Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous

1. The Secretary submits that the relevant question is whether Mr Al-Janabi was qualified for disability support pension at the time of his claim on 4 April 2016, or within the following 13 weeks. The basis for this submission is said to derive from the terms of clause 4 of schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). A survey of the Tribunal's published decisions shows that what might be called "the 13 week window" approach is routinely adopted. Perhaps surprisingly, it does not seem that clause 4 has been the subject of any detailed consideration, either in any published decisions of the Tribunal or the Federal Court.
2. Before the machinery provisions in the Act were removed to the Administration Act in December 1999, the relevant predecessor provision was subsection 100(3) of the Act:

(a) a person lodges a claim for a disability support pension; and

(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and

(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.

The relevant enquiry for a decision-maker was whether the applicant for a disability support pension, if not qualified at claim, became qualified within the following three months. No doubt it has largely been assumed this approach also informs the construction of clause 4. However, it is trite to observe that it is the terms of the current provision, and not its predecessor, which must be considered.

1. Currently, a social security payment such as disability support pension becomes payable to a person on their start day, worked out in accordance with Schedule 2: sections 41 and 42 of the Administration Act. The relevant provisions of Schedule 2 are:

3 Start day - general rule

(1) If:

(a) a person makes a claim for a social security payment; and

(b) the person is qualified for the payment on the day on which the claim is made;

the person's start day in relation to the payment is the day on which the claim is made.

...

4 Start day - early claim

(1) 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.

...

1. The general rule is that, where a person is qualified on the date of claim, their start date for payment is the date the claim is made. In relation to early claims, the enquiry to be made by the decision-maker is (assuming the person does not die) whether the person will, for a stated reason, become qualified within 13 weeks after the date of claim. If the answer is positive, and the person does become so qualified, the claim is taken to be made on the first day they were qualified. The test in paragraph (c) in clause 4 is framed as forward-looking; it must be doubtful that the question whether the person will become qualified within 13 weeks can be answered by asking, in retrospect, if they did in fact become qualified within that period (which responds to the question posed by paragraph (d) in any event). To read paragraph (c) as though it mirrors paragraph 100(3)(c) of the Administration Act prior to 19 March 2000 involves reading down the words "will, because of the passage of time or the occurrence of an event, become qualified" to simply mean "becomes qualified" as appeared in the earlier provision. The words in the current provision should, of course, be given meaning. Their ordinary meaning in the context of the terms of clause 4(1) suggests a decision-maker should be satisfied it is reasonably certain, if not inevitable, the person will become qualified within 13 weeks.
2. On that approach, clause 4(1) could be met where a person claimed age pension a month before reaching pension age, for example. Provided they survive, the claimant will become qualified on reaching pension age. Once they attain that age, their claim is deemed to have been made on the day they achieve pension age and they can be paid from that day.
3. However, ordinarily a person claiming disability support pension has to have, inter alia, fully diagnosed, fully treated and fully stabilised condition/s which result in an impairment rating of at least 20 points under the Impairment Tables. A diagnosis two months after claim of an incurable, untreatable condition, which would thereafter mean the person was qualified for disability support pension would be unlikely to meet the requirement that, at claim, it could be found that they will become qualified within 13 weeks. The fact of subsequent qualification does not answer the question posed by clause 4(1)(c). Nor could an original decision-maker, prior to the diagnosis of an incurable, untreatable condition, be expected to predict such a diagnosis would be made. The appropriate remedy in that situation would be a new claim for disability support pension.
4. Accordingly, the Tribunal prefers the view that clause 4(1) has more limited application than is generally assumed. In addition to satisfaction of actual subsequent qualification within 13 weeks, a finding that the person, at claim, will become qualified because of the passage of time or the occurrence of an event within the 13 week period involves an assessment whether becoming qualified is reasonably certain, if not inevitable.
5. The Tribunal proceeded to consider whether Mr Al-Janabi was qualified for the disability support pension at the date of his claim on 4 April 2016.

