Sobhia Mekaoui and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 398

[2013] AATA 398

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/2342
Re	Sobhia Mekaoui
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	14 June 2013
Place	Sydney

The reviewable decision is set aside and substituted with a decision that Mrs Mekaoui satisfies the requirements of section 94(1) of the Social Security Act 1991 and, subject to satisfying other relevant criteria, was qualified to receive disability support pension at the date of application.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – residence requirement – whether continuing inability to work existed prior to applicant becoming a permanent resident – decision under review set aside

LEGISLATION

Social Security Act 1991 s 94

CASES

Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500

REASONS FOR DECISION

Dr Ion Alexander, Member

14 June 2013

1. On the 16 March 2011 Mrs Mekaoui lodged an application for disability support pension (DSP) in which she claimed that she suffered various medical conditions including major depression, lumbar discopathy and migraine headaches.

2. Mrs Mekaoui’s application was rejected by Centrelink on the basis that she was not medically qualified for DSP.

3. On 20 September 2011 the Social Security Appeals Tribunal (SSAT) set aside the Centrelink decision on the basis that Mrs Mekaoui satisfied the qualification criteria under subsections 94(1) (a), (b), and (c) of the Social Security Act 1991 (the Act) and remitted the matter to Centrelink for reconsideration.

4. The SSAT concluded that Mrs Mekaoui’s medical condition of “depression and anxiety” alone attracted a rating of 20 points under Impairment Table 6 and was satisfied that this condition was severe enough to prevent her from working in any capacity of up to 15 hours per week for at least two years.

5. On 20 October 2011 Centrelink made a further decision that, Mrs Mekaoui did not satisfy subsection 94(1)(e) of the Act in that she was not residentially qualified to receive DSP as her continuing inability to work arising from her medical condition, “depression”, was present prior to her being granted permanent residency on 12 January 2010 and, in the alternative, she did not have 10 years qualifying residence.

6. On 22 May 2012 the SSAT affirmed Centrelink’s decision and in the current proceeding Mrs Mekaoui seeks review of this decision.

7. At the hearing Mrs Mekaoui was unrepresented but was assisted by an interpreter in the Arabic language and gave some oral evidence.

   ISSUES

8. It is common ground that at the time of her application for DSP Mrs Mekaoui satisfied the requirements of subsections 94(1) (a), (b), and (c) of the Act.

9. However, subsection 94(1)(e)(i) states a person is qualified for DSP if the person “is an Australian resident at the time when the person first satisfies paragraph (c)”.

10. Relevantly, subsection 94(1)(c)(i) requires that an applicant has “a continuing inability to work”. According to the definition in subsection 94(2)(a) a person has a continuing inability to work because of an impairment if 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’’.

11. There is no dispute that for the purposes of the Act Mrs Mekaoui first became an Australian resident on 12 January 2010.

12. There is also no dispute that the relevant impairment for present purposes is Mrs Mekaoui’s psychiatric impairment.

13. The respondent contends that Mrs Mekaoui’s psychiatric impairment, namely “depression”, was diagnosed prior to 12 January 2010 and that her continuing inability to work had therefore also arisen prior to that time. Accordingly, Mrs Mekaoui was not entitled to DSP because she was not an Australian resident at the time at which she first satisfied subsection 94(1)(c) and therefore did not satisfy subsection 94(1)(e)(i). Mrs Mekaoui, having arrived in Australia in 2006, did not satisfy the alternative residence requirement contained in subsection 94(1)(e)(ii), of 10 years qualifying Australian residence.

14. In Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500 at [27] the Full Federal Court considered the correct approach to the application of subsection 94(1)(e)(i):

    We favour the construction of s 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of s 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of s 94(1)(c). … However in most cases, the decision-maker will have only to determine whether or not the impairment as it is at the relevant time was present at the time at which the claimant became an Australian resident. It is only where the condition has become more or less acute, or where one of the other variable factors to which we have referred has come into operation that the matter will become more difficult.

