Assie and Secretary, Department of Social Services (Social services second review)
[2017] AATA 328
•16 March 2017
Assie and Secretary, Department of Social Services (Social services second review) [2017] AATA 328 (16 March 2017)
Division:GENERAL DIVISION
File Number(s): 2015/5134
2015/5135
Re:Rebecca Assie
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
File Number: 2015/5334
Re:Secretary, Department of Social Services
APPLICANT
AndRebecca Assie
RESPONDENT
DECISION
Tribunal:Senior Member J F Toohey
Date:16 March 2017
Place:Sydney
The Tribunal:
(i) affirms the decision to cancel Ms Assie’s DSP with effect from 17 November 2011;
(ii) affirms the decision that Ms Assie did not qualify for DSP when she applied on 7 November 2013;
(iii)sets aside the decision that Ms Assie did not have a debt to by reason of overpayment of DSP from 4 September 1990 to 27 November 2011 and substitutes the decision that she has a debt of $209,499.90 for that period.
.......................[sgd].................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – cancellation – whether applicant qualified at date of cancellation – whether applicant permanently blind – whether applicant qualified when she made new application – decision under review affirmed
SOCIAL SECURITY – Disability Support Pension – overpayment – whether applicant had debt – date of effect of adverse decision – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 ss 94(1), 95(1), 1223, 1236, 1237A, 1237AAD, Sch 1B
Social Security (Administration) Act 1999 ss 42, 80, 117, 118, Sch 2
CASES
Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066
Beadle and Director-General of Social Security [1984] AATA 176
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Groth and Secretary, Department of Social Security [1995] FCA 1708Re Ivovic and Director-General of Social Services [1981] AATA 57
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Guide to Social Security Law
REASONS FOR DECISION
Senior Member J F Toohey
16 March 2017
Introduction
Ms Rebecca Assie was granted an Invalid Pension on 4 September 1990 on the ground of permanent blindness. In November 1991, the Disability Support Pension (DSP) replaced the Invalid Pension. The change made no difference to Ms Assie’s payment.
For convenience, I will refer to the government department and the agency responsible for social security payments as “Centrelink”.
On 17 November 2011, Centrelink cancelled Ms Assie’s DSP on the ground that she did not qualify for the payment because she was not (and never had been) permanently blind. As a consequence of that decision, Centrelink determined that Ms Assie had a debt to the Commonwealth of $209,499.90 which she was required to repay in full.
On 7 November 2013, Ms Assie made a new claim for DSP. Centrelink rejected her claim on the ground that she did not qualify by reason of visual impairment, and no other conditions from which she was suffering at that time qualified her for payment.
On 4 September 2015, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal decided to:
(i)affirm the decision on 28 November 2011 to cancel Ms Assie’s DSP; and
(ii)affirm the decision on 7 November 2013 to reject her new claim.
The SSCSD decided that, notwithstanding the cancellation decision, Ms Assie did not have a debt of $209,499.90, being the amount she was paid in the period 4 September 1990 to 27 November 2011.
In these proceedings, Ms Assie seeks review of the SSCSD’s first two decisions. The Secretary seeks review of the decision that she did not have a debt.
Background
Ms Assie was born Mariam Mohammed Elali (sometimes shown as Marian Mohammed El Ali) in Lebanon in 1957. She came to Australia in 1976. She worked at an Eveready factory, packing batteries, for approximately ten years from 1976 until she married. Her husband died in 2015. They had eight children, two of whom died when young, and another who died as an adult.
On 27 August 2002, Mariam Mohammed Elali changed her name by registration to Rana Shadood (shown in some documents as Rana Chadood or Rane Shagood; the variations were possibly recorded by others in error). On 9 June 2004, she registered a further change of name, to Rebecca Assie.
Ms Assie gave evidence there was “no reason” for changing her name other than that Shadood and Assie were names on her mother’s side of the family. She claimed that, each time she changed her name by registration, she no longer used her former name. It seems improbable that a woman who was married and had several children would change her name twice for no reason but, in any event, numerous documents show that she continued to use her former names for various purposes.
Ms Assie claims she was born with severe vision impairment and had to wear thick glasses as a child. She claims that doctors in Lebanon told her parents there was nothing they could do for her and her condition was permanent. While there is no direct evidence to support her claims, it is not in dispute that Ms Assie has a problem with her eyesight. She underwent surgery for congenital cataracts in 1987 (which she claims made no difference) and there is evidence that, subsequently, she underwent laser treatment, although she disputes this.
Dr Michael Steiner, a consultant ophthalmologist who assessed Ms Assie in September 2011 and January 2016, gave evidence that she is severely short-sighted. The question is whether her condition was such as to qualify for DSP in November 2011 when her payment was cancelled, and in November 2013 when she applied again. For convenience, I will refer to these as the cancellation date and the refusal date.