1. To qualify for disability support pension, a residence test has to be met. Relevantly, paragraph 94(1)(e) of the Act requires that a person either:
   • (i) is an Australian resident at the time when the person first satisfies paragraph (c); or
   • (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
   • (iii) is born outside of Australia and, at the time when the person first satisfies paragraph (c), the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

1. Having regard to the relevant provisions in the Act and the Migration Act 1958, and considering the facts of Mr Al-Janabi's visa status and his arrival date in Australia, the Tribunal is satisfied that Mr Al-Janabi:
   • is not an Australian resident for the purposes of the Act;
   • does not have 10 years qualifying residence;
   • does not have qualifying residence exemption; and
   • is not the dependent child of an Australian resident.
2. The Tribunal finds that Mr Al-Janabi does not satisfy the residency requirements to qualify for the disability support pension under paragraph 94(1)(e) of the Act. This means that he can only qualify for the disability support pension in accordance with the International Agreements Act.
3. Schedule 3 of the International Agreements Act sets out the agreement on social security systems between the governments of Australia and New Zealand (New Zealand Agreement).
4. The New Zealand Agreement sets out provisions regarding residency; as in force at the date of claim, article 12(4) provided that no person shall be entitled to claim a disability support pension under the Agreement unless they have accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand.
5. The Secretary accepts, and the Tribunal concurs, that Mr Al-Janabi is a New Zealand citizen residing in Australia. He arrived in New Zealand in 2002 and became a New Zealand citizen in 2006. The Tribunal is satisfied that, at the date of his claim on 4 April 2016, Mr Al-Janabi had more than 10 years residence in Australia and New Zealand.

1. The Tribunal then turned to consider what might be termed the "medical qualification criteria", ordinarily found in paragraphs 94(1)(a), (b) and (c) of the Act, which provide that a person qualifies 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) ... (i) the person has a continuing inability to work...
2. The Tribunal's attention was drawn to Tamua and Secretary, Department of Social Services [2016] AATA 757 (Tamua), wherein Deputy President Alpins considered that the provisions in the New Zealand Agreement relating to the claimant being "severely disabled" in article 2(2)(a) effectively provided an alternative basis upon which the medical qualification criteria for DSP can be met. Reliance on the Full Court's judgment in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75 (Mahrous) was said to support this view.
3. Article 2(2) of the New Zealand Agreement relevantly provides:

For the purpose of this Agreement an Australian disability support pension and New Zealand invalid's benefit shall be limited to cases where:

(a) the person is severely disabled;

(b) the person was a resident of one of the Parties at the date of severe disablement; and

(c) the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time. [emphasis added]

1. Article 1(1)(l) of the New Zealand Agreement defines 'severely disabled' as a person who:
   • (i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:

(aa) to work for at least the next 2 years; and

(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or... [emphasis added]

1. Mahrous was primarily concerned with the residence requirements for disability support pension and in particular, the interaction between the Act and the New Zealand Agreement in this respect. Given this focus, there is little in the Court's reasons which directly support the approach in Tamua. The Secretary points to certain dicta in Mahrous as supporting the submission that article 2(2) is a provision of limitation, rather than offering an alternative means of qualification. The Court said at [61]:

Article 2(2), not article 12(4), is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement.

The Tribunal accepts that this observation provides some marginal support for the Secretary's position.

