Elali and Secretary, Department of Social Services (Social services second review) - [2017] AATA 329

Elali and Secretary, Department of Social Services (Social services second review) [2017] AATA 329 (15 March 2017)
Division:GENERAL DIVISION
File Number: 2015/5509
Re:Roni Elali
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member J F Toohey
Date:15 March 2017
Place:Sydney

The Tribunal affirms the decision under review.
.........................[sgd]...............................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – cancellation – intellectual disability –whether applicant’s impairment rated 20 or more points – no reliable assessment of impairment – decision under review affirmed
LEGISLATION
Social Security Act 1991, s 94(1), Sch 1B
CASES
Charrouf and Secretary, Department of Social Services [2015] AATA 38
Haje-Obeid and Secretary, Department of Social Services [2016] AATA 835
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
15 March 2017
Background

Mr Roni Elali was granted a Disability Support Pension (DSP) on 10 February 2004 when he was 16 years old. On 28 January 2015, Centrelink decided he did not qualify for DSP and cancelled his payment. On 7 October 2015, the Social Services and Child Support Division of the Administrative Appeals Tribunal decided Centrelink was correct in cancelling Mr Elali’s DSP.
Section 94(1) of the Social Security Act 1991 (the Act) provides that a person qualifies for DSP if he or she has:
(i)a physical, intellectual or psychiatric impairment, or impairments, which rate 20 or more points according to the Impairment Tables in the Act; and
(ii)a continuing inability to work as defined in the Act.
Mr Elali was granted DSP on the basis of intellectual disability. There is no dispute that he has a cognitive impairment. The question is whether, when his payment was cancelled, his impairment was such that he qualified for DSP.
The Secretary contends that Mr Elali’s impairment does not rate 20 or more points on the Impairment Tables. In particular, the Secretary submits that Mr Elali has exaggerated the degree of his impairment.
When Mr Elali was granted DSP, the Impairment Tables were in Schedule 1B to the Act. Mr Elali’s impairment was rated 40 points according to Table 10 (Intellectual Disability), the highest rating for “work-related impairment”.
As of 1 January 2012, the Impairment Tables have been in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011, and Mr Elali’s functional impairment at the date of cancellation is to be rated according to Table 9 (Intellectual Function). The Determination includes rules for assessing the degree of impairment caused by a condition and for assigning impairment ratings. According to its severity, a condition may be rated between nil and 30 points.
An impairment rating can only be given to a condition that is permanent. Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and more likely than not will persist for more than two years: paragraph 6(4).
When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified medical practitioner; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; whether treatment is still continuing or is planned in the near future; and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years: paragraph 6(5) and (6).
Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: paragraph 6(6).
Mr Elali’s Application for DSP
Mr Elali is one of eight children, two of whom died when very young and one who died as an adult. He married in 2011. He lives with his wife and their five-year-old daughter and three-year-old son. In about 2010, he worked as a security guard for a short time, and at McDonalds for a few weeks, clearing tables. He has not worked since.
Mr Elali applied for DSP on 18 January 2004. He was a full-time high school student at the time and attending a “special class”. His father, who died in 2015, helped with his application. According to his father, Mr Elali had a severe impairment, and could understand only single words. His general practitioner since 1994, Dr Selim, provided a report stating he had a long history of intellectual disability; his current symptoms were “poor concentration”; he was “unable to perform any duties”; his condition was expected to persist for more than 24 months but its effect within the next two years on his ability to function was “uncertain”.
Mr Elali’s school reports for 2003, when he was in year 9, showed that he was experiencing difficulty or was, at best, “developing”, in all subjects. A contributing factor was the number of days he had off school. His reports described him as “a pleasant and polite student” who lacked self-confidence.
At the time of his application, it appears there had been little, if any, formal assessment of Mr Elali’s capacity. There is reference in a Centrelink document to an “IQ test” in 2003 but the same document shows “No IQ test”. Centrelink referred Mr Elali to Jenny Wong, a clinical psychologist, for diagnosis and assessment. Reports of psychometric testing, including by Ms Wong, are considered below.
