Mohammad Hasan and Secretary, Department of Social Services
[2015] AATA 31
•22 January 2015
[2015] AATA 31
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3088
Re
Mohammad Hasan
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 22 January 2015 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS – SOCIAL SECURITY – carer payment – carer allowance – child – claim by father – congenital heart disease – evidence that medical reports not genuine –evidence of moderate developmental delay – no reliable evidence of care needs – decision under review affirmed
Legislation
Social Security Act 1991 ss 38E(3), 197B, 953(1)
Secondary Materials
Disability Care Load Assessment (Child) 2010 Determination
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
Mr Mohammed Hasan was born in Bangladesh. He has lived in Australia since 2000. He and his wife, Aklima Akter, married in Bangladesh in 2009. Ms Akter arrived in Australia in December 2011 with Mr Hasan and their infant son who was born on 18 April 2011. They have a second son who was born in Australia.
Mr Hasan and Ms Akter have a number of applications before the Tribunal for review of decisions concerning social security payments. Their applications in relation to the following matters were listed for hearing on 14 January 2015:
(a)Ms Akter’s claim for disability support pension (DSP);
(b)Ms Akter’s claim for carer payment and carer allowance in respect of their eldest son;
(c)Ms Akter’s claim for mobility allowance;
(d)Mr Hasan’s claim for carer payment and carer allowance in respect of their elder son;
(e)Mr Hasan’s claim for carer payment and carer allowance in respect of Ms Akter.
At a hearing on 14 January 2015, I first heard evidence from Ms Akter concerning her claim for DSP. I also heard evidence from three general practitioners whose reports Ms Akter and Mr Hasan had provided to Centrelink in support of their claims for carer payment and career allowance for their son. The first doctor gave evidence that his report was based on information that he now believed to be untrue and he no longer stood by it. At this point, Ms Akter advised in writing that she wished to withdraw her application in respect of DSP.
The other doctors gave evidence to the effect that documents purporting to be reports signed by them in support of Ms Akter’s and Mr Hasan’s claims for carer payment and carer allowance for their son were not genuine. Their evidence is discussed below.
I next heard evidence from Mr Hasan concerning his claim for carer payment and carer allowance in respect of his son. Time did not allow me to deal with the remaining applications and they have been listed for hearing on 16 and 17 March 2015.
Mr Hasan has two further applications before the Tribunal for review of decisions concerning his own claim for DSP and a claim for child care benefit. Those matters are currently in the Tribunal’s conference process and, if not resolved, will be considered at the hearing on 16 and 17 March if time permits; if not, they will be heard at a later date.
These reasons concern only Mr Hasan’s claim for carer payment and carer allowance for his elder son.
CARER PAYMENT AND CARER ALLOWANCE
8.The legislation concerning carer payment and carer allowance is contained in the Social Security Act 1991 (the Act).
9.Carer payment is an income support payment to a person who provides constant care at home to a dependent child with a severe disability or severe medical condition. The carer must have a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination2010 (the Determination) for caring for the child, and a treating health professional must certify in writing that, because of the disability or condition, the child will need personal care for six months or more. The provision of constant care must severely restrict the carer’s capacity to undertake paid employment: s 197B of the Act.
Carer allowance is a supplementary payment to a person who provides care and attention on a daily basis at home to a dependent child. The child’s disability must be one that is declared under s 38E(3) of the Act to be a recognised disability or the carer must have a qualifying rating of intense under the Determination for caring for the child: s 953(1) of the Act.
The Determination sets out the criteria to be met in order for a carer to have a qualifying rating of intense. Schedule 1 to the Determination includes an “assessment of care load questionnaire” about the functional ability, behaviour and special care needs of the child that a person claiming carer payment or carer allowance must complete. A second questionnaire must be completed by a treating health professional. Schedule 3 sets out those disabilities declared to be recognised for the purposes of s 953(1).
MR HASAN’S CLAIMS FOR CARER PAYMENT AND CARER ALLOWANCE FOR HIS SON
The history of Mr Hasan’s claim is complicated and confusing. He first claimed carer payment and carer allowance in respect of his son on 5 January 2012. In support of his claim he provided a report dated 2 November 2011 purporting to be from Dr A K M Aminul Hoque, Associate Professor of Medicine at Dhaka National Medical College and Hospital, Bangladesh; a Centrelink Carer Allowance – Medical Report purporting to be signed by Dr Hoque on 26 December 2011; and a report dated 2 November 2011 purporting to be from Dr Tofazzal Hossain Khan at Mirpur Adhunik Hospital Ltd in Dhaka. He also provided a signed document which indicated that his son had “valve hole on heart disease” and that his son was completely dependent on him in most respects and had a number of “special care needs”.
