Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Mawas
[2011] AATA 183
•22 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 183
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3860
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
MOHAMED MAWAS
Respondent
DECISION
Tribunal Ms J L Redfern, Senior Member and Dr Max Thorpe, Member Date22 March 2011
PlaceSydney
Decision The decision under review is affirmed. .................[sgd].............................
Ms J L Redfern
Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – cancellation – whether respondent ceased to qualify for disability support pension – assessment of impairment – continuing inability to work – standard of proof – decision under review affirmed
Social Security Act 1991 s 94, Schedule 1B
Social Security (Administration) Act 1999 s 64, 80
Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v Director-General of Social Security (1984) 1 FCR 354
REASONS FOR DECISION
22 March 2011 Ms J L Redfern, Senior Member and Dr Max Thorpe, Member BACKGROUND
1. Mr Mohamed Mawas has been in receipt of a disability support pension (DSP), or its equivalent, since 1990 from the age of 19. The basis of the grant was his intellectual impairment. On 4 December 2006 Mr Mawas’ DSP was cancelled and this decision was affirmed by an authorised review officer of Centrelink on 9 May 2007.
2. Mr Mawas appealed to the Social Security Appeals Tribunal (SSAT) and on 10 July 2007 the SSAT reinstated Mr Mawas’ DSP. The SSAT found Mr Mawas had an impairment rating of at least 20 points, was unable to work for 30 hours per week and therefore qualified for the DSP at the time of cancellation. The authorised review officer had applied the incorrect rules for assessing eligibility for DSP and determined Mr Mawas ceased to qualify because he had capacity to work more than 15 hours per week. This is the test for qualification after 1 July 2006, but as Mr Mawas had been on the DSP since 1990, the relevant threshold is 30 hours or more a week. This is not in dispute.
3. The SSAT found that, because Mr Mawas had not attended a number of medical appointments which had been arranged to assess his continuing entitlement to the DSP, his pension was not payable. However, by the time of the hearing, Mr Mawas attended those appointments and the SSAT considered whether Mr Mawas continued to qualify for DSP, taking into account the material available including the results of those assessments. The SSAT found Mr Mawas “remained qualified”.
4. The Secretary appealed to this Tribunal on 15 August 2007 and contends, notwithstanding the more favourable threshold, Mr Mawas did not qualify for the DSP at the time of cancellation. The hearing of the matter was delayed while the Secretary obtained further medical evidence, which is said to support this view.
ISSUES
5. The Secretary accepts Mr Mawas had some physical, intellectual or psychiatric impairment but contends any impairment did not qualify him for DSP under the legislative scheme. The issues for determination are whether, at the time of cancellation of his DSP, Mr Mawas had:
(a)medical conditions that could be assigned an impairment rating of at least 20 points under the Impairment Tables of the Social Security Act 1991; and
(b) a continuing inability to work due to these conditions.
LEGISLATION
6. The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
7. It is common ground Mr Mawas was granted an “invalid pension” in 1990 under the relevant Social Security legislation but when the Social Security Act was enacted in 1991, Mr Mawas’ pension was “grandfathered” and his entitlement to DSP is therefore to be determined under the provisions of the Social Security Act that applied to him at the time of cancellation. There have been a number of amendments to the disability pension provisions of the Act since Mr Mawas was first granted the pension but one of the more significant amendments was a change in how a claimant’s “continuing inability to work” is to be assessed. While it is now conceded by the Secretary that this did not affect Mr Mawas’ entitlement to qualify for DSP, it is relevant background to the case because the decision to cancel his pension in 2006 was made on the basis of the amended legislation.
8. To qualify for DSP a person must have a physical, intellectual or psychiatric impairment, the impairment must attract a rating under the Impairment Tables of at least 20 points and the person must have a “continuing inability to work”: s 94(1) of the Act.
9. The Impairment Tables are set out in Schedule 1B of the Act. According to the Introduction to Schedule 1B [at paragraph 1]:
These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. Work is defined in section 94(5) of the Social Security Act 1991. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is termed work‑related impairment and this term is used throughout this document.
10. The Introduction provides guidance to assessors in applying the Tables. Relevantly, paragraph 8 provides guidance about the approach to be taken when assessing chronic pain or fatigue. Paragraph 8 states:
In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.
11. Schedule 1B contains Impairment Tables which deal with particular impairments. The relevant tables for consideration in the present case are:
Table 6 Psychiatric Impairment
Table 10 Intellectual Disability
Table 20 Miscellaneous
12. Table 6 deals with rating for “Psychiatric Impairment”. The dispute between the parties relates to the issue of whether Mr Mawas would have been rated at “Nil” or “Ten” impairment points under this Table. Table 6 relevantly provides:
RatingCriteria
NILMild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TENModerate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full‑time work. (eg. short periods of absence from work).
13. Table 10 deals with rating for “Intellectual Disability”. Table 10 states as follows:
TABLE 10. INTELLECTUAL DISABILITY
This Table is only to be used for intellectual disability. Three key criteria are assessed, IQ using the Weschler Adult Intelligence Scale (Revised WAIS‑R) and two areas of social functioning: adaptive behaviour and capacity for independent living. The claimant is given a score for each and the three scores are then added. The final figure is converted to a work‑related impairment rating using the table below. A score can only be assigned for the two social functioning criteria if a score has been assigned for a low IQ. Where it is clear that the person is moderately to severely intellectually impaired, formal psychometric testing may not be necessary but in borderline and mild cases where no formal testing has been performed, this should be arranged.
INTELLIGENCE (IQ) SCORE ADAPTIVE BEHAVIOUR SCORE
Normal 0 No or only mild 0
behavioural problems
70 ‑ 79 3 Moderate to severe 3
behavioural problems
50 ‑ 69 5
30 ‑ 49 6
Below 30 8
CAPACITY FOR INDEPENDENT LIVING SCORE
Self‑sufficient 0
Needs supervision of daily activities and 3
routine financial transactions eg. needs to bereminded to perform routine tasks/personal care
Needs regular help with daily activities and 4
routine financial transactions
Needs major help with daily activities and 5
routine financial transactions
Totally dependent 6
(Conversion Table follows)
Table for conversion to work‑related impairment rating
SCORERATING
3TEN
5TWENTY
6TWENTY FIVE
7THIRTY
8THIRTY FIVE
9 or aboveFORTY
14. Table 20 deals with rates arising from “Miscellaneous” conditions and includes chronic fatigue and pain. The dispute between the parties relates to the issue of whether Mr Mawas would have been rated at “Nil” or “Ten” impairment points under this Table. Table 20 relevantly provides:
RatingCriteria
NILControlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end‑organ damage
Potentially life‑threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants ‑ well controlled (well functioning) with only mild systemic symptoms.
