Federal Court of Australia

Spaleta v Secretary, Department of Social Services [2026] FCAFC 5

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The primary judge’s orders be set aside, and in lieu thereof, the Tribunal’s decision dated 18 May 2018 in matter 2017/3433 be set aside and the appellant’s application for review be remitted to the Administrative Review Tribunal to be heard and decided according to law.

3.    If the parties reach agreement on costs, then by 4 pm AEDT on 18 February 2026 the parties file a minute of consent orders as to costs for the Court’s consideration.

4.    If the parties do not reach agreement on the orders to be made as to costs:

(a)    by 4 pm AEDT on 25 February 2026, each party is to file written submissions of no more than 5 pages together with any evidence upon which the party wishes to rely on the issue of costs; and

(b)    by 4 pm AEDT on 4 March 2026, each party is to file any written submissions in response of no more than 5 pages.

5.    The issue of costs is to be decided on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision in the Court’s original jurisdiction by which the primary judge dismissed an appeal by the appellant under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal upon review of the appellant’s claim for a disability support pension.

2    On 24 November 2015, the appellant lodged her claim for a disability support pension. To be eligible for the pension the appellant had to meet the qualification criteria set out in s 94 of the Social Security Act 1991 (Cth), which relevantly included that she had a continuing inability to work at least 15 hours per week, and that she had an impairment of 20 points or more when assessed under the Impairment Tables determined by the Minister under s 26 of the Social Security Act.

3    On 16 May 2016, the appellant’s claim for a disability support pension was rejected on the ground that she was not eligible for the pension because she did not meet the qualifying criteria. The appellant then sought an internal review of that decision. On 1 October 2016, an authorised review officer affirmed the rejection.

4    The appellant then applied to the Administrative Appeals Tribunal under s 142 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) for a review of the decision of the authorised review officer. On 4 April 2017, the Tribunal affirmed the decision under review (first AAT review).

5    The appellant then applied to the Tribunal under s 179 of the Administration Act to review the Tribunal’s decision on the first AAT review. On 18 May 2018, the Tribunal affirmed the decision under review (second AAT review), finding that the appellant had failed to establish a rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Social Security Act, and had failed to establish that she had a continuing inability to work as required by s 94(1)(c) of the Social Security Act. The statement of reasons for the Tribunal’s decision on the second AAT review has been published: Spaleta and Secretary, Department of Social Services (Social services second review) [2018] AATA 2581 (R).

6    The appellant then appealed the second AAT review to the Court under s 44 of the AAT Act. The appeal was brought in the Court’s original jurisdiction and was an appeal on a question of law. We will refer to the questions of law later in these reasons. The appeal in the Court’s original jurisdiction had a drawn-out history to which the primary judge referred in his reasons for judgment (Spaleta v Secretary, Department of Social Services [2024] FCA 916 (J)) at [33]-[35]. The broader factual background to this matter was also set out by his Honour at J [1]-[3]. The primary judge dismissed the appeal from the Tribunal, and the appellant brings this appeal to the Full Court from that dismissal.

7    The appellant was not legally represented before the Tribunal or the primary judge but was assisted by her husband: J [35]. Before this Court, the appellant was initially unrepresented, and she did not appear when the appeal was first listed for hearing, relying on a medical certificate. The hearing was adjourned and the appellant was referred for pro bono assistance. The pro bono referral was taken up by Ms Dowsett (now Ms Dowsett SC) of the Victorian Bar. As a result, on the adjourned hearing of the appeal both parties were skilfully represented which assisted the Court considerably in identifying and formulating the issues.

The statutory framework

8    To explain the background, it is necessary to identify some features of the statutory requirements giving rise to an entitlement to a disability support pension that are relevant to this appeal. Although we may at times use the present tense in referring to relevant features of the legislation and the instruments made thereunder, we have had regard to the state of the legislation and instruments that were applicable to the Tribunal’s review.

9    The appellant’s claim for a disability support pension required consideration of whether she qualified for the pension on the date of her original application for the pension, or within the period of 13 weeks thereafter. That is the effect of s 42 of the Administration Act, and the applicable rules for working out the start day in clauses 3 and 4 of Schedule 2 of the Administration Act: see also, Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28] (Besanko J). Clauses 3 and 4 of Schedule 2 of the Administration Act relevantly provide –

3    Start day—general rule

(1)    If:

(a)    a person makes a claim for a social security payment; and

(b)    the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.

...

4    Start day—early claim

(1)    If:

(a)    a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)    the person is not, on the day on which the claim is made, qualified for the payment; and

(c)    assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)    the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

...

10    The conditions for qualification for a disability support pension under s 94 of the Social Security Act relevantly include that the appellant had an impairment of 20 points or more under the Impairment Tables determined by the Minister under s 26 of the Social Security Act, and that she had a continuing inability to work at least 15 hours per week. In that regard, s 94 of the Social Security Act provides as follows –

94    Qualification for disability support pension

(1)    A person is qualified for disability support pension if:

(a)    the person has a physical, intellectual or psychiatric impairment; and

(b)    the person’s impairment is of 20 points or more under the Impairment Tables; and

(c)    one of the following applies:

(i)    the person has a continuing inability to work;

(ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

...

11    The requirement in s 94(1)(c)(i) that a person have a “continuing inability to work” is the subject of elaboration in s 94(2) –

(2)    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(aa)    in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

(a)    in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)    in all cases—either:

(i)    the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note: For work see subsection (5).

12    As s 94(2)(aa) provides, the meaning of the term “severe impairment” is the subject of s 94(3B) –

Severe impairment

(3B)    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

Example 1:    A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

Example 2:    A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

Example 3:    A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

13    As the legislative note to s 94(2) indicates, the term “work” was defined by s 94(5) –

work means work:

(a)    that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)    that exists in Australia, even if not within the person’s locally accessible labour market.

14    Under s 26 and s 27 of the Social Security Act, the applicable Impairment Tables were those in force on the day the claim was made or taken to have been made. The Impairment Tables applicable to the appellant’s entitlement to a disability support pension were those in a legislative instrument made by the Minister titled Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Determination). These tables took the place of the tables that were in Schedule 1B of the Social Security Act before the commencement of the amendments that were effected by the Social Security and Other Legislation Amendment Act 2011 (Cth).

15    The Determination draws a distinction between a person’s impairment and the medical condition causing the impairment. This reflects the fact that it is the impairment which gives rise to an entitlement to a disability support pension under s 94 of the Social Security Act. For the purposes of the Determination “impairment” means “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”: s 3. It is the level of impairment, and not the medical condition, that is the subject of an impairment rating.

16    Thus, the Impairment Tables are directed to the assessment of loss of functional capacity that results from the person’s medical condition. To assign an impairment rating it is a requirement that the medical condition causing the impairment be permanent.

17    The Impairment Tables require the allocation of impairment ratings of 0, 5, 10, 20 and 30, representing respectively no, mild, moderate, severe and extreme functional impact upon a person. In the case of multiple impairments attracting ratings under different tables, each impairment is to be assessed under the relevant table and subject to the terms of the Determination the ratings can be aggregated: s 10(3)-(4). However, an impairment resulting from more than one condition can only be assigned one impairment rating: s 10(5)-(6).

18    Four tables were relevant to the Tribunal’s assessment of the appellant’s claimed impairments –

(a)    Table 1 – Functions requiring Physical Exertion and Stamina;

(b)    Table 5 – Mental Health Function;

(c)    Table 14 – Functions of the Skin; and

(d)    Table 15 – Functions of Consciousness.

19    Subsection 26(3) of the Social Security Act provides that the Minister may determine rules that are to be complied with in applying the Impairment Tables. Part 2 of the Determination specifies several rules for the purposes of s 26(3) of the Social Security Act, which include those in s 6 of the Determination which specifies the circumstances in which the Impairment Tables apply, which are subject to cascading levels of provisions.

20    The first level is that an impairment rating may be assigned only if the condition causing the impairment was permanent and that the impairment resulting from the condition was more likely than not, in light of available evidence, to persist for more than two years. This is the subject of s 6(3) of the Determination, which provides –

Impairment ratings

(3)    An impairment rating can only be assigned to an impairment if:

(a)    the person’s condition causing that impairment is permanent; and

Note:     For permanent see subsection 6(4).

(b)    the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

21    The word “permanent” in s 6(3)(a) was not used in its ordinary meaning. Rather, s 6(4) provides for the satisfaction of four cumulative elements, and this is the second level –

Permanency of conditions

(4)    For the purposes of paragraph 6(3)(a) a condition is permanent if:

(a)    the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

(b)    the condition has been fully treated; and

Note:    For fully diagnosed and fully treated see subsection 6(5).

(c)    the condition has been fully stabilised; and

Note:    For fully stabilised see subsection 6(6).

(d)    the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

22    As indicated by the legislative note to s 6(4)(b), in determining whether a condition has been fully diagnosed and whether it has been fully treated, the matters identified in s 6(5) must be considered –

Fully diagnosed and fully treated

(5)    In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

(a)    whether there is corroborating evidence of the condition; and

(b)    what treatment or rehabilitation has occurred in relation to the condition; and

(c)    whether treatment is continuing or is planned in the next 2 years.