Reviews and Assessments
Ms Wong, April 2004
On 15 April 2004, Ms Wong undertook a psychological evaluation of Mr Elali with his father present. She administered “a comprehensive battery” of tests and questionnaires which she detailed in her report. She concluded that his general cognitive ability was in the mildly deficient range of intellectual functioning; his overall thinking and reasoning abilities were in the bottom one per cent of adults of his age; his verbal and non-verbal abilities fell within the mildly deficient range; he had a moderate delay in reading, spelling, and arithmetic, with scores below what could be expected for his age and level of formal education.
Ms Wong reported that psychometric assessment revealed a “mild global intellectual disability” and moderately delayed literacy and numeracy compared to Mr Elali’s age-peers. He demonstrated difficulties in comprehension, knowledge, reasoning and concentration. He required some assistance and supervision with daily living skills. He was unable to perform financial transactions, travel, or manage his personal affairs independently. He was fairly self-sufficient with personal care and simple domestic activities. He had no significant behavioural difficulties, but was socially underdeveloped.
Ms Wong concluded that Mr Elali would be unsuitable and cognitively unfit for work in open, competitive employment where he was likely to have problems processing new information and using appropriate problem solving strategies. She thought he could benefit from support of employment in a “sheltered workshop environment”.
Review in 2006
Centrelink reviewed Mr Elali’s qualification to DSP in 2006. He and his father were interviewed and he was determined still to qualify for DSP.
Review in 2011
A further review was undertaken in 2011. In a report to Centrelink, Dr Selim stated Mr Elali had a history of “slow learner, difficult to learn” problems at school; his ability to function was affected in that he was “unable to concentrate, unable to comprehend”.
On 26 August 2011, a registered psychologist conducted a Job Capacity Assessment for Centrelink. She reported that Mr Elali told her he had difficulty with his writing and felt his writing was illegible. Contrary to his oral evidence (below), he said he had obtained his security licence “unassisted”. He said he was unable to perform routine financial transactions such as buying items from a shop, and needed his wife’s assistance. He said he could catch public transport but would fall asleep on the train. He spent his day playing computer games on his own, watching TV, sleeping and going for walks with his wife. She helped him complete tasks such as showering, brushing his teeth and dressing, and he was unable to tell if he had put his clothes on correctly.
According to her report, Mr Elali told the assessor he had difficulty catching the lift to level 4 to his appointment with her because he could not read and was unable to identify the number ‘4’. She noted that she showed him his mobile and home phone numbers and asked him to confirm if they were correct; he read the numbers unassisted and said the home number was incorrect but the mobile number was correct.
The assessor recorded that Mr Elali said he had been seeing a psychologist, Joseph D’Silva, two to three times a week for four to five years, but he was unable to say “what kind of psychological intervention” Mr D’Silva was providing.
In a handwritten document dated 31 August 2011 addressed “To whom it may concern”, Mr D’Silva, who described himself as “Clinical Social Worker and Psychologist”, stated that Mr Elali had been visiting his clinic for two years for assistance with his intellectual disability and related symptoms of anxiety.
Mr D’Silva has provided reports in other matters before the Tribunal (see, for example, Charrouf and Secretary, Department of Social Services [2015] AATA 38 and Haje-Obeid and Secretary, Department of Social Services [2016] AATA 835). The reliability and authenticity of his reports is doubtful. Given those doubts, and given that Mr Elali was unable to tell the assessor what sort of “intervention” Mr D’Silva was providing, I give his report no weight. However, this matter was not raised with Mr Elali in these proceedings and I make no findings about his reliance on the report.
On 18 October 2011, the assessor tested Mr Elali according to the Wechsler Adult Intelligence Scale version IV test of general intelligence (WAIS-IV). She found his cognitive ability was within the extremely low range, equal to approximately less than 0.1 per cent of the same age population. He tested in the extremely low range on verbal abilities, perceptual reasoning, working memory, and processing speed.