15. A person has a “continuing inability to work” under s 94(2) of the Act as follows:
94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on‑the‑job training during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on‑the‑job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
Note: For work see subsection (5).
16. Section 94(5) of Act was amended by the Employment and Workplace Relations Legislation Amendment (Welfare to work and other measures) Act 2005 to, amongst other things, reduce the hours of work for the purposes of assessing “continuing inability to work” from 30 hours to 15 hours. This amendment was effective from 1 July 2006 but it is agreed this does not apply to Mr Mawas. As such, for the purposes of assessing Mr Mawas’ capacity, “work” means work for at least 30 hours per week under s 94(5) of the Act.
17. At the relevant time, s 64(2) of the Administration Act empowered the Secretary to require a person who is in receipt of DSP to undergo medical, psychiatric or psychological examination where the Secretary was of the opinion the person should undergo such examination. If the person did not take reasonable steps to attend such examinations, the DSP is not payable: s 64(4) of the Administration Act.
18. Section 80(1) of the Administration Act empowers the Secretary to cancel or suspend a pension if the Secretary is satisfied the pension is not payable or the person does not qualify for the pension.
THE EVIDENCE
19. Mr Mawas did not attend the hearing or give evidence and therefore much of the information about Mr Mawas’ history and his physical and psychological symptoms was only available through the evidence he was reported to have given before the SSAT and the information he is reported to have given to numerous medical professionals. There is some inconsistency between the various accounts and this has been highlighted in the reasons that follow.
20. Mr Mawas was born in Lebanon in 1971 and migrated to Australia with his family when he was about four or five years old. He left high school in 1987 at the end of Year 9, which he repeated, when he was nearly 17 years old. According to the history provided to a number of clinical psychologists, Mr Mawas worked for brief periods after he left school until 1989 as a factory hand, labourer, machine operator and mail sorter for Australia Post. Mr Mawas did not work from 1989 and in mid 1990 applied for the invalid pension, as it was then known.
21. His application was supported by medical reports from Dr Osman Ali, his treating psychiatrist, dated 29 June 1990 and 25 July 1990. Dr Ali diagnosed Mr Mawas as having “mild mental retardation” or “mental retardation” and referred to IQ testing undertaken by Ms J Gibbs from the Commonwealth Employment Service (CES). The results of the IQ testing were stated to be 73 in the first report and 72 in the second report. Mr Mawas’ condition was described as “stable” and there was no reference to a psychiatric condition in either report. A copy of the report from Ms Gibbs was not included in the Centrelink files and counsel for the Secretary advised the report had not been located and may have been in other files. Neither party was able to produce a copy of the report.
22. The application was assessed by Dr R Godding, Commonwealth medical officer, who completed a Medical Impairment Assessment report dated 30 July 1990. The report was a Department of Social Security form which was completed by Dr Godding in handwriting by ticking the relevant boxes or making brief handwritten comments where indicated on the form. It is not known what independent enquiries were undertaken by Dr Godding but the report notes as follows under the heading of “Medical History”:
Mental retardation. Since birth. He has had IQ testing by CES and has been assessed at 73. He lives with his family and went to high school (special class) but can’t remember when he left school. He becomes easily upset and takes Prothiaden at night. He sees his psychiatrist-Dr Ali-regularly because of his “nerves”. If the tablets don’t help him, he may need an injection. He gets “upset” easily.
It is probable Dr Godding interviewed Mr Mawas as his notes record the following:
Mental state.
Fairly uncooperative, refuses to take his shoes off for Ht/Wt measurements. Orientation 1990 only.
Memory: short term: poorlong term: poor
Thoughts: no psychotic features (although a difficult historian).
Calculations: unable to performAffect: inappropriate at times -- smiles inappropriately and becomes easily agitated. Warns me not to “upset” him since he may then need an “injection”.
23. Dr Godding assessed Mr Mawas as having 50 impairment points under Table 11 (which was the relevant table for Intellectual Disability at the time). In Dr Godding’s opinion, Mr Mawas had no residual or potential capacity to work but he noted Mr Mawas would be suited for “sheltered workshop employment”. He also noted Mr Mawas had never worked, although this appears to be inconsistent with history given to others. He recommended review in two years. It also appears Mr Mawas was given a Mini Mental State Examination (MMSE), which is a test used to screen for cognitive impairment, as his report refers to the examination and recommends against releasing the results to Mr Mawas. The report of the MMSE was not included in the Centrelink files.
24. Mr Mawas was granted an invalid pension on 5 July 1990.
25. There is no detail as to the circumstances but on 22 August 1991, Dr Ali provided a further medical report to Centrelink, in a form headed “Invalid Pension – Request for Medical Details”, in which he diagnosed Mr Mawas as having “mental retardation and major depression”. It is also noted in the report that Mr Mawas was working at Amaroo Industries at that stage.
26. Apart from this request, there is no evidence that Mr Mawas’ entitlement to the invalid pension, or the disability support pension, was reassessed by Centrelink until early 2006. There are a number of medical reports in the Centrelink files from about 1994 to early 2006. These reports relate to other claims but it appears a number of these reports were provided to Centrelink or Health Services Australia Ltd (HSA) by Mr Mawas on or about 20 March 2006 as they have been endorsed with a HSA date stamp recording this date. They have nonetheless been relied on by both parties in these proceedings.
27. Mr Mawas sustained an injury in August 1994 when working at Nobby Kitchens as a stacker. He fell from a forklift and complained of back pain and pain in his left shoulder. According to a report from Dr Max Ellis dated 12 December 1994, Mr Mawas suffered “musculo-ligamentous contusion, aggravation of degenerative change in his lumbar spine and a traumatic capsulitis of his left shoulder”. Dr Ellis noted Mr Mawas’ condition had not stabilised at that stage but concluded “it is likely that there will be permanent impairment as his fall was from a considerable height injuring his back”.
28. There is also a report from Dr Medhat Guirgis, orthopaedic surgeon, dated 23 February 1995, which concludes there was 20% permanent impairment of Mr Mawas’ back and a permanent loss of 25% of the efficient use of his left arm at or above the elbow level.