23    Pausing, the combined effect of s 6(3)(b) and s 6(4)(d) is that both the condition and the impairment that results from the condition must be more likely than not to persist for more than two years for the Impairment Tables to be applicable.

24    The term “fully stabilised” in s 6(4)(c) is not used in its ordinary meaning either, but is the subject of s 6(6), and this is the third level. A condition is fully stabilised if one of the two alternative conditions in s 6(6)(a) or (b) is satisfied –

Fully stabilised

(6)    For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

(a)    either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

(b)    the person has not undertaken reasonable treatment for the condition and:

(i)    significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

(ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

Note:    For reasonable treatment see subsection 6(7).

25    Paragraph 6(6)(a) is engaged if the person has undertaken “reasonable treatment” for the condition and s 6(6)(b) is engaged if the person has not undertaken “reasonable treatment” for the condition. The term “reasonable treatment” in subsection 6(6) is not at large, but is the subject of s 6(7) which provides that reasonable treatment must have six cumulative features –

Reasonable treatment

(7)    For the purposes of subsection 6(6), reasonable treatment is treatment that:

(a)    is available at a location reasonably accessible to the person; and

(b)    is at a reasonable cost; and

(c)    can reliably be expected to result in a substantial improvement in functional capacity; and

(d)    is regularly undertaken or performed; and

(e)    has a high success rate; and

(f)    carries a low risk to the person.

26    Some of the features in s 6(7) are directed to generic qualities of the treatment, such as whether it is regularly undertaken or performed and whether it has a high success rate. Other features direct attention to the circumstances of the person concerned, such as whether the treatment is available at a location reasonably accessible to the person, whether it could reliably be expected to result in a substantial improvement in functional capacity, and whether it carries a low risk to the person.

27    A question arises as to whether the reference to “reasonable cost” in s 6(7)(b) is to the objective reasonableness of the cost of the treatment, or to the different question whether the treatment is reasonably affordable to a claimant in the position of the person concerned. In our view, the latter is the better construction having regard to the context and purpose of the provision. An enquiry about reasonable cost would be detached from the issue whether the claimant had undertaken reasonable treatment if it was concerned only with whether the cost was reasonable within some market for the treatment, rather than the question whether the cost was reasonable for a person in the position of the claimant for the disability support pension in combination with the other matters to which s 6(7) required attention.

The Tribunal’s decision

28    The review before the Tribunal proceeded on the basis that the Secretary accepted that the appellant suffered from several fully diagnosed medical conditions: R [5]. The accepted medical conditions were identified in the Secretary’s statement of issues, facts and contentions before the Tribunal as –

(a)    a mental health condition; and

(b)    a condition involving the appellant’s respiratory function and an allergic reaction as a result of toxic mould exposure.

29    However, the Secretary contested the appellant’s claim on the grounds that her conditions had not been fully treated and that they had not stabilised.

30    The Tribunal found that the appellant presented as a candid witness whom the Tribunal had no reason to doubt: R [28]. The Tribunal stated that the appellant had obviously suffered from a variety of medical conditions for some time which unquestionably had a significant impact upon her both in terms of her general health and her capacity to engage in employment: R [28].

31    In addition to the appellant’s oral evidence, the Tribunal had in the material before it medical certificates of the appellant’s treating general practitioner, specialist medical reports, and two reports of a treating psychologist. Some of the reports were reasonably contemporaneous with the date of the appellant’s claim for the pension, which was 24 November 2015. The specialist medical reports were medico-legal reports that had evidently been prepared in contemplation of claims for payment of workers’ compensation or common law damages. For the large part, those reports were responsive to questions that were relevant to those claims. This feature of the medical reports was remarked upon by the Tribunal at R [18]. No report apart from the second report of the appellant’s treating psychologist Ms Plotkin dated 12 February 2018 purported to address directly the issues relevant to an impairment assessment in accordance with the Determination, or express opinions directed to the specific terms of the requirements set out in Part 2 of the Determination.

32    In broad terms, the material before the Tribunal showed that the appellant was suffering from physical conditions and a mental condition. There was evidence that the conditions overlapped in that the mental condition was caused in part by the physical conditions from which the appellant suffered.

33    For some years until 2011 the appellant had operated a small family business from a shop in Brighton involving the retail sale of imported lingerie. The rented premises from which the appellant operated the business were affected by the ingress of water and the development of mould. The Tribunal found at R [31] that the appellant suffered a variety of afflictions and maladies as a result of her exposure to toxic mould at the premises.

34    In addition to her physical ailments, the appellant’s mood and general mental well-being significantly deteriorated. This was contributed to by the appellant’s general physical condition and her fear that she and her family had been exposed to asbestos at the Brighton premises. This led to the onset of panic attacks with a frequency of up to four to six per day, which equated roughly to 35 to 40 panic attacks per week. The effect of these panic attacks included losing consciousness from time to time, screaming, and a loss of capacity to breathe or to breathe effectively. During one panic attack at a Centrelink office the appellant passed out. On another occasion, which was in October 2015, the appellant suffered a fractured foot as a result of losing consciousness during a panic attack. As a result of her experience of panic attacks, the appellant also feared the potential onset of further panic attacks.

The appellant’s mental condition

35    In terms of the treatment of her mental condition, at the time the appellant made her claim for the disability support pension she had attended upon her general practitioner, Dr Colin Leong, there was evidence that she had seen a psychiatrist on one occasion in 2012, and she had been seeing a psychologist, Ms Plotkin, for counselling.

36    In a series of medical certificates prepared for Centrelink between 2012 and 2015 Dr Leong described the appellant’s conditions as temporary, and in a certificate dated 10 March 2015 Dr Leong gave a prognosis for the appellant’s condition of “depression” as “more than 24 months”. There was evidence that in October 2013 Dr Leong diagnosed the appellant with reactive depression and anxiety as a result of her fear that she and her family had been exposed to asbestos and he referred her to Ms Plotkin. In her report dated 9 September 2016, Ms Plotkin stated that she agreed with Dr Leong’s assessment. The appellant undertook counselling with Ms Plotkin, the most recent occasion of which at the time of the report was 20 May 2016. The Tribunal found at R [35] that the appellant was being treated by Ms Plotkin who was working on breathing techniques with her.

37    Relevant to the 13-week qualification period, the appellant had not sought treatment from a psychiatrist, apart from the one occasion in 2012. The Tribunal referred at R [36] to the appellant’s evidence that in November 2015, which was when she made her claim, she could not afford to pay for a psychiatrist. However, by the time of giving her evidence before the Tribunal, which was in February 2018, the appellant had seen a psychiatrist for treatment because it was funded by WorkCover.

38    There were medico-legal reports of two psychiatrists that were before the Tribunal and to which it referred in its reasons. The first was a report of Dr Nathan Serry dated 25 September 2015, which was two months before the appellant made her claim for the pension. The Tribunal referred at R [38] to Dr Serry’s diagnosis that the appellant had developed a very significant psychiatric condition which manifested itself with ongoing symptoms of stress, anxiety, panic, frustration, and significant levels of depression. Dr Serry diagnosed the appellant as suffering from chronic major depression and panic disorder with associated general anxiety and with features of traumatisation. He stated that the appellant’s prognosis was “guarded”, that she had a very significant psychiatric condition which had a substantial impact, and that there had been a marked deterioration in terms of her psychosocial functioning. The Tribunal referred at R [39] to Dr Serry’s opinion that, given the severity of the appellant’s condition and its duration at the date of the report, she would require treatment on an ongoing basis for the foreseeable future, initially weekly and then potentially monthly. Dr Serry stated that the cost of an hourly session with a psychiatrist was in the order of about $300 per hour, but the Tribunal did not refer to this cost in its reasons.

39    Dr Serry annexed to his report a certificate that he had completed pursuant to s 28LN of the Wrongs Act 1958 (Vic) by which he certified that he was satisfied that the appellant’s degree of impairment resulting from her psychiatric injuries was more than 10%. Pursuant to s 28LI(1) of the Wrongs Act, such an assessment is made under The Guide to the Evaluation of Psychiatric Impairment for Clinicians. Dr Serry’s certification was in a prescribed form which was applicable to impairment arising from a stabilised injury.

40    The Tribunal at R [39] rejected submissions put on behalf of the appellant that Dr Serry had, in effect, certified that the appellant’s condition had stabilised and had indicated that the appellant was acutely ill with a relatively small chance of improvement and that her condition was fully treated. In rejecting these submissions, the Tribunal stated –

The Tribunal finds that to construe the language used by Dr Serry in this way is to strain it and place a meaning on it that a proper reading could not provide. As noted earlier in these reasons it is unfortunate that the specific questions asked of Dr Serry have not been provided so as to give more accurate context to his comments. However, it does not seem possible to reach a conclusion that where he states the Applicant will require treatment on an ongoing basis that her condition is fully stabilised and fully treated in the relevant sense as required by the s 94 requirements and as contended by her.

