Ali-Ahmad and Secretary, Department of Social Services (Social services second review)
[2022] AATA 2218
•5 July 2022
Ali-Ahmad and Secretary, Department of Social Services (Social services second review) [2022] AATA 2218 (5 July 2022)
Division:GENERAL DIVISION
File Number(s): 2020/1832
Re:Ali Ali-Ahmad
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:5 July 2022
Place:Sydney
The decision under review is affirmed.
....................................[sgd]...................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – whether carer payment was properly cancelled and debt should have been raised – whether applicant provided care to the care receiver for the relevant period – nature and extent of care – status and provenance of medical report – whether care amounted to “constant care” – whether decision to cancel carer payment was correct – whether Applicant was overpaid carer payment and debt should be raised – size of debt and whether debt should be waived – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 18B
Crimes (Administration of Sentences) Act 1999 (NSW) s 77
Social Security Act 1991 (Cth) ss 189, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) ss 123C, 123H
CASES
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699
Fox v Percy [2003] HCA 22
G v H [1994] HCA 48; 181 CLR 387
Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63; (1978) 1 ALD 331
Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419
Le v Commissioner of Taxation [2021] FCA 309
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 730
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 698
Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 673
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
SECONDARY MATERIALS
Administrative Appeals Tribunal General Practice Direction
Social Security Guide
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 July 2022
THE APPLICATION
The matter before the Tribunal concerns claims by Mr Ali Ali-Ahmad (the Applicant) that a decision by the Secretary, Department of Social Services (the Respondent) to cancel his Carer Payment (CP) and a further decision to recoup claimed overpayments of this benefit were made incorrectly.
In the period from 23 May 2017 to 7 December 2017 the Applicant was paid the CP in respect of care that he was providing to Mr Hikmat El-Boubli.[1]
[1] There are various spellings of Mr El-Boubli’s name, but this is the one used most frequently.
CP is provided under the provisions of section 198 of the Social Security Act 1991 (Cth) (the Act) and requires that:
(a)the person to whom the care is provided is relevantly “a disabled adult”:
(b)the person providing the care should be appropriately qualified to provide it; and
(c)the care can be properly characterised as “constant care”.
There is no dispute that Mr El-Boubli (as the care recipient) was at all relevant times a “disabled adult” nor that the Applicant was qualified to provide the care.
What however is in dispute is whether the care provided by the Applicant to Mr El-Boubli was “constant care”.
There is also no dispute that in the period from 30 November 2017 to 7 December 2017 the Applicant was not providing any form of care to Mr El-Boubli because on 30 November 2017 the Applicant was taken into custody and incarcerated in the Parklea Correctional Centre.
This leaves the question of the extent and nature of care that was provided by the Applicant to Mr El-Boubli between 23 May 2017 and 30 November 2017.
PREVIOUS DETERMINATIONS
On 23 August 2017 a decision was made to grant the Applicant CP with effect from 23 May 2017. On 26 July 2018 following further considerations by the Respondent a decision was made to raise a debt in the amount of $12,750.32 paid to the Applicant because the Respondent was satisfied that, during the period 23 May 2017 to 30 November 2017 the care provided could not be considered “constant care”.
The decision to raise a debt was subject to review by an Authorised Review Officer (ARO) of the Department who raised the debt further to $13,197.52 on 4 September 2019 on the basis that they found the Applicant had been paid CP up until 7 December 2017. That decision was subject to further review by the Social Services and Child Support Division (AAT1) of this Tribunal which itself affirmed the decision on 9 March 2020.
The Applicant sought a review of the AAT1’s decision in this Tribunal on 30 March 2020 and as at 24 February 2021 the debt in question stood at $13,398.05.
THE HEARINGS
After a series of delays occasioned by adjournments requested by and granted to the Applicant via his father (Mr Fayez Ali-Ahmed) who was his designated correspondence nominee[2] throughout and his representative in these proceedings,[3] a hearing date was fixed for 14 April 2022.
[2] See below at paragraph 40 of this decision.
[3] Throughout these proceedings, Mr Ali Ali-Ahmad has been represented in correspondence with the Tribunal and the Respondent by his father, Mr Fayez Ali-Ahmad.
Under section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) the Tribunal made an order for the Applicant to be brought before the Tribunal from his place of incarceration for an in-person hearing of his application.
Arrangements were made, again at the specific request of the Applicant’s father (as his son’s representative) for an Arabic language interpreter to be present in person and this was arranged. The Applicant also advised that Mr El-Boubli would be present to give evidence in his support while the Respondent advised that it produce certain witnesses of its own.
At approximately 4:00 pm on 13 April 2022 (the afternoon before the hearing), Mr Fayez Ali-Ahmed advised the Tribunal that he would not be present at the hearing and provided a medical certificate which stated that he was “unfit for work” from “13/4/22 to 14/4/22” (times unspecified) due to “medical conditions”.[4]
[4] Attached certificate signed by Dr N A Assad.
The Tribunal did not accept that the medical certificate was a reliable indicator of Mr Fayez Ali-Ahmed’s availability either in-person or by video conference. This was the second occasion on which Mr Fayez Ali-Ahmad had submitted a medical certificate the night before a scheduled hearing of this matter, causing the proceedings to be adjourned.
At the time of Mr Fayez Ali-Ahmed’s indication of his unavailability, the Applicant (his son) had already been transferred from the Bathurst Correctional Centre to the Silverwater Correctional Centre pending his being produced before the Tribunal at 10:00 am on 14 April 2022.
Under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) the President of the Tribunal is authorised to issue Practice Directions which go, inter alia, to the manner in which Tribunal hearings are to be conducted.
Sections 4.38 – 4.43 of the General Practice Direction (which came into effect on 1 March 2019) provides that adjournments “less than ten working days” or “on the day of a hearing” will not be granted unless there are “compelling” or “exceptional” reasons for so doing.
The Tribunal determined that, given all the arrangements in place for the hearing on 14 April 2022, and the absence of any compelling or exceptional reason, it should proceed regardless of the presence or otherwise of the Applicant’s representative. The Applicant was fully appraised of the issues before the Tribunal and was in a position to give evidence-in-chief about his application, to speak on his own behalf and to answer questions put to him by the Respondent and the Tribunal. In this respect he stood in the same shoes of many unrepresented applicants who appear in Tribunal proceedings. The Tribunal regarded it as improperly burdensome to reschedule a hearing such that the Applicant would once again be required to be transferred from Bathurst to Sydney and to otherwise disturb all the arrangements in place for the hearing to proceed. In addition, The Applicant’s family physician, Dr Hamad, who conducts a busy general practice, was scheduled to give evidence to the Tribunal on that day and there was no reason that his arrangements should be disturbed.
In the event, the Applicant’s transfer from Silverwater Correctional Centre to the Tribunal hearing was delayed so that the proceedings commenced some hours after the scheduled time. Nevertheless, the Applicant was able to participate fully in the proceedings and did not need the assistance of an interpreter.
It should also be noted that Mr El-Boubli, who the Applicant indicated would give evidence on his behalf (although not summonsed to do so) failed to attend the hearing, either in person or by video link.
