Zafer Uyanik and Secretary, Department of Social Services

[2015] AATA 221

[2015] AATA 221

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4455
Re	Zafer  Uyanik
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	14 April 2015
Place	Sydney

The reviewable decision is affirmed.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were 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 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) s 39

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr Ion Alexander, Member

14 April 2015

BACKGROUND

1. On 9 January 2014 Mr Uyanik lodged a claim for Disability Support Pension (DSP) on the basis that he suffered several medical conditions that were having an impact on his ability to function. The conditions as described in the claim form included “PTSD, major depressive disorder, recurrent, severe, generalised anxiety disorder with panic attacks, obsessive-compulsive disorder, back pain, neck injury, hypochondriasis and hearing loss”.

2. Mr Uyanik’s claim was rejected by Centrelink, both initially and on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT) on the basis that he did not satisfy the requirements of s 94 of the Social Security Act 1991 (the Act). In particular, he did not satisfy s 94(1)(b) of the Act in that his rating under the Impairment Tables was less than 20 points.

3. In this proceeding Mr Uyanik seeks review of the decision of the SSAT.

4. At the hearing Mr Uyanik was unrepresented but was able to give oral evidence with the assistance of an interpreter of the Turkish language.

   ISSUES

5. In order to qualify for DSP Mr Uyanik had to satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim (“the claim period”), in accordance with s 39 of the Social Security (Administration) Act 1999, that is, between 9 January 2014 and 10 April 2014.

6. It is agreed that Mr Uyanik suffers various medical conditions and therefore satisfies s 94(1)(a) of the Act.

7. The definitive issue in this matter is whether during the claim period Mr Uyanik satisfied section 94(1)(b) of the Act, in particular, whether any of his claimed medical conditions caused severe functional impact with a rating of 20 points under the relevant Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

   RELEVANT FACTS

8. Mr Uyanik is 40 years old and arrived in Australia on a Partner Provisional Visa (Subclass 309) on 3 July 2006.

9. On 14 December 2010 he obtained a permanent Partner (Subclass 100) visa.

10. On 30 September 2011 he was granted carer payment and carer allowance on the basis that he was providing care for an elderly friend.  At present he continues to receive these benefits.

11. Mr Uyanik travelled overseas on three occasions, 26 May 2012 to 24 August 2012, 10 July 2013 to 7 September 2013, and 1 October 2014 to 10 November 2014.

12. On 22 January 2014, during the claim period, Mr Uyanik lodged a Claim for Pensioner Education Supplement stating that he would be studying English at the Granville College TAFE commencing on 28 January 2014.

13. On 18 March 2014 Mr Uyanik informed Centrelink that he would be continue to study at Granville College on a part-time basis (66%-74%) for 9 hours per week

14. A copy of a Granville College TAFE document dated 20 June 2014 notes that Mr Uyanik was enrolled for an English Language Skills course from 3 February 2014 to 28 November 2014 for 10 hours per week.

    EVIDENCE

    Mr Uyanik’s Evidence

15. At the hearing Mr Uyanik explained that he is a professional musician who is prevented from pursuing his profession because of his mental health symptoms. He stated that he is trying to survive with the aid of medication and although he can care for himself he has to force himself to do so.  He claimed that he has difficulty with concentration, obsessive-compulsive symptoms and occasional violent outbursts.

16. Notwithstanding his claimed difficulties Mr Uyanik stated that he has been acting as a carer for an elderly friend and receiving Centrelink carer benefits since 2011. His friend is receiving the Age Pension and Mr Uyanik is his Centrelink nominee.

17. During the first two years he and his friend lived together in the same dwelling but now live apart. Each week Mr Uyanik stays with his friend for three days and then his friend stays with him for three days.

18. Mr Uyanik has a car and sometimes he drives between the two dwellings which takes approximately 45 minutes, but often he and his friend travel by public transport because it is cheaper.

19. Mr Uyanik explained that his friend suffers from diabetes and has physical difficulties because of a degenerative bone condition. He claims he helps with his friend’s medication, checks his blood sugar level daily and assists with personal care such as shaving and bathing.

20. Mr Uyanik claims he does all the cleaning, cooking and other domestic chores for both homes and usually goes shopping together with his friend.

21. Mr Uyanik explained that he does not have an active social life and spends a lot of time at home with his friend and together they watch TV and hire Turkish video movies. He also plays music with a Turkish string instrument and reads newspapers and novels to his friend.

22. Every Sunday evening Mr Uyanik takes his friend to St George Leagues Club to socialise with friends. Sometimes he stays at the club but often goes home and picks up his friend later in the evening.

23. In response to a question from the Tribunal Mr Uyanik agreed that he has a “busy life” but enjoys looking after his friend because it has a calming effect and because he sees his friend as a father figure.

24. Mr Uyanik claimed that he enrolled in English classes but did not complete them because of his various symptoms.

25. With respect to his overseas trips Mr Uyanik explained that his earlier trips were for family visits and that he was accompanied by his friend who helped with the travel arrangements. He said that on his most recent trip he travelled alone to attend a funeral and while he was away his friend was assisted by neighbours and other friends.

26. At the hearing Mr Uyanik provided no additional information in respect of his back, neck or hearing conditions.  

    Medical Evidence

27. In support of Mr Uyanik’s application Dr Mostaphazadeh, GP, provided a medical report dated 6 January 2014.

28. Dr Mostaphazadeh listed major depressive disorder, anxiety disorder with panic attacks, obsessive compulsive disorder and hypochondriasis as conditions causing most impact.

