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

[2016] AATA 170

Sisalem and Secretary, Department of Social Services (Social services second review) [2016] AATA 170 (22 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4791
Re	Aladdin Sisalem
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	22 March 2016
Place	Melbourne

The decision under review is affirmed

.....................................................................

Dr Damien Cremean

SOCIAL SECURITY –Disability support pension—suspension--cancellation-- absence from Australia—eligible medical treatment—whether requirements for DSP met--Impairment Tables—indefinite portability—decisions affirmed.

Legislation

Social Security Act 1991(Cth), sections 29(1), 94(1), 94(3B),1217,1218AAA (1)(b).

Secondary Materials

Social Security (Tables for the Assessment of work-related Impairment for Disability support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Dr Damien Cremean

22 March 2016

1. The Applicant seeks review of the decision of the Social Services & Child Support Division of this Tribunal given on 1 September 2015 which affirmed decisions of the Department of Human Services as follows:

   (a)the decision notified on 10 July 2015 to cancel his Disability Support Pension (‘DSP’) payable under the Social Security Act 1991(Cth).

   (b)the decision notified on 11 July 2015 to suspend his DSP from 11 July 2015.

2. The issues for determination are whether:

   (a)the maximum portability period for his DSP could  be extended;

   (b)he remained qualified for DSP as at the date of cancellation; and

   (c)if he remained qualified for DSP at that date, his DSP payment was indefinitely portable.

3. At the hearing the Applicant appeared in person but called no witnesses. Previously he had lodged documentary materials and detailed submissions with the Tribunal.

4. In addition the Applicant addressed the Tribunal at considerable length—sometimes confusingly and sometimes inaudibly---on issues which he saw as important.

5. Formerly Victorian Legal Aid was acting for the Applicant.

6. The Respondent was represented by Ms Zhou.

7. In cross examination, questions asked of the Applicant by Ms Zhou did not show him in a favourable light.

8. For example, in his submissions the Applicant says that on his flight to Thailand for treatment at a clinic (which led to the cancellation of his DSP) I did not travel overseas alone. The Applicant was asked by Ms Zhou whether he was accompanied by anyone when he went on the flight. His answer was that he was accompanied–by the other passengers in the plane, or with people on the aircraft. He repeated his answer when asked again.

9. He said he could not remember the name of the person who told him about the clinic in Thailand but he did know that this person was a student at Swinburne University.

10. He said he found out about the clinic through a translation agency, but he did not offer any further detail.

11. The evidence given at the previous hearing however indicates that he came across the clinic on his way home from China while staying in Bangkok for a week. 

12. At that hearing the Applicant apparently said a friend had earlier taken him to Indonesia for a holiday and rest and suggested he try treatment there for his back condition.

13. This was not mentioned by him at the hearing before me. Why he might need rest in Indonesia, or who took him there, is not disclosed.

14. The Applicant said he could not remember what happened on the flight to Thailand.

15. At the same time though he said he could remember that his back condition was terrible. Oddly, he happened to also remember the weight of his carry-on luggage (13kgs).

16. He took the flight to Thailand even though he says in his submissions that his condition makes it difficult to sit, stand, use my hands or arms for more than a few minutes.

17. I formed the distinct view that the Applicant--for whatever reason--is secretive and guarded about matters concerning himself.

18. I am not satisfied that in evidence he was prepared to give the full picture of himself or of his activities and travels.

19. I am satisfied therefore that he is prepared to advance or convey a misleading picture of himself.

20. In consequence I do not accept the truth of his evidence except on basic uncontroversial facts.

21. This is somewhat concerning considering he has travelled overseas 16 times since 2010 to a number of destinations listed as Unspecified. Some of that travel, however, was to China and the Russian Federation, apparently in the course of tertiary studies.

22. He says he has been able to afford these frequent overseas trips –which he suggested are not very expensive—by saving up his income, including that out of his DSP. This did not seem to be a credible explanation. …

23. As regards the first issue (portability period) I am satisfied that the Applicant did indeed exceed his portability period. This is as set out in section 1217 of the Act as a period of 28 days. By 11 July 2015 I accept that the Applicant had reached that maximum period.

