Maan Charrouf and Secretary, Department of Social Services
[2015] AATA 38
•28 January 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/3106
General Administrative Division )
Re: Maan Charrouf
Applicant
And: Secretary, Department of Social Services
RespondentDIRECTION
TRIBUNAL: Senior Member J F Toohey
DATE: 20 February 2015
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- Where at paragraph 34 the decision reads “social or” the decision shall now read “social worker or”.
- Where at paragraph 35 the decision reads “impairment and it is possible” the decision shall now read “impairment and, had he conducted the original assessment, it is possible”.
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Senior Member J F Toohey
[2015] AATA 38
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3106
2014/3130
Re
Maan Charrouf
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Senior Member J F Toohey
Date 28 January 2015 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS – SOCIAL SECURITY – disability support pension – cancellation – intellectual disability – report provided by psychologist who did not assess applicant – report provided by psychiatrist who did not see the applicant– evidence of depression and anxiety – Job Capacity Assessments – debt raised – whether special circumstances – decision under review affirmed
Legislation
Social Security Act 1991 ss 1236, 1237AAD, 1237A(1)
Cases
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) FCA 25
Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
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
Background
On 21 August 2012, Mr Maan Charrouf claimed a Disability Support Pension (DSP). His application was supported by a report from Dr Joseph D’Silva, who described himself as a clinical social worker and psychologist, and a report from Dr Ishrat Ali, a consultant psychiatrist.
Dr D’Silva stated he saw Mr Charrouf for assessment on 15 August 2012. He stated he conducted psychometric testing, the results of which he set out in his report. He said Mr Charrouf “appeared to settle into the assessment quite well” but he “exhibited notable difficulties with receptive language during testing”. Dr D’Silva concluded that his “overall cognitive ability” was in the Extremely Low range and his IQ very probably was between 48 and 56; as such he met the diagnostic criteria for Mild Mental Retardation in the DSM-IV-TR and his application for DSP was “strongly supported”.
Dr Ali’s report was on a Centrelink form. He stated Mr Charrouf had “moderate mental retardation”. He stated he based his assessment on Dr D’Silva’s report and Mr Charrouf “did not have to see me”.
DSP granted
On 3 September 2012 a Centrelink Job Capacity Assessor interviewed Mr Charrouf. She was satisfied, based on the medical reports he provided, that he had an intellectual disability and a work capacity of less than 15 hours per week. Mr Charrouf was granted DSP as of 8 August 2012.
DSP cancelled
In mid-2013, after he was observed under surveillance performing activities that appeared inconsistent with his claimed disability, Mr Charrouf’s DSP was suspended and he was referred to a clinical forensic psychologist for assessment. On 30 October 2013, the psychologist attempted to conduct psychometric testing of Mr Charrouf. His report dated 4 November 2013 shows that Mr Charrouf was either unable or unwilling to perform all the relevant tests. As he could not make a determination of cognitive impairment, he recommended that Mr Charrouf be referred to a neuropsychologist for a comprehensive assessment. For reasons which are not clear, it does not appear this referral was made.
The same psychologist interviewed Mr Charrouf on 5 November 2013 for the purpose of a Job Capacity Assessment. In that capacity, he recorded that Mr Charrouf told him he could not use public transport without assistance, undertake money transactions or shop without the assistance of his wife, and he could use a mobile phone to receive calls, or to make calls with pre-saved numbers. The psychologist noted information obtained by the Department of Human Services which indicated that Mr Charrouf had an unrestricted Heavy Combination drivers licence, had been a “director/partner” in a business and had operated a store in a shopping centre without assistance; he had also been observed negotiating a sale and receiving money.
The psychologist reported:
The validity of Mr Charrouf’s earlier intellectual assessment results were called into question by the appropriateness of the test used, the accreditation of the interpreter used and his reported functional capacity. As a such (sic), a specialist assessment was undertaken to assess [his] intellectual functioning. This assessment found possible malingering behaviour and test results were unable to determine his currently intellectual functioning level. As [his] previous assessment … was deemed inappropriate and his current assessment indicated likely poor motivation/effort, no determination of cognitive impairment could be made.
In September 2013, Centrelink investigations led Australian Federal Police Officers to seize documents from Dr D’Silva’s and Dr Ali’s offices. It appears, although it is not clear, that the investigation was not limited to Mr Charrouf. Documents concerning Dr D’Silva’s appointments for August 2012 showed no record of an appointment with Mr Charrouf.
