Mohammad Hasan and Secretary, Department of Social Services

[2015] AATA 195

[2015] AATA 195   

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2945
Re	Mohammad Hasan
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	31 March 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – social security – carer payment and carer allowance – claim that wife had congenital heart disease – Tribunal not satisfied documents submitted in support of claim genuine – inconsistent statements concerning wife’s need for care – Tribunal not satisfied applicant’s wife had been assessed and given the necessary scores under the Adult Disability Assessment Tool – Tribunal not satisfied applicant provided relevant level of care – decision under review affirmed

Legislation

Social Security Act 1999 ss 198 and 954
Social Security (Administration) Act 1999 cl 4(1) of sch 2

Cases

Akter and Secretary, Department of Social Services [2015] AATA 184

Hasan and Secretary, Department of Social Services [2015] AATA 31

Secondary Materials

Adult Disability Assessment Determination 1999

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Mohammad Hasan has made a number of applications to the Tribunal for review of decisions concerning claims for various social security payments.  This matter concerns his claim for carer payment and carer allowance in respect of his wife, Aklima Akter. 

2. Mr Hasan was born in Bangladesh.  He is an Australian citizen.  He and Ms Akter married in Bangladesh in 2009.  She arrived in Australia in December 2011 with Mr Hasan and their infant son.  They have a second son who was born in Australia.

3. On 27 July 2013, Mr Hasan lodged an application with Centrelink for carer payment and carer allowance in respect of Ms Akter.  On 11 December 2013, before his application had been determined, he lodged a second application.  Centrelink appears to have treated his second application as additional information about the first and, on 10 April 2014, affirmed a decision that Mr Hasan did not qualify for carer payment and carer allowance in respect of Ms Akter. 

4. On 23 May 2014, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.  Mr Hasan seeks review of the SSAT’s decision.

   Legislation

5. The legislation concerning carer payment and carer allowance is set out in the Social Security Act 1999 (the SS Act), the Social Security (Administration)Act 1999 (the Administration Act) and the Adult Disability Assessment Determination 1999 (the Determination).  In particular, ss 198 and 954 of the SS Act concern qualification for carer payment and carer allowance respectively.

6. Carer payment is a form of income support for a person who personally provides constant care for a disabled adult in a private residence that is the disabled adult’s home.  The disabled adult must have been assessed and rated under the Adult Disability Assessment Tool (ADAT) and given a score of at least 25, being the score calculated on the basis of a total professional questionnaire of at least 10: s 198 of the SS Act.

7. Carer allowance is a supplementary payment payable to a person who provides care and attention on a daily basis to a family member who has been assessed and rated under the ADAT and given an assessment of at least 30 on the basis of a professional questionnaire score of at least 12.  The care must be provided in a private home that is the residence of the carer and the disabled adult: s 954 of the SS Act.

8. The ADAT is contained in the Determination which is a legislative instrument.  It comprises two questionnaires designed to measure the amount of help a disabled adult needs with basic activities of daily living such as mobility, communication, hygiene, eating, and management in a range of cognitive and behavioural areas.  The carer must complete one part of the questionnaire and a Treating Health Professional must complete the Health Professional Assessment component. Minimum scores are specified for qualification for each payment.

9. To qualify for either payment, Mr Hasan had to satisfy the relevant criteria on 27 July 2013, or within the following 13 weeks, that is by 26 October 2013: cl 4(1), sch 2 to the Administration Act. I will call this the claim period. 

