FEDERAL COURT OF AUSTRALIA

Negri v Secretary, Department of Social Services [2016] FCA 879

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal, made on 26 February 2015 in proceeding 2014/1657 to affirm the decision under review, is set aside.

2.    On or before 18 August 2016:

(a)    the Applicant file and serve her submission as to the scope of the remittal of the case to the AAT; and

(b)    the Respondent file and serve any submission as to costs.

3.    On or before 25 August 2016:

(a)    the Respondent file and serve its reply to the Applicant’s submissions made pursuant to Order 2(a); and

(b)    the Applicant file and serve any reply to any submission made by the Respondent pursuant to Order 2(b).

4.    In the event that the Respondent does not file any submission pursuant to Order 2(b), the Respondent pay the Applicant’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    On 16 October 2012, the applicant, Ms Negri, claimed a Disability Support Pension (“DSP”) under the Social Security Act 1991 (Cth) (“SS Act”), on the basis that she suffered from, inter alia, fibromyalgia and depression. On 22 November 2012 a Centrelink Officer rejected that claim. Ms Negri was unsuccessful on internal review. She applied to the Social Security Appeals Tribunal and was again unsuccessful. On 2 April 2014, Ms Negri sought merits review of the SSAT’s decision in the Administrative Appeals Tribunal (“Tribunal”).

2    The Tribunal heard the application on 26 February 2015. There is no controversy that the Tribunal correctly identified the issue at [3] of its written reasons for decision, as follows:

… whether the Applicant was entitled to DSP according to the requirements of s 94(1) of the [SS Act] at the time of her claim on 16 October 2012, or within the subsequent 13 week period ending on 15 January 2013 … .

3    The Tribunal decided to affirm the SSAT’s decision, and gave ex tempore oral reasons. Ms Negri requested written reasons under s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). On 26 March 2015, Ms Negri filed a Notice of Appeal in this Court. The Tribunal delivered its written reasons later that day, which are published as Negri v Secretary, Department of Social Services [2015] AATA 179. On 4 May 2015, Ms Negri amended her Notice of Appeal by adding a fourth question of law. At the hearing of the appeal, Ms Negri sought leave to further amend her Notice of Appeal, which I granted.

4    By her Further Amended Notice of Appeal, Ms Negri raised the following questions:

1.    Whether the Tribunal misconstrued the test in Table 1.

2.    Whether the Tribunal failed to consider and determine the Applicant’s claim that her depression had been fully diagnosed as required under Table 5.

3A.    Whether the Tribunal’s decision that the Applicant’s depression was [not] fully diagnosed in 2009 was unreasonable as it was based significantly on an erroneous factual premise.

3B.    Whether the Tribunal was bound to take into account Dr Sillcock’s evidence (that Effexor was not prescribed as a sleeping tablet or as part of a pain management program) when the Tribunal made a finding that depression had not been diagnosed in 2009 based on Dr Sillcock’s evidence, and whether the Tribunal failed to do so.

4.    Whether the Tribunal made an independent assessment when it assigned 10 impairment points under Table 1.

5    As the parties did in the hearing before me, I will address the grounds in this order: 1, then 4, then 3A and 3B, then 2. But first, an interesting and significant question, which occupied a substantial proportion of the parties’ submissions, is this: what were the Tribunal’s reasons?

What were the Tribunal’s reasons?

6    Ms Negri asserted that the Tribunal’s written reasons substantially departed from its oral reasons, and that I am to have regard only to the latter. The respondent (“Secretary”) contested both propositions. The questions that are necessary to determine, then, are these: whether I am to have regard to the Tribunal’s oral reasons only, its written reasons only, or both sets of reasons; in the latter case which (if any) is to have predominance; and, if one is to have predominance, what is the role of the other.

7    At the end of oral submissions, I invited written submissions on this issue. Each party took up that invitation. I am grateful to the parties for their submissions, which were of assistance.

8    I will start with the text and statutory context of s 43 of the AAT Act.

Text and context

9    The following parts of ss 43 and 44 of the AAT Act are relevant:

43    Tribunal’s decision on review

…

Tribunal’s decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Tribunal must give reasons for its decision

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

(2A)    Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.

(2B)    Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

…

44    Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

…

When and how appeal instituted

(2A)    An appeal by a person under subsection (1) or (2) shall be instituted:

(a)    not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b)    in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

(2B)    In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds:

(a)    if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision—the written statement contains reasons that were not mentioned in the oral statement;

(b)    the text of the decision or a statement of reasons for the decision has been altered under section 43AA.

10    By s 43(1), the Tribunal’s “decision” must be one affirming, varying, or setting aside the decision under review. The reasons for decision are not themselves the “decision.” This distinction is familiar in that it is similar to the distinction between a judgment and reasons therefor (c.f. R v Ireland (1970) 126 CLR 321 at 330 (Barwick CJ)). Here, the Tribunal’s decision, made on 26 February 2015, was to affirm the decision under review, under s 43(1)(a) of the AAT Act. By s 43(2), the Tribunal was required to give reasons for that decision either orally or in writing. It gave them orally. By s 43(2A) where (as in this case) the Tribunal had not given reasons in writing for its decision, a party was entitled to request “a statement in writing of the reasons of the Tribunal for its decision”—i.e., the decision to affirm, made on 26 February—and the Tribunal was obliged to provide “such a statement.”

11    Based only on the words of s 43, I consider that the section does not prevent the Tribunal giving reasons in writing that it did not give orally, as long as they are “reasons for [the Tribunal’s] decision.” The Tribunal is doubtless permitted to elaborate upon its oral reasons and to improve their expression. Whether something passes from permissible elaboration to impermissible departure is a question to which I will return.

12    A number of contextual matters support what I have said is the plain meaning of the words, namely that when the Tribunal has been requested to provide written reasons under s 43(2A), it is not limited to the oral expressions of its reasoning earlier given. First, s 43(2B), which requires that findings be made as to material questions of fact and that there be references to evidence, applies only to written and not to oral reasons. Second, s 44(2B)(a) expressly contemplates that there might be reasons in writing “that were not mentioned in the oral statement.”