41    The second medico-legal report of a psychiatrist that was before the Tribunal was that of Dr Richard Prytula dated 10 October 2016. This report was prepared about eight months after the 13-week qualification period had expired. The report was addressed to a workers’ compensation claims agent and stated that the examination of the appellant had been arranged by the agent in relation to the appellant’s WorkCover claim. Like Dr Serry, Dr Prytula described the appellant’s prognosis as “guarded”, stating that the picture was one of extreme anxiety and decompensation without any apparent clarity in purpose in moving forward, as seen in the lack of any respiratory function testing and respiratory treatment exploration.

42    At R [41], the Tribunal referred to Dr Prytula’s conclusion that the appellant had developed a secondary adjustment disorder with mixed anxious and depressed mood, having arisen as a consequence of her physical condition and her concerns over it. The Tribunal referred to Dr Prytula’s responses to questions directed to the duration of the appellant’s incapacity, her capacity for work, and appropriate treatment. As to the expected duration of the incapacity, the Tribunal referred to Dr Prytula’s conclusion that he was unable to project a timeline for the return of any capacity and that it would very much likely depend on the outcome of the current litigation – which was evidently a reference to the civil litigation in relation to which the report was prepared. The Tribunal noted that the appellant had informed it that the litigation referred to had not, at the date of the hearing, been concluded. In relation to a question about the appellant’s capacity to work, the Tribunal set out the following response of Dr Prytula –

Full return to work would require an improvement in her condition and symptoms and resolution of the current litigation process.

43    The Tribunal stated at R [41] that these responses were not consistent with a condition that was fully treated and stabilised and demonstrated that resolution of the litigation was likely in Dr Prytula’s opinion to lead to relief from or improvement of the current incapacity. The Tribunal stated that Dr Prytula’s responses were not consistent with the s 94 requirements being satisfied.

44    In relation to appropriate treatment, the Tribunal referred at R [42] to Dr Prytula’s opinion that the appellant was likely to benefit from consultations with a psychiatrist aimed at exploring the extent of her anxiety and decompensation and managing it. The Tribunal stated that this observation was indicative of the requirement of continuing treatment as at the date of the report but bearing in mind that the date was outside the qualification period. The Tribunal concluded that it would be a strain on the contents of Dr Prytula’s report to conclude that the appellant’s condition had been fully stabilised and fully treated in order to satisfy the s 94 requirements.

45    In addition to the two medico-legal reports of Dr Serry and Dr Prytula, the Tribunal considered two reports of the appellant’s treating psychologist, Ms Plotkin, which were dated 9 September 2016 and 12 February 2018.

46    In her report dated 9 September 2016 Ms Plotkin addressed a question directed to what treatment she had provided to the appellant and whether there was any further treatment proposed by her, and, if so, the nature of the treatment. In response, Ms Plotkin stated –

Focused psychological techniques: Cognitive Behaviour Therapy (CBT), Acceptance and Commitment therapy (ACT) and supportive interpersonal counselling approach have been used in sessions. In terms of managing panic attacks, diffusion strategies, self-talk and relaxation strategies have been provided. Though, further therapeutic support is needed as she continues to struggle to accept the injustice and unpredictable outcomes of the asbestos exposure. She would benefit from EMDR trauma therapy.

(Emphasis added.)

47    Ms Plotkin’s report dated 12 February 2018 was in response to a “Dear Doctor” letter prepared by the Secretary’s solicitor which posed questions for the purpose of the Tribunal’s review. The questions were generally directed to the appellant’s situation at the time of the qualifying period. Ms Plotkin commenced by expressing her agreement with Dr Serry’s opinion that the appellant presented with chronic major depression and panic disorder with associated general anxiety and features of traumatisation. Ms Plotkin provided the following responses to the questions set out –

…

2.    Are the conditions expected to persist for more than two years from the 24 November 2015?

Yes, as Irena's health issues and her associated anxiety about the future and the health of herself and her family is ongoing, but has stabilised and maintenance based counselling support is recommended.

3.    Are the functional impacts arising from the condition/s expected to persist for more than two years from the 24 November 2015? Yes, as per as per Question 2.

…

[6.]    Were there any other investigations, specialist referrals or treatment yet to be undertaken for any condition as at 24 November 2015? Were such treatments, at as (sic) 24 November 2015 expected to result in any change to the severity or frequency of Ms Spaltea's (sic) symptoms within two years of 24 November 2015? If so, to what extent?

EMDR therapy could be helpful to help her deal with symptoms of PTSD. Irena would need a lot more support to help her have the resources to be ready to cope with the processing that can occur between EMDR sessions. Also the success of EMDR therapy is also likely to be affected by her future uncertainty regarding her family's and her own health, it is not just a matter of helping Irena to get over the past.

…

48    At R [40], the Tribunal referred to Ms Plotkin’s suggestion that Eye Movement Desensitization and Reprocessing (EMDR) therapy could be helpful to assist the appellant to deal with her symptoms of PTSD and concluded –

These conclusions recommending further treatment in such terms in both reports, with respect, do not support the Applicant’s contention that this report confirms that her conditions are fully treated and stabilised. While Ms Plotkin’s report seems to indicate that the Applicant’s current condition can be maintained with counselling support, clearly it goes further to suggest that her conditions could improve with further treatment, such as the EMDR therapy. These two reports do not support the Applicant’s contention that she satisfies the s 94 requirements.

(Footnote omitted.)

49    The Tribunal referred at R [53] to the opinions of the appellant’s treating general practitioner, Dr Leong. In medical certificates dated 1 February 2012 and 9 May 2012 Dr Leong stated that the appellant’s depression was temporary and likely to show considerable improvement within two years. The Tribunal then referred to a certificate dated 13 August 2014 in which Dr Leong again stated that the appellant’s depression was temporary. In terms of the description of the appellant’s past treatment regime Dr Leong identified antidepressants, counselling, and psychotherapy as having been undertaken. With respect to planned treatment, he recommended “psychiatrist review” and psychotherapy. The Tribunal noted that Dr Leong stated that the prognosis was that the condition would continue to affect the appellant’s capacity to work for more than 24 months. The Tribunal stated that a similar report in identical terms was produced by Dr Leong on 10 March 2015. The Tribunal stated that the recommendation of “psychiatrist review” would tend to support the conclusion that the appellant’s condition had not been fully treated and stabilised.

50    In relation to the appellant’s mental health condition generally, the Tribunal concluded at R [43] that as the appellant’s mental health condition had not been fully treated or stabilised, no impairment rating under the requisite Impairment Table could be assigned at that time. This was because of the requirements of s 6(3)(a) of the rules for applying the Impairment Tables in the Determination to which we referred earlier.

51    Nonetheless, the Tribunal proceeded to assign an impairment rating to the appellant in respect of her mental condition by the application of Table 5, finding that the appropriate rating was 10: R [52]. By itself, a rating of 10 was below the required rating of 20 that was necessary to qualify for the disability support pension. The Tribunal’s consideration of the appropriate impairment rating appears at R [45]-[52] and is summarised as follows –

(1)    In relation to “self care and independent living”, the Tribunal noted the appellant’s fear of showering alone due to risk of panic attack or collapse, that she did some cooking but had some meals prepared by her mother and that she could not undertake cleaning due to her allergies.

(2)    In relation to “social and recreational activities”, the Tribunal noted that the appellant had a fear of going outside the house alone, that she often liked to go shopping with her mother or someone else she felt safe around, that she no longer held kindergarten and primary school board positions and that she had limited social contact beyond her family.

(3)    In relation to “interpersonal relationships”, the Tribunal noted that the appellant had difficulties with her mother and son and otherwise had limited social interaction or friendships.

(4)    In relation to “concentration and task completion”, the Tribunal noted that the appellant did not watch television or read magazines, that her concentration did not permit her to read books, that her concentration span was “futile” and that she listened to music to calm down and relieve her fatigue.

(5)    In relation to “behaviour, planning and decision-making”, the Tribunal noted that the appellant had temper outbursts depending on the occasion, was triggered by references to or thoughts concerning her illness as a result of the toxic mould exposure and fungal infection, and that she had suicidal thoughts from time to time.

(6)    Finally, in relation to “work/training capacity”, the Tribunal noted that the appellant had not attempted to work since 2011 due to her physical condition derived from the mould exposure and that the effect of the mould report obtained in May 2011 “broke” her.

52    After considering the descriptors in Table 5, in arriving at an allocation of 10 points the Tribunal concluded at R [52] that there was a “moderate functional impact on activities” from the appellant’s mental health condition.

Functions requiring physical exertion and stamina

53    The Tribunal did not undertake any impairment assessment by reference to the functions the subject of Tables 1 or 14. Table 1 of the Impairment Tables is concerned with functions requiring physical exertion and stamina and Table 14 is concerned with functions of the skin. Table 14 can be put to one side, because at the hearing before the Tribunal the appellant, through her husband, submitted that the impact on the appellant’s skin was scarring on her face and body which had more of a mental rather than a physical effect on her.