As a result, on 14 April 2022 the Tribunal proceeded to take evidence from Dr Mahmoud Hamad, who has been treating Mr El-Boubli and members of his family for many years.
After Dr Hamad had given his evidence the Applicant advised the Tribunal that he was considering withdrawing his application:
“MR ALI-AHMAD: Just a quick question - yesterday I called you guys to let you know that I wanted to withdraw the appeal, and I spoke to - I think it was [redacted]- and I spoke to her on the phone and I told her I want to withdraw the appeal, and she goes, yes, she's going to do that. And then I was supposed to speak to [redacted]- someone called [redacted] - but I had got locked in, because I’m in prison - so my wife was chasing it up to withdraw the appeal. So, it's pretty much what I want to do, just withdraw it.
SENIOR MEMBER: All right, so Mr Ali-Ahmad, you're saying to me that you've given this matter some consideration, and you're thinking of withdrawing your appeal - your application?
MR ALI-AHMAD: Yes, correct.
SENIOR MEMBER: The consequence of withdrawing that application would be that the debt that has been raised against you would be taken to be a debt, and we would then have a discussion about whether any part of that debt should be waived or set aside.
MR ALI-AHMAD: How much is the debt?
SENIOR MEMBER: The debt is $13,097, isn't it?
DR THOMPSON: $13,197.52.
SENIOR MEMBER: Yes, thank you.
MR ALI-AHMAD: All right.
SENIOR MEMBER: So, now if you understand that by withdrawing your appeal it would mean that we agree that there is a debt, but then we would have a discussion about whether the debt should be waived or should be reduced?
MR ALI-AHMAD: Yes.
SENIOR MEMBER: Now, under those circumstances do you want to make a formal application to me to withdraw the appeal?
MR ALI-AHMAD: Like, what I just don't understand about this was - is El-Boubli going to be here today, or - - -
SENIOR MEMBER: No, Mr El-Boubli was supposed to be here today, but he hasn't shown up.
MR ALI-AHMAD: No, just - I want to, like, withdraw it on the grounds that - if we can work out - negotiate the outstanding amount - like, just to see what we can do to work it out.
SENIOR MEMBER: That's fine.
MR ALI-AHMAD: Yes.”[5]
[5] Transcript of hearing on 14 April 2022 at 11-12.
The Tribunal sought the position of the Respondent, represented by Dr S Thompson whose advice was to the effect that if the application were withdrawn the Respondent would seek to have it reinstated on a “public interest” ground related to the provenance of a key document in the proceedings.[6]
[6] Ibid at 13.
The Tribunal provided a short adjournment to allow the parties to confer about issues raised and, on resumption, it was advised that the Applicant intended to pursue his appeal.
“SENIOR MEMBER: Okay. So, Mr Ali-Ahmad, you want to pursue this matter.
MR ALI-AHMAD: Yes.
SENIOR MEMBER: And have the tribunal make a formal decision in the matter rather than withdraw at this stage.
MR ALI-AHMAD: Yes, correct.”[7]
[7] Ibid at 15.
The matter was then adjourned, and the hearing resumed on 14 June 2022. At the conclusion of the 14 April 2022 hearing the Applicant made a specific request that any resumed hearing be conducted by AVL (audio-visual link) from the correctional facility[8], rather than require him to be transferred from there to the Tribunal. This request was granted and on this occasion the Applicant appeared by video link from the Bathurst Correctional Centre. Unfortunately, the primitive technology available at Bathurst was such that even after delays and changes of AVL suites the hearing had to be conducted with the Applicant visible to the Tribunal but the Tribunal not visible to the Applicant although he could hear the proceedings clearly and had no objection to proceeding on that basis.[9]
[8] Idem.
[9] Transcript of hearing on 14 June 2022 at 3.
The Applicant’s representative (Mr Fayez Ali-Ahmad)[10] and the Respondent appeared in person. The hearing was assisted by the participation of an Arabic language interpreter. Under summons issued by the Tribunal, Mr El-Boubli attended in-person to give evidence.
[10] This was despite the fact that at 9:20 am on the morning of the hearing Mr Fayez Ali-Ahmad sent an email to the Tribunal stating: “Due to my medical condition, I tried to attend the hearing but I feel unwell and I will leave.”
THE ORIGINAL GRANT OF CARER PAYMENT
The Applicant told the Tribunal that he first met Mr El-Boubli shortly before he became his carer, and that Mr El-Boubli was a family friend, and more specifically, a friend of his father’s.[11]
[11] Transcript of hearing on 14 June 2022 at 15-16; also at 54.
The original grant of the CP to Mr Ali Ali-Ahmad involved a considerably complex series of interactions between the Applicant and the Department.[12] On 8 May 2017 the Applicant contacted Centrelink to enquire about arrangements to be paid CP in respect of care for Mr El-Boubli. He made a formal application for CP on 22 May 2017. Throughout June and July the Applicant provided a number of completed forms to the Department, some of which were actioned through the agency of his wife (Fatma Ali-Ahmad) who, at the time was his appointed correspondence nominee.[13]
[12] These are detailed in the Respondent’s SFIC at [8]-[15].
[13] T-documents at 325-327.
For some time prior to 22 May 2017, it appears that Mr El-Boubli was being cared for by another person[14] and on 11 July 2017 there is a departmental file note to the effect that the Applicant had now become his “new carer”.[15]
[14] Supplementary T-documents at 369.
[15] T-documents at 217.
On 23 August 2017 a decision was made to grant the Applicant CP in respect of Mr El-Boubli, backdated to 23 May 2017 (the day after care ceased to be provided by the previous carer). The Applicant was advised that he would be paid $5,520.16 in arrears and a regular fortnightly payment of $763.60.[16]
[16] Ibid at 20-22.
On 30 November 2017 the Applicant was incarcerated in Parklea Correctional Centre, but his carer payments were continued (in error) until 7 December 2017 at which time the Department became aware of his incarceration.[17] This resulted in the Department raising a debt against the Applicant in the sum of $447.19 for the period of 1 December to 7 December 2017.[18] This overpayment and resultant debt is not contested by the Applicant.
[17] T-documents at 333. The Applicant or his Nominee had a duty to inform the Department of his incarceration but failed to do so.
[18] T-documents at 221.
It appears that Mr El-Boubli’s estranged wife (Mrs Zeina El-Boubli) was in contact with the Department and disputed the decision to recognise the Applicant as the sole/primary carer for Mr El-Boubli. In any event, an Authorised Review Officer (ARO) of the Department was requested to review the decision to grant CP. The departmental file note records:
“Disputing care; other carer Zeina El-Boubli – CRN [redacted][19] and appeal S455092
…
On 23 August the department made a decision to grant Carer Payment to the customer (i.e. Mr Ali Ali-Ahmad) with effect on 23 May 2017.
On 4 April I have been asked to review the decision made on 17 August 2017[20] regarding the care of the care receiver. Based on the available evidence, I have found that another carer was providing constant care to the care receiver from 23 May 2017.
As such I cannot be satisfied customer was providing constant care for the care receiver from 23 May 2017 and he was not qualified at this time for Carer Payment under section 128 of the Act. I therefore find his Carer Payment to be cancelled with effect from 23 May 2017”.[21]
[19] Redaction by the Tribunal.