13    When enacted, s 43(2) provided that the Tribunal was obliged to give written reasons for its decisions and that they were to include findings on material questions of fact. No procedure existed, it appears, for oral reasons to be given. The Statute Law (Miscellaneous Amendments) Act (No 1) 1982 (Cth) amended subsection (2) and added subsections (2A) and (2B) so that they took what is substantially their present form. The explanatory memorandum to the Statute Law (Miscellaneous Amendments) Bill (No 1) 1982 (Cth), paraphrased the amendments without explaining why they were made. Slightly more guidance is available from the second reading speech for the Bill. The Attorney-General said as follows (Commonwealth, Parliamentary Debates, Senate, 25 March 1982, 1210 (Peter Durack, Attorney-General)):

It is often convenient for the Tribunal to be able to hand down a decision, with oral reasons for the decision, without the delay involved in the preparation of a written statement. As the Act now stands, it is doubtful whether this may be done, even where a written statement is provided later. Accordingly, clause 33 of the Bill empowers the Tribunal to give either oral or written reasons at the time it hands down a decision. If it does not then give written reasons, it must do so if requested to do so by a party to the proceedings. This provision is designed to avoid delays that now occur in the decision of the Tribunal being available in those cases where it has come to a conclusion at the end of the hearing, but must now delay the handing down of the decision until reasons for the decision have been reduced to writing. The change will be of particular benefit in many social security cases, where an early decision is desirable.

Judicial consideration

14    The purpose of s 43(2B) is to provide to the parties and to any appellate court an indication as to whether the Tribunal’s findings are erroneous at law (Peterson v Telstra Corporation Limited [1996] FCA 1508 at [39] (Olney J)). More generally, the purpose of adequate reasons is to assist parties to decide whether to appeal and to provide an aid to the appellate court (M Smith, “The Obligation of the Administrative Appeals Tribunal to Give Adequate Reasons” (1992) 3 Public Law Review 258 at 258–9 citing, inter alia, Pettitt v Dunkley [1971] 1 NSWLR 376). Or, as Drummond J implied in Seventy-Ninth Vibration Pty Ltd v Chief Executive Officer of Customs (1998) 50 ALD 865 at 870, the rationale for the requirement to give reasons is the enablement of the public and the parties to understand how the Tribunal reached its decision. Another rationale is that “the discipline of the necessity to render reasons helps to keep any tribunal on the path of sound reasoning to sound conclusions” (Martin v Australian Postal Corporation [1999] FCA 655 at [19] (Burchett J)).

15    In Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65, Pincus J (with whom Spender and French JJ agreed), said that “if very informal reasons are delivered orally, and a request is then made under s 43(2A), the Tribunal will be unlikely to comply with subs (2B) unless more elaborate, written reasons are then produced.” The result of the provision of such written reasons, as Pincus J said, was this:

… these reasons, although described as having been given “orally at the hearing”, later became reasons in writing, when they were reduced to writing and delivered to the parties, certified (as they were) as a “true and correct copy of the reasons for decision herein”.

16    In Ma v Commissioner of Taxation (1992) 37 FCR 225, the Tribunal had fundamentally misunderstood the taxpayer’s case when it decided to affirm the decision under review. When the member constituting the Tribunal learned that the taxpayer intended to appeal, he wrote, unprompted, to the Australian Government Solicitor providing “a slightly amended version of his original oral reasons, together with what [he] called an ‘addendum’ consisting of many pages of additional reasons, all under the date 8 April 1991, which was also the date of the letter.” The addendum identified that the member “propose[d] to expand [his] findings of fact and reasons in law to save the parties the trouble and expense involved in coming back to this Tribunal should the Federal Court conclude that [his] oral reasons [were] wrong … .” The member said that he “was considerably more polite to the taxpayer in [his] oral decision than was really justified by the manner [in which] the whole hearing was conducted.” He went on to make uncharitable observations about the taxpayer and his counsel, through the medium of Wagnerian and Shakespearean simile. He remarked on the taxpayer’s credit where in oral reasons he had expressly declined to make credit findings.

17    Burchett J thought that the better view was maybe that the member “intended nothing other than to assist the Court in deciding whether to refer the matter back to him, if he should be found to have erred” (at 228). But in any event his Honour said as follows at 231:

[Subsection 43(2)] lays down a clear alternative—although the decision is in writing, the reasons may be given either orally or in writing. Once one of those alternatives has been adopted, the decision in writing has been clothed with reasons and is complete. … There is no suggestion in this that the Tribunal can later strip the decision of its original reasons to replace them with new ones.

…

In my opinion, it was not open to [the member] to add entirely fresh reasons, more than a month later, to the reasons he had given orally, if that is really what he contemplated. Of course, he was entitled, had he chosen to do so, to edit the transcript of his oral reasons so that it might reflect more accurately the intention of the Tribunal at the time they were delivered, just as a judge commonly makes appropriate corrections to the record of oral reasons for judgment.

18    In O’Sullivan v Repatriation Commission (2003) 128 FCR 590, Sackville J said, at [34] and after quoting Osborne, that “the AAT was not bound to leave its reasons in an unedited form. Had the AAT edited the reasons before publishing them in written form, the reasons may have stated the issues and reasoning process a little more fully and clearly than they do.”

19    In Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202, the Court (Owen, Wheeler and Newnes JJA) said as follows at [56]–[57] and [59] (emphasis added):

[56]    It is, of course, quite proper for the Tribunal to revise ex tempore reasons after the order to which they relate has been made authenticated, so long as the substance of the reasons is not altered. Such revisions may be made to correct mistakes of transcription, errors of grammar or infelicities of style, or where by reason of an error the reasons plainly misstate what the decision-maker meant to say, and also to clarify the reasons as expressed orally: Lam v Beesley (1992) 7 WAR 88, 93–94; Bar-Mordecai v Rotman [2000] NSWCA 123 [194]–[195]. See also Bromley v Bromley [1965] P 111, 116. Where in a particular case the line is to be drawn between permissible alterations and changes of substance may not always be clear-cut, however.

[57]    In our opinion, in this case the change between the oral reasons and the later written reasons is one of substance and goes beyond what is permissible in the editing of reasons. …

…

[59]    As the order of the Tribunal was made and authenticated on the basis of the oral reasons, in our view it is the oral reasons to which regard must be had on the issue of penalty.

20    However, the enactment creating the Western Australian State Administrative Tribunal (“SAT”) materially differs from the AAT Act. By s 74 of the State Administrative Tribunal Act 2004 (WA) (“SAT Act”), the SAT is only required to give decisions in writing in certain circumstances (including upon request). If it reserves its decision it is to give a decision and reasons for the decision within a certain time (s 76). Reasons must be given for a final decision (s 77(1)), including findings on material questions of fact, referring to evidence (s 77(2)). If the SAT makes a decision, whether or not final, without having reserved its decision and does not give written reasons, a party may request written reasons and the SAT is then obliged to give them (s 78), though a written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally suffices for a provision that requires a decision or reasons in writing (s 79). Most importantly, what flows from the foregoing is that, whereas the statutory obligation to make findings on material questions of fact and refer to evidence applies to the Tribunal only in connection with written reasons, it applies to the SAT in connection with both oral and written reasons for final decisions.

