Attallah and Secretary, Department of Family and Community Services

[2004] AATA 694

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 694

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No N2003/765,

)N2003/766

GENERAL ADMINISTRATIVE DIVISION		)
Re		NOURA ATTALLAH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date30 June 2004

PlaceSydney

Decision The decisions under review are affirmed.

[sgd] Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - cancellation of disability support pension - assessment of impairment on date of cancellation - less than 20 impairment points - decision affirmed

SOCIAL SECURITY - over payment of disability support pension - failure to declare earnings in employment - unsuccessful communication between the Applicant and Centrelink - debt correctly raised - not sole administrative error - debt cannot be written off - no special circumstances - decision affirmed

Social Security Act 1991 ss 94, 1223, 1237A, 1237AAD, Schedule 1B

Re Attallah and Secretary, Department of Family and Community Services [1999] AATA 359

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342)

Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services (1992) 111 ALR 1

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Department of Social Security v Hales (1998) 82 FCR 154

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Secretary, Department of Family and Community Services v Chamberlain (2002) 68 ALD 357

REASONS FOR DECISION

30 June 2004 Mr S. Webb, Member         

1.      By these applications Ms Noura Attallah is seeking review of two decisions of the Social Security Appeals Tribunal (“SSAT”) dated 15 April 2003 to affirm primary decisions made by authorised review officers concerning cancellation of her disability support pension on 12 August 2002 and the raising of an overpayment debt in the amount of $37,066.70 on 4 April 2002.

2.      The matters came on for hearing in Sydney on 15 June 2004.  At the hearing Ms Attallah gave oral evidence and represented herself.  The Secretary, Department of Family and Community Services (“the Respondent”) was represented by Ms S. Mantaring of Centrelink’s Service Recovery Team.  Documents were tendered and labelled at the hearing.

factual context

3.      The following material facts arise from the oral evidence given at the hearing and the documents before the Tribunal.

4.      Ms Attallah was born on 2 June 1954 and was injured in a motor vehicle accident in March 1991.  She suffered from a whiplash injury and was granted a disability support pension in January 1994.

5.      Ms Attallah has experience as a receptionist and clerical worker.  In 1995 she was employed by Star Personnel working 20 hours per week.  In 1996 she was employed on a part-time basis by Solvay Interox Pty Ltd and continued to work 20 hours per week in that employment until 19 September 1997. 

6.      On 8 September 1997 Ms Attallah’s disability support pension was purportedly cancelled.  She pursued her rights of review to this Tribunal and the matter was heard on 19 January 1999.  A decision was handed down on 27 May 1999 setting aside the cancellation decision and reinstating her disability support pension (Re Attallah and Secretary, Department of Family and Community Services [1999] AATA 359).

7.      On 13 October 1997 Centrelink sent Ms Attallah a letter stating that her total income was $18.66 and notifying her that she must inform Centrelink (T7 folio 68):

“…

If your…income increases;

If your income as shown above is incorrect;

If you start or recommence work;…”

8.      On 4 December 1997 Ms Attallah was employed by Nowra Coach Travel Pty Ltd on a casual basis, working up to “35 to 40 hours per week”.  She remained in that employment until 23 June 2000.  On 15 April 2000 Ms Attallah was employed by Salita Pty Ltd (trading as Premier Motor Services) working 35 to 40 hours per week on a casual basis until 27 May 2001.  During the period from 28 May 2001 until 17 December 2001 she was employed by Salita Pty Ltd on a full time basis.  Ms Attallah stated that she left that employment because no part time work was available.  In or about May 2002 Ms Attallah obtained permanent part time employment with Hertz working 21 hours per week which is ongoing.

9.      Ms Attallah informed Centrelink of her earnings in employment by Star Personnel and Solvay Interox Pty Ltd.  These earnings are confirmed in Centrelink letters to Ms Attallah (T4, T5 and T6).  By her own account, Ms Attallah did not inform Centrelink when she ceased working for Solvay Interox Pty Ltd.  Nor did she inform Centrelink of her subsequent earnings in the employment of Nowra Coach Travel Pty Ltd and Salita Pty Ltd.   Those earnings are quantified at T17.

