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

[2023] AATA 1881

Ters and Secretary, Department of Social Services (Social services second review) [2023] AATA 1881 (29 June 2023)

Division:GENERAL DIVISION

File Number(s):      2022/3271

Re:Sayed Ters

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:29 June 2023  

Place:Sydney

The decision to refuse the Applicant’s claim for disability support pension is affirmed.

................[Sgd]........................................................
Mr S Evans, Member

Catchwords

SOCIAL SECURITY — Disability Support Pension — Claim for disability support pension rejected — Whether applicant’s conditions were fully diagnosed, fully treated, and fully stabilised during the qualification period — Whether applicant’s conditions attracted an impairment rating of at least 20 points — Decision affirmed.

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447

Secondary Materials

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

REASONS FOR DECISION

29 June 2023

INTRODUCTION

1. Sayed Ters (the Applicant) seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 9 March 2022. The  AAT1 affirmed the decision of an Authorised Review Officer[1] to refuse his application for Disability Support Pension (DSP) made on 1 November 2021.[2]

   [1] T2/3

   [2] T13/204

   Background

2. The Applicant is currently 63 years of age.[3] In 1994 he was injured in a workplace accident during which hot plastic landed on his hand. In a medical report dated 29 July 2011 Professor David H Bryant writes the Applicant went to hospital following the accident and the plastic was removed from his hand during a second hospital admission.[4]

   [3] T4/112

   [4] T4/121

3. After the accident, the Applicant’s hand remained painful and swollen and he experienced ‘wheezing, breathlessness and a persistent dry cough’. His face and skin also experienced severe swelling and inflammation . The swelling and inflammation on his skin later subsided but his breathlessness and coughing continued.[5]

   [5] T4/121

4. The Applicant continued working after the accident but remained in poor health. In 1999 he stopped working and was in receipt of workers compensation payments.[6] Based on the Applicant’s evidence, he continued to receive workers compensation until 2019 when he received a lump sum settlement.

   [6] T4/121

5. After lodging his application for review of the AAT1 decision, Services Australia commissioned a report by its Health Professional Advisory Unit dated 13 October 2022 (the HPAU report).[7]

   RELEVANT LAW AND POLICY

   [7] ST2/250

   Qualification for DSP

6. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.[8] Section 94 of the Social Security Act 1991 (Cth) (the Act) sets out the criteria for qualification for payment of DSP. Subsection 94(1) of the Act provides that to qualify for DSP:

   (a)a person must have a physical, intellectual or psychiatric impairment, or impairments; and

   (b)the impairment(s) must be rated at 20 points or more in accordance with the Impairment Tables; and

   (c)the person must have a continuing inability to work as defined in the Act.

   [8] Social Security Act 1991 (Cth), Subsection 94(5)

7. The Impairment Tables referred to in s 94(1)(b) are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The Impairment Tables include rules for assigning a rating to determine the level of functional impact of impairments. 

8. Subsection 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables. Section 6 provides that a condition can only be assigned an impairment rating if it is considered permanent. A condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.

9. When applying the Tables, subsection 6(1) of the Determination requires that in assessing functional capacity:

   (1)  The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

10. Subsection 8(1) of the Determination provides that when applying the Impairment Tables, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

    Continuing inability to work

11. Under paragraph 94(1)(c)(i) of the Act, one of the requirements for an application to be qualified for DSP is if they have a continuing inability to work. This is defined in subsection 94(2)(aa) of the Act as:

    in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth

12. For the purposes of DSP, under subsection 94(3B) of the Act a person’s impairment is a severe impairment if the impairment attains 20 points or more under the Impairment Tables, of which at least 20 points are under a single Impairment Table.

    The relevant period

13. When reviewing the decision, I am to consider the evidence as it relates to the 13 week period following application for DSP (the relevant period).[9] As the Applicant made his application for DSP on 1 November 2021, the relevant period for the purposes of the reviewable decision is 1 November 2021 to 31 January 2022.