21    The approach that is manifest in the AAT Act contemplates that parties will often be satisfied, or in any event disinclined to consider appeal, on the basis of the decision and unelaborate oral reasons. In such a case, requiring the Tribunal to give detailed reasons (including references to evidence) does not further the purpose of s 43(2B), being to assist the parties in deciding whether to appeal and assisting the appellate court. If a party is dissatisfied with the decision or the oral reasons and wishes to examine the possibility of appeal then that party may exercise its right to require more-detailed reasons. Conversely, the SAT Act requires more-detailed reasons in the first instance, so there is less scope for thinking that further elaboration in writing was intended. Moreover, s 105 of the SAT Act, being the provision equivalent to s 44 of the AAT Act, contains no analogue to s 44(2B)(a).

22    In my opinion, then, Vogt’s holding that no substantive changes to reasons are permitted does not directly translate to the context of the AAT Act. It seems to me that the inclusion in writing of a reason that was not mentioned in an oral statement may well be substantive, but is clearly contemplated by s 44(2B)(a). Similarly, findings on material questions of fact (if not previously made) and references to evidence are likely to be substantive, and yet those are not expressly required by the AAT Act until the provision of written reasons.

23    Ma, similarly, is distinguishable including because no request for written reasons was there made under s 43(2A) of the AAT Act, and because the addendum provided by the member did not purport to be issued under s 43(2B) nor to be a record of the Tribunal’s reasons for decision. I view O’Sullivan and Osborne as being consistent with my view that the Tribunal is permitted to elaborate upon its oral reasons. I think that what Burchett J said in Ma is also consistent with that view. The difficulty there adverted to in relation to the introduction of “fresh” reasoning is a matter to which I will now return.

24    Having considered in her own submissions the text of s 43 and the judgments in O’Sullivan, Osborne, Vogt, and Ma, Ms Negri submitted as follows:

The Applicant submits that the permissible editing and elaboration of reasons as outlined above is contemplated by s 44(2B). Section 44(2B) would apply where, for example:

a.    The oral reasons might be brief and the written reasons include a fuller explanation of the Tribunal’s findings and reasoning.

b.    The oral reasons might fail to include a matter that was on the Tribunal’s mind at the time of the decision due to oversight, and the written reasons remedy this.

c.    The oral reasons may be poorly expressed and the written reasons provide clarification of the Tribunal’s findings or reasoning.

25    I accept that submission. It is not inconsistent with the view I have reached upon consideration of the text of the Act and the cases set out above. However, Ms Negri distinguished the foregoing permissible alterations from the addition of “completely new reasons.” She submitted that to permit “completely new reasons” would be inconsistent with the rationale for the requirement to give reasons, with the ability of the parties to institute an appeal on the basis of oral reasons, and with the Tribunal being functus officio upon the written decision being made.

26    The phrase “completely new reasons” has some ambiguity. When speaking of decision-making by courts or tribunals the words “reasons” and “reasoning” are sometimes used interchangeably. But there is, in my opinion, a difference in their meanings, which is significant in the current context as I will come to explain. If Ms Negri means that new or substantially-altered reasoning is inconsistent with what is required by s 43(2A), I would agree. The scope of permissible amendment, thus understood, does not encounter any of the three difficulties identified by Ms Negri, set out at the end of the previous paragraph.

27    A decision is a sum of conclusions. The ultimate conclusion will usually be based on intermediate conclusions. Each conclusion is arrived at by a process of reasoning, that is, a progression along a path from premise to conclusion through a process of induction or deduction. The reasons given by a decision-maker should expose or explain the decision-maker’s reasoning. That is the function of reasons for decision. In requiring the Tribunal to give reasons for its decision, s 43(2) of the AAT Act requires an exposition of the Tribunal’s reasoning for its decision. Section 43(2A) requires that, upon request, the reasoning of the Tribunal be exposed or explained in writing. As I have said, the reasons or explanation given in writing may be different to that given orally. Different reasons, as between those provided orally and those later provided in writing, are not necessarily demonstrative of different reasoning. As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

28    Whether a statement of reasons passes from permissible elaboration to impermissible departure will sometimes be a question of degree. It is noteworthy that the Tribunal’s form of written reasons includes a certification that they are the “reasons for the decision herein of [the member]”. It ought to be presumed, consistently with that certification, that the Tribunal’s reasons were what it said, in writing, that they were. But such a presumption could be displaced if the Tribunal’s written reasons departed from its oral reasons in such a way as to reveal new or substantially-altered reasoning. At base, the question is whether the court is satisfied that, contrary to the Tribunal’s certification of its written reasons, something contained therein is not in fact a reason for its decision. There should be a high level of satisfaction before the court would so conclude. That question is to be answered only by reference to the record, and no more.

29    The view that I have reached is consistent with the practical constraints of a busy tribunal, not wholly constituted by lawyers. It accommodates the desirable goal of the Tribunal giving unelaborate ex tempore oral reasons in appropriate matters. It furthers the objective of fair, just, economical, informal and quick review (s 2A AAT Act, as it was when the Tribunal made its decision), and admits of proportionality of review mechanism to the complexity of the matter (s 2A(c) AAT Act, as the section has more recently been amended).

30    Based on that approach, the answers to the questions earlier posed are as follows:

(1)    Am I to have regard to the Tribunal’s oral reasons only, its written reasons only, or both sets of reasons? The answer is, both.

(2)    In the latter case which (if any) is to have predominance? The answer is that I will presume, consistently with the certification appearing after the Tribunal’s written reasons, that they are the reasons for the subject decision. If I am satisfied, however, that a written reason is not a reason for decision—if, for example, it is clearly inconsistent with the reasoning of the Tribunal (as made apparent by the oral reasons) sufficiently to reveal new or substantially-altered reasoning—I will ignore the written reason and rely upon the oral reason.

(3)    If one is to have predominance what is the role of the other? The oral reasons will be relevant in assessing any submission that the written reasons are not, in fact, the reasons for decision of the Tribunal. Where a written reason is found not to have been a “reason for decision” of the Tribunal, any corresponding oral reason assumes primary significance. It seems to me that oral reasons may also be used, with caution, to clarify an ambiguity in the written reasons.