54    The appellant submitted to the Tribunal that points should be allocated under Table 1 and took the Tribunal to several descriptors in Table 1. The appellant’s symptoms of shortness of breath, anxiety, and panic attacks were linked to chest pain, constricted throat, choking, heart and stomach palpitations, chest spasms, and chest pain. Some of these physical symptoms were recorded in Ms Plotkin’s report of 9 September 2016. In this way, the appellant’s mental condition was linked to physical impairment. Other symptoms related to the appellant’s exposure to mould were also relied on. It was submitted to the Tribunal that the appellant qualified for 10 points, alternatively 20 points, under Table 1 on the ground that there was a moderate, alternatively severe, functional impact on activities requiring physical exertion and stamina.

55    The physical conditions of the appellant that the Tribunal addressed were the effects of mould exposure, which included respiratory infections, fungal skin infections, and dermatitis. Before the Tribunal the Secretary accepted that these conditions were fully diagnosed but contended that they had not been fully treated and stabilised. The Tribunal had regard to the medico-legal reports of Dr Alan Segal, a dermatologist, dated 24 October 2016, and Dr Jonathan Burdon, a respiratory physician, dated 19 December 2016. Both reports were addressed to a workers’ compensation claims agent.

56    Dr Segal stated that the length of the appellant’s incapacity could not be determined and suggested that she consult an allergist for skin prick testing to define the exact mould or fungal allergen that was causing her problems and for possible desensitization to be carried out. He also stated that treatments with topical or oral steroids or other immunosuppressants might be considered by an allergist. Dr Segal concluded that it was “impossible to prognosticate [the appellant’s] clinical course until these measures had been carried out”. In light of these opinions, the Tribunal concluded at R [62] that it was impossible for it to reach a conclusion that the appellant’s conditions had been fully treated or had stabilised during the qualification period.

57    The appellant gave evidence before the Tribunal that she undertook allergy tests after she saw Dr Segal. No documentary evidence of the tests was before the Tribunal. The Tribunal at R [63] recorded the appellant’s evidence that the tests “came back negative” and stated that the tests revealed that the appellant’s immune system was turning against her as a result of long-term exposure to the toxic mould. The Tribunal held at R [64] that, as the allergy testing was a treatment option that did not occur until after the qualification period, it was indicative that the appellant’s condition had not been fully treated and had not fully stabilised during the qualification period.

58    Dr Burdon stated that the clinical history given to him by the appellant was consistent with mould exposure and a general allergic response to moulds and concluded that the appellant suffered from a generalised allergic type illness related to mould exposure. He also noted the significant psychological conditions from which the appellant was suffering. Dr Burdon stated that while it was always difficult to be certain as to the timeframe for complete resolution, he was of the opinion that the appellant’s symptoms would continue long term. He expressed the opinion that the appellant was unfit for work in a part-time or full-time capacity for the foreseeable future. At R [65] the Tribunal interpreted Dr Burdon’s report as indicating that there was a reasonable prospect of improvement or recovery from the appellant’s allergic illness and stated that the tenor of the report indicated the possibility of further treatment and stabilisation or recovery. The Tribunal noted that Dr Burdon did not express an opinion that the appellant’s conditions were fully treated or had stabilised at that time. The Tribunal concluded that the contents of Dr Burdon’s report meant that it was not open to the Tribunal to find that the appellant’s conditions were fully treated or stabilised during the qualification period.

Functions of consciousness

59    Before the Tribunal the appellant submitted that the impairment criteria in Table 15 of the Determination were applicable to her condition. The descriptors in Table 15 are concerned with functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity. The Tribunal referred at R [55] to the introduction to Table 15, noting its requirements that –

(a)    the table is to be used where the person has a permanent condition resulting in functional impairment;

(b)    diagnosis of the condition must be made by an appropriately qualified medical practitioner;

(c)    self-reported symptoms alone are insufficient; and

(d)    there must be corroborating evidence of the person’s impairment.

60    The Tribunal held at R [56]-[59] that the criteria in Table 15 were not applicable to the appellant because the evidence did not establish that her affliction was permanent, that there had been no diagnosis of the matters referred to in the descriptors by an appropriately qualified medical practitioner, and that there was no corroborating evidence or sufficiently corroborating evidence of an impairment that satisfied the definition in the descriptors. The Tribunal also considered that the fact that the appellant held a driver’s licence tended against a finding that the appellant had even a moderate functional impact from loss of consciousness or altered state of consciousness.

Summary of the Tribunal’s conclusions

61    The Tribunal affirmed the decision under review. The Tribunal held that the application for review must fail because, amongst other reasons, it was not possible under the terms of the Determination to assign a rating under the Impairment Tables in respect of the appellant’s mental state or her respiratory and allergic reaction conditions. Despite this, for completeness the Tribunal allocated impairment points under Table 5 being the table titled “Mental Health Function”. After considering the appellant’s various conditions, the Tribunal assigned 10 points in relation to her mental illness.

62    The Tribunal also gave some consideration to whether the appellant had a continuing inability to work, although held that that, too, was unnecessary to decide given the conclusions reached about her conditions. After referring to various job capacity or employment assessment reports between 2013 and 2016 that suggested that the appellant enjoyed at least some capacity for work, the Tribunal concluded at R [79]-[80] that she had failed to establish that she had a continuing inability to work for the purposes of s 94(1)(c) of the Social Security Act.

The appellant’s questions of law and grounds of appeal from the Tribunal’s decision

63    The primary judge at J [30] emphasised the significance of the identification of a question of law for the purposes of an appeal under s 44 of the AAT Act, citing the observations of Abraham J in Onassys v Comcare [2022] FCA 90 at [19]-[21]. His Honour set out the appellant’s four grounds of appeal from the Tribunal’s decision at J [31], by which the appellant claimed that the Tribunal erred in law by –

1.    arriving at a finding that was not open, alternatively not reasonably open, or that was unreasonable, that the [appellant]’s mental health condition was not fully treated and stabilised in [the] face of the report of Dr Nathan Serry [containing the] Certificate of Assessment of Degree of Impairment Arising From Stabilised Injury

2.    arriving at a finding that was not open, alternatively not reasonably open, or that was unreasonable, in the face of the evidence before it and expert report of Dr Burdon that there was a prospect of improvement or recovery, including from treatment of the [appellant]’s allergic illness and that the condition was not fully treated and stabilised

3.    taking into account irrelevant considerations in assessing a rating of 20 points or more under the impairment tables, that [fell] outside the relevant timeframe, being as at the date of the claim or within 13 weeks of lodging such claim, the relevant period being from 24 November 2015 to [24] February 2016

4.    arriving at a finding that was not open, alternatively not reasonably open, or that was unreasonable, in the face of the evidence before it, that the [appellant]'s conditions did not attract a rating of 20 or more points under the impairment tables and a continuing inability to work

64    At J [32] the primary judge set out four questions of law on which the appellant relied –

Whether:

(a)    it was open to the Tribunal on the evidence and material before it to find that the [appellant]’s mental health condition was not fully treated and stabilised;

(b)    it was open to the Tribunal on the evidence and material before it, to come to the conclusion that the [appellant]’s allergic illness during the qualification period was not fully treated or stabilised;

(c)    the Tribunal took into account irrelevant considerations in assessing and making its determination that the [appellant]'s conditions did not attract a rating of 20 points or more under the Impairment Tables;

(d)    the Tribunal took into account irrelevant considerations in assessing and making its determination that the [appellant] did not have a continuing inability to work.

The primary judge’s reasons

65    The primary judge noted at J [37] and [38] that by her submissions the appellant sought to introduce arguments that were outside her grounds of appeal, namely that the Tribunal’s reasons were not adequate and that she was denied natural justice. This latter claim was not substantiated or supported by particulars and his Honour gave it no further consideration. The primary judge at J [40] identified the following questions of law that arose for consideration –

(1)    whether the AAT took into account irrelevant considerations by considering reports that were issued outside of the qualification period (the “Irrelevant Considerations Question”);

(2)    whether the AAT wrongly concluded that Ms Spaleta’s mental health condition was not fully treated and stabilised (the “Mental Health Condition Question”);

(3)    whether the AAT wrongly concluded that Ms Spaleta’s respiratory or allergic illness was not fully treated and stabilised (the “Respiratory or Allergic Illness Question”);

(4)    whether the AAT wrongly concluded that Ms Spaleta’s conditions did not attract a rating of 20 points under the Impairment Tables (the “Rating Question”);

(5)    whether the AAT wrongly failed to conclude that Ms Spaleta has a continuing inability to work (the “Continuing Inability To Work Question”); and

(6)    whether the reasons that underpinned the Second AAT Decision met the requirements of s 43(2B) of the AAT Act (the “Section 43(2B) Question”).

66    The primary judge’s conclusions on these questions were as follows.

(1)    The irrelevant considerations question

67    The primary judge did not accept that the Tribunal had erred by taking into account the opinions in the reports of Dr Segal and Dr Burdon which were prepared after the qualification period had expired. His Honour held at J [46] that while Dr Segal’s report was plainly based upon an assessment made after the qualification period, it offered insights into the nature of the appellant’s conditions prior to and during the qualification period which the Tribunal was entitled to consider. His Honour came to a similar conclusion in relation to Dr Burdon’s report, holding at J [47] that the Tribunal took it into account insofar as it cast light on the appellant’s position prior to and during the qualification period, and that it was entitled to do so.