    [9] Social Security (Administration) Act 1999 (Cth), Section 13, Section 42 and Schedule 2, Clause 4

14. This is consistent with the approach outlined by Deputy President Handley in Fanning and Secretary, Department of Social Services[10]  in which he observed:

    Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

    [10] [2014] AATA 447, [31]

15. The Tribunal is bound to only assess the condition of the Applicant and whether it qualifies him to access DSP within the 13-week period. If there are any changes to the Applicant’s medical condition which may suggest he could qualify at a later time, that is irrelevant for the purpose of the application before the Tribunal.[11]

    [11] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34]

    ISSUES TO BE DETERMINED

16. The issue to be determined is whether the Applicant was eligible for DSP during the relevant period.

17. The Secretary accepts that the Applicant suffers from physical, intellectual or psychiatric impairments and satisfies paragraph 94(1)(a) of the Act. Based on the evidence I accept this assessment.

18. As such, the first issue to be determined is whether these impairments warrant 20 points or more under the Impairment Tables. Should the Applicant be found to have an impairment rating sufficient to satisfy paragraph 94(1)(b) of the Act, it will be necessary to determine if the Applicant has a continuing inability to work.

    CONSIDERATION

    Asthma

19. The Secretary accepts that the Applicant’s asthma was fully diagnosed, treated and stabilised during the relevant period and that the resulting functional impairments are permanent.[12] Based on the report of respiratory physician Dr Christopher Clarke dated 16 August 2018 the Applicant is eligible to be assigned an impairment rating under Table 1 – Functions requiring Physical Exertion and Stamina, for this condition.[13]

    [12] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [5.3]

    [13] T4/146-147

20. In a medical certificate dated 27 January 2022 the Applicant’s general practitioner Dr Buddy Maroun states that the symptoms of the Applicant’s ongoing unstable asthma included ‘sharpness of breath, reduced effort and strength.’[14] In a subsequent report dated 2 August 2022 Dr Maroun states the Applicant was dyspnoeic upon minimal exertion and struggled to get around his own home without becoming breathless. Dr Maroun’s opinion is that that the symptoms of the Applicant’s asthma have a severe functional impact on his physical activities.[15] 

    [14] T17/215

    [15] ST1/242

21. The Secretary contends that the Applicant’s asthma attracts a moderate impairment rating consistent with the findings in the HPAU report.[16] Specifically, the HPAU report noted the Applicant’s evidence to the AAT1 included that he had not required hospitalisation or attended a respiratory physician for this condition for many years. The report observed that whilst the condition was chronic, ongoing treatment was largely effective in managing the condition.[17]

    [16] RSFIC, [5.4]

    [17] ST2/246

22. The Applicant resides in a two-storey house. He gave evidence he is able to walk the stairs to the second floor but that doing so takes 10 to 15 minutes and he experiences shortness of breath. The AAT1 decision records the Applicant gave evidence of becoming short of breath after five to ten minutes of walking, and he is able to go to the supermarket but needed to park near the entrance.[18] In his oral evidence, the Applicant confirmed that he sometimes goes shopping with his wife and that he had travelled to the Tribunal using public transport.

    [18] T2/6

23. When asked about his daily activities and capacity during the relevant period, the Applicant told me he would often have trouble sleeping at night and would wake up with a sore back. He confirmed being able to groom and dress himself, prepare simple meals such as a sandwich and being able to wash a small number of dishes and cutlery.

24. Because of his condition, the Applicant generally relies on his wife to do housework. However, he is able to perform some household tasks if required, as was the case when his wife left home to care for their adult daughter following an operation in 2022. He was also able to assist with tasks such as putting clothes into the washing machine and removing the washed laundry.

25. Outside of the house, the Applicant indicates he was able to mow the lawn about once a month with the assistance of his son. In the garden he was limited to watering plants and picking up leaves. He confirmed being able to take short walks around the backyard. Whilst he does not go shopping by himself, he does accompany family members to the supermarket and shopping centre.

26. Table 1 of the Determination provides that there is a moderate impact on activities requiring physical exertion or stamina when:

    (a)The person:

    (i)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

    (ii)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

    (iii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

    (b)is able to:

    (iv)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

    (v)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

27. Whilst acknowledging Dr Maroun’s opinion that this condition has a severe functional impact on the Applicant, I am mindful that the Applicant’s self-reported functional abilities and impairments are consistent with the totality of the medical evidence and the HPAU report. Therefore, I find the Applicant’s impairments are consistent with a moderate impairment rating of 10 points under Table 1. 

    Knee arthritis, severe degenerative disease of the lumber spine and right inguinal hernia.

