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

[2016] AATA 142

Tamay and Secretary, Department of Social Services (Social services second review) [2016] AATA 142 (11 March 2016) 

Division	GENERAL
File Number	2015/1754
Re	Mr Hakan TAMAY
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	11 March 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Mr Conrad Ermert, Member

SOCIAL SECURITY – Disability Support Pension – unlimited portability – severe impairment – 20 impairment points under a single table – decision affirmed

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

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

REASONS FOR DECISION

Mr Conrad Ermert, Member

11 March 2016

INTRODUCTION

1. Mr Tamay, the Applicant, has been receiving Disability Support Pension (DSP) since 5 February 1998.  On 21 May 2014 he requested that his DSP be paid to him indefinitely whilst outside Australia.

2. On receiving the request, Centrelink reviewed Mr Tamay’s disabilities.  Centrelink is the service provider for the Secretary, Department of Social Services (the Respondent).  On 17 December 2014 a staff member of Centrelink determined that Mr Tamay was not entitled to indefinite portability of his DSP.  The staff member determined further that Mr Tamay was no longer entitled to receive DSP and cancelled his pension.

3. Mr Tamay requested a review of the Centrelink decision.  On 9 January 2015 an Authorised Review Officer (ARO) of Centrelink affirmed the decision.  Mr Tamay requested a review of the ARO decision.  On 9 March 2015 the Social Security Appeals Tribunal (SSAT) set aside part of the ARO decision and determined that Mr Tamay continued to be eligible to receive DSP.  However, the SSAT affirmed the decision to not pay DSP of unlimited portability to Mr Tamay.

4. This matter is a review of the part of the SSAT decision to not pay DSP of unlimited portability to Mr Tamay.

   HEARING

5. At the hearing Mr Tamay represented himself with the support of Mrs Nursen Tamay, his mother.  They both gave evidence under Oath, with the assistance of an interpreter in the Turkish language.  Ms Vincci Chan, a solicitor, represented the Respondent. 

6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  I took in the following Supplementary T-Documents:

   ·     ST1 – Report by Dr Chan undated;

   ·     ST2 – Report by Dr Chan dated 15 July 2015;

   ·     ST3 – Letter from  Mrs Carrozza, psychologist, dated 15 September 2015;

   ·     ST4 – Report by Mrs Tokgoz, clinical psychologist, dated 5 October 2015; and

   ·     ST5 – Report of the Health Professional Advisory Unit (HPAU) dated     23 September 2015.

7. For the Respondent, I took in for consideration the Respondent’s Statement of Facts and Contentions dated 28 October 2015.

   LEGISLATION

8. The relevant legislation is contained in the:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act); and

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).

   ISSUES

9. There was no dispute between the parties regarding the key facts of the case.  The Respondent concedes that Mr Tamay suffers impairments from a number of conditions which satisfy the requirements for the continuation of his DSP.  I am satisfied that there is sufficient medical evidence in the T-Documents to support this concession and I find accordingly.

10. The only issue in contention is whether Mr Tamay satisfies the provisions for unlimited portability of his DSP. 

11. Subsection 1218AAA(1) of the Act provides:

    The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

    (a)the person is receiving disability support pension;

    (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

    (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years; and

    (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

12. The Respondent concedes that Mr Tamay’s circumstances satisfy the provisions of subsections (a) and (d) of the Act.  I am satisfied that there is sufficient evidence in the T-Documents to support this concession and I find accordingly.

13. The only issue to be determined is whether Mr Tamay suffers an impairment that is severe within the meaning of section 94(3B) of the Act.  Determination of this issue will resolve the provisions of the remaining subsections (b) and (c).

14. Section 94(3B) of the Act provides relevantly that a person’s impairment is a severe impairment if:

    The person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    EVIDENCE

    Mrs Nursen Tamay

15. Through the interpreter, Mrs Tamay said her son could not use the right side of his body and that he sometimes falls.  He has had his physical disabilities for many years.  She said he suffers from psychiatric problems and he needs special care and personal help.  Mrs Tamay said her son has no friends and he gets stressed, angry and out of control.  He gets things out of proportion. 