Mr Hasan was granted carer allowance and carer payment on 18 January and 30 January 2012 respectively.
On 22 October 2013, Centrelink notified Mr Hasan that his payments had been cancelled on the ground that reports submitted in support of his claim had not been completed by an eligible health professional and he had provided fraudulent documents with his claim. It appears Mr Hasan did not seek review of this decision.
For reasons which are not clear, Mr Hasan lodged a second claim for carer allowance and carer payment on 27 July 2013, before his payments were cancelled. In support of his claim he provided a Centrelink Review of Carer Payment and Carer Allowance – Medical Report purporting to be signed by Dr George Youssef on 2 July 2013; and a Centrelink Carer Payment and Carer Allowance – Medical Report purporting to be signed by Dr Youssef on 2 July 2013.
Mr Hasan also lodged a Centrelink Carer Payment and Carer Allowance – Medical Report signed by Dr Hosni Ayyas, general practitioner on 30 August 2013.
On 18 November 2013 and 11 December 2013, Mr Hasan submitted revised care needs assessment questionnaires. He also submitted a Centrelink Carer Payment – Medical Report signed on 13 December 2013 by general practitioner, Dr Naim Islam.
On 10 December 2013 Centrelink rejected Mr Hasan’s claim for carer allowance and carer payment.
On 23 May 2014, the Social Security Appeals Tribunal (SSAT) affirmed that decision. Mr Hasan seeks review of the SSAT’s decision.
The basis of Mr Hasan’s claim was that his son suffered from congenital heart disease which rendered him almost entirely dependent for all his care needs. Each of the medical reports provided in support of the application identified the child’s disability as congenital heart disease. No other medical condition or disability was referred to in the application or any other supporting document.
DOCTORS’ EVIDENCE CONCERNING MEDICAL REPORTS
Dr Islam and Dr Youssef gave evidence concerning the documents submitted by Mr Hasan in support of his claim. Dr Ahmed Elarif gave evidence concerning a document provided to Centrelink by Ms Akter in support of her claim for carer payment and carer allowance for their son.
Dr Islam gave evidence by telephone that he was the family’s doctor from December 2013. When he first saw the couple’s son, he noted Dr Ayyas’ diagnosis of congenital heart disease but he was “not happy” with it himself and he referred the child to cardiologist Dr Hamid Almafragy. Dr Islam gave evidence that he understood Mr Hasan and Ms Akter would take their son to Dr Almafragy but to date he has received nothing from Dr Almafragy to indicate he has seen them.
Dr Islam gave evidence that he based his report dated 13 December 2013, in which he referred to the child as suffering congenital heart disease, on the information in the report from Dr Hoque. However, on reviewing that report recently, he said he did not think it reflected the language and content he would expect of a doctor of Dr Hoque’s purported qualifications, and he did not think it was genuine. On this basis, Dr Islam said he revoked his own report. He also believed that his assessment of the child’s needs as set out in his report dated 13 December 2013 was no longer accurate though he stood by his assessment in that report of the child’s skills and abilities as “age appropriate”.
In respect of both reports purporting to be his, Dr Youssef gave written and oral evidence that Mr Hasan and his son were his patients between January 2013 and June 2013 during which time he saw the child for colds, influenza and minor illnesses. He said he did not complete either report dated 2 July 2013; he did not make a diagnosis of congenital heart disease; the signatures on the documents were not his; and while the stamp showing his name and the address of his practice resembles the stamp he uses, he did not place it on the documents.
Dr Elarif gave written and oral evidence that Ms Akter and her son were his patients between about July 2012 and January 2013 but he did not complete the report dated 20 November 2012; he did not record “congenital heart disease” on that form; a stamp showing his name and the address of his practice resembles the stamp he uses but he did not place it on the document; and the signature at the end of the document was not made by him. Dr Elarif said at no time did he recognise any symptoms that would indicate the child had congenital heart disease.
I have no reason to doubt the doctors’ evidence.
