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

[2015] AATA 858

Tabik and Secretary, Department of Social Services (Social services second review) [2015] AATA 858 (27 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/3043
Re	Susan Tabik
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	27 August 2015
Date of written reasons	10 November 2015
Place	Sydney

The decision of the Social Security Appeals Tribunal that Ms Tabik does not qualify for disability support pension is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

Social Security – disability support pension – whether conditions fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision affirmed

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

REASONS FOR DECISION

Professor R McCallum AO, Member

10 November 2015

1. A decision in these proceedings was delivered orally together with reasons at the conclusion of the hearing on 27 August 2015. I have been requested to prepare these written reasons which I have distilled from the transcript of the hearing.

   INTRODUCTION

2. The Applicant, Ms Susan Tabik, was born in Lebanon, and in 1977 she immigrated to Australia with her husband.  She subsequently gave birth to nine children.  She and her husband separated in 2002. 

3. On 20 March 2013, Ms Tabik lodged a claim for Disability Support Pension (DSP).  In her claim Ms Tabik listed the following conditions:  deep depressive illness, back, and neck pain. 

4. Ms Tabik also lodged a medical report by Dr Matter dated 30 November 2012.  Dr Matter reported that the condition impacting the most on Ms Tabik was depressive illness, longstanding, exacerbated by divorce years ago, and made worse by misfortune with children.  Dr Matter also noted that Ms Tabik suffers from asthma.  Dr Matter further indicated that Ms Tabik has lumbar osteoporosis and gastro oesophageal reflux disease, that is GORD.

5. On 2 April 2013, Ms Tabik attended a face-to-face job capacity assessment which was conducted by a registered counsellor and a contributing assessor who was a registered psychologist.  The assessor found that Ms Tabik's GORD was fully diagnosed, treated and stabilised, and warranted an impairment rating of zero points under table 10 of the Impairment Tables, which are to be found in the Social Security (Tables for the Assessment of Work-Related Impairment and Disability Support Pension) Determination 2011 (Cth), which I shall refer to as the Impairment Tables.  Table 10 is titled "Digestive and Reproductive Function".

6. The assessor also found that Ms Tabik's condition of asthma was fully diagnosed, treated and stabilised, and warranted an impairment rating of zero points under table 1 of the Impairment Tables which is titled "Functions Requiring Physical Exertion and Stamina".  The assessor held that Ms Tabik's spinal condition and depressive illnesses were not fully diagnosed, treated and stabilised during the claim period, and no impairment ratings were assigned for them. 

7. Thus, Ms Tabik was assessed as having nil points under the Impairment Tables.  The assessor assessed Ms Tabik's baseline work capacity as 8 to 14 hours per week. 

8. Centrelink rejected Ms Tabik's claim.  She sought review from an authorised review officer, and then from the former Social Security Appeals Tribunal (SSAT), but to no avail.  In its decision dated 8 May 2014, the SSAT held that Ms Tabik's psychological condition was fully diagnosed, treated and stabilised, and warranted an impairment rating of nil points under table 5 of the impairment tables titled "Mental Function".  The SSAT further held that Ms Tabik's spinal condition was fully diagnosed, treated and stabilised, and assigned an impairment rating of nil points under table 4 titled "Spinal Function".  Finally, the SSAT held that Ms Tabik's asthma and GORD were fully diagnosed, treated and stabilised, and were assessed at nil points under table 1 and table 10 respectively, of the Impairment Tables.

9. On 16 September 2014, Ms Tabik undertook a further job capacity assessment examination which is dated 18 September 2014.  It is my understanding from what the Respondent said at the hearing that this job capacity assessment report was done because Ms Tabik had made a further application for DSP. 

10. The assessor held that Ms Tabik's GORD was fully diagnosed, treated and stabilised and warranted nil points under table 10 of the Impairment Tables.  The assessor further held that Ms Tabik's spinal condition was fully diagnosed, however, on the medical evidence it had not been fully treated and stabilised.  Ms Tabik's asthma was held to be fully diagnosed, treated and stabilised, however, it warranted an assessment of nil points under table 1 of the Impairment Tables.  Ms Tabik's psychological condition was held to be fully diagnosed, but on the medical evidence it had not been fully treated and stabilised. 

    THE LEGISLATION

11. The relevant provisions governing DSP are to be found in the Social Security Act 1991 (Cth) and also in the Social Security (Administration) Act 1999 (Cth).

12. For present purposes the relevant provision is subsection 94(1) of the Social Security Act 1991. To obtain DSP, first, an applicant must have impairments, physical or psychological. Secondly, those impairments must be fully diagnosed, treated and stabilised and when assessed under the impairment tables there must be an assessment of 20 points. Finally, the applicant must show that she or he has a continuing inability to work, and that is set out in subsection 94(1)(c)(i) and attendant provisions.

13. Subsection 94(1) of the Social Security Act 1991 relevantly provides as follows.

    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;

    ...

    THE 13 WEEK QUALIFYING PERIOD

14. The relevant provisions establishing the 13 week qualifying period are set out in schedule 2, clause 4(1) of the Social Security (Administration) Act 1999. Clause 4(1) provides as follows.

    If:

    (a) a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b) the person is not, on the day on which the claim is made, qualified for the payment; and

    (c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d) the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

15. Put simply, I am required to assess Ms Tabik's impairments as they were in the three-month period from 20 March 2013 to 20 June 2013.  The case law shows that if Ms Tabik's impairments/conditions have deteriorated since 20 June 2013, that is a matter for a future decision if she applies for DSP.  I am confined, under the law, to assess Ms Tabik's impairments as they were during those three months. 