1. Having considered the New Zealand Agreement as a whole, the Tribunal is not persuaded that article 2(2) provides an alternative means of qualification for disability support pension. It seems unlikely this was ever intended. Indeed, the alternative view would lead to a situation where an Australian citizen, born in Australia and who had lived most of their life here, could rely on the New Zealand Agreement to qualify for disability support pension, if they happened to have lived in New Zealand for 12 months or more as a child, for example. It is difficult to discern why such an individual, who would not need to rely on the New Zealand Agreement to meet the necessary residency tests, should be relieved of requirements to have an impairment rating of at least 20 points under the Impairment Tables and a continuing inability to work (including meeting the program of support requirements if they did not achieve an impairment rating of 20 points under a single Table). And, as the Secretary submits, it is difficult to see why it would be intended that a person who relies on the New Zealand Agreement would not have to meet the requirements for any condition/s to be fully diagnosed, fully treated and fully stabilised before impairment might be assessed, these requirements applying to claimants relying on the Act alone. These ordinary requirements derive from the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination); the relevant determination not being part of the social security law, it is therefore not picked up in the New Zealand Agreement.
2. The Secretary submits that article 2(2) overrides paragraph 94(1)(c) of the Act relating to continuing inability to work, but does not affect paragraphs 94(1)(a) and (b). In this respect, it is appropriate to refer to section 6 of the Social Security (International Agreements) Act 1999 which relevantly provides:

6 Overriding of social security law by scheduled international social security agreements

(1) The provisions of a scheduled international social security agreement have effect despite anything in the social security law.

(2) Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law.

...

1. The Tribunal considers article 2(2) to be a provision of limitation. Whilst it is arguable that its scope "covers" the same territory as paragraph 94(1)(c) of the Act dealing with inability to work, it seems to the Tribunal that it adopts a narrower test generally. This is because it imports a test of total inability to work for the next two years, whereas the Act is concerned with a work test of 15 hours per week. Article 2(2) therefore involves a subset of the field of coverage of paragraph 94(1)(c). On that basis, it can be appropriately construed as a true limitation provision, having effect in addition to the ordinary requirements that a claimant meet paragraphs 94(1)(a), (b) and (c) of the Act.

1. As discussed above, the Tribunal interprets the provisions of the Act and the International Agreements Act to require Mr Al-Janabi to meet the following criteria so as to be eligible to receive the disability support pension; he must:
   • have a physical, intellectual and psychiatric impairment; and
   • have 20 or more points in accordance with the Impairment Tables; and
   • have a continuing inability to work; and
   • be 'severely disabled'.

Does Mr Al-Janabi have a physical, intellectual and psychiatric impairment?

1. The Tribunal is satisfied from the medical evidence that Mr Al-Janabi suffers from a spinal disorder, a shoulder/upper limb condition, osteoarthritis, and depression and post-traumatic stress disorder (PTSD). As Mr Al-Janabi has physical and psychiatric impairments, he met the requirements of paragraph 94(1)(a) of the Act at the date of his claim for the disability support pension.

Does Mr Al-Janabi have medical conditions that can be rated at 20 points or more under the Impairment Tables?

1. The Impairment Tables Determination requires that an impairment rating can only be assigned if the condition causing that impairment is 'permanent'. As set out in paragraph 6(4) of the Impairment Tables Determination, a condition is permanent if it:
   • has been fully diagnosed by an appropriately qualified medical practitioner; and
   • has been fully treated; and
   • has been fully stabilised; and
   • is more likely than not to persist for more than two years.
2. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
3. The Introduction to each relevant Table requires that '[s]elf-report of symptoms alone is insufficient' and '[t]here must be corroborating evidence of the person's impairment'.
4. Relevantly, the Introduction to Table 5 - Mental Health Function of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the 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).'
5. The Tribunal considers each of Mr Al-Janabi's medical conditions in accordance with the Impairment Tables Determination.

1. Dr William Menashi (general practitioner) completed a medical report for disability support pension on 16 February 2016.[1] Dr Menashi diagnosed Mr Al-Janabi with "chronic back pain, with left leg radiation, L5 nerve root compression... [and] chronic neck C6-C7 disc lesion"; he noted Mr Al-Janabi had undertaken past treatment of physiotherapy, steroid injections and swimming/home exercises, and currently treated his condition with medication. Dr Menashi opined that surgery is a "last resort" due to concerns with Mr Al-Janabi's mental health. He described Mr Al-Janabi's symptoms as:

Severe back pain radiat[ing] to lower limbs, limping, can't sit, stand, walk more than 10-15 mins, can't use public transport, can't do lawn mowing, physical work at home. Can't bath independently.