10.     Following a data-matching exercise with the Australian Taxation Office, a debt was raised against Ms Attallah in the amount of $37,066.70 on 4 April 2002.  That decision was affirmed on reconsideration by an authorised review officer on 4 June 2002.  The decision was affirmed by the SSAT on 15 April 2003.

11.     Since the accident in 1991 Ms Attallah has suffered from pain in her neck that also affects her left shoulder and arm, occasionally causing pins and needles in her left hand and fingers, and radiating into her lower back.  She stated that the neck pain causes migraines from time to time and is adversely affected by stress.  She takes Indocid suppositories (100mg) once per day and Nurofen Plus to manage the pain.  Ms Attallah takes Lipitor (20mg) to manage her cholesterol levels, Thyroxine (200mcg) to stabilise her thyroid function, Stilnox (10mg) to assist with sleep and Lexapro (10mg) to reduce anxiety.  Ms Attallah gave evidence that recent blood tests indicate she suffers from Type 2 Diabetes.  Ms Attallah suffers from Allergic Rhinitis for which she takes Beconase.

12.     On 28 June 2002 Ms Attallah was assessed by Dr Janus, her treating general practitioner.  Dr Janus diagnosed her to be suffering from constant osteoarthritic neck, back and shoulder pain and severe allergic rhinitis (T28 folio 182).  He indicated that both conditions were long term and constant.  Dr Janus indicated that Ms Attallah was likely to be able to return to work for at least 30 hours per week in 12 to 24 months.

13.     Ms Attallah was examined and assessed by Dr H. Brown of Health Services Australia on 5 August 2002.  Dr Brown reported (T31 folio 205):

“Her main medical condition is neck/back pain with moderate symptoms but minor restriction of movement.  She also has intermittent L shoulder pain with mild interference manual handling.  In addition she has allergic rhinitis and is currently being investigated for shortness of breath.

Her impairment rating is 10%.  She is fit to work 21 hours per week and future fitness for full time employment will depend on investigation of her temporary condition.”

Dr Brown indicated that Ms Attallah was likely to be able to return to work at least 30 hours per week in 6 to 12 months.

14.     On 12 August 2002 Ms Attallah’s disability support pension was cancelled “because you are able to work full-time” (T27 folio 179). 

15.     On 17 September 2002 Dr R. Janus, Ms Attallah’s treating general practitioner, certified her to be suffering from (T34 folio 210):

“Cervical spondylosis / Headaches / Sinusitis / Back Pain / Shoulder Pain”

Dr Janus indicated that Ms Attallah was fit to work more than 8 hours per week but was unfit for work from 17 September 2002 until 17 December 2002.  Subsequently, on 17 October 2002, an authorised review officer record of telephone interview reports Dr Janus’ opinion that Ms Attallah’s neck and back pain “should attract between a 15 to 20 point rating” and that “in the long term [21 hours per week] is all Ms Attallah could probably work” (T39 folio 216/217).  Dr Janus was not called to give evidence so those attributed comments could not properly be tested.

16.     On 18 October 2002 an authorised review officer affirmed the decision to cancel Ms Attallah’s disability support pension on the basis that her impairments did not warrant a rating of at least 20 impairment points (T41).  That decision was subsequently affirmed by the SSAT on 15 April 2003.

17.     Ms Attallah’s father died in May 1997.  Her mother suffered a number of serious health problems soon thereafter and underwent heart by-pass surgery.  She suffered from insulin dependent Diabetes, lung problems and dementia prior to her death in 2004.  Ms Attallah cared for her mother during her illness and received a carer allowance from approximately 10 March 2003 until 24 March 2004. 