Ground 1

31    It is necessary to set out s 94 of the SS Act in some length:

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

…

…

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 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).

(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.

…

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.

…

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.

…

32    “Impairment Tables” is defined in s 23 of the SS Act to mean, “the tables determined by an instrument under subsection 26(1)”. Tables of that kind were determined by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”). Therein, 15 tables are set out relating to different kinds of impairment. Relevantly, Table 1 deals with “Functions requiring Physical Exertion and Stamina,” and Table 5 deals with “Mental Health Function.” Part 1 of the Determination sets out preliminary matters including definitions and instructions as to how the tables are to be applied. For context, however, I will first set out Table 1:

Table 1 - Functions requiring Physical Exertion and Stamina

33    I return to the instructions and definitions in Part 1:

3    Interpretation

…

descriptor means the information set out under the column headed “Descriptors” in each Table, describing the level of functional impact resulting from a permanent condition.

...

impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.

impairment rating is the number in the column in a Table headed “Points” corresponding to a descriptor.

…

Tables means the tables relating to the assessment of work-related impairment for disability support pension which are set out in Part 3 of this Determination.

…

5    Purpose and design of the Tables

(1)    In applying the Tables, regard must be had to the principles set out in subsections (2) and (3).

Purpose and general design principles

(2)    The Tables:

(a)    unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

(b)    are function based rather than diagnosis based; and

(c)    describe functional activities, abilities, symptoms and limitations; and

(d)    are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

Note:    impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.

Scaling system and descriptors

(3)    In the Tables:

(a)    subject to section 11, where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment; and

Note:    For impairment rating and descriptor see section 3.

(b)    the first line of each descriptor, which is formatted in italics, describes the level of impact of the impairment to be identified by reference to the particular examples of functional activities, abilities, symptoms and limitations contained in the numbered paragraphs below it, if any; and

(c)    the introduction to each Table sets out further rules with which to apply the Tables and rate an impairment.

6    Applying the Tables

Assessing functional capacity

(1)    The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

Applying the Tables

(2)    The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

Note:    For additional information that must be taken into account in applying the Tables see section 7.

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.

…

10    Selecting the applicable Table and assessing impairments

Selection steps

(1)    Table selection is to be made by applying the following steps:

(a)    identify the loss of function; then

(b)    refer to the Table related to the function affected; then

(c)    identify the correct impairment rating.

(2)    The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.

…

11    Assigning an impairment rating

(1)    In assigning an impairment rating:

(a)    an impairment rating can only be assigned in accordance with the rating points in each Table; and

(b)    a rating cannot be assigned between consecutive impairment ratings; and

Example: A rating of 15 cannot be assigned between 10 and 20.

(c)    if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and

(d)    a rating cannot be assigned in excess of the maximum rating specified in each Table.

(2)    In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.

Descriptors involving performing activities

(3)    When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.

Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.

Episodic and fluctuating conditions

(4)    When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

…

34    By her first ground, Ms Negri asserted that, in applying the Tables, the Tribunal applied an incorrect test or asked itself the wrong question “by assigning an impairment rating without reference to the particular examples of functional activities, abilities and limitations identified in the descriptors under the Tables”. In her submissions in support of this ground, Ms Negri went much further. She contended that it was necessary for the Tribunal to refer specifically to, and make findings concerning whether, for example, Ms Negri was unable to walk or mobilise in a wheelchair due to her symptoms.

35    To illustrate the import of Ms Negri’s submissions, I will refer to the 10-point level for Table 1. Ms Negri submitted that the Tribunal was required be satisfied of the following things in order to hold that that level was applicable: that Ms Negri experienced frequent symptoms (of the kind identified) when performing day-to-day activities; that because of such symptoms Ms Negri was unable to walk or mobilise in a wheelchair far away from home, etc., or that because of the symptoms Ms Negri had difficulty performing day-to-day household activities (of the kind identified); that Ms Negri was able to use public transport and walk or mobilise in a wheelchair around a shopping centre or supermarket; and, that Ms Negri was able to perform work-related tasks of a clerical, sedentary or stationary nature. Unless the Tribunal made findings in relation all of those matters, said Ms Negri, it incorrectly applied the Table.

36    Ms Negri allowed that it was open to exclude the operation of an impairment level without necessarily referring to all of its descriptors. For example, if Ms Negri was unable to use public transport (per item (1)(b)(i) of the 10-point level), the 10-point level could not apply and it would be unnecessary to consider whether (for example) Ms Negri could perform work-related tasks of a clerical, sedentary or stationary nature. Ms Negri submitted that, where none of the levels on the Table was particularly satisfactory, “the tribunal [was] then required to compare the specific descriptors or the specific activities in [the] table – in points 10 and then points 20.” In support of that submission, Ms Negri relied upon item 11(2).

37    The Secretary relied upon item 11(4) of the Determination, dealing with “[e]pisodic and fluctuating conditions”. It was not in contest that Ms Negri’s symptoms were fluctuating, and while it does not appear expressly to have been agreed that item 11(4) was therefore applicable to Ms Negri, each party made submissions as to its effect. The Secretary observed that that sub-item referred to “assessing impairments” rather than to “descriptors,” and submitted that the focus of the sub-item was on the “overall functional impact of those impairments.” In that light, particular descriptors under particular point entries of the Table were “irrelevant except as background information to the exercise of determining whether the impairment is moderate or whether the impairment is severe, which [are] … categories.” It was submitted that the Tables should be interpreted flexibly, because often no particular point entries will exactly apply to a claimant. It was further submitted that the assessment always has an element of flexibility, but it was more flexible where sub-item 11(4) applied and that, in such a case, the assessment was “not as tied to [the] descriptors.”

38    After some refining during oral argument, the Secretary put the submission that the Tribunal was always entitled, but never obliged, to look at the individual examples in the point levels in the Table. But, when sub-item 11(4) applied:

… then the tribunal is much more at large, and it’s at large so that if none of these factors applied after the word “community” [in the 10-point level], then it would still be capable of giving someone … [a] 10 impairment points rating … .

Consideration

39    An “impairment” is a loss of functional capacity (item 3, Determination). The purpose and design of the Tables is set out in item 5(2). The Tables are function-based (item 5(2)(b)). The Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions (item 5(2)(d)). Subject to item 11, where a descriptor applies to an impairment, an impairment rating can be assigned to that impairment (item 5(3)(a)). Item 6 deals with “Applying the Tables”. Item 6(1) is headed “Assessing functional capacity” and states that impairment must be assessed on the basis of what the person “can, or could do …”.

