Fajloun; Secretary, Department of Social Services and
[2016] AATA 753
•28 September 2016
Fajloun; Secretary, Department of Social Services and [2016] AATA 753 (28 September 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2928, 2015/6890
Re
Secretary, Department of Social Services
APPLICANT
And
Antoinette Fajloun
RESPONDENT
DECISION
Tribunal Mr W Stefaniak AM RFD, Senior Member
Date 2 May 2016 Date of written reasons 28 September 2016 Place Sydney The Tribunal decides that:
1. The decision of the SSAT to cancel the disability support pension with effect from 9 January 2012 is affirmed.
2. The decision of the SSAT in relation to the debt is set aside and in substitution the Tribunal finds that the overpayment of $63,627.29 is a debt due to the Commonwealth that is recoverable from the respondent.
.................................[sgd].......................................
Mr W Stefaniak AM RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether criteria met for disability support pension at time of cancellation- whether a debt is owed to the Commonwealth – calculation of debt – whether debt can be waived or written off – decision to cancel the disability support pension affirmed – decision regarding debt set aside and substituted
LEGISLATION
Social Security Act 1991 ss 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 s 118(8)
CASES
Charrouf and the Secretary, Department of Social Services [2015] AATA 38
REASONS FOR DECISION
Mr W Stefaniak AM RFD, Senior Member
28 September 2016
BACKGROUND
The respondent Ms Fajloun began receiving the Disability Support Pension (DSP) on 9 January 2012.
On 27 January 2015 Centrelink cancelled the respondent’s DSP and secondly ordered that she repay the $63,627.29 that had been paid to her for the period from 9 January 2012 to 21 January 2015.
The respondent appealed to the SSAT and on 19 May 2015 the SSAT affirmed the decision to cancel the DSP but set aside the decision to raise and recover the debt of $63,627.29.
The matter was sent back to the Chief Executive of Centrelink for reconsideration in accordance with the direction that there was insufficient evidence to show Ms Fajloun was overpaid DSP for the period 9 January 2012 to 21 January 2015.
I have indicated in a part oral decision that I affirmed the SSAT’s decision to cancel the DSP but reserved on the second question as to the repayment of the debt. I now set out my written reasons.
The Department, naturally, as the applicant in these matters is quite comfortable with the first decision by the SSAT but is not comfortable with the second decision hence their application to appeal that to this particular tribunal.
WAS THE DECISION TO CANCEL MS FAJLOUN’S DSP ON 27 JANUARY 2015 CORRECT?
The initial application which appears to have been granted quite quickly, although not automatically, on 9 January 2012, related to a DSP which was applied for by the respondent. The evidence in support of that particular application were reports from a Mr Joseph D’Silva and a Dr Ishrat Ali, a psychologist and doctor respectively.
It appears that there is a brief from the applicant currently before the Director of Public Prosecutions in relation to possible prosecution action against Mr D’Silva and Dr Ali, for offences against the Commonwealth pursuant to the Criminal Code in relation to false and misleading applications and representations to the Commonwealth.
As at May of this year and as at the date of this hearing, that has not, as yet, led to any charges being laid, but the matter involves quite a large number of false, or allegedly false, applications and misrepresentations and it would appear that, at some stage, further action will be taken. One of the exhibits before the tribunal was a newspaper article that indicated some press interest, and mentioned some 300 allegedly false claims.
The representative for the applicant submitted that the tribunal, should have very little, if any, regard to Dr Ali’s report and Mr D’Silva’s report, both of which were in evidence before the tribunal. The evidence in relation to those documents is quite stark. It appears the respondent did not even see Mr D’Silva. Mr D’Silva prepared a report dated 31 December 2011 (T-documents p134 -144) which Dr Ali uses to base his report of 9 January 2012 (T-documents p145-152).