29. Impact on ability to function was described as “inability to focus, concentrate, poor problem solving skills, poor memory, lack of energy to carry out day to day activities”, “very limited social contact” and “preoccupation with obsessive compulsive thoughts that prevents him to deal with his day to day life”.

30. Hearing loss, neck and back pain were listed as medical conditions that are generally well managed and that cause minimal or limited impact on ability to function.

31. In a Medical Report dated 24 February 2014 Dr Murray, psychiatrist, lists “Major depressive disorder, obsessive compulsive disorder, panic disorder and generalised anxiety disorder” as medical conditions with most impact.

32. Impact on ability to function is described as “very specific impairment in learning communication coping & functional engagement” and “serious impairment of pace, coping, new learning and socializing”.

33. In a letter dated 11 February 2015 Dr Murray notes that Mr Uyanik’s symptoms wax and wane” and that he “experiences episodes of irritability related to his depression that cause a major impact on his social interactions and communication, particularly when he loses his temper”.

34. The Tribunal has been provided with letters from Mr Tungandame, psychologist, dated 6 January 2014, 24 February 2014, 10 April 2014 and 13 February 2015.

35. Relevant comments include that “the severity and frequency of his symptoms is interfering with his day to day functioning” and “he has displayed OCD symptoms; he is very much preoccupied with excessive cleaning which also prevents him socializing with others”.

36. In the letter dated 24 February 2014 Mr Tungandame notes that Mr Uyanik has been the carer of an old Turkish man and states that “this situation has exacerbated his anxiety which in turn continues to foster his anxiety and depression”.

37. I note that this assessment is entirely inconsistent with Mr Uyanik’s own evidence.

    JCA Report

38. In a Job Capacity Assessment Report submitted on 30 January 2014  the assessor notes the following:

    Client reported he is a carer for a friend. He stated he performs caring duties 6 days per week; for 3 days he travels to the friend’s house to perform cleaning, cooking, and all domestic duties; for the other 3 days the friend travels to his house. Client reported he is awaiting the commencement of English classes, 3 hours per day, 3 days per week. He stated he commences on 06/02/2014. He stated he is looking forward to the opportunity to get out of the house and interact with different people. He stated that he remains capable of performing all domestic duties at his own house. He reported some symptoms of obsessive compulsive disorder such as excessive cleaning, washing and hygiene concerns. He stated that these anxiety related symptoms make it more difficult to maintain friendships, relationships and socialise.

    CONSIDERATION

39. The Determination stipulates that that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

40. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)), and

    ·fully treated (paragraph 6(4)(b)), and

    ·fully stabilised (paragraph 6(4)(c)).

41. In respect of Mr Uyanik’s claimed condition of “back pain, neck injury and hearing loss” there is insufficient evidence to allow the Tribunal to conclude that during the claim period any of these conditions were fully diagnosed, fully treated and fully stabilised, which means that no impairment rating can be applied.

42. It is accepted that Mr Uyanik’s mental health conditions as diagnosed by Dr Murray are permanent within the meaning of the Act and that Mr Uyanik suffers numerous symptoms as result of these conditions.

43. Table 5 - Mental health Function provides the following descriptors for the assessment of functional impact on activities involving mental health function:

    a.self care and independent living;

    b.social/recreational activities and travel;

    c.interpersonal relationships;

    d.concentration and task completion;

    e.behaviour, planning and decision-making;

    f.work/training capacity.

44. There are five point allocation categories (0, 5, 10, 20 and 30 points) and in each category there are one or two examples for each of the six descriptors which provide a guide for the assessment of the severity of functional impairment. Points can be allocated if at least four of the six descriptors in a category are satisfied.

45. The respondent contends that Mr Uyanik’s mental health condition causes moderate functional impact on his activities with an impairment rating of 10 points.    

46. Mr Uyanik claims that his mental health condition has a severe functional impact on his activities and that this is supported by the medical evidence.

47. On consideration of the descriptors and the relevant examples in Table 5 I am satisfied that the functional impact on activities of mental health function suffered by Mr Uyanik because of his conditions is consistent with the examples in the moderate category and that the appropriate impairment rating is 10 points.

48. I find that the medical evidence is somewhat unsatisfactory and does not provide a convincing assessment of the functional impact on Mr Uyanik’s activities involving his mental health. In particular the medical evidence does not adequately address the examples in the severe category of Table 5 to allow the Tribunal to conclude that Mr Uyanik has a severe functional impairment.

49. Furthermore, Mr Uyanik’s own evidence is not consistent with the examples of severe functional impairment as set out in Table 5.

50. Mr Uyanik is not only able to live independently and attend to his own needs but also able to care for and support another person. Not only is he able to manage his own affairs with Centrelink but he is also the Centrelink nominee for his friend.

51. Mr Uyanik is also able to drive a car, use public transport and travel overseas without apparent difficulty.  

    DECISION

52. For reasons set out above I find that during the claim period Mr Uyanik’s rating under the Impairment Tables was 10 points which means that he did not satisfy section 94(1)(b) and did not qualify for DSP.

53. The reviewable decision is affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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

Associate

Dated 14 April 2015

Date of hearing	20 March 2015
Applicant	In person
Solicitor for the Respondent	Ms G Heggen, Department of Human Services