The assessor administered the Test of Memory Malingering (TOMM) which she described as a “…50 item visual recognition test for adults that provides a systematic method to discriminate between memory-impaired patients and individuals who may not be providing an accurate representation of their abilities”. Mr Elali’s results were “lower than would be expected by chance”. She observed that he was able to provide his father’s telephone number when making the appointment with her, but he claimed he was not capable when asked to do so at the appointment. She commented:
While it is possible that Mr Elali’s results have occurred as a result of the cognitive impairment the research regarding the validity of the TOMM indicates that this is unlikely, and raises concerns on whether Mr Elali has accurately reflected his abilities during the administered TOMM.
According to the assessor, Mr Elali’s score on the TOMM raised “serious concern” about whether he was putting forth his best effort on all other tests, making it “difficult, if not impossible, to validly interpret his WAIS-IV scores”. She concluded:
Given the concerns regarding the validity of this assessment, the results should not be used for purposes of determining eligibility for payment or services.
The assessor’s report was countersigned by Geoff Troth, a clinical forensic psychologist. A subsequent report from Mr Troth, and his oral evidence to the Tribunal, is considered below.
On 25 October 2011, a senior clinical psychologist in Centrelink’s Health Professional Advisory Unit reported that the assessment on 18 October 2011 did not appear to represent a valid indicator of Mr Elali’s intellectual functioning and, for the purposes of determining his eligibility for payments, Ms Wong’s assessment in April 2004 should be accepted as a valid assessment of his intellectual capacity. Although it is not clear from the documents, it appears that Ms Wong’s assessment was considered sufficient for Mr Elali’s payment to continue.
Review in 2014
In 2014, Centrelink reviewed Mr Elali’s payment again. On 17 March 2014, Dr Aladdin Matter, general practitioner, provided a brief medical report on a standard form stating that Mr Elali had “very difficult behavioural patterns” and was “unable to be responsible”.
On 18 November 2014, Centrelink referred Mr Elali to Mr Troth for assessment. Mr Troth tested him according to the Adaptive Behaviour Assessment System test, second edition (ABAS-II), the WAIS-IV and the TOMM.
Mr Troth reported that Mr Elali “spoke clearly with good articulation” but said he could not read, write or calculate change from $20.00; initially he said he had no work experience but, when asked about his security licence, said he “tried this profession and did not like it.” He told Mr Troth he was able to use a telephone, catch public transport, eat, dress and use a toilet unassisted; his days were largely made up of sitting in front of a computer watching DVDs and listening to music; he could operate the computer unassisted.
Mr Elali’s results on the WAIS-IV indicated his verbal reasoning, concept formation, ability to sustain attention, concentrate, and exert mental control was in the extremely low range. Results on the ABAS-II showed he was in the extremely low range of functioning. His scores on the TOMM were well below chance and suggested “possible false exaggerated symptoms”. Mr Troth observed that a diagnosis of malingering should not be based exclusively on the results of the TOMM but Mr Elali’s motivation could have been influenced by his understanding of the purpose of the assessment.
Taking into account previous assessments, Mr Troth concluded that Mr Elali’s results “should be viewed with extreme caution and may not be a true reflection of his functional capacity”. He observed that Mr Elali had a security licence “which requires a level of literacy and comprehension”. He recommended Mr Elali be referred to an experienced neuropsychologist for a comprehensive assessment.
On the 7 February 2015, Dr Matter provided a further report on a standard form. He described Mr Elali’s diagnosis as “global intellectual delay disability”.
Cancellation
On 28 January 2015, Centrelink cancelled Mr Elali’s DSP. His payment continued pending the outcome of his request for internal review. On 10 March 2015, the cancellation decision was affirmed on internal review.
