Haje-Obeid and Secretary, Department of Social Services (Social services second review)
[2016] AATA 835
•25 October 2016
Haje-Obeid and Secretary, Department of Social Services (Social services second review) [2016] AATA 835 (25 October 2016)
Division
GENERAL DIVISION
File Number
2015/4316
Re
Secretary, Department of Social Services
APPLICANT
And
Rawak Haje-Obeid
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 25 October 2016 Place Sydney The decision of the Social Security and Child Support Division of the Administrative Appeals Tribunal made on 15 July 2015 is set aside and in substitution, the Tribunal decides that Ms Haje-Obeid has a disability support pension debt for the period 8 December 2011 to 6 January 2015 in the amount of $43,624.68.
.....................[sgd]...................................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – intellectual impairment – diagnosis of ‘Moderate Mental Retardation’ – inconsistent medical evidence – Job Capacity Assessments – debt raised – whether special circumstances – decision under review set aside
LEGISLATION
Social Security Act 1991, ss 94, 1223, 1236, 1237AAD
Social Security (Administration) Act 1999, ss 80, 118(8)
CASES
Charrouf and Secretary, Department of Social Services [2015] AATA 38.
Groth v Secretary Department of Social Security [1995] FCA 989.
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr L Bygrave, Member
25 October 2016
INTRODUCTION
On 10 November 2008, Ms Rawak Haje-Obeid was granted the disability support pension in accordance with the provisions of the Social Security Act 1991 (Cth) (the Act) on the basis that she suffered from depression.
On 8 December 2011, Centrelink decided that Ms Haje-Obeid was no longer qualified to receive the disability support pension and cancelled her pension. Centrelink set this decision aside on internal review after Ms Haje-Obeid provided medical reports by Dr Joseph D’Silva (Clinical Social Worker and Psychologist) dated 8 January 2012 and Dr Ishrat Ali (Consultant Psychiatrist) dated 11 January 2012, which stated that Ms Haje-Obeid had ‘Moderate Mental Retardation’.
Ms Haje-Obeid’s medical condition was further assessed in a Job Capacity Assessment (JCA) on 21 October 2014 and her medical evidence reviewed by a Health Professional Advisory Unit (HPAU) clinical psychologist on 19 December 2014.
Centrelink subsequently decided on 6 January 2015 that Ms Haje-Obeid:
(a)did not have the medical condition for which she was paid disability support pension from 8 December 2011 to 6 January 2015;
(b)was subsequently not entitled to receive the disability support pension from 8 December 2011 to 6 January 2015; and
(c)had a disability support pension debt for the period 8 December 2011 to 6 January 2015 in the amount of $43,624.68.
Centrelink affirmed this decision on internal review.
DECISION UNDER REVIEW
Ms Haje-Obeid applied to the (then) Social Security Appeals Tribunal (SSAT) for a review of Centrelink’s decision on 30 March 2015. On 1 July 2015, the SSAT became the (now) Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal.
On 15 July 2015, the SSCSD set aside the decisions by Centrelink to:
(a)cancel Ms Haje-Obeid’s disability support pension with effect from 8 December 2011; and
(b)raise and recover a disability support pension debt for the period 8 December 2011 to 6 January 2015 in the amount of $43,624.68.
On 21 August 2015, the Secretary of the Department of Social Services (Secretary) applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.
The matter was heard in Sydney on 19 September 2016. Ms Haje-Obeid was directed to appear at the hearing in person but provided a medical certificate from Dr A Selim (General Practitioner) dated 15 September 2016 advising she is unfit for work/study from 15 September 2016 to 15 December 2016. Ms Haje-Obeid gave sworn evidence by telephone and was assisted by an interpreter of the Arabic language.
RELEVANT LEGISLATION AND ISSUES
The determinative issues before the Tribunal are whether:
(a)the decision to cancel Ms Haje-Obeid’s disability support pension from 8 December 2011 was correct;
(b)Ms Haje-Obeid has a debt for the period of 8 December 2011 to 6 January 2015;
(c)any debt is recoverable.
Was the decision to cancel Ms Haje-Obeid’s disability support pension from 8 December 2011 correct?
The power for the Secretary to cancel Ms Haje-Obeid’s disability support pension is contained in s 80(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Pursuant to s 118(8) of the Administration Act, Ms Haje-Obeid’s cancellation decision takes effect on the day on which it was made, in this case on 8 December 2011 (date of cancellation).