18.     In or about 1997 Ms Attallah moved into her mother’s house at Little Bay.  That house was sold in or about December 2002.  The proceeds of sale were used to purchase a four bedroom house in Glen Alpine, where Ms Attallah and her mother resided until her mother had a fall and moved into a nursing home in or about September 2003.  Ms Attallah inherited that unencumbered property following the death of her mother and continues to reside there with a friend. 

19.     Ms Attallah and that friend jointly purchased a house in Raby in or about 1999.  The property is held under mortgage and is rented for $270 per week.  The rental income does not cover the cost of the mortgage repayments and outgoings.  Ms Attallah is liable for 50 percent of mortgage repayments and outgoings. 

20.     Ms Attallah’s weekly earnings cover her weekly outgoings.  The friend with whom she lives does not pay rent, but pays 50 percent of the cost of food and bills.

legal principles

21.     Ms Attallah’s applications rise for consideration under the Social Security Act 1991 (“the Act”).

22. The qualification requirements for disability support pension are set out at s.94 of the Act. Essentially, to qualify a person must suffer from impairments that are fully diagnosed, treated and stabilised and warrant an rating of at least 20 impairment points under the Tables set out at Schedule 1B of the Act, and the person must have a continuing inability to work more than 30 hours per week within the next two years because of those impairments.

23.     The jurisdiction of the Tribunal in relation to the review of a cancellation decision is to determine the correct and preferable decision at the time the cancellation decision was made (see Freeman v Secretary, Department of Social Security (1988) 19 FCR 342). The Tribunal will have regard to all of the evidence before it and is not limited to the evidence that was before the primary decision maker, but must address the same question that was before the primary decision maker (see Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at par 11).

24. The Act specifies the circumstances in which a debt to the Commonwealth arises. Essentially, in this case, if an amount is paid to a person that is beyond their entitlement under the Act, that amount is a debt due to the Commonwealth (s.1223, as amended since 1997).

25. The Act recognises that flexibility may be required when applying the debt recovery provisions in certain circumstances that may arise. Provision is made to waive a debt, in whole or in part, in cases in which the debt, or a proportion thereof, arose solely because of error in the Commonwealth (s.1237A). The Act provides discretion in the Secretary, or in those shoes this Tribunal, to waive all or part of a debt if it is appropriate to do so in the special circumstances of the case (s.1237AAD). Provision is also made to write off a debt in certain circumstances that do not apply here (s.1236).

26.     The meaning of the term “special circumstances” has been considered in the past by Courts and Tribunals.  Essentially, without limiting the meaning of the term, “special circumstances” are circumstances that are “unusual, uncommon or exceptional”, being possessed of “a particular quality of unusualness that permits them to be described as special” (Re Beadle and Director-General of Social Security (1984) 6 ALD 1). French J said in Department of Social Security v Hales (1998) 82 FCR 154 at 162:

“The evident purpose of s1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt.  It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words.  It may be that there will be a few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship.  It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship.  But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.”

Kiefel J said in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545:

“The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case (at ALR 229;  ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case.  That was, I consider, the only enquiry to be undertaken in this case.  It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.”

issues

27.     Ms Attallah does not dispute the existence or the amount of the debt that has been raised in this matter.  The issue in relation to that debt is whether the correct and preferable decision is that it should be waived in whole or in part.

28.     It is also in issue whether the decision to cancel Ms Attallah’s disability support pension on 12 August 2002, as affirmed by the SSAT, was the correct and preferable decision at that time.

summary findings

29.      Ms Attallah was paid disability support pension during the period from 11 December 1997 to 2001 (“the debt period”).

30.     Ms Attallah was employed by:

(a)Nowra Coach Travel Pty Ltd from 4 December 1997 to 23 June 2000 working up to 40 hours per week;

(b)Salita Pty Ltd from 15 April 2000 to 17 December 2001 working up to 40 hours per week; and

(c)Hertz from May 2002 working 21 hours per week.