29. Both reports were prepared for the purposes of a workplace injury claim and the assessment of impairment related to this claim. Dr Ellis prepared a further report on 28 May 2003 in which he recommended, amongst other things, physiotherapy and rehabilitation on light duties. He assessed Mr Mawas with 30% permanent impairment of his back, 10% permanent loss of efficient use of his right lower limb, 15% permanent loss of efficient use of his left lower limb, 25% permanent impairment of his neck and 25% permanent loss of efficient use of his left upper limb.
30. In addition to these reports, there were x-rays of Mr Mawas’ cervical spinal and left shoulder, a CT scan of his cervical spine and MRIs of Mr Mawas’ cervical and lumbar spine. In a report dated 12 May 2000 from Dr Graeme Shirtley, radiologist, it was noted that the x-rays of Mr Mawas’ cervical spine and left shoulder showed no abnormality, but the CT scan showed a “mild left postero-lateral bulge to the intervertebral disc, starting to encroach upon the intervertebral foramen on the left side” at the C5/6 disc. In two reports dated 19 June 2000 from Dr R Shnier, radiologist, it was noted that the MRI of Mr Mawas’ cervical spine showed “tiny posterocentral disc protrusions” at the C4/5, C5/6 and C6/7 discs and the MRI of his lumbar spine showed his “T11/12 disc is narrowed and desiccated and associated with Schmorl’s nodes”.
31. Further scans were undertaken in 2003 and 2006. Dr Bruce Jones prepared a report dated 3 April 2003 and Dr George Cohen prepared a report dated 11 April 2003. These reports set out the results of a CT scan of Mr Mawas’ cervical spine, his head and an ultrasound of his left shoulder. According to the first report there was mild disc bulging at C4/5, C5/6 and C6/7 but “no significant spinal canal stenosis”. According to the second report, the scan of Mr Mawas’ head was normal but Dr Cohen found “features consistent with tendonitis” in Mr Mawas’ left shoulder. Dr Jones performed scans on Mr Mawas’ lumbar spine and left hip in 2006. According to his report of 21 November 2006, there was evidence of “very mild disc bulging” but Mr Mawas’ spinal canal was not significantly narrowed and there were “no features of trauma”. Very mild degenerative change was noted at the L5/S1 region and the results for Mr Mawas’ hip were normal.
32. There is no direct evidence about the outcome of the workplace injury claim, although it is recorded in the medical report of Dr Thomas O’Neill (which is referred to in more detail at paragraph 34) that Mr Mawas said he was awarded $15,000 but was proposing to appeal the decision. There is no further information about this claim.
33. Included in the Centrelink files is a report from Dr Bruce Westmore, forensic psychiatrist, dated 14 February 2000. It appears from this report that Mr Mawas was charged with criminal charges of obtaining benefit by deception relating to a telephone bill and Dr Westmore was asked to provide a report to support Mr Mawas’ defence of these charges. Dr Westmore, concluded as follows:
As noted at the commencement and throughout this report your client is extremely disturbed, he is developmentally disabled, he has an acute on chronic psychiatric disability. He presents as being a tearful, depressed man with limited emotional, psychological and financial resources.
Apart from the stress of his legal charges he also has three young children and he believes that the police are continually harassing him. I cannot comment on whether this belief system has any reality basis or not.
A report from a psychiatric registrar dated 1 March 1999 indicates this man suffers from major depression and mental retardation.
Dr Ali also makes the diagnosis of major depression and mental retardation in his report of 29 May 1995.
His work injury possibly also causes him to suffer from a chronic pain syndrome which no doubt aggravates his overall condition.
Your client requires urgent psychiatric assistance, I have as noted earlier, advised his GP of this urgent need and hopefully this will happen within the next few days.
34. Mr Thomas O’Neill, clinical psychologist, also provided a report dated 16 March 2000 for the purpose of the criminal proceedings. Mr O’Neill administered the Wechsler Adult Intelligence Scale – 3rd Edition test to assess Mr Mawas’ overall intelligence. Mr Mawas was assessed with an IQ of 57, being a mild range of intellectual disability. This was lower than Mr O’Neill expected and he suggested three possible reasons for this being: psychological distress at the time of assessment, a mild deterioration of intellectual functioning over time or the failure by Mr Mawas to perform to the best of his ability on the assessment.
35. At around this time, Mr Mawas’ treating doctor, Dr Wael Ghannoum, referred him to Dr Attia-Soliman, general practitioner. Dr Attia-Soliman provided a report dated 26 March 2000 for the criminal proceedings and made a provisional diagnosis of chronic schizophrenia and major depression with mild developmental disability. Dr Attia-Soliman recorded she had seen Mr Mawas twice and was apparently provided with information that he had a ten year history of psychotic symptoms. She commenced Mr Mawas on antipsychotic and antidepressant medication.
36. On 28 January 2006 Dr Ghannoum provided a report to Centrelink. According to the decision of the SSAT, this report was prepared, at the request of Centrelink. The report was in a “proforma” document and Dr Ghannoum has either ticked boxes in response to questions or made handwritten comments on the form. In response to a question about whether Mr Mawas had medical conditions which would have a significant impact on his ability to function, Dr Ghannoum nominated two conditions. The first was lower back, neck and shoulder pain arising out of his workplace injury. The second was depression and anxiety which was said to have been diagnosed in 1989.
37. Dr Priya Weerasinghe, medical adviser at HSA, made an assessment of Mr Mawas’ conditions for Centrelink, apparently by reference to the Centrelink files, medical reports provided by Mr Mawas and an interview with Mr Mawas. Dr Weerasinghe completed a Medical Assessment Report dated 20 March 2006 and noted four medical conditions being; the lower back, neck and shoulder pain and depression and anxiety. Dr Weerasinghe recommended that an independent assessment be made of Mr Mawas’ conditions by an occupational physician. It was also noted Mr Mawas attended the interview in a wheelchair but there was no independent evidence to support this was needed.
38. Neither Dr Ghannoum nor Dr Weerasinghe referred to Mr Mawas’ intellectual impairment.
39. Following Dr Weerasinghe’s recommendations, Centrelink arranged a number of medical appointments from about April 2006. Mr Mawas did not attend all of the appointments and Centrelink wrote to Mr Mawas by letter dated 11 October 2006 advising him his disability support pension would be cancelled under s 64 of the Administration Act if he failed to attend further appointments. These further appointments were arranged in November 2006, including a job capacity assessment, but Mr Mawas again failed to attend these appointments. His disability support pension was cancelled on 4 December 2006.
