at the qualification period.

11. The Respondent further accepts that at the qualification period, the condition satisfied an impairment rating of 10 points under Table 3, as the condition has a moderate functional impact on activities using lower limbs.[6]  The Respondent contends that the Applicant cannot satisfy the criteria for a severe impairment rating at the qualification period, as there is no contemporaneous medical evidence that the Applicant was unable to walk around a shopping centre; walk from a carpark into a shopping centre; or use public transport without assistance.[7]

    [6] Respondent’s SFIC paragraph 5.16.

    [7] Respondent’s SFIC paragraph 5.17.

12. The Applicant told the Tribunal that until recently he was a single father living with his son. His wife and daughter came to Australia in March 2018 and they are now all living together in their home.  His wife does all the household chores including the cooking, washing and shopping and she drives the car.

13. At the hearing, the Applicant was asked about his deep vein thrombosis (‘DVT’) and how it affects him.  He said that since May 2016 his condition has worsened and he now has DVT in both legs.  The pain in the right leg is worse than the left.  He is unable to stand for more than five minutes and his legs become numb even if he is sitting.  He needs to move or sit with his legs elevated.  He needs a crutch to move around and he cannot use stairs.

14. He explained that he can only drive when he is free of pain.  Before his wife arrived, he would drive once a week to the shops with his son. He would park the car and they would walk to the shops and his son would use the shopping trolley to collect the groceries they required.  He does not use public transport because he finds it difficult to walk distances and he cannot climb stairs.  When he needs to travel any distance, he asks a friend to drive him to his destination.  He needs to take a lot of medication if he is going out, as he did to attend the Tribunal hearing.

15. The Applicant was asked about the medical certificate provided by Dr Lim dated 10 February 2017 in which he reported that the Applicant could not walk more than 250 metres.[8]  The Applicant said that he now cannot walk this distance and he parks outside of the surgery when he attends a doctor’s appointment which he does once or twice a week.  He cannot drive when he is taking medication as it makes him dizzy.  A friend will take him to his appointments if he is unable to drive. 

    [8] T Documents, T16 page 151.

16. The Applicant was questioned about the three trips he made to Malaysia to visit his wife and daughter on the following dates during or just outside the qualification period[9]:

    ·13 April to 5 May 2016

    ·5 July to 30 July 2016

    ·16 November to 25 November 2016[10]

    [9] T Documents, T21 page 189 Department Movement Records.

    [10] T Documents, T21 page 189 Department Movement Records.

17. The Applicant told the Tribunal that he was advised not to travel but he did so because his son was very upset and missing his mother.  During the flight, he told the air hostess about the problems with his legs and he had to get up regularly to move around, stretch his legs and sit on the floor.  A friend drove them to Sydney airport and his wife collected them at the airport in Kuala Lumpur.  During these visits, he stayed with his wife and daughter and only went out when necessary.

18. On the basis of the evidence before it, particularly the medical evidence relevant to the Applicant’s condition during the qualification period, the Tribunal agrees with the findings of the SSCSD in relation to the functional impact of this condition on the Applicant, and finds that an impairment rating of ten points under Table 3 should be assigned to this condition as the functional impairment resulting from this condition is moderate.

    Condition 2 – Depression and PTSD

19. The Respondent accepts that at the end of the qualification period the Applicant suffered from depression and PTSD and that it had been fully diagnosed and treated, but contends that it was not stabilised and no impairment rating can be assigned. It argues that if it is found to be stabilised, the condition attracts 10 points under Table 5.[11]

    [11] Respondent’s SFIC paragraph 5.3.

20. The Respondent accepts that on the basis of the Applicant having received in-patient treatment for adjustment disorder in March 2015 and for depression and complex PTSD in March 2017 and having received treatment for mental health from a number of community mental health teams between 2015 and 2017, that at the qualification period his condition had been diagnosed in accordance with the Introduction to Table 5 – Mental Health Function.[12]

    [12] Respondent’s SFIC paragraph 5.31.