   Documents submitted by Mr Hasan in support of his claim

10. In support of his application, Mr Hasan has submitted the following documents:

    (a)claim forms signed by Mr Hasan as carer, and apparently co-signed by Ms Akter as the person being cared for, on 27 July 2013 and 11 December 2013;

    (b)a document purporting to be a report dated 1 October 2011 from Dr Aminul Hoque, Associate Professor of Medicine at Dhaka National Medical College and Hospital;

    (c)a Centrelink Carer payment and/or Carer Allowance Medical Report purporting to be signed by general practitioner, Dr Hosni Ayyas of Lakemba, on 23 July 2013;

    (d)a document purporting to be a report dated 1 October 2013 from Medhat Metry, psychologist;

    (e)a Centrelink Carer payment and/or Carer Allowance Medical Report purporting to be signed by general practitioner, Dr Naim Islam of Lakemba, on 19 December 2013;

    (f)Centrelink Carer payment and/or Carer Allowance Medical Report purporting to be signed by general practitioner, Dr Nafi Musa, on 2 March 2015;

    (g)Department of Immigration and Citizenship records of a medical examination of Ms Akter in Bangladesh on 24 June 2010 for the purposes of her visa application.

    Ms Akter’s evidence before the Tribunal

11. Ms Akter gave evidence before the Tribunal through an interpreter in the matter of her own claim for carer payment and carer allowance in relation to her elder son.  On 27 March 2015, I affirmed the decision that she did not qualify for either payment: Akter and Secretary, Department of Social Services [2015] AATA 184. The published decision at [33]-[35] describes the kinds of activities that Ms Akter claimed to perform for her son.

12. Ms Akter also gave evidence through an interpreter in the present matter.  Asked what medical conditions she suffers from, she gave evidence that she has polycystic ovaries and she suffers from depression.  She confirmed she has no other medical conditions that she is aware of.

13. Asked what sort of care Mr Hasan provides for her, Ms Akter said she suffers from depression and he often has to help her.  Asked for details of the care, she said he has helped her brush her teeth sometimes, although not regularly.  She said if her blood pressure is low he has to help her with dressing but this is “very rare”.  She maintained she had “some problem” using stairs in mid-2013 but she is “OK now”.  She said there was a time after she hurt her hand and it was in plaster when he had to help her bathe, and he sometimes sits by the bath with her. She said he makes sure she takes her medications regularly and he reminds her to eat when, sometimes, she forgets; he also helps with cooking, washing up and cleaning. 

14. According to the document purporting to be from Dr Hoque, Ms Akter has congenital heart disease that causes symptoms of weight loss, fainting and problems with breathing.  Asked about this document, Ms Akter claimed that Dr Hoque was her regular doctor in Bangladesh and, “at that point”, he thought she might have a heart problem.  I do not accept that explanation.  Later in her evidence she acknowledged that she does not have heart disease and has not sought treatment from any doctor in Australia for a heart condition. 

15. For the reasons set out below I am not satisfied that Dr Hoque’s report is genuine.   I am not satisfied that Ms Akter suffers from any form of heart disease.

    Mr Hasan’s evidence

16. Mr Hasan gave evidence before the Tribunal.  Asked about Ms Akter’s medical conditions, he said the Tribunal should look at the doctors’ reports.  Asked again, he said Ms Akter has “mental problems”.  He could not recall her other medical problems and again referred the Tribunal to the doctors’ reports.

17. Asked in what ways he cares for Ms Akter, Mr Hasan said he takes her to doctors’ appointments, buys her medication, provides companionship to keep her in a good mood, he showers her every day and helps her to the toilet.

18. Mr Hasan declined to answer questions from Dr Thompson about Ms Akter’s immigration records and declined to answer further questions about any of the medical reports submitted in support of his application.

    Dr Hoque’s report

19. The document dated 1 October 2011 purporting to be from Dr Hoque states he is Ms Akter’s regular doctor.  It states:

    [She] got congenital heart disease.  Therefore she got symptoms loss weight, face  faint, problem breating (sic), need to keep regular my prescribed medicine with her during travel to Australia and follow-up further treatment from Australia doctor (sic).

20. I am not satisfied this document is genuine.  The text has the appearance of having been cut and pasted on to what may or may not be genuine letterhead.  The letterhead is of Dr AKM Aminul Haque but the doctor’s name appears as Hoque in the body of the letter.

21. As set out above, Ms Akter gave evidence that she does not have heart disease and she has not sought treatment from any doctor in Australia for a heart condition.

