FEDERAL COURT OF AUSTRALIA

Applicant 0108 of 2014 v Secretary, Department of Social Services [2016] FCA 421

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    The decision of the Administrative Appeals Tribunal made 22 June 2015 be set aside.

3.    The matter, limited to the question whether, for the purposes of s 1218AAA(1)(d) of the Social Security Act 1991 (Cth), the applicant’s severe impairment would prevent her from performing work independently of a program of support within the next five years, be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

4.    The applicant, and the Secretary, have leave to call further evidence relevant to the matter in issue.

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

REASONS FOR JUDGMENT

BARKER J:

1    The applicant at material times was in receipt of a disability support pension (DSP) granted under the Social Security Act 1991 (Cth) in 2010.

2    Part 4.2 of Ch 4 of the Act deals with the overseas portability of such a pension. Generally speaking, until the introduction of s 1218AAA in 2012, the recipient of a DSP could only be absent from Australia for relatively short periods, save for exceptional circumstances provided by s 1218AA, without affecting their eligibility to receive the pension.

3    Section 1218AAA, which came into operation on 1 July 2012, was, however, introduced with the apparent intention of making these portability rules “more generous”.

4    The general question raised in this appeal, from a decision of the Administrative Appeals Tribunal (AAT) rejecting the applicant’s application for unlimited portability of her DSP under s 1218AAA, is how generous the rule introduced by that section is in practice.

5    The particular question raised concerns the proper construction of the work capability criterion encapsulated in s 1218AAA(1)(d).

The application for portability

6    In September 2012, the applicant applied for a written determination, under s 1218AAA, that the maximum portability period for her disability pension is an unlimited period.

7    Section 1218AAA(1) relevantly provides that:

The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

(a)     the person is receiving disability support pension;

(b)     the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

(c)     the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

(d)     the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

8    At material times following the commencement of s 1218AAA, a person qualified for a DSP, under s 94(1), if they had a physical, intellectual or psychiatric impairment; the impairment was of 20 points or more under the Impairment Tables; and one or other of a number of other criteria applied, including that the person had a “continuing inability to work”.

9    By s 94(2), the expression “continuing inability to work”, was defined.

10    At that same time, a person’s impairment was considered a “severe impairment”, under s 94(3B), if their impairment was of 20 points or more under the Impairment Tables, “of which 20 points or more are under a single Impairment Table”. The requirement just emphasised thus needed to be established for the purposes of para (b) of s 1218AAA(1).

11    Each of the delegate of the Secretary, Department of Social Services (Department or Centrelink), an authorised review officer (ARO), the Social Security Appeals Tribunal (SSAT) and the AAT, in turn, on considering the applicant’s application, refused to make the determination of unlimited portability under s 1218AAA.

12    There was no dispute at any stage that the applicant was receiving a DSP for the purposes of para (a).

13    Initially, before the delegate, the ARO and the SSAT, the initial issue was whether the applicant’s impairment was a severe impairment for the purposes of para (b), which it was found it was not.

14    The decision-maker on each of these occasions consequently did not need to consider whether, for the purposes of para (c), any severe impairment would last for at least five years; or, for the purposes of para (d), any severe impairment “would prevent [the applicant] from performing any work independently of a program of support (within the meaning of the subsection 94(4)) within the next 5 years”.

15    When the applicant sought further review of her application before the AAT, the Department withdrew the concession earlier made in its statement of facts, issues and contentions before the AAT, concerning the applicant’s impairment in fact being a severe impairment, and for the required duration, and also sought to uphold the refusal to make the determination on the basis that para (d) was not satisfied in any event.

16    The AAT was satisfied as to the matters in paras (b) and (c), but not as to para (d) and so refused the application. From that decision the applicant appeals to this Court.

The reasoning of the AAT

17    The AAT recounted the following facts as relevant history of the applicant’s pension entitlement and the matter before it, none of which, it said, was disputed by the applicant.

18    The applicant was granted her DSP on 13 September 2010 for chronic malabsorption as a result of 20 impairment points, on the then Table 20 of the Impairment Tables in the Act, being assigned to that condition following a job capacity assessment (JCA). The JCA determined the applicant had a current baseline and future work capacity of eight to 14 hours per week. (The Court interpolates that these circumstances qualified the applicant for a DSP under Pt 2.3 of the Act, and in particular s 94, as it applied at that time).

19    On 26 November 2012, the applicant underwent a further JCA for portability medical review (which the Court infers to have followed her portability application upon s 1218AAA coming into operation on 1 July 2012). The AAT said the medical evidence submitted for that review identified three medical conditions: chronic malabsorption, pulmonary aspergillosis and tricuspid regurgitation. Chronic malabsorption was determined fully diagnosed, treated and stabilised (to use the language of Pt 2 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) “Rules for applying the Impairment Tables”). An impairment rating of 10 points on Table 1 and 10 points on Table 7 from the Impairment Tables of 2011 were assigned for that condition, not reaching the 20 points required for a DSP. Pulmonary aspergillosis was determined not to be fully diagnosed, treated or stabilised and tricuspid regurgitation was apparently not assessed. Baseline work capacity and capacity for work within two years was determined to be zero to seven hours per week.

20    That decision was then confirmed on a review by an ARO who determined that the applicant did not have a severe impairment as per Table 1 of the Impairment Tables, because she did not score at least 20 points under a single Impairment Table. Based on an assessment of fully diagnosed, treated and stabilised conditions only, it was considered she had an impairment rating of 10 points on Table 1. Review of ongoing entitlements to the DSP was recommended.

21    The ARO’s decision was apparently informally reviewed by a Centrelink officer on 15 July 2013 and, following what appears to have been a telephone discussion with the applicant’s general practitioner, Dr Igor Tabrizian, impairment ratings of 10 points on Table 1, 10 points on Table 10, and 5 points on Table 7 were assigned for chronic malabsorption. So, the applicant, on the face of it, remained eligible for DSP in that she scored 20 points or more, but not on a single Impairment Table.

22    The decision regarding eligibility for unlimited DSP portability was then formally reviewed by the SSAT which determined, in November 2013, that, at the time of the original decision, impairment ratings of 10 points could be assigned on Table 1 and Table 10 for chronic malabsorption, and 5 points on Table 12 for visual fatigue. The SSAT determined there was insufficient medical and psychological evidence to fully assess cognitive impairment; that respiratory symptoms were still under investigation; and that there was no medical evidence to assess urinary incontinence symptoms described by the applicant to the SSAT. Consequently, it considered those complaints were not fully diagnosed, treated and stabilised at the time of the original decision. The SSAT thus determined that the applicant was not qualified for unlimited portability of her DSP on the grounds of severe impairment (para (b)) and affirmed the ARO’s decision.

23    The AAT, however, relying on the evidence provided by Dr Tabrizian to the Centrelink officer and referred to in more detail below, concluded that the applicant had a severe impairment that would exist for at least five years, and so found paras (b) and (c) of s 1218AAA were met.