Information before the Tribunal
Ms Assie has submitted documents including medical reports, and she gave oral evidence through an interpreter. Her son, Roni Elali, gave oral evidence.
The Secretary has provided the Tribunal and Ms Assie with documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975. They include: copies of Ms Assie’s original claim for DSP, the new claim in 2013 and claims for other social security payments; reports from specialists and other health care professionals; reports of Job Capacity Assessments; and Centrelink records and correspondence.
Doctor Steiner provided reports of his assessments and gave oral evidence. Dr Charbel Raad, optometrist, provided reports of assessments in November 2013 and October 2016, and gave oral evidence.
The Tribunal also has before it video footage of surveillance of Ms Assie conducted on behalf of the Secretary over several days from April 2011 to August 2011.
Much of the information before the Tribunal is at odds with the extent of visual impairment claimed by Ms Assie and puts the credibility of her claims squarely in issue. The reliability of her evidence is significant because, according to Dr Steiner and Dr Raad, the assessment of visual acuity is entirely subjective. The doctors agreed that her employment at Eveready, evidence that she subsequently worked in clerical positions, and that she held an unconditional NSW driver’s licence from 1987, are all inconsistent with impairment that would qualify for DSP. The video surveillance material raises further questions. These matters are considered in more detail below.
Relevant Legislation
A person with a visual impairment may qualify for DSP under s 94(1) or s 95(1) of the Social Security Act 1991 (the SS Act). Save for minor differences which are discussed below, these provisions were substantively the same at the cancellation date and the refusal date.
Section 94
Section 94(1) provides that a person is qualified for DSP if she or he has:
(i)an impairment rating of 20 or more points according to the Impairment Tables in the Act (signifying severe functional impact on activities involving visual function); and
(ii)a continuing inability to work as defined in the Act.
At the cancellation date, the Impairment Tables were in Schedule 1B to the Act. As of 1 January 2012 (and so at the refusal date), they are in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Both are considered below.
Section 95 - permanent blindness
Section 95(1) provides that, subject to qualifications which are not presently relevant, a person is qualified for DSP if he or she is permanently blind. The Act does not require a person who is permanently blind also to have a continuing inability to work.
At the cancellation date, Table 13 (Visual Acuity in the Better Eye) provided that:
A person meets the criteria for permanent blindness under s 95… if the corrected visual acuity is less than 6/60 on the Snellen Scale in both eyes or there is a combination of visual defects resulting in the same degree of permanent visual loss.
Table 15 (Visual Fields) provided that a person met the criteria for permanent blindness “if their field of vision is constricted to ten degrees or less of arc from central fixation in the better eye irrespective of corrected visual acuity or there is a combination of visual defects resulting in the same degree of visual impairment”.
For practical purposes, the test for permanent blindness at both relevant dates is reflected in the Guide to Social Security Law at 1.1.P.210 which provided at the refusal date that permanent blindness for the purposes of the DSP means:
·corrected visual acuity on the Snellen scale less than 6/60 in both eyes, or
·constriction to within 10 degrees or less of arc of central fixation in the better eye, irrespective of corrected visual acuity, or
·a combination of visual defects resulting in the same degree of visual impairment as that occurring in the above points.
Ms Assie’s Claim for Invalid Pension
Ms Assie claimed an invalid blind pension (as it was known) in 1990 in the name Mariam El Ali. She claimed permanent blindness due to cataracts since birth. She stated she had seen Dr Michael Silva, an ophthalmologist, on 28 July 1987 for a “cataract operation”.
In a report dated 10 July 1990, received by Centrelink on 12 July 1990, Dr Silva, stated he had been Ms Assie’s treating doctor for four years; she had bilateral pseudophobia following cataract extractions in 1986; her condition was stable; her corrected decision was 6/6 in both eyes and “N5 for near”; her “ability to work in paid employment” was affected “Not at all”. He added:
I cannot understand why this patient is applying for a pension. She has normal corrected vision for distance and near.
On 13 July 1990, Centrelink received a report from general practitioner, Dr Wadie Haddad, who stated the “blindness operation” performed by Dr Silva in 1987 “failed”, and Ms Assie’s condition was now “worse”. The Tribunal’s copy of the report is indistinct and it is not possible to read the other comments on it. The basis for Dr Haddad’s comments is not clear but it is reasonable to assume it was information provided by Ms Assie, as they do not reflect Dr Silva’s report.
On 17 July 1990, Dr C H Musgrove, a Commonwealth Medical Officer, completed a medical assessment in connection with Ms Assie’s claim for pension. He referred to Dr Haddad’s report but appears not to have had Dr Silva’s report. Dr Musgrove recorded the results of his own examination as “<6/60” in both eyes and noted “congenital cataracts operation 1987 with no functioning sight”. He described Ms Assie’s prognosis as “hopeless”.
Somewhat surprisingly, given the inconsistency in the medical reports, on 10 August 1990 a Centrelink officer determined that Ms Assie was permanently blind and she was granted the pension.