At the date of cancellation, s 94(1) of the Act provided that a person qualifies for the disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The Secretary submitted that to the extent Ms Haje-Obeid had a psychiatric or intellectual impairment at the date of cancellation, no impairment rating could be assigned because the impairment was not permanent. The Secretary further submitted that Ms Haje-Obeid did not have a continuing inability to work under s 94(1)(c) of the Act.
Medical evidence
A medical report completed by Dr Selim on 8 November 2008 diagnosed Ms Haje-Obeid with ‘major depressive disorder’ that resulted in ‘poor concentration’.[1] Other medical reports by Dr Selim on 1 March 2001, 20 December 2001, 12 February 2008 and 2 March 2014 described Ms Haje-Obeid as suffering at the relevant times from anxious depression, bilateral/recurrent kidney stones, bilateral carpal tunnel syndrome, hyperlipidaemia and arthralgia.[2]
[1] Exhibit T1, page 213.
[2] Exhibit T1, pages 118-127; 118-195; 279-288.
On 8 January 2012, a medical report by Dr D’Silva stated that Ms Haje-Obeid’s overall cognitive ability was in the ‘Extremely Low range’ with a ‘95% probability that her overall IQ falls between 41 and 49’. She met ‘the DSM-IV-TR diagnostic criteria for Moderate Mental Retardation (DSM-IV-TR, 318)’ and as such, ‘her application for the Disability Support Pension is strongly supported’.[3]
[3] Exhibit T1, page 256.
On 11 January 2012, a medical report for the disability support pension completed by Dr Ali confirmed a diagnosis of ‘Moderate Mental Retardation’ for Ms Haje-Obeid. Dr Ali stated that this condition impacted on her cognitive function as she was ‘not able to concentrate and understand difficult things – has never worked and will not be fit for work’.[4] Dr Ali’s clinical notes, which were obtained by the Secretary under summons, did not refer to Ms Haje-Obeid having an intellectual impairment; rather his notes stated ‘depression slight, no psychosis, no brain damage, no epilepsy with any other signs… not able to read or write’.[5]
[4] Exhibit T1, page 259.
[5] Exhibit ST1, pages 516-517.
On 16 November 2014, Mr Onsy Mattar (Consulting Psychologist) observed that Ms Haje-Obeid was ‘suffering from stress, anxiety-depressive disorder and adjustment disorder…’ He further noted that ‘her memory and concentration is impaired as a result of her psychological state and development [sic] impairment as she reportedly had never attended any education facility throughout her life’.[6]
[6] Exhibit T1, page 303.
Mr Mattar advised that he had administered an IQ Verbal Test. He requested that Ms Haje-Obeid is exempted from a requirement to complete a citizenship exam because her IQ is below average and ‘she is suffering psychologically’. Mr Mattar provided a further report on 19 March 2015, which repeated this diagnosis for Ms Haje-Obeid.
I note that Mr Mattar is not considered to be an appropriately qualified medical practitioner, clinical psychologist or psychiatrist for the purposes of diagnosing a permanent condition resulting in functional impairment due to a mental health condition as required by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination). I therefore must place limited weight on the evidence in Mr Mattar’s report.
The HPAU report dated 19 December 2014 reviewed Ms Haje-Obeid’s medical evidence and opined that:
(a)there were concerns about the validity of the diagnosis by Dr D’Silva as the WAIS-IV test he administered is not an appropriate test instrument to assess Ms Haje-Obeid as she is a person from a culturally and linguistically diverse background;
(b)the presence of long-term depression is likely to have impacted on Ms Haje-Obeid’s IQ assessment and result;
(c)it is extremely unlikely that Ms Haje-Obeid could have a full scale IQ score of 44 and still be capable of obtaining an open driver’s license and safely care for her twin sons, who required special care and medication;
(d)Dr Selim’s diagnosis on 2 March 2014 that Ms Haje-Obeid had major depression was not supported by corroborating evidence from a clinical psychologist or psychiatrist.[7]
[7] Exhibit T1, pages 311-312.