24    That left the question whether the terms of para (d) were met.

25    In dealing with para (d), the AAT referred to the words “any work” in para (d), noting they were not defined in the Act. The AAT referred to and adopted the explanation of para (d) provided in Stojanovski v Secretary, Department of Social Services [2014] AATA 466, at [13] and [14], by Member Professor R McCallum, as follows:

[13]     … section 1218AAA(1)(d) requires that the severe impairment ‘...would prevent the person from performing any work...’ in the open labour market. In order to give guidance to delegates making decisions under section 1218AAA(1), the Secretary has laid down policy in the Centrelink E-reference Guide. This guide is not generally available to the public and is for internal use. E-Ref 102.10480 of the guide states:

‘No future work capacity’ portability provisions

A customer is allowed indefinite portability of Disability Support Pension (DSP) if they are either:

•    assessed in Australia as;

•    having a ‘severe impairment’ and that this level of impairment is likely to remain for at least 5 years, and

•    having no (less than 2 hours per week) future work capacity independently of an ongoing program of support and that this level is likely to remain for at least 5 years, or

•    assessed as manifestly qualified for DSP under the current manifest guidelines.

[14]     For present purposes, it is relevant that the reference to no future work capacity is qualified by the words in parentheses ‘(less than 2 hours per week)’.

Even where a person does perform some work (for less than two hours per week), the Secretary can be satisfied that the person’s ‘severe impairment would prevent the person from performing any work’.

26    The AAT then said, at [23], that, applying the Centrelink E-reference guide to the applicant’s case:

it is necessary for the Applicant to demonstrate that she was incapable of working for two hours or more per week independently of a program of support. She does not need to show that she was unable to undertake any work at all.

27    The AAT then considered the medical evidence before it and that of the applicant.

28    The sequence of medical opinions obtained by the Department and eventually produced to the AAT, as dealt with by the AAT in its reasons, and of particular relevance to matters in issue in this appeal, was as follows.

29    Dr Tabrizian provided the following report to the Department dated 7 September 2010, just before the applicant was initially granted her DSP on 13 September 2010 under s 94 as it then applied:

Diagnosis

Chronic Malabsorption.

History

After cancer surgery started to deteriorate healthwise and prolonged legal proceedings (divorce) amplified this

Current Symptoms

Fatigue, sleep disorder, digestion issues

Current Treatment

Digestive support, enzymes, probiotics and nutrients that were malabsorbed

Past treatment

As above for 4 years

Future/planned treatment

As above with measurement

Impact in ability to function

Can’t stand for more than 30 minutes, poor stamina, poor cognitive function, unrefreshed sleep

The current impact of this condition on patient’s ability to function is expected to persist for:

More than 24 months

Within the next two years the effect of this condition on the patient’s ability to function is expected to be:

Uncertain

30    This report responded to the s 94 DSP qualification. The Court interpolates to note that, at material times in September 2010, s 94 provided that:

(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)     the person has turned 16; and

(e)     the person either:

(i)     is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)     is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)    is not an Australian resident; and

(B)    is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(f)     the person is not qualified for disability support pension under section 94A.

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: For Impairment Tables see section 23(1) and Schedule 1B.

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

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

(b)     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).

(3)     In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)     the availability to the person of a training activity; or

(b)     the availability to the person of work in the person’s locally accessible labour market.

(4)     A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)     is unlikely to need a program of support that:

(i)    is designed to assist the person to prepare for, find or maintain work; and

(i)     is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b)     is likely to need such a program of support provided occasionally; or

(c)     is likely to need such a program of support that is not ongoing.

(5)     In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)     education;

(b)     pre-vocational training;

(c)     vocational training;

(d)     vocational rehabilitation;

(e)     work-related training (including on-the-job training).

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.

Person not qualified in certain circumstances

(6)     A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

31    The Court notes Dr Tabrizian’s reference to the applicant’s “ability to function” within the following two years plainly related to the subs 94(2)(a) component of the “continuing inability to work” definition.

32    Dr Tabrizian provided the following further report dated 14 November 2012, obviously in relation to the applicant’s application for unlimited portability of her DSP made a short time before this, and after s 94 had been amended at the time of the introduction of s 1218AAA by the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012 (Cth) (2012 Reforms Act):

Condition 1

Diagnosis

Chronic Malabsorption

The diagnosis is

Confirmed

Treatment

Digestive support, Vitamins and minerals (since 2006)

Past treatment

Supportive

Future/planned treatment

Ongoing measurement, diet advice, supplement advice

Patient’s compliance with recommended treatment

Very compliant

Current symptoms

Fatigue, cognitive impairment

History

Started with stress of cancer treatment and domestic abuse

Impact on ability to function

Poor concentration, easy physical fatigue

Current impact of the condition on patient’s ability to function is expected to persist for

2-5 years

Within the next 5 years the effect of this condition on the patient’s ability to function is expected to

Improve – with better adjustments and monitoring

Condition 2

Diagnosis

Pulmonary Aspergillosis

The diagnosis is

Presumptive. Will refer to specialist

Current treatment

Antibiotic Therapy

Current symptoms

Breathlessness, chronic cough

History

2-3 years of progressive SOB, cough

Impact on ability to function

Fatigue, shortness of breath

Current impact of this condition on patient’s ability to function is expected to persist for:

3-24 months

Within next 2 years the effect of this condition on the patient’s ability to function is expected to

Significantly improve

Does this patient have any other medical conditions that are generally well managed and that cause marginal or limited impact on ability to function?

Tricuspid regurgitation of the heart

Is there any other information that you would like to provide?

I disagree completely this patient was assessed as capable of 8 hours work/week.

33    The Court notes Dr Tabrizian’s reference to the applicant’s capability to perform eight hours work per week, at the very end of this report, appears to relate to the subs 94(1)(da) qualification for a DSP, as it applied after the 2012 Reforms Act amendments became operative on 1 July 2012. This report was given in support of the applicant’s application for unlimited portability, when the initial issue appears still to have been whether the applicant suffered from a severe impairment.

34    In this regard, at material times in November 2012, s 94 of the Act provided:

(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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)     the person has turned 16; and

(da)     in a case where the following apply:

(i)     the person is under 35 years of age;

(ii)     the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

(iii)     if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

the person meets any participation requirements that apply to the person under section 94A; and

(e)     the person either:

(i)     is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)     is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)    is not an Australian resident; and

(B)    is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(ea)     one of the following applies:

(i)     the person is an Australian resident;

(ia)     the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

(ii)     the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.

Continuing inability to work

(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) – the person has actively participated in a program of support within the meaning of subsection (3C); 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).

(3)     In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)     the availability to the person of a training activity; or

(b)     the availability to the person of work in the person’s locally accessible labour market.

(3A)     If:

(a)     a person is receiving disability support pension; and

(b)     the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

then paragraph (2)(aa) of this section does not apply in relation to that assessment.

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.