Dr Steiner’s Evidence
Assessment September 2011
Dr Steiner first assessed Ms Assie (as Mariam Elali) for Centrelink in September 2011. He commented that looking at various reports, including those referred to above, “certainly causes a puzzle”.
Dr Steiner noted reports from ophthalmologist, Dr Inder Bahr, dated 2 April 2004, who described Ms Assie’s loss as “permanent and less than 6/60 in each eye”, and from optometrist, Phuong Tran, dated 16 May 2008 which showed her best corrected visual acuity on 17 January 2008 as 6/6 in both eyes.
On his examination, Dr Steiner said, Ms Assie saw “less than 6/60 with each eye” which he said “does indeed qualify as legally blind” but, he commented, “this is a subjective assessment”. He noted she had very significant myopic degenerative changes. He reported that Ocular Coherent Tomography of her maculae showed no active maculopathy, but the left macula was “a little thinned”. He concluded that, given the appearance of the back of her eyes, there was no doubt her vision was not good, but he considered it unlikely, given the inconsistencies in the reports, that it was as bad as she made out.
Assessment January 2016
In January 2016, Dr Steiner found Ms Assie’s vision was less than 6/60 with each eye. He noted she had “myopic astigmatism in both eyes but, even with correction, she claimed she could not see the top letter of the [Snellen] chart” from a distance of one metre, that is, she claimed that her vision is less than 1/60 with each eye. Dr Steiner said:
[The Snellen chart test] is in fact entirely subjective, in the sense that a person who wished to exaggerate their vision impairment or to feign permanent blindness could simply pretend not to be able to read any letter of the Snellen chart or see the chart itself.
Dr Steiner reiterated his opinion that, from the examination of the back of Ms Assie’s eyes, there was no doubt her vision was poor, but he had “very significant doubts” that it was as bad as she made out, and his clinical impression was that she did not meet the criteria for permanent blindness.
Dr Steiner was shown the video surveillance footage taken of Ms Assie taken in April 2011. (For reasons which are not clear, the complete footage, which the investigator provided to Centrelink, is no longer available. This is discussed below.) He commented that it showed Ms Assie “striding confidently down the street in a way that was entirely inconsistent with the claimed level of visual impairment”, although he acknowledged it was impossible to tell from the video alone how good her actual vision was. He noted that it was also at odds with Ms Assie’s claim that her husband had to go everywhere with her. He also considered it “unlikely” that a person with the degree of impairment claimed by Ms Assie could use a mobile phone (which she does).
Dr Raad’s Evidence
Dr Raad saw Ms Assie in July 2012 and on a number of occasions subsequently. He prescribed sunglasses, and glasses for reading and distance. On 5 November 2013, he diagnosed bilateral deep amblyopia and assessed her visual acuity on the Snellen scale as “<6/60” in both eyes. On 18 August 2016, she had the same results on testing, and the “significant signs of distorted correction and very deep amblyopia”.
Dr Raad agreed that results on the Snellen scale are “highly dependent” on the patient. He said it “made no sense”, given her results, that Ms Assie had passed her driver’s license test twice without glasses since 1987 (see below). Nor did it make sense that she had worked for Eveready for approximately 10 years packing batteries, a task which required visual acuity of least 6/12, and any clerical work would require visual acuity greater than she claimed.
Other Medical Reports
Dr Selim
Ms Assie gave evidence that Dr A T Selim has been her general practitioner since 1980. A number of his reports are in evidence although, notably, not in connection with her original claim. On 6 September 2011, he completed a report in connection with the review of her DSP in which he identified her condition as “Bilateral aphakia, visual impairment”. He described its impact on her ability to function as “Unable to see clearly”.
The Tribunal has not had the benefit of hearing from Dr Selim but it is implausible that a treating doctor of more than 30 years would describe a permanently blind patient as “unable to see clearly”. The more probable explanation is that his statement accords with Dr Steiner’s opinion that Ms Assie’s eyesight was poor.
Dr Chau-Vo
On 6 August 2013, Dr James Chau-Vo, ophthalmic surgeon, provided a report stating, in summary, that Ms Assie had “vision less than 6/60 in one eye only and she does not meet the legal blind pension requirements” (emphasis added).
Professor Grigg
Associate Professor John Grigg, consultant ophthalmologist, saw Ms Assie for assessment in October 2013. He recorded that she “handed in her driver’s licence ten years ago” but was adamant she had never driven. He queried how she obtained a driver’s licence while “registered legally blind”. He concluded, however, that she did have poor vision, and had visual acuity of less than 6/60 in each eye.
St George Hospital discharge notes
Ms Assie was admitted to St George Hospital in August 2015 with a liver haematoma. She spent eight days in hospital and was seen as an outpatient for follow up. Her discharge notes show a background of various medical conditions but make no reference to vision impairment.