1. This condition is verified in a report by Dr Harry Patapanian (rheumatologist) dated 8 April 2013;[2] and medical imaging reports of Mr Al-Janabi's lumbar spine on 27 August 2012, 18 February 2013, 1 March 2013, 10 February 2014, 9 April 2015 and 19 October 2015.[3]
2. Dr Malcolm Pell (neurosurgeon) provided reports on 17 March 2015 and 1 March 2016.[4] Dr Pell noted on 1 March 2016 that Mr Al-Janabi:

...continues with chronic back pain and left sided sciatica, radiating through the left hip and into both sides of the thigh and left knee... Unfortunately he had no relief from injections and is currently taking Voltaren.

1. At the Tribunal hearing, Mr Al-Janabi said he has suffered problems with his back since 1984 but his condition is "getting worse". In late 2015, he began to experience numbness and pain into his left leg from his back. He undertook physiotherapy and swimming exercise. He told the Tribunal he can swim for a total of 150 metres; he swims for 25 metres and then rests. Mr Al-Janabi also said he drives his car locally several times a week. He is able to walk around a shopping centre on his own for 15 minutes. Mr Al-Janabi said he requires the assistance of his daughter to shower as he is unable to reach his back and sometimes needs help to dressing himself. He was able to remain sitting during the hearing at the Tribunal for a period of 90 minutes.
2. Based on the medical evidence, the Tribunal is satisfied Mr Al-Janabi's spinal condition was fully diagnosed, fully treated and fully stabilised during the claim period. In accordance with Table 4 - Spinal Function of the Impairment Tables Determination, the Tribunal finds this condition had a mild functional impact on activities involving Mr Al-Janabi's spinal function and assigns 5 points.

1. Dr Menashi, in a medical report for disability support pension dated 16 February 2016, diagnosed Mr Al-Janabi with "right/left rotator cuff tear".[5] A further report by Dr Menashi on 21 April 2017 stated:

Mr Al-Janabi suffers from severe bilateral shoulder pain and limited range of movements and has been seeking treatment, started about 5 years ago and in the left shoulder and then the right shoulder. He even had steroid injections and ultrasound showed he has [rotator] cuff syndrome in both shoulders. [This] condition has been fully treated and stabilised as of 4/4/2016 when he applied for the DSP and [is] not expected to get better even with treatment and any further physiotherapy on injections, he is certainly not for any surgery.[6]

1. This condition is also verified in medical imaging reports of Mr Al-Janabi's right shoulder undertaken on 27 August 2012, 27 March 2013, 10 February 2014 and 14 October 2014; an ultrasound report of his left shoulder on 17 December 2014; and an x-ray report of his left shoulder on 11 January 2016.[7]
2. Dr Pell reported on 1 March 2016 that Mr Al-Janabi's:

...main concern at present is left arm pain; he awoke at the beginning of January with neck and left arm pain. There was numbness radiating down the arm and for arm and numbness also affecting the thumb, index and middle fingers. He has tried physiotherapy but without benefit...[8]

1. Dr Pell also stated that Mr Al-Janabi was complaining of pain in multiple areas and has a generalised arthritic condition that "warrants review by a rheumatologist".[9]
2. Mr Al-Janabi told the Tribunal he continues to have "painful joints", including in his shoulders but has not seen either a rheumatologist or another specialist in relation to his upper limb condition.
3. Based on the medical evidence, the Tribunal is satisfied Mr Al-Janabi's upper limb condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. Therefore, in accordance with the Impairment Tables Determination, the Tribunal cannot assign an impairment rating for this condition.

