Shedrawi and Secretary, Department of Social Services (Social services second review)
[2016] AATA 139
•9 March 2016
Shedrawi and Secretary, Department of Social Services (Social services second review) [2016] AATA 139 (9 March 2016)
Division
GENERAL DIVISION
File Number(s)
2014/3311
Re
Leila Shedrawi
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 9 March 2016 Place Sydney The decision of the former Social Security Appeals Tribunal that Mrs Shedrawi does not qualify for DSP is affirmed.
....................[sgd]....................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Professor R McCallum AO, Member
9 March 2016
INTRODUCTION
Mrs Leila Shedrawi was born in Lebanon and she and her husband commenced living in Australia in 1971. Mrs Shedrawi became an Australian citizen in 1983. Mrs Shedrawi undertook work as a machinist/process worker from 1978 to 1987, and then she worked as a cleaner/housemaid from 1994 to 2005. She is currently in receipt of Newstart allowance.
Mrs Shedrawi's 29 October 2013 DSP Claim
On 29 October 2013, Mrs Shedrawi lodged a claim for Disability Support Pension (DSP). In her claim, Mrs Shedrawi listed the following impairments: Arthritis, Carpus Tunnel, Back injury, Mild emphysema, Sleep apnoea and Severe migraines.
Dr Grosslight completed a medical report in respect of Mrs Shedrawi's DSP claim dated 12 October 2013. Dr Grosslight reported Mrs Shedrawi as having two conditions which impacted on her daily life. First, chronic obstructive airways disease, with this diagnosis having been confirmed by Dr Sultana Syeda. The symptoms identified were breathlessness and reduced exercise tolerance.
The second condition was lumbosacral disc disease, and the symptoms were right sciatica and reduced mobility. Dr Grosslight also stated that Mrs Shedrawi suffered from thyroid dysfunction, sleep apnoea and bilated carpal tunnel syndrome.
Dr David McKenzie who is an Associate Professor of Respiratory and Sleep Medicine wrote a report dated 24 October 2013. The material parts of this report read as follows.
Leila [Mrs Shedrawi] returned for review of her obstructive sleep apnoea and other problems with a download of data from the CPAP machine. She is actually going quite well with it and is averaging more than 5 hours a night. The apnoea/hypopnoea index is < 2 per hour. Mask leakage is occasionally excessive. At those times she is still snoring. There have been some improvements in her daytime functioning, but she has had a lot of laryngeal symptoms lately. She is constantly clearing her throat rather than coughing. She says that her chest is tight and she can't breathe. An ENT assessment recently indicated that the vocal cords appeared normal.
On examination today the lungs were clear to auscultation. Spirometry showed variable obstruction, but the obstruction was in the upper airway. Thus it is difficult to interpret the results.
I am pleased with her response to CPAP. I am not sure what's going on with her larynx. She does seem to be on sufficient reflux therapy. She is continuing to use Seretide and Spiriva. Today I have given her a course of roxithromycin and asked her to return to you for review. I suggested review here in 6 months or sooner if she continues to have problems.
On 19 November 2013, Mrs Shedrawi undertook a job capacity assessment by a registered psychologist and rehabilitation counsellor and the report is dated 21 November 2013.
The assessor held that Mrs Shedrawi suffered from a spinal disorder, that is lumbosacral disc disease and the assessor noted that she had a laminectomy in 2011. The spinal disease was fully diagnosed, treated and stabilised and the assessor assigned an impairment rating of 10 points under Table 4 of the Impairment Tables which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). Table 4 is titled "Spinal function".
The assessor further held that Mrs Shedrawi suffered from chronic obstructive airways disease and that she had mild sleep apnoea. The chronic obstructive airways disease was fully diagnosed, treated and stabilised and the assessor assigned an impairment rating of 10 points under table 1 of the Impairment Tables. Table 1 is titled "functions requiring physical exertion and stamina".
The assessor also held that the impairments of thyroid dysfunction and bilateral carpal tunnel syndrome had not been fully diagnosed, treated and stabilised and could not receive impairment ratings under the Impairment Tables.
