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

Syed and Secretary, Department of Social Services (Social services second review) [2020] AATA 1328 (15 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1519
Re:Mujeeb Syed
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:15 May 2020
Place:Sydney

The decision under review is affirmed.
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Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments are of 20 points or more under the Impairment Tables – lumbar spine condition – depression and anxiety – high blood pressure and vascular disease – sleep apnoea – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Social Security Act 1991 (Cth) s 94
CASES
Fanning v Secretary Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] AATA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Chris Puplick AM, Senior Member
15 May 2020
The claim

Mr Mujeeb Syed (the Applicant) has made an application to this Tribunal for a review of a decision made by the Social Services and Child Support Division (AAT1) of the Tribunal which, on 20 February 2019, affirmed a decision that the Applicant was not entitled to the payment of the disability support pension (DSP).[1]
[1] Section 37 Tribunal Documents, 6-10.
That decision was made initially on 2 January 2018 on the basis that the Applicant did not have the necessary number of points as assessed on the Impairment Tables established under the Social Security Act 1991 (Cth) (the Act) as discussed below.
The Applicant’s claim was considered by a Job Capacity Assessor (JCA) who determined, on 14 June 2018, that the Applicant was not qualified for DSP. This decision was subject to review by the Health Professional Advisory Unit (HPAU) of the Department which came to the same conclusion. There was then a further review undertaken by an Authorised Review Officer (ARO) of the Department who, on 19 September 2018, affirmed the rejection decision.
The Applicant appealed that decision to the AAT1 which, on 20 February 2019, affirmed the decision of the ARO.
It is from that AAT1 decision that the Applicant appealed to this Tribunal on 20 March 2019 and this Tribunal listed the matter for hearing on 3 April 2020.
The hearing
During the course of the hearing the Applicant became extremely distraught and it proved impossible to continue. As a result, the Tribunal adjourned proceedings. The Tribunal then wrote to both parties and sought their advice as to whether they agreed that the Tribunal should proceed to make a determination in the matter based upon the material before it at the time, including details of the evidence given in the truncated oral hearing.[2] Both parties agreed to this course of action and it is on that basis that the Tribunal has made its final determination.
[2] Administrative Appeals Tribunal Act 1975 (Cth), s 34J.
The Tribunal is satisfied that all parties have been accorded procedural fairness in this matter. Although the hearing was truncated, the Applicant had been able, with the assistance of an Urdu language interpreter, to make an opening statement in support of his application and had given considerable evidence, both in writing and orally, prior to the necessary adjournment. The Respondent is primarily content to rely upon the submissions contained in its Statement of Facts, Issues and Contentions.
Requirements for the disability support pension (DSP)
In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Act. Section 94 has three distinct limbs:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension 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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
In essence, these requirements or criteria amount to this:
·the person has a physical, intellectual or psychiatric condition;
·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;
·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;
·the person has turned 16; and
·the person is an eligible citizen or qualifying resident.
Failure to meet any one of these requirements is fatal to an application for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[3] as follows:
[3] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables), s 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either 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:
(i) 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
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.
A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
(a) … doing any work independently of a program of support within the next 2 years; and
(b) … 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.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