31. During the debt period, Ms Attallah failed to inform Centrelink of her earnings in employment in consequence of which she was overpaid an amount of $37,066.70. That amount is a debt due to the Commonwealth pursuant to s.1223 of the Act.

32. The debt did not arise solely because of administrative error in the Commonwealth and cannot be waived pursuant to s.1237A of the Act.

33.     The circumstances pertaining in Ms Attallah’s case do not constitute special circumstances that make it desirable to waive her debt to the Commonwealth.

34. On 12 August 2002 Ms Attallah suffered from impairments that warranted a rating of 15 impairment points under the Tables set out at Schedule 1B of the Act.

decision

35.      In the circumstances it is not appropriate to waive all or part of Ms Attallah’s debt to the Commonwealth.  On 12 August 2002 Ms Attallah was not qualified for disability support pension.

36.     It follows the decisions under review are affirmed.

reasons for the decision

37.     Making this decision I have carefully considered all of the evidence before me, the submissions of the parties, the relevant caselaw and legislation.

overpayment debt

38.     Ms Attallah did not dispute the raising of an overpayment debt in the amount of $37,066.70, nor did she dispute the amount of the debt.  I accept that the debt was correctly raised and calculated, but I have not examined the details of its calculation.

39. In Ms Attallah’s submission, part of the debt should be waived because she attempted to contact Centrelink by telephone and wrote two letters seeking information about how to inform Centrelink of her earnings. Ms Attallah gave evidence that she had declared her earnings from employment by Solvay Interox and Star Personnel to Centrelink and understood that her disability support pension rate was reduced in consequence. She agreed that she knew she was required to inform Centrelink of her earnings and income. Ms Attallah did not dispute that she received notices from Centrelink concerning her obligations and her income, but stated that she did not recall receiving a notice dated 13 October 1997. I am satisfied that she did in fact receive that notice which was a notice pursuant to either s.132 or s.133 of the Act.

40.     In Ms Attallah’s submission she attempted to contact Centrelink on two occasions by telephone after commencing her employment by Nowra Coach Travel Pty Ltd.  She was not able to recall when these telephone calls were made but stated that she wanted to find out how to inform Centrelink about her variable income from casual employment.  Her evidence was that she was transferred between Centrelink officers who could not assist her and was placed on hold.  On both occasions she said she terminated the call and hung up without speaking to anyone who could assist her.

41.     Centrelink has no record of these alleged telephone contacts.

42. I am not satisfied that two failed attempts to contact Centrelink by telephone satisfy Ms Attallah’s obligation to inform Centrelink about changes in her income in employment. It is Ms Attallah’s responsibility to ensure that she provided Centrelink with that information. The simple fact is she failed to do so and in consequence omitted to comply with a notice issued pursuant to s.133 of the Act.

43.     Ms Attallah alleges that she wrote to Centrelink on the advice of a Centrelink officer on 25 June 1999.  That letter is in evidence (T9 folio 73).  It is addressed to the street address of the Maroubra Centrelink office and Ms Attallah asserts that she posted the letter.  In the letter Ms Attallah states:

“Following numerous attempts over the phone, I was finally advised by one of your employee [sic] to write directly to your Department regarding my Disability Support Pension (DSP) as to be able to advise that I had found part-time/casual work and would give it a trial period in view of my condition.  I believe your Department would need to adjust my DSP.

As my salary as part-time/casual would vary from week to week, please advise by return mail the best procedure I need to take.”

I note that the letter does not set out any information about Ms Attallah’s employment or income details at that time.  Nor does it state that she had been earning in employment since 4 December 1997, referring instead to giving the work “a trial period”.  At the date of the letter, that trial period would have been of approximately 18 months duration and, by her own account, Ms Attallah was working up to 40 hours per week at that time.  However, I accept Ms Attallah’s evidence that she was only able to work at that rate because she was taking increased amounts of medication in accordance with the advice of her treating doctor.

