Aklima Akter and Secretary, Department of Social Services

[2015] AATA 184

[2015] AATA 184   

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2961
Re	Aklima Akter
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	27 March 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – SOCIAL SECURITY – carer payment – carer allowance – child – claim by mother – congenital heart disease – evidence that medical reports not genuine –evidence of moderate developmental delay – no reliable evidence of care needs – decision under review affirmed

Legislation

Social Security Act 1991 ss 38E(3), 197B, 953(1)

Secondary Materials

Disability Care Load Assessment (Child) 2010 Determination

REASONS FOR DECISION

Senior Member J F Toohey

BACKGROUND

1. Ms Aklima Akter married Mohammad Hasan, an Australian citizen, in Bangladesh in 2009.  She arrived in Australia in December 2011 with Mr Hasan and their infant son who was born on 18 April 2011.  They have a second son who was born in Australia.

2. Mr Hasan and Ms Akter have a number of applications before the Tribunal for review of decisions concerning social security payments.  These reasons concern a claim by Ms Akter on 13 January 2014 for carer payment and carer allowance for her elder son. 

3. Ms Akter’s claim for carer payment and carer allowance for her elder son was part heard at a hearing on 14 January 2015.  At a resumed hearing on 16 March 2015, I heard evidence from her and Mr Hasan concerning her claim.  I also heard evidence from her concerning her claim for mobility allowance.  In a separate decision, I determined that she did not qualify for mobility allowance: Akter and Secretary, Department of Social Services [2015] AATA 181.

4. Mr Hasan also claimed carer payment and care allowance for their elder son.  On 22 January 2015 I determined that he did not qualify for either payment: Hasan and Secretary, Department of Social Services [2015] AATA 31.

5. Ms Akter’s claim for carer payment and carer allowance for her elder son was in almost identical terms to that made by Mr Hasan and most of the medical reports they relied on were identical.  As a result, these written reasons are also in almost identical terms to the decision concerning Mr Hasan’s claim.

   CARER PAYMENT AND CARER ALLOWANCE

6. The legislation concerning carer payment and carer allowance is contained in the Social Security Act 1991 (the Act).

7. Carer payment is an income support payment to a person who provides constant care at home to a dependent child with a severe disability or severe medical condition.  The carer must have a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination2010 (the Determination) for caring for the child, and a treating health professional must certify in writing that, because of the disability or condition, the child will need personal care for six months or more. The provision of constant care must severely restrict the carer’s capacity to undertake paid employment: s 197B of the Act.

8. Carer allowance is a supplementary payment to a person who provides care and attention on a daily basis at home to a dependent child.  The child’s disability must be one that is declared under s 38E(3) of the Act to be a recognised disability or the carer must have a qualifying rating of intense under the Determination for caring for the child: s 953(1) of the Act. 

9. The Determination sets out the criteria to be met in order for a carer to have a qualifying rating of intense.  Schedule 1 to the Determination includes an “assessment of care load questionnaire” about the functional ability, behaviour and special care needs of the child that a person claiming carer payment or carer allowance must complete.  A second questionnaire must be completed by a treating health professional.  Schedule 3 sets out those disabilities declared to be recognised for the purposes of s 953(1).

   MS AKTER’S CLAIMS FOR CARER PAYMENT AND CARER ALLOWANCE

10. Ms Akter has lodged several claims for carer payment and carer allowance in respect of her son.  Her first claim was dated 6 November 2012.  In support of this claim she submitted:

    (i)a document purporting to be the report of an x-ray by Dr Shamsuzzaman, Associate Professor of Microbiology  at the Pan Pacific Hospital, Training and Research Institute in Dhaka dated 10 September 2011;

    (ii)a document purporting to be a report from Dr A K M Aminul Hoque, Associate Professor of Medicine at Dhaka National Medical College and Hospital, Bangladesh, dated 2 November 2011;

    (iii)two Centrelink Carer Allowance – Medical Report forms purporting to be signed by Dr Hoque on 6 November 2012; and

    (iv)a Centrelink Carer Allowance – Medical Report purporting to be signed by Dr Ahmed Elarif on 20 November 2012. 

11. Ms Akter also submitted an undated care needs assessment form which indicated her son needed “special care” and “daily care”.

12. Centrelink granted Ms Akter carer allowance and carer payment from 1 November 2012.

13. On 22 October 2013, Centrelink notified Ms Akter that her Carer Payment had been cancelled as of 1 November 2012 on the basis that she had provided fraudulent medical reports as part of her claim.

14. For reasons which are not clear, Ms Akter lodged a second claim for carer allowance and carer payment on 27 July 2013, before her payments were cancelled.  In support of this claim she provided:

    (i)a Centrelink Carer Payment and Carer Allowance Medical Report purporting to be signed by Dr George Youssef on 2 July 2013; and

    (ii)a second Carer Payment and Carer Allowance Medical Report of the same date in the same handwriting but which appears incomplete.