Active participation in a program of support

(3C)    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

(3D)     The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

(3E)     The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

Doing work independently of a program of support

(4)    A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

(a)     is unlikely to need a program of support; or

(b)     is likely to need a program of support provided occasionally; or

(c)     is likely to need a program of support that is not ongoing.

Other definitions

(5)    In this section:

program of support means a program that:

(a)     is designed to assist persons to prepare for, find or maintain work; and

(b)     either:

(i)     is funded (wholly or partly) by the Commonwealth; or

(ii)     is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)     education;

(b)     pre-vocational training;

(c)     vocational training;

(d)     vocational rehabilitation;

(e)     work-related training (including on-the-job training).

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. (underlining added)

    Person not qualified in certain circumstances

(6)    A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

35    The Court also notes that, while at that point, in November 2012, Dr Tabrizian suggested, in respect of various matters, that there might be some improvements within the next two to five years, he made it clear he disagreed completely with the assessment that “this patient was assessed as capable of 8 hours work/week”. Whether or not Dr Tabrizian was referring to eight hours per week “on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market”, for the purposes of subs 94(1)(da), is unclear, given the applicant was then over 35 years of age (see s 94(1)(da)(i)).

36    Also, in passing, the definition of “work” provided in s 94(5) should be noted, as emphasised above.

37    That November 2012 report was followed up by a further medical certificate provided by Dr Tabrizian dated 30 March 2013, in which he referred to his earlier statement that the presumed aspergillums of the lung would improve over the next two years, and said this was “considered to be unlikely”, and that the applicant may well have sarcoidosis “and this will definitely not be improving in the next 2 years”. At this time, the applicant’s application was before the ARO.

38    That report was followed by a letter from Dr Tabrizian dated 23 September 2013, at which time the application was before the SSAT (and upon which the AAT subsequently placed some store in its decision-making) in which Dr Tabrizian said he wished to “clarify several points at this moment in time”. They included:

    that the chronic malabsorption would more likely than not persist for more than five years;

    that the applicant had shown him the Impairment Tables; and

    his comments in respect of Table 1, Table 3, Table 4, Table 10 and Table 12.

39    His report concluded that, based on the Department’s definition of “Sustainability of work”, “(the Applicant) is not fit enough for employment as her physical symptoms would make her mostly unreliable to an employer”. The definition he referred to was:

Sustainability of work

… in assessing capacity for work, it is expected that a person will be capable of reliably performing work on a sustainable basis, that is, for a reasonable period of time without requiring excessive sick leave or work absences. In this context, a reasonable period of time generally means 26 weeks and work means work in open, unsupported employment. Sick leave or absences of one month or more (in total) taken in any given 26 week period are considered excessive.

40    The Court notes that, as it transpires, this definition was, at material times, part of the Department’s Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension and appears to have been obtained by Dr Tabrizian using his own devices. It seems not specifically to have been drawn to his attention by Centrelink, for example. The provenance of the definition, and its relevance to the construction of para (d) is discussed further below.

41    On 22 April 2014 and 13 June 2014, the Australian Government Solicitor (AGS), the solicitor for Centrelink in the AAT review proceeding, sent a letter to the applicant enclosing a letter to Dr Tabrizian to assist him in preparing a medical report for the applicant. The second of those enclosed letters (similar to the first, but the one to which Dr Tabrizian responded) dated 13 June 2014, was in the following terms:

Dear Doctor

Applicant 0108/2014 and the Secretary, Department of Social Services (AAT 0108/2014)

1.    We act for the Department of Social Services (Centrelink) in the above matter.

2.    [The applicant] currently has an appeal to the Administrative Appeals Tribunal (AAT) concerning a decision made on her Disability Support Pension (DSP). We have asked [the applicant] to provide a copy of this letter to you.

3.    The information contained in this letter is intended to assist you to ensure that the additional medical material provided by you directly addresses the issues that are before the AAT.

4.    Please note that the report is requested by [the applicant] who is responsible for your fees.

The eligibility criteria

5.    A person’s eligibility for DSP is determined by a medical assessment of the person’s impairment rating and ability to work. The person must have:

a.    a physical, intellectual or psychiatric impairment,

b.    an impairment of 20 points or more under the Impairment Tables contained in the Social Security Act 1991 (the Act), and

c.    a continuing inability to work because of the impairment.

6.    Once in receipt of DSP, to be eligible for indefinite portability of their pension, a recipient must:

a.    have a severe impairment which will persist at this level for at least the next 5 years (i.e. no significant improvement is expected to the level of impairment within this period), and

b.    have no future work capacity, that is be prevented by their impairment from performing any work independently of a program of support within the next 5 years.

7.    Your report should contain information in relation to the functional impact of [the applicant’s] impairments under the relevant Impairment Tables.

8.    We have enclosed a copy of the Impairment Tables for your reference which you will need to refer to when preparing your report.

9.    Your report to [the applicant] should specifically address the following criteria in relation to the impairments under the relevant tables for the period of the original decision by Centrelink in February 2013 and what changes, if any, have occurred with regard to [the applicant’s] condition since that time to the present:

a.    Describe the diagnosis and date of onset. Any detail you can provide regarding the nature of any condition causing impairment would be appreciated.

b.    Provide a detailed description of the symptoms suffered by [the applicant] as well as the frequency and severity of the symptoms. Of particular interest, are details about the impacts that these symptoms have on [the applicant’s] ability to function.

c.    Describe the treatments that [the applicant] has received for the condition. What date(s) were such treatment(s) provided?

d.    Are there any treatments reasonably available to [the applicant] that, in your opinion, would be likely to lead to an improvement in her condition within two years? What risks (if any) may be associated with such treatments?

e.    Has a specialist opinion been sought for the condition(s)? If so, please provide the name and qualifications of the specialist and advise when the consultation(s) took place. What was the specialists opinion regarding the management and treatment of the condition? If the specialist provided a report to you, please provide [the applicant] with a copy so that she can submit it in support of her application.

Importantly:

f.    What is your assessment of her impairments under the relevant Impairment Tables? Please identify the Tables(s) used.

10.    [The applicant] has been provided with a copy of all documents relevant to the current appeal to the AAT, including medical reports. Please indicate in your report which of these documents you have taken into account. Your comments on any of the reports would be welcomed.

11.    Please advise if further tests or further specialist opinion is necessary before you can arrive at a full assessment and report. Your report should normally be given directly to [the applicant] for lodgment with the AAT and Centrelink.

12.    The Freedom of Information Act generally requires Centrelink to disclose medical information directly to its customers. However, if this information would be prejudicial to the person’s health or well-being, it may be released via a medical practitioner nominated by the person. Please indicate if your report contains such prejudicial information and send it to Centrelink rather than to your patient.

42    By his report dated 14 July 2014, Dr Tabrizian responded to this letter as follows:

(The Applicant) has informed me that following a Directions Hearing [in the AAT] you now wish to know her current medical condition as it applies under The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, Impairment Table 10, Digestive and Reproductive Function, for which she is claiming 20 points for portability of her Disability Support Pension. Using your questions in your letter to her, the following is my assessment of her current condition under Table 10.