16. Mrs Tamay said her son cannot talk to anybody and he gets bored.  She said that when he was younger she used to take him to a swimming pool where he enjoyed playing with other children.  Now that he is older, he needs more adult company.  He does not like going out by himself.  She said they need the support of an extended family to reduce his anxiety.  They would have that support in Turkey.

17. Ms Chan had no questions for Mrs Tamay.

    Mr Hakan Tamay

18. Mr Tamay asked to give his evidence without the presence of his mother or the interpreter.  He gave his evidence in the form of answers to questions put to him by Ms Chan.  His responses were:

    ·His impairment affects only the right side of his body; he has no functions in his right arm or right leg;

    ·He does not use an assistive device when handling things;

    ·He cannot pick up things with his right hand;

    ·He can pick up a glass with his left hand;

    ·He can use a computer keyboard with his left hand; and

    ·He can turn the pages of a book and can write with his left hand.

    TRIBUNAL CONSIDERATIONS

19. The Respondent accepts that Mr Tamay suffers from the following diagnosed conditions:

    ·Right hemiparesis;

    ·Epilepsy;

    ·Dysarthria; and

    ·Depression.

20. I will consider each condition in turn to determine whether it causes a severe impairment.

    Right Hemiparesis

21. The Respondent accepts that the condition is fully diagnosed, treated and stabilised and submits that it should be assigned a rating of 10 points under Table 2 of the Impairment Tables, Upper Limb Function and 5 points under Table 3, Lower Limb Function.  I am satisfied that there is sufficient medical evidence to support this concession and find accordingly.

22. I must now consider whether higher ratings may apply.

23. The descriptors in Table 2 for a rating of 20 points are:

    (1)Most of the following apply to the person:

    (a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

    (b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

    (c)the person has difficulty using a computer keyboard despite appropriate adaptations;

    (d)the person has severe difficulty using a pen or pencil;

    (e)the person has severe difficulty turning the pages of a book without assistance.

24. Mr Tamay’s own evidence was that his impairment affects only his right side.  His left arm and hand are not affected.  The medical reports are consistent in recording that Mr Tamay’s hemiparesis affects only his right limbs. There is no evidence of an amputation.  From the evidence, I find that Mr Tamay’s circumstances do not satisfy sub-paragraph (a) of Table 2.

25. In considering sub-paragraph (b) of Table 2, I note in Mr Tamay’s evidence that he is unable to handle objects with his right hand but can handle, move and carry objects with his left hand. 

26. I note the evidence contained in the following documents:

    ·Report of Dr Chang dated 19 December 1991 (T-Documents, page 47) which records:

    Unable to use R. upper limb;

    ·Report of Dr Cheung dated 17 March 1998 (T-Documents, page 64) which records:

    He has little use of his right hand and forearm … He cannot do any housework and is dependent on his family for support … His right hand was in a splint and demonstrated a weak grip but he was unable to open the hand voluntarily;

    ·Report of Dr Dimock dated 26 July 2001 (T-Documents, page 36) which records:

    He is not able to do up buttons or to tie shoe laces … He is independent in most aspects of self-care, but cannot do housework or cooking …

    ·

    Report of Dr Cheung dated 17 March 1998 (T-Documents, page 55)  which records nil dexterity, nil handwriting and 3/5 grip strength in Mr Tamay’s right hand and his need for a forearm splint on his right arm.  Dr Cheung records no adverse function with Mr Tamay’s left limb.