(2)    The mental health condition question

68    The primary judge held at J [50]-[51] that the Tribunal had not relevantly erred in its consideration of Dr Serry’s report on the question whether the appellant’s mental health impairment had been fully diagnosed and fully treated and had stabilised for the purposes of the conditions in the Determination governing the application of the Impairment Tables. His Honour rejected a submission that the Tribunal had ignored the impairment certificate attached to Dr Serry’s report, noting that the certificate concerned the assessment impairment under a different statutory regime, namely the Wrongs Act.

69    The primary judge also held at J [52]-[53] that the Tribunal had not relevantly erred in its consideration of the reports of the treating psychologist, Ms Plotkin, holding that it was open to the Tribunal to infer from those reports that the appellant’s condition had not been fully treated and had not stabilised.

70    There were a number of findings of the Tribunal which the appellant maintained in oral submissions before the primary judge were not reasonably open to it. His Honour considered those submissions and concluded as follows.

(1)    At J [57]-[58] the primary judge rejected the appellant’s submission that the Tribunal had erred in placing weight on the opinions in the job capacity assessment reports on the question whether the appellant had a continuing inability to work.

(2)    At J [59]-[62] the primary judge addressed a submission by the appellant that the Tribunal had erred in giving weight to Dr Serry’s opinion that the appellant should be under the care of a treating psychiatrist for the foreseeable future in concluding that the appellant’s condition had not been fully treated or stabilised. The appellant submitted that the Tribunal had not had regard to the cost of that treatment, which was $300 per hour, and her capacity to pay it. The relevance of this submission was that s 6(7)(b) of the Determination (set out at [25] above) defined “reasonable treatment” as treatment that was (inter alia) at a reasonable cost. The primary judge accepted a submission made on behalf of the Secretary that this was not the subject of a submission put by the appellant to the Tribunal and was therefore not addressed in the Tribunal’s decision. His Honour stated that a review of the transcript of the hearing before the Tribunal showed that while the appellant had referred to her poor financial situation, there was never any obvious suggestion that the cost of the psychiatric treatment to which Dr Serry referred was unreasonable with the result that the Tribunal was not obliged to address the question. His Honour held that in its reasons the Tribunal had not unfairly characterised the appellant’s submissions.

(3)    At J [63] the primary judge rejected the appellant’s submission that the Tribunal had refused to accept into evidence Dr Serry’s certificate made under the Wrongs Act.

(4)    At J [64]-[67] the primary judge rejected the appellant’s submissions in relation to the Tribunal’s consideration of the reports of her treating psychologist, Ms Plotkin. His Honour held that while the appellant might well have been right to contend at a merits level that the EMDR therapy that Ms Plotkin thought could be helpful (see [45] above) could not reliably be expected to result in a significant improvement with a high success rate and low risk, there was nothing before the Tribunal to compel that conclusion. His Honour held that it was not an error of law for the Tribunal to find, as it did, that the availability of EMDR did not support the appellant’s contention that she satisfied the qualifying criteria under s 94 of the Social Security Act.

(5)    Before the primary judge the appellant submitted that the opinions of Dr Serry and Dr Prytula that her prognosis was “guarded” meant that it was not open to the Tribunal to regard the treatments suggested in those reports as meeting the criteria in s 6(7) of the Determination because they could not “reliably be expected to result in a substantial improvement in functional capacity” or have “a high success rate”. The primary judge rejected this submission, holding at J [71] that the opinions that the appellant’s prognosis was “guarded” could not be understood as representing that there were no reasonable treatments available to her, and held at J [81] that there was no basis for criticising the Tribunal for not specifically engaging with the word “guarded” in the way the appellant suggested that it ought, and that the Tribunal was plainly alive to what was necessary in order for a treatment to qualify as reasonable.

(6)    At J [72] the primary judge accepted the appellant’s submission that the Tribunal had misrepresented her reasons for ceasing to take medication, incorrectly stating that it was “due to suffering side effects including weight gain”, when she had told the Tribunal that she stopped taking the medication because it made her feel suicidal. However, his Honour held at J [72] and [82] that the Tribunal’s error was immaterial because it remained open to the Tribunal to consider that it was reasonable for the appellant to pursue other forms of medication.

(7)    There were several other submissions that the appellant made to the primary judge about the Tribunal’s conclusion that her mental condition had not been fully diagnosed, fully treated and stabilised. These submissions included that the Tribunal erred in placing weight on the certificates of her general practitioner, Dr Leong, and failed to have regard to the fact that the certificate that Dr Serry issued pursuant to the Wrongs Act was for a stabilised injury. The primary judge held at J [77] that it was open to the Tribunal to conclude as it did notwithstanding material that might have pointed the other way.

(8)    By way of conclusion the primary judge held at J [86]-[90] that it was clear that the Tribunal considered the appellant’s submissions, and duly considered the evidence before it, but that it simply did not agree with the appellant’s interpretation of the evidence. His Honour stated that the appellant’s submissions did not establish that it was not reasonably open to the Tribunal to conclude that her mental health condition was not fully treated and stabilised.

(3)    The respiratory or allergic illness question

71    The appellant submitted to the primary judge that it was not open to the Tribunal to find that her respiratory illness and allergy were not fully treated and stabilised and relied on the opinions of Dr Burdon. The primary judge stated at J [96] that the appellant’s submissions were not without force and held that it was open on the evidence to find that her conditions were fully treated and stabilised. However, that was not enough. It was reasonably open to the Tribunal to find either way. His Honour also rejected other criticisms directed to the Tribunal’s reasoning, holding at J [101] and [105]-[106] that the Tribunal had considered all the medical reports about the appellant’s respiratory or allergic illness condition, that it was a matter for the Tribunal to weigh the evidence and come to its own conclusion, and that the conclusions to which it came were open to the Tribunal.

(4)    The rating question

72    The appellant submitted to the primary judge that upon a proper consideration of the evidence before the Tribunal her conditions should have attracted a rating of 20 or more under the Impairment Tables. His Honour rejected these submissions, holding at J [110] that they invited impermissible merits review.

73    The appellant further submitted to the primary judge that the Tribunal had erred in failing to address Table 1 of the Impairment Tables, titled “Functions requiring Physical Exertion and Stamina”. The primary judge accepted at J [118] that the appellant had maintained reliance on Table 1 at the hearing before the Tribunal and set out some passages of transcript where the Tribunal was taken to it. His Honour accepted at J [119] that had the Tribunal found that the appellant’s conditions were fully treated and stabilised, then the Tribunal would have been obliged to consider what she had advanced about the application of that table and that it did not. His Honour held that but for its findings about her conditions not being fully treated and stabilised, that failure would likely have required the setting aside of the Tribunal’s decision.

(5)    The continuing inability to work question

74    The appellant submitted to the primary judge that it was not open to the Tribunal to find that she did not have a continuing inability to work, and that the Tribunal had not properly considered the evidence before it. The primary judge observed at J [125] that the Tribunal had made findings about the appellant’s continuing inability on the premise that they were the findings that the Tribunal would have made had it found that one or both of her conditions were fully treated and stabilised. His Honour addressed and rejected the specific submissions that the appellant made and held that to the extent that the Tribunal made findings of fact in relation to the question of the appellant’s continuing inability to work, they were findings that the Tribunal was entitled to make based upon the material before it (J [126]-[131]).

(6)    The section 43(2B) question

75    At J [132]-[138] the primary judge addressed the appellant’s submission that the Tribunal had failed to provide adequate reasons in accordance with the requirements of s 43(2B) of the AAT Act. His Honour rejected the submission on two grounds. First, his Honour held that the submission was outside the appellant’s grounds of appeal. Secondly, his Honour held that the submission lacked merit, holding that the Tribunal’s reasons for its findings were adequately clear, as was the evidential basis on which the findings were based. To the extent that the appellant’s submission was to be taken as an application for leave to advance a further ground of appeal his Honour rejected it on the basis of want of merit.

The appeal to this Court

76    The appeal was originally listed for hearing on 20 March 2025. Prior to the hearing the Court received material to the effect that the appellant was unable to appear on medical grounds. The Court determined to treat that material as an application for an adjournment. The adjournment was not opposed by the Secretary. The Court then referred the appellant for pro bono assistance. In the expectation that counsel appearing for the appellant might depart from the appellant’s written submissions that had been filed, the Court ordered that counsel furnish to the Court and the solicitors for the Secretary a speaking note in advance of the appeal. In this way the Secretary and the Court would have advance notice of the submissions to be made at the hearing on behalf of the appellant.