40. Mr Mawas applied for the Newstart allowance after the cancellation of his pension and was referred for a job capacity assessment on 14 December 2006. The assessment was undertaken on 4 January 2007 by Daniel Wood, accredited rehabilitation counsellor. Mr Wood concluded that Mr Mawas had a temporary incapacity and could only work up to seven hours per week over the next few years without intervention. With the appropriate intervention, Mr Wood assessed that Mr Mawas’ work capacity could increase to 15 to 22 hours per week and he would be suitable for light less skilled work such as process work. In his report, Mr Wood recounted a history from Mr Mawas that he had opened a stall at the markets two years earlier but closed them down shortly after due to fighting with customers. Mr Mawas told a different story to the SSAT in unrelated proceedings about a mobility allowance before that tribunal in June 2008. It was also reported that Mr Mawas had worked as a mail sorter for two years but this history is inconsistent with earlier reports which suggest that Mr Mawas was only in this role for a brief period after he left school. Mr Wood identified the intervention required, which included ongoing psychological treatment and job seeking assistance.
41. After the cancellation of Mr Mawas’ pension, Centrelink arranged further medical assessments, which he attended.
42. Dr Kathryn Lovric, consultant psychiatrist, assessed Mr Mawas on 12 January 2007 and prepared a report for Centrelink. The report records that Dr Lovric was provided with Mr Mawas’ Centrelink file, which apparently included a number of the reports referred to earlier in this decision. Dr Lovric summarised the reports and recorded that Mr Mawas told her he first started developing psychiatric symptoms around 1989 when he visited Lebanon. Mr Mawas reported that he had been abducted by Syrian troops who kept him captive for a period of time. When he returned to Australia he was treated by Dr Osman Ali for the next three to four years. Relevantly, Dr Lovric concluded:
It is not uncommon that people with intellectual disability experience psychiatric problems. Such problems range from minor depressive illnesses to frank psychotic symptoms. Given Mr Mawas is currently taking anti-psychotic medication which may dampen or completely ameliorate the psychotic symptoms, it is very difficult for me to confirm this diagnosis, and it will be invaluable to see reports of other psychiatrists who saw Mr Mawas at times when he was allegedly ‘hearing voices’. He is not currently suffering psychotic symptoms.
It appeared to me that Mr Mawas was certainly exhibiting abnormal illness behaviour and it did not appear to me that his orthopaedic injuries were of such severity or significance that he would be wheelchair bound. Whilst there is a possibility that this abnormal illness behaviour has been generated by psychological factors such as an unconscious need for care and nurturing, and is being perpetuated by the secondary gains of the sick role, there is also a strong possibility that such symptoms are being fabricated and represent malingering.
To evaluate such possibilities I would need to review contemporaneous reports of all treating and assessing doctors including those of his current General Practitioner and perhaps also results of surveillance videos. I understand that Mr Mawas is due to be assessed by an Occupational Physician in the near future, and I would be prepared to reconsider my opinion after physical assessment of Mr Mawas’ problems.
Regardless of the eventual diagnosis, I was not of the impression that Mr Mawas’ psychiatric status would currently interfere with his capacity to perform at least part-time work. It may be however that his physical status would preclude this and I note that he has only ever performed labouring duties for a short period of time. At present Mr Mawas does not appear to be deeply depressed and has no active symptoms of psychosis despite his reports of post traumatic stress symptoms.
43. Mr Mawas was examined by Dr Michael Gliksman on 15 January 2007. He attended in a wheelchair accompanied by his nephew, who was his carer at that time. Dr Gliksman reviewed x-rays, CT scans and MRI reports provided by Centrelink and he concluded:
There is no medically credible pathophysiological explanation for the nature, extent, duration or intensity of the symptoms claimed by Mr Mawas. Clearly, he does not require the use of a wheelchair or of any aids for ambulation.
44. Dr Peter Vodicka, senior medical adviser with the HSA Group, was provided with the Job Capacity Assessment report of 4 January 2007. It is unclear what other documents or reports he was given but he prepared a report for Centrelink dated 13 February 2007. In his report Mr Vodicka assessed Mr Mawas as having a combined impairment rating of 20 points; comprising 10 points for Intellectual Disability under Table 10 and 10 points for chronic pain syndrome/abnormal illness behaviour under Table 20. He also assessed Mr Mawas as having a work capacity which was likely to increase to 15 to 22 hours per week with appropriate intervention.
45. Mr Mawas sought a reconsideration of the cancellation decision. The decision was reviewed and confirmed by letter dated 1 March 2007. Mr Mawas then requested a review by an authorised review officer (ARO). The ARO relied on the reports of Dr Lovric and Dr Gliksman and noted that, while the reports indicated Mr Mawas had genuine medical issues, the severity of those problems was exaggerated on formal examination. The ARO could therefore not be “certain” Mr Mawas had a sufficient impairment rating to qualify for the DSP. The ARO also relied on the Job Capacity Assessment report dated 4 January 2007, but wrongly assessed Mr Mawas against the post 1 July 2006 criteria and found that as Mr Mawas was able to perform work for at least 15 hours a week, he did not qualify for the DSP. He confirmed the decision to cancel Mr Mawas’ pension on 9 May 2007.
46. Mr Mawas appealed to the SSAT and gave evidence at the hearing. The SSAT found Mr Mawas had an impairment rating of at least 10 points under Table 10 and possibly more given their view Mr Mawas could be said to have moderate to severe behavioural problems. It was also found Mr Mawas had an impairment rating of 10 points under Table 20 but, if not, an impairment rating of 10 points under Table 6 was also warranted. The only evidence about Mr Mawas’ continued inability to work was from the Job Capacity Assessment report of 4 January 2007, which concluded that, even with intervention, Mr Mawas would not have capacity to work 30 hours or more per week. For these reasons, the SSAT concluded Mr Mawas qualified for the DSP at the time of cancellation and the pension was reinstated.
47. The Secretary sought a review of the decision of the SSAT to this Tribunal and arranged for Mr Mawas to undertake further medical assessments.