44.     Ms Attallah asserts that she did not receive a reply to her letter.  Ms Attallah asserts that she subsequently sent a second letter to Centrelink.  That letter is also in evidence (T10 folio 74) and was addressed to the street address of the Maroubra Centrelink office.  The letter is dated 5 May 2000 and states:

“It has now been several months since my first letter and to date I have not yet received a reply from your Department.  I am writing in a last attempt to advise your Department that I have changed my employment as working conditions in the previous were too stressful for my condition and I have found another part-time/casual work which I will try out for a while.

Your prompt and urgent attention to this matter would be appreciated and as far as I am concerned I have really taken the appropriate action to advise your Department of my employment position and I would assume that if I still do not receive any reply that I would continue to work part-time/casual without any problems.”

Ms Attallah asserts that she posted this letter but did not receive a reply.

45.     In Ms Attallah’s submission she had tried to contact Centrelink but was being ignored and could not reasonably be expected to do anything else.  In her submission these circumstances should be considered special circumstances on which basis 50 percent of her debt should be waived.  I do not agree.

46.     The evidence is that Ms Attallah made two or more telephone calls to Centrelink using a general enquiry number but hung up while on hold before obtaining information about how best to report her weekly income from part time casual employment.  18 months after commencing that employment she wrote a letter addressed to the Maroubra office of Centrelink, but did not inform Centrelink of the details of her employment and earnings.  Having not received a reply to that letter she wrote a second letter almost 1 year later, but still did not inform Centrelink of the details of her earnings in employment.

47. I am satisfied that Ms Attallah knew that she was required to inform Centrelink about her employment and earnings, but omitted to do so. I am also satisfied that Ms Attallah knew that if she informed Centrelink about her earnings in employment her disability support pension payments would be reduced. It follows that Ms Attallah was aware that by not informing Centrelink about her earnings in employment she was receiving disability support pension payments that she would not have received if she had informed Centrelink of her income as she was required to do. It was not agitated before me that Ms Attallah had knowingly omitted to comply with a provision of the Act. However, on the evidence I am satisfied that is the case.

48. In the Respondent’s submission Ms Attallah’s circumstances are not special and the debt should not be waived in whole or in part under s.1237AAD. I agree with that submission.

49.     It is true that Ms Attallah suffers from medical conditions that cause impairment and discomfort, however many are those who suffer impairment and ill health.  Ms Attallah’s case cannot be distinguished on health grounds from the run of cases involving persons who are in receipt of a disability support pension but is distinguished on the basis that she was able to work up to 40 hours per week when others who are in receipt that pension are not so able.

50.     Ms Attallah, by her own account, makes ends meet each week and is not in financial hardship.  I accept her evidence in that regard and note that she and a friend share weekly living costs and jointly own an investment property.  I accept that the rental income from the investment property does not cover its costs.  That does not persuade me to conclude that Ms Attallah is in financial hardship that is in any way exceptional or unusual.  The fact is she owns the house in which she lives without encumbrance and her weekly income matches or exceeds her weekly outgoings.

51.     I accept the emotional difficulty Ms Attallah experienced following the death of her father in 1997 and the death of her mother in 2004 after an extended period of ill-health, during which Ms Attallah was required to care for her.  Those are difficult circumstances which, I note, did not prevent Ms Attallah from continuing in her employment. 

52.     It is necessary to consider all of the circumstances in order to determine whether the result of recovering Ms Attallah’s debt would be one that is unfair, unintended or unjust (see Secretary, Department of Family and Community Services v Chamberlain (2002) 68 ALD 357 and Groth v Secretary, Department of Social Security (above)). The debt recovery provisions of the Act are clearly intended to impose on a person who has been paid amounts to which they are not entitled a liability to repay such amount to the Commonwealth. That intention was eloquently elucidated by French J in Secretary, Department of Social Security v Hales (above) at pp 695-696:

“From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth. This case primarily concerns the proper construction of a section of the Social Security Act1991 (Cth) which provides for the waiver of debts where special circumstances are found to exist. There is a tension in the construction of such provisions between the needs for certainty of application and flexibility of response to the situations that may arise from time to time.”