1. Dr Pell reported on 1 March 2016 that Mr Al-Janabi:

...has a generalised arthritic condition and warrants review by a rheumatologist and I have recommended he see you to discuss this hopefully you can arrange this locally for him...

1. As set out in paragraph [45], Mr Al-Janabi's arthritis condition has not been reviewed by a rheumatologist.
2. The Tribunal is satisfied this condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. This is because there is insufficient medical evidence before the Tribunal regarding potential treatment and the functional impact of this condition. Therefore, the Tribunal cannot assign an impairment rating for this condition.

1. Dr Menashi's medical report for the disability support pension on 16 February 2016 stated Mr Al-Jabani has had severe depression and PTSD since 2002 when he was in a refugee camp for eight months.[10] Dr Menashi noted Mr Al-Janabi's condition has been diagnosed by a psychiatrist/clinical psychologist, and treatment is antidepressant medication and seeing a psychiatrist.
2. Dr Menashi confirmed on 21 April 2017 that:

Mr Al-Janabi suffers from severe major depression illness and post-traumatic stress and his condition has been fully treated by qualified psychiatrist and psychologist and he has been [sic] reasonable and efficient treatment and has been very compliant.

His condition has not improved... and he will not benifit [sic] from further treatment.

[A]ccording to table 5 of the social security impairment tables he should be allocated 20 points as he he [sic] has sever [sic] difficulty interacting with others, limited social contacts, can not [sic] travel alone, and he will be unable to attend any regular work or study or training.

...

He is forgetfull [sic] and can not [sic] concentrate on a task or duty moe [sic] than 10 minutes. This condition will impair his function for the rest of [his] life.[11]

1. Mr Kasim Abaie (registered psychologist) provided reports dated 12 March 2013, 2 April 2016 and 29 April 2017.[12] Mr Abaie reported a diagnosis of major depressive disorder and PTSD on 2 April 2016. He also noted Mr Al-Janabi has been taking antidepressant medications for a long period of time and recommended psychotherapy, antidepressant medication and support.
2. A report by Dr Ishrat Ali (consultant psychiatrist) dated 18 December 2014 diagnosed Mr Al-Janabi with an 'adjustment disorder with depression' and recommended antidepressant medication.[13] Dr Ali provided a further report on 10 March 2016, stating he had reviewed Mr Al-Janabi:

...on 24 February 2016 and he still had depressive symptoms including depressed moods, insomnia, and irritability. ...

I have started him on Pristiq 50mg a day to be increased to 200 mg.[14]

1. Having regard to the introduction to Table 5 - Mental Health Function, the Tribunal is satisfied that Dr Ali is an appropriately qualified medical practitioner.
2. Based on the evidence, the Tribunal is satisfied that Mr Al-Janabi's mental health condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. This is because one month prior to Mr Al-Janabi applying for the disability support pension, Dr Ali recommended a significant increase in Mr Al-Janabi's antidepressant medication from 50mg a day to 200 mg. As this condition was not fully treated and fully stabilised during the claim period, the Tribunal is unable to assign any points for this condition.

1. The Tribunal finds that Mr Al-Janabi's medical conditions result in a total impairment rating of 5 points. Mr Al-Janabi does not have an impairment rating of 20 or more points according to the Impairment Tables in the Act and so he does not qualify for the disability support pension.
2. As the Tribunal finds that Mr Al-Janabi did not qualify for the disability support pension during the claim period, it is not necessary to consider whether he had a continuing inability to work or whether he was "severely disabled" as set out in article 2(2) of the New Zealand Act.

1. The Tribunal affirms the decision under review.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Walsh and Dr L Bygrave, Member.

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

[3] Exhibit 1: T4, T10, T11, T17, T23 and T26.

[7] Exhibit 1: T4, T13, T17, T19, T20 and T27.

[12] Exhibit 1: T12 and T34; Exhibit 3.