On 22 November 2013, Centrelink wrote to Mrs Shedrawi to inform her that her claim for DSP was unsuccessful. Mrs Shedrawi had not completed a program of support before claiming DSP.
Reviews by ARO and SSAT
Mrs Shedrawi appealed to an Authorised Review Officer (ARO) and then to the Social Security Appeals Tribunal (SSAT), but to no avail.
The ARO affirmed the decision of Centrelink to reject Mrs Shedrawi's claim for DSP.
The SSAT stated that Mrs Shedrawi's chronic neck and back pain warranted an assessment of 10 points under table for of the Impairment Tables, and that her chronic obstructive airways disease warranted an assessment of 10 points under table 1 of the Impairment Tables.
The SSAT noted that Mrs Shedrawi was found to have type 2 diabetes mellitus in December 2013, however, it was not diagnosed until after Mrs Shedrawi had submitted her claim for DSP.
In relation to her impairments of thyroid dysfunction and bilateral carpal tunnel syndrome, the SSAT held that they had not been fully diagnosed, treated and stabilised during the claim period.
Although Mrs Shedrawi was assessed at 20 points under the Impairment Tables, as she did not have a severe impairment as defined in the relevant legislation she was required to have participated in a program of support in order to qualify for disability support pension. As Mrs Shedrawi had not participated in a program of support the decision of the ARO was affirmed.
Mrs Shedrawi now appeals to this Tribunal.
Mrs Shedrawi's Accute Leukaemia
There are before this Tribunal, two medical reports relating to Mrs Shedrawi's Leukaemia. The first is a report from the Prince of Wales hospital dated 8 April 2015, which states that Mrs Shedrawi has accute Leukaemia. The second is a report from Dr Grosslight dated 9 April 2015 which also states that Mrs Shedrawi has accute Leukaemia.
THE LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Mrs Shedrawi's circumstances subsection 94(1) relevantly provides:
(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;
…
Put simply, I must be satisfied, first, that Mrs Shedrawi has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mrs Shedrawi has a continuing inability to work.
The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. It relevantly provides as follows.
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) ...the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases-the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases-either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity-such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
…
This definition is complex, but in essence, unless a person has a severe impairment, the person must have participated in a program of support. A severe impairment is defined in subsection 94(3B) as follows.
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
This means that in Mrs Shedrawi's circumstances, if any of her impairments are assessed at 20 points under a single impairment table, that impairment will be a severe impairment. If none of Mrs Shedrawi's impairments are severe impairments, she will be required to have participated in a program of support.
"Program of support" is defined in subsection 94(5) as follows.
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
Under subsection 94(3C) of the SS Act, a person has actively participated in a program of support if the person satisfies the requirements set out in the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 (Cth) (the POS Determination).
It is not necessary to set out subsections 5(1) and (5)2 of the POS determination. Suffice to write that these provisions specify persons must participate in programs of support for 18 months in the three years before lodging their claims for DSP. There are exceptions which need not be set out in detail at this point in the decision.
Finally, Mrs Shedrawi's impairments must be sufficient to prevent Mrs Shedrawi from doing any work independently of a program of support within the next 2 years.
THE 13 WEEK QUALIFYING PERIOD
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mrs Shedrawi's eligibility for DSP in the 13 week period commencing on the day on which Mrs Shedrawi's claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mrs Shedrawi qualified for DSP between 29 October 2013 and 28 January 2014.
In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:
In the Tribunal's consideration as to whether a condition has been stabilized and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).
This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In Re Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said at [31]-[33]:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the claim period may still be relevant, but only in so far as they are referable to the applicant's condition during the claim period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
[33] … The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the claim period is not directly relevant to the Tribunal's decision.
Therefore, in determining the eligibility of Mrs Shedrawi to receive DSP I am confined to examining Mrs Shedrawi's impairments during the thirteen week claim period which is from 29 October 2013 to 28 January 2014.
The date of this hearing was 1 February 2016 which means that just over two years has elapsed since the end of Mrs Shedrawi's claim.