The clear sworn evidence of the respondent was that she did not even see Mr D’Silva and that she only saw Dr Ali for 10 to 15 minutes. Mr D’Silva also appears not to have, in the notes summonsed, made any reference to the respondent. He certainly has not got her name down in his diary. He also did not put in a claim to Medicare or to any one else for his services as one would expect him to do, if he was bona fide. He is registered to put in Medicare claims as indeed is Dr Ali.
There is clear evidence from the respondent, and I have got no reason to disbelieve it, that she saw Dr Ali for about 10 or 15 minutes. It is interesting, as the representative for the applicant has pointed out, that in the supplementary T-documents at page 354, in the diary notes for appointments in relation to Dr Ali, dated 9 January 2012, he sees a number of people at 15 minutes intervals, (which does tend to corroborate what the respondent was saying in evidence), but her name does not appear there at all.
Her name only appears on two pieces of paper, at pages 346 and 347 of the Supplementary T-documents. T346 just lists her name. T347 is more relevant as there is a date stamp, 9 January 2012 on that piece of paper. The respondent indicated that she did see him for some 10 or 15 minutes. She stated she was taken there, almost directly upon meeting a certain Mr El-Ali who she said “helps out people in the community”. Interestingly, she denies having paid Mr El-Ali anything. It appears, from what she says, that no money changed hands. Within minutes of meeting her, Mr El-Ali took her to see Dr Ali and he (Mr El-Ali) did most of the talking.
It appears, from the notes which do have a date stamp, 9 January 2012 (Supplementary T-documents p347), (and I could possibly conclude from that, that they may well be notes by Dr Ali), there is what looks like a referral, rather badly written, from Dr something or other D’Silva – it could be Joseph, then a reference to “at 9 years”, and then it says “Year 10 in school”. There is clear evidence from a number of sources, including the respondent, that she did leave Burwood High School at the end of Year 10 and she has a recollection that those were some of the questions asked in the very short time she spent with Dr Ali.
Dr Ali refers to a report which the respondent has never seen, from Mr D’Silva, and Mr D’Silva has prepared a report of another person he saw (Supplementary T-documents page 343 onwards) and that person, coincidentally, had virtually identical scores and percentile rankings as the report Mr D’Silva made on behalf of the respondent.
The respondent has no recollection at all of seeing Mr D’Silva. It seems to me there is a great deal of strength in the applicant’s submissions, that the tribunal should give zero weight to those two reports.
Further evidence before the tribunal from Mr Wallace a tactical operations manager who investigates fraud and non-compliance issues for the applicant, indicated that those reports came to light in relation to an investigation that showed that Mr El-Ali , who the respondent says is now dead, was responsible for referring about 300 people to Dr Ali and reports of Dr Ali and Mr D’ Silva were used to obtain pensions from the Department of Social Services to which those 300 people were not entitled.
Further evidence of relevance here are the statements and the clinical notes by the respondent’s treating doctor of over 35 years duration, Dr Sheiban. One of his statements refers to an appointment in 1980. He is very much the family doctor. Nothing is said by him in any of his reports or documents before the tribunal to anything in relation to IQ issues.
Indeed, the respondent indicated that she cannot recall mentioning IQ issues with him. One would suspect that that would have been mentioned, if it had been a real, significant issue. Depression, anxiety - those issues have come up regularly- but not IQ. IQ only seems to be only referred to in Dr Ali’s report and Mr D’Silva’s report.
Accordingly I reject Dr Ali’s report and Mr D’Silva’s report and I agree with the applicant that they have zero weight.
As a result of the Centrelink investigation, the respondent had to undergo some further assessments. The relevant date for cancellation is her situation as at the date of the decision, 27 January 2015 and up to 13 weeks afterwards. Events could have occurred after that that are relevant to the time in question and there might also be evidence before that, but the relevant date is then.
The law is clear in relation to this. To qualify for a disability support pension, a person’s condition must be fully diagnosed, treated and stabilised at the time of the claim or within the following thirteen weeks and there is other criteria not relevant here that needs to be satisfied as well. The condition has to be fully diagnosed, treated and stabilised.