15. It follows that the only issue to be determined is when Mrs Mekaoui’s actual psychiatric impairment identified for the purposes of subsections 94(1)(a), (b) and (c) was first such as to prevent her from doing any work within the two year period identified for the purposes of subsection 94(1)(c).

    MRS MEKAOUI’S EVIDENCE

16. At the SSAT hearing on 20 September 2011 Mrs Mekaoui stated that she had depression since arriving in Australia in 2006, but had only been treated by a psychiatrist, Dr Alhajali, during the previous year. She explained that she saw Dr Alhajali about every three months, but did not think it was helping much. She was started on new medication including Avanza and Xanax. She agreed that she had seen a counsellor in the past, but was unable to remember when. She also briefly described a history of difficult domestic circumstances.

17. The SSAT commented that Mrs Mekaoui was “visibly upset and tearful when giving this evidence, and throughout the hearing process” and noted that she had poor concentration and poor memory.

18. At the AAT hearing Mrs Mekaoui appeared to be extremely anxious and although ably assisted by an interpreter in the Arabic language it was clear that her oral evidence would be somewhat limited, particularly as she demonstrated significant difficulty with her recollection of details with respect to her past mental health issues.

19. Mrs Mekaoui agreed that she had been referred to Dr Alhajali by her then GP, Dr Alameddin, in 2010. She no longer sees Dr Alhajali as Mrs Mekaoui has gone back to her former GP, Dr Ali El-Jaam, and she said she felt more comfortable talking to Dr Ali El-Jaam than Dr Alhajali.

20. She explained that during 2010 she had changed to Dr Alameddin because at that time she was living at Lakemba and when later she moved back to Bankstown she returned to her former GP, Dr Ali El-Jaam.

21. When asked by the Tribunal whether Dr Alhajali was the first psychiatrist that she had seen she explained that she had seen a “lady” in the past for counselling, but was unable to remember when or what her professional status was. She added that the person did not prescribe any medication.

22. Mrs Mekaoui explained that in the period just prior to her referral to Dr Alhajali her symptoms had been worse and that for about the previous year her children had not been able to leave her at home alone. She said that she was very “exhausted” and in a “collapsed state”.

23. Mrs Mekaoui said that when she first saw Dr Alhajali he prescribed new medication and that recently her GP had increased the dose and also added new medication.

24. When asked about the onset of her panic symptoms and anxiety Mrs Mekaoui indicated that this was more recent and had actually got worse after seeing the psychiatrist.

25. In response to a question from the Tribunal, Mrs Mekaoui said that her symptoms had increased in the period before her application for DSP and that at the time she applied she had been at her worst ever.

26. When questioned by the representative for the respondent about her past failure to take part in literacy, language and numeracy courses Mrs Mekaoui said “well, I am illiterate. How am I going to learn to read and write in a different language? As soon as I came from Lebanon I attended a few classes, but I was unable to understand a thing”.

    MEDICAL EVIDENCE

    Dr Ali El-Jaam

27. The Tribunal had the benefit of a copy of the clinical notes of Dr Ali El-Jaam, Mrs Mekaoui’s GP, spanning a period of almost seven years, but divided into three distinct periods, 9 August 2006 to 27 October 2008, 10 February 2010 to 12 May 2010 and 8 June 2011 to 3 April 2013.

28. At the initial consultation on 9 August 2006 under the heading “Reason for visit” Dr Ali El-Jaam lists several medical conditions including “? Depression”. There is no mention of any symptoms or any assessment as to possible functional impact.

29. Subsequently, there is no reference to “depression” in the notes until 12 July 2007 where the entry notes the history as “post hospital discharge’ and reason for visit as “Depression.” There is no description of any symptoms and no reference to incapacity. Management is described as “counselling” and medication added is Xanax and Lovan.

30. The next relevant entry is 11 October 2007. Dr Ali El-Jaam lists numerous symptoms, “Poor sleep. Early morning wakening. Depressed mood. Low self esteem. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. [Emphasis added]” There is no mention of anxiety and no assessment of functional impact. Management is described as “counselling” and Lovan is replaced by Zoloft and it appears that Xanax was ceased.