[20] Respondent’s SFIC at [23]. This was a decision regarding the care arrangements for Mr El-Boubli.
[21] T-documents at 23.
The ARO’s decision was based, in part, on conversations with Mrs El-Boubli and the family general practitioner Dr M Hamad and as a result of advice from a social worker who was in contact with both.[22]
[22] Supplementary T-documents at 376-377.
LEGISLATIVE PROVISIONS
Section 198 of the Act provides:
(1) A person is qualified for a carer payment if the requirements of this section are met.
Note: Sections 198AA, 198AB and 198AC allow the person to qualify in certain short-term circumstances where the requirements would not be met.
Constant care for disabled adult or disabled adult and a dependent child
(2) The person must personally provide constant care for:
(a) either:
(i) if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or
(ii) if not—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or
…
(3) The care must be provided in a private residence that is the home of the care receiver or care receivers.
(4) The person must be an Australian resident,
As noted above, there are three relevant factors to take into account.
Section 197(1) of the Act provides a definition as follows:
disabled adult" means a person aged 16 or more who:
(a) has a physical, intellectual or psychiatric disability; and
(b) is likely to suffer from that disability permanently or for an extended period.
Without going into all the details of Mr El-Boubli’s conditions or diagnoses, some of which are contested,[23] suffice to say that the Respondent accepts that Mr El-Boubli is a “disabled adult” for the purposes of the Act.
[23] Dr Hamad opined that Mr El-Boubli “was not an ‘invalid’ person” at 376 of the Supplementary T-documents. In the Carer Payment Claim, the Respondent indicates that Mr El-Boubli was functionally capable of undertaking 8 of 14 daily routines with no or only a slight difficulty and did not use any incontinence aids; had no problems in relation to 5 of 6 cognitive functions and did not exhibit unusual behaviour in relation to any of the 8 designated behavioural items at 347-348 of the Supplementary T-documents at 18-19. In evidence to the Tribunal the Respondent indicated that at the time he commenced providing care for Mr El-Boubli, he (Mr El-Boubli) was gainfully employed in the relatively skilled occupation of installing roof dishes/antennae for members of the Arabic community tuned so they could receive Arabic language broadcasts at 54 of the Transcript of hearing on 14 June 2022. There is also evidence that Mr El-Boubli travelled overseas on regular occasions between 2011 and 2019 unaccompanied at 434-435 of the More Further Supplementary T-documents and 87 of the Transcript of hearing on 14 June 2022.
In order to qualify for CP to be paid to his carer, Mr El-Boubli must meet the requirements of subsection 198(2) of the Act. That is, he must meet a certain threshold of disability and need for care. This assessment is made using the Adult Disability Assessment Tool (ADAT).
The Respondent’s Statement of Facts, Issues and Contentions dated 28 March 2022 (SFIC) explains:
“52. Section 198(2) of the Act requires the carer to ‘personally provide constant care’ for the disabled adult, Mr El-Boubli. In addition, the adult’s rating under the ADAT must be at least 25 including a rating from the professional questionnaire of at least 10.
53. There are further requirements in section 198(3) and (4) that the care be provided in the home of Mr El-Boubli and the carer be an Australian resident.
54. Mr Ali-Ahmad was found to satisfy the required ADAT score prescribed in section 198(2) of the Act. On 23 August 2017, he was assessed with a THP questionnaire score of 41.50 and carer score of 118.00. The scores came from a previous assessment involving another carer that had applied for payment in January 2017.”[24]
[24] T -documents at 273.
It is not immediately clear to the Tribunal how Mr Ali Ali-Ahmad meets the criteria set out in section 1.1.T.170 of the Social Security Guide, (unless he was approved under subsection 1.5(1) of the Determination). The reference to a previous THP assessment appears to be a reference to the acceptance of Mrs El-Boubli as the previous carer in question.[25] In any event, this is not a matter for Tribunal determination and it nevertheless simply must accept, for these proceedings, that the necessary requirements were fulfilled for the Applicant to be found eligible for and granted CP in the first place.
[25] Further Supplementary T-documents at 395-404.
CORRESPONDENCE NOMINEE(S)
Section 123C of the Social Security (Administration) Act 1999 (Cth) provides that, the Secretary may appoint another person to act as the “correspondence nominee” (nominee) for the purposes of the social security law. This is most usually done on the application of the original departmental customer. Section 123H of the same Act has the effect of providing that an act done by a nominee is to be taken as an act done by their nominator. Specifically subsection 123H(3) provides:
(3) An act done by a benefit recipient's correspondence nominee under this section has effect, for the purposes of the social security law (other than this Part), as if it had been done by the benefit recipient.
On 10 July 2017 a letter from the Respondent to Mr Ali Ali-Ahmad records that his wife (Fatma Ali-Ahmad) had been appointed as his correspondence nominee until 12 June 2020.[26] A departmental file note of 6 August 2018 records that a conversation took place between a departmental officer and the Applicant’s father (referred to in the note as “Faye”) in which, following a request for information by Mr Fayez Ali-Ahmad, the officer notes:
“I told Faye he is not Ali’s nominee therefore I cannot discuss the matter with him I advised him to get Ali’s nominee to speak with the dept…”[27].
[26] T-documents at 325.
[27] Ibid at 225.
It then appears that, at some stage, Mr Fayez Ali-Ahmad was appointed as his son’s correspondence nominee. There does not appear to be clear evidence before the Tribunal as to the date of this nomination. In documents provided to the AAT1 Mr Fayez Ali-Ahmed references a “Statutory Declaration from Ali Ali-Ahmed dated 13 September 2019 to give full authority for Fayez Ali-Ahmed”.[28] Regrettably, the Statutory Declaration in question provided by Mr Fayez Ali-Ahmed is unreadable.[29] However the authority to act as correspondence nominee must have been given on a date prior to September 2019 as a departmental file note of 31 July 2019 records:
“NOM, Fayez ALI-AHMAD (customer’s father), called today to query debt.”[30]
[28] Ibid at 121.
[29] Ibid at 150.
[30] Ibid at 229.
In correspondence with the Department on 5 September 2019 Mr Fayez Ali-Ahmad has signed his correspondence as “Nominee for Ali-Ahmad”.[31]
[31] Ibid at 52.
The Tribunal accepts that at the time of the original grant of CP to Mr Ali Ali-Ahmad, his wife was his correspondence nominee but that this changed and by July 2019 that role had been taken over by his father. The exact date of this transfer, although unknown, does not make any difference for subsequent proceedings. It would have been germane had no change in correspondence nominee taken place, but there is prima facie evidence, in terms of both the Applicant and his father’s claims and in departmental records that this change was affected and officially recorded at some stage between 6 August 2018 and 31 July 2019. Certainly from that date to the present all parties have accepted that Mr Fayez Ali-Ahmed has the requisite authority to act on behalf of the Applicant.
The Respondent’s SFIC (at [23]) further records that:
“On 23 April 2018, the ARO spoke to Mr Ali-Ahmad’s nominee and father (who had recently become the nominee for Mr El-Boubli). Both disagreed with the ARO findings.”