No one has any issue with it being fully diagnosed. It is diagnosed as depression. The Department accepts that. Is it fully treated and fully stabilised? It has certainly been treated a fair bit, but there is, unfortunately for the respondent clear evidence that it is not stabilised.
The various reports before the tribunal indicate that further work is necessary. At page 200 of the T documents by way of illustration, on 18 November 2014, Dr Muhammad Ziedni, Clinical Psychologist in his report stated that in his professional opinion:
“Ms Fajloun suffers from chronic depressive episodes based on earlier evaluation utilising the Black Dog Institute (MAP), mood assessment program, Ms Fajloun’s symptoms have been consistent with the diagnostic and statistical manual for text review, major depressive episodes based on information provided her symptoms are at a level of intensity and frequency that requires clinical attention. Her depression has been extremely chronic. It affects her daily function severely. I plan to provide further referral for Ms Fajloun to see a psychiatrist at the Black Dog Institute for further evaluation. At this stage, her intention to access treatment with me more regularly is a positive indication of a good prognosis.”
This is evidence that at the relevant time, (27 January 2015) the condition had not been fully treated. It certainly had not been fully stabilised. The Social Security law in relation to DSPs were tightened up in 2011 and 2012. The rationale behind that was that there were almost as many people on DSPs as there were on Newstart. The then Government made a conscious decision to tighten up eligibility for DSPs and as a result it has become a lot more difficult than it might have been 10 years ago to get a DSP.
As I am not satisfied the condition had been fully diagnosed, treated and stabilised, I do not have to consider the points tables. Now, were we to get to that stage, I may or may not agree with counsel for the applicant, however, we do not need to get to that stage because of the information in the reports as to the situation in January of last year which points to the fact that the condition had not been fully treated and had not been fully stabilised. Maybe not a huge amount more needs to be done in relation to that. Maybe not, but that is the date I have to go on, and up to13 weeks after that.
Interestingly, in the T-documents, at page 204 and 205 of the report of Mr Geoff Troth clinical forensic psychologist, dated 13 November 2014, the issue of a low IQ, does come up with a lower figure than the one in Dr Ali’s report. Mr Troth’s figure is 44 to 52. Dr Ali was 59 to 67 (mild mental retardation). If that were all, the respondent would qualify for a DSP. But it is not all. There are the TOMM rules to take into account.
Mr Troth stated that regard must be had to the TOMM rules which were used to indicate the possibility of malingering. Now, malingering is a rather nasty word, but the TOMM rules indicated in the respondent’s case that the way she approached the test raised a number of issues indicating that one had to take with a grain of salt the IQ part of that assessment – namely the WAIS findings.
Mr Troth said, at page 204 of the T-documents:
A diagnosis of malingering should not be made, based exclusively on the result of the TOMM. Consideration needs to be given to false or exaggerated symptoms, intentionality and motivation by external incentives. Ms Fajloun’s responses to the TOMM test suggests possible, false or exaggerated symptoms. Motivation might have been influenced by Ms Fajloun’s understanding of the purpose of the assessment which was to review her eligibility for the disability support pension. Ms Fajloun’s psychiatric condition may also have impacted on her ability to attend to the material of the test.
Mr Troth gave oral evidence as well. He indicated a sexual abuse incident involving the respondent’s uncle when she was about 15, may well have caused a lower IQ. That was something, I must say, I have never heard before. So he was not discounting the possibility of a low IQ but he was guarded and cautious in the evidence he gave.
I found Dr Troth to be a very experienced man who has been doing his job for a number of years. He answered the questions put to him forthrightly and it seemed, with considerable knowledge of what he was talking about. He has a Master of Arts in Clinical Psychology, so he has certainly also got the necessary academic qualifications and also experience in the job.