Giving evidence, Ms Assie maintained the hospital had no reason to question her eyesight because she was being treated for different conditions. I do not accept that explanation. It is improbable that notes made by hospital staff over several days, which included Ms Assie’s medical history, would make no mention of any vision impairment, in particular permanent blindness.
Dr Jabbour
On 16 September 2016, Dr James Jabbour, consultant ophthalmologist, provided a report to Dr Francis Vu (for purposes unknown) stating that Ms Assie had long standing poor vision, most likely related to myopic astigmatism and bilateral amblyopia. He concludes that, “on clinical assessment today, she meets the criteria for legal blindness”.
The basis for Dr Jabbour’s statement is not clear. It is based on an assessment that post-dates the relevant dates by at least three years. I give it no weight.
Insurance Claims, Employment and Medical Reports
The statement of reasons of the SSCSD shows that Ms Assie told that tribunal she had never worked in Australia. Dr Steiner reported that she said she had never been employed. Giving evidence in these proceedings, Ms Assie said she was employed by Eveready for ten years but otherwise strenuously denied ever being employed in Australia. This claim is at odds with evidence of her employment as Rana Shadood.
2005 claim
On 15 November 2004, Rana Shadood applied to Combined Insurance Company of Australia (CIC) for an accident insurance policy. She gave her occupation as “clark” (sic) in the building industry. She indicated her income was “$50,000 or more”.
On 20 November 2004, Rana Shadood lodged a claim for an injury sustained on the same day when she slipped in the shower at home. She gave her occupation as clerk and her employer’s name, as “[illegible] Hassan Master”.
According to a letter dated 9 May 2005, addressed “To Whom It May Concern” from Adel Dayoub (director) ATS Formwork and Construction Pty Ltd:
Mrs rana shadood (sic) of [Ms Assie’s address] worked for the above company. The date of her accident which was on the 20/11/2004 since that date mrs shadood (sic) did not perform any duties due to her back injury accident at home.
On 23 June 2005, Dr Albert Bencsik, orthopaedic surgeon, reported to CIC in connection with a claim by Rana Shadood for an injury sustained in a fall at home on 20 November 2004. He noted her occupation as clerical work, her employer as ATS Formwork, and the duration of her employment as five months. He reported:
[Her] duties were 35 hours a week sitting at a desk in front of the computer in full-time employment. Through her husband she stated this was her only occupation.
Since her accident she has been unable so return to work …
Dr Bencsik made no mention of any visual impairment.
2008 claim
On 30 January 2008, Rana Shadood applied to CIC for a sickness disability plan. She gave her occupation as secretary and her gross annual income as $60,000. She indicated she had no relevant medical condition or treatment; she was “currently of good health” and had not suffered from any complaint in the previous five years, other than flu.
On 3 March 2008, Rana Shadood lodged a claim in connection with an umbilical hernia. She gave her occupation as secretary and her employer as UMJ Kitchens.
According to a letter dated 6 June 2008 addressed “To Whom It May Concern” from Adel Dayoub of Ultra Modern Joinery Group Pty Ltd:
Mrs R Shadood has stopped working since 3rd March 2008 due to hernia condition.
On 1 July 2008, Dr John Drew, consultant general surgeon, reported to CIC in connection with the claim by Rana Shadood. He took a history that, in 2006 “she started working for UMG Group Pty Ltd as a secretary and did full-time desk work”. He noted she had not undergone any operations; “[s]he had had no serious illnesses and no serious accidents or injuries”. He made no mention of any visual impairment.
By letter dated 11 August 2008 to CIC, Dr Selim outlined her consultations since February 2006. The only mention of eyesight problem in his notes was on 29 June 2009 when he noted “blurry vision, vision disturbance, unfit for driving”. If Ms Assie’s claim (below) that she has never driven is true, one wonders why Dr Selim thought it relevant to comment on the effect on her driving. In any event, Dr Selim provided a number of other reports to CIC in connection with her claimed incapacity but made no mention of visual impairment.
Dr Simon Yarrow, general surgeon, also provided reports to CIC on 27 August 2008 and 11 March 2009 in connection with Ms Assie’s claim. He made no reference to visual impairment.
Ms Assie’s evidence
Ms Assie denies she applied for these insurance policies or made either claim. She maintains the signatures on the forms were not hers and vehemently denies ever being employed by either company.
I do not accept Ms Assie’s evidence about this. The address and date of birth on all the insurance documents are hers. I am satisfied that the signatures on the application and claim forms as Rana Shadood are hers. They are identical in appearance to the signatures on documents including her passport application, passport and driver’s licence, which she acknowledges are hers.
I have no reason to doubt that Dr Bencsik and Dr Drew saw Ms Assie (as Rana Shadood) in connection with her claims and that their reports reflect what she told them about her employment. As noted above, Dr Steiner and Dr Raad gave evidence that performance of clerical or secretarial duties is incompatible with the degree of visual impairment claimed by Ms Assie and with scores of 6/60 or less on the Snellen scale. I accept their evidence.