THE CONCESSIONS OF THE RESPONDENT
Paragraph 4.6 of the Respondents statement of facts and contentions is as follows.
4.6. The Respondent does not dispute that the Applicant suffered from impairments which impacted on her ability to function for the relevant period, it is thus accepted that the Applicant satisfies paragraph 94(1) (a) of the Act. ...
THE ISSUES BEFORE THE TRIBUNAL
Given the Respondent's concessions, Mrs Shedrawi meets the requirements of subsection 94(1)(a) of the SS Act as she has impairment. Therefore, the first issue which I am required to decide is whether any of the impairments of Mrs Shedrawi have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess their functional impact under the Impairment Tables.
The second issue which I am required to decide is whether Mrs Shedrawi has a continuing inability to work pursuant to subsection 94(1)(c)(i) and subsection 94(2) and attendant provisions of the SS Act. It will not be necessary to decide this issue if I find that Mrs Shedrawi's impairments do not attain an assessment of 20 points under the Impairment Tables.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments resulting from Mrs Shedrawi’s conditions are worth twenty points under the Impairment Tables. This requires a few words of explanation.
In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Determination and the impairment resulting from the condition is likely to persist for more than two years. The Determination provides at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and be likely to persist for more than two years.
Subsection 6(5) of the Determination provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years. Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.
It is also important to appreciate that under sub-section 10(5), if two or more conditions cause a common or combined impairment, then a single rating should be assigned in relation to that common or combined impairment under a single Table. However, sub-section 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, 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.
THE EVIDENCE OF MRS SHEDRAWI
Mrs Shedrawi attended the hearing in person. She was accompanied by her daughter Ms Lazarov who assisted her mother and who was very helpful to the Tribunal.
Mrs Shedrawi gave sworn evidence. While English is not her first language, Mrs Shedrawi gave her evidence without the aid of an interpreter. I found Mrs Shedrawi to be an honest witness who answered all of the questions which were ask her to the best of her ability.
Mrs Shedrawi said that her neck and back pain commenced a long time ago. She finds it difficult to turn her head from side to side and this difficulty has worsened.
Mrs Shedrawi said that she has not taken public transport since she made the 29 October 2013 claim for DSP because it jolts her neck and back. Mrs Shedrawi said that she accompanies her husband to do the shopping and she hangs onto the shopping trolley to assist her to walk around the shops.
Mrs Shedrawi said that her husband does the washing and the hanging out of the clothes. Mrs Shedrawi said that she can dress herself and bathe without assistance. However, when she wishes to put on closed shoes as distinct from thongs, her husband gives her assistance.
Mrs Shedrawi said that she cannot walk far at all.
When asked about her chronic obstructive airways disease, Mrs Shedrawi said that she gets short of breath and her heart rate increases. She said that she had been seeing Dr McKenzie about once every three months in 2014 and in 2015. Her visits ceased when Mrs Shedrawi was hospitalised in 2015. Mrs Shedrawi said that she had been using the CPAP machine, that is the sleep apnoea machine for the past three or four years.
Mrs Shedrawi said that her diabetes was diagnosed after she made her claim for DSP. She takes tablets.
In cross-examination, Mrs Shedrawi said that she began treatment for her respiratory problems in 2010 or in 2011 after her back operation. She said that initially she did not wish to use the sleep apnea machine for a sleep study because she was worried that she would experience claustrophobia. However, after a month she agreed to use the machine.
Mrs Shedrawi said that her breathing difficulties have worsened since the claim period. She also said that her neck and back pain problems have also worsened since the claim period.
Mrs Shedrawi said that she was now in remission from her Leukaemia. Mrs Shedrawi said that at the time of her DSP claim she could drive for short distances up to ten minutes, but she no longer drives.
CONSIDERATION
The first issue which I am required to decide is whether any of the impairments of Mrs Shedrawi have been fully diagnosed, treated and stabilised during the claim period. If I find that any impairments have been fully diagnosed, treated and stabilised, I am required to assess them under the Impairment Tables.