Mr Troth went on to say that the results could also have indicated, apart from possible malingering behaviour, that consideration should be given to the potential impact of Ms Fajloun’s psychiatric condition of major depressive disorder, which may impact on her ability to maintain attention to task.
In answer to questions he also said one needed to look at other factors in determining IQ- factors such as evidence that the respondent had an unrestricted drivers licence, did grocery shopping, also at what tasks she did at home. He placed a fair amount of emphasis on the fact she got an unrestricted New South Wales driver’s licence in 1989, which was after any possible IQ problems which might have arisen after the sexual abuse incident with the uncle in around 1980.
The evidence from the respondent was that she hardly drives. The cars are registered in her name. It is her daughters who drive. Often that is the case with families, the parents would like to drive but the children drive the cars more often than not. The respondent did give evidence that up until a couple of years ago at least, she would drive, albeit maybe reluctantly, to go to the shops and to go to doctor’s appointments.
I do accept the respondent’s assertion that a driver’s licence is also very convenient for identification and it is always handy to have. I also accept when she said, “If I get better it would be very handy and if I get a job it would be handy”. That is a good positive statement, but also indicates the fact that down the track she would hope to drive a bit more. It is relevant, and it is relevant for those reasons.
Doing things like shopping, coming here today, by herself by train (and it was a long journey of about 2 hours apparently) and going home, are also indicative of things that should be taken into account. Obviously the more one can function normally, the better quality of life one has. It is actually a good thing if one can do these tasks. Obviously, if one has significant problems doing these types of things then, it may well be that they are factors in terms of qualifying for a disability support pension down the track.
In my view, Mr Troth produced a measured report and he mentioned those other factors to be taken into account in relation to the question of whether there was an IQ issue. Is there a reliable low assessment that indicates a low level IQ that would justify an automatic disability support pension as at January 12, 2015? Clearly, in terms of the evidence before me, there is not.
I have already indicated how much weight should be given to Dr Ali’s report and Mr D’Silva’s report. The report of Mr Troth is a relevant one, as are the comments made by Mr Ziedni, clinical psychologist and Dr Sandra in their reports before the tribunal. I attach considerable weight to the comments contained therein and to the various reports and comments made by her GP Dr Sheiban who has seen the respondent on numerous occasions since at least 1980.
The main issue is her depression, which at this stage is still not completely treated. I should add that Mr Troth indicates at page 205 of the T-documents that:
No determination of intellectual function could be made at this time. If further assessment of Ms Fajloun’s intellectual function is required it is recommended that she be referred to an experienced neuro-psychologist for a comprehensive assessment after her psychological condition has been reviewed and stabilised.
The respondent certainly needs to take those words on board and if she has not actually done so already, make an appointment soon. However as at the time of that report, 13 November 2014 – and as at last year, in the first quarter of last year, the documents and the evidence before me at the hearing is what I have to go by and consider in relation to whether the correct decision was made.
As said earlier, we actually do not get to the next stage which is allocating points. That is something that would be done if and when the respondent continues with her current application and is something the Department would obviously do, but in terms of this decision, as of January to April last year, my finding is that the respondent’s condition, whilst fully diagnosed, is a condition that has not been fully treated and stabilised – there are further things to do, which, indeed, the respondent appears to be currently doing.
As at the time of this decision, the respondent was not entitled, because of the strict guidelines which have to be applied, to a disability support pension. Unfortunately for her I find that the SSAT got this part of the decision right and I accept the submissions and the facts and contentions made by the Department as far as they go and as far as qualified by me today.
Accordingly I would affirm the decision of the SSAT, and Centrelink before it, to cancel the DSP.
DOES MS FAJLOUN HAVE TO REPAY THE DEBT?
We now come to the $63,627.29 question. Does the respondent have to pay this sum, or part of it, back to the Commonwealth.
As a result of directions given at the end of the hearing, the applicant has now supplied proof to the satisfaction of the tribunal that the above sum of money had indeed been paid to the respondent.