    
    
    

    ·Report of Dr Chan dated 2 July 2014 (T-Documents, page 82) which records:

    Unable to use R. hand & arm; and

    ·Report of the Job Capacity Assessor (JCA) dated 29 October 2014 (T-Documents, page 104) in which he recorded:

    Mr Tamay reported to be able to attend to most of his personal care and grooming (i.e. he showers unaided, dresses unaided, shaves his face unaided … He can prepare simple meals for himself (I.e. breakfast) … goes to his local shopping centre and purchases basic light household or personal items on his own.  However he cannot do any heavy lifting …

    ·Report of the HPAU dated 1 December 2014 (T-Documents, page 97) which records:

    A medical report dated 2001 indicates …. unable to lift, carry or move objects, with substantially diminished dexterity … Following review of all the available evidence there has been no progressive deterioration in his functioning and it appears the customer has adapted well to the way he uses his left upper limb and is able to undertake many daily activities involving upper limb function...

27. In his report dated 15 July 2015 (ST2) Dr Chan records that Mr Tamay has severe difficulty handling moving or carrying most objects with his right hand.  Dr Chan makes no mention of Mr Tamay’s left hand.  Mr Tamay’s own evidence was that he uses his left hand for these activities.

28. Although there was evidence in 2001 that Mr Tamay was unable to lift, carry or move objects it appears that, over time, he has learned to manage with the use of his left arm and hand.  Accordingly, I find that in the period since 21 May 2014, Mr Tamay’s condition does not satisfy the requirements of sub-paragraph (b) of Table 2.

29. In considering sub-paragraphs (c), (d) and (e) of Table 2 I accept Mr Tamay’s own evidence that he can perform all these functions with his left hand without assistance.  I find that the requirements of sub-paragraphs (c), (d) and (e) are not satisfied.

30. As most of the requirements for a rating of 20 points are not met, I find that Mr Tamay’s impairment rating under Table 2 of the Impairment Tables attracts only 10 points.

31. In considering the impairment rating to be applied under Table 3 of the Impairment Tables, I note the consistency of recorded opinions that a rating of 5 points is appropriate.  A rating of 5 points is supported by the JCA report dated 29 October 2014 (T-Documents, page 103), the HPAU Assessment dated 1 December 2014 (T-Documents, page 97) and Dr Chang’s report dated 15 July 2015.   There is no evidence that Mr Tamay satisfies the descriptors for a higher impairment rating under Table 3. I find that Mr Tamay’s impairment under Table 3 attracts a rating of 5 points. 

    Epilepsy

32. The Respondent accepts that the condition is fully diagnosed, treated and stabilised.  However, the Respondent submits that the condition should be assigned a rating of zero points under Table 15 of the Impairment Tables as there is no functional impact.

33. Mr Tamay made no submissions in regard to this condition.

34. I note the following evidence relating to this condition:

    ·The report of the HPAU dated 1 December 2014 (T-Documents, page 97) which records:

    Discussion with his long term treating GP Dr Chan on 1/12/2014 confirmed that the Epilepsy condition is very stable on his current medication and regular Neurology review.  The customer has not had a seizure for a number of years … a nil rating under Table 15 for the Epilepsy which is reported to be asymptomatic with no functional impact.

    ·The report of Dr Chang dated 15 July 2015 (ST2) which records:

    Over the years … his epilepsy Controlled with medication.

35. From the evidence, I find that the condition has no functional impact on Mr Tamay and that it attracts a rating of zero points under Table 15 of the Impairment Tables, Functions of Consciousness.

    Dysarthria

36. The Respondent accepts that the condition is fully diagnosed, treated and stabilised.  However, the Respondent submits that the condition should be assigned a rating of 5 points under Table 8 of the Impairment Tables as there is a mild functional impact.

37. Mr Tamay made no submissions in regard to this condition.

38. The relevant descriptor under Table 8, Communication Function, relating to moderate functional impact on communication in the person’s main language, attracting 10 points is:

    (a)the person:

    (i)     has some difficulty understanding day to day language, particularly where a sentence or instruction includes multiple steps or concepts (e.g. ’Please take this book out to Jane at the front desk and ask her to give you some paper clips and bring them back in here’); ...