One of two conclusions presents itself: either Ms Assie was employed as the documents indicate, in which case she was not impaired to the degree she claims and, in particular, was not permanently blind; or she misrepresented what she was able to see when tested on the Snellen chart, in which case the tests on which she was assessed as being permanently blind are unreliable.
Driver’s licence
Ms Assie (as Mariam Elali) was issued an unrestricted driver’s licence by the NSW Roads and Traffic Authority (RTA) on 3 June 1987. Her licence was renewed or a replacement licence issued (as Rana Shadood or Rebecca Assie) on 27 February 2001, 28 August 2002, 29 August 2006, 2 July 2007 and 27 September 2007.
Ms Assie claims she has never driven a motor vehicle, and that she held a driver’s licence as a form of identity only. There is no evidence to show that she has ever driven a motor vehicle but I find her claim difficult to believe given that she has a Certificate of Australian Citizenship and a passport, and as late as June 2007, had a NSW Photo Card.
Even if I accept her explanation, it does not explain how Ms Assie passed the eyesight tests necessary to obtain unconditional driver’s licences. An application by Rana Shadood on 27 September 2007 for renewal of her licence shows she would not be wearing glasses or contact lenses when doing the eyesight test, and had no eyesight condition that might affect her driving. An application by Rana Shadood on 28 August 2002 for a replacement licence shows that she did not require glasses or contact lenses for the relevant eyesight test. Ms Assie does not dispute that those licences were issued to her.
There is no direct evidence of Ms Assie driving at any time but I find it improbable that she renewed her licence several times solely in order to have a form of identity. Even if that was so, permanent blindness cannot sensibly be reconciled with passing the necessary eyesight tests without glasses and obtaining an unconditional licence.
Other evidence
Medibank private records
Medibank Private records of benefits paid to Ms Assie show that she made claims for optical glasses and spectacle frames provided by Ms Tran in March 2010. She made further claims in September 2011 for lens and frames prescribed by Ms Tran. Between July 2012 and December 2015, Dr Raad prescribed multifocal lenses and frames on several occasions.
Ms Assie claims she finds optical glasses uncomfortable and does not like wearing them. She does not appear to have used them on any occasion when her eyesight was tested. She sometimes wears sunglasses outside to avoid glare.
It is difficult to know what to make of this evidence but the repeated prescriptions appear more consistent with poor vision than with permanent blindness.
Job Capacity Assessor’s report
According to the report of a Job Capacity Assessment on 7 November 2011, Ms Assie (as Marian El Ali) told the assessor she was unable to complete daily activities without the assistance of her husband and she was unable to drive.
Claim for carer payment
On 6 December 2012, Ms Assie lodged a claim for carer payment with Centrelink for care provided to her 15-year old daughter and her 13-year old son. She stated she had provided care for her daughter since October 1999, and for her son since October 2003.
In a Care Needs Assessment in respect of her son, Ms Assie stated she spent more than two hours per day managing wounds or dressings for the child, and an average of 60 minutes per day preparing or administering medications related to his medical condition. (There does not appear to be an equivalent form in respect of her daughter.)
Guide Dogs NSW
In a letter dated 22 January 2015 addressed “To Whom it may Concern”, Guide Dogs NSW stated that Ms Assie was assessed for orientation and mobility services on 18 April 2013; her assessment corresponded with a report from Dr Raad that she was legally blind; she was observed having difficulty travelling independently and needed assistance when walking outside; she walked slowly and was very tentative at placing her feet with evidence of “shuffling”. White cane training was recommended but it did not take place.
Ms Assie gave evidence she did not pursue further assistance from Guide Dogs NSW because she does not like using a cane and does not like dogs. The comment that she walked with difficulty “with evidence of ‘shuffling’” and was “tentative at placing her feet”, is at odds with her appearance on the surveillance video. It might be said that the assessment was undertaken two years after the video. However, Ms Assie also did not appear to have any difficulty walking into or around the hearing room at the Tribunal.
I am not satisfied that what was observed by Guide Dogs NSW in fact reflected Ms Assie’s ability to walk unassisted.
Surveillance footage
The investigator who undertook surveillance of Ms Assie on 10 separate days from March to August 2011 provided Centrelink with a video, and a report on his investigation which shows that videotape of 44.34 minutes of footage of Ms Assie and her “male companion” (whom she identified to the Tribunal as her husband) was taken on eight of those days.
For reasons which are not clear, only approximately 18 minutes of footage taken on 14 April 2011 and 29 April 2011 is now available. In these circumstances, the video footage must be approached with caution, although Ms Assie does not suggest that anything more favourable to her claims might be seen on the remaining footage.