There is no other record of Mr Fayez Ali-Ahmad being appointed the nominee for his son, however on 24 February 2021 Mr Fayez Ali-Ahmad sent Dr Hamad an email headed “Telephone conversation between GP Dr Hamad and Centrelink” in which he posed a number of questions to Dr Hamad and asked him to reply before 4 March 2022. Mr Fayez Ali-Ahmad signed off the email as:
“Regard Fayez Ali Ahmad
Behalf of Hikmat El Boubli.”[32]
[32] Email from Fayez Ali-Ahmad to Dr Hamad dated 24 February 2021.
However, this statement, if correct raises several issues. In the first place it would follow that all correspondence addressed by the Department to Mr El-Boubli would also have been sent to Mr Fayez Ali-Ahmad so that, as nominee he would have been in possession of all relevant information about Mr El-Boubli’s affairs.
Secondly as his son’s nominee he would have been in the same position vis-à-vis him.
The Tribunal is not aware if this is common practice on the part of the Department to allow the same person to act as correspondence nominee for both a care provider and the related care recipient, but if it is, it strikes the Tribunal as highly undesirable as a matter of good public policy that one person should be in such a position where clearly the interests of the two persons he/she represents may be potentially conflicting.[33] Even more so is it the case in the event that one of the parties is intimately related and stands to be a financial beneficiary of decisions made by the nominee.
[33] This is recognised in the Social Security Guide in reference to the Adult Disability Assessment Tool provisions at 3.6.9.
ISSUES FOR DETERMINATION
The questions to be determined by the Tribunal are as follows:
(a)Did the Applicant provide care to Mr El-Boubli between 23 May 2017 and 30 November 2017?[34] What was the nature and extent of that care?
(b)Did that care amount to “constant care” as defined in the Act and the Social Security Guide?
(c)If not, was the decision to cancel the Respondent’s carer payment correct? If the CP was properly cancelled, was the Respondent overpaid and, as a result, has incurred a recoverable debt to the Commonwealth?
(d)If such a debt exists, how much is it and are there any statutory grounds for such a debt being waived or written off?
[34] T-documents at 220. This is the date of the Applicant’s incarceration in the Parklea Correctional Centre.
A. Nature and extent of care provided to Mr El-Boubli
In order to determine exactly what level of care was provided it is necessary to consider and evaluate a variety of claims made by various parties which are, in many material respects, entirely incompatible and utterly contradictory.
Mr Ali Ali-Ahmad
The Applicant has variously claimed that he provided care for Mr El-Boubli seven days a week,[35] although on one of his documents he gives this as six days[36] (later telling the Tribunal this was an error[37]). He particularises assistance related to various activities amounting to 42 hours per week[38] and elsewhere at eight hours each day, seven days a week[39] with “never a day off”.[40]
[35] Supplementary T-documents at 345.
[36] Ibid at 367.
[37] Transcript of hearing 14 June 2022 at 31.
[38] Supplementary T-documents at 367-368.
[39] T-documents at 6, AAT1 decision at [11].
[40] Idem, AAT1 decision at [10].
On the other hand in his Statutory Declaration of 27 October 2020 he gives a detailed Monday to Friday schedule of care activities and then notes that Mr El-Boubli “would also call me on Saturday or Sunday if he needed assistance”.
His caring activities included support for all of Mr El-Boubli’s physical needs; transporting him to medical appointments; supervising his medication; taking out the rubbish, taking clothes to the laundry; running errands and occasionally cooking for him.[41]
[41] Transcript of hearing on 14 June 2022 at 57.
He reported that Mr El-Boubli lived separately from his wife and family in an entirely separate granny flat on the family property.[42]
[42] Ibid at 24- 25.
He further asserts that there was never another person providing care to Mr El-Boubli in the period that he was providing care. In particular, he asserts that Mrs El-Boubli never provided any form of care in this period and that such care would have been prohibited in any event by the terms of an Apprehended Violence Order taken out by Mrs El-Boubli against her husband on 27 August 2017. Mr Ali Ali-Ahmad says that this AVO prevented the couple having any physical contact with each other and hence no care can have been rendered:[43]
“Dr Thompson wants to say that Zeina was the one looking after him and stuff like that, but the whole time there was an AVO. It just doesn’t make sense.
How could she be the one looking after him if there was an AVO on her?”[44]
[43] Ibid at 25.
[44] Transcript of hearing on 16 June 2022 at 103.
Hikmat El-Boubli
Mr El-Boubli has provided a significant number of statutory declarations to the Tribunal and gave evidence both before the AAT1 hearing and this Tribunal. The evidence within these is inconsistent.
He variously says that the Applicant provided 40-45 hours of care; that the Applicant was with him from 8:00 am until past 3:00 pm each day Monday to Friday but if he spent more than eight hours on any one day he would take them off his time spent the following day and that “I called him on Saturday and Sunday when I needed assistance”.[45]
[45] El-Boubli’s Statutory Declaration dated 26 October 2020.
In his evidence to the AAT1 however he said that the Applicant arrived at his home not at 8:00 am but rather after 10:00 am “every day” for “four to five hours”.[46]
[46] AAT1 decision at [13], T-documents at 6.
In oral testimony to the Tribunal Mr El-Boubli confirmed that he had a motor vehicle which he drove regularly. The evidence which he gave to the AAT1 hearing was such that the AAT1 was able to conclude that:
Mr El Boubli was capable of driving his own car to locations outside the local area, such as when he would drive himself to Mr Ali-Ahmad’s home (on days where Mr Ali-Ahmad did not attend Mr El Boubli’s home) where they would spend the day together.[47]
[47] Ibid at [15].
In his evidence to the Tribunal Mr El-Boubli stated, in relation to matters at the weekend:
“Sometimes I’ll go to him, sometimes he’ll come to me.”[48]
[48] Transcript of hearing on 14 June 2022 at 79.
However, Mr Ali Ali-Ahmad in his testimony earlier on the hearing day denied that Mr El-Boubli ever visited him at his home.[49]
[49] Ibid at 35-36.
Subsection 198(3) of the Act requires that care (for the purposes of CP) must be provided “the home of the care receiver” and so any “care” provided at Mr Ali-Ahmad’s home would not be eligible for consideration.
Mr El-Boubli also confirmed details of his numerous overseas trips from 2011 to 2019 which he undertook on his own without the assistance of a carer.[50] None of these took place in the period relevant to this application.
[50] Ibid at 87.
He asserts that at no time between 23 May 2017 and 30 November 2017 did he receive assistance or care from any other person.[51]
[51] El-Boubli Statutory Declaration dated 7 May 2018, 25 June 2018; 6 August 2019 and 11 March 2021; T-documents at 34-37.
He denies completely that his wife or his daughter ever accompanied him to any of his appointments with Dr Hamad.[52]
[52] El-Boubli Statutory Declaration dated 20 June 2021.
In relation to his wife, Mr El-Boubli, in one of his statutory declarations claims that “Mrs Zena [sic] El Boubli did not provide me with any assistance from early 2016”[53] which does not comport with details of her receiving CP on his behalf from January 2017 until at least May 2017.