31. On 21 July 2008 Endep is added to medications with no explanation.

32. The next mention of psychological symptoms in the notes is 17 September 2008 when Dr Ali El-Jaam records an almost identical list of symptoms noted in October 2007, but provides no additional clinical information.

33. On 10 October 2008 Dr Ali El-Jaam notes “leaving on pilgrimage” halves the dose of Zoloft and ceases Endep, but provides no explanation for these decisions.

34. On 14 October 2008 Dr Ali El-Jaam provides a Centrelink medical certificate in which he lists three medical conditions which impact on Mrs Mekaoui’s capacity to work: L4/5 S1 disc bulges, migraine and depression. He provides no information as to the severity of each condition and no assessment of the relative significance of each condition in respect of Mrs Mekaoui’s capacity to work. He did note, however, that Mrs Mekaoui was unfit for work for a period of 2 months and identified “avoid heavy lifting pushing pulling” as factors which may impact on Mrs Mekaoui’s return to work.

35. In respect of depression the only information provided was that the condition was permanent with a date of onset of 14 October 2007 and that the symptoms were “depressed mood low self esteem”. There was no mention of panic attacks or symptoms of anxiety.

36. During 2009 there were no entries in the clinical notes.

37. On 10 February 2010, one month after becoming an Australian resident, Mrs Mekaoui consulted Dr Ali El-Jaam complaining of gastrointestinal symptoms. The doctor makes no reference to depression or any other psychological symptoms, but ceases all antidepressant medication but provides no reasons.

38. On 11 March 2010 Dr Ali El-Jaam notes Mrs Mekaoui’s reason for contact was “depression” and treatment was described as “counselling” and new medication, Cipramil, is prescribed.

39. On 12 May 2010 Dr Ali El-Jaam notes “depressed mood” and “counselling” but nothing else.

40. The next entry in the notes is on 8 June 2011 when Mrs Mekaoui returns to the care of Dr Ali El-Jaam complaining of genito-urinary symptoms.

41. On 27 August 2011 Dr Ali El-Jaam notes “Poor sleep, Early morning wakening. Depressed mood. Low self esteem”, but makes no other reference to Mrs Mekaoui’s psychiatric issues.

42. On 24 October 2012 Dr Ali El-Jaam notes Mrs Mekaoui’s previously described psychological symptoms, but on this occasion adds “panic attacks” for the first time.

    Dr Alameddin

43. On 18 June 2010 Mrs Mekaoui transferred to the care of Dr Alameddin.

44. The Tribunal has a copy of his clinical notes between 18 June 2010 and 16 November 2011. The notes are difficult to read and in respect of information about Mrs Mekaoui’s mental health conditions could best be described as cursory.

45. However, on 7 July 2010 Dr Alameddin notes “anxiety and depression” and on 27 July 2010 after again noting “depression” he records that he referred Mrs Mekaoui to a psychiatrist, Dr Alhajali.

46. In a medical report dated 15 March 2011 Dr Alameddin lists “major depression” as the condition causing most impact on Mrs Mekaoui’s ability to function. The report was difficult to read and provided little useful information. Treatment was reported as “counselling, anxiolytic and antidepressant” and there is no useful information as to the impact of the condition on Mrs Mekaoui’s ability to function or her capacity to work. Also, I note that the report was not consistent with the psychiatric diagnoses expressed by Dr Alhajali in his report.

    Dr Alhajali

47. In a report dated 31 July 2010 Dr Alhajali notes that Mrs Mekaoui gave a “history of longstanding depressive mood for as long as she could remember but more in the last 7 years”. He also notes that she was diagnosed with “depression 3 months ago” and was commenced on “Citalopram” with little effect and which was stopped after a few weeks.