53.     Weighing the circumstances that gave rise to the debt and the circumstances of Ms Attallah with the legitimate expectation of taxpayers that monies will be recovered from those who have received them without entitlement, I am persuaded to conclude that recovery of the debt would not be productive of anything unfair or harsh in the circumstances. 

54.     Considering all of Ms Attallah’s circumstances I am satisfied that they do not constitute special circumstances that make it desirable to waive all or part of her debt to the Commonwealth.

55. It follows that Ms Attallah’s debt to the Commonwealth cannot be waived under s.1237AAD of the Act.

56. The question of whether Ms Attallah’s debt may be written off was not agitated before me. I am satisfied on all of the evidence that the criteria applying to write off under s.1236 of the Act are not satisfied in this case.

57.     It follows that the decision to raise and recover a debt in the amount of $37,066.70 from Ms Attallah must be affirmed.

qualification for disability support pension

58.     Ms Attallah’s disability support pension was purportedly cancelled on 12 August 2002 (“the cancellation date”).  Following established authorities I must determine whether that decision was the correct and preferable decision (see Freeman v Secretary, Department of Family and Community Services above).  While considering all of the evidence before me, it follows that evidence post dating the date of the original cancellation decision will have no relevance unless it goes to the question that was before the original decision maker.

59. It is common ground that Ms Attallah suffered from a physical or psychological impairment and satisfied s.94(1)(a) of the Act on the cancellation date.

60. In order to satisfy s.94(1)(b) her impairments must warrant a rating of at least 20 impairment points under the Impairment Tables on the cancellation date. I am satisfied that they did not.

61.     Considering the evidence of Dr Janus and Dr Brown, I accept that Ms Attallah’s neck and back pain is appropriately assessed under Table 20.  I accept their evidence that Ms Attallah’s allergic rhinitis warrants a NIL rating under Table 20 and she has no significant loss of range of spinal movement that would warrant other than a NIL rating under Table 5.  I accept their conclusion that Ms Attallah’s shortness of breath was a condition that was not fully diagnosed or treated at that time. 

62.     I am satisfied on all of the relevant evidence that Ms Attallah’s neck and back pain impairment was productive of moderate to severe symptoms which are distressing but prevent few daily activities.  I note her evidence, which I accept, that she has difficulty vacuuming for long periods but is able to complete household chores and shopping, albeit by exercising care in relation to her neck and back.  I find that her neck and back impairment warrants a rating of 15 impairment points under Table 20.  It is a fact that Ms Attallah had been working for up to 40 hours per week for an extended period from 1998 to 2001.  Ms Attallah asserted that she left full-time employment because of the stress it caused and the pain she suffered.  At that time in 2001 it is a fact that she was caring for her ailing mother as well as working full time.  I accept that her pain condition is susceptible to stress which may cause an increase in symptoms and it is likely that her pain symptoms increased at that time.   It is clear that Ms Attallah experienced stress caring for her mother and was worried about her, and those concerns were factors in her leaving her employment at that time.  That is not to say Ms Attallah found it easy to work full time.  I accept that it was not.  However, that does not mean it was not possible for her to work full time because of her impairments.

63. It follows that Ms Attallah does not satisfy the requirements of s.94(1)(b) of the Act.

64. That being the case, it is not strictly necessary for me to consider whether Ms Attallah satisfies the requirements of s.94(1)(c) of the Act. However, I make the following observations. Ms Attallah demonstrated her ability to work for up to 40 hours per week in her employment by Nowra Coach Travel Pty Ltd and Salita Pty Ltd. That she ceased full time employment does not mean that she is incapable of working for more than 30 hours per week. I note that Dr Brown and Dr Janus accepted that she was capable of working 21 hours per week. I also note in Re Attallah and Secretary, Department of Family and Community Services (above) on 19 January 1999 that the Tribunal found she had a continuing inability to work for more than 30 hours per week.  However, it appears that Ms Attallah may not properly have informed the Tribunal of her employment at that time.  The Tribunal decision recorded the following:

“On 2 January 1996 [Ms Attallah] commenced work as a receptionist at Solvay Interox, a chemical company, working 20 hours per week, which she continued until 19 September 1997…

…

The Applicant said that since she ceased work she has applied for a large number of part-time positions, but she has not been successful (Exhibit D).