[53] El-Boubli Statutory Declaration dated 25 June 2018.
On 11 July 2017 Mr El-Boubli completed a Relationship detail: Separated under one roof form in which he claimed that he and Mrs Zeina El-Boubli separated as from 1 January 2017.[54] In that form he indicated that he cared for himself in relation to any illness-related matters[55] and that he generally looked after his own needs in terms of food, household chores and daily living and that his children were not aware of the details of any separation.[56]
[54] T-documents at 55.
[55] Ibid at 59.
[56] Ibid at 62 and 64.
On 28 August 2017 Mrs Zeina El-Boubli took out a Provisional Apprehended Violence Order against her husband and the matter came before the Court the following day. It was Mr El-Boubli’s evidence that:
“DR THOMPSON: 28 August 2017.
INTERPRETER: Okay. He said he went to the police and he told them, “Where I can stay overnight?” She said, “You can stay at home.” I didn’t get the - - -
WITNESS: 2017, if 2017, I - - -
INTERPRETER: So the police allowed me to go back and stay home in the granny flat.
DR THOMPSON: So that’s 28 August 2017, it says you have to go to court, Liverpool Court the day after, 29 August 2017.
INTERPRETER: Yes, that night they told me the following, in the morning I must go.
DR THOMPSON: Did you go to court the day after?
INTERPRETER: I did.
DR THOMPSON: What happened?
INTERPRETER: The family[57] judge in the court told me there’s nothing, you can go back and stay home. I said, “I can stay in the granny flat.” She said, “No, but you can even stay at your main house.”[58]
…
DR THOMPSON: So let me get this straight. On 29 August 2017 when you went to Liverpool Court, the lady judge - Mr Interpreter - said that you could go back and live in the granny flat at 3 Sadlier Place.
WITNESS: Yes.
DR THOMPSON: Sorry, 3 Festival Street, Sadleir. 3 Festival Street, Sadlier. And Mrs El-Boubli could live in the main house.”[59]
[57] This is a transcription error, what Mr El Boubli actually said was “the female judge”.
[58] Transcript of hearing on 14 June 2022 at 82.
[59] Ibid at 83.
On 11 March 2019 the couple obtained a divorce according to Sharia law from the authorised Islamic authorities, although the document notes advice to the effect that “this was the third binding divorce initiated by Hikmat”.[60]
[60] Islamic Information and Resource Centre Certificate of Divorce dated 11 March 2019.
Mr El-Boubli told the AAT1 that when the Applicant went to jail his wife (Zeina) “resumed” caring for him.[61]
[61] AAT1 decision at [16], T-documents at 6.
At one stage during his evidence Mr El-Boubli made a further assertion that care was provided for him by his brother rather than anyone else.[62]
[62] Transcript of hearing on 14 June 2022 at 90.
Mr El-Boubli makes no mention of Mr Fayez Ali-Ahmed ever having been appointed his nominee and there is on record a letter from Mr Fayez Ali-Ahmad to Centrelink dated 20 August 2018 in which he states “Mr El Boubly [sic] and I no longer keep in contact as we had a falling out and no longer wish to interfere in his private affairs. I do not answer his phone calls.”[63]
[63] T-documents at 180.
The inherent problem with Mr El-Boubli’s evidence is that he told the Tribunal that apart from the Statutory Declaration of 11 March 2021, all the other Statutory Declarations were written out by other people and that the signature on some of them was not his.[64] Additionally he advised the Tribunal that he had mental health problems and was often unable to remember details and got confused about events. Reports by Dr Hamad and a psychologist[65] (Mr Sam Albassit) also attest to significant mental health problems suffered by Mr El Boubli.
[64] Transcript of hearing on 14 June 2022 at 71-73.
[65] Albassit Psychologist Report dated 20 October 2020.
In giving his evidence to the Tribunal Mr El-Boubli’s answers to questions were frequently incoherent and most often irrelevant to what he was asked. He was in no way a reliable or credible witness.
Zeina El-Boubli
Mrs El-Boubli did not give direct evidence to this Tribunal but it had in evidence various documents from the Department which recorded several conversations with her.
On 13 January 2017 Mrs Zeina El-Boubli lodged a claim for Carer Allowance and Carer Payment in respect of Mr Hikmat El-Boubli giving that as the date from which she commenced to provide care. It appears that this was granted and was cancelled on 17 August 2017 when the Applicant’s claim received on 22 May 2017 was determined.[66]
[66] Supplementary T-documents at 369.
On 5 April 2018 an officer of the Department spoke to Mrs El-Boubli and she advised that she:
“was and is still providing daily care to Hikmat including toileting (wiping/cleaning him after), showering/bathing, medication and monitoring his behaviour. She also does all the cooking, cleaning for him. Hikmat has been living with her and her 3 sons at home for many years and has never moved out to live or sleep anywhere else. There is no other carer for him except Zeina. She provided care to him for the whole year of 2017. No other carer comes to her home to care for Hikmat, and no other carer came last year to care for him.”[67]
[67] Ibid at 372.
The departmental notes then give extensive details of the care which Mrs El-Boubli claims she was providing, including taking Mr El-Boubli to see Dr Hamad on a regular basis.
On 12 October 2018 there was a further discussion between an officer of the Department and Mrs El-Boubli in which it is recorded that she advised that “the care receiver needed supervision 24 hours a day and did not go out of the home by himself” and that “he was unable to walk by himself”.[68]
[68] Ibid at 376.
It should be noted that these claims must be taken to be without substance as Mr El-Boubli frequently went for walks, drove his car, travelled overseas and appeared in-person in the Tribunal.
Notwithstanding this, the Department made a decision to reinstate her CP and set aside steps taken previously for recovery of overpayment.[69]
[69] Ibid at 374.
Dr M Hamad
Dr Hamad has been the general practitioner for both Mr and Mrs El-Boubli for some 25 years and knows them both well.[70] He was interviewed by an officer of the Department on 12 October 2018 and advised, inter alia that:
·he did not consider Mr El-Boubli an “invalid” person as he was capable of performing most physical activities, including showering himself, walking and eating, but his main problems were of a mental health character;
·he cautioned that “not everything that the care receiver said was true”;
·Zeina did everything in the household “that a man would normally do” as well as being continuing to be the sole carer;
·it was not exclusively Zeina who accompanied Mr El-Boubli to medical appointments with his as their “daughter was also involved in providing care”; and
·he “had never seen any non-family members taking the care receiver to see him”.[71]
[70] Ibid at 376.
[71] Supplementary T-documents at 376-377.
Mr Fayez Ali-Ahmad
Although Mr Fayez Ali-Ahmad did not give sworn testimony to either Tribunal hearing he nevertheless, as his son’s representative, he was present at both and deluged the Tribunal with hundreds of pages of documents and emails and was in regular contact with the Tribunal Registry. It should be recorded that the Tribunal hearing he was accorded the opportunity to make an opening statement and lead evidence from both the Applicant and Mr El-Boubli but declined to so, instead relying on documentation submitted. He was cautioned by the Tribunal about his behaviour in the hearing as he failed to observe requests to conduct himself properly and not to interrupt proceedings or talk over witnesses.