The footage taken on 14 April 2011 and 29 April 2011 was given to Dr Steiner for comment, and he viewed it again during the Tribunal hearing. It is of limited value because mostly it shows Ms Assie as a passenger in a motor vehicle when it is not possible to conclude anything about her vision. It is relevant in that it shows her getting into the vehicle and walking some distance down a street and around a corner without assistance and without any apparent difficulty. Dr Steiner’s comments about this are above.
Did Ms Assie qualify for DSP at the Cancellation Date?
Did Ms Assie satisfy s 94?
The Secretary acknowledges that Ms Assie has an eyesight condition but not a vision impairment for the purposes of s 94(1)(a). The Secretary submits that the weight of the evidence is consistent with Ms Tran’s assessment in May 2008 of corrected visual acuity of 6/6 in each eye.
The Secretary submits that, in any event, Ms Assie’s eyesight condition was not fully diagnosed, treated and stabilised at the cancellation date, and so could not be assigned an impairment rating. Further, that she did not have a continuing inability to work.
Impairment is not defined in the Act or the Impairment Tables, but its meanings “…have in common an element of loss or abnormality in a body part or system or an element of loss or partial loss of the function of a body part or system when regard is had to what is normal”: Deputy President Forgie in Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066 at [39].
It is not in dispute that Ms Assie is very short-sighted. I am satisfied that this condition is an impairment for the purposes of s 94(1)(a). Assuming, without deciding, that it was fully diagnosed, treated and stabilised at the cancellation date, I am not satisfied that her condition rated 20 points or more on the Impairment Tables.
Table 13 was the relevant table at the cancellation date. It provided that work-related impairment in relation to a loss of visual acuity was assessed by measuring visual acuity, meaning “best corrected vision in the better eye with spectacles or contact lenses (if applicable)”. Ratings from 0 to 40 were assigned according to the degree of loss.
The Secretary submits, correctly in my view, that “best corrected vision” assumes that the subject is truthfully reporting what he or she can see on the Snellen chart. A subject’s accurate and truthful reporting of what he or she can see is critical because the test of visual acuity is entirely subjective, in the sense suggested by Dr Steiner, that anyone wishing to exaggerate their impairment can simply pretend not to be able to read some or all of the letters on the chart.
There are many reasons to doubt the truthfulness of what Ms Assie reported to examiners including Dr Steiner and Dr Raad. No plausible explanation presents itself for how Dr Silva assessed 6/6 visual acuity in both eyes in July 1990 and Dr Musgrove assessed “<6/60” in both eyes in the same month. The same can be said of Dr Bahr’s assessment of “less than 6/60 in each eye” in April 2004 and Ms Tran’s assessment of corrected visual acuity of 6/6 in each eye in May 2008.
I am not satisfied that the results recorded by Dr Musgrove, Dr Steiner, Dr Raad, Professor Grigg, or any other examiner who found Ms Assie’s visual acuity less than 6/6 in both eyes, are reliable. I accept the evidence of Dr Steiner and Dr Raad that results can, in effect, be manufactured, and Ms Assie’s are inconsistent with her work for Eveready (which is not in dispute) and inconsistent with the capacity to undertake clerical or secretarial work. I accept Dr Steiner’s evidence that the video showed Ms Assie walking confidently and unassisted in a manner entirely inconsistent with the degree of impairment she claims. It is also inconsistent with her claim that she needs her husband or someone else with her at all times.
Even if I accept Ms Assie’s claim that she has never driven, that does not explain how she passed eyesight tests in order to obtain her licence. The fact that she passed those tests and has held an unconditional driver’s licence for many years is at odds with the degree of impairment she claims.
I am satisfied that Ms Assie completed applications for insurance policies in 2005 and 2008 and made claims on those policies. If the information in the applications, and in the medical reports and employment certificates she provided in support of her claims is true, it is entirely at odds with the degree of impairment she claims. If the information is not genuine and if, for example, the employment certificates are not genuine, they put her overall credibility squarely in question.
Insofar as tests found Ms Assie’s corrected visual acuity was less than 6/6 in each eye, I am not satisfied those results are reliable and I give them no weight.
I am not satisfied that Ms Assie had a visual impairment which rated 20 points or more on the Impairment Tables at the date of cancellation.
Other conditions
On 6 September 2011, Dr Selim completed a DSP Medical Report on a Centrelink form. In addition to her visual impairment, he stated Ms Assie had lumbar disc disease which she caused persistent lower back pain and she was unable to stand up or lift heavy objects. He expected her condition would deteriorate within the next 24 months. She also had deafness and osteoarthritis, both of which were “generally well managed” and caused “minimal or limited impact on ability to function”. Giving evidence, Ms Assie agreed with Dr Selim’s assessment of these conditions.
On the limited information available to the Tribunal, I am not satisfied that Ms Assie’s lumbar disc disease was fully diagnosed, treated and stabilised at the cancellation date. Assuming her deafness and osteoarthritis were fully diagnosed, treated and stabilised, the evidence is that neither would rate more than five points on the relevant Impairment Table.