It would appear that the above sum represents the full DSP paid from 9 January 2012 until 21 January 2015. The applicant did not give any details as to what the respondent would have been paid had she been on, for example, a Newstart allowance. Putting aside the question of whether the respondent will ever be in a position to repay the full debt if she was ordered to, the question before me is whether there is a legal requirement for her to do so.
The respondent prior to going on a DSP in January 2012 was on Newstart. She went on Newstart when she and her husband separated. It would seem prior to the separation her husband worked and she had no need to go on a pension of any sort or seek any other form of government financial assistance. As a result of the cancellation of the disability support pension she is again on Newstart.
The SSAT looked at the issue of whether the respondent was overpaid the DSP from the period 9 January 2012 to 21 January 2015 (see pages 11 and 12 of the T-documents). The SSAT noted that the authorised review officer concluded that the respondent was not qualified for the DSP from 9 January 2012.
At paragraph 55 of its decision the SSAT stated that the authorised review officer did not identify the provision used to determine the date of effect of the cancellation decision but it appears to the SSAT that it must have been subsection 118(8) of the Social Security (Administration) Act 1999 (Administration Act). That section provides that if a person has made a false statement or misrepresentation and because of the false statement or representation a social security payment has been made to a person when it should have been cancelled or suspended, the adverse determination takes place on such a day as is notified in the determination. The day so specified may be earlier than the day on which the determination is made.
The SSAT in paragraph 56 noted that the authorised review officer inferred from Mr Troth's report and from other information that the reports by Mr D’Silva and Dr Ali were false statements or misrepresentations
In paragraph 57 the SSAT noted that:
… the results of Mr Troth testing indicated a greater degree of intellectual impairment than was reported by Mr D’Silva and Dr Ali. It is true that Mr Troth had concerns about the accuracy of the results he obtained and that he recommended further assessment by a neuropsychologist after Mrs Fajloun’s mental health conditions are treated and stabilised. There is no evidence available to the tribunal that that has taken place. The tribunal is not satisfied, as matters stand, that the reports by Dr D’ Silva and Mr Ali were false statements or misrepresentations.
Paragraph 58 went on to say:
... in these circumstances the tribunal is satisfied that the evidence available on 27 January 2015 was sufficient to justify cancellation of Mrs Fajloun’s pension. The tribunal is not satisfied, however, that the available evidence establishes that any person has made a false statement or misrepresentation that caused a pension to be paid to Mrs Fajloun when it should have been cancelled. The tribunal is not satisfied that the requirements of subsection 118(8) of the Administration Act have been met.
Paragraph 59 continues:
Section 118 of the Administration Act explains how to work out the date of effect of an adverse decision in a number of prescribed circumstances. Subsection 118(13) states that in any other case an adverse determination takes effect on the day on which it is made or if a later date is specified on that day. The tribunal finds that none of the prescribed circumstances listed in section 118 apply in this case.
The SSAT went on to conclude that the date of effect of the determination to cancel Mrs Fajloun’s disability support pension was 27 January 2015.
Page 111 of the T docs sets out section 118(8). It states:
(8) 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 made 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.
Unlike the SSAT, which believed that it had no evidence available to be satisfied that the reports by Joseph D’Silva and Dr Ali were false statements or misrepresentation, this tribunal is confident on the evidence before it that those reports were false statements and /or misrepresentations.
The respondent at no stage even saw Mr D’Silva. Mr D’Silva purported to examine the respondent and sent a report to Dr Ali, where the results were suspiciously similar to another patient. The respondent saw Dr Ali for 10 or 15 minutes and the mysterious deceased Mr El-Ali did most of the talking.
It could be assumed that both Mr D’Silva and Dr Ali, being entitled to claim on Medicare for the appointments and the reports would make claims as a result but they did not. As a result of their false reports, the respondent was granted a DSP.