It is however necessary to deal with one matter in terms of a written submission, leaving aside matters in relation to a submitted medical certificate which is discussed below. In an email to the Tribunal dated 7 April 2022 Mr Fayez Ali-Ahmad writes:
“Also the invisible hands from Centrelink removed and replaced by another unread medical report related to separated woman Zeina back to 2018, also the invisible hand send me medical report end 2020 that I sent it to you by mistake… I back to your documents what you said regarding the medical report sent to you by mistake, before you said it was forged asked me how I received. If it’s forged was by the invisible hands from Centrelink… Centrelink invisible hand forged the Medical report and you blame my self and Mr El Boubli, what you said (fraud undoes all) you must agree to take the Debt of Mr Ali Ali Ahmad.”
The Tribunal records this for the sole purpose of making it clear that there is no substance whatsoever in an outrageous claim that Centrelink was responsible for the forgery of an important document in these proceedings.
The manifest inconsistencies in the evidence of Messrs Ali and Fayez Ali-Ahmad, Mr and Mrs El-Boubli are such as to lead to an obvious conclusion that none of them should be taken at face value and none of the claims accepted in the absence of independent corroboration.[72]
[72] The Tribunal notes that the Applicant has submitted a number of Statutory Declarations by friends of either Mr Fayez Ali-Ahmad or Mr El-Boubli in which they state that they were told by Mr El-Boubli that Mr Ali Ali-Ahmad was his carer. These are all hearsay; the providers were not called as witnesses. Their text is formulaic and the Tribunal places no weight upon any of them.
The only unimpeachable evidence is that of Dr Hamad.
Answer to Question (A)
All this in turn leads to a conclusion that there is no way of determining with a sufficient degree of precision exactly what support, indeed if any, was provided by Mr Ali Ali-Ahmad to Mr El-Boubli. Even the accounts of these two gentlemen are irreconcilable as to the hours of care allegedly involved, the location of that care and the nature of the care itself. This is, of course, further complicated by the SA332(a) form filed by the Applicant, which will be discussed below.
Credibility and the SA332(a) Form
Where matters of personal credibility, honesty and truthfulness are central to a matter before the Tribunal it is often problematic for assessments to be made when key personnel are not physically present before the Tribunal and reliance is placed exclusively on means of electronic communication which are often unsatisfactory and frequently interrupted.
As Logan J said in Le, decision-making may be compromised where:
[t]he hearing (may) be conducted by the impersonalising, technologically capricious, audio-visual medium of Microsoft Team, rather than by the superior means of an appearance in person in the courtroom.[73]
[73] Le v Commissioner of Taxation [2021] FCA 309 at [9].
It was in order to allow the Tribunal to get some better sense of the personal credibility of key participants that it ordered that the Applicant appear in person at least at the first hearing; that it be made clear to the Applicant’s father that his repeated requests for adjournment “for a medical condition” would not be granted indefinitely and that Mr El-Boubli was summonsed to appear by the Tribunal.
This follows the observation by Fisher J in Georges and Minister for Immigration and Ethnic Affairs that:
[I] had the opportunity of observing the applicant …. during the taking of evidence and this is a crucially important advantage not available to the Minister and the Secretary.[74]
[74] [1978] AATA 63; (1978) 1 ALD 331 at 334.
On the other hand, there is a clear warning from the High Court that:
30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. [75]
[75] Fox v Percy [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ. Footnotes omitted.
Similarly, Lee J said in SZTFQ:[76]
The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court observed “an assessment of credibility is not necessarily linear”.
[76] SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]. Citations omitted.
In this instance, the credibility of the Applicant (Ali Ali-Ahmad), his father (Fayez Ali-Ahmad) and the care recipient (Hikmat El-Boubli) are all matters which have been weighed in the balance and found wanting.
The lack of credibility in their evidence (written statements and oral evidence) has been outlined above but while those credibility assessments may have been subjective on the part of the Tribunal, what is entirely objective is its finding in relation to a key document submitted to the Tribunal by Mr Fayez Ali-Ahmad.
On 10 March 2022 following an interlocutory hearing I directed that:
“On or before 18 March 2022, the Applicant file with the Tribunal and provide to the Respondent any further submissions to be relied upon at the hearing”.
In response, on 17 March 2022 Mr Fayez Ali-Ahmad submitted a Centrelink form[77] entitled Carer Payment and/or Carer Allowance Medical Report (SA332(a)). Mr Fayez Ali-Ahmad’s email of 17 March 2022 reads:
“Reference 2020/1832
Dear Sir Madam
Due to Tribunal direction dated 10 March 2022.
Copy of medical report
Regard Fayez Ali Ahmad”. [78]
[77] Such forms are downloadable from the Centrelink website.
[78] Attachment A to Respondent’s SFIC dated 28 March 2022.
That document was not only received by the Tribunal, but it was also sent to the Respondent whose representative (Dr S Thompson) replied to Mr Fayed Ali-Ahmad by email on 18 March 2022 stating “Received with thanks.”
The document in question contains, inter alia, the following:
·the name, personal details and customer reference number of Mr Hikmat El-Boubli;
·similar details for Mr Ali Ali-Ahmad;
·the signature of Mr El-Boubli dated 2017 (the day and month boxes are not completed);
·a handwritten notation in response to the question “advise the disability and/or medical condition(s) of the person being cared for” which states: “- Bipolar disorder – anxiety – major depression” and in answer to the question “what date did the disability or medical condition begin?” is written, in a different hand “2016” (again no day or month given);
·the signature of Dr Hamad above a date given, in a different hand as “2017” (no day or month shown); and
·a rubber stamp entry giving the name, address and provider number for Dr M Hamad.[79]
[79] Idem.
In giving his evidence on 14 April 2022, Dr Hamad stated as follows:
“(Dr Thompson): You will see there what looks like your signature. I say that because I've compared it with signatures on other medical reports that are definitely genuine in these proceedings. And you will see a signature above the date, 2017, with no day or month filled in, and there's your practice stamp at the bottom, Dr M Hamad?---Yes.
My question is: did you put your signature on page 7 of that document?---Okay. This was done 2017, so it's five years ago. I clearly cannot say whether I - I really can't recall the exact date or the time that I've done that, mentioning especially that I do a lot of these forms. But definitely that looks like my handwriting and my signature.
My question is: did you put your signature that looks like yours on that page 7 of the form at any stage, in particular in 2017?---In 2017 I did write two types of this form, one for his ex-wife early in the year, and around the fourth of the fifth month I did give one for him for Mr - because he changed, he wanted to have one for Mr Ali. So I did one, but whether this is the one or not, that's something I can't decide on. You probably can decide on that. But that's my signature there, and I did do one for him at that time.[80]
…
Are you satisfied that those two forms dated 20 January 2017 and 29 September 2018, both those forms are genuine?---I am satisfied, especially with that one on page 23. The full date is written, and that's my practice. I don't usually write the year only. The year only if I've got a diagnosis that I'm not quite sure when was the time of the diagnosis, so I just write the year of the diagnosis. But because this was done on a specific day, I usually write the full date under my signature. With the first form, the full date is not there, so that's why I find it strange that I don't write the full date. But I did give him a form at the time.[81]
…
Is that your handwriting on page 4 of the bundle and on page 19 of the bundle?---Yes, it is my handwriting. There's no doubt about it in my mind that it is my handwriting. The two identical, that's all. That's just a comment.