22. Documents purporting to be reports from Dr Hoque concerning their son were submitted by Mr Hasan and Ms Akter in support of other claims for social security payments.  I found those documents to have been fabricated: Akter and Secretary, Department of Social Services [2015] AATA 184; Hasan and Secretary, Department of Social Services [2015] AATA 31. I make the same finding, for the same reasons, in respect of the document submitted in this matter. I place no weight on it.

    Dr Ayyas’ report

23. In the Centrelink Carer payment and/or Carer Allowance Medical Report purporting to be signed by Dr Ayyas on 23 July 2013, he states that Ms Akter is being cared for “heart valve disease” and requires care “for a significant period each day (at least the equivalent of a normal working day)”. This is the form that the ADAT requires to be completed by a Treating Health Professional.  It is apparently co-signed by Ms Akter.

24. In response to questions on the form, Dr Ayyas indicated that Ms Akter was incontinent in her bowels and had “occasional accidents” with her bladder; she needed help with personal care, toileting and feeding; she was unable to transfer from bed to chair and back because she had “no sitting balance”; she walked with the help of another person; she was dependent for dressing and bathing; she was unable to use stairs and she was cognitively impaired.  The report also indicated a number of behavioural problems such as aggression towards herself or others “often”.

25. Asked about Dr Ayyas’ report, Ms Akter gave evidence that she could not recall attending his rooms on 23 July 2013 and signing the form.  She said she did not think she was there; her husband took the form in to Dr Ayyas and he must have signed it for her; she was outside with the children.  It was put to Ms Akter that she did not have heart disease as indicated on the form and she replied “No, never”.

26. Asked about that part of Dr Ayyas’ report that purports to describe her ability to perform activities of daily living and so on, Ms Akter gave evidence that she had discussed these matters with her doctors but she had never seen this particular form before and her husband must have signed it.  She said Dr Ayyas never discussed his report with her.

    Assuming that Dr Ayyas’ report was in fact written by him, I am not satisfied that it reflects any medical condition suffered by Ms Akter.  It purports to state that she has a condition that she does not claim to have and has never sought treatment for.  It also purports to document severe disabilities at odds with reports purporting to be from Dr Islam and Dr Musa.  I place no weight on this document. 

    Dr Metry’s report

27. The document purporting to be from Dr Metry is addressed to Dr Ayyas and thanks him for referring Ms Akter whom Dr Metry first saw on 1 October 2013.  It states she may benefit from cognitive behaviour therapy to help her focus on “negative thoughts restructuring”, developing goals, anger management, stress and anxiety management and the like.  It states she was “well informed about the proposed treatment plan” and a further report would be provided “at the end of the program outlining the benefits the patient has achieved”.

28. This document may or may not be genuine. Ms Akter appeared stressed at times while giving evidence but whether that was from a genuine psychological condition I am not in a position to assess.  Dr Metry’s report does not indicate any diagnosis.  However, even if I accept the report is genuine and that Ms Akter suffers from depression and anxiety, nothing in Dr Metry’s report suggests a serious psychological condition or cognitive impairment or that Ms Akter requires the level of care needed in order for Mr Hasan to qualify for carer payment or carer allowance.

    Dr Islam’s report

29. According to the document purporting to be from Dr Islam, Ms Akter has “heart valve disease (under investigation)” and depression. It states that she requires care for a “significant period each day (at least the equivalent of a normal working day)”.

30. In response to questions on the form, Dr Islam indicated that Ms Akter was continent in her bowels but has “occasional accidents” with her bladder; she needs help with personal care, toileting and feeding.  In contrast to Dr Ayyas’ report, he indicated she can transfer independently from bed to chair and back, and was independent as to mobility, bathing and using stairs; she needs some help dressing.  He indicated she was not cognitively impaired.  As to behavioural problems, he indicated she sometimes shows signs of depression, and most of the time shows signs of memory loss but never displays aggression towards herself or others.