24. The Applicant left Australia on that day and returned on 8 September 2015.

25. He had supplied letters or reports from Dr Olszewski in March 2015 supporting his travel to Thailand for the application of traditional Thai medicine for treatment of his neck and back pain. Supporting his travel also to Thailand was Dr Witte, a clinical psychologist.

26. However on 25 June 2015 the Respondent advised him that if he was to leave Australia as foreshadowed his DSP payments would stop. He left Australia regardless.

27. It is only if the Applicant’s departure from Australia was for the purpose of seeking eligible medical treatment (as the table attached to section 1217 of the Act specifies) that the absence for more than the maximum portability period is exempted.

28. The treatment to be sought by the Applicant in Thailand, based on the report of Dr Kumnerdsing (a medical practitioner in Thailand) dated 4 April 2015, even on a casual reading, offers nothing special in the way of treatment that cannot be obtained in Australia.

29. The treatment involves manual therapy, herbal treatment, physical exercises, acupressure, meditation and psychological therapy including mindfulness.

30. I accept the statements in the Health Professional Advisory Unit (HPAU) report dated 29 June 2015 that such treatments are almost certainly not unique to Thailand and that the general practitioner’s assertion that such treatments are not available in Australia cannot reasonably be accepted.

31. I therefore reject the general practitioner’s assertion as it seems absurd. I also reject the Applicant’s arguments to the contrary.

32. Further I do not accept statements of the Applicant about the beneficial effects of the Thai treatment on him.

33. I find it most curious that in Thailand, apart from going for treatment at the clinic, he says he stays indoors in his apartment. It may well be so, but it could seem unlikely.

34. Having regard to the opinion of HPAU the Applicant cannot rely on an exemption of going overseas temporarily for eligible medical treatment.

35. The first issue must be decided against the Applicant

36. The second issue is whether the Applicant qualified for DSP as at the date of cancellation.

37. Section 94 (1) of the Act specifies that a person is qualified for DSP if:

    (a) the person has a physical, intellectual or psychiatric impairment; and

    (b) the person’s impairment is of 20 points under the Impairment Tables; and

    (c) one of the following applies:

    (i) the person has a continuing inability to work.

38. It is not in issue in this case that the Applicant satisfies section 94(1)(a) at the relevant date in that he suffered various physical and mental conditions and cervical canal stenosis. He attributes much of his ill-health to his time on Manus Island. His time there was no doubt very difficult indeed. It seems clear that he suffers post-traumatic stress disorder (PTSD) as a result. It is possible this has affected his evidence.

39. Section 94(1)(a) being satisfied it is a question therefore whether the Applicant also satisfies section 94(1)(b) and section 94(1)(c)(i).

40. By section 94(1) (b) the Applicant’s impairment must be 20 points or more under the Impairment Tables. Those Tables are introduced by the Social Security (Tables for theAssessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘Tables’) and are made under section 29(1) of the Act. The Tables (15 in number) are used to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act. The Tables are function based rather than diagnosis based.

41. Table 5 of the Tables relates to Mental Health Function and applies to the Applicant as regards his PTSD with associated depression and anxiety. The Respondent accepts that he should be assigned 10 points as against the various descriptors set out. I note there is no 15 point range and that the next range is 20 points.

42. I agree with the Respondent that 10 points is the proper impairment rating in this case. It must be understood that only in exceptional cases will someone fall completely within any particular descriptor.

43. As was pointed out by Ms Zhou, the Applicant is renting accommodation on his own and he clearly has an ability to undertake airline travel. These seem to account for the first two descriptors under Table 5 (Self Care and Independent Living; and Social/Recreational Activities and Travel). The Respondent conceded the Applicant has moderate difficulties with friendships which is the third descriptor (Interpersonal Relationships). I do note though the evidence given previously that a friend took him to Indonesia. This would seem to indicate the contrary.

44. The Applicant is undertaking tertiary studies (with Deakin University at present) and has been doing so for some years and has been in a position where he must look at arranging enrolments, dealing with the University, organising studies and classes or learning online, studying for exams etc. and planning for travel. This seems to account for the last two descriptors under Table 5 (Behaviour, Planning and Decision-making; Work/Training Capacity).