77    Upon the adjourned hearing of the appeal, the appellant was represented by pro bono counsel, Ms Dowsett. Ms Dowsett prepared a speaking note in accordance with the Court’s order. The appellant sought and obtained leave to amend the notice of appeal which was not opposed by the Secretary. The amended notice of appeal simplified considerably the issues before the Court by reducing 15 grounds of appeal to the following grounds –

1.    His Honour erred in failing to find that on the proper construction of s 6 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination), the Administrative Appeals Tribunal (Tribunal) was required to, but did not, determine:

a.    the objective of any continuing or planned treatment for Ms Spaleta’s mental health conditions and respiratory infection and allergic reaction for the purposes of s 6(5)(c) of the Determination;

b.    whether the treatment recommended in respect of Ms Spaleta’s mental health conditions and respiratory infection and allergic reaction constituted “reasonable treatment” as defined in s 6(7) of the Determination; and

c.    in respect of each type of treatment found to constitute “reasonable treatment”, for the purposes of s 6(6) of the Determination whether Ms Spaleta had undertaken “reasonable treatment” and, if not, whether there was “a medical or other compelling reason” for Ms Spaleta not to undertake that reasonable treatment;

2.    His Honour erred in refusing Ms Spaleta leave to amend her notice of appeal to raise a question of law regarding the Tribunal’s compliance with its obligations under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) and in failing to find that the Tribunal had not complied with those obligations.

The appellant’s submissions

Ground 1 – the appellant’s submissions

78    Counsel for the appellant submitted that ground 1(a) concerned the proper construction and application of s 6 of the Determination and reflected the legal issue underpinning questions of law 2 and 3 identified by the primary judge at J [40] and which we set out at [65] above.

79    Counsel submitted that the elements of s 6(4) of the Determination relating to permanency of conditions were separate from one another, namely that –

(a)    the condition has been fully diagnosed by a medical practitioner; and

(b)    the condition has been fully treated; and

(c)    the condition has been fully stabilised; and

(d)    the condition is more likely than not, in light of available evidence, to persist for more than two years.

80    The determination of whether a condition was fully diagnosed and fully treated was the subject of the considerations in s 6(5) to which the decision-maker must have regard. It was submitted that the references to “treatment” in s 6(5)(b) and (c) did not import the concept of “reasonable treatment” referred to in s 6(6) which was the subject of the definition in s 6(7). It was further submitted that because the matters referred to in s 6(5) were only considerations, the fact that further treatment was planned did not preclude a conclusion that a condition was not fully treated.

81    Attention was directed to the requirement in s 6(5)(c) and the requirement to consider whether “treatment is continuing or is planned in the next 2 years”. It was submitted that the Tribunal’s consideration of s 6(5) and the requirement in paragraph (c) was far from clear.

82    It was submitted that the Tribunal appeared to have relied upon the continuation of therapeutic support to find that the appellant’s mental health condition was not fully treated. It was submitted that in doing so the Tribunal failed properly to construe and apply s 6(5)(c), that it did not engage with the appellant’s submission to the Tribunal that the ongoing therapeutic support was for “maintenance”, and that the treatment was not and was not intended to be curative but was directed towards the long-term management of the appellant’s condition. Illustrative of this point was the Tribunal’s consideration at R [40] of Ms Plotkin’s report of 12 February 2018 and her statements that further therapeutic support was needed and her suggestion that EMDR therapy could assist the appellant with her symptoms of post-traumatic stress disorder. Counsel for the appellant noted that this opinion was directed to the treatment of symptoms of PTSD, which was not a complete diagnosis of the appellant’s condition arrived at by Dr Serry which was chronic major depression and panic disorder with associated general anxiety with features of traumatisation. Counsel submitted that the mere presence of those possible treatments, which potentially amounted only to the management of the appellant’s symptoms, did not address the question whether the appellant’s condition had been fully treated, and that the Tribunal did not engage with the submission that the suggested treatment was in the nature of ongoing maintenance rather than treatment of the condition itself. It was submitted that the primary judge therefore erred at J [53] in concluding that it was open to the Tribunal to infer from Ms Plotkin’s reports that the appellant’s mental health condition was not fully treated and stabilised.

83    Counsel submitted that the criteria for determining if a condition is fully stabilised are set out in s 6(6) of the Determination. It was submitted that the first step in the application of those criteria is an assessment of whether the appellant had, or had not, undertaken “reasonable treatment” as defined in s 6(7). It was submitted that the elements of s 6(7), which we have extracted at [25] above, were cumulative with the result that each element had to be satisfied.

84    It was submitted that the Tribunal failed properly to construe and apply s 6(6) because it did not address whether the treatment options that it identified from the evidence constituted “reasonable treatment” as defined in s 6(7) or otherwise address the criteria in s 6(6). The focus of this submission was the Tribunal’s identification of the following matters in support of its conclusion that the appellant’s mental condition had not been fully treated and stabilised –

(a)    Dr Serry’s opinion that the appellant should be under the care of a treating psychiatrist for the foreseeable future (R [39]);

(b)    Dr Prytula’s opinion that the appellant was likely to benefit from consultations with a psychiatrist aimed at exploring the extent of her anxiety and decompensation and managing this (R [42]);

(c)    Dr Leong’s recommendations of psychiatric review and psychotherapy in his reports of 13 August 2014 and 10 March 2015 (R [53]);

(d)    Ms Plotkin’s suggestion that EMDR therapy could be helpful to assist the appellant to deal with her symptoms of post-traumatic stress disorder (R [40]); and

(e)    the appellant’s failure to seek the assistance of a psychiatrist to explore the possibilities of being prescribed “some other form of medication” following the cessation of the medication prescribed by Dr Leong due to side effects (R [51]).

85    Counsel for the appellant submitted that the primary judge had erred at J [59]-[60] in rejecting the appellant’s submission that the Tribunal had failed to consider whether psychiatric treatment at $300 per hour was treatment at a reasonable cost. Counsel’s primary submission was that the reference to “reasonable cost” in s 6(7)(b) should be construed as being at a reasonable cost to the appellant, or at least a person who was a candidate for a disability support pension, rather than at a reasonable cost in a purely objective sense. In the alternative, counsel for the appellant submitted that the appellant’s inability to pay for psychiatric treatment would also have been relevant to s 6(6)(b) and whether there was some “other compelling reason” for the appellant not to have undertaken reasonable treatment.

86    It was submitted that the primary judge’s conclusion that this was not raised before the Tribunal and that the Tribunal was not obliged to address the question was in error. It was submitted that the conclusion was not consistent with a proper construction and application of s 6 of the Determination and did not accurately reflect the material that was before the Tribunal. Counsel relied on the following features of the review before the Tribunal in support of this submission –

(1)    After the conclusion of evidence, the Tribunal invited Mr Spaleta, on behalf of the appellant, to make submissions in response to those that had been advanced on behalf of the Secretary. The Tribunal member stated that he had taken detailed notes of the submissions and the appellant’s evidence and suggested that Mr Spaleta should avoid too much repetition. It was submitted that this set the context in which the question whether issues were raised for the Tribunal’s consideration should be evaluated.

(2)    Before the Tribunal the legal representative for the Secretary referred in submissions to the cost of psychiatric treatment and that the appellant had raised the costs that were involved in obtaining treatment as a difficulty for her.

(3)    During the course of oral submissions Mr Spaleta raised the capacity of the appellant to pay for psychiatric care as an issue, stating that “cost was an absolute factor in accessing any specialist medical personnel”. Mr Spaleta pointed to the appellant’s parlous financial situation and said that “there was simply no money to do anything remotely normal in life let alone be able to pay this type of treatment”.

(4)    The submission made to the Tribunal on the appellant’s behalf was supported by her evidence during cross-examination that while she was then under the care of a psychiatrist because WorkCover was paying for it, she could not previously afford to do so. She gave evidence of trying to make an appointment to see a psychiatrist but then being rejected because bulk billing was not available and the gap between the cost and the Medicare rebate would consume at least half her Centrelink payment for the week, which she could not afford. The evidence was supported by a statement in Dr Prytula’s report of 10 October 2016 in which when setting out the appellant’s history he recorded that the appellant said that she had been referred to a psychiatrist in 2012 but went only once because she could not find someone who bulk billed. This evidence was not challenged by the representative for the Secretary. In re-examination, the appellant gave evidence that she undertook all available treatment at all times and that she had been unable to see a psychiatrist if WorkCover was not paying for it. The appellant stated that during the relevant period her financial situation was “atrocious” and that she had no financial capacity to afford psychiatric treatment.

(5)    The Tribunal at R [39] rejected the appellant’s submission that the opinions expressed by Dr Serry in his report dated 25 September 2015 that the appellant should be under the care of a treating psychiatrist for the foreseeable future and would require treatment on an ongoing basis had indicated that the appellant’s condition had stabilised and was fully treated as at that date. Counsel for the appellant submitted that in doing so the Tribunal did not engage with the definition of “reasonable treatment” in s 6(7) of the Determination. It was submitted that the proper construction and application of s 6(6) of the Determination required the Tribunal to determine whether psychiatric care constituted “reasonable treatment” as defined, which should have included consideration of all the factors in s 6(7), including whether psychiatric care was treatment that was at a reasonable cost, and, if so, whether there was a medical or other compelling reason for the appellant not undertaking it. It was submitted that the primary judge erred by not identifying and acting upon this error.