48. Dr John McMahon, clinical psychologist, examined Mr Mawas on 2 December 2009 for psychometric assessment. He prepared a report dated 22 December 2009 and also gave evidence before the Tribunal. Dr McMahon carried out three tests to assess various aspects of Mr Mawas’ functioning: a test for intellectual functioning (the Wechsler Adult Intelligence Scale - III Test, WAIS); a test for executive functioning (D-KEFS Color-Word Interference Test) and symptom validity testing (Test of Memory Malingering, TOMM). Dr McMahon reported that Mr Mawas’ performance for intellectual functioning was in the extremely low range for all tests and recorded Mr Mawas as having an IQ of 50. Mr Mawas’ performance for executive functioning was very poor and was generally at or below the first percentile. However, Dr McMahon reported that the symptom validity testing suggested Mr Mawas’ responses were not genuine. In Dr McMahon’s opinion, Mr Mawas’ performance on the WAIS testing was invalidated by evidence of motivational factors and this was supported by the results of the symptom validity testing.
49. Dr McMahon did not offer an opinion about what he considered to be Mr Mawas’ level of intellectual functioning but told the Tribunal that a person with an IQ between 70 and 75 fell into the borderline range of intellectual functioning. Whether such a person could function effectively would depend on their range of “adaptive functioning”, that is, whether the person is able to learn. Dr McMahon was asked to read extracts of an unrelated decision from the SSAT in 2008 which recorded that Mr Mawas had been operating a Saturday stand at the Fairfield markets, a Sunday stand at the Flemington markets and a regular stand at a Trash and Treasure Market. Dr McMahon told the Tribunal this would suggest more adaptive functioning than would usually be the case with someone in the borderline intellectual range of function, but agreed the information contained in the decision was limited and no inferences could be made about the decisions Mr Mawas was making and whether his functioning was effective. Dr McMahon was questioned about whether IQ could decline. He told the Tribunal that IQ tended to remain stable.
50. Mr Greg Fathers, consulting psychologist, examined Mr Mawas on 5 February 2009 and prepared a report for Centrelink on the same day. Mr Fathers also gave evidence at the hearing before the Tribunal. In Mr Fathers’ opinion, there was evidence of abnormal illness behaviour. Relevantly, Mr Fathers reports:
In my opinion, he could probably work. There is evidence of some mild disability but I would suggest this is not necessarily a reflection of simply low intelligence, measured or otherwise. There would seem to be evidence of possibly a learning disability but this is not disabling. Mr Mawas has still been able to work. What seems to have been upsetting for him was that he did not get along very well with people. Mr Mawas said little about his childhood but it would seem that despite his statements at interview, that he was in some ways a lonely child and probably felt rejected.
51. Mr Fathers explained “abnormal illness behaviour” as behaviour where a person reports physical symptoms but there is no adequate medical explanation or “no substantial organic cause”. Mr Fathers said he had based this opinion on the reports provided but agreed this was not in his area of expertise. He also conceded that he could not form the view there was “no basis” for symptoms but rather that Mr Mawas had exaggerated his symptoms. Mr Fathers was asked his opinion about Mr Mawas’ ability to work. After initially being reluctant to express a view, Mr Fathers said that if vocational testing was undertaken and Mr Mawas was placed in a rehabilitation program which he successfully completed, he believed Mr Mawas could work 30 hours or more a week.
52. Dr Lovric examined Mr Mawas a second time in April 2010 and provided a psychiatric assessment of Mr Mawas in a report dated 7 April 2010. Dr Lovric also gave evidence. Dr Lovric reported that Mr Mawas refused to complete the interview and left after 25 minutes. She was provided with medical reports for Mr Mawas and was asked to assess Mr Mawas’ conditions as at the time of a cancellation of his DSP and within 13 weeks from that time. Mr Mawas told Dr Lovric he had recently returned from a five month trip to Lebanon. Dr Lovric noted that there was no “abnormal illness behaviour” as previously demonstrated in her assessment of 2007 and reported as follows:
The additional documentation with which you have provided me suggests that Mr Mawas is an inconsistent historian, which makes assessment of his psychiatric state extremely difficult. Recent cognitive testing was invalid due to Mr Mawas’ lack of motivation and cooperation at interview. Whilst there is a possibility that such behaviours are influenced by low or borderline intellectual function, I am not qualified to comment on that specific diagnosis. I could make no psychiatric diagnosis in the very limited interview today.
53. When Dr Lovric gave evidence, she confirmed the difficulties in providing a diagnosis for Mr Mawas as follows:
Are you reasonably satisfied that you are able to give an opinion concerning Mr Mawas?---No, I’m not, and I think that the very first thing that I would want to clarify would be, in fact, whether there is a degree of mental retardation and how significant that is. I think that if it could be established that this man is significantly mentally retarded, then a lot of his behaviour could be explained by that degree of mental retardation. However, the information that we have so far which really, unfortunately, only consists of that test that was done in 1990 and we don’t have the actual test results, or I’ve not seen them, I can’t verify how well this testing was performed, whether or not there were specific tests inserted into that testing to check for validity of the results. I think it is very difficult to really understand what is going on with this man, which is why, as I said, I found the report from Dr McMahon to be interesting and important.
54. Dr Lovric told the Tribunal notwithstanding these difficulties in diagnosis, she did not believe Mr Mawas has suffered from a psychotic illness. She did not offer any opinion about Mr Mawas’ ability to work in her second report or in giving evidence.
55. Mr Bernard Slattery, of the Advocacy Branch, Centrelink, gave evidence that until recently two people were receiving a carer payment in respect of Mr Mawas. Mr Amhed Morris was granted carer payment and carer allowance from 15 October 2002 but this had been reviewed and cancelled effective from 2 December 2010. Mr Bilal Wachaa, who was Mr Mawas’ nephew, was also granted a carer payment from 15 October 2002 and currently receives the payment. Mr Mawas has received a carer’s allowance for his daughter since 2 October 2002 but Mr Mawas’ former wife has sought a review of this allowance and this matter is currently before an authorised review officer.
56. The Secretary tendered a document, without objection, headed “Travel Outside Australia Summary”. This document shows Mr Mawas travelled to Lebanon on seven occasions between October 1996 and November 2009, usually for about a month but on three occasions for extended periods of up to four or five months. Mr Mawas travelled to Indonesia twice, once for three weeks and the second time for nine days. He was also reported as “Touring outside Australia” for three weeks in February 2007. It is not clear whether Mr Mawas’ carers accompanied him overseas, although Mr Slattery told the Tribunal that “one of them may have” but “there were periods when Mr Mawas was overseas without a carer”.