The application for a DSP was made on 14 November 2017 and that triggers an assessment process to determine the eligibility of the Applicant for the DSP which must take place as of the date of the claim or within 13 weeks thereafter. That is any time between 14 November 2017 and 13 February 2018.
This is what I shall refer to as “the qualifying period”.
It is not possible for the Tribunal to take into account anything which occurred after the qualification period in terms of the claimed deterioration of the Applicant’s health, changes in their status or acquisition of additional medical or psychological conditions.[4]
[4] Fanning v Secretary Department of Social Services [2014] AATA 447, [33]; Gallacher v Secretary, Department of Social Services [2015] AATA 1123, [27].
These may be material factors in any further application/claim which may be made but they are not germane to the present assessment.
Whereas in other matters before the Tribunal decisions are to be based on the facts at the time of the Tribunal hearing, that is not the case in relation to the DSP. The Tribunal can consider only matters within the qualifying period and it has no legislative authority to do otherwise.
Background to the claim
The Respondent has set out some relevant facts by way of background to this decision[5] and the Tribunal gratefully adopts those as follows:
[5] Respondent’s Statement of Facts, Issues and Contentions, [3.1]-[3.7]. Footnotes omitted.
Mr Syed… is currently 51 years old.
On 10 June 2012, Mr Syed was involved in a motor vehicle accident. He was paid a lump sum compensation amount of $233,500 by Allianz Australia for injuries to his back and neck.
Mr Syed was involved in a second motor vehicle accident in 11 May 2013. He was paid a lump sum compensation amount of $233,000 by QBE Australia.
On 11 June 2015, Mr Syed was involved in a third motor vehicle accident. He was paid a lump sum compensation amount of $233,500 by Allianz Australia.
On 22 July 2015, Mr Syed was granted DSP for his spinal condition. He was assigned 20 impairment points under Table 4 of the current Impairment Tables.
It appears that Mr Syed’s DSP grant pre-dated the settlement for the accident on 11 June 2015. As a result, on 30 January 2016, Mr Syed’s DSP was cancelled as he was subject to a compensation preclusion period.
On 14 November 2017, Mr Syed lodged a new claim for DSP which is the subject of these proceedings. In the claim form, Mr Syed said his disabilities were:
Herniated lumbar disc L4-5, with radicular leg pain;
Depression, anxiety;
High blood pressure;
Vascular disease – stents implanted in left renal (indistinct);
Sleep apnoea using CPAP machine; and
Victim of workplace bullying, harassment.
Previous considerations
When the JCA made their assessment they accepted that the spinal condition was fully diagnosed, fully treated and fully stabilised but they awarded nil points for the condition on the Impairment Tables.[6] They found the conditions of depression, sleep apnoea, hypertension and kidney disorder all fully diagnosed but none of them fully treated and fully stabilised.
[6] Section 37 Tribunal Documents, 211.
Both the HPAU and the ARO adopted the same position in relation to the status of the various conditions, although the HPAU assigned the spinal condition 5 points.[7]
[7] Ibid, 225 and 230.
When the AAT1 considered the claim, it determined that the spinal condition was fully diagnosed, treated and stabilised and awarded the condition 10 points.[8] It found the depression claim fully diagnosed but not fully stabilised or treated. It then found the hypertension (kidney condition) and sleep apnoea fully diagnosed, treated and stabilised but with no evidence of functional impact, hence each rating nil points.
[8] Ibid, 8.
The Tribunal’s analysis
This is somewhat confusing. However, the Tribunal is not bound by any of these previous determinations or assessments but rather has the responsibility to determine, de novo and for itself the questions of whether any condition was fully diagnosed, treated and stabilised during the qualifying period, and if so, what impairment rating should be assigned to it.
In the first instance the Tribunal notes that no evidence was presented at any stage in relation to the claims of alleged workplace bullying and so this matter has not been given any further consideration by the Tribunal.
Lumbar spine condition
The Respondent agrees that this condition was fully diagnosed, treated and stabilised during the qualification period. The issue thus becomes one of the appropriate impairment rating which should be assigned. The relevant parts of Table 4 (Spinal Function) are:

28.     10

29.     There is a moderate functional impact on activities involving spinal function.

30.      (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:

31.      (a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or

32.      (b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

33.      (c) the person is unable to bend forward to pick up a light object placed at knee height; or

34.      (d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

35.     20

36.     There is a severe functional impact on activities involving spinal function.

37.      (1) The person is unable to:

38.      (a) perform any overhead activities; or

39.      (b) turn their head, or bend their neck, without moving their trunk; or

40.      (c) bend forward to pick up a light object from a desk or table; or

41.      (d) remain seated for at least 10 minutes.

There is a general consensus among the medical reports that the Applicant had significant difficulty bending forward and turning his trunk. Dr Sayeed Khan (2 November 2018[9] and 18 February 2019[10]) describes the Applicant’s condition as one where this level of movement is “severely limited”. Dr Azhar Khan (specialist occupational physician: 22 August 2018[11]) notes a minimal (e.g. less than five minutes) ability to sit and an inability to squat. Mr Le (physiotherapist: 18 September 2018) reported to the HPAU on the Applicant’s inability to bend to knee level.[12] Dr Ashish Diwan (spinal surgeon: 26 June 2019[13]) notes an inability to bend forward to pick up a light object placed at knee level.
[9] Section 37 Tribunal documents, 237-238.
[10] Ibid, 276.
[11]Ibid, 220.
[12] Ibid, 224.
[13] Supplementary Tribunal Documents, 387.
Despite at least one report which suggests some exaggeration in the Applicant’s reported symptoms,[14] the Respondent was satisfied that an impairment rating of 10 points had been established and the Tribunal agrees that this is correct.
[14] Section 37 Tribunal Documents, 233: Dr Shelik Habib (29 October 2018).
There is however, no evidence to support a claim that the Applicant cannot manage any of the tasks outlined in the 20 point descriptors.
In his oral testimony the Applicant agreed that he could perform some overhead activities such as washing his hair in the shower or taking a cup from an overhead cupboard, albeit it with some degree of pain or discomfort. Dr Sayeed Khan rated the Applicant’s neck condition as “mild to moderate causing restriction of movement of about 50%” but still sufficient to allow him to undertake a range of overhead activities.[15]
[15] Ibid, 237-238.
It should be noted that the reports of both Dr Azhar Khan and Dr Sayeed Khan were written well after the qualifying period and thus cannot be taken as fully corroborative of any of the conditions during that period.
In his evidence the Applicant agreed that, during the qualifying period, he had been able to drive short distances (for up to 20-25 minutes using lumbar support[16]) and as a result he was able to turn his head or bend his neck without moving his trunk.
[16] Further Supplementary Tribunal Documents, 423: Mr J Luong (musculoskeletal physiotherapist).
Dealing with the matter of bending forward to pick up a light object from a desk or table is a little more difficult given that an inability to bend forward to pick up a light object at knee height is conceded on the 10 point descriptor. As the Respondent notes, “The evidence regarding Mr Syed’s bending ability is somewhat contradictory”.[17] In one report of Dr Sayeed Khan (2 November 2018) the Applicant is reported as unable to pick up an object from “ground, knee and desk height” while in another (18 February 2019)[18] only ground/knee height is identified. The Applicant’s description to the Tribunal of his daily routine and activities suggests that while he is able to pick up light objects from areas such as the dining table or kitchen bench, the degree of bending required is unclear. When asked by the respondent if he could pick up a glass of water from a desk, the Applicant’s response was “possibly”. In the absence of corroborating evidence about this descriptor the Tribunal is not able to agree that it has been met in terms of the allocation of points on the Table.
[17] Respondent’s Statement of Facts, Issues and Contentions, [6.13(c)].
[18] Section 37 Tribunal Documents, 237 and 276 respectively.
There is equally confusing and conflicting evidence about the Applicant’s capacity to remain seated for at least 10 minutes. Dr Sayeed Khan (2 November 2018) suggests that the Applicant can remain seated for 15 to 20 minutes whereas Dr Azhar Khan suggests a maximum of five minutes and Dr Diwan of less than 10 minutes. Dr Azhar Khan’s assessment is of limited utility as it was made outside the qualifying period.
Mr Le discussed this matter with the HPAU examiner where he suggested that the Applicant’s condition in relation to this matter was one which fluctuated depending on whether or not he was receiving treatment at the time. This led the HPAU report to conclude that: “Mr Syed experiences intermittent exacerbations of his pain but that, with treatment, the condition quickly returns to the pre-exacerbation level of impact.”[19]
[19] Ibid, 225.
Conditions which manifest themselves intermittently must be assessed with reference to subsection 11(4) of the Impairment Tables which provides:
Episodic and fluctuating conditions
(4) When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
Considering the “overall functional impairment”, this does not establish a level of impairment which meets the 20 point descriptor. Sometimes the Applicant could sit for at least 10 minutes. On other occasions he could not.
The Tribunal accepts the evidence of the Applicant that many of these descriptors on the 20 point table are now met, however, it cannot be established that they were met during the qualifying period and hence the appropriate impairment rating for this condition is 10 points.
Depression and anxiety