I find it impossible to accept that the report of Mr D’Silva was anything other than a false statement and/or misrepresentation and Dr Ali’s report, based as it was on Mr D’Silva’s report was also a false statement and/or misrepresentation. Accordingly this tribunal disagrees with the finding of the SSAT on this point.
I find the two reports can be classed for the purpose of the legislation as either false statements or misrepresentations or indeed both.
The Social Security Act 1991 (the Act) contains provisions by which overpayments or payments that should not have been made can be recovered and secondly circumstances where some or all of a debt may be written off.
Section 1223(1) of the Act provides:
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 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.
Section 1223(1AB) of the Act provides as follows:
Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of the 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:
…
(b) the person for whose benefit the payment was intended to make was not qualified to receive the payment;
…
(d) the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;
…
From the above section it appears quite clearly that the payment was wrongfully made and the payee, namely the respondent, was not entitled to it and therefore it became a debt to the Commonwealth.
SHOULD THE DEBT BE WRITTEN OFF OR WAIVED?
The Act does contain provisions were a debt can be written off. A debt may be written off if, and only if: it is irrecoverable by law; the person has no capacity to repay; the person's whereabouts were unknown; or it is not cost-effective to try to recover the debt – see section 1236.
I do not believe any of those requirements apply in this case – whilst the respondent has very little capacity to repay the debt, it is not uncommon for people on Newstart to be ordered to make a small contribution towards repaying a debt, even if that contribution is as low as $20-$30 per fortnight.
Further the respondent's whereabouts are known and it is possible for the Department to recover the debt through a deduction from the respondent’s pension payments and therefore one cannot say it is not cost-effective. Finally, it is not a debt that is irrecoverable at law.
This is not a case as described in section 1237A – one which states that a debt must be waived if it is attributable solely to administrative error and was received in good faith. There is no administrative error here and I am uncertain as to whether the debt was received in good faith – it may have been but then again the evidence was inconclusive as to whether it was, even giving the respondent the benefit of the doubt. This debt was incurred as a result of misrepresentations by Mr D’Silva and Dr Ali.
Section 1237AAD provides that a debt may be waived if:
(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) and 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.
In this case I only need to consider subsection (a) because it cannot be said that this is a debt that did not result from the debtor or more particularly here another person (Mr D’Silva and Dr Ali) knowingly making a false statement or a false representation. It may well be that the respondent is innocent in that she merely relied on these false reports, not knowing they were false, to obtain the benefit she got.
However, the legislation specifically states “another person” knowingly making a false statement or false representation and I have found that I am satisfied on the evidence before me that Mr D’Silva and Dr Ali made a false statement which also amounted to a false representation. I am satisfied that Mr D’Silva did not see the respondent and that his statement/report was false, as is the report of Dr Ali which is based on Mr D’Silva’s report. Each report amounts to a false representation.
The above sections were also discussed in the matter of Charrouf and Secretary, Department of Social Services [2015] AATA 38 decided by Senior Member Toohey on 20 February 2015. In that case Mr Charrouf paid a person who was not named but who appeared to be Mr El-Ali $500 to obtain a report from Mr D’Silva and Dr Ali.
Senior Member Toohey at paragraph 31 of the decision found that even if Mr Charrouf was not party to making a false statement or representation to Centerlink it seemed clear that Mr D’Silva almost certainly was .She found it was not necessary to make this finding because she was also not satisfied in any event that there were special circumstances by reason of which any of Mr Charrouf’s debt should be waived.
She went on to look at special circumstances and found that whilst one could say the circumstances in this particular case were usual she was not satisfied they were special. I would agree with her conclusion and her discussion of the definition of special circumstances found at paragraph 32 of the decision so far as they are relevant in this case:
The Act does not define “special circumstances” and gives no guidance as to its meaning in s 1237AAD. It has been observed many times by the Courts and this tribunal that the expression is “by its very nature incapable of precise or exhaustive definition” and will depend on the particular case. The circumstances “must have 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; see also Angelakos v Secretary, Department of Employment and Workplace Relations (2007) FCA 25. In Re Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114; (2007) 94 ALD 693, Deputy President Forgie said:
... “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances ... that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system.