(a)    Describe the diagnosis and date of onset. Any details you can provide regarding the nature of any condition causing impairment would be appreciated.

As I stated in the Medical Reports that I have completed on behalf of this patient, (the Applicant) has Chronic Mal-absorption and its onset was 1 February 2006. (The Applicant) was diagnosed with Cervical Cancer in 2005. Subsequent to this she began to fail to digest nutrients. At this time she was also going through a challenging divorce from an abusive partner.

(b)    Provide a detailed description of the symptoms suffered by the person, as well as the frequency and severity of the symptoms. Of particular interest, are the details about the impacts that these symptoms have on (the Applicant)’s ability to function.

    My comments in my report of 23 September 2013 still apply.

    As Mal-absorption refers to the body’s inability to function efficiently, various areas of the body begin to malfunction. In terms of Table 10, (the Applicant)’s failure to adequately digest results in:

•    Frequent visits to the toilet, often every hour, sometimes more frequently, day and night.

•    Recurrent hunger often within an hour of eating means she needs to snack throughout the day and during the night.

•    Excessive tiredness renders (the Applicant) without the stamina to sustain normal physical exertion levels.

•    (The Applicant)’s tiredness also impacts on her vision causing her eyes to frequently fail to coordinate producing eye strain when wearing prescription glasses. As a result she tries to avoid using her glasses wherever possible despite needing them for the majority of activities.

•    Poor cognitive functioning in most areas, particularly in attention and concentration.

In a three hour work period (the Applicant) would require at least hourly breaks for toilet visits as well as additional breaks to snack. She would need to use her prescribed glasses which would cause her eye strain producing headaches, fogging etc. The foregoing would impact on her attention and concentration levels without even taking into account her on-going cognitive impairments. To expect her to sustain any activity for three hours is unrealistic.

(c)    Describe the treatment that the person has received for the condition. What date(s) were such treatment(s) provided?

(The Applicant)’s treatment remains consistent with the Medical Reports previously submitted on this patient. She continues to experience problems absorbing whether via tablet, capsule, including slow-release, liquid or intravenous means.

(d)    Are there any treatments reasonably available to the person that, in your opinion would be likely to lead to an improvement in the persons condition within two years? What risks (if any) may be associated with such treatments?

Not that the patient can reasonably afford.

(e)    Has specialist opinion been sought for the condition(s)? If so, please provide the name and qualifications of the specialist and advise when the consultation(s) took place. What was the specialist’s opinion regarding management and treatment of the condition? If the specialist provided a report to you, please provide (the Applicant) with a copy so that she can submit it in support of her application.

Kindly refer to my report of 8 March 2014 which deals with this in depth.

(f)    Importantly: What is your assessment of the impairment under the relevant Impairment Table?

Although (the Applicant)’s condition has shown a decline since her application in November 2012 I still remain of the opinion that (the Applicant) has met the requirements of 20 points on Table 10, Digestive and Reproductive Function.

In my opinion (the Applicant) has a physical impairment of 20 points under the Impairment Tables with a continuing inability to work. Her condition is likely to persist for 5 years based on your definition of ‘Sustainability of work’. (The Applicant) is not fit enough for employment as her physical symptoms would make her mostly unreliable to an employer.

(Emphasis in italics and bolding added.)

43    As noted above, the definition of “Sustainability of work” that Dr Tabrizian had employed in these two last reports of 2013 and 2014, was not his definition but Centrelink’s, apparently found in the Guidelines.

44    It should also be observed that, obviously, Dr Tabrizian construed the AGS letter as asking him specifically to express his opinion on the matters referred to in para 9(a) to (f) and how these matters affected the defined question of “continuing inability to work” in s 94.

45    Following Dr Tabrizian’s July 2014 report, Centrelink also received a letter dated 2 December 2014 from Dr Gino Mastaglia, Physician of Rheumatology, in which he ultimately concurred with Dr Tabrizian’s opinion regarding the applicant’s “severe functional impairment”.

46    The AAT, in light of the medical and other evidence before it, then dealt with the applicant’s future capacity for work, at [66] and following of its reasons, approaching the question before it in the following way:

    At [67], it noted that it was “necessary for the Applicant to demonstrate that she is unable to work for two hours or more per week independently of a program of support” (relying on the two hour rule in the E-reference guide).

    At [68]-[69], it referred to the submissions of the applicant which described aspects of her condition that affected her ability to work and made it impossible for her to find two hours of employment a week.

    At [70], it referred to the earlier SSAT decision which recorded the applicant as stating that she “spent several hours every morning on her computer and could undertake odd jobs around the house, including watering the garden”.

    At [71], it said that the applicant did not dispute she was able to do daily tasks, albeit with difficulty, and that she did not dispute her ability to type and prepare written documents.

    At [74]-[76], it noted the reports from the JCA and the Health Professional Advisory Unit, the former stating that, with intervention, the applicant had a capacity for work within two years of zero to seven hours per week and the latter stating that her baseline work capacity could be assessed as less than 15 hours per week but her future work capacity would be assessed at 15 to 22 hours per week.

    At [78], it said that Dr Tabrizian’s evidence could be summarised referring to notes made by a delegate of his or her conversation with Dr Tabrizian, dated 15 July 2013, the medical report for DSP review of Dr Tabrizian dated 14 November 2012, the letter from Dr Tabrizian dated 23 September 2013 (which referred to the “Sustainability of work” definition) and the medical report of Dr Tabrizian dated 14 July 2014 (also referring to the “Sustainability of work” definition).

    At [83], it concluded that it did not doubt the applicant suffered a great deal from the physical impairment she had described and did not doubt her sincerity when she stated that her daily activities were minimised.

    It then stated that it was bound by the terms of the Act and policies (the E-reference guide) relevant to the matter and required clear evidence that she could not work more than two hours per week.

    At [84], it concluded that, based on the evidence before it, it was not satisfied the applicant was incapable of working more than two hours per week, especially having regard to:

•    Her own written evidence and her appearance before this Tribunal evidence a determined individual with a strong work ethic who, can, when it is required, undertake written and reflective work of a sort that would allow her to work at least 2 hours in a given week.

•    The legislation allows no scrutiny of whether or not the applicant will work in the future. Rather it only allows scrutiny of evidence that she can work.

•    Evidence that the employment market is difficult and that people with disabilities are discriminated etc; while troubling, are not the sort of evidence this Tribunal can look to when assessing whether the Applicant meets the requirements of section 1218AAA(1)(d).

Grounds of appeal

47    The applicant appeals from the AAT’s decision on the following seven grounds:

1.    An error of law was made when the AAT failed to consider the legality of the e-reference guide and whether the two hour work capacity requirement was congruent with the legislation.

2.    Although the AAT had evidence before them that the Respondent had not made known the existence of the e-reference guide until after submissions had closed the AAT failed to apply natural justice by taking into account such specific, relevant circumstances.