48. Dr Alhajali reports that Mrs Mekaoui had developed symptoms of Post Traumatic Stress Disorder (PTSD) and panic symptoms with “attacks of intense fear and anxiety”. He does not provide any time frame for the development of these symptoms.

49. Dr Alhajali describes the functional impact of Mrs Mekaoui’s psychiatric impairment. He notes that she has become “gradually isolative” and withdrawn, avoids most social activities, has fleeting suicidal thoughts and has developed a fear of leaving the house unaccompanied, but again does not make any reference to time of onset.

50. Dr Alhajali diagnoses Panic Disorder, PTSD and Dysthymia (chronic depression) and sets out a management plan which includes psychoeducation, different antidepressant medication (Avanza 30 mg to be increased to 45 mg after a few weeks) and Cognitive Behavioural Therapy.

51. On 16 March 2013, in response to written questions from the respondent, Dr Alhajali notes that he saw Mrs Mekaoui on seven occasions until 7 May 2011 and that she has severe symptoms of anxiety and chronic low mood but has had a good response to Avanza 45 mg.

    Assessment Reports

52. The Tribunal has been provided with four Job Capacity Assessment (JCA) reports and one Employment Services Assessment (ESA) report.

53. In a JCA report dated 24 October 2008 a registered psychologist lists three permanent medical conditions, spinal disorder, migraine and depression, that could impact on Mrs Mekaoui’s capacity to work.

54. The assessor concludes that none of the medical conditions were fully diagnosed, treated and stabilised and did not assign a rating under the Impairment Tables.

55. In respect of work capacity, the assessor notes that the exacerbation of Mrs Mekaoui’s “loss of mobility and depression” temporarily reduced her work capacity to 0-7 hours per week for a period of about two months.

56. The assessor also expresses the opinion that with suitable interventions it was possible that Mrs Mekaoui may enter the workforce and reach her maximum work capacity (23-29 hours per week) within the next two years.

57. In a JCA report dated 24 March 2011, a registered psychologist lists two permanent medical conditions, major depression and intervertebral disc disorder, and one temporary condition, migraine.

58. The three conditions were again considered to not be fully diagnosed, treated and stabilised and so no impairment rating was assigned.

59. The assessor describes Mrs Mekaoui as “engaging and open to discussion” and notes that she “communicated clearly throughout the interview” with the assistance of an interpreter.

60. On considering Mrs Mekaoui’s work capacity in respect of her permanent medical conditions the assessor states that “she does not demonstrate endurance to meet a full work day and so a work capacity of 15-22 hours is realistic at this time” (emphasis added) without intervention. The assessor also predicts that with intervention Mrs Mekaoui’s future work capacity could be 23-29 hours per week within two years.

61. I note that in this report there was no reference to the fact that Mrs Mekaoui was under the care of a psychiatrist at the time of the assessment.

62. In an Employment Services Assessment (ESA) report dated 15 February 2012 a Rehabilitation Counsellor lists four permanent medical conditions: depression, spinal disorder, migraine and neck disorder.

63. The assessor notes that Mrs Mekaoui reported that she was diagnosed with depression and commenced meeting with a psychiatrist approximately three years prior to the current assessment which would be about February 2009. The assessor goes on to describe the treatment by the psychiatrist which is clearly consistent with the treatment Mrs Mekaoui received by Dr Alhajali which in fact started on 31 July 2010.

64. The assessor concludes that Mrs Mekaoui’s permanent medical conditions impact on her functional work capacity so that her baseline work capacity was 8-14 hours because of her physical and psychological limitations, but with intervention her work capacity was anticipated to be 15-22 hours per week within two years.

65. In a JCA report in the form of a file assessment and dated 25 January 2013 the assessor lists several permanent medical conditions including “depression”.

66. The assessor refers to the medical certificate provided by Dr Ali El-Jaam on 14 October 2008 which recorded the date of onset of depression as 14 October 2007.