15. On 8 July 2013 and 11 December 2013, Ms Akter submitted revised care needs assessment questionnaires.  As set out below, the information in these forms differed from the earlier, undated form, and from each other.

16. Ms Akter lodged two further claims on 9 January 2014 and 13 January 2014.  In support of these claims she submitted:

    (i)a Centrelink Carer Payment and Carer Allowance Medical Report signed by Dr Naim Islam, general practitioner on 13 December 2013;

    (ii)a Centrelink Carer Payment and Carer Allowance Medical Report signed by Dr Terence Yoong, community paediatrician, on 12 June 2014; and

    (iii)a report of Dr Yoong dated 28 May 2014.

17. On 28 January 2014 Centrelink rejected Ms Akter’s claim for carer allowance and carer payment dated 13 January 2014.  On 23 May 2014, the Social Security Appeals Tribunal (SSAT) affirmed that decision.  Ms Akter seeks review of the SSAT’s decision.

18. The basis of Ms Akter’s claim was that her son suffered from congenital heart disease which rendered him almost entirely dependent for all his care needs.  The medical reports purported to be provided by Drs Elarif, Hoque, and Youssef in support of the application identified the child’s disability as congenital heart disease.  The report of Dr Islam also identified the child’s disability as congenital heart disease.  Dr Yoong described the child’s disability as “moderate global development delay”. 

    SUMMARY OF DECISION

19. For the reasons set out below, I am not satisfied that Ms Akter’s elder son has congenital heart disease.  I find that the medical reports in support of her claim have been fabricated.

20. I am not satisfied that the care needs assessments form submitted by Ms Akter reflect the child’s true needs.

21. I accept that the child has moderate developmental delay but I am not satisfied that he has a severe disability or severe medical condition for the purposes of the Determination.  I am not satisfied that Ms Akter provides him with constant care by reason of any disability and nor am I satisfied that she provides him with care that would qualify for a rating of intense.

    DOCTORS’ EVIDENCE CONCERNING MEDICAL REPORTS

22. At the hearing on 14 January 2015, Dr Elarif, Dr Islam and Dr Youseff gave evidence by telephone about documents submitted by Ms Akter and Mr Hasan in support of their various claims for payments.  Dr Elarif and Dr Youseff also provided written statements of their evidence.

23. Dr Elarif gave evidence that Ms Akter and her son were his patients between about July 2012 and January 2013 but he did not complete the report dated 20 November 2012 concerning her son; he did not record “congenital heart disease” on that form; a stamp showing his name and the address of his practice resembles the stamp he uses but he did not place it on the document; and the signature at the end of the document was not made by him.  Dr Elarif said at no time did he recognise any symptoms in the child that would indicate he had congenital heart disease.

24. Dr Islam gave evidence in respect of his report dated 13 December 2013 in which he referred to the child as suffering congenital heart disease.  He said he was the family’s doctor from December 2013.  When he first saw the couple’s son, he noted that a previous doctor, Dr Ayyas, had recorded a diagnosis of congenital heart disease.  Dr Islam said he was “not happy” with that diagnosis and he referred the child to cardiologist, Dr Hamid Almafragy.   Dr Islam gave evidence that he understood Ms Akter and Mr Hasan would take their son to Dr Almafragy but he had received nothing from Dr Almafragy to indicate he had seen them.

25. Dr Islam gave evidence that he based his statement that the child had congenital heart disease on information in the report from Dr Hoque.  However, on reviewing Dr Hoque’s report recently, he did not think it reflected the language and content he would expect of a doctor of Dr Hoque’s purported qualifications, and he did not think it was genuine.  On this basis, Dr Islam said, he revoked his own report.  He also believed that much of his assessment of the child’s needs as set out in his report was no longer accurate, although he stood by his assessment in that report of the child’s skills and abilities as “age appropriate”.   

26. Dr Youssef gave evidence in respect of both reports purporting to be his.  He said Ms Akter’s elder son was his patient between January 2013 and June 2013 during which time he saw him for colds, influenza and minor illnesses.  Dr Youseff said he did not complete either report dated 2 July 2013; he did not make a diagnosis of congenital heart disease; the signatures on the documents were not his; and while the stamp showing his name and the address of his practice resembles the stamp he uses, he did not place it on the documents.

27. I have no reason to doubt the doctors’ evidence.  I find the documents submitted by Ms Akter which purported to be from Dr Elarif and Dr Youseff were fabricated.  I find the report from Dr Islam is his but it was based on a document purporting to be from Dr Hoque which, for the reasons that follow, I find to be fabricated.