Dr Hepner’s report
On 18 May 2015, Dr Ilana Hepner, clinical neuropsychologist, provided a report to Centrelink of her assessment of Mr Elali on 2 April 2015. As well as previous assessments, Centrelink provided her with material not provided to the Tribunal in these proceedings, including information about bank accounts in Mr Elali’s name, applications for credit cards and credit cards held by him, contracts entered into with various mobile communications service providers, applications for personal loans which indicated he was in full-time employment, claims for protective clothing in his tax returns for 2004, 2005 and 2006, and information on his passenger card for overseas travel in 2010 giving his usual occupation as “security”.
Apart from some limited information about Mr Elali’s bank accounts, none of this material has been provided to the Tribunal. The reasons for this are not clear. Mr Elali does not appear to have had an opportunity to comments on it, and I disregard that part of Dr Hepner’s report that refers to it.
Dr Hepner administered the WAIS-IV, TOMM, Vineland Adaptive Behaviour Scales – second edition (VBAS-II) and related tests, and she spoke twice with Mr Elali’s wife. She noted that he had been in hospital for “mental issues” but it was not clear when. His results indicated severe deficits and his results on the TOMM which “would ordinarily suggest poor test taking effort”. She said a lower cut-off score had been proposed for people with intellectual disability because of the high risk of false positive errors in such persons, but his score fell below even that level. She cautioned that the applicability of the TOMM in individuals with a moderate intellectual disability and/or dual diagnosis of intellectual disability and mental illness/psychosis is unknown and, consequently, his TOMM results should be interpreted with caution. She concluded:
Taken together and given the issues raised in previous psychological assessments, it is difficult to place significant weight on any of the current cognitive findings.
Dr Hepner thought it was not possible to completely rule out a “frank lack of motivation” but she thought it highly unlikely that Mr Elali’s IQ would be above 70 at the time of testing, even with better effort. On this basis, she thought he was “probably not capable of working in the open labour market at the present time”.
Ms Trako’s report
Amila Trako is Mr Elali’s treating psychologist. She administered tests over four days in August 2016 and provided a report dated 13 September 2016. Mr Elali tested in the extremely low range of intellectual functioning. His results on the TOMM “were suggestive of feigned amnesia or cognitive malingering”. Ms Trako concluded that the findings of the assessment should be interpreted “with extreme caution as they may not be a valid indicator or true reflection of Mr Elali’s cognitive abilities or functional capacity”. She thought it important to consider the purpose of the assessment and possible effect on his motivation.
Oral evidence
Ms Trako and Mr Troth gave oral evidence by telephone and confirmed their written opinions. Ms Trako thought the combined results of the TOMM and the “back-up” Rey’s Fifteen Item Test (Rey-FIT), which she administered, threw the “whole reliability” of Mr Elali’s test results into question. Both thought that testing which indicated extremely low range of functioning was inconsistent with a capacity to care for a child since birth and prepare and administer medication, and with caring for an adult (see Mr Elali’s claim for carer payment, and the email concerning care for his mother, below).
Consideration
The reports of results of the TOMM administered on separate occasions by four psychologists over several years indicate that findings that Mr Elali is in the extremely low range of functioning must be approached with caution.
Dr Hepner cautioned about interpreting Mr Elali’s TOMM results because of the unknown effect a dual diagnoses of intellectual disability and mental illness. She nevertheless concluded that, in the context of previous findings, it was difficult to place significant weight on any of his current cognitive findings.
On the one occasion Mr Elali was not assessed using the TOMM (by Ms Wong in 2004), he was found to be in the mildly deficient range of intellectual functioning. It is possible that the results of later tests are attributable to a natural deterioration in his intellectual function, or the first test, undertaken outside the context of review of his DSP, could more accurately reflect his true capacity. Whatever the explanation, there is currently no reliable independent measure of his capacity.