3.    There was a lack of procedural fairness when the AAT required the treating doctor to report in terms of the withheld e-reference document or to use the precise wording of s 1218AAA; while at the same time ignoring the doctor’s repeated statements in everyday English and actions.

4.    By seeking to impose higher requirements than other AAT decisions in similar cases the AAT were engaging in a breach of natural justice

5.    The AAT failed to consider the question of sustainability when asked to in relation to, until then, the only similar case. Despite the AAT actually quoting from this case they failed to give consideration to the issue thereby denying procedural fairness.

6.    When provided evidence that it was unlikely that a severely impaired person would gain work for two hours per week and that the Respondent knew that I would likely be ‘parked’ the AAT responded by saying that it was ‘troubling’. I would respectfully ask the court to look into the question of whether it is reasonable for the AAT to ignore a relevant consideration in an individual case.

7.    The AAT were asked to adjudicate on the suitability of the Impairment Tables for assessing my eye problems and review the awarding of points. By not doing so they denied me natural justice and made further applications for portability problematic.

48    A number of these grounds overlap. The primary issues they appear to raise are:

(1)    whether the AAT erred in its construction of para (d) concerning work capacity, including by relying on the two hour rule found in the E-reference guide; and

(2)    whether, in the factual circumstances before it, the AAT failed to accord the applicant natural justice, or procedural fairness, when finding she could work for two hours or more.

49    I should note, at the outset, I do not accept a submission by the Secretary that the applicant has failed to state a question or questions of law as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

Did the AAT err in its construction of para (d) concerning work capacity, including by relying on the two hour rule found in the e-reference guide?

50    The applicant challenges the legal efficacy of the two hour rule. She says it is not mandated by a proper understanding of para (d) and its application results in her work capacity not being properly evaluated, especially by reference to Centrelink’s “Sustainability of work” definition which she says should be accepted as a relevant definition of “work” for para (d) purposes.

51    At the hearing of this appeal, counsel for the Secretary submitted that the meaning of “any work” in the phrase “performing any work independently of a program of support”, having regard to the definition of “work” in s 1218AAA(5), meant that if the person was capable of performing any paid work independently of a program of support – no matter how little paid work – then they would be unable to obtain a determination of unlimited portability of their pension under s 1218AAA.

52    Subsection (5) says “work”, means work:

(a)    that is 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.

53    At the conclusion of the hearing, following the initial submissions concerning the construction of para (d), counsel for the Secretary was provided with the opportunity to file further submissions on this statutory construction issue and, in particular, the legislative history of s 1218AAA. The Secretary submitted that s 1218AAA was inserted into the Act, in 2012, at the start of Subdiv B of Div 2 of Pt 4.2 by Item 10 of Sch 3 to the 2012 Reforms Act, to allow a person, who meets the new criteria, to live outside Australia indefinitely and continue to be paid a DSP, as explained in the Background section of the Explanatory Memorandum to the Bill for the 2012 Reforms Act.

54    Schedule 3 of the Explanatory Memorandum to the Bill for the 2012 Reforms Act dealt specifically with portability of DSP, as follows:

Schedule 3 – Portability of disability support pension

Summary

This Schedule introduces more generous rules, for disability support pensioners with a severe impairment that is likely to continue for at least five years and result in the person having no future work capacity, allowing them to retain access to their disability support pension if they travel overseas for more than 13 weeks.

Background

Currently, Division 2 of Part 4.2 of Chapter 4 of the Social Security Act sets out the length of time that social security payments can be paid to a person while that person is outside of Australia. Payment of a social security pension or benefit to a person while they are overseas is referred to as portability.

Generally, disability support pension can only be paid to a person for 13 weeks after they leave Australia. However, there are some existing exceptions to the general portability rule.

Existing section 1218AA of the Social Security Act enables the Secretary to determine that a disability support pensioner’s maximum portability period is unlimited if a person has a severe disability, has a terminal illness and returns to their country of origin or moves overseas to be near family.

The amendments made by this Schedule establish a new category of people who can access an unlimited portability period that is similar to the existing section 1218AA. The Secretary will be able to determine that a person who has a severe impairment that is likely to continue for at least five years and who, as a result of the impairment, is not able to undertake any work, has an unlimited portability period. This will mean that a person who meets the criteria can live outside Australia indefinitely and continue to be paid disability support pension.

The amendments made by this Schedule commence on 1 July 2012.

Explanation of the changes

Items 1 to 6 make technical amendments to the qualification criteria for disability support pension in sections 94 and 95 of the Social Security Act. The effect of these items is to ensure that a person continues to qualify for disability support pension even after the person ceases to be an Australian resident. A severely impaired disability support pensioner, as determined in accordance with new section 1218AAA of the Social Security Act (inserted by item 10 below), can live outside Australia and continue to be paid disability support pension.

Item 7 inserts a definition of a severely impaired disability support pensioner into section 1212 of the Act. The term severely impaired overseas disability support pensioner is defined by reference to the new section 1218AAA, inserted by item 10 below.

Item 8 makes a technical amendment to item 2 in the table at the end of section 1217 of the Act. The table sets out the maximum length of time that a particular social security payment can be paid to a person who is overseas, known as the maximum portability period. The amendment made by this item establishes that a person who is a severely impaired overseas disability support pensioner will have an exception to the general 13-week maximum portability period for disability support pension.

Item 9 provides for the amendment of the table at the end of section 1217, by inserting a new table item 2A to provide that the maximum portability period for a severely impaired overseas disability support pensioner is unlimited.

Item 10 inserts a new section 1218AAA into the Social Security Act at the start of Subdivision B of Division 2 of Part 4.2.

New subsection 1218AAA(1) provides that the Secretary may determine that a person is a severely impaired disability support pensioner if:

(a)    they are in receipt of disability support pension; and

(b)    they have a severe impairment as defined in subsection 94(3B) of the Social Security Act; and

(c)    the severe impairment is expected to last for at least five years; and

(d)    they have no capacity to work independently of a program of support (as defined in subsection 94(4) of the Social Security Act) as a result of their severe impairment.

It is generally intended that, before the Secretary makes a determination under new section 1218AAA, the disability support pensioner would be required to undergo an assessment in Australia to determine whether they meet the criteria for a severely impaired overseas disability support pensioner.

However, in relation to a person who is outside Australia, new subsection 1218AAA(2) prevents the Secretary from making a determination unless satisfied that the person is unable to return to Australia because the person has had a serious accident, or has been hospitalised, before the end of the person’s portability period.

New subsection 1218AAA(3) allows the Secretary to revoke a determination made under new subsection 1218AAA(1) if the Secretary becomes aware that a severely impaired overseas disability support pensioner no longer meets the criteria set out in new subsection 1218AAA(1).