This is a difficult task because I am required to examine the impairments of Mrs Shedrawi as they existed two years ago, that is in the period from 29 October 2013 to 28 January 2014. In her evidence, Mrs Shedrawi said that her back and neck pain impairments and her breathing difficulties have deteriorated since the end of the claim period.
Having regard to all of the evidence, I incline to the view that Mrs Shedrawi's lumbosacral disc disease and her chronic obstructive airways disease have worsened since the end of the claim period.
Lumbosacral Disc Disease
In oral submissions, the Respondent accepted that Mrs Shedrawi's lumbosacral disc disease was fully diagnosed, treated and stabilised during the claim period. Having regard to the medical evidence, I find that this impairment was fully diagnosed, treated and stabilised during the claim period. For completeness, I note that the Job Capacity Assessor, the ARO and the SSAT also made this finding.
I am thus required to assess the condition under the relevant table, that is table 4 of the Impairment Tables, to see what rating, if any, reflects the functional impact caused by the impairment.
The descriptors for 10 points, that is for a moderate impact under table 4 are as follows.
10: There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items overhead height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The descriptors for a severe impact (20 points) under table 4 are as follows.
20: There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Having regard to the evidence, I find that her lumbosacral disc disease does not warrant a severe, that is a 20 point impairment rating under table 4 of the Impairment Tables. I note that Mrs Shedrawi appeared in person before the SSAT on 23 May 2014. The SSAT stated that Mrs Shedrawi was able to pick up the papers in front of her. At the hearing before me, Mrs Shedrawi was able to sit for more than 30 minutes without a break.
Having regard to all of the evidence, I find that the lumbosacral disc disease warrants an impairment rating of 10 points under table 4 of the Impairment Tables. In other words it has a moderate affect upon Mrs Shedrawi.
Chronic Obstructive Airways Disease
In oral submissions, the respondent accepted that the chronic obstructive airways disease was fully diagnosed and treated during the claim period. However, the Respondent contended that it was not stabilised during the claim period.
The respondent pointed to the 24 October 2013 report from Associate Professor David McKenzie. The material portions of this report have been set out above. The Respondent drew my attention to the following passage which is as follows.
On examination today the lungs were clear to auscultation. Spirometry showed variable obstruction, but the obstruction was in the upper airway. Thus it is difficult to interpret the results.
I am pleased with her response to CPAP. I am not sure what's going on with her larynx. She does seem to be on sufficient reflux therapy. She is continuing to use Seretide and Spiriva. Today I have given her a course of roxithromycin and asked her to return to you for review. I suggested review here in 6 months or sooner if she continues to have problems.
The Tribunal has before it a report from Dr Sultana Syeda dated 26 September 2011 where Mrs Shedrawi agreed to use the CPAP machine, that is some two years before the claim period. I note that the job capacity assessor, the ARO and the SSAT held the chronic obstructive airways disease to have been fully diagnosed, treated and stabilised during the claim period.
The Respondent did not seek to call Associate Professor McKenzie to elaborate on his report of 24 October 2013 and his subsequent treatment of Mrs Shedrawi. Given the length of the treatment which Mrs Shedrawi had before the claim period, I am not prepared to read into Associate Professor McKenzie's words that he did not regard the chronic obstructive airways disease as stabilised.
Having regard to all of the evidence, I find that Mrs Shedrawi's chronic obstructive airways disease was fully diagnosed, treated and stabilised during the claim period.
I am thus required to give Mrs Shedrawi's chronic obstructive airways disease an impairment rating under table 1 of the Impairment Tables.
The descriptors for a moderate impact under table 1 of the Impairment Tables are as follows.
10: There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities: or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket: and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
The descriptors for a severe impact under table 1 are as follows.