31. I have not heard evidence from Dr Islam in this matter.  However, he gave evidence on 14 January 2015 about another report submitted by Mr Hasan in relation to a claim for carer payment and carer allowance for his elder son.  In that report, Dr Islam stated that Mr Hasan’s son had congenital heart disease.  Dr Islam gave evidence that he based his opinion on a report from Dr Hoque which, on reflection, he now does not believe to be genuine (see Hasan and Secretary, Department of Social Services [2015] AATA 31 at [22]-[23].

32. I have doubts about the authenticity of the report from Dr Islam submitted in this matter.     Ms Akter gave evidence that she could not recall seeing him on 19 December 2014 for the purpose of his report.  However, even if I assume that it is in fact his report, I do not accept that it reflects any genuine medical condition suffered by Ms Akter other than, possibly, depression.  Nor do I accept that it reflects any of Ms Akter’s care needs.

    Dr Musa’s report

33. Dr Musa’s report dated 2 March 2015 is apparently signed by him and Ms Akter.  It is in the form required by a Treating Health Professional for the purposes of a claim for carer payment or carer allowance.  It states Ms Akter requires help on a daily basis for “depression, tiredness fatigue, looking after newborn, reflux oesophagitis (sic)”.  It describes her condition as “temporary”.

34. In relation to Ms Akter’s day to day needs, Dr Musa states she is continent as to her bowels and her bladder, and independent in her grooming, toilet use, feeding, dressing and using stairs.  She needs “minor help” with transferring from bed to chair and back, she walks with the help of one person, and she is dependent for bathing.  She is not cognitively impaired.  She “sometimes” shows signs of depression, social withdrawal and aggression towards herself or others; she never shows signs of memory loss or disinhibited behaviour.

35. Asked about this report, Ms Akter said she did not know if it was her signature on the report; she could not recall seeing Dr Musa; she did see him a couple of times but she could not recall the dates.

36. This document may be a genuine report from Dr Musa but it does not assist Mr Hasan’s claim.  It was not written until more than two and a half years after Mr Hasan’s claim.  There is nothing to suggest that Dr Musa saw Ms Akter during the claim period.  His report throws no light on any disability or any need for care during that period.  I place no weight on it.

    Department of Immigration and Citizenship records of medical examination

37. On 24 June 2010, Ms Akter attended a medical examination for the purposes of her application for a partner visa.  The report of the examination, which comprised examination by a doctor, a chest x-ray and blood and urine tests, is before the Tribunal.

38. The doctor’s report shows Ms Akter was in every respect “normal”.  In particular, her cardiovascular system, respiratory system, nervous system, mental and cognitive status, and intelligence were “normal”.  “No significant or abnormal findings” were found.

39. As set out above, Mr Hasan declined to answer questions about this report.  I am satisfied that it reflects accurately Ms Akter’s state of health in June 2010.  There is no credible evidence before me to support a finding that her health has altered since that time, other than for her possible depression. 

    Conclusion

40. For the reasons discussed above, I do not accept that Ms Akter suffers from any form of heart disease.  I will accept, for the purposes of this decision, that she suffers from depression.  However, Dr Metry’s report does not suggest it impairs her ability to function in any significant way or that she needs care because of it.  

41. I am not in a position to assess the existence or severity of any medical condition but, on both occasions Ms Akter attended the Tribunal, no physical impairment of any kind was apparent and, other than apparent stress at times, no psychological impairment was evident.

42. Mr Hasan and Ms Akter gave inconsistent oral evidence as to the extent of her disabilities and the care she required during the claim period.  In the absence of credible, independent evidence, I do not accept their claims.  There is no such credible, independent evidence.  As set out above, I find that some of the documents submitted by Mr Hasan have been fabricated, and the documents purporting to be from Treating Health Professionals are inconsistent as to the effects of any disability on Ms Akter’s ability to function and her need for care.  I do not accept that Mr Hasan provides Ms Akter with constant care or care and attention on a daily basis such that he qualified for either payment during the claim period

43. I affirm the decision under review.

44.       I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 31 March 2015

Date(s) of hearing		16 and 17 March 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Dr Stephen Thompson, Solicitor