A determination by the Secretary that a person is a severely impaired overseas disability support pensioner is not a legislative instrument, as noted in new subsection 1218AAA(4). This provision is inserted to assist readers and is merely declaratory of the law. The determination of the Secretary under new section 1218AAA is not a legislative instrument within the meaning of the Legislative Instruments Act.

New subsection 1218AAA(5) inserts a definition of work for the purposes of this new section. For the purposes of new section 1218AAA, work means employment that is available in Australia for a wage that is at or above the appropriate minimum wage. This includes work that is in a location away from where the person ordinarily lives.

Item 11 repeals the heading to section 1218AA and substitutes a new heading to the provision to take account of the amendments made in this Schedule. The amendments in this Schedule provide for a new category of people who can have an unlimited portability period for disability support pension. The new heading for the existing unlimited portability period in section 1218AA distinguishes the provision from new section 1218AAA.

Item 12 amends subsection 1220B(1) to provide that the Pension Portability Rate Calculator at the end of section 1221 of the Social Security Act applies to a person who has an unlimited portability period as a result of new section 1218AAA.

Item 13 is an application provision, which provides that the amendments made by this Schedule will only apply to qualification for disability support pension, and absences from Australia, on or after 1 July 2012.

(Emphasis in original.)

55    Plainly the changes were intended to introduce “more generous rules” to allow a person in receipt of a DSP not to lose their pension if they travel overseas for more than 13 weeks – indeed, for an indefinite period – in certain circumstances, as stated at the beginning of the Summary. Whether the new rules are “more generous” perhaps is and was intended to be a subjective consideration.

56    As the Background explains, up to that point, generally speaking, a DSP could only be paid to a person for 13 weeks after they left Australia, with some exceptions. The Schedule further explains that the then existing s 1218AA of the Act enabled the Secretary to determine that a DSP’s maximum portability period was unlimited only if a person had a severe disability or a terminal illness, and returned to their country of origin or moved overseas to be near family.

57    The Schedule then stated that:

The amendments made by this Schedule establish a new category of people who can access an unlimited portability period that is similar to the existing section 1218AA. The Secretary will be able to determine that a person who has a severe impairment that is likely to continue for at least five years and who, as a result of the impairment, is not able to undertake any work, has an unlimited portability period. This will mean that a person who meets the criteria can live outside Australia indefinitely and continue to be paid disability support pension.

(Emphasis added.)

58    In the Explanation of the changes, in relation to Item 10, the terms of the present s 1218AAA(1)(a) to (d) were then set out, with the expression independently of a program of support, in para (d), emboldened in this definitional way.

59    The Schedule goes on to say that it is generally intended that, before the Secretary makes a determination under this new section, the disability support pensioner “would be required to undergo an assessment in Australia to determine whether they meet the criteria for a severely impaired overseas disability support pensioner”.

60    The Schedule further explains that the new s 1218AAA(3) would allow the Secretary to revoke a determination if the Secretary became aware that a severely impaired overseas disability support pensioner no longer met the criteria.

61    In relation to Item 10, the Schedule notes that s 1218AAA(5) inserts a definition of work for the purposes of the new section and means “employment that is available in Australia for a wage that is at or above the appropriate minimum wage”, and includes work that is in a location away from where the person ordinarily lives.

62    On one view, the importance of the qualifying circumstance set out in para (d) is that, if a DSP holder wishes their pension to be portable for an indefinite period, then they must satisfy a stringent no (paid) work capacity test. Otherwise other exceptions permitting limited portability would continue to apply. On this view, the “more generous rules” were only intended for people who did not meet the existing s 1218AA rules, and who could satisfy a stringent no future (paid) work capacity test.

63    On another view, supported by the applicant, there is no reason to read “any work” literally and it refers, as the Secretary indeed acknowledges, to an inability to undertake paid work. In this regard, the applicant further relevantly submits:

21.     As raised in this case the issue of when one is able to work is contentious. How is the ability to work identified? Could one say, as the AAT have sought to do (paragraph 70), that if one waters the garden they are able to work? Or could one say if you can cook your meals you are able to work?

22.     As the court recognised this is a grey area. All legislation normally list their definitions at the beginning so that there can be no confusion as to what is being said. I would contend that ‘any work’ was recognised by the legislators as a grey area and this is why it was left, deliberately, undefined. The legislators recognised that this needed to be assessed on a case by case basis. Clearly the person best placed to inform any decision makers is the person with the most knowledge of the impairment and its impact on the client over time. This is normally the treating doctor.

23.     If I take watering the garden as a possible indicator of being able to work, would this always apply? For arguments sake, a severely intellectually impaired person unable to talk or feed themselves could water the garden. All one would have to do is attach a hose to their hand in the same way that we are able to attach a spoon to their hand at the very beginning stages of teaching one to feed and say that they are watering the garden. However, in doing so watering the garden in such a scenario does not guarantee that someone is able to work. In my case watering the garden means that I have to omit what should be my daily my exercises for the day.

24.     Similarly, although the respondent said at page 16, line 15 in the transcript of proceedings, ‘that the Tribunal made a factual finding based on its assessment of the applicant before it and the evidence that she gave which your Honour has referred to about being independent at home and looking after her self-care and that she was capable – it couldn’t be satisfied that she was not capable of working the two hours per week.’ A core independence skill such as, for example, cooking is not an indicator of being able to work. One needs to ask, what is being cooked, a three course meal or a bowl of soup? If it is a bowl of soup, is it made fresh each day or is it made in bulk for the week? How does the activity leave the person, are they exhausted by the task? Do they have a well-balanced diet or do they rely on soup because it requires the least amount of effort? Has the preparation of soup required prior and post adaptations and changes to routine in order to accomplish the task?

25.     It seems strange that the respondent would be suggesting that any independence shown by an applicant for portability would automatically bar them from having their application for portability granted. In my case I am fighting to retain my independence and the government supports me in this endeavour by providing in-home help. They do so because they recognise the need to reduce pressures on aged care facilities and it is cheaper than having people go into homes. Is the respondent really suggesting that as I have already been found to have a severe impairment that if I were to check myself into a home I would then be eligible for portability?

64    In relation to these issues, the Court further invited the parties to address the relevance, if any, of Centrelink’s “Sustainability of work” definition to the para (d) construction issue – it having been utilised by Dr Tabrizian, as noted above.

65    Obviously it is not a definition to be found in the Act, and so it cannot, of itself, control the meaning of “any work” as it appears in s 1218AAA. Whether, however, it is intended to reflect the definition of “work” as it appears in s 1218AAA(5) is an interesting question.

66    The applicant further explained that her treating doctor, Dr Tabrizian, having found this definition through his own devices, used it in his reports. She acknowledges, however, that the definition relates to the DSP qualification in s 94, but says the absence of something similar in s 1218AAA, or in the E-reference guide, required Dr Tabrizian to import the definition to assist his report writing. The applicant makes the point – at a level of generality – in the following terms:

I do not deny that in an emergency I could push myself to do two hours work. However, I also know that in doing so I would then have to pay for it in terms of pain and debility not just for the following day but in subsequent days. It would therefore not be sustainable to work two hours a week on an on-going, regular basis.