As to the reports purporting to be from Dr Hoque and Dr Khan, both of which state the child has congenital heart disease, I am not satisfied that either is genuine. Both list symptoms including “consume no food, loss weight, face color blue or faint, problem breathing, and x-ray report we found respiratory displace (sic)”. They ask that the child receive “proper medical treatment by operation from Australia immediately”. The text of each appears to have been cut and pasted on to what may or may not be genuine letterhead, and Dr Hoque’s name is spelled differently on the letterhead from in the body of the report. Mr Islam was unable to explain why this might be and declined to answer further questions about the reports.
I have not heard evidence from Dr Ayyas about his report of 30 August 2013 which refers to Mr Hasan’s son suffering congenital heart disease and I do not know whether he stands by it. I note, however, that in response to questions about the child’s language, physical and social abilities, Dr Ayyas stated each was “age appropriate” and he stated the child had none of the special needs listed on the form.
MR HASAN’S EVIDENCE
Giving evidence before the Tribunal, Mr Hasan was generally uncooperative and argumentative. He claimed he could not recall matters such as whether a signature on a document was his, and he refused to answer a number of questions. Towards the end of the hearing he left the room and did not return.
A Prosecution Report produced under summons shows that Mr Hasan was convicted in the Downing Centre Local Court on 4 November 2014 of six counts of using a forged document with the intention that it be accepted as genuine by a Commonwealth official, contrary to s 145.1(1) of the Criminal Code (Cth). The Report shows that Mr Hasan pleaded guilty to all charges and was fined and placed on good behaviour bonds.
Mr Hasan does not dispute the contents of the Prosecution Report. He concedes that four of the charges concerned the reports from Dr Youssef and Dr Elarif referred to above. He says he cannot remember which reports the remaining charges concerned.
CARE NEEDS ASSESSMENTS
Copies of three care needs assessment questionnaires completed by Mr Hasan in respect of his son are before the Tribunal. They were signed on 2 July 2013, 18 November 2013 and 11 December 2013.
In the questionnaire signed on 2 July 2013, Mr Hasan ticked answers indicating that his son was unable to move around indoors or outdoors by himself and was completely dependent; he required postural drainage, and needed his airways cleared through suctioning, three or more times each day and two or more times at night; he was fed by means of a tube and needed stoma care three or more times a day; he required emergency medication for seizures three or more times each month.
In the second questionnaire, Mr Hasan modified some of his responses. For example, he stated his son was not fed by means of a tube and did not require stoma care. In the third, his responses were further modified.
Giving evidence, Mr Hasan claimed that he misunderstood the questions on the forms and some of his answers on the first two forms were made by mistake. He said he no longer relies on the first two forms but the information provided in the third is correct. He maintains that his son has special needs which require his assistance.
Given the doctors’ evidence concerning the documents submitted by Mr Hasan and given his own unsatisfactory evidence, I do not accept, in the absence of independent evidence, that any of the information provided by Mr Hasan accurately reflects his son’s abilities or care needs, or the care Mr Hasan provides for him.
MODERATE DEVELOPMENTAL DELAY
On 28 May 2014, Dr Douglas Thenuwara at the Croydon Child and Family Health Service provided a “Developmental Assessment report” concerning Mr Hasan’ son. He stated that the child had been seen by Dr Christine Tan, a community paediatric registrar, for formal assessment, the results of which indicated that he has “moderate global developmental delay with severe delay in language and personal-social skills” and “some autistic features”. It appears, although it is not clear, that the child was referred for assessment by Dr Islam.
On 2 June 2014, Dr Terence Yoong, a paediatrician at Canterbury Community Health Centre, completed a medical report on a Centrelink form. He confirmed the assessment of moderate global developmental delay and stated that Mr Hasan’s son had “challenging [indecipherable]”. In relation to his “Special care needs” Dr Yoong indicated he had none of the needs listed on the form.
I have no reason to doubt these reports. I accept that Mr Hasan’s son has moderate developmental delay. However, I am not satisfied, on the information before me, that Mr Hasan provides a level of care that would qualify as intense for the purposes of the Determination. It follows that he did not qualify at the time of his application for either carer payment or carer allowance. There is no information before me to support a finding that anything about the child’s disability or the care provided by Mr Hasan would have qualified him for either payment since.
CONCLUSION
The decision to refuse Mr Hasan’s claim for carer payment and carer allowance for his son is affirmed.
41. I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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Associate
Dated 22 January 2015
Date(s) of hearing
14 January 2015
Representatives for the Applicant
Self-represented
Representatives for the Respondent
Dr Stephen Thompson, Solicitor
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