87    Counsel for the appellant submitted that a similar point arose in relation to the primary judge’s rejection of the appellant’s submissions regarding the suggested EMDR therapy (J [67]) and “other forms of medication” (J [72] and [82]). The Tribunal relied upon the suggestion of Ms Plotkin that EMDR therapy could be helpful to the appellant in dealing with her symptoms of PTSD and its opinion that trialling other forms of medication was an avenue available to the appellant, to support its finding that the appellant’s mental health condition was not fully stabilised. It was submitted that in reaching these conclusions the Tribunal did not properly construe and apply s 6(6) of the Determination and did not engage with the evidence given by and the submissions made on behalf of the appellant as to whether this suggested treatment satisfied the definition of “reasonable treatment”. It was submitted that the primary judge had therefore erred in holding that it was open to the Tribunal to find that EMDR therapy was “reasonable treatment” and that it was reasonable for the appellant to pursue other forms of medication after she ceased taking her prescribed medication because of its side-effects.

88    A question of materiality arose in relation to ground 1 of the amended notice of appeal because a relevant independent criterion of qualification for the disability support pension under s 94(1)(c) of the Social Security Act was that the appellant had a continuing inability to work, and the Tribunal had concluded at R [73]-[79] “for the sake of completeness” that the appellant did not satisfy that criterion. Counsel for the appellant submitted that there was a possibility of a different outcome on this issue if the Tribunal had correctly construed and applied s 6 of the Determination and engaged with the evidence in a more complete way.

89    A question of materiality also arose in relation to the impairment rating of 10 reached by the Tribunal where a necessary criterion of qualification for the pension under s 94(1)(b) of the Social Security Act was that the appellant had an impairment rating of 20 points or more. Counsel’s principal submission on this question was that the Tribunal had failed to engage at all with Table 1 of the Impairment Tables, and relied on the observations of the primary judge at J [119] that, but for the Tribunal’s findings about the appellant’s condition not being fully treated or stabilised, the Tribunal’s failure to engage with Table 1 would likely have resulted in setting aside the Tribunal’s decision.

Ground 2 – the appellant’s submissions

90    Counsel for the appellant submitted that the primary judge erred in rejecting the appellant’s submissions concerning inadequacy of reasons as lacking merit. It was submitted that the substantial issues upon which the present case turned included identifying the objective of the continuing therapeutic support being provided to the appellant and whether the treatment recommended for her constituted “reasonable treatment” as defined. It was submitted that the primary judge erred in failing to hold that the Tribunal’s reasons did not include any findings on material questions of fact in relation to these issues. Counsel for the appellant submitted that the Tribunal’s process of reasoning on these issues was not exposed and that it was not possible to identify from its reasons what, if any, conclusions the Tribunal reached on these issues and the evidence or other material upon which it relied in reaching those conclusions.

91    In summary, the appellant’s submission was that if for some reason the Court did not infer that the Tribunal had failed to engage properly with the necessary elements of s 6 of the Determination, then in the alternative the Tribunal did not expose its path of reasoning or make relevant findings on material questions of fact as required by s 43(2B) of the AAT Act.

The Secretary’s submissions

Ground 1 - the Secretary’s submissions

92    Mr Dubé, who appeared for the Secretary, fairly conceded that the Tribunal had not gone through s 6 of the Determination line by line or subparagraph by subparagraph but submitted that the Tribunal had dealt with the elements of s 6 to the extent that it was necessary to do so. For instance, it was submitted that the Tribunal at R [64] directed itself to s 6(6) of the Determination in relation to the question whether the appellant had received reasonable treatment in the nature of an allergy test, which had not been undertaken before or during the qualification period.

93    The Secretary’s submissions to the Court were framed around the synoptic observation that on the material before the Tribunal, at the time of the qualification period, the only treatment that the appellant was receiving was treatment by her psychologist, Ms Plotkin, whom she was seeing every six to eight weeks. The appellant was not seeing a psychiatrist and had not seen a psychiatrist for a number of years. The appellant had not been seen by a respiratory physician or a dermatologist, and at the time she was on no medication, either for a psychiatric condition or for any respiratory or allergic condition. It was submitted that this was the context in which the Tribunal had to approach the questions whether the appellant’s conditions were fully diagnosed, fully treated, and fully stabilised.

94    In relation to the question whether the appellant’s mental health condition had been fully treated, the Secretary relied on the Tribunal’s finding at R [39] that it was not possible to conclude that the condition had been fully treated in view of Dr Serry’s opinion that the appellant would require treatment on an ongoing basis. The Secretary also relied on the Tribunal’s finding at R [40] that Ms Plotkin’s reports supported a conclusion that the appellant’s condition could be improved with counselling support and EMDR therapy. And the Secretary relied on the Tribunal’s finding at R [51] that alternative medication was a reasonable avenue which the appellant had not pursued.

95    On the question of materiality it was submitted that on the assumption that the Tribunal had erred in its application of s 6 of the Determination it had in any event determined that, irrespective of its conclusion that the appellant’s psychiatric conditions were not fully diagnosed, treated and stabilised, it was not satisfied that it gave rise to anything more than 10 points under the Impairment Tables, and that there had been no challenge to that finding. The Secretary relied on the Tribunal’s finding at R [62] that the appellant’s respiratory condition and allergic reaction had not been fully treated and stabilised during the qualification period as precluding an assessment of impairment under Table 1. It was submitted that there was no realistic possibility that the Tribunal’s decision in relation to the appellant’s mental impairment could have been any different on the supposition that the Tribunal had erred in its application of s 6 because the question of impairment was independent of whether the condition was fully diagnosed, fully treated, and fully stabilised. The Secretary did not accept that the Tribunal’s assessment of the appropriate impairment rating under Table 5 was affected by the Tribunal’s conclusions that the appellant’s condition was not fully treated and fully stabilised.

96    The Secretary further submitted that any error by the Tribunal in its interpretation and application of s 6 of the Determination did not affect its assessment at R [79]-[80] that the appellant had not shown a continuing inability to work, which was a requirement of s 94(1)(c)(i) of the Social Security Act. With perspicuous fairness, Mr Dubé conceded that if the Secretary’s materiality argument in reliance on the impairment assessment of 10 points did not prevail, then it would be difficult to say that there was a similar materiality issue on the question of the appellant’s inability to work.

Ground 2 - the Secretary’s submissions

97    Ground 2 relates to the primary judge’s consideration of the appellant’s submissions that the Tribunal’s reasons were not adequate because they did not satisfy the standard required by s 43(2B) of the AAT Act. The Secretary accepted that the primary judge’s decision to refuse what was really a constructive application by the appellant to amend her notice of appeal to introduce an inadequate reasons ground was a discretionary decision which attracted the principles essayed in House v The King (1936) 55 CLR 499. The Secretary accepted that there would have been no prejudice if an amendment had been allowed and accepted that the main consideration in the primary judge’s decision was the absence of merit. The Secretary submitted that the primary judge made no error in finding that the reasons ground lacked merit, relying on the content of his Honour’s reasons.

Consideration

Ground 1 – consideration

98    We accept the appellant’s submission that the Tribunal failed to consider in accordance with s 6 of the Determination whether her mental condition had been fully treated and was fully stabilised and that this was a material error of law.

99    As we explained towards the outset of these reasons, the terms “permanent”, “fully stabilised”, and “reasonable treatment”, are not used in s 6 of the Determination in their ordinary meaning. They are defined concepts which require that regard be had to the elements set out in s 6. And in the case of the term “fully treated”, its meaning is shaped by the mandatory considerations in s 6(5) and its surrounding context.

100    The four elements of s 6(4) of the Determination which are directed to whether a condition is permanent are cumulative. However, they must be considered in a harmonious way. Thus, the question whether a condition has been “fully treated” should not be addressed in a way that is detached from whether the condition has been “fully stabilised”. It would be anomalous, for instance, if a condition was considered not fully treated because the person had not undertaken some treatment for the condition that was not “reasonable treatment” for the purposes of s 6(5), or where the person had not undertaken “reasonable treatment” and either of the conditions in s 6(6)(b)(i) or (ii) was engaged. The question whether the person has been “fully treated” therefore sits with, and not in place of, the requirement that the condition is “fully stabilised” which imports consideration of the defined concept of “reasonable treatment” as set out in s 6(6).

101    This is not to suggest that individual examination of the statutory criteria is not at the core of the analysis: it is. In construing criteria of this kind, regard must be had to the text, context and purpose of the instrument (this includes subordinate instruments: Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; 280 CLR 515 at [14] (Kiefel CJ, Gageler, Gleeson and Jagot JJ; Steward J at [47] agreeing on this point). In this case, the overall context of the Determination includes considering the coherence of s 6, and the four paragraphs in s 6(4) in a way that is internally consistent.

102    The requirement of s 6(4)(b) that the person’s condition has been fully treated uses the present perfect tense, and not the past tense. It accommodates cases where full treatment might include continuing treatment for the purpose of maintaining the stability of the person’s condition. That is clear from the mandatory considerations in s 6(5) which include consideration of whether treatment is continuing or is planned in the next two years. These criteria are mandatory topics of inquiry. The fact that treatment is continuing or planned does not equate to a conclusion that the person’s condition has not been fully treated, still less that the person’s condition is not fully stabilised. It all depends upon the nature and purpose of the treatment.