On 14 November 2013, Centrelink cancelled Mr Charrouf’s DSP on the ground that he did not have an intellectual impairment and did not qualify for the payment. Centrelink determined that he had a debt of $18,757.49 due to the Commonwealth on account of the payments made to him. Centrelink further determined there was no reason he should not have repay all of that debt.
Mr Charrouf seeks review of a decision of the Social Security Appeals Tribunal to affirm Centrelink’s decision. He is represented by Mr Omar Jamal.
Mr Charrouf’s claim for DSP not pressed
Mr Charrouf says Dr D’Silva’s and Dr Ali’s reports were obtained on his behalf by a person who offered to help him with his claims for DSP. He says he believed they concerned the anxiety he was suffering at the time because of circumstances including the end of his marriage. He does not claim to have an intellectual disability and there is no information before the Tribunal, other than Dr D’Silva’s and Dr Ali’s reports to suggest that he has. His evidence about their reports is considered below.
Mr Charrouf claims, and it is not in dispute, that he was suffering from anxiety around the time he made his claim for reasons including the end of his marriage. A medical certificate dated 16 August 2012 from his general practitioner, Dr Hany Abdulla, which he provided to Centrelink in connection with his Newstart Allowance, stated that he was suffering from “High level of anxiety with panic attacks, palpitations shortness of breath, dizziness, poor sleep and diet emotionally labile. Loss of function due to fear/anxiety”. Dr Abdulla described his condition as “temporary”.
Mr Charrouf does not press any entitlement to DSP on the ground of his anxiety in 2012. Even if he did, his claim could not succeed. To qualify for DSP, a person’s condition must be fully diagnosed, treated and stabilised at the time of the claim, or within the following three months (as well as satisfying other criteria). If not by a psychiatrist, the diagnosis of a “mental health condition” must be made by another appropriately qualified medical practitioner with evidence from a clinical psychologist: Introduction to Table 5 – Mental Health Function, Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
As the only evidence of diagnosis of Mr Charrouf’s condition is Dr Abdulla’s report, his condition cannot be considered fully diagnosed for the purposes of the Social Security Act 1991 (the Act). Moreover, his condition appears to have resolved.
It follows that Mr Charrouf had no entitlement to DSP during the time he was paid and he has a debt of $18,757.49 due to the Commonwealth.
Mr Charrouf’s evidence about Dr D’Silva’s and Dr Ali’s reports
Before these proceedings commenced, Mr Charrouf provided a written statement to Centrelink about the circumstances in which he obtained the report from Dr D’Silva. He gave oral evidence before the Tribunal consistent with his written statement.
Mr Charrouf says that, in mid-2012, he met a man who noticed that he seemed to be suffering from anxiety and offered to help him claim DSP. The man took him to see a doctor in Riverwood whose name he could not recall. During the appointment, the other man did all the talking and Mr Charrouf did not say anything to the doctor. The appointment lasted 10 to 15 minutes after which the doctor gave him a report on “OASIS” letterhead.
Although Dr D’Silva’s address is not in Riverwood, his report is on “OASIS” letterhead and it appears he was the doctor whom Mr Charrouf saw. (Dr Ali’s report states he did not need to see Mr Charrouf).
Mr Charrouf says he paid the man $500 which he did not think was unreasonable at the time for a medical report. He says he did not know it was based on his IQ levels and thought it was for his “mental condition”.
Is there any reason Mr Charrouf should not have to repay all of the debt?
The Act contains provisions by which, depending on the circumstances, some or all of a debt may be written off or waived.
A debt may be written off if, and only if: it is irrecoverable at law; the person has no capacity to repay it; the person’s whereabouts are unknown; or it is not cost-effective to try to recover the debt: s 1236. Mr Charrouf does not contend that any of these requirements applies in his case and I am satisfied that is correct.
A debt must be waived if it is attributed solely to administrative error and was received in good faith: s 1237A(1).
Section 1237AAD provides that a debt may be waived if it:
(i)did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation, or failing or omitting to comply with the relevant legislation; and
(ii)and there are special circumstances, other than financial hardship alone, that make it desirable to waive; and
(iii)it is more appropriate to waive than to write off the debt or part of the debt.