28. The Secretary accepts that the Applicant’s knee arthritis, severe degenerative disease of the lumbar spine and right inguinal hernia were fully diagnosed prior to the relevant period,[19] but contends that both conditions were not fully treated and stabilised during the relevant period.[20]

    [19] RSFIC, [5.15]

    [20] RSFIC, [5.16]

29. In the January 2022 medical certificate Dr Maroun reported the Applicant experienced ‘severe low back pain and lower limb pain’ due to ‘severe degenerative disease of the lumbar spine.’[21] In a subsequent report dated 2 August 2022 Dr Maroun writes that:

    [The Applicant’s] permanent degenerative lumber spine disease, and advanced bilateral tricompartmental knee osteroarthritis, lead to chronic pain, not responsive to analgesic (and non steroid restriction due to his asthma and GI complications with a history of bowel malignanacy). This further underlines his severe functional incapacity.[22]

    [Errors in original]

    [21] T15/215

    [22] ST1/243

30. Following an x-ray of both the Applicant’s knees, a report from the Bankstown Imaging Centre dated 4 November 2015 confirmed ‘joint space loss and marginal sclerosis in all compartments of the knees’, ‘spurring’ and ‘loose bodies in each knee posteriorly with shallow knee effusions.’ Dr Stephen Mackie recommends the Applicant undergo a knee ultrasound.[23]

    [23] T4/134

31. On 3 November 2017 the Applicant was examined by consultant endocrinologist Dr Marwan Obaid after a chest x-ray showed evidence of midthoracic kyphosis and wedge compression fractures in the thoracic spine.[24] A report from Synergy Radiology following an x-ray of the lumbosacral spine and bilateral knees dated 20 September 2021 found the Applicant had ‘moderate multilevel degenerative sclerosis and spurring of the lower thoracic and lumber vertebrae at all levels’ and minor degenerative change of the sacroiliac joints.’ The bi-lateral knee x-ray found severe tricompartmental degenerative change involving the patellofemoral compartments.[25]

    [24] T4/141

    [25] T4/164

32. The reviewable decision states that the Applicant told the AAT1 he had not seen a specialist for his knee and lower back pain. The decision states at [15]:

    In his oral evidence, [the Applicant] stated that he has suffered from pain in both knees for many years. The knees swell up at times. He has pain on walking and standing up from a chair. His walking is limited by shortness of breath and standing is limited to five to 10 minutes by back pain. He has never seen a specialist for this condition, although his local doctor wants him to see one, however [the Applicant] can’t afford it. He has been suffering from low back pain for many years. He has pain on standing for five to 10 minutes and can’t lift anything too heavy, or he will have severe pain for several days. He can bend to knee level. He has never seen a specialist for this condition or had any physiotherapy. He takes Voltaren as necessary for his back and knee pain.[26]

    [26] T2/7

33. Despite the pain and discomfort caused by the Applicant’s knee and back conditions, it appears that treatment has been limited. The Secretary contends that during the relevant period the Applicant had not attended a specialist or a physiotherapist for the conditions.[27] The evidence is that treatment for these conditions was limited to analgesics. The HPAU report considers that further treatment may have included surgery, non-opioid analgesic medication and exercise to maintain lower limb and core muscle strength.[28] The report acknowledges that the Applicant stated he was unable to afford to see a specialist regarding his knee condition as recommended by his doctor. However, I accept the report’s observation that ‘orthopaedic surgeon assessment is available through the public health system, which would be at no cost to [the Applicant], though may involve some wait time.’[29]

    [27] RSFIC, [5.16]

    [28] ST2/248

    [29] ST2/248

34. As there were reasonable treatment options that were not undertaken for these conditions, I accept the Secretary’s contention that the Applicant’s knee arthritis and lumber spine degeneration were not fully treated and stabilised during the qualification period. Consequently, these conditions are not eligible for an impairment rating.  

35. In a letter dated 20 June 2011 Dr Simon Yarrow noted the presence of a small upper abdominal hernia which was reported not to be bothering the Applicant.[30] On 19 December 2011 Dr Yarrow diagnosed the Applicant with a right inguinal hernia which was either caused by or was exacerbated by his chronic cough, although it ‘is freely reducible’.[31]

    [30] T4/117

    [31] T4/118

36. Dr Yarrow’s diagnosis is corroborated in Dr Maroun’s report dated 14 May 2019 in which he writes the Applicant has had ‘four abdominal Hernia’s [sic] due to chronic cough’.[32] There is no further medical evidence in relation to this condition to indicate treatment undertaken or on which to make an assessment of the resulting functional impairment.  Accordingly, the Applicant’s abdominal hernia it is not able to be assigned an impairment rating.