40    The descriptor is the entirety of what appears in the box adjacent to an impairment rating, and describes a level of functional impact (item 3). The first line thereof (formatted in italics) describes the level of impact “to be identified by reference to the particular examples of functional activities, abilities” etc. (item 5(3)(b)). The first step in selecting the appropriate Table is identifying the loss of function (item 10(1)). Deciding the level of functional impact requires comparison of the relative descriptors for each impairment rating in the Table (item 11(2)), but, where an impairment is considered to fall between two impairment ratings, an impairment rating cannot be applied to a person “unless all the descriptors for that level of impairment are satisfied” (item 11(1)(c)).

41    All of the foregoing, and especially the matters in the immediately-previous paragraph, make it quite clear that the approach urged upon me by the Secretary is at least partially incorrect. I reject the submission that the Tribunal is only “entitled” and not “obliged” to look at individual descriptors. The purpose of application of the Tables is to assess the functional impact of an impairment. Functional impact is assessed “by reference to the particular examples” appearing under the first line of a descriptor. Further, comparison between Table levels and descriptors is required and application of a particular level where two are arguably applicable requires that “all … descriptors for that level … [be] satisfied.” The Determination clearly contemplates that the assessor must look to the descriptors in assessing which level of functional impact results from an impairment.

42    However, Ms Negri’s submission, that the Tribunal is required to make a finding in relation to each of the descriptors listed in relation to a particular level, also misunderstands the nature of the assessment required.

43    It is necessary here to reiterate the terms of item 5(3)(b). What that paragraph makes clear is that the impairment level is to be “identified by reference to the particular examples of functional activities, abilities, symptoms and limitations …”. Ms Negri’s submission treats each of the functional activities, abilities, symptoms and limitations as though they were conditions of eligibility for the particular impairment level. They are not that. The examples are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.

44    The proper course is to consider the “particular examples” (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact—no, mild, moderate, severe, or extreme—applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all of the descriptors are applicable. In such a case, that impairment rating applies.

45    I note, however, that where the impairment falls between two ratings it may be necessary to make express findings in relation to particular descriptors. That is because the tie-breaking mechanism in item 11(1)(c) precludes application of a higher rating unless all of its descriptors are satisfied. If, on consideration of the examples, it were clear that a claimant experienced something between moderate and severe functional impact, but that person did not have difficulty sustaining work-related tasks of a clerical, sedentary, or stationary nature for a continuous shift of three hours, the 20-point level could not apply and the 10-point level would necessarily apply. In practical terms, a finding that the person did not meet one or more of the descriptors in the 20-point level may be necessary in order for a court to be satisfied that the correct procedure had been followed.

46    Finally, clause 11(4) does not have the far-reaching effect for which the Secretary contended. It provides only that, where a condition is episodic or fluctuating, an informal process of weighting, in effect, is to be carried out to take into account the presence of symptoms or impairments on some days, and their absence on other days, or of differing levels of impact over time. If, for example, when symptoms are experienced they fall within the 20-point impairment rating, but symptoms are only experienced a few days per month, the question is whether, overall, it remains correct to say that there is a “severe functional impact,” or whether instead it is more accurate to say that there is a “moderate functional impact” or some other level of impact. This is a question of balance and judgment, and of fact and degree. It requires reference to the “practical examples” given in the Tables, but also requires consideration of the “severity, duration and frequency of the episodes or fluctuations.” It adds to, rather than subtracts from, the matters that the Tribunal must take into account.

The Tribunal’s reasoning

47    In the terms of the distinction between “reasons” and “reasoning” that I considered earlier, Ms Negri submitted that the Tribunal’s written reasons disclosed reasoning that departed substantially from the reasoning revealed in its oral reasons. She submitted, therefore, that I should have regard to the Tribunal’s oral reasons rather than its written reasons in assessing whether ground 1 is made good.

48    Ms Negri relies upon purported differences as between the oral and written reasons in the Tribunal’s application of Table 1 to Ms Negri’s fibromyalgia. Orally, the Tribunal said as follows (emphasis added, paragraph numbers added for ease of reference):

[1]    So the first point with respect to the legislation is whether there's, let's say the physical/mental issue. I think the Secretary even concedes that there is. You've got fibromyalgia. I notice over the period of time there has been a bit of change in how particularly the applicant wants to contemplate how things are.

[2]    For example, I'll make the point I heard nothing specifically about a sore back, and therefore take it that that was not relevant, particularly sort of the lumbar spine and maybe the cervical spine. Now, I'm impressed and I want to state that I think Dr Sillcock is an experienced practitioner in her craft and I note that she assessed the applicant on 5 May 2014. She then provided a report which is dated 5 September 2014. In her oral evidence if we all had a dollar for the times she said, “Gee, it's hard, isn't it” maybe we could all retire. That's sort of a rhetorical comment.

[3]    Dr Sillcock, with the benefit of hindsight appears to indicate that she got it wrong. That was her term. And thinks that her call—again, a colloquial use of the word—of 10 points, was erroneous and it should have been 20 at the time. She conceded maybe it should be 15. It's very difficult because we're dealing with hindsight and it's sort of not six months; it's moving beyond 12 and 24 months. The applicant in her oral evidence, very blurred, a lot of memory issues, and whether or not that is related to medication or not, it's impossible to state but certainly the transcript would show that on probably a score, up to a couple of scores of occasions she can't remember. I think she is very honest and that's terrific.

[4]    It's awkward that fibromyalgia is a diagnosis of exclusion. So there's no specific test and, you know, you eliminate everything else and that's what you're left with. Certainly when we look at table 1, you both agree that table 1 is relevant to where we are and both of the submissions were along the lines of sort of cherry-picking stuff that’s written down in the table. I’m interested in the overall functional assessment, and like everybody said today, it's hard. I specifically look at, you know, say, where there's the 10 points, the moderate functional impact:

Experiences frequent symptoms.

[5]    So then we can go, you know, the shorter Oxford definition of frequent, as opposed to the 20 points table, where it's:

Usually experiences symptoms.

[6]    I take “usual” to be, say, 90 per cent of the time it's always there, and this is extremely difficult in a disease process or illness process where it fluctuates. Usual versus frequent. So we've heard two to three days, that's less than 50 per cent of the week. We can do some of these things, and we can’t do some of the other things. I know the relevant questioning was directed at each of the sub-points that are listed at the various clauses. It’s very hard but to me it is the overall functioning. It's difficult but we're in February 2015 looking back to a three-month period late 2012 to early 2013.