28. As to the reports purporting to be from Dr Hoque, the report of 2 November 2011 lists symptoms including “consume no food, loss weight, face color blue or faint, problem breathing, and x-ray report we found respiratory displace (sic)”.  They ask that the child receive “proper medical treatment by operation from Australia immediately”.  Ms Akter’s evidence before the Tribunal was that she could not recall whether her son had ever had congenital heart disease or any other heart problems, she had not noticed him have any respiratory or breathing problems, and she could not recall that he had ever fainted.  The text of the report appears to have been cut and pasted on to what may or may not be genuine letterhead, and Dr Hoque’s name is spelled differently on the letterhead (where it is spelled Haque) from in the body of the report. 

29. The Carer Payment and Carer Allowance – Medical Report forms both purport to be signed by Dr Hoque on 6 November 2012.  Each was signed by Ms Akter on the same day.  She confirmed in evidence that she has not returned to Bangladesh since arriving in Australia in December 2011.  She could not explain how she and Dr Hoque both managed to sign the reports on the same day in different countries. 

30. I am not satisfied that any of the documents purporting to be from Dr Hoque is genuine.  I find they have been fabricated.

31. The document purporting to be from Dr Shamsuzzaman of an x-ray of the child’s heart states only:

    Foetal: heart appear to be abnormal.  Found ABS.
    Comment: Found ASB or valve hole.

32. The document appears to have been copied on to what may or may not be genuine letterhead.  The language of the report is not what one would expect of a doctor of Dr Shamsuzzaman’s purported qualifications.  Given the absence of any other evidence, including from Ms Akter, to support a finding that her elder son has any heart disease, I am not satisfied this document is genuine.

    CARE NEEDS ASSESSMENT QUESTIONNAIRES

33. Copies of three care needs assessment questionnaires signed by Ms Akter in respect of her son are before the Tribunal.  One is undated, the others were signed on 8 July 2013 and 11 December 2013. 

34. In the unsigned questionnaire, Ms Akter ticked answers indicating that her son was unable to move around indoors or outdoors by himself and was completely dependent; he required assistance with chewing and swallowing; physical assistance to turn or position, three or more times each day and night; emergency medication or first aid for seizures, three or more times each month; and he had an eating disorder such as anorexia or bulimia. 

35. In the second questionnaire, Ms Akter ticked answers indicating that in addition to the special care needs included on the first form, her son required additional care including postural drainage; clearing his airways through suctioning, three or more times each day and two or more times at night; he had wounds that took more than two hours each day to dress; and he was fed by means of a tube and needed stoma care three or more times a day. On the third form, Ms Akter’s responses were modified significantly such that her son did not have most of the special care needs previously indicated but was still completely dependent in areas of functional ability to carry out everyday tasks, and he had behavioural difficulties.

36. Given the doctors’ evidence concerning the documents submitted by Ms Akter and given her own unsatisfactory evidence, I do not accept, in the absence of genuine, independent evidence, that any of the information provided by Ms Akter accurately reflects her son’s abilities or care needs, or the care she provides for him.

    MODERATE DEVELOPMENTAL DELAY

37. Information obtained by Centrelink in the course of these proceedings shows that, on 28 May 2014, Dr Douglas Thenuwara at the Croydon Child and Family Health Service provided a “Developmental Assessment report” concerning Ms Akter’s son.  He stated that the child had been seen by Dr Christine Tan, a community paediatric registrar, for formal assessment, the results of which indicated that he has “moderate global developmental delay with severe delay in language and personal-social skills” and “some autistic features”.  It appears, although it is not clear, that the child was referred for assessment by Dr Islam.

38. On 2 June 2014, Dr Yoong, a community paediatrician, completed a medical report on a Centrelink form.  He confirmed the assessment of moderate global developmental delay and stated that Ms Akter’s son had “challenging [indecipherable]”.  In relation to his “Special care needs” Dr Yoong indicated the child had none of the needs listed on the form.

39. I have no reason to doubt these reports.  I accept that Ms Akter’s son has moderate developmental delay.  However, I am not satisfied, on the information before me, that he has the degree of disability, or that Ms Akter provides a level of care that would qualify as intense, as required by the Determination. 

40. Ms Akter gave evidence that her son’s speech development is delayed and she applied for carer payment and allowance to assist with the costs of speech therapy.  There is no evidence before me to support that claim but, even allowing it is true, there is no evidence to suggest that the child’s needs, or any care that Ms Akter provides in respect of them, meet the level required by the Determination. 

    CONCLUSION

41. There is no credible information before me to support a finding that anything about the child’s disability or the care provided by Ms Akter would have qualified her for carer payment or carer allowance at the time of her claim on 13 January 2014, or since.  

42. The decision to refuse Ms Akter’s claim for carer payment and carer allowance for her son is affirmed.

43.       I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 27 March 2015

Date(s) of hearing		14 January 2015 and 16 March 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Dr Stephen Thompson, Solicitor