67. The assessor also refers to the reports of Dr Alhajali on 31 July 2010 and Dr Alameddin of 15 March 2011.

68. In some detail the assessor then describes the history contained in the ESA report of 15 February 2012 where it was said that Mrs Mekaoui reported that that she was diagnosed with depression and treated by a psychiatrist in 2009.

69. Curiously, the assessor appears to accept the contents of that report without question despite the fact that the documentary evidence clearly demonstrates that Mrs Mekaoui first consulted Dr Alhajali on 31 July 2010. Apart from the note in the ESA report, there is no other evidence before the Tribunal that Mrs Mekaoui was under the care of a psychiatrist in 2009.

70. The assessor goes on to assign 20 points for “depression” alone under Impairment Table 5 – Mental Health Function. The assessor relies on the reports of Dr Alhajali and Dr Alameddin, but assigns no rating for PTSD so as “to avoid overrating” and appears to ignore panic disorder.

71. I note at this point that Mrs Mekaoui applied for DSP on 16 March 2011. At that time Schedule 1B of the Act was in force and the relevant Impairment Table was Table 6, Psychiatric Impairment and was the table which the SSAT used to assign the impairment rating.

72. Table 6 stipulates that 20 points can be allocated when there is “psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks…).”

73. The assessor concludes that Mrs Mekaoui’s capacity to work over the next two years was 0-7 hours per day with or without intervention.

74. The assessor asserts that Mrs Mekaoui’s inability to work “did not arise in Australia” on the basis that her “depression and PTSD arose prior to her permanent residency visa on 12/01/10” and that despite psychiatric treatment since at least 31 July 2010 and medication since at least 14 October 2008 her symptoms persist. A contributing assessor expressed an opinion that Mrs Mekaoui’s “mental health conditions” were longstanding and originated prior to Mrs Mekaoui’s arrival in the country and are permanent in nature.

1. The JCA report dated 19 April 2013 is an amended version of the report of 25 January 2013. The same assessor confirms that Mrs Mekaoui has an impairment rating of 20 points under “Table 5” and work capacity of 0-7 hours per week with or without intervention. The amendments to the report address additional medical evidence provided by Dr Alhajali on 16 March 2013 and a review of Dr El-Jaam’s clinical practice records. The amendments were also supported by a discussion with the earlier contributing assessor, a psychologist, who after reviewing the additional medical evidence again expresses an opinion that Mrs Mekaoui’s mental health conditions were longstanding, unlikely to significantly improve and originated prior to her arrival in Australia.

   CONSIDERATION

2. In the Statement of Facts and Contentions the respondent contends that Mrs Mekaoui’s psychiatric “conditions pre-dated the grant of permanent residency in Australia” and that that “[h]er depression was considered longstanding and severe by October 2008, and despite extensive treatment both before and subsequent to her arrival in Australia that condition had n ot improved.”

3. The respondent also contends that Mrs Mekaoui’s “depression” was permanent and had prevented her from “undertaking any work (as defined by the Act) prior to 12 January 2010, that is, her CITW arose prior to the date she became an Australian resident”.

4. At the hearing the respondent submitted that Mrs Mekaoui suffered from a “severe depressive illness that is longstanding” and that the illness dates back to as early as 2003.

5. The respondent relies on the medical certificate of Dr Ali El-Jaam dated 14 October 2008 and the report of Dr Alhajali dated 31 July 2010.

6. The respondent also submitted that the longstanding “depression” was severe enough to meet the criteria of it alone causing her inability to work at all and that this was so prior to Mrs Mekaoui becoming an Australian resident.

7. I have difficulty with the respondent’s submissions because I have reservations as to whether the submissions are in fact supported by the evidence before the Tribunal.

8. I accept that the evidence points to a long history of mood disturbance which started before Mrs Mekaoui became an Australian resident and that she has had intermittent counselling and treatment with antidepressant medication for several years.

9. However, for present purposes the relevant question before the Tribunal is not the time of onset of her psychiatric condition or the history of treatment but the degree of functional impairment caused by the condition and the impact of this impairment on Mrs Mekaoui’s ability to work at the relevant time.