However for the reasons I have given I do not believe that we need to even get as far as looking at special circumstances - which I note exclude financial hardship - because of subsection (a). It seems to me that in the circumstances of the present case, the law, unfortunately for the respondent, is clear. Even though she will certainly suffer financial hardship being on Newstart, she is obliged by law to repay the debt and accordingly the decision of the SSAT in relation to this point is set aside.
The matter will be sent back to the Secretary and the Department can then make an arrangement with the respondent for a repayment plan. I note comments by the applicant to the effect that the respondent will only be expected to pay a small amount regularly and it was he who ventured figures as low as $10 a week or $20 a fortnight. I would agree with that, and no doubt the Department will look very closely at any financial hardship this respondent will suffer in arriving at a repayment plan.
It may be that the applicant may wish to waive some of the debt considering the hardship the respondent will suffer and the fact that she would most likely be on Newstart if she had not been on the DSP. My suggestion would be to seek to recover the difference, but that is at the end of the day entirely a matter for the applicant.
At the hearing I encouraged the respondent to continue her efforts in seeking to obtaining a DSP on the basis the recent medical reports clearly indicated she suffered significant issues with depression. As already discussed a person can apply at any stage for a DSP and the criteria adopted by the Department asses a person’s eligibility as at the time they apply. The fact that one has had a DSP rejected does not preclude one from having another go in obtaining a DSP if one satisfies the criteria.
It seems to me that on the evidence before me in this matter, the respondent appears to be fairly close to satisfying the criteria at present. It is also possible with further assessment that she may ultimately be found to have a low IQ of less than 70 which would justify a DSP in its own right. That however may not be the case as a result of what has already been discussed in evidence and whilst I'm certainly not qualified to assess anyone’s IQ levels the respondent did not seem to me to be particularly slow and seemed to comprehend what was going on in the tribunal very well.
It was my impression that she appeared to have quite a strong case in relation to ongoing depression issues and that was the area where she would be best advised to concentrate on, in relation to obtaining a DSP. Clearly issues of depression had, on the evidence, affected her for many years and looked highly likely to continue to do so.
The Respondent was also encouraged to seek legal advice and see Legal Aid with a view to commencing proceedings against Dr Ali and Mr D’Silva who seem to be the real culprits in terms of her racking up a debt of over $63,000. It may well be she may have some entitlement to reclaiming all or some of the amount from them and it may well be that either they or other professional bodies that they may have belonged to, have insurance policies that may cover situations where people suffer financial loss as a result of such actions by the likes of Dr Ali and Mr D’Silva. It may well be prudent for the Respondent to obtain legal advice to explore that avenue.
Whilst I am not completely convinced of her innocence in this matter in that I feel it is a little bit surprising that she would not be at all suspicious of Mr El-Ali, Dr Ali and the unseen Mr D’Silva. Nevertheless the false statements were by other persons and not her, and if there is some other remedy available which would mean the Commonwealth can be repaid the debt sooner rather than later then that is all to the public good.
CONCLUSION
I accept the applicant‘s submissions at paragraph 100 through to 130 of the statement of facts and contentions in relation to repayment of the debt and a result of the above findings the order of the tribunal will be that:
1.The decision of the SSAT to cancel the disability support pension with effect from 9 January 2012 is affirmed.
2.The decision of the SSAT in relation to the debt is set aside and in substitution the Tribunal finds that the overpayment of $63,627.29 is a debt due to the Commonwealth that is recoverable from the respondent.
I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Mr W Stefaniak AM RFD, Senior Member ..............................[sgd]..........................................
Associate
Dated 28 September 2016
Date(s) of hearing 2 May 2016 Date final submissions received 5 May 2016 Solicitors for the Applicant Department of Human Services Respondent In person
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