The Respondent concedes that this condition was fully diagnosed during the qualifying period but denies that it was fully stabilised and treated. There is an email from Dr Deepa Patel (clinical psychologist: 15 March 2018[20]) and a report of Dr Faiz Noore (psychiatrist: 11 April 2018[21]) which suggest that the Applicant was advised to seek further treatment for his depression.
[20] Supplementary Tribunal Documents, 385.
[21] Section 37 Tribunal Documents, 202-203.
Dr Patel recommended an assessment by a psychiatrist who might be able to develop a treatment plan, including referral to a psychologist or neuropsychologist, while Dr Noore was ambivalent about the need to prescribe anti-depressant medication. Dr Noore also notes that the Applicant had “consulted a number of psychiatrists”[22] but there is no evidence from the Applicant of having done so. In his oral evidence the Applicant stated that he had been prescribed medication but that he stopped taking it because it made him “feel dizzy all the time.” He also said that the worry about his DSP application and his inability to work (which he wanted to) contributed to his feelings of depression, that he avoided thinking deeply about anything and that from time to time he no longer wanted to live or have to keep on “carrying my body”.
[22] Ibid.
There is no doubt that the Applicant suffers from depression, sometimes at an extreme level, but there is no evidence that this condition is fully treated and stabilised both in terms of recommendations to undertake further consultations, the development of a treatment plan, the prescribing of medications and compliance with those which may have already been prescribed.
High blood pressure and vascular disease
The Respondent concedes that these conditions were fully diagnosed, treated and stabilised during the qualifying period, relying upon the report of Dr Hamid Almafragy (cardiologist and consultant physician: 2 May 2018[23]). The Applicant has a number of renal stents in place and he told the Tribunal that there were plans for some re-stenting to take place.
[23] Section 37 Tribunal Documents, 204-205.
Subsection 6(8) of the Impairment Tables states:
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
No evidence was presented to the Tribunal that these conditions cause the Applicant any level of functional impairment which could be measured on the appropriate Table (Table 1: Functions requiring physical exertion and stamina). They are apparently well managed, and while high blood pressure is always a potential danger for individuals, there is nothing to suggest that the Applicant’s daily living is adversely affected by these conditions.
Under such circumstances the Tribunal must follow the direction in subsection 11(5) of the Tables:
No impairment resulting from a condition
(5) To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.
Hence a nil rating must be applied in this instance.
Sleep apnoea
The Secretary concedes that this condition was fully diagnosed, treated and stabilised during the qualifying period relying on a report of Dr Qaiser Niazi (respiratory and sleep physician: 31 May 2017[24]). He and Dr Matthew Wong (dentist: 12 March 2018[25]) attest that the Applicant makes use of a CPAP machine to manage his condition.
[24] Section 37 T documents, 180.
[25] Ibid, 199.
No evidence was presented to the Tribunal that this condition affected the Applicant’s daily life or routine in any significant way, and the management of sleep apnoea by use of a CPAP machine is relatively commonplace.
The relevant Table (Table 1: Functions requiring physical exertion and stamina) requires there to be some corroborating evidence of a person’s impairment and none has been placed before the Tribunal.
As with the previous condition discussed, the absence of such evidence means that a nil rating must be assigned for this condition.
Other considerations
The Applicant told the Tribunal that he now suffered from a high degree of incontinence and this had a significant impact upon his life. This appears to have been a condition which has developed since the qualifying period and may be related to his renal issues. However, because it is of later onset it cannot be considered in these proceedings.
Similarly, the Applicant told the Tribunal that he suffered from a constant level of pain and the Tribunal has no reason to doubt this. Prior to the introduction of the current set of Impairment Tables in December 2011, impairments (for DSP purposes) were assessed under Schedule 1B of the Act where there was a specific Table related to pain (Table 20). Unfortunately, no evidence was before the Tribunal specifically relating to this condition which might otherwise have been capable of being assessed under the general descriptors on Table 1 (Functions requiring physical exertion and stamina).
Conclusion
The Tribunal is only able to find that the Applicant’s spinal condition was capable of being assigned any rating on the Impairment Tables and that such a rating was at the level of 10 points. None of the other conditions – all of which are real and which cause distress to the Applicant – can be rated for the reasons explained above.
As such, the Applicant does not reach the threshold of 20 points on the Impairment Tables. Such a finding means that it is not necessary for the Tribunal to consider the continuing inability to work issues in subsection 94(2) of the Act.
It also means that the Applicant does not qualify for payment of the disability support pension.
Beyond this point
The Tribunal has no doubt, on the basis of the evidence before it and the testimony of the Applicant that his condition has deteriorated substantially over the last couple of years and certainly since the end of the qualifying period. The Applicant himself rated the level of deterioration at about 80%. He has since also developed issues with incontinence and pain management.
Applicants are always free to make subsequent applications for the DSP if an initial application is refused. The Tribunal understands the Applicant subsequently made a successful application for the DSP, effective from the date of that later application. This decision in no way impacts upon that subsequent decision.
Decision
The decision under review is affirmed.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 15 May 2020

Date(s) of hearing: 3 April 2020

Applicant: In person (by telephone)

Solicitors for the Respondent: Dr S Thompson, Services Australia

[2020] AATA 1328

15 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Appeal

Date(s) of hearing:	3 April 2020
Applicant:	In person (by telephone)
Solicitors for the Respondent:	Dr S Thompson, Services Australia