    CONCESSIONS OF THE RESPONDENT

16. In paragraph 31 of the Respondent's statement of facts and contentions, it is quite clear that the respondent concedes that Ms Tabik does suffer from physical and mental impairments.  Therefore, she qualifies under subsection 94(1)(a). 

    THE ISSUES BEFORE ME

17. I am required to examine the conditions of Ms Tabik as they were between 20 March 2013 and 20 June 2013, to see first if they are fully diagnosed, treated and stabilised.  If any of them fall into this category, I am required to assess them under the relevant impairment tables.  These tables provide descriptors and examples to give me guidance on their operation. 

18. If I find that Ms Tabik's impairments are worth 20 points under the Impairment Tables, I must turn to the second issue. 

19. The second issue is whether Ms Tabik has a continuing inability to work.  It will not be necessary for me to examine this second matter if I find that Ms Tabik's impairments cannot be assessed at 20 points under the Impairment Tables. 

    THE DOCUMENTARY EVIDENCE

20. The Tribunal has before it the following documentary evidence: the Respondent's statement of facts and contentions; a job capacity assessment report dated 18 September 2014; and the documents compiled by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), which are known as the T documents.

21. Ms Tabik handed in two medical reports at the hearing. One dated 11 August this year by Dr Fayza Al Shamali, and the report we have for 26 August, which was also handed up is from Dr Mustapha Alameddin, general practitioner, and I have read those reports. 

    THE ORAL EVIDENCE

22. Ms Susan Tabik gave sworn evidence through an interpreter in the Arabic language.  Ms Tabik was accompanied by her daughter, who was her support person, and who helpfully assisted the Tribunal.  I found Ms Tabik to be a truthful witness. 

23. Ms Tabik explained that she has never been employed in Australia because she has been engaged full time on child care and domestic duties. 

24. Ms Tabik said that her asthma does affect her breathing, but that she does take Ventolin and other medications.  In relation to her GORD, she said that that does give her some pain, her stomach can become inflated. 

25. In relation to her spinal function, Ms Tabik gave me the following evidence:  she came to the hearing by train and walked to the hearing room from the Town Hall Station.  Ms Tabik said that she can walk, but not for too long, and she obviously had no difficulty walking here.  She also gave evidence that she can, if it is absolutely necessary, drive a car, but only for about 10 minutes.  She can dress herself, but her daughter assists her in the shower because, on occasions, she becomes dizzy.

26. Ms Tabik also explained that while she did not have scans for her back injury at the time of making the claim, she had scans done more recently, either later last year or this year.  She also explained that she had not seen a psychologist until this year, and from the medical evidence it seems a few months ago.  And from the report which she handed up this morning, dated 11 August, the psychologist recommends further treatment. 

    CONSIDERATION

27. In relation to Ms Tabik's asthma and GORD, the assessors and the former Social Security Appeals Tribunal found that both impairments were fully diagnosed, treated and stabilised, but had little impact upon Ms Tabik's life, and therefore they were given nil assessments. In relation to asthma, under table 1 of the Impairment Tables, and in relation to GORD and reflux under table 10 of the impairment tables.   I agree with the assessors and with the SSAT that Ms Tabik’s asthma and gord were fully diagnosed, treated and stabilised during the claim period, and that they warrant ratings of nill points under the impairment tables.

28. From Ms Tabik's evidence, it may well be that those conditions have worsened.  It is now more than two years since the end of the claim period.  The claim period ended on 20 June 2013, and the date of the hearing was 27 August 2015. 

29. In relation to Ms Tabik's spinal condition, there is a disagreement between the assessors in the job capacity assessment reports on the one hand, and on the other hand the SSAT. The assessors held that while the spinal condition was fully diagnosed, it had not been fully treated or stabilised.  On the other hand, the SSAT held that it had been fully diagnosed, treated and stabilised.

30. Having regard to the medical evidence and to the evidence before me at the hearing, I make the following finding:  I find that the spinal condition of Ms Tabik was fully diagnosed during the claim period, however, it was not fully treated and stabilised during the claim period.  From the medical evidence, Ms Tabik had not had scans done until last year, and therefore I cannot regard the spinal condition as fully diagnosed, treated and stabilised.  I am therefore unable to assess it under table 4 of the Impairment Tables.

31. In relation to Ms Tabik's depressive illness, there is a disagreement between the assessors and the SSAT. I find that the depressive illness of Ms Tabik to have been fully diagnosed during the claim period.  However, I further find that it had not been fully treated and stabilised during the claim period.  Ms Tabik did not see a psychologist either during or just after the claim period. It was not until this year that Ms Tabik has been seeing a psychologist.  Indeed, in the report dated 11 August 2015, which Ms Tabik handed up at the hearing, the psychologist recommends further treatment. 

32. It is therefore not possible for me to find that the depressive illness of Ms Tabik has been fully treated and stabilised, and therefore I am unable to assess it under table 5 of the Impairment Tables.

33. I therefore find that Ms Tabik does not qualify for DSP under subsection 94(1)(b) because she has nil points under the impairment tables. 

34. It is therefore strictly not necessary for me to decide whether Ms Tabik has a continuing inability to work.  I note, however, that from her evidence and from the T documents, Ms Tabik has only completed nine months of a program of support and therefore has not fully completed that program. 

    DECISION

35. The decision of the Social Security Appeals Tribunal that Ms Tabik does not qualify for disability support pension is affirmed.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 10 November 2015

Date(s) of hearing	27 August 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services