Did Ms Assie satisfy s 95?
The medical reports refer to “the criteria for legal blindness” (Dr Jabbour), the “legal blind pension requirements” (Dr Chau-Vu) and “registered legally blind” (Dr Grigg).
Dr Steiner gave evidence that, medically, the expression “totally blind” refers to a person who is unable to see at all, “legally blind” refers to a person who cannot see the top letters on the Snellen chart even with correction, or who have a very constricted field of vision, and “permanently blind” is a function of time and means a condition is untreatable.
For the purposes of s 95, a determination of permanent blindness relies on a finding that a person meets one of the three criteria, as set out above at paragraph [24]. For the reasons above, I am not satisfied that Ms Assie’s visual acuity on the Snellen scale after correction was less than 6/60 in both eyes. There is no evidence that she satisfies the second or third criteria.
Did Ms Assie qualify for DSP at the Refusal Date?
Did Ms Assie satisfy s 94?
To qualify for DSP when she made her new claim on 7 November 2013, Ms Assie had to satisfy the requirements in s 94(1) on that date or within the following 13 weeks, that is, by 6 February 2014: s 42 and Sch 2 of the Social Security (Administration) Act 1999 (the Administration Act). I will call this the claim period.
In her new claim, Ms Assie identified her disability as “severe blindness”. She did not identify any other relevant conditions. It follows that her visual impairment had to rate 20 points or more under the relevant Impairment Table for her to satisfy the first limb of the test for DSP (the second being a continuing in ability to work).
A rating of 20 points on Table 12 (Visual Function) is assigned where there is severe functional impact on activities involving visual function, meaning a person:
(a)has severe difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn; and
(b)needs to use vision aids or assistive devices other than spectacles and contact lenses for many tasks; and
(c)has severe difficulty performing many day to day activities involving vision (e.g. difficulty distinguishing between different types of food in tins or packets, seeing the level of fluid in a cup or reading aisle signs in the supermarket even when standing close to these); and
(d)either:
(i) is unable to see routine workplace, educational or training information (e.g. signs, safety information, or manuals) even when using any assistive devices or technology that they have; or
(ii) needs assistance to use public or other means of transport to travel to work, educational or community facilities even when using any assistive devices that they have (e.g. a guide dog or cane); and
(e)is unable to move around independently in unfamiliar environments.
I am not satisfied on the information before me that Ms Assie meets each of these requirements. For the reasons above, to the extent that she claims to have severe difficulty seeing things at a distance or close-up, I am not satisfied that her claims are truthful. There is no evidence that she uses vision aids or assistive devices other than spectacles or contact lenses for many tasks. She claims not to wear spectacles because they are uncomfortable, and she did not wear them at the hearing. I am not satisfied that she has severe difficulty performing many day to day activities involving vision. Although she claimed she needs assistance with all activities around the house, Ms Assie did not require assistance at the hearing and was able to read documents put before her, although admittedly with some apparent difficulty. She is seen on the video moving around independently in what may not have been unfamiliar environments; but were in public, and she had no apparent difficulty moving in and out of, and around, the hearing room.
Because I am not satisfied that Ms Assie had a visual impairment rating 20 points or more when she made her new claim, she cannot meet s 94(1). It is not necessary to determine whether she had a lesser degree of impairment or whether she had a continuing inability to work.
Did Ms Assie satisfy s 95?
For the reasons set out above, I am not satisfied that Ms Assie met the criteria for permanent blindness when she made her new claim.
The Debt
The SSCSD decided that, although Ms Assie had been overpaid, she was not required to repay the debt by reason of the operation of ss 80 and 118 of the Administration Act.
The Secretary submits, and I agree, that in arriving at that decision, the SSCSD misinterpreted the relevant provisions in the SS Act and the Administration Act.
Section 80 of the Administration Act provides:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
Section 118 of the Administration Act concerns the date of effect of adverse determinations. An adverse determination is one made under section 79, 80, 81, 81A or 82: s 117. A decision to cancel an payment is, therefore, an adverse determination for the purposes of the Act.
The day on which an adverse determination concerning DSP takes effect is worked out in accordance with s 118: s 118(1). Section 118 provides for the date of effect of an adverse determination in a range of circumstances. Unless one of those circumstances applies, the determination takes effect on the day it is made, or such later date as specified in the determination: s 118(13).
The date of effect of an adverse determination is separate from whether or not a debt arises (see below).
One of the circumstances provided for in s 118 concerns the date of effect of a cancellation or suspension where payment was as a result of a person making a false statement or misrepresentation. Section 118(8) provides:
If:
(a)a person has made a false statement or misrepresentation; and
(b)because of the false statement or misrepresentation, a social security payment has been paid to a person when it should have been cancelled or suspended;
the adverse determination takes effect on such day (which may be earlier than the day on which the determination is made) as is specified in the determination.