SUBMISSIONS
57. The Secretary contends Mr Mawas had capacity to work at the time of cancellation and this is evidenced by his work as a mail sorter for Australia Post for at least six months after he left school and his work at the market stalls he was reported to have operated over a period of two years from about 2005. It is submitted that operating the stalls shows capacity to run a business enterprise that is inconsistent with Mr Mawas’ earlier diagnosis of mental retardation. Moreover, there is no objective medical evidence to support the physical disability Mr Mawas claims. The Secretary contends it is likely Mr Mawas has been working because he would not have been able to fund his frequent trips overseas from the pension. While there is no clear evidence Mr Mawas has worked 30 hours a week, the Tribunal could infer from the available evidence that he had such capacity at the time of the cancellation.
58. The opinion about capacity in the Job Capacity Assessment report of 4 January 2007 should be given little weight as it was based on the assumption Mr Mawas had permanent depression, anxiety and spinal disorder. It is submitted that the evidence of Dr Lovric and Dr Gliksman discounts this. The assessor also proceeded on the basis Mr Mawas had difficulty reading and writing but evidence of his work at Australia Post suggests otherwise. The Secretary submits that if the assessor had been aware of these matters, he may have formed a different view. The report of Dr Peter Vodicka should also be discounted because he undertook a limited review. Dr Lovric concluded Mr Mawas was capable of at least part time work and Mr Fathers gave evidence that Mr Mawas could work 30 hours or more, with some intervention.
59. The Secretary also contends Mr Mawas did not have permanent impairment totalling 20 points at the time of cancellation. Notwithstanding his reported IQ of 72 or 73, Mr Mawas had well developed adaptive behaviours which allowed him to function effectively. This is evidenced by his work for Australia Post, his business at the markets and his dealings with Centrelink.
60. Mr Hodges, who represented Mr Mawas at the hearing, submits Mr Mawas had impairment of at least 20 points under the relevant Impairment Tables at the time of cancellation.
61. There is evidence from Dr Guirgis, Dr Ellis and objective evidence from radiologists’ reports about Mr Mawas’ physical injuries. While there may be evidence Mr Mawas has exaggerated his disability, there is no evidence that challenges the evidence of these specialists. It is submitted Mr Mawas has physical impairment and pain as a result of his earlier injuries and this loss of activity has been acknowledged by Centrelink, which has allowed him two carers from October 2002. Even though Mr Mawas has not been assessed as having impairment under one of the other Impairment Tables for his underlying physical conditions, there is evidence he would have qualified for 10 impairment points under Table 20 on the basis of his chronic pain. This is said to be supported by Dr Peter Vodicka and there is no justification to disregard this report, even though it is brief.
62. Mr Hodges says that, even if it is accepted Mr Mawas may have manipulated the results of recent IQ testing, there is no evidence to suggest the testing undertaken in 1990 was flawed. Mr Mawas would therefore have qualified for at least 10 impairment points under Table 10 at the time of cancellation but there is evidence to support a higher rating. There are three criteria for Intellectual Disability under Impairment Table 10; intelligence, adaptive behaviour and capacity for independent living. It is argued Mr Mawas may have satisfied at least 40 impairment points under this Table when each criterion is assessed, scored and combined to calculate the total impairment rating. Mr Mawas’ IQ is in the range of 70 to 79 and this attracts a score of 3 under Table 10. There is evidence Mr Mawas had “moderate to severe behavioural problems”, as referred to in various medical reports, and this would give Mr Mawas a further score of 3 under Table 10. It is submitted Mr Mawas needed supervision for daily living at the time of the cancellation (giving a further score of 3) and this is said to be evidenced by the care provided by his nephew, which was supported by carer’s payments from Centrelink from 2002. Taking into account each of these scores, Mr Mawas would have an impairment rating of 40 points. It is also submitted Mr Mawas would have qualified for 10 impairment points under Table 6 as there is evidence Mr Mawas received, at least “sporadically”, psychiatric treatment from 1990.
63. Mr Hodges submits there is no evidence Mr Mawas could work 30 hours or more per week as at the time of cancellation. There was evidence from Mr Fathers that Mr Mawas would be able to work 30 hours or more with the assistance of rehabilitation and training but there is no evidence of how long it would take to achieve this, which is particularly relevant given Mr Mawas had not worked for “many years” at the time his pension was cancelled. In any event, he says this does not overcome s 94(2) which provides a person will have a “continuing inability to work” if the impairment would prevent the person doing at least 30 hours work within the next two years and vocational or other training is unlikely to enable the person to work for 30 hours or more within the next two years. The only direct evidence on this issue was contained in the Job Capacity Assessment report 4 January 2007 and the report of Dr Vodicka. The assessor states Mr Mawas would be able to work the 15 to 22 hours per week after appropriate intervention “in the future”. While there is no indication as to what this means, elsewhere in the report it is clear that the intervention required would be for a duration of “more than 24 months”. Dr Vodicka agrees with this conclusion. As such, it is submitted there is evidence Mr Mawas had a “continuing inability to work” within the meaning of s 94(2) at the time of cancellation and there is no evidence to suggest otherwise.
64. A further issue raised by both parties is the onus of proof and evidentiary burden that should be applied by the Tribunal when considering the review. It was submitted for Mr Mawas that cancellation of his DSP was not based on any change in circumstances but on the basis Mr Mawas lacked credibility, was dissembling and, because of his lack of candour and misrepresentation, had been taking money to which he was not entitled. This was like fraud on the Commonwealth and the Tribunal would need to be comfortably satisfied Mr Mawas deliberately manipulated his IQ score in 1990: Briginshaw v Briginshaw (1938) 60 CLR 336. To succeed, the Secretary must establish there has been a change in circumstances or that the original basis of the claim was incorrect. The Secretary has done neither. At its highest, the evidence is inconclusive and on the basis of McDonald v Director-General of Social Security (1984) 1 FCR 354, the issues must be resolved in Mr Mawas’ favour.
65. The Secretary contends it is not argued there has been fraud or manipulation, simply that it is open to the Secretary to reassess entitlement at any time after a pension has been granted. Having undertaken the assessment, the Secretary formed the view Mr Mawas did not have an impairment of at least 20 points, nor did he have a continuing inability to work. There is no estoppel created by the fact Mr Mawas has been on DSP since 1990 and there is no additional evidentiary burden. The Secretary contends that McDonald is not authority for this proposition and refers to the comments of Northrop J as follows (at 366):
A pension is paid only so long as the pensioner is qualified to receive the pension. The rate of pension may vary depending upon what facts are known by the Director-General or his delegate. If a change in circumstances occurs, it is unreal to suggest that the Director-General, or his delegate, has an onus of proof, whether evidentiary or not, to be satisfied before varying a pension entitlement. The ultimate question is whether the person is qualified to receive the pension and, if so, at what rate. These questions must be decided after a consideration of all the material before the Director-General, or his delegate, when the decisions are made. The question of whether a pensioner is “permanently incapacitated for work” has to be decided in accordance with the opinions expressed above.