21. The Respondent also accepts that at the qualification period the Applicant’s mental health condition was fully treated as evidenced by the prescription of medication by Professor Mark Harris in December 2014,[13] his attendance at 18 counselling sessions with Ms Batth, between 23 June 2015 and 23 August 2016; and in-patient and out-patient treatment at a number of hospitals.

    [13] T Documents, T19 page 163.

22. Based on the evidence before it, the Tribunal finds that during the qualification period the Applicant’s condition was fully diagnosed and treated.

23. The Respondent contends that at the qualification period the Applicant’s condition was not fully stabilised as defined by the Tables.  It argues that it could not be said that further reasonable treatment was unlikely to result in significant functional improvement to a level enabling the Applicant to work.[14]  It points to the following evidence in support of this contention:

    ·A report by Ms Batth on 15 August 2016 that the Applicant ‘has demonstrated less stress in the sessions’ and has ‘demonstrated the desire to feel better’[15];

    ·A medical certificate provided by Dr Lim on 16 September 2016 which reported that the Applicant had ‘the ability to obtain a job’ provided it did not involve walking or travelling distances[16];

    ·The Applicant travelled to Malaysia on 5 July 2016 and 16 November 2016 to visit his family.[17]

    [14] Respondent’s SFIC paragraph 5.33.

    [15] T Documents, T9 pages 132 and 133.

    [16] T Documents, T12 page 142.

    [17] T Documents, T21 page 189.

24. At the hearing, the Applicant was questioned about his mental health conditions and how they impact on his daily life.  He said that he stays at home and watches television most of the time and sometimes he is visited by friends.  His wife attends to all the household chores and the needs of their children.  The Applicant was asked whether his condition had improved since his wife and daughter had arrived.  He said that he is less stressed than he was prior to them joining him and his son, but there are other stressors that affect him. For example, in May 2018 he had a fight with his neighbour and subsequently attended hospital reporting suicidal and homicidal thoughts.[18]  Also, his financial situation is a cause of stress for him as he has not yet received any additional benefits or allowances for his wife and daughter.

    [18] Exhibit A5, MH Discharge Report, Concord Repatriation General Hospital dated 21 May 2018.

25. On the basis of the evidence before it, the Tribunal finds that at the end of the qualification period on 26 August 2016, the Applicant’s condition was not fully stabilised.  The evidence supports a finding that during the qualification period the primary causal factor for the Applicant’s mental health condition was his separation from his wife and daughter who were in Malaysia waiting to be reunited with him and his son in Australia,[19] a stressor that has since been removed.  As the condition cannot be said to have been fully stabilised during the qualification period, no impairment rating can be assigned to this condition.

    [19] Exhibit A3, Report of Ms Batth dated 20 June 2017.

    Condition 3 – Chronic pain

26. In their reports, Dr Lim[20] and Dr Choudhary[21] refer to the Applicant having chronic pain.

    [20] T Documents, T8 page 131.

    [21] Exhibit R1, Report of Dr Choudhary dated 27 June 2018.

27. The Respondent contends that at the qualification period there is no medical evidence that the Applicant had been diagnosed with a pain condition, in and of itself.[22]  It further argues that even if the Applicant had been diagnosed with a pain condition there is no evidence that the condition had been treated through a multidisciplinary pain management program.[23] 

    [22] Respondent’s SFIC paragraph 5.40.

    [23] Respondent’s SFIC paragraph 5.40.

28. The Applicant did not provide additional evidence in relation to this condition and therefore on the basis of the evidence before it, the Tribunal cannot be satisfied that the condition has been fully diagnosed, treated and stabilised, and therefore it cannot be assigned a separate impairment rating under Table 1.

    CONCLUSION

29. During the qualification period, the Applicant suffered from impairments attracting a total rating of ten points under the Impairment Tables. As this is less than the required total of 20 points necessary to establish eligibility for DSP, it follows that the Applicant was not qualified for DSP during the qualification period.

30. As the Applicant’s conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.

    DECISION

31. The decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...................................[SGD].....................................

Associate

Dated: 16 October 2018

Date(s) of hearing:	16 July 2018
Applicant:	In person
Solicitors for the Respondent:	Dr Steve Thompson, Department of Human Services