The SSCSD considered whether Ms Assie had been paid DSP as a result of a false statement or misrepresentation. It decided she had not. As no other provision in s 118 applied to her circumstances, the SSCSD decided that the determination to cancel her DSP took effect on 27 December 2011 and, consequently, that was the earliest date on which the debt arose. With respect, that interpretation was not correct.
A debt in relation to a social security payment arises by operation of s 1223 of the SS Act which, relevantly, provides:
(1) Subject to this section, if:
(a)a social security payment is made; and
(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
…
(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
(a)the payment was made to the person by mistake as a result of a computer error or an administrative error;
(b)the person for whose benefit the payment was intended to be made was not qualified to receive the payment;
(c)the payment was not payable;
(d)the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;
(e)the payment was made in purported compliance with a direction or authority given by the person who was entitled to obtain the benefit of the payment but the direction or authority had been revoked or withdrawn before the payment was made;
(f)the payment was intended to be made for the benefit of someone else who died before the payment was made.
Section 1223(1AB) is a non-exhaustive list of circumstances in which a person is taken not to have been entitled to obtain the benefit of a payment. A person who obtains a benefit in any of the prescribed circumstances has a debt which arises when he or she obtains that benefit.
I am satisfied, in the information before me that Ms Assie was not qualified to receive DSP at any time during which it was paid to her. It follows that a debt arises from 4 September 1990 when she obtained the benefit of the payment. The cancellation took effect later.
The Secretary submits, in the alternative, that payment was made to Ms Assie as a result of a false statement or a misrepresentation on her part and, for that reason, the debt arises from 4 September 1990. Because I am satisfied that she was not qualified to receive the payment, it is not necessary also to determine whether payment was made to her as a result of a false statement or a misrepresentation. Were it necessary to do so, I would have to consider whether it was a result of a false statement or misrepresentation on her part, or of Dr Musgrove’s report or failure to consider Dr Silva’s report, or some combination of these.
Is there any reason Ms Assie should not have to repay all or any of the debt?
A debt may be written off if the debtor has no capacity to repay, if the debt is irrecoverable at law, if the debtor’s whereabouts are unknown or if recovery is not cost effective: s 1236 of the SS Act. As there is no evidence to suggest that any of these applies in this case, there is no ground for writing off the debt, whether temporarily or permanently.
A debt must be waived where it is wholly attributable to administrative error and the debtor received the payment in good faith: s 1237A. It is arguable that payment to Ms Assie was attributable, at least in part, to administrative error in that Centrelink appears not to have taken into account Dr Silva’s report. It is clear from the date stamp on his report that Centrelink had it at the time of deciding that Ms Assie was permanently blind. However, given the weight of the evidence already referred to, I am not satisfied that she received the payment during the relevant period in good faith. There is, therefore, no requirement that the debt be waived.
Section 1237AAD of the SS Act provides that the Secretary may waive the right to recover all or part of a debt in special circumstance if 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.
A finding that a person made a false statement or false representation is separate from the question whether a debt resulted from that false statement or false representation. Leaving aside s 1237AAD(a), I am not satisfied there are “special circumstances” that make it desirable to waive any of the debt.
The meaning of the expression “special circumstances” for the purposes of the Act has been considered by the Tribunal and the courts on many occasions. It is “by its very nature incapable of precise or exhaustive definition” and contemplates circumstances that are “unusual, uncommon or exceptional”: Beadle and Director-General of Social Security[1984] AATA 176 at [12].. Other formulations are circumstances that distinguish an applicant’s case from others’ and take it “out of the usual or ordinary case”: Groth and Secretary, Department of Social Security [1995] FCA 1708 at [12].
In other cases, the Tribunal has looked to whether strict enforcement of liability would be “unjust, unreasonable or otherwise inappropriate”: Re Ivovic and Director-General of Social Services [1981] AATA 57 at [45]; and whether any injustice or unfairness would be visited upon the applicant that is not visited upon all other recipients of social security payments: Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114 at [80].
Ms Assie says she will suffer financial hardship if she has to repay the debt which is plainly very substantial. However, she gave evidence that she has a significant sum available to her in savings. There is no other reason that amounts to a special circumstance that makes it desirable to waive any of the debt.
Conclusion
For these reasons:
(i)I affirm the decision to cancel Ms Assie’s DSP with effect from 17 November 2011;
(ii)I affirm the decision that Ms Assie did not qualify for DSP when she applied on 7 November 2013;
(iii)I set aside the decision that Ms Assie did not have a debt to by reason of overpayment of DSP from 4 September 1990 to 27 November 2011 and substitute the decision that she has a debt of $209,499.90 for that period.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey
.........................[sgd]...............................................
Associate
Dated: 16 March 2017
Date(s) of hearing: 14, 15, 16 & 17 February 2017 Date final submissions received: 20 February 2017 Applicant: In person Solicitors for the Respondent: Dr S Thompson, Sparke Helmore Lawyers
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