103    There was evidence before the Tribunal that the appellant had a very significant psychiatric condition which required her to be under the care of a treating psychiatrist for the foreseeable future. The impairment assessment undertaken by Dr Serry was capable of supporting an inference that the appellant’s condition had stabilised, although the Tribunal took a different view. Ms Plotkin also stated that the appellant’s condition had stabilised and recommended maintenance-based counselling. These opinions were concerned with whether the condition had stabilised in its ordinarily understood meaning, and not by reference to the requirements of s 6(6) of the Determination.

104    There were three types of treatment that the Tribunal identified which contributed to its conclusion that the appellant’s condition had not been fully treated and that her condition was not fully stabilised. Those treatments were: (1) the psychiatric treatment recommended by Dr Serry; (2) the EMDR therapy suggested by Ms Plotkin; and (3) alternative medication. As Mr Dubé on behalf of the Secretary accepted, the Tribunal did not address whether any of this treatment was “reasonable treatment” when measured against the criteria in s 6(7) of the Determination.

105    In relation to the cost of ongoing psychiatric treatment as being relevant to whether the treatment was “reasonable treatment”, the Tribunal made no mention of it. The primary judge held at J [60] that there was never any obvious suggestion that the cost of the psychiatric treatment was not reasonable and the Tribunal was not obliged to refer to that question in its reasons. We respectfully take a different view. The appellant’s claim that she was unable to secure an appointment with a psychiatrist who would bulk-bill and that she was unable to afford private treatment at $300 per hour on her Centrelink income and in her challenging financial circumstances was the subject of direct evidence and a clearly articulated submission made on her behalf. In this regard, we accept the submissions of counsel for the appellant which we summarised at [86] above. The Tribunal failed to consider this issue in determining whether the treatment was “reasonable treatment”.

106    The appellant also submitted that in evaluating Dr Serry’s report the Tribunal failed to consider whether the ongoing psychiatric treatment that he recommended was directed to achieving stabilisation of the appellant’s condition, or whether it was in the nature of continuing treatment to maintain a stabilised condition in circumstances where it was open to infer that Dr Serry considered that the appellant’s condition had stabilised. This question was squarely raised before the Tribunal by the combination of submissions made on behalf of the appellant and the material before the Tribunal, including Ms Plotkin’s second report which made express reference to “maintenance based counselling”. However, we do not accept that the Tribunal failed to address this question. It addressed the question at R [39] and declined to construe Dr Serry’s report as indicating that the appellant’s condition had been fully treated and was fully stabilised.

107    In relation to the EMDR therapy suggested by Ms Plotkin, the Tribunal did not explain what that therapy was, and it did not consider whether that therapy was in the nature of continuing treatment of a stabilised condition or otherwise address the criteria in s 6(7) of the Determination to determine whether the therapy was “reasonable treatment”. There was a real question whether the suggested EMDR therapy was for the continuing treatment of a stabilised condition because Ms Plotkin stated in her second report that the appellant’s condition had stabilised.

108    In relation to the question of alternative medication, the primary judge held at J [72] that it was a fair criticism of the Tribunal that it had misrepresented the submissions made on the appellant’s behalf but held that it was open to the Tribunal to find that it was reasonable for the appellant to pursue other forms of medication. We respectfully take a different view because the Tribunal again failed to have regard to the criteria in s 6(6) of the Determination. This was in circumstances where there was no medical evidence before the Tribunal that any particular medication was indicated, although Dr Serry referred in his report to the potential cost of psychotropic medication.

109    Thus, for the reasons that we have explained above, we accept that there were errors by the Tribunal insofar as the Tribunal’s reasoning discloses:

(1)    a failure to consider, in accordance with s 6 of the Determination, whether the appellant’s mental condition had been fully treated and was fully stabilised, as those concepts are understood in their context; and

(2)    a failure to consider a relevant issue, being the cost of treatment in determining whether the treatment was reasonable.

110    This brings us to the question whether the errors by the Tribunal were material.

111    The first matter to observe is that the “appeal” to the Court at first instance was a statutory appeal on a question of law under s 44 of the AAT Act, and not a claim of jurisdictional error by the Tribunal in support of a claim for a constitutional writ. Whether materiality should affect the outcome of the appellant’s appeal is therefore to be assessed through the lens of s 44 and the Court’s powers under s 44(4) and (5), which are now subject to the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth).

112    For an error of law on the part of the Tribunal to result in an order setting aside its decision, the error must be shown to be material to the decision of the Tribunal in the sense that the decision which was in fact made by the Tribunal might have been different if the error of law had not occurred: Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; 270 CLR 494 (Pharm-A-Care) at [40] (the Court). In applying the formulation of the threshold for materiality in Pharm-A-Care, namely that the decision in fact made “might have been different” we take account of the formulation in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (which was concerned with jurisdictional error) where Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (with whom Beech-Jones J at [38] agreed) stated at [14]-[16] –

The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

(Footnotes omitted; original emphasis.)

113    However, unlike the authorities that have addressed materiality for the purposes of jurisdictional error, s 44 of the AAT Act does not expressly say anything about an onus of proof involving the balance of probabilities. But as Pharm-A-Care indicates, it is incumbent on an applicant seeking relief under s 44 and cognate provisions to show that any error was material to the Tribunal’s decision. In simple terms, and drawing on Federal Commissioner of Taxation v Fortunatow [2020] FCAFC 139; 278 FCR 409 at [34] (McKerracher, Davies and Thawley JJ), the point made in Pharm-A-Care at [40] is that a decision will not ordinarily be set aside if the outcome would not have been different even if the decision in fact reached is shown to have been affected by legal error.

114    Two matters were relied on by the Secretary in support of a submission that the claimed errors by the Tribunal in relation to the application of s 6 of the Determination were not material to its decision. The first was the impairment assessment that the Tribunal undertook by which it assessed the level of impairment of the appellant’s mental health function under Table 5 at 10, which did not meet the threshold of 20 to qualify the appellant for a pension. The answer to that is that the Tribunal’s impairment assessment, which it undertook only on an alternative hypothesis that the assessment was authorised by the Determination, was itself affected by error. We agree with the primary judge’s conclusion at J [119] that the Tribunal failed to consider the application of Table 1 to the appellant’s condition. The error seems to have arisen because the Tribunal aligned the impairments that were addressed by the Impairment Tables with the conditions that were accepted as being diagnosed. This alignment had the result that no physical impairments that the appellant claimed were the result of symptoms of her mental condition, such as palpitations, chest pain, and fatigue, were assessed.

115    The second matter relied on by the Secretary, albeit faintly, was the Tribunal’s finding at R [78]-[79] that the appellant had not shown that she had a continuing inability to work. The Tribunal based its conclusion on the various job capacity or employment assessment reports prepared between 2013 and 2016. Those reports were premised on the medical certificates of Dr Leong who described the appellant’s conditions as “temporary”. None of them appeared to take account of the specialist medical diagnoses of the appellant. Further, the Tribunal’s conclusion at R [79] was expressly premised on a statement that there was insufficient evidence to reach a conclusion that the appellant’s conditions were permanent, fully treated, and stabilised. Had the Tribunal concluded that the appellant’s mental health condition had been fully treated and was stabilised, then it might have given more weight to the opinions of Dr Serry and Ms Plotkin and the appellant’s own evidence about her symptoms on the question whether the appellant had a continuing inability to work, which was a question that it had to decide for itself on the basis of all the material before it.

116    Had the Tribunal correctly applied s 6 of the Determination, then we are satisfied by reference to the undemanding threshold for materiality that there was a realistic possibility that the Tribunal might have concluded that an impairment rating was authorised by s 6 of the Determination, that the appellant might have achieved a rating of 20, that the Tribunal might have been satisfied that the appellant had a continuing inability to work, and that the appellant might have satisfied the other requirements to qualify for a disability support pension. Otherwise, these were all matters for the Tribunal to consider according to law.

Ground 2 – consideration

117    In light of our conclusions on ground 1, ground 2 falls away as a discrete area of challenge. This case is not so much an instance of inadequate reasons, but of inadequate consideration of the statutory criteria in s 6 of the Determination that is exposed by the reasons. In any event, because ground 1 is dispositive we are not required to address ground 2: Boensch v Pascoe [2019] HCA 49; 268 CLR 593 at [7] (Kiefel CJ, Gageler and Keane JJ) and [101] (Bell, Nettle, Gordon and Edelman JJ).

Conclusions

118    The appeal should be allowed and the primary judge’s orders should be set aside. In lieu, the Tribunal’s decision dated 18 May 2018 in matter 2017/3433 should be set aside and the appellant’s application for review remitted to the Administrative Review Tribunal to be heard and decided again. The composition of the Administrative Review Tribunal is a matter for the President, and the question whether further evidence should be adduced is a question for the Tribunal.

119    We will hear the parties on any other orders sought.

Associate:

Dated:    11 February 2026