39. I note the following evidence relating to this condition:

    ·Report of Dr Dimock dated 26 July 2001 (T-Documents, page 36) which records:

    [Mr Tamay] has a mild to moderate dysarthria;

    ·Report of HPAU dated 1 December 2014 (T-Documents, page 97) which records:

    A medical report dated 2001 indicates that he was assessed as being able to understand and follow work instructions and communicate fluently in the workplace and interact with others appropriately … ; and

    ·Letter from Mrs Carrozza, psychologist, dated 15 September 2015 (ST3) which records:

    Hakan experiences significant difficulties in relation to his ability to communicate verbally.

40. Although Mrs Carrozza’s opinion records significant difficulties, it is general in its application.  The assessment made in 2001 is pertinent to the example given in the descriptor and clearly indicates that Mr Tamay’s impairment is not sufficient to satisfy the descriptor.  On balance, I am not satisfied that Mr Tamay’s impairment satisfies the requirements for a moderate functional impact as described in Table 8 of the Impairment Tables.  I find the impairment attracts a rating of 5 points under Table 8, Communication Function.

    Depression

41. The Respondent contends that the condition is not fully diagnosed, treated and stabilised and an impairment rating cannot be applied.

42. Mr Tamay made no submissions in regard to his depression.

43. I note the evidence contained in the following documents:

    ·Letter of Mrs Carrozza, psychologist, dated 15 September 2015 (ST3) which records:

    … Hakan Tamay is currently experiencing symptoms pertaining to the clinical diagnoses of Anxiety and Depression…Hakan has attended psychological consultations since April 2015; and

    ·Report of Mrs Tokgoz, clinical psychologist, dated 5 October 2015 (ST4) which records:

    Hakan Tamay was referred to his family doctor RMB Chan under Mental Health Care Plan (dated 31/03/2015) for psychological help for his depression and anxiety.  He had seen psychologist Katy Carrozza since April 2015.  Recently Hakan was referred to me.  Our sessions started on the 14th of September.

    … Currently Hakan is suffering from symptoms pertaining to the clinical diagnosis of depression.

44. The Introduction to Table 5 of the Impairment Tables,  Mental Health Function, requires that the diagnosis must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).  Mr Tamay’s depression has been diagnosed by a psychologist whom I accept to be an appropriately qualified medical practitioner.  The diagnosis has been confirmed by a clinical psychologist.  I find that Mr Tamay’s depression has been fully diagnosed.

45. In regard to the treatment of the condition, I note that Mr Tamay’s sessions with the clinical psychologist started only on 14 September 2014.  There is no evidence that his condition is fully treated or yet stabilised. 

46. I find that Mr Tamay’s depression is fully diagnosed but not yet fully treated or stabilised.  As a result, the condition cannot be assigned an impairment rating.

    Summary of Impairments

47. I have found that Mr Tamay’s impairments attract the following ratings:

    ·Right hemiparesis – 10 points under Table 2, Upper Limb Function;

    - 5 points under Table 3, Lower Limb Function;

    ·Epilepsy – zero points under Table 15, Functions of Consciousness;

    ·Dysarthria – 5 points under Table 8, Communication Function; and

    ·Depression – impairment rating not applied as condition is not fully treated and stabilised.

    CONCLUSIONS

48. Mr Tamay’s impairments attract a total of 20 impairment points.  As he complies with the provisions of the Act, he is entitled for the continued receipt of DSP payments.

49. None of Mr Tamay’s impairments attract a rating of 20 points under a single table.  As a result, none of his impairments are severe within the meaning of subsection 94(3B) of the Act. Accordingly, Mr Tamay does not satisfy the requirements of sections 1218AAA(1)(b) and 1218AAA(1)(c) of the Act.  As Mr Tamay’s circumstances do not satisfy all of the requirements of section 1218AAA(1) of the Act, I am not able to make a determination that the maximum portability for his DSP is for an unlimited period.

50. I find the decision of the SSAT is correct.  This means that Mr Tamay remains entitled to the receipt of DSP while in Australia but he is not entitled to an indefinite portability while overseas.

    DECISION     

51. I affirm the reviewable decision.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated 11 March 2016

Date of hearing	1 March 2016
Applicant	In person
Advocate for the Respondent	Ms Vincci Chan, Department of Human Services