[7]    I sensed that a lot of the commentary or the oral evidence, I should say, from Dr Sillcock related to things today. I sensed that a lot of the oral evidence of the applicant indeed related to things today, and I think that's a course of normal human nature. You remember what it's like today and yesterday and perhaps the week before. It's one of those fluctuating generally deteriorating disease trajectories. So that brings us to what are we going to with respect—well, it brings me, the tribunal, to what are we going to do with respect to the relevant period.

[8]    It's really on the balance, given that it is a fluctuating and I’ll accept generally deteriorating time course, things are getting worse rather than getting better. As a consequence, this tribunal determines that the relevant allocation of points is 10 points during the relevant period.

49    The Tribunal’s written reasons were as follows, at [37]–[41] of its reasons for decision (italicisation in original, bold emphasis added):

[37]    The Tribunal is satisfied that the Applicant’s fibromyalgia is permanent as required by the Act, so it does attract impairment points under the Impairment Tables. Fibromyalgia causes periods of severe incapacity, as well as periods of manageable symptoms associated with chronic pain and fatigue. Such times are unpredictable. The Tribunal considers that the Applicant’s and Dr Sillcock’s testimony relate to a time close to the present, rather than to the relevant period. Despite many attempts to direct her attention to the relevant period, the Applicant was frequently unable to remember her experiences within the relevant period with any degree of precision, tending to assume everything was as it is today; or to refer to her recent experience of pain. There is no test result available to provide a measure of clinical events related to fibromyalgia

[38]    Dr Sillcock relied on what the Applicant told her, and the Applicant has a poor memory of specific events in the relevant period. Dr Sillcock is, at best, guessing what the Applicant’s circumstances may have been like 18 months before she met the Applicant. Her report was dated four months after the examination she undertook, and she formed her views through a prism of giving the Applicant the benefit of any doubt. Dr Sillcock noted the difficulty of assigning an impairment rating in such circumstances. She belatedly altered her opinion to a more favourable one for the Applicant, awarding an increase from 10 points to 20 points under Impairment Table 1 because she thought the Applicant was somewhere in between the two settings in the Table.

[39]    The Tribunal finds that Dr Sillcock did not read the contemporaneous JCA report of 23 October 2012 by a registered psychologist and an accredited exercise physiologist until she was in the witness box. The Tribunal finds that Dr Sillcock’s examination assessment is too remote from the relevant period to be useful and that it is too speculative to hold the weight that the Applicant favours. The Tribunal prefers the contemporaneous assessment of the JCA, which incorporates available medical reports and the contemporaneous history from the Applicant to Dr Sillcock’s retrospective favourable guesses written almost two years after the date of claim and open to alteration on ungrounded intuition informed by the unreliable memory of the Applicant. That JCA assigned the condition 10 points under Impairment Table 1.

[40]    The Tribunal notes that another JCA undertaken by another registered psychologist and accredited exercise physiologist on 31 January 2013, just after the relevant period but well before Dr Sillcock’s examination, also informed by relevant medical reports and the Applicant’s history, allocated only 5 points for fibromyalgia. The Tribunal accepts that this is consistent with the fluctuating history of fibromyalgia, and is consistent with Dr Lewis’s observation of improvement in his letter of 7 March 2013.

[41]    On the basis of the best information available to it, the Tribunal assigns the Applicant 10 impairment points under Impairment Table 1 for the fibromyalgia. The Tribunal notes that even Dr Sillcock would be obliged to do this based on her own evidence and consistent with the requirement of the Act to assign the lower of two ratings pursuant to s 11(1)(c) of the Impairment Tables.

50    I think it is readily apparent that the written reasons are expressed very differently to those given orally. The Tribunal has at least engaged in wholesale redrafting. But, that does not necessitate the conclusion that the reasons given after that process of redrafting were not an exposition of the reasoning for the Tribunal’s decision when made on 26 February 2015.

51    The written reasons contain a background to the decision under review, including Ms Negri’s medical history. They contain discussion of the witness statements and the oral evidence of Dr Sillcock and Ms Negri. There is an outline of the parties’ submissions and quotation of the relevant sections of the Act and subordinate legislation. The oral reasons contain none of those things. The oral reasons are three pages long as against sixteen pages of written reasons. On the other hand, all of the material just mentioned that does not appear in the oral reasons, but does in the written reasons, is uncontroversial. For example, the addition of legislative extracts for the convenience of the reader is clearly permissible, even though it is entirely new.

52    The material that is controversial is in [34]–[48] of the written reasons. There is quite a lot of overlap as between those paragraphs and the oral reasons, albeit that the written reasons are expressed more formally. Paragraph [38] and the controversial aspects of [37] of the written reasons correspond substantially with [7], [3], and in part [4], of the oral reasons; [41], apart from the italicised portion, is effectively [8] of the oral reasons. In both oral and written reasons the Tribunal determined not to rely upon the evidence of Dr Sillcock and of Ms Negri. That was because that evidence focussed on Ms Negri’s disabilities as at the present day rather than the period relevant to the Tribunal’s task. Further, Ms Negri’s evidence was not relied upon because she did not have a clear recollection of that time period, and Dr Sillcock’s was not relied upon because she was in turn reliant upon Ms Negri’s unclear recollection and had not made a contemporaneous assessment.

53    There are, however, two important differences as between the oral and written reasons. First, in the oral reasons the Tribunal referred to the dictionary definitions of “frequent” and “usual”, and opined that “usual” meant 90 per cent of the time or more. The reasons continued to the effect that, as Ms Negri experienced symptoms less than 50 per cent of the time, she did not “usually” experience them. Those reasons did not appear in the written reasons. Instead (and this is the second difference), the Tribunal referred to Job Capacity Assessment reports (“JCA reports”), prepared by people whom I shall call Job Capacity Assessors (“JCAs”), and reasoned that they were more reliable because they were prepared contemporaneously. There is no express reference to the JCA reports in the oral reasons on this question. Another difference is that the written reasons refer to the legal consequence of Dr Sillcock’s opinion being that Ms Negri’s disabilities fell between two impairment point rankings, but this was said in passing and I do not think that the Tribunal really relied upon it. I will not consider that further.

