Hamka and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 52 (23 January 2009)

Last Updated: 27 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5017

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MOUNA HAMKA

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member Dr MEC Thorpe, Member

Date 23 January 2009

Place Sydney

Decision

The decision under review is set aside and in substitution thereof the Tribunal decides that Mrs Hamka is entitled to be paid the DSP with effect from 8 November 2006.

....................[sgd]..........................
Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – the decision under review is set aside

LEGISLATION

Social Security Act 1991 – section 94, schedule 1B

Social Security (Administration) Act 1999 –schedule 2

CASE LAW

Re Hamal and Secretary, Department of Social Security [1993] AATA 283; (1993) 30 ALD 517

Re Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56; (2003) 73 ALD 568

Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444

REASONS FOR DECISION

23 January 2009 Ms N Isenberg, Senior Member
Dr MEC Thorpe, Member

BACKGROUND

1. Mrs Hamka’s claim for disability support pension (DSP), made on 8 November 2006, was rejected by Centrelink. While Centrelink agreed that she suffered from severe obstructive apnoea and bilateral carpal tunnel syndrome, it did not at that time agree that those impairments attracted the required 20 point impairment rating under the Impairment Tables contained in the Social Security Act 1991 (the Act). Later, Centrelink agreed that Mrs Hamka suffered from depression and chronic pain/widespread degenerative changes as described by Dr Keen in his report of 26 May 2008, and that these conditions, together attracted a rating of 20 impairment points under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (“the Act”).
2. Centrelink did not agree that Mrs Hamka meets another of the requirements of eligibility for a disability support pension, that is, a continuing inability to work. These requirements are set out in subsection 94(2) of the Act and are as follows:

94  Qualification for disability support pension

(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

                     (a)  the impairment is of itself sufficient to prevent the person from 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.

ISSUE BEFORE THE TRIBUNAL

3. As Centrelink conceded that Mrs Hamka had a physical, intellectual or psychiatric impairment of 20 points or more, the remaining issue was whether she had a continuing inability to work.
   

PERIOD FOR ENTITLEMENT TO DSP

4. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 (“the SSA Act”) provides that the relevant time to consider a person’s entitlement is during the 13 weeks after the claim. Therefore, we had to consider if Mrs Hamka was entitled to the DSP by 7 February 2007.
   

CONSIDERATION OF THE EVIDENCE AND FINDINGS

5. Mrs Hamka gave evidence, as did her daughter Nada Hamka. Evidence was also given by Dr Dinnen, consultant psychiatrist, Dr Keen, Senior Medical Advisor, and Ms Stratford, Job Capacity Assessment State Coordinator for Work Solutions.
6. Mrs Hamka gave evidence that she had last worked about 25 years ago and had stopped work because of a work injury to a finger.
7. She described her health problems, in particular pain in her legs, knees, feet, back, buttocks, shoulders and neck; her sleep difficulties; and her dizziness. As a result she has excessive fatigue and she must sleep several times a day. For the last year, according to Nada Hamka, she has been unable to undertake any house work or cooking at all and relies on her daughters to undertake those tasks and also to assist her in matters of personal care. Prior to that time, she would try, but become forgetful or was too fatigued to continue with even basic household tasks.
8. She has been seeing psychiatrists or counsellors on and off for about 10 years. In July 2007 she commenced seeing Dr Younan, consultant psychiatrist, who has prescribed Zoloft and Endep, which medication makes her drowsy.
9. She was concerned that the medication might make her put on more weight and had previously seen a nutritionist which had resulted in 5 kg weight loss. She had been advised to walk for an hour but after 15 to 20 minutes the pain, especially in her knees is intense and she must rest for 1 to 1 1/2 hours. As it is, she takes painkillers every 6 hours.
10. While she has a drivers licence she might drive only once or twice a week and then only a short distances. She has great difficulty in managing steps. She last went overseas in late 2007. She rarely goes out other than to medical appointments. When she goes on outings with the family she does not have the stamina to remain outdoors for long and wants to go home after a very short time.
11. She did a computer course about 5 years ago but did not learn much. She does not use a computer at home and has now forgotten whatever she may have learned.
12. She feels useless and that she is a bad mother. She "hates [herself] and hates life”. She does not like to socialise with other people because they talk about her family difficulties and she finds that tiring and upsetting.
13. She was referred to a letter (p 135) that said she had attended "many events" at the Al Zahra Muslim Women’s Association in Arncliffe, NSW. She said that she had been going there for many years. She was also referred to a job capacity assessment report dated 14 September 2006 wherein she allegedly told the assessor that she was too busy to complete courses. She said she could not remember saying that, but it was noted that she has 7 children and 2 grandchildren, nearly all of whom live at home.
14. Nada Hamka gave evidence of her mother's frustration about her inability to engage with her grandchildren on a daily basis and show them physical affection. She is unable to hold the new grandchild because she fears dropping it because of her weak wrists and numb hands. She cannot play with the older grandchildren. She is also constantly "emotional and upset”, and feels guilty because she is unable to do the housework and must rely upon her daughters. For the last 6 months she has been totally self-absorbed.
15. In her report of 4 February 2008 Dr Harvey-Sutton assessed that there was no reason why Mrs Hamka’s physical condition limited her ability to work for 15 hours per week, but she was unable to comment on Mrs Hamka’s psychiatric condition.
16. Dr Keen adopted Dr Harvey-Sutton view in relation to Mrs Hamka’s work ability, on the basis, incorrectly, that she had taken into account both the physical and psychiatric conditions. As noted above, Dr Harvey-Sutton deferred to psychiatric opinion in relation to the effect of Mrs Hamka’s psychiatric condition on her work ability.
17. Dr Dinnen gave evidence that Mrs Hamka’s psychiatric condition, coupled with her physical limitations prevents her from working. Features of the condition, especially loss of concentration, impaired memory and limited stress tolerance would impair her efficiency. He considered her condition was such that any stress would also result in an increase in her physical symptoms. Even if one of her physical conditions were to improve, some other problem would take its place. He thought that ‘on a good day’ she may be able to work 3 hours a day, but doubted that ‘good days’ would occur with sufficient frequency or predictability so as to realistically expect her to be able to hold down a job.
18. In his report of 15 April 2008 Dr Dinnen recorded her difficult personal circumstances which had given rise to her need for psychiatric counselling or treatment over several years. The condition had been well managed though intermittent counselling, psychotrophic medication and psychiatric consultations. Nonetheless her condition was not expected to improve no matter what treatment was provided. He recommended treatment be directed at support and encouragement and helping her to adjust to her difficulties.
19. We prefer Dr Dinnen’s evidence about Mrs Hamka’s psychiatric condition to that of Dr Keen, who is not a consultant psychiatrist.
20. In Re Hamal and Secretary, Department of Social Security [1993] AATA 283; (1993) 30 ALD 517 (at 525), the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:

When considering the issue of work in this context, the tribunal is of the view that it is the “normal workplace” against which a person's abilities are to be judged, not the workplace of the “benign employer”.

21. Relying on Hamal the Tribunal in Re Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56; (2003) 73 ALD 568 interpreted ‘work’ to be work that is carried out in the "open workplace" and not work that is insulated from dynamic and unpredictable demands.
22. Ms Stratford thought that Mrs Hamka could work 15-22 hours per week. She had prepared a Job Capacity Assessment dated 3 June 2008 in which she adopted Dr Harvey-Sutton’s recommendations in the report of 4 February 2008 that Mrs Hamka could undertake supervisory work such as after school care of primary school children. She also considered that Mrs Hamka could undertake family day care, ticket collector/usher, domestic cleaning, footwear factory hand, and sales assistant.
23. She said that Mrs Hamka could undertake after school care because she could supervise children doing their homework. In our view this was an unrealistic understanding of what after school care might entail and took no account of children’s likely rambunctious behaviour. She acknowledged that Mrs Hamka has mobility problems but did not consider these to be major. This, in our view, is at odds with the medical evidence, including that of (the Respondent’s expert) Dr Keen, that her widespread degenerative changes produced a level of pain sufficient to attract a rating of 10 impairment points.
24. As to family day care, we make the same observations. Also, Ms Stratford agreed that loss of concentration would be undesirable in that role but did not think that was a major impairment for Mrs Hamka. We note Mrs Hamka‘s evidence of forgetfulness. As to Mrs Hamka’s sleepiness, Ms Stratford referred to her recommended interventions, including an increase in fitness. In that regard we note the evidence that after 15 minutes of walking Mrs Hamka needs to rest for 1- 1 ½ hours.
25. We found Ms Stratford’s suggestion that Mrs Hamka undertake domestic cleaning to be quite unrealistic in circumstances where she is unable to clean her own home and requires assistance to dress and wash.
26. Similarly, we considered usher work to be unreasonable because of Mrs Hamka’s need to move round, her inability to deal with stairs, and her loss of concentration.
27. As to working as a factory hand we note that her carpal tunnel would be likely to limit opportunities in that regard, particularly because of the numbness in her hands and as she is prone to dropping things.
28. Her mobility and loss of concentration would also affect her ability to work as a sales assistant.
29. By reason of Mrs Hamka’s existing work skills and experience, we find that her conditions, considered in isolation from other matters that may influence her attitude to working, have such an impact on her capacity for work so as to prevent her from doing work available anywhere in Australia, without the need for retraining: s 94 (2)(a) (per Secretary of Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444 (“Pusnjak”).
30. Having come to this view we then turned to the next limb identified in Pusnjak, namely, whether, the impairment is of itself sufficient to prevent Mrs Hamka undertaking, during the next two years, retraining of a kind that is available to her and which would fit her for a class of work available in Australia that she currently lacks the skills or experience to perform, even if unimpaired. In this regard the Respondent did not press the re-training issue. Although there were a number of ‘interventions’ recommended by Ms Stratford, these did not amount to training per se apart from the post-secondary/adult short courses that were recommended.
31. We therefore find that Mrs Hamka was, at the relevant date, qualified for DSP because she had an impairment, which is properly rated at at least 20 points under the Impairment Tables, and that because of the impairment, she has a continuing inability to undertake any work, or training, in accordance with s 94(2)(b).
32. We observed at the hearing that Mrs Hamka has adopted a role as an invalid. Dr Dinnen’s evidence was that she has a genuine psychiatric condition and that her limitations are not psychosomatic. We note that he thought if she could be helped to feel better physically then she may be able to cope better. We observed Ms Stratford’s recommended interventions, especially in relation to cognitive behavioural therapy, disability adjustment counselling, pain management and fitness, and would commend these to Mrs Hamka. We were disturbed by Nada Hamka’s evidence that it would be ‘a big relief’ if her mother received the disability support pension so as to relieve the family from taking her around to medical appointments. If her condition is indeed as debilitating as the evidence suggests, it is doubtful that there would be any respite in that regard.
    

DECISION

33. The decision under review is set aside and in substitution thereof the Tribunal decides that Mrs Hamka is entitled to be paid the DSP with effect from 8 November 2006.
    

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed: ....[sgd]...............................

Associate

Date of Hearing 8 December 2008

Date of Decision 23 January 2009

Solicitor for Applicant Ms Elizabeth Biok, Legal Aid Commission of New South Wales

Counsel for the Applicant Mr Leonard Karp

Solicitor for the Respondent Ms Hannelore Schuster, Centrelink Legal Services