On 7 August 2015, Dr Ashraf Phillips (Consultant Psychiatrist) reported Ms Haje-Obeid had ‘no psychosis, mania, PTSD, OCD or other anxiety disorders … found during the assessment’. He further observed: ‘There was no evidence of formal thought disorder, delusions or current suicidal ideas. There were no perceptual disorders detected during the assessment [and her] cognitive functions were intact’.[8]
[8] Exhibit ST1, page 511.
On 9 October 2015, Dr Phillips provided a further confidential psychiatric report, which stated that Ms Haje-Obeid reported an ‘onset of symptoms around a year ago’ and that her symptoms were ‘suggestive of a depressive episode with somatization and generalized anxious features’.[9]
[9] Exhibit ST1, pages 506-507.
Dr Sandra Armstrong (Medical Advisor) reviewed Ms Haje-Obeid’s medical evidence and provided a report dated 14 April 2016, which concluded that she considered it ‘highly unlikely that Ms Haje-Obeid was ever diagnosed with a moderate intellectual impairment, so this condition cannot be allocated an impairment rating.’ Dr Armstrong also concluded that Ms Haje-Obeid’s depression was not fully treated and stabilised at the time of the medical review in October 2011 as she had not accessed psychiatric intervention.[10]
[10] Report filed with the Tribunal on 5 May 2016.
Evidence of Ms Haje-Obeid
At the Tribunal hearing, Ms Haje-Obeid confirmed that Dr Selim had been her General Practitioner since 2001.
There were significant inconsistencies between Ms Haje-Obeid’s evidence and documents before the Tribunal.
Ms Haje-Obeid initially told the Tribunal at the hearing that she did not attend school in Lebanon. When she was asked about a Centrelink form which records that she completed year 3 and attended El Mamich Public School,[11] she conceded that she had reached year 3. She also told the Tribunal that she was diagnosed with an intellectual disability in Lebanon as well as in Australia.
[11] Exhibit ST1, pages 477-478.
Ms Haje-Obeid confirmed that she met with Dr D’Silva in relation to her depression and that he also assessed her for an intellectual disability. She also said that she met with Dr Ali. She recalled paying for both appointments with cash as the doctors ‘did not use Medicare’, but could not recall details such as approximate dates or addresses of the appointments. However, Ms Haje-Obeid’s Medicare Patient History Report shows that Dr J D’Silva lodged refunds with Medicare on 20 June 2011 for appointments with Ms Haje-Obeid on 17 March 2011, 22 March 2011, 29 March 2011, 5 April 2011, 12 April 2011 and 18 April 2011;[12] dates which are approximately nine months prior to his medical report on 8 January 2012.
[12] Exhibit A2.
Ms Haje-Obeid told the Tribunal that she had discussed her intellectual disability with Dr Selim. However, none of Dr Selim’s medical reports refer to her having an intellectual disability.
Ms Haje-Obeid confirmed that when she was separated from her husband on 28 March 2011, she received a carer’s allowance to provide special care for her sons including dispensing medication. She told the Tribunal that she cannot leave the house but acknowledged that she has owned a car since September 2006 and has held a provisional driver’s licence that was first issued on 24 March 2006 and expired on 18 May 2015.[13] She said that she had stopped driving about a year ago after she had an accident. Ms Haje-Obeid also acknowledged that she worked as a cleaner for three hours each weekday (15 hours per week) from 18 August 2015 until 5 July 2016.
[13] Exhibit ST1, page 501.
Submissions from the Secretary
The Secretary submitted that the Tribunal should disregard Dr D’Silva’s report ‘on the basis that it is likely to be a false and contrived representation of [Ms Haje-Obeid’s] intellectual disabilities’. The Secretary further contended that Dr Ali’s report, which relied on Dr D’Silva’s diagnosis, should also be disregarded as ‘there are serious doubts that the medical report is a genuine representation of Ms Haje-Obeid’s medical conditions [at] that time’.
In particular, the Secretary relied on a decision by the Tribunal in Charrouf and Secretary, Department of Social Services[14] (Charrouf) in which Mr Charrouf gave evidence about his circumstances of obtaining a medical report from Dr D’Silva for the purposes of receiving the disability support pension. However, I can only place limited weight on these contentions because there is no evidence before me about these allegations against Dr D’Silva. I note that the decision in Charrouf relied on Mr Charrouf telling the Tribunal about his experiences in obtaining a report from Dr D’Silva. This is not identical to the case with Ms Haje-Obeid, who told the Tribunal that she met with Dr D’Silva and he assessed her for an intellectual impairment but recalled very few details about the appointments.