54    Analysis of whether reliance on the JCA reports in the written reasons constitutes departure from the reasoning revealed orally requires that those reports be set out. It did not seem to be controversial that, in its written reasons, the Tribunal adopted conclusions expressed in a JCA report dated 1 November 2012 (“November report”). As is discussed below and in relation to question 4, the Tribunal’s reasons disclose, when fairly read, that it adopted the JCA’s conclusions for the same reasons as were given in the JCA report. The Tribunal also referred to a report dated 1 February 2013 (“February report”). (It is worth noting, for avoidance of confusion, that the Tribunal gives the dates of the November and February reports as 23 October 2012 and 31 January 2013 respectively. Those were the dates of the assessments preceding the reports, not of the reports themselves).

55    The following passages in the November report, on pp 1–3, are relevant (emphasis added, errors in original):

Condition:        Fibromyalgia            Type: Permanent

...

Symptoms: Pain mainly felt around the lower back, left leg and pelvis impacting lower back, mobility and power. Pain appears to be exacerbated by the colder weather as self reported. Spasms of pain and general lethargy. Needs to alternate between sitting and standing to minimise back pains.

…

Impairment

Condition:        Fibromyalgia

Impairment Table:    1 – Functions requiring        Recommended Rating: 10             Physical Exertion and Stam

Functional Impact:    There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)    experiences frequent symptoms (e.g. fatigue) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)    is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

and

(b)    is able to:

(i)    use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)    perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).

…

Supporting reasons summary:

The functional impacts arising from the clients condition are encompassed by 2 major limitations. This includes the lower back and generalised lethargy. For this reason, 2 tables (Spinal function and Functions requiring Physical Exertion and Stamina) were used to accurately assess the clients functional impacts. This was confirmed by the contributing assessor.

The Medical Report indicates severe fatigue, lethargy and ability to sit and stand as functional limitations. This was confirmed by the client during the assessment. The client spent around half of the time standing for the duration of the 40 minute interview. She did report that today “was a bad day”, regarding how she was feeling. The client reported that as part of her routine to maintain her health she walks 20 minutes twice a day. She is able to go to the supermarket for light purchases and if she mops the floor at home that is all she would be able to do for the entire day. Equally, the client works from time to time in hospitality, averaging maybe once a month and prepares herself physically for these shifts ahead of time. As the clients functional limitations can vary day to day, taking into consideration what the client is able to do on an “average” day, the descriptors at 10 points on both tables is the most accurate rating of the functional limitations.

56    The February report contained the following relevant passages, on pp 1–2 and 5 (emphasis added):

Condition:        Fibromyalgia            Type: Permanent

…

Symptoms: MR notes severe fatigue, reduced endurance with inability to sit/stand > 15 mins, poor concentration sec. to pain and lethargy, multi joint pain, muscular spasms recurrently, low mood.

The client reported fluctuating in symptoms and severity of symptoms. The client stated that usually she has at least 2–3 ‘bad days’ where she is unable to do anything due to reduced endurance and back pain, even her everyday stretches. The client reported that she manages self care tasks on her own, and on her ‘good days’ she is able to do her stretches, walk 30 mins twice a day, and bend forward to the floor to pick up light items. The client stated that she cooks dinner sometimes, does the washing sometimes, and attends to light general [tidying]. The client stated that she general[ly] is able to drive for approx. 20–30 mins, however could experience more back pain afterward.

…

Condition:        Fibromyalgia

Impairment Table:    1 – Functions requiring        Recommended Rating: 5             Physical Exertion and Stam

Functional Impact:    There is a mild functional impact on activities requiring physical exertion or stamina. Based on information provided, the client’s functional impacts do not meet 10 impairment points.

Supporting Reasons:    MR notes severe fatigue, reduced endurance with inability to sit/stand > 15 mins, poor concentration sec. to pain and lethargy, multi joint pain, muscular spasms recurrently, low mood. The client reported fluctuating in symptoms and severity of symptoms. The client stated that usually she has at least 2–3 ‘bad days’ where she is unable to do anything due to reduced endurance and back pain, even her everyday stretches. The client reported that she manages self care tasks on her own, and on her ‘good days’ she is able to do her stretches, walk 30 mins twice a day, and bend forward to the floor to pick up light items. The client stated that she cooks dinner sometimes, does the washing sometimes, and attends to light general [tidying]. The client stated that she general[ly] is able to drive for approx. 20–30 mins, however, could experience more back pain afterward.

...

Supporting reasons summary:

The client is suffering from FDTS conditions. These conditions have impacts on the client’s ability to function. It is assessed that the client has an impairment rating of 5 under table 1 and 5 under table 4. The client reported difficulty with functioning on her ‘bad days’ due to a combination of impacts of her decreased endurance and back pain.

57    I have emphasised the last sentence of the November report. The essence of the assessor’s reasoning there expressed is that, in light of the fluctuation in Ms Negri’s symptoms, it is appropriate to assess an “average day”. Another way of expressing that, as the Tribunal did at [4] and [6] of its oral reasons in particular, is to say that one is concerned with “overall functioning”. If “moderate functional impact on activities requiring physical exertion or stamina” describes Ms Negri’s “average day” or “overall functioning” in circumstances where Ms Negri does not experience symptoms every day, it must follow that on days where Ms Negri does experience symptoms the functional impact is greater: certainly still “moderate functional impact”, and possibly “severe functional impact”.

58    The essence of the reasoning in the November report, then, is that Ms Negri experiences symptoms that, when experienced, had at least a moderate and possibly a severe functional impact. The symptoms, as I explain below, were those identified in the heading “Functional Impact” and “Supporting reasons summary”. However, those symptoms were not experienced every day, which is to say that her symptoms were fluctuating. Accordingly, it was appropriate to assess the “average day”. Considering the average day, it was said, it was appropriate to assign 10 points under Table 1, which is to say that on average Ms Negri suffered from a moderate functional impact on activities requiring physical exertion or stamina.

59    The reasoning of the Tribunal as revealed by its oral reasons was, in my view, broadly the same. Reference was made to the symptoms said to be suffered by Ms Negri (albeit in extremely broad terms, and without making specific findings): “[w]e can do some of these things”—that is, the examples listed in the Table, which had been the subject of evidence and submission—“and we can’t do some of the other things”. However, those symptoms were not experienced every day: “[s]o we’ve heard two to three days, that’s less than 50 per cent of the week”. The “two to three days” evidence may have had its genesis in the February report, in which appears these sentences: “[t]he client reported fluctuating in symptoms and severity of symptoms. The client stated that usually she has at least 2-3 ‘bad days’ where she is unable to do anything due to reduced endurance and back pain, even her everyday stretches.” That passage was referred to in Dr Sillcock’s cross-examination and, somewhat more obliquely, in the examination in chief of Ms Negri.