66. In the present case, the Secretary submits the evidence is sufficiently strong to warrant a finding that Mr Mawas’ pension was properly cancelled. Dr Lovric has ruled out impairment on the basis of psychiatric illness; Dr Gliksman has ruled out impairment on the basis of physical injury and Dr McMahon and Mr Fathers have given evidence limiting the scope of Mr Mawas’ intellectual disability.
CONSIDERATION OF THE EVIDENCE AND DISCUSSION
67. We agree with the submissions of the Secretary in relation to onus of proof and evidentiary burden but in this case, we find there was insufficient evidence to justify the cancellation of Mr Mawas in December 2006.
68. In McDonald the Federal Court (Woodward, Northrop and Jenkinson JJ) considered the issue of whether, once an invalid pension was granted, there was an evidentiary onus on the Director-General to satisfy himself of changed circumstances before cancelling the pension. Their Honours each approached the question slightly differently. In the written Contentions filed for the Secretary, this was interpreted to mean “if there is a state of uncertainty as to a material question of fact to be decided in a cancellation case arising from changed circumstances ... that question must be resolved in favour of Mr Mawas”. If there is “no state of uncertainty, then the question must be resolved in favour of the Secretary.”
69. Counsel for the Secretary expanded on this issue during the hearing, referring to the comments of Northrop J, in preference those of Woodward and Jenkinson JJ, although it was ultimately submitted that the effect of all three judgments on this issue were similar. In considering this question, Woodward J made a distinction between cases based on “changed circumstances” and cases where a decision is to be made “in the light of fresh evidence” (at 358). In the former case, the statutory requirement is for the Director-General (as he was then) to reach the state of mind sufficient to be satisfied the pension should be cancelled. In the latter, the question is whether the pension should have ever been granted and whether there is sufficient evidence to support entitlement. Northrop J focused on the question of whether, on consideration of all the material before the Director-General, there is sufficient to satisfy him that the claimant is qualified to receive the pension (at 366). Jenkinson J was of the view that the appropriate question should be framed by reference to the proper construction of the relevant legislative provision (at 369):
In this case the AAT would determine whether the Social Security Act 1947 (Cth), upon its proper construction, required that the applicant’s pension be cancelled if she were found not to be permanently incapacitated for work, or required that the pension be cancelled unless she were found to be permanently incapacitated for work. In the former case the Tribunal’s lack of persuasion that permanent incapacity did not exist would preclude cancellation. In the latter case the Tribunal’s lack of persuasion that permanent incapacity did exist would result in cancellation ... In a court the principles are expressed in terms of the onus or burden of proof. When those principles are applied in an administrative tribunal, there may be risk of misconception if the curial modes of expression are employed.
In this case the passage from the reasons for the Tribunal’s decision which Woodward J. has quoted implies that it was a requirement of the Social Security Act 1947 (Cth) that the applicant’s pension be cancelled unless she were found to be permanently incapacitated for work, whereas my conclusion is that it was a requirement of that Act that the pension be cancelled if she were found not to be permanently incapacitated for work. If my conclusion be correct, error of law is demonstrated in the Tribunal’s reasons. The error could not have vitiated the Tribunal’s decision unless the Tribunal was unpersuaded, on a balance of probability, that there was not a permanent incapacity.
70. Section 80(1) of the Administration Act provides that if the Secretary is satisfied the pension is being paid to a person who is not, or was not, qualified for the payment, the Secretary is to determine the payment is to be cancelled or suspended. In our view, the relevant question is whether, on balance, there is evidence that Mr Mawas qualified for the DSP as at 4 December 2006; namely whether he had a physical, intellectual or psychiatric impairment, whether that impairment was rated 20 points or more under the Impairment Tables and whether he had a continuing inability to work. It is not a question of considering whether there is certainty or uncertainty and deciding the issue on the basis of which party bears the onus but rather of considering all of the material and forming a view. In some cases this may be difficult where the evidence is finely balanced. While there was much medical evidence in this case, some of which was inconsistent, ultimately we were able to form a view about whether Mr Mawas was qualified to receive the DSP as at the time of cancellation.
71. There is evidence Mr Mawas had an intellectual disability that would at least warrant a rating of 10 impairment points. Neither Dr McMahon nor Mr Fathers challenged this original IQ rating, although both suggest Mr Mawas has a level of adaptive functioning beyond mental retardation because of his work history. They have relied on information provided by Mr Mawas or information related from other sources. The key issues considered were Mr Mawas’ work at Australia Post and his work at markets in the Sydney metropolitan area from about 2005. However, the evidence about the nature and scope of this work was inconsistent and incomplete and, in the absence of evidence from Mr Mawas or other independent sources about this work, it is difficult to form any meaningful conclusions about Mr Mawas’ adaptive functioning.
72. It is likely Mr Mawas only worked for Australia Post when he was about 17 or 18 for a brief period of up to six months after he left school. The reports of Dr Lovric and Mr Thomas O’Neill support this history. This may suggest some level of adaptive functioning but there is no evidence as to why Mr Mawas left this employment or whether he was able to cope with the work.
73. The work history set out in the report of Mr Thomas O’Neill is the most detailed account available and, on balance, is likely to be the most accurate. The information obtained by Dr Lovric in April 2007 and Mr Fathers in February 2009 was not as detailed and was taken over 10 years after the key events from 1987 to 1994. The history provided to Mr O’Neill suggests Mr Mawas had difficulties working from the time he left high school until he left Nobby Kitchens in 1994. According to Mr O’Neill, Mr Mawas worked as a temporary mail clerk for Australia Post for approximately three to six months. He then travelled to Lebanon for six months. There is no evidence as to whether he left Australia Post to travel to Lebanon, whether he was sacked or whether he resigned because he could not cope. Mr Mawas then worked as a process worker and labourer for brief periods but was terminated because “he could not do the job”. In 1990 Mr Mawas worked at Amaroo Industries, which was a sheltered workshop, for about nine months but resigned because of conflicts with the supervisor. In 1994 he was referred by the Commonwealth Rehabilitation Service to Nobby Kitchens, where he worked for about three months before his workplace injury. Apart from his business at the markets, there is no evidence Mr Mawas has worked since this time.