Moreover, there are inconsistencies in Mr Elali’s claims and evidence that raise questions as to whether he is as deficient in some areas as he claims. For instance:
(i)in August 2011, he was able to tell the assessor that telephone numbers were correct and incorrect but claimed he could not read the number ‘4’ to catch the lift;
(ii)according to the SSCDS’s decision, he told that tribunal that he has a mobile phone and can use it for text messages but not as a telephone; he told this tribunal he could not send text messages;
(iii)he told Mr Troth he could use a telephone, catch public transport, and eat, dress, and use a toilet unassisted; he told the SSCSD he could use the toilet independently but his wife said he could not;
(iv)in his original application for DSP, Mr Elali’s father stated he had severe memory impairment and gets lost in familiar areas and could only understand single words; his school; reports show he had been “reading a series of novels … and is able to write compositions for a variety of purposes” and the teacher was “particularly pleased with his speaking skills”.

The day before the hearing of his own matter, Mr Elali gave evidence in his mother’s application concerning cancellation of her DSP. He appeared articulate and responsive and did not appear to have difficulty understanding questions from the Tribunal or the Secretary’s representative.
Security licence and employment
Not long after leaving school, Mr Elali obtained a security guard licence. His memory of dates is poor, and he cannot recall when he sat the test or when he was subsequently employed, but nothing turns on this. He was employed as a security guard, undertaking duties he described as “just standing around”, for a short time. He was also employed for a few weeks at McDonalds, cleaning tables. He says he was “kicked out” of both jobs. He says he has not worked since.
Mr Elali had to undertake a course of about one week to become a security guard. He gave evidence that the course involved reading and writing. In contrast to the Job Capacity Assessment report in August 2011 showing he obtained his licence “unassisted”, Mr Elali claimed before the Tribunal that it was “a miracle”, and he only passed the exam because the person sitting next to him filled in the answers for him. I find it improbable that someone who can neither read nor write could complete a week-long course in the way he claims.
The security firm that employed Mr Elali provided information to Centrelink that he was employed as a full-time security officer from 27 July 2010 to 29 August 2010. It provided documents in Mr Elali’s name including an application for employment and a document headed “Terms and Conditions of Employment”. They bear what appears to be Mr Elali’s signature (because it appears identical to his signature on another Centrelink form) but he maintains he “never signed anything” and the signatures are not his. According to an unsigned Medical History, apparently completed by Mr Elali, he had no medical conditions that would affect the performance of his job. In my view, the most plausible explanation is that Mr Elali completed and signed the forms, and understood its contents.
Despite not working for many years, Mr Elali still holds a current security guard licence. He claims he needs his licence as a form of identity because some people will not accept other proof of identity. The Secretary contends that maintaining his licence points to Mr Elali having worked, or having the capacity to work, as a security guard. There is no evidence that he has worked as a security guard in recent years, but it seems unlikely that he has continued to renew it for no other reason than as an identity card. If nothing else, it suggests he considers himself capable of employment.
Claim for carer payment/allowance
On 6 June 2012, Mr Elali claimed carer allowance and carer payment in respect of his daughter. He claimed he had provided care seven days a week since her birth, and spent on average 60 minutes each day preparing or administering medications (she was born with a serious medical condition). Mr Troth and Ms Trako gave evidence that capacity to undertake this task was inconsistent with Mr Elali’s claimed disability.
Email to the Tribunal
Mr Elali’s mother nominated him as her representative in her own application before the Tribunal. Records of a preliminary conference on 24 February 2016 in her matter show they both participated. Mr Elali described to the Conference Registrar the extent of the virtually full-time care he provided for his mother and he agreed to provide a written statement to that effect to the Tribunal.
On 25 February 2016, the Tribunal received an email from an account in Mr Elali’s name. It commenced:
to whom it may concern my name is mr Roni Elali i am writing a statement regard of my mums [condition] (sic)…
The email went on to state that, since his father’s death, Mr Elali had taken over his father’s role in caring for his mother, and it described in detail the daily care he provided for her from early morning until late at night each day. The email concluded:
…thank you Roni Elali if you need anything please call me on [his wife’s telephone number] thank you Roni elali
Mr Elali gave evidence he did not write the email and nothing in it concerning his care of his mother was true. He claimed that everyone in his family uses his email account, and either his sister or sister-in-law wrote the email. I accept that the fact an email comes from an account does not mean the account-holder wrote it, but Mr Elali could not explain why his sister or sister-in-law would write an email in his name, stating details of care he did not provide.