20: There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance: or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a
clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
I have found the determining of an impairment rating under table 1 of the Impairment Tables to be difficult because of the two year time lapse. Having regard to the evidence before me, I find that Mrs Shedrawi's chronic obstructive airways disease does not warrant an impairment rating of 20 points under table 4 of the Impairment Tables because it does not have a severe affect as defined by the Impairment Tables upon her. I accept that she does have difficulty with heavier household activities. In evidence before me, Mrs Shedrawi said that she can go shopping and walk by holding onto the shopping trolley. She also said that she did catch public transport during the claim period.
I find that 10 points, that is a moderate impairment rating under table 1 is the correct rating.
Thyroid dysfunction
There is little evidence about this impairment and I am unable to conclude that it was fully diagnosed, treated and stabilised during the claim period. In any event, from the evidence it appears the Thyroid dysfunction does not greatly impact upon Mrs Shedrawi’s daily life.
Carpal Tunnel Disease
Given that Mrs Shedrawi had a further operation after the end of the claim period, I find that her carpal tunnel disease was not fully treated and stabilised during the claim period and cannot be assessed under the Impairment Tables.
Leukaemia
The Leukaemia was not diagnosed until more than one year after the claim period. Therefore, I am not permitted to take it into account.
Conclusion on Impairments
I have assessed the lumbosacral disc disease of Mrs Shedrawi at 10 points under table 4 of the Impairment Tables. I have assessed Mrs Shedrawi's chronic obstructive airways disease at 10 points under table 1 of the Impairment Tables.
I therefore find that as Mrs Shedrawi's impairments have an impairment rating of 20 points under the Impairment Tables, she satisfies subsection 94(1)(b) of the SS Act.
Continuing Inability To Work
I am now required to decide whether Mrs Shedrawi has a continuing inability to work within the meaning of subsection 94(1)(c)(i), subsection 94(2) and attendant provisions of the SS Act.
Although Mrs Shedrawi's impairments have been rated at 20 points, no single impairment has been rated at 20 points as a severe impairment. Therefore, neither of Mrs Shedrawi's two rateable impairments are a severe impairment within the meaning of subsection 94(3B) of the SS Act. Mrs Shedrawi is therefore required to have participated in a program of support for 18 months in the three years prior to claiming DSP. In the hearing it became clear that Mrs Shedrawi did not know of the requirement to participate in a continuing program of support until Centrelink informed her of this requirement when she made her 29 October 2013 claim for DSP. Therefore, Mrs Shedrawi did not participate in a program of work for 18 months in the 3 years before she made her claim.
Section 5, subsections (3) to (5) of the POS determination set out exemptions from the requirement of undertaking a program of support for 18 months. Briefly put, these exemptions are as follows.
·The person completed a program of support, but it was less than 18 months in length. ( subsection 5(3))
·The person participated in a program of support, but was terminated "because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation in the program." (subsection5(4))
·At the date of claim, "the person is participating in the program of support; and the person is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation in the program." (subsection 5(5))
In my view, none of these exceptions apply to the circumstances of Mrs Shedrawi and no evidence was presented to show that any exception was applicable.
Accordingly, I find that as Mrs Shedrawi did not participate in a program of support for 18 months in the 3 years prior to her claim for DSP, Mrs Shedrawi does not satisfy the requirement of inability to work pursuant to subsection 94(1)(c)(i) and subsection 94(2) and attendant provisions of the SS Act.
CONCLUSION
From the above findings, Mrs Shedrawi has impairments, and these impairments are rated at 20 points under the Impairment Tables. Therefore, Mrs Shedrawi satisfies subsection 94(1) paragraphs (a) and (b) of the SS Act.
However, as neither of Mrs Shedrawi's rateable impairments are a severe impairment within the meaning of subsection 94(3B) of the SS Act, Mrs Shedrawi is required to participate in a program of support. Mrs Shedrawi did not complete 18 months of a program of support within the 3 years prior to claiming DSP. Therefore, I find that she does not qualify for DSP.
DECISION
The decision of the former Social Security Appeals Tribunal that Mrs Shedrawi does not qualify for DSP is affirmed.
I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ...........................[sgd].............................................
Associate
Dated 9 March 2016
Date(s) of hearing 1 February 2016 Applicant In person Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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