45. In my view therefore in most of the indicators the Applicant satisfies the 10 point impairment rating. A 5 point impairment rating is plausible but I would not describe the Applicant’s impairment in activities involving mental health function as only mild.

46. Certainly, however, the evidence did not go anywhere near establishing that his functional impairment in such activities was severe.

47. I have noted his comments in his written submissions but I reject his notion that his choice to undertake work and studies does not reflect my level of functional limitation. Of course it does, and is evidence rightly able to be considered. Moreover I reject the other notion that as he has a work history and experiences that reflect his functional limitation –and I do not see how they reflect limitation at all-- there is thus no need to rely on examples of general activities and daily living in the descriptors. In my view in the working of the Impairment Tables examples of that kind may be relied upon.

48. I am not satisfied furthermore that I can rely on what the Applicant says in detailing matters relating to his own mental health functions.  His self–analysis mostly focuses on his pain and discomfort as opposed to functional impairment. I accept he has pain and discomfort of course but functional impairment is the relevant criterion.

49. It would be a very large step indeed to hold that the Applicant qualifies for a 20 point impairment rating for severe functional impact. I note though the contents of the letter from Dr Olszewski dated 4 January 2016 which is not supported by evidence available to me.

50. Dr Olszewski says for example that Stress exacerbates his condition to severe levels and he can have difficulty in coping with activities of daily living such as travel by public transport. The Applicant, however, does not seem to have had any disinclination to travel overseas –16 times since 2010 as I have noted.

51. The Applicant’s delivery of argument on his own behalf in the Tribunal, and his preparation of submissions beforehand, would indicate plainly no degree of functional impact to a level of 20 points on mental health functions. For example I find this sentence in his submissions (and numerous others) quite inconsistent with impaired mental health functions: Medical evidence and prognostic information arising from my previous employment history and study performance indicates that significant functional improvement within the next 2 years is highly unlikely. This is a complex sentence indicating an advanced line of reasoning.

52. As regards the accepted condition of cervical canal stenosis I agree with the Respondent that the Applicant’s condition cannot be regarded, as required, as fully treated and stabilised. In that regard I rely upon the HPAU report expressing the view the Applicant at the time was awaiting appointment with a neurosurgeon. The Applicant says this is highly unreasonable but it clearly goes to the question whether at the relevant time the criteria for an impairment rating under the Tables can be given. What happened with the Applicant’s physiotherapy in this regard at a time as far back as 2013—which he points to it seems —is not relevant.

53. I note that the Applicant expressed no difficulty in being able to lift his 13 kilograms of personal luggage into the overhead lockers on his flight. He obviously had nothing in the way of incapacity or impairment which prevented him from doing that.

54. Hence for his condition of cervical canal stenosis no points can be awarded under the Tables as the qualifying criteria have not been met.

55. This means that the Applicant only attains a maximum of 10 points under Table 5.

56. The Applicant is not required to satisfy the Act as regards participation in a program of support but I am not satisfied that the Applicant has a continuing inability to work under section 94(1)(c) (i) of the Act.

57. In that regard I rely upon the JCAR report dated 9 July 2015 which is a date immediately before the Applicant left Australia. With intervention his work capacity at that time was expected to increase in the next two years to 15-22 hours per week. The Applicant has a history of working in jobs which in my view he could readily do. He has in the past done security work and has worked as a mechanic. He may do physical exercise as a pastime it seems.

58. The Applicant takes issue with this report as I have noted pointing for example to his poor academic outcomes at Victoria University.  His poor academic outcomes do not equate to the sophisticated submissions he has prepared.

59. It follows from this that the Applicant does not satisfy the criteria in section 94 (1) of the Act which are cumulative.

60. The second issue must be decided against the Applicant.

61. Being of the view that the Applicant does not qualify for 20 points under Table 5 or any other Table, it follows he does not have a severe impairment under section 94(3B) for the purposes of section 1218AAA (1) (b) of the Act.

62. This means in turn that the Applicant is not eligible for indefinite portability.

63. The third issue must be decided against the Applicant.

64. The decisions under review must be affirmed.

65.      

66.      

67.     I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean

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

Associate

Dated 22 March 2016

Date of hearing	22 February 2016
Applicant	Aladdin Sisalem
Advocate for Respondent	Julie Zhou