10. Clearly, the diagnosis and treatment of depression does not, in itself, equate to inability to work.

11. The introduction to the Impairment Tables in Schedule 1B stipulate that the Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical condition on normal function as they relate to work performance. These tables are function based rather than diagnosis based. Furthermore a rating can only be assigned to a fully documented, diagnosed condition which has been investigated, treated and stabilised. Table 6 Psychiatric Impairment clearly demonstrates that a treated and stabilised psychiatric condition can be assessed as having different levels of functional impairment and therefore impact on capacity for work.

12. It is accepted that when Mrs Mekaoui applied for DSP on 16 March 2011 her impairment rating was 20 points under Table 6. It is also accepted that at the time her impairment was such that she had a continuing inability to work as defined by the Act. This, in my view, leads to a clear inference that in Mrs Mekaoui’s case a level of impairment resulting in a rating of 20 points is the level of impairment which equates to a continuing inability to work.

13. Relevantly, in order to attract an impairment rating of 20 points, Table 6 stipulates that a person must have a psychiatric disorder “with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist” (emphasis added).

14. The evidence is that Mrs Mekaoui did not receive treatment by a psychiatrist until 31 July 2010, more than six months after she became an Australian resident.

15. Arguably, this points to a conclusion that the first time Mrs Mekaoui had a continuing inability to work was on or about 31 July 2010 when she first started psychiatric treatment.

16. To find that Mrs Mekaoui qualifies for DSP I must be satisfied that her level of psychiatric impairment that led to her continuing inability to work first arose after she became an Australian resident.

17. In considering this issue I am confronted with a number of difficulties including the fact that it is more than three years since Mrs Mekaoui became an Australian resident and more than two years since her application for DSP.

18. At the hearing it was evident that Mrs Mekaoui’s ability to provide a reliable history with reference to her past mental health issues appeared to be significantly impaired in that she was extremely anxious and expressed difficulty with dates and other relevant details.

19. I note also that her evidence at the SSAT hearing on 20 September 2011 in respect of her psychiatric conditions was relatively brief and lacking in detail.

20. On reflection, it is not surprising that Mrs Mekaoui appears to be unable to provide a consistent and reliable history of her mental health issues when one considers her difficulties with language, her domestic history and the fact that she suffers significant psychiatric impairment.

21. The difficulty with Mrs Mekaoui’s evidence means that I need to place more reliance on contemporaneous medical and other documentary evidence.

22. Unfortunately, the medical evidence on the relevant issue is in my view less than satisfactory.

23. Dr Ali El-Jaam’s clinical notes support the fact that Mrs Mekaoui had symptoms of “depression” and treatment with “counselling” and variable antidepressant medications over a period of several years. However, there is little information on which to base an opinion as to psychiatric impairment. The notes provide no comprehensive evaluation of Mrs Mekaoui’s mental health issues, there is no reference to severity of symptoms, response to treatment or to functional impairment that may impact on work capacity.

24. I note that in 2008 Dr Ali El-Jaam specifically notes no panic attacks and no irrational fear symptoms were being experienced by Mrs Mekaoui, symptoms which were noted in Dr Alhajali’s report.

25. Despite Mrs Mekaoui’s long history of “depression” Dr Ali El-Jaam apparently did not consider her condition to be severe enough to warrant referral to a psychiatrist. Also, I could find no reference in the doctor’s notes to Mrs Mekaoui’s psychiatric assessment and treatment by Dr Alhajali in 2010.

26. The medical certificate of 14 October 2008 provided by Dr Ali El-Jaam, on which the respondent relies, is in my view of little value apart from the fact that it lends some weight to a conclusion that in October 2008 Mrs Mekaoui did in fact not have a continuing inability to work because of psychiatric impairment.

27. The certificate lists three medical conditions as having an impact on Mrs Mekaoui’s work capacity and makes no assessment of the impact of her “depression” alone but simply states that she was unfit for work for a period of only two months. The doctor’s response to the question regarding factors that may impact on her return to work suggests that her principle issue at the time was back pain.