After the hearing had concluded, Mr Elali’s sister-in-law, Feryal Farhat, contacted the Department of Social Services, and then the Tribunal, to say that she wrote the email. She was advised that, if her claim was to be considered, she was required to give evidence in person. The hearing was resumed to allow that to happen.
Ms Farhat gave evidence that she provides all of the care referred to in the email to Mr Elali’s mother. She claimed she wrote his name “by mistake” and only realised the mistake after she had sent the email. Asked why she did not send a follow-up email to correct the mistake, she claimed her internet connection went down. Asked why she did not telephone the Tribunal to correct the mistake, she claimed her son had removed the SIM card from her phone. Asked if Mr Elali was capable of sending emails himself she said he was, but then claimed he was not.
Ms Farhat impressed me as an articulate, intelligent woman, fluent in English. It is entirely implausible that she mistakenly put Mr Elali’s name in place of her own. I accept the possibility that she wrote the email for him, or helped him to write it, but if so, he provided a statement to the Tribunal that he now says was entirely untrue. Alternatively, the contents of the email are true, and Mr Elali provides his mother with a level of care that is inconsistent with his claimed disability.
Use of social media
Mr Elali made similar claims about his use of social media. Material downloaded from the internet by the Secretary shows tweets, and videos uploaded to YouTube, in his name. Mr Elali gave conflicting evidence about this. He claimed he cannot post material himself so his wife posts information in his name. He acknowledged she cannot speak English well enough herself but said she uses an online translator from Arabic into English for him.
I find it more probable than not that Mr Elali is able to do those things himself, even if with some difficulty.
Mental health condition
Mr Elali does not appear to rely on any mental health condition as a ground for DSP, but there are references to the state of his mental health in some reports and so, for completeness, I will deal with these.
Mr D’Silva’s report suggests that Mr Elali was seeing him regularly for help with anxiety and related conditions. Mr D’Silva described symptoms of “social anxiety, social phobia, social isolation, inability to cope with stressors, low mood, low self-esteem, lack of motivation, poor memory, lack of focus and concentration…” and difficulty performing household tasks. He stated Mr Elali’s condition was “fully diagnosed, treated and stabilised likely to persist for more than 2 years”.
Mr D’Silva gave no details of treatment. Mr Elali told the assessor in August 2011 that he had been seeing Mr D’Silva for several years but, according to the assessor, was unable to say what form of “psychological intervention” Mr D’Silva was providing.
Dr Matter referred to counselling March 2014 but gave no details, and did not mention counselling in his report in February 2015. Ms Trako did not record any symptoms of anxiety or depression in August 2016.
Even if I accept that Mr D’Silva’s report is genuine and even if I accept Mr Elali’s condition was fully diagnosed, treated and stabilised at the date of cancellation, there is no information on which I could be satisfied that his functional capacity is impaired as a result. Therefore, no impairment rating can be given.
Conclusion
Taking into account all of the information before me, I accept that Mr Elali has a permanent intellectual impairment. I am not satisfied that it is as severe as he claims. In the absence of reliable independent assessment of his functioning, and given my findings that much of his evidence lacks credibility, I am unable to be satisfied that his impairment rated 20 points or more at the date of cancellation.
Insofar as Mr Elali has a mental health condition, nothing in the information before me supports a finding that his functional capacity was impaired as a result at the date of cancellation.
I am not satisfied on the information before me that Mr Elali had an impairment rating of 20 points or more when his DSP was cancelled on 28 January 2015. It is therefore not necessary to decide whether he also had a continuing inability to work.
I affirm the decision under review.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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Associate
Dated: 15 March 2017

Date(s) of hearing: 16, 17 & 24 February 2017

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Sparke Helmore Lawyers

Date(s) of hearing:	16, 17 & 24 February 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Sparke Helmore Lawyers