She observes that this is exactly what is addressed in the definition of “Sustainability of work” that Dr Tabrizian utilised.

67    She further submits that:

We now have a scenario where the respondent demonstrates inconsistent standards. They encourage pensioners to remain independent recognising the financial burden of their residential care when it suits them yet penalise those ‘severely impaired’ for remaining independent; they have a definition of ‘sustainability of work’ which applies to DSP but not to those DSP holders who are ‘severely impaired’ seeking portability; they accept that ‘work involves a substantial degree of personal exertion on the part of the person concerned’ but not for those ‘severely impaired’; and ‘Domestic duties in relation to a person’s place of residence do not count as gainful work’ for age pensioners but not those ‘severely impaired’. All the foregoing can inform the meaning of ‘any work’ at 1218AAA(d). Instead the respondent has decided arbitrarily to apply the e-reference guide which ‘is not a legislative instrument’ (1218AAA(4)) as can be seen in the JCA report in the Lee case [referred to below] in which anyone who lives independently is automatically capable of work. Clearly the respondent is taking on powers that need to be policed. Something the AAT are repeatedly failing to do.

68    The Secretary observes that the phrase “Sustainability of work” does not appear in the Act at all and only appears in the Guide to Social Security Law (the Guide) and in the Guidelines. Chapter 3.6.1.67 of the Guide deals with the topic of “Sustainability of Work & DSP” and states that it applies to “people who are subject to either the 15 hour rule or the 30 hour rule for DSP qualification”. The Secretary emphasises the words “DSP qualification”. The Secretary thus contends it is not relevant to the applicant’s application for portability of her DSP under s 1218AAA.

69    The Secretary also notes that Ch 3.6.3.05 of the Guidelines deals with the topic of Guidelines to the Rules for Applying the Impairment Tables and has a heading “Sustainability of work” and provides the following paragraph:

In assessing capacity for work, it is expected that a person will be capable of reliably performing work on a sustainable basis, that is, for a reasonable period of time without requiring excessive sick leave or work absences. In this context, a reasonable period of time generally means 26 weeks and work means work in open, unsupported employment. Sick leave or absences of one month of more (in total) taken in any given 26 week period are considered excessive.

70    The Secretary notes that the topic provides guidance on the rules that are to be complied with in applying the Impairment Tables, that it has headings emphasising significant principles and concepts underpinning provisions contained in the Impairment Tables, and provides guidance on the concepts and practical application of the DSP eligibility criteria contained in the Act. Again the Secretary contends this is not relevant to the applicant’s application for portability of her DSP, and was only relevant to her eligibility for DSP initially, which is not the subject of review before this Court.

71    The Secretary submits the issue of sustainability of work arose because the applicant’s eligibility for DSP was contested before the AAT (at [56] of the AAT’s reasons); and that the comments by Dr Tabrizian, dated 23 September 2013 (at [33], [80], [81], [88]-[89]) and 14 July 2014 (at [42], [82], [90]) on this issue were addressing the 15 hour work rule (that is, from the definition of “work” in s 94(5) emphasised above at [30]).

72    The Secretary further submits that Dr Tabrizian quoted from the definition of sustainability of work from the Guidelines and gave an opinion as to the applicant’s ability to work on the basis of this definition. His opinion in relation to this issue was based on his own observation and the applicant’s written notes of her symptoms. The Secretary thus submits that the AAT found that Dr Tabrizian’s opinion did not address the requirements of s 1218AAA of the Act and did not clarify whether the applicant “might be able to work at all and, if so, when and under what circumstances” (at [86], [87] of the AAT’s reasons). The respondent submits that the AAT was correct to distinguish between the applicant’s ability to reliably perform work for a period of 26 weeks and the requirement in s 1218AAA; and that the AAT’s findings of fact in relation to the reports of Dr Tabrizian (at [86], [87], [89] and [90]) were all open to the AAT and do not disclose any error of law.

73    The Secretary then repeats the submission that the AAT, after consideration of all the evidence before it, including the medical evidence, its assessment of the applicant’s written work and her appearance before the AAT, made a finding of fact that it was not satisfied that “...the Applicant is incapable of working more than two hours per week”, at [84], that was open on the evidence and for the reasons it gave. The AAT was entitled to accept or reject or give such weight to the evidence proffered as it thought appropriate in all the circumstances.

74    The Secretary thus submits that, for the purposes of DSP portability, the meaning of “any work” is more restrictive than for DSP eligibility. In relation to DSP eligibility, s 94(5) defines “work” in that section to mean work that is for at least 15 hours per week. In relation to DSP portability, s 1218AAA(5) defines “work” in that section without any reference to a necessary number of hours.

75    In the Court’s view, there is little doubt that the question of “Sustainability of work” has been included for DSP qualification purposes in the manner that the Secretary submits and it was not intended, consciously at least, to suggest the meaning of “work” for the purposes of para (d) of s 1218AAA(1). It does, however, appear to pick up components of the s 1218AAA(5) definition of “work”.

76    When regard is had to the definition of “work” that appears in s 1218AAA(5), it is plain enough that it is not just any capacity for physical effort that qualifies as “work” for the purposes of para (d), but work “(a) that is 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”. It is by reference to this definition of work that the AAT, in Stojanovski, said that para (d) required that the severe impairment must prevent the person from performing any work “in the open labour market”. I agree with that observation although, in my view, its import requires further exploration.

77    I would add that para (b) of the definition of “work” makes it clear the para (d) question is whether a severely impaired person is prevented, without a program of support, from undertaking available work for wages that exists in Australia, where he or she lives or elsewhere in Australia. This invokes a labour market analysis. It invites the question whether there is work on wages available in Australia that the person could perform, within the next five years, without a program of support. The requirement, “that [work] exists in Australia” emphasises that the para (d) consideration is not theoretical or open ended. For example, the question is not whether there is work in another country that the severely impaired person could do: it is whether there is work “that exists in Australia”. Such work must be identified in order to decide if the severely impaired person is prevented from doing any such work, without a program of support. The question of work capacity for para (d) purposes is not, therefore, to be asked and answered in a labour market vacuum, so to speak.

78    It follows that some of the submissions made by the applicant are answered by this understanding of what “work” relevantly is. For example, the simple fact that a severely impaired pensioner can water their garden, work on their home computer, or help out in the community in some voluntary capacity, or receives some remuneration for their exertion but not by way of wages in the open labour market, does not mean the person thereby is demonstrated as able to perform “work” for the purposes of para (d). Such evidence does not directly answer the question whether the severely impaired person is prohibited from undertaking any work, for wages, that exists in Australia. It may possibly be relevant, with other evidence, to that question, but it does not directly answer it.