28. I note that on 10 October 2008, just prior to providing the medical certificate Dr Ali El-Jaam significantly reduced Mrs Mekaoui’s antidepressant medication. As he provided no reasons I can only presume that this may have been done because her symptoms had temporarily improved.

29. After a gap of more than 12 months Mrs Mekaoui consulted Dr Ali El-Jaam on 10 February 2010 complaining of gastrointestinal symptoms. The entry in the notes makes no reference to any psychiatric condition apart from noting that antidepressant medication ceased. It is not clear whether the medication had been ceased prior to or at the time of the consultation.

30. No reasons for the cessation of medication are recorded and whether this indicated an improvement in symptoms or a temporary gap in treatment prior to starting different medication.

31. New medication, Cipramil, was in fact started on 11 March 2010, but apart from noting “depression” as reason for contact no other explanation was provided.

32. The clinical notes of Dr Alameddin are somewhat unhelpful, however, he does recognise that in July 2010 Mrs Mekaoui was suffering anxiety and depression and subsequently refers her to a psychiatrist for assessment and treatment.

33. Dr Alameddin does not explain why he referred Mrs Mekaoui, but a reasonable inference would be that he considered her psychiatric symptoms to be severe enough to require treatment by a specialist.

34. In my view this lends weight to a conclusion that in July 2010, for reasons that are not clear, Mrs Mekaoui’s symptoms had become worse and that her degree of psychiatric impairment had increased.

35. Relevantly, this is consistent with Mrs Mekaoui’s oral evidence.

36. The report of Dr Alhajali dated 31 July 2010 provides the most comprehensive assessment of Mrs Mekaoui’s mental health issues and her level of psychiatric impairment. The doctor notes Mrs Mekaoui’s longstanding history of depressive mood, but also describes the development of symptoms consistent with PTSD and panic disorder as well as a gradual development of increasing psychiatric impairment.

37. The difficulty with Dr Alhajali’s report is that the recorded history of Mrs Mekaoui’s mental health issues is somewhat cursory and does not directly address the issue of time of onset of new symptoms or the time of onset of increased impairment.

38. Also his assessment of Mrs Mekaoui’s psychiatric impairment appears to focus primarily on her status at the time of consultation rather than any earlier impairment.

39. My observations in respect of Dr Alhajali’s report are in no way meant to be taken as criticism of the doctor. I have already noted above that Mrs Mekaoui has difficulty with her memory in respect of her past mental health and also note that the report is in fact simply a letter to her referring GP and not a forensic expert’s report.

40. In my view Dr Alhajali’s report is also consistent with Mrs Mekaoui’s oral evidence and lends further weight to a conclusion that she developed increasing psychiatric impairment during 2010 with significant implications for her ability to work. Panic symptoms and the development of a fear of leaving the house unaccompanied are first identified in this report as being experienced by Mrs Mekaoui.

41. The final documents to consider are the JCA and ESA reports.

42. In the JCA report of October 2008 the assessor concluded that at that time Mrs Mekaoui had only a temporary reduced work capacity and that this was due to “loss of mobility” due to her spinal condition and “depression”.

43. This is the only work capacity assessment done prior to Mrs Mekaoui becoming an Australian resident and in my view does not support the respondent’s contention that she had a continuing inability to work due to “depression”, alone, at that time.

44. In the JCA report of March 2011 the assessor concluded that Mrs Mekaoui had a work capacity of 15-22 hours per week without intervention. This is clearly not consistent with the respondent’s submissions that she had a continuing inability to work prior to her becoming an Australian resident.

45. The confounding issues in this report, however, are Mrs Mekaoui’s apparently favourable clinical presentation at that time and the failure to refer to her current psychiatric treatment.

46. The ESA report of February 2012 assesses Mrs Mekaoui’s work capacity at 8-14 hours per week because of the physical and psychological limitations of her permanent medical conditions.