Mr Charrouf maintains that his debt must be waived by reason of administrative error on Centrelink’s part in failing to provide an interpreter at his interview with the first Job Capacity Assessor despite his request that one be provided. Had an interpreter been present, he says, he would have understood that her questions, and the medical reports, were directed towards his intellectual functioning rather than his anxiety. Had that happened, he says, he would not have been granted DSP and would not have the debt. He also says the Job Capacity Assessor should have observed that the certificate from Dr Abdulla referred to his anxiety and not to any intellectual disability.
The first Job Capacity Assessor gave evidence by telephone. She could not recall the particular interview with Mr Charrouf but said she believes an interpreter would have been provided had he requested one. She said the information provided to her was that his preferred language was English. She said she checked with Mr Charrouf several times during the interview that he understood her questions, and her report at the time records that she did, although I note that it did not record his response. I note from his report that the second Job Capacity Assessor conducted his assessment with an Arabic interpreter.
I accept the possibility that Mr Charrouf requested an interpreter and that the first Assessor thought one was not necessary. If that is so, then the safer course would have been to arrange for an interpreter to be present. However, even if that might be considered an administrative error for the purposes of s 1236 (which may be doubtful) it cannot reasonably be said that Mr Charrouf’s debt was attributable solely to that error. Mr Charrouf had claimed DSP and the decision to grant his claim was based largely on the reports he had provided in support of his claim. Centrelink is entitled to accept as genuine a report submitted by an applicant unless it has some apparent defect or deficiency.
Centrelink records show that Mr Charrouf submitted Dr Abdulla’s report on 17 August 2012 in support of his exemption from the activity test associated with his Newstart Allowance. He submitted his application for DSP separately several days later. Having considered Dr D’Silva’s and Dr Ali’s reports, the Job Capacity Assessor was not required to check all records held for Mr Charrouf to see if any referred to an intellectual disability. Even if it was usual practice to do so and even if there was administrative error in this case, I would come to the same conclusion as above.
It follows that there is no requirement that Mr Charrouf’s debt be waived.
Alternatively, Mr Charrouf says, the discretion in s 1237AAD should be exercised in his favour because of his special circumstances. He repeats his submissions about the presence of an interpreter at the first Job Capacity Assessment. Further, he says, he was a victim of a fraud and unwittingly presented Centrelink with what he does not dispute were fraudulent medical reports.
Section 1237AAD requires, firstly, that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation, or failing or omitting to comply with the relevant legislation. The Secretary submits that the Tribunal could be satisfied, on the information before it, that Mr Charrouf was aware that his claim was granted on the basis of false medical evidence; alternatively, that the debt resulted from the false statements made knowingly by the doctors in their reports.
Even if Mr Charrouf was not party to making a false statement or representation to Centrelink, it seems clear that Dr D’Silva almost certainly was. However, it is not necessary to make this finding because I am not satisfied in any event that there are special circumstances by reason of which any of Mr Charrouf’s debt should be waived.
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) 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.
It may be that the circumstances of this case are unusual but I am not satisfied they are special for the purposes of s 1237AAD.
Conclusion
This matter highlights some of the difficulties faced by Job Capacity Assessors, all of whom have some professional qualification related to the assessment of certain claims. They are commonly physiotherapists, psychologists, occupational therapists, social or, as in the case of the first Job Capacity Assessor here, rehabilitation counsellors. They perform a complex job, often under difficult circumstances.
Reports from Job Capacity Assessors show they are frequently required to assess a disability outside their formal qualifications. In this case, the first Assessor was a rehabilitation counsellor. It appears the second Assessor, who was a qualified clinical psychologist, was able to discern from Dr D’Silva’s report that the test he purportedly used to assess Mr Charrouf’s cognitive impairment was not appropriate. He also appears to have been alert to the possibility that Mr Charrouf’s presentation was not consistent with his stated impairment and it is possible Mr Charrouf’s claim would not have been granted. That is not to suggest there was any administrative error in how the first assessment was conducted. I mean no criticism of the first Assessor but the case highlights the importance of Assessors being qualified in the area of disability they are called upon to assess.
As I am not satisfied there is any reason why all or any of Mr Charrouf’s debt should be written off or waived, I affirm the decision under review.
37. I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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AssociateDated 28 January 2015
Date(s) of hearing
15 January 2015
Representatives for the Applicant
Mr Omar Jamal
Representatives for the Respondent
Mr Steven Davidson, Government Lawyer
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