Yes. And the date under the handwriting, "Bipolar disorder, anxiety, major depression," is 2016?---Yes, that's - yes.[82]
…
Is there anything else you would like to add from your perspective as a general practitioner, not as a forensic expert, but as a general practitioner whose name appears on page 8, is there anything else you would like to add about that form on pages 2 to 8 of the bundle now that you've had an opportunity to look at the other forms that you've signed?---Nothing specific, really, apart from just the comment that I made about the date. I usually write the full date under my signature, and you can see that in the other two forms, on the other form, which is the 2018 form, but not on this one. That’s all I can say to you.”[83]
[80] Transcript of hearing on 14 April 2022 at 6.
[81] Ibid at 36-43.
[82] Ibid at 7.
[83] Idem.
It is therefore not in doubt that the written diagnosis and the signature are those of Dr Hamad, that the rubber stamp is one provided through his agency and that he completed a form at some stage which he gave to Mr El-Boubli. It is also clear that it was Dr Hamad’s practice to date fully any documents he signed. This is confirmed by reference to a signed and fully dated similar report given by Dr Hamad in reference to Mr El-Boubli being cared for by Zeina El-Boubli on 20 January 2017.[84]
[84] Attachment A to Respondent’s SFIC dated 28 March 2022 at [16].
Following the receipt of this document, at 11:07 am on 25 March 2022 the Respondent filed and served a Request for Summons to Give Evidence addressed to Dr Hamad in relation to the SA332(a) form he filed on 17 March 2022. A notification in similar terms was provided to Mr Fayez Ali-Ahmad.
Shortly after that date (8:26 pm, 27 March 2022) Mr Fayez Ali-Ahmad emailed the Tribunal requesting that the SA332(a) form which he had filed be “withdrawn” claiming that “it was sent by mistake”.[85]
[85] Email from Mr Fayez Ali-Ahmad to the Tribunal dated 27 March 2022.
The Tribunal sought the Respondent’s position on the withdrawal of the document and was advised by it that it objected to any attempt to withdraw the document from consideration by the Tribunal and indeed it proposed to rely upon it in the hearing. Moreover, were the document to be withdrawn by Mr Fayez Ali-Ahmad the Respondent reserved its position to file it in its own right as it was a document of relevance which had come into its possession.
In the event, the Tribunal determined that the document would remain in evidence and, at the hearing on 14 June 2022 the Applicant relied upon the document and defended its veracity and authenticity.[86]
[86] Transcript of hearing on 14 June 2022 at 20.
However, the Respondent has provided an Affidavit from Ms L J Westbury (an Assistant Director in Services Australia) dated 29 March 2022 which examines the document in question and makes the following findings:
(a)the form which has been submitted carries at the bottom of the page the reference SA332(a).2009;
(b)according the version control details of the Department this means that the form was issued in September 2020 and was in use until replaced in March 2021; and
(c)the form in question had not been issued in the year 2009 and did not exist in the year 2017.[87]
[87] Westbury Affidavit at [8]-[9].
Furthermore Ms Westbury was able to verify that a similar form in relation to the care of Mr El-Boubli was signed and fully dated by Dr Hamad on 29 September 2018 and that it was completed on a valid form in use at that time.[88]
[88] Ibid at [15].
The Respondent’s SFIC makes the claim that the details of the handwritten diagnosis and Dr Hamad’s signature were identical in all respects (including positioning within the relevant boxes) in both documents[89] and this is obvious on any even cursory examination of them.
[89] Respondent’s SFIC dated 28 March 2022 at [149].
In Rong Greenwood J stated plainly that:
An allegation of fraud is one of the most serious allegations that can be made against a person[90]
and that:
I am satisfied that the fact‑finding in a case involving express allegations of fraud needed to be precise, issue‑related and, anecdotally, made as clear as a bell. [91]
[90] Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 673 at [101].
[91] Ibid at [105]. Emphasis in original.
There can be only one conclusion drawn from this narrative, namely that the document submitted by Mr Fayez Ali-Ahmad, purporting to be a medical certificate relevant to his son’s claim for carer payments was a forgery created by cutting-and-pasting Dr Hamad’s handwritten diagnosis and signature from one valid document onto another document which was not in use by the Department at the time of its alleged creation.
The Tribunal endorses fully the statement of the Respondent that Dr Hamad had no knowledge of this and was not, in any way, party to this forgery. He was its victim.
The Respondent, in its email correspondence with the Tribunal and in oral submission advances the proposition that Mr Fayez Ali-Ahmad was aware of this when he attempted to withdraw the document after being informed[92] that Dr Hamad was being summonsed to give evidence about it in the Tribunal.
[92] Email from Dr S Thompson to this Tribunal dated 31 March 2022.
An inference is a finding of fact which the drawer of the inference bases on the existence of some other fact or facts[93] and cannot be drawn unless there are objective facts from which to draw the inference.[94]
[93] G v H [1994] HCA 48; 181 CLR 387 at 390 per Brennan and McHugh JJ.
[94] Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [87] per Spigelman CJ.
In this instance the Tribunal agrees that the inference sought to be drawn by the Respondent is well founded. Such a conclusion should come as no shock to the Applicant or his father. The Tribunal was invited to make such a finding by the Respondent and the Applicant was given adequate opportunity to challenge any assertions so made.[95]
[95] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 at 714-715;
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [29]; Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 730 at [46].
When the suggestion of forgery was put to Mr El-Boubli, his immediate reaction was to suggest the involvement of his ex-wife.[96]
[96] Transcript of hearing on 16 June 2022 at 77.
The extent to which Mr Ali Ali-Ahmad was part of this forgery is open to question in terms of his oral evidence in which he answered:
DR THOMPSON: Mr Ali-Ahmad, did you know that your father Faisal[sic] had filed that medical certificate with Centrelink on 17 March 2022 on your behalf?
WITNESS: In 2022?
DR THOMPSON: Yes.
WITNESS: So what was the question again, sorry?
DR THOMPSON: Did you know that your father had filed that medical certificate by Dr Hamad on 17 March 2022 on your behalf?
WITNESS: Yes, yes.
DR THOMPSON: And how did you know that? Did your father tell you?
WITNESS: Yes - - -
DR THOMPSON: I beg your pardon, Mr interpreter, please. How did you know that?
WITNESS: From when I spoke to him on the phone.
DR THOMPSON: And do you remember speaking to him on the phone before 17 March 2022 about it?
WITNESS: Yes, I speak to my father every day on a daily basis.
DR THOMPSON: Thank you. And did he tell you before 17 March 2022 that he intended to file that medical certificate by Dr Hamad with Centrelink? Did you believe on 17 March 2022 that the medical certificate that your father filed with the tribunal and served on Centrelink was genuine?