47. The assessor incorrectly refers to psychiatric treatment in 2009, which is prior to Mrs Mekaoui becoming an Australian resident, and is therefore misleading and the report is of little value in considering when she first had a continuing inability to work.

48. In the JCA report of January 2013 the assessor concludes that Mrs Mekaoui’s work capacity is 0-7 hours per week, with or without intervention, and that her continuing inability to work “did not arise in Australia”.

49. While I accept the assessment of Mrs Mekaoui’s work capacity, at that time, I have significant difficulty with the reasoning behind the conclusion that her inability to work did not arise in Australia.

50. The assessor refers to the wrong Impairment Table, incorrectly refers to psychiatric treatment in 2009 and in the summary of reasons provides an explanation which is not only superficial, but in my view flawed.

51. The assessor appears to confuse diagnosis and treatment with assessment of capacity to work and the assertion that Mrs Mekaoui’s PTSD arose prior to her permanent residency is in my view not supported by the evidence.

52. The changes in the amended report deal primarily with additional documentary medical evidence. In my view the analysis of the additional medical evidence is somewhat cursory and focuses on diagnosis and treatment rather than functional impairment and work capacity. Furthermore, I have already noted above my concerns about the documentary medical evidence and find significant difficulty with some of the untested conclusions attributed to the contributing assessor based on this evidence.

53. In particular, I note that the contributing assessor is said to have expressed the opinion that Mrs Mekaoui’s “mental health conditions” originated prior to her arrival in Australia. There is no evidence before the Tribunal that she had symptoms of PTSD or panic disorder prior to her arrival in Australia. In fact, there is no documented evidence of these symptoms until she was reviewed by Dr Alhajali.

54. The inconsistency of the work capacity assessments raises significant concerns about their reliability. Nevertheless, when considered together they simply support a conclusion that Mrs Mekaoui’s capacity for work changed significantly between October 2008 and January 2013.

55. Taken together I find that the assessments do not support the contention that Mrs Mekaoui’s continuing inability to work first arose prior to her becoming an Australian resident.

    CONCLUSION

56. Because of the identified difficulties with the evidence in this matter I am not able to identify the precise time at which Mrs Mekaoui first had a continuing inability to work within the meaning of Act.

57. Nevertheless, I am satisfied that Mrs Mekaoui’s continuing inability to work from depression alone did not arise for the first time before she became an Australian resident.

58. Mrs Mekaoui’s evidence suggests that during 2010, for reasons that are not clear, her symptoms became worse and her psychiatric impairment increased.

59. This is supported by the fact in July 2010 her then GP referred her for specialist psychiatric assessment and treatment.

60. Although Mrs Mekaoui had symptoms of depression and had intermittent treatment with counselling and antidepressant medication for many years the reasons for no specialist psychiatric intervention until July 2010 remain unexplained.

61. In July 2010 Dr Alhajali diagnosed dysthymia (chronic depression) as well as PTSD and panic disorder. Although he did not identify the time of onset of the additional diagnoses there was a clear inference that the symptoms related to these conditions were of more recent onset.

62. This is supported by the fact that between 9 August 2006 and 12 May 2010 Dr Ali El-Jaam’s clinical notes make no reference to symptoms consistent with PTSD or panic disorder.

63. Therefore, for the reasons set out above, I am satisfied that Mrs Mekaoui’s psychiatric impairment as it was at the time she applied for DSP was not present at the time she became an Australian resident and that her continuing inability to work first arose after she became an Australian resident.

64. This means that Mrs Mekaoui satisfies the requirements of subsection 94(1)(e)(i).

    DECISION

65. The reviewable decision is set aside and substituted with a decision that Mrs Mekaoui satisfies the requirements of section 94(1) of the Act and, subject to satisfying other relevant criteria, was qualified to receive DSP at the date of application.

I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated 14 June 2013

Date of hearing	9 May 2013
Applicant	In person
Advocate for the Respondent	Ms P Lee, Department of Human Services