79    On the AAT’s approach, however, the capacity of the applicant to do such things as spend time on a computer and undertake odd jobs around the house, including watering the garden, was considered of direct significance to whether it was satisfied para (d) was met. By relying on evidence concerning what other physical activities the applicant, on her own evidence and appearance before the AAT, was capable of doing, the AAT failed, in my view, correctly to apply the para (d) consideration. It failed to address the question whether the applicant, by her severe impairment, was prevented from performing any work on wages that exists in Australia for the next five years. Rather, it assumed she could do such work – which was not relevantly identified – simply because, in part, she could perform some non-wage activities.

80    In those circumstances, it would appear, as the Secretary submits, that the “Sustainability of work” definition otherwise employed by Centrelink for other s 94 qualification purposes, is not directly relevant to the question that needs to be grappled with under para (d). It is not difficult to understand, however, why Dr Tabrizian, when asked to respond to the matters set out in the AGS letter to the applicant dated 13 June 2014, dealt with the matter in the way that he did in his report. His focus was not directly drawn to any particular concept of “any work”. At least, the letter requesting his opinion was ambiguous as to what he was specifically required to comment on. While it is correct to submit, as the Secretary did when the Court invited further oral submissions following the presentation of the written submissions on the sustainability of work definition question, that the letter adverted to the terms of para (d), the fact is that the letter in para 9 raised substantive, technical questions for Dr Tabrizian’s medical opinion, which he provided. It is entirely understandable that Dr Tabrizian gave his report in the manner that he did.

81    The substantive question whether the applicant, by reason of her severe impairment was prevented from performing any work, without a program of support, within the next five years, was, on the face of it, not directly addressed by Dr Tabrizian. It is understandable therefore that the AAT was, in a sense, confounded by the evidence before it.

82    But as indicated, it was first necessary to address the question that is, in effect, what work is there that exists in Australia, on wages, that the applicant might possibly be able to do in the next five years, in order to answer the question whether, by reason of her severe impairment, she is prevented from performing such work.

83    There are also additional constructional issues, as the Secretary points out. The definition of “work” utilised for the purposes of s 94 is to be found in s 94(5) and is not dissimilar from the definition of “work” to be found in s 1218AAA(5). To repeat what is set out above, the s 94(5) definition of work is:

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.

84    Section 1218AAA(5) defines work as follows:

work means work:

(a)     that is 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.

85    One begins to see the constructional difficulty that arises. The s 94 definition of work incorporates the concept of work “that is for at least 15 hours per week on wages …”. It also includes the concept of that work existing in Australia, as does the s 1218AAA definition.

86    The s 1218AAA definition of work, however, does not refer to any particular number of hours per week that work on wages etc comprises. Indeed, it is silent in that regard and simply provides that work means work “that is on wages …” that exists in Australia.

87    It is in respect of that unqualified concept of work that para (d) operates and provides that the Secretary must be satisfied that, if the person were in Australia, the severe impairment would prevent them “from performing any work independently of a program of support … within the next five years”.

88    On one view, pressed by the Secretary, the concept of being prevented from performing “any work” in this context is to be contrasted with the concept of work under s 94, being work “that is for at least 15 hours per week”. Thus, it is submitted, if there is any capacity for work, however small (even less than two hours), para (d) cannot be satisfied.

89    But that contention, in my view, does not respond to the issue at hand. The question remains not whether, in some theoretical or detached setting, free from the actual labour market in Australia, the severely impaired person is prevented from performing work, but whether their impairment prevents them from performing any work that is on wages that are at or above the relevant minimum wage and that exists in Australia. That work needs to be identified before the question can be answered whether or not they are prevented, by their impairment, from performing such work.

90    If that had been done in this case, a medical practitioner, like Dr Tabrizian, could have provided a relevant response to the question of the applicant’s work capacity.

91    For that reason, in my view, the applicant is correct in asserting, in her grounds of appeal, that the AAT did not apply the correct test created by para (d).

92    I should add that, in my view, the AAT further limited its purview of the question it needed to answer by considering it was bound to apply the two hour rule stated in the E-reference guide, when it was not so bound. See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-71 (Bowen CJ and Deane J); (1979) 46 FLR 409. See also Lee and Secretary, Department of Social Services [2016] AATA 60 at [25]. The two hour rule is apt to lead a decision-maker into error when applying para (d), even though its good intentions may be noted.

93    The appeal should be allowed for these reasons.

Did the AAT fail to accord natural justice?

94    The applicant raises this additional question in a specific context. She relies on the ground that although the AAT “had evidence before them that the respondent had not made known the existence of the E-reference guide until after submissions had closed, the AAT failed to apply natural justice by taking into account such specific, relevant circumstances”.

95    In light of my ruling on the first broad question concerning the proper construction of para (d), there is no need to answer the grounds of appeal which complain that the applicant was denied natural justice in various ways.

96    Broadly speaking, however, I do not consider that the AAT denied natural justice or procedural fairness to the applicant in its decision-making process. For a decision-maker to err does not automatically bespeak a denial of procedural fairness.

97    At a number of other levels, however, the applicant’s complaint can be well understood. The question of whether or not her general practitioner, Dr Tabrizian, understood that there was a Centrelink two hour rule is an important issue. It plainly appears that he did not. If he had been expressly informed about it, no doubt his most recent reports could have addressed the criterion, if it was considered relevant by the AAT, as it was. Instead, he sought to express his opinion on future capacity for work by reference to Centrelink’s own “Sustainability of work” definition, which the AAT was not persuaded by. The Department never told him it was irrelevant, if it considered it was.

98    It should not be forgotten that the AAT has the power under s 33(1)(c) of its own Act to “inform itself … as it thinks appropriate”. Under this power it may have requested Dr Tabrizian to address a relevant issue or clarify his opinion on work capacity. After all, the AAT is an administrative tribunal seeking to make good and reliable decisions for the benefit of citizens, not a court of law bound by pleadings or the rules of evidence whose parties are left often to “die by their own hand” in adversarial litigation. Thus, faced with an ambiguity on the evidence before it, the AAT could have sought clarification from Dr Tabrizian about his expressed opinion.

99    In my view, however, limitations in decision-making arising from the AAT not taking this course did not constitute a denial of natural justice or breach of the rules of procedural fairness.

100    I would, therefore, reject the various grounds of appeal that complain of a breach of natural justice or rules of procedural fairness.

conclusion and orders

101    For the reasons given above, the following orders appear to be appropriate:

(1)    The appeal be allowed in part.

(2)    The decision of the Administrative Appeals Tribunal made 22 June 2015 be set aside.

(3)    The matter, limited to the question whether, for the purposes of s 1218AAA(1)(d) of the Social Security Act 1991 (Cth), the applicant’s severe impairment would prevent her from performing work independently of a program of support within the next five years, be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

(4)    The applicant, and the Secretary, have leave to call further evidence relevant to the matter in issue.

102    As the applicant was self-represented in this proceeding, there would not appear to be a basis for ordering costs.

103    I will hear, however, from the parties as to the formal orders to be made, including as to costs.

Associate:

Dated:    22 April 2016