    [32] T4/150

    Hypertension

37. The Secretary accepts that the Applicant’s hypertension is fully diagnosed, treated and stabilised. A medical certificate provided during the relevant period, confirms the Applicant experienced hypertension which led to ‘depressed moods, headaches and anergia’.[33]

    [33] T17/215

38. The Applicant’s depressed mood resulting from hypertension are appropriately considered under Table 5 – Mental Health Function.. The AAT1 decision records the Applicant ‘stated he takes medication for blood pressure which is under control.’[34] In the absence of further medical evidence of functional impairment resulting from headaches or other symptoms caused by the Applicant’s hypertension, this condition cannot be assigned an impairment rating.

    [34] T2/8

    Bowel Cancer

39. The Applicant was diagnosed with adenocarcinoma of the ascending colon that resulted in a right hemicolectomy in 2008.[35] Subsequent colonoscopies performed in 2011 and 2018 did not show any abnormality and the medical evidence does not describe any ongoing functional impairment which would be applicable to the relevant period.[36]  

    [35] T2/7

    [36] T4/117, 119, 145

40. As such, this condition warrants zero impairment points.

    Psychological condition

41. In his claim the Applicant states he suffers from ‘chronic depression’[37] and Dr Maroun reported on 14 May 2019 that the Applicant has ‘a psychiatric Adjustment Disorder/Depression due to his chronic illness and disability.’[38] Medical reports from consultant psychiatrist Dr Samir Benjamin and registered psychologist Ms Nada Sakla are in evidence. In March 2007 Dr Benjamin referred the Applicant to Ms Sakla for focused cognitive behavioural therapy. In a report dated 23 March 2007 Ms Sakla makes a reference to the Applicant having been ‘diagnosed with Adjustment Disorder with Depressed Mood.’ It is not clear that a formal diagnosis was made, but I acknowledge it was Ms Sakla’s understanding that a diagnosis had been made at that time. [39]

    [37] T11/194

    [38] T4/150

    [39] T4/114

42. In a report dated 25 July 2007 Ms Sakla reports having seen the Applicant on 5 occasions and using therapies and sleep hygiene to help him sleep and identify warning signs of anger outbursts. She reports the Applicant is ‘unable to rebut his negative thoughts’ and concludes ‘he does not have the strength, motivation or resources to challenge his way of thinking.’[40]

    [40] T4/115

43. On 20 April 2011 Dr Benjamin reported that the Applicant’s ‘mental state had not changed over the past several months’ and he had continued prescribing ‘Prothiaden 25mg’. Dr Benjamin observed the Applicant continued to experience depressed mood, irritability and anxiety and poor anger control.’[41]

    [41] T4/113

1. The Secretary submits that the Applicant’s mental health condition is not diagnosed.[42] Table 5 – Mental Health Function provides that the diagnosis of a condition ‘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).’

   [42] RSFIC, 5.18

2. As mentioned, Ms Sakla acknowledged a diagnosis of adjustment disorder and depressed mood in 2007 but it is unclear who made the diagnosis. Dr Maroun reported the Applicant had a psychiatric adjustment disorder in 2019 report and subsequently identified his mental health condition as ‘Chronic Major Depression’ in August 2022.[43] Based on the evidence it does not appear the revised diagnosis ‘chronic major depression’ was made by an appropriately qualified medical practitioner as required in Table 5.

   [43] ST1/243

3. Even if the Applicant’s psychiatric condition is taken to be diagnosed, there is no evidence of him having been treated by a mental health professional after 2011 or of having received treatment for this condition for many years.

4. As such, the Applicant’s psychological condition is not eligible to be assigned an impairment rating.

   CONCLUSION

5. As the Applicant’s impairments do not rate 20 or more points on the Impairment Tables, he is unable to satisfy paragraph 94(1) of the Act and his claim for DSP cannot succeed. It follows that it is not necessary to consider whether he also had a continuing inability to work during the relevant period.

   DECISION

6. For the reasons outlined above, the decision to refuse the Applicant’s claim for disability support pension is affirmed.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of

.................................[Sgd].......................................

Associate

Dated: 29 June 2023

Date of hearing:	4 April 2023
Applicant:	In person
Solicitors for the Respondent:	Ms S Navaratnam, Services Australia