[14] [2015] AATA 38.
Findings
To qualify for disability support pension at the date of cancellation, Ms Haje-Obeid must have a physical, intellectual or psychiatric impairment that is 20 points or more under the Impairment Tables.
On 16 March 2012, Centrelink reconsidered its initial decision of 8 December 2011 and decided to not cancel Ms Haje-Obeid’s disability support pension on the basis that she had a ‘medical condition of Moderate Mental Retardation’. This decision took into account the reports by Dr D’Silva on 8 January 2012 and Dr Ali on 11 January 2012, and the JCA completed on 17 October 2011.
Ms Haje-Obeid was assigned 20 points under Table 6 in Schedule 1B of the Act, which the Secretary contended was the relevant table for assessing her psychiatric impairment under s 94(1)(b) before 1 January 2012. The criteria for 20 points is:
Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
Based on the medical evidence before me, I am satisfied that Ms Haje-Obeid did not meet the requirements of s 94(1)(b) of the Act at the date of cancellation. This finding is based on:
·the HPAU report dated 19 December 2014 and the report of Dr Armstrong dated 14 April 2016, which concluded that Ms Haje-Obeid did not have an intellectual impairment and that any diagnosis of depression was not supported by an appropriately qualified clinical psychologist or psychiatrist;
·none of the medical reports completed Dr Selim, Ms Haje-Obeid’s treating General Practitioner since 2001, referred to her having an intellectual disability;
·reports by Dr Phillips dated 7 August 2015 and 9 October 2015 did not refer to Ms Haje-Obeid suffering from an intellectual disability.
As Ms Haje-Obeid did not meet the requirements of s 94(1)(b) of the Act at the date of cancellation, I do not need to consider whether she had a continuing inability to work as required by s 94(1)(c).
I find that the decision to cancel Ms Haje-Obeid’s disability support pension on 8 December 2011 was correct and subsequently find that Ms Haje-Obeid was not eligible to receive the disability support pension from 8 December 2011 to 6 January 2015.
Does Ms Haje-Obeid have a debt for the period of 8 December 2011 to 6 January 2015?
Section 1223(1) of the Act provides:
(1) Subject to this section, if:
(a)a social security payment is made; and
(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain the benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Based on the evidence before the Tribunal, I am satisfied that Ms Haje-Obeid was overpaid the disability support pension in the amount of $43,624.68 for the period 8 December 2011 to 6 January 2015 because she was not eligible to receive the disability support pension during this period. I find that Ms Haje-Obeid has a debt to the Commonwealth.
Are there any grounds for waiving all or part of the debt?
Subsection 1236 of the Act provides, in part:
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
There is no evidence to suggest that any of the conditions set out in s 1236(1A) are met. I am not satisfied that the debt should be written off.
Should the debt be waived by reason of ‘special circumstances’?
Subsection 1237AAD of the Act provides:
Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
In Groth v Secretary Department of Social Security the Federal Court said:
… The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss… 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. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied...[15]
[15] [1995] FCA 989, at [11].
Ms Haje-Obeid stated that she was unable to pay back the debt due to financial hardship. While Ms Haje-Obeid has a current medical certificate stating that she is unfit for work/study from 15 September 2016 to 15 December 2016, I note that Ms Haje-Obeid was able to undertake employment for 15 hours per week from August 2015 to July 2016. I also note that if Ms Haje-Obeid’s circumstances change, she is entitled to submit a new application for disability support pension at any time.
Unfortunately for Ms Haje-Obeid, there is nothing which takes her situation out of the ‘usual or ordinary case’ and no occurrence that is ‘unfair, unintended or unjust’ that would support her experiencing ‘special circumstances’. I am satisfied that there are no special circumstances that warrant waiving the debt.
DECISION
The decision of the SSCSD made on 15 July 2015 is set aside and in substitution, the Tribunal decides that Ms Haje-Obeid has a disability support pension debt for the period 8 December 2011 to 6 January 2015 in the amount of $43,624.68.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member. .......................[sgd].................................................
Associate
Dated 25 October 2016
Date of hearing 19 September 2016 Solicitors for the Applicant Department of Human Services Respondent In person
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