74. Mr Mawas told Dr Lovric and the job capacity assessor, Mr Daniel Wood, about his business at the markets but did not describe the business in the detail provided to the SSAT in the proceedings of 2008. According to the decision of the SSAT, Mr Mawas told the tribunal he operated a business importing furniture and gas cookers from overseas and sold these items at various markets around Sydney. He operated stands at Fairfield markets on Saturday; Flemington Market on Sunday and also operated a regular stand at the Trash and Treasure Market. Mr Mawas employed his carer in the business to do all the heavy lifting. The business never traded at a profit and always operated at a loss. The SSAT did not accept Mr Mawas was operating such a business. Mr Mawas told both Dr Lovric and Mr Wood he had closed his business down because he was fighting with customers. The evidence about this business is unclear and it is possible Mr Mawas was exaggerating his claims about the business to the SSAT to obtain a mobility allowance.
75. This does not reflect well on Mr Mawas’ credibility but there is already evidence he has made exaggerated claims to support his claims for entitlements. This does not mean that all evidence favourable to Mr Mawas should be disregarded, merely that we should take these factors into account when weighing the evidence. Generally, we have taken the approach of giving more weight to the evidence that is substantiated by independent sources or is consistently related to more than one practitioner.
76. In our view, the available evidence about Mr Mawas’ ability to function suggests that as at December 2006 he found it difficult to cope with work, was not able to operate his business effectively and had not settled into any job for any period over about nine months. This does not suggest effective functioning or more advanced “adaptive behaviour” and tends to support the case that Mr Mawas has “moderate to severe behavioural problems” under Table 10. It is not disputed Mr Mawas has consulted a number of psychiatrists and psychologists over the years, some for treatment and some for the purposes of legal proceedings. He has been on medication and is reported to have anxiety and depression. Dr Lovric does not believe he has had psychosis but she has been unable to properly diagnose Mr Mawas because of his lack of cooperation. On the other hand, her reports and evidence support a finding that Mr Mawas has “moderate to severe behavioural problems”. He has been on the DSP for over 20 years and there is no evidence his ability to cope has improved over this time. It has been suggested by Dr Lovric, Dr McMahon and Mr Fathers there is a lack of motivation and it is possible Mr Mawas’ behaviour may have been learned or reinforced by the reward of receiving benefits. Whatever the reason for his behaviours, there is sufficient evidence to warrant a finding that Mr Mawas has had “moderate to severe behavioural problems” from at least 1990 until the time his DSP was cancelled and beyond.
77. There is evidence Mr Mawas has had carers since 2002, but there is no evidence Mr Mawas “needs supervision of daily activities and routine financial transactions eg. needs to be reminded to perform routine tasks/personal care”. We accept the evidence that Mr Mawas has travelled overseas on occasion by himself and that he has demonstrated he is able to make decisions in relation to his business, albeit not very effectively, without the assistance of his carers. We also accept the evidence of Dr Lovric, Dr McMahon and Mr Fathers that Mr Mawas has exaggerated claims about his intellectual disability, care and support needs as his account of disability is inconsistent with other objective evidence, such as his dealings with Centrelink and the results of the symptom validity testing conducted by Dr McMahon.
78. Notwithstanding the exaggeration, there is sufficient evidence to support a finding that Mr Mawas has Intellectual Disability with an impairment rating of 25 points under Table 10, taking into account his IQ of 70 to 79 and his “moderate to severe behavioural problems” under the criteria for Adaptive Behaviour.
79. There is also evidence Mr Mawas has an impairment rating of 10 points under Table 6 – Psychiatric Impairment on the basis that he had “moderate and regular symptoms and generally functioning with some difficulty” at the relevant time.
80. There is no dispute Mr Mawas has some physical disability and pain but the extent of this disability is in dispute. Mr Mawas has not been assessed under the Impairment Tables for his underlying physical conditions but the SSAT found an impairment rating of 10 or 15 points under Table 20 in relation to chronic pain may have been appropriate because there was evidence Mr Mawas had “mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity” or possibly “moderate to severe symptoms which are more distressing but prevent few everyday activities”. There is objective evidence to support symptoms of pain in the earlier reports of Dr Guirgis, Dr Ellis, Dr Jones, Dr Cohen and Dr Shnier. Dr Gliksman discounts Mr Mawas’ claims of physical disability but this is because Mr Mawas claims he has little movement in his back, neck, shoulders and legs and on occasion has asserted he needed a wheelchair. He did not express a view on whether Mr Mawas had chronic pain at the relevant time. There have been many inconsistent reports about Mr Mawas’ physical condition but there is no medical evidence about his pain. In the absence of such evidence or evidence from Mr Mawas about these issues, we cannot form a concluded view.
81. In summary, we find that at the time of cancellation there is evidence Mr Mawas had at least 35 points under the Impairment Tables.
82. We also find there is evidence that Mr Mawas had a continuing incapacity to work for 30 hours per week or more at the relevant time. While there is evidence Mr Mawas could work part time and would benefit from rehabilitation and vocational training, the reports of Mr Wood and Dr Vodicka conclude Mr Mawas could not work for longer than possibly 15 to 22 hours per week “in the future”. In his report of 4 January 2007, which was a month after Mr Mawas’ DSP was cancelled, Mr Wood made an assessment that Mr Mawas would require support for more than two years. He does not identify how long it would take for Mr Mawas to be able to work up to 22 hours but the inference is it may take more than two years to achieve such an outcome. The Secretary says the reports of Mr Wood and Dr Vodicka should be given little weight but there was no evidence to the contrary. Mr Fathers expressed a view Mr Mawas could work for 30 hours or more but this was qualified by his evidence that Mr Mawas would need to successfully complete rehabilitation and training before this could be achieved. He expressed no view as to when this would have been or the period of time it would have taken for Mr Mawas to achieve such capacity.
CONCLUSIONS
83. We find that at the time of the cancellation of his DSP, Mr Mawas had impairments which could be assigned 20 points or more under the Impairment Tables. We also find that Mr Mawas had a continuing inability to work 30 hours or more per week.
84. For the reasons set out above, we affirm the decision under review.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member and Dr Max Thorpe, Member
Signed: .............[sgd]...................................................................
AssociateDates of Hearing 2 and 3 December 2010, 19 January 2011
Date of Decision 22 March 2011
Solicitor for the Applicant Mr S Hodges
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Centrelink Advocacy Branch
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Standard of Proof
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Continuing Inability to Work
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