WITNESS: Of course.[97]
[97] Transcript of hearing on 14 June 2022 at 20.
However, regardless of that, as has been explained, since Mr Fayez Ali-Ahmad was the Applicant’s formally nominated correspondence nominee in these proceedings, it is taken that he is fully and equally responsible for the forgery being submitted in the first place and hence the attempted deception of the Respondent and the Tribunal. In this respect it may well be a matter of “the sins of the father”.
B. Constant care
It is the central point of the Respondent’s case that while accepting that Mr Ali Ali-Ahmad provided some form of care to Mr El-Boubli, this level of care was not “constant care” as required under the Act.
The Guide at 1.1.C.310 provides the following definition of “constant care”:
“A carer is said to provide constant care if they personally provide care on a daily basis for a 'significant period' during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing CP is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day”.
In Milne,[98] Senior Member McCabe examined what was meant by “constant care”. He stated:
“7. Section 198(2) of the Act says a person may be entitled to receive a carer’s payment if he or she provides “constant care” to a disabled person. The expression “constant care” is not defined in the Act. These words should be given their ordinary English meaning. “Care” may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. The requirement that the “care” be “constant” means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.”
[98]Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 698.
The care must be more than episodic or spasmodic, it must be continually recuring with some regularity, it imports a degree of incessancy.[99] It must occupy almost all of the time of the care giver such that they forfeit any opportunity to engage in any other paid activities.
[99] See reference to authorities in Respondent’s SFIC dated 28 March 2022 at [58]-[61].
As was stated in Kedwell:
Analysing the relevant decisions, the Tribunal in Re Reidy (unreported, 1986, No 2817) said that “what is required is care which is continually recurring but with some regularity rather than spasmodically. Watchful or preventative care may be part of the care and attention which recurs and may give it the character of being constant”. In a subsequent case, Re James (1986) 11 ALD 273, when the words “constant help and attendance” in the Compensation (Commonwealth Government Employees) Act 1971 were being interpreted, the Tribunal said: “It is obviously contemplated that the affected person requires significant assistance every day. This should be contrasted with the notion of regular or routine assistance.”[100]
[100] Kedwell and Secretary, Department of Social Security (1987) 13 ALD 419 at [24].
The assistance to Mr El-Boubli was not given every day, as is attested to by both himself and Mr Ali Ali-Ahmad regarding weekend arrangements.
Answer to Question (B)
Whatever the level of care was it cannot be established that it met the threshold of being “at least the equivalent of a normal working day” (per the Guide to Social Security) or being on a “more-or-less full-time basis” (per Milne) or being provided “every day” (per Kedwell). It was not “constant care” as required under the Act.
C. Was the carer payment properly cancelled and if so, was the Applicant overpaid resulting in a debt to the Commonwealth?
Answer to Question (C)
Given the findings of the Tribunal that constant care was not provided in the relevant period, the cancellation of the Applicant’s payment was correctly made.
As such, it follows that an overpayment occurred and that as a result, a recoverable debt has been incurred.
D. What is the extent of that debt and should it be recovered, or in the alternate written off or waived?
The full extent of the Applicant’s debt is not entirely clear for the following reasons:
(a)There is no dispute that he was improperly paid for the period 30 November 2017 to 7 December 2017 and that this overpayment amounted to a sum of $447.19.[101] It is not clear in the evidence before the Tribunal as to whether or not that debt has been recovered, although it appears not.
(b)On 26 July 2018 the Department calculated that the overpayment for the period 23 May 2017 to 30 November 2017 was $12,750.32.[102]
(c)As of 24 February 2021 the debt was calculated to be $13,398.05 (taken to be from 23 May 2017 to 7 December 2017) including an interest component of $200.53.[103]
(d)In the Tribunal hearing on 14 April 2022 the Respondent’s representative stated the debt to be $13,197.52.[104]
[101] T-documents at 221.
[102] Ibid at 227.
[103] Ibid at 249; Respondent’s SFIC dated 28 March 2022 at [43].
[104] Transcript of hearing on 14 April 2022 at 12; also Respondent’s SFIC dated 28 March 2022 at [194(e)].
Although there does not appear to be any direct confirmation of this fact, the Respondent’s SFIC at [191(c)] in relation to the date of debt recovery states:
“It’s already been taken into account by the Agency in writing off the debt until his (the Applicant’s) release”.
It is impossible to state when this will occur depending upon any decision for the early release of the Applicant on parole and the Tribunal has no evidence as to the date on which this may become available, let alone possibly granted.
Clearly any debt as determined from time to time is subject to increase when interest charges are added. However, in both its SFICs and in oral submissions to the Tribunal the Respondent identified the debt as being $13,197.52 and, as a result, the Tribunal determines this to be the appropriate amount.
It would not appear to be appropriate to add interest to the debt beyond this point given the Respondent’s already partial waiver of recovery of the debt to the date of the Applicant’s release.
The Act provides that debts to the Commonwealth may be written off or waived in prescribed circumstances.
1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
1237A Waiver of debt arising from error
Administrative error
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
(1A) Subsection (1) only applies if:
(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
None of the circumstances outlined in these various sections is applicable in this instance.
In relation to write-off provisions, the extract from the Transcript of 14 April 2022 quoted above indicates that the Applicant (whose whereabout are certainly known) made an offer to repay the debt in instalments and the Tribunal takes this as a clear indication of his capacity to pay.
No claim to the contrary has been advanced by the Applicant.
Section 1236 does not apply.
There can be no waiving of the debt due to “administrative error” as no such error has been shown. The outrageous claims of Mr Fayez Ali-Ahmad about the existence of an “invisible hand” in Centrelink emanating forged documents should be dismissed summarily. Even were there to be administrative error (which there is not) it would not be the sole cause of the Applicant’s position given what has been established about the forgery of the key medical certificate, among other matters.
Section 1237A does not apply.
The issues of “special circumstances” has been dealt with extensively by this Tribunal and the Courts,[105] suffice to say that they require circumstances which are unusual, uncommon or exceptional and which distinguish an individual applicant’s position from any other in like circumstances. None is apparent in this instance and it is not unusual for social security debts to be raised against persons who are in prison or other form of detention.
[105] See references in Respondent’s SFIC dated 28 March 2022 at [181]-[190].
Given that the date of recovery has been made contingent upon the date of release of the Applicant it is possible that there will be changes in his circumstances which would warrant a revision of this debt determination and the Applicant can, if he wishes, make an application for such reconsideration at that time.
In the meantime no special circumstances have been established which would cause the non-recovery of the debt.
Section 1237AAD does not apply.
Answer to Question (D)
The Applicant had a debt to the Commonwealth of $13,197.52 which is not subject to any further increases and should be recovered as of the date of the Applicant’s release from custody.
There are no grounds for the debt to be written off or waived.
DECISION
The decision under review is affirmed.
I certify that the preceding 147 (one hundred and forty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..................................[sgd]......................................
Associate
Dated: 5 July 2022
Date(s) of hearing: 14 June 2022 Advocate for the Applicant: Mr F Ali-Ahmad Solicitors for the Respondent: Dr S Thompson, Sparke Helmore Lawyers
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