…

The Applicant said in cross-examination that since 18 September 1998 she has not been receiving any social security payment.  She said that previously she had received newstart allowance and was able to supply medical certificates, but then the Respondent rejected her medical certificates and cancelled her payment because she was not looking for work.”

65.     On that evidence it would appear that Ms Attallah was claiming Newstart Allowance prior to 18 September 1998 and was supplying medical certificates to Centrelink.  However, at that time she was employed by Nowra Coach Travel Pty Ltd and was working up to 40 hours per week on a casual basis.  What action should be taken in relation to that discrepancy is a matter for Centrelink. 

66.     It appears that Ms Attallah omitted to inform the Tribunal and Centrelink of her employment by Nowra Coach Travel Pty Ltd and the income it produced.   When that was put to Ms Attallah she responded by saying she was not asked about her employment during the Tribunal hearing in January 1999 and may have omitted to offer the information.  That is a proposition I find difficult to accept.  Nonetheless I cannot disturb the decision of the Tribunal that was delivered on 27 May 1999 in which Ms Attallah was found to qualify for disability support pension on 8 September 1997. 

67.     Ms Attallah’s treating general practitioner for the previous 10 years was Dr Janus.  He was not called for to give evidence before me.  I cannot ascertain whether Dr Janus knew that Ms Attallah was in fact working up to 40 hours per week in the period prior to December 2001.  However, on the basis that Ms Attallah withheld information about her employment from the Tribunal and Centrelink I cannot be certain that she was fully forthcoming about her employment activities to Dr Janus and Dr Brown who examined her prior to the decision to cancel her disability support pension in August 2002.  In evidence already referred to Dr Janus and Dr Brown indicated that while Ms Attallah was capable of working 21 hours per week when examined by them in 2002, she was expected to be able to work 30 or more hours per week within two years.  It is not clear whether they knew that Ms Attallah had in fact been working full time until December 2001.

68.     Considering all of the evidence, I am compelled to conclude, on the balance of probabilities, that Ms Attallah did not have a continuing incapacity to work at least 30 hours per week in consequence of her impairments on 12 August 2002.

69.     Complaints of pain symptomatology are not amenable to objective measure.  Doctors involved in assessing pain related conditions or impairments must rely on their clinical examinations and findings, and the information provided by the complainant or patient.  It is a difficult task that is imbued with subjectivity. 

70. Nonetheless, I am satisfied on the balance of probabilities that Ms Attallah was able to work for more than 30 hours per week on or about the date when her disability support pension was cancelled, and would not satisfy the requirements of s.94(1)(c) of the Act at that time. It follows, even if I had found that her impairments warranted a rating of at least 20 impairment points pursuant to s.94(1)(b) of the Act, she would still not qualify for a disability support pension because she had a continuing ability to work at least 30 hours per week at that time.

71.     Accordingly the decision to cancel her disability support pension on 12 August, as affirmed by the SSAT, must be affirmed.

conclusion

72.     I have carefully considered all of the evidence and am satisfied that Ms Attallah’s debt to the Commonwealth cannot be waived.  I am also satisfied, on the balance of probabilities, that Ms Attallah was not qualified for disability support pension on 12 August 2002.

73.     That being the case, both decisions under review are affirmed and the matter is remitted to the Respondent to recover the debt in an appropriate manner.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  1 April 2004
Date of Decision  30 June 2004
Representative for the Applicant               Self       
Representative for the Respondent          Susan Mantaring