60    The frequency with which symptoms were experienced was relevant because Ms Negri’s symptoms were fluctuating and therefore the Tribunal considered it necessary to make an “overall functional assessment”. “On balance”—that is, on average—based on Ms Negri’s symptoms, their severity, and their frequency, the Tribunal considered that Ms Negri suffered from a moderate functional impact on activities requiring physical exertion or stamina. Perhaps had the symptoms been more frequent—say, “90 per cent of the time”—the Tribunal would have considered that, on balance, the level of functional impact was severe, instead.

61    Viewed in that way, the overlap between the reasoning disclosed in the November report and the reasoning disclosed by the Tribunal’s oral reasons is apparent. When it is seen that the reasoning of the Tribunal proceeded along similar lines to the reasoning in the November report, as set out in the previous three paragraphs, the second putative difference to which I referred at [53] above falls away. And, when it is understood that the references to, and definitions of, the words “frequent” and “usual” were part of the Tribunal’s process of assessing overall functioning (or the “on average” or “on balance” functional impairment) of Ms Negri, in light of the fluctuating nature of her symptoms, then again it is apparent that the approach is not dissimilar to that adopted in the November report and the first putative difference to which I referred at [53] above falls away.

62    Before concluding on this issue, I must say that the foregoing view is one that I take after anxious consideration, and with substantial reservation. The correlation between what a Tribunal says orally and what it later says in writing (albeit with elaboration) should generally be quite clear. Here, the correlation was not clear. On a first reading of the written reasons, one is left with the impression that the Tribunal viewed the drawing of written reasons as an opportunity to start again. And, the absence of any express reference to the JCA reports in the oral reasons sits poorly with the decisive weight of the November report in the written reasons. The Tribunal in this case flirted dangerously with impermissible alteration to its reasoning. Certainly the kind of extensive re-writing in which it engaged is not to be encouraged. However, ultimately—and with some disquiet—I take the view that the two sets of reasons can stand consistently together. Put in another way, the reasoning process disclosed by the written reasons does not substantially depart from that disclosed by the oral reasons, even though there are dissimilarities as between the oral and written reasons.

63    Therefore, I will approach Ms Negri’s grounds of appeal on the basis that the Tribunal’s written reasons are its reasons, except that I will look to the oral reasons for the purposes of clarification if need be.

Application

64    As I said above, it did not seem to be controversial (and in any event it is readily apparent) that, in its written reasons, the Tribunal adopted conclusions expressed in the November report. It also referred to the February report. There was an issue as to whether the Tribunal adopted only the conclusion from the November report, or whether instead it adopted also the reasoning in that report and, perhaps, in the February report.

65    As is also discussed in relation to question 4 below, the Tribunal’s approach does not seem to me to be dissimilar to a court hearing evidence from two expert witnesses. Typically, in such a case, each witness will state his or her opinion as to particular facts in issue, and give reasons therefor. It is not uncommon for the court to state, in reasons for judgment, that it was persuaded by the reasoning of one expert witness or the other, and therefore that the opinion of that expert should be held to be the fact. In such a case, the court does not simply adopt a conclusion of an expert: it holds that, for reasons given by the expert, that expert’s opinion is the correct one. It would be unusual for a court to prefer the conclusion of one expert for no reason at all, or for reasons that were not that expert’s reasons. Absent fairly clear words suggesting the contrary, where the opinion of an expert witness is accepted, I would ordinarily infer that both the conclusion and the reasoning therefor are accepted.

66    There is nothing here to suggest that the Tribunal adopted only the 10-point conclusion from the November report and not its reasoning. There was no reason for the Tribunal to adopt such an approach. If it had independently come to the view that 10 points was the appropriate Table level for reasons not included in the November report, it may not have had to refer to the report at all, and certainly it would not have said that it “prefer[red] the contemporaneous assessment of the JCA.” In so saying the Tribunal was in effect stating that it was persuaded by the JCA’s reasons for the JCA’s conclusion, and for the same reasons the Tribunal reached the same conclusion.

67    As, therefore, the Tribunal effectively incorporated the JCA’s reasoning, I will assess whether the JCA properly approached the test set out in the Determination.

68    Relevant parts of the November report have been extracted above, at [55]. The report contains a list of symptoms. It identifies the appropriate Table. It sets out some, but importantly not all, of the content of the 10-point impairment rating in Table 1. For example, Table 1 gives in item (1)(a) of the 10-point level a list of examples, being shortness of breath, fatigue, and cardiac pain. The extract from that table set out in the November report lists only fatigue. The extract omits (1)(a)(ii). In my opinion the author of the report is, in setting out certain only of the examples in the descriptor for the 10-point impairment rating, setting out those of the examples that apply to Ms Negri’s circumstances. In other words, the author is not setting out all the examples for ease of reference: he or she is setting out the particular examples that apply to Ms Negri. The “supporting reasons summary” contains commentary relating to the various examples in the 10-point impairment rating. For example, the statement that Ms Negri is “able to go to the supermarket for light purchases” appears to relate to items (1)(a)(i) and (1)(b)(i). The reference to working in hospitality appears to relate to item (1)(b)(ii).

69    It seems to me that the JCA in the November report did correctly apply the Table to Ms Negri’s circumstances. That is to say, it considered the particular examples set out in the various levels of the Table with a view to determining which level of functional impact applied. It concluded that the 10-point level applied, which is to say that Ms Negri suffered a moderate functional impact. Indeed, as I read the JCA’s reasons it did make findings (as it were) as to which of the particular examples in the 10-point impairment rating applied to Ms Negri’s circumstances. In that way, it seems to me that the JCA’s application would meet even the more-stringent test urged upon me by Ms Negri. The final sentence of the JCA’s report indicates that the assessment took into account item 11(4) of the Determination.

70    The February report is less thorough and it is unclear whether the JCA considered the examples at the various Table levels. The Tribunal referred to that report but only as confirmatory of the medical history for Ms Negri, which the Tribunal had otherwise accepted.

71    The Tribunal’s reasons disclose that it adopted not only the November JCA report’s conclusions but also its reasons. The JCA’s reasons in the November report complied with the proper approach to application of the Determination. So too, therefore, did the Tribunal’s. The Tribunal’s additional tangential reliance upon the February report does not alter that amongst the reasoning that it incorporated was a consideration of how Ms Negri’s symptoms measured up against the examples given at various levels of the Table.

72    The Tribunal applied the correct test. Ms Negri fails on this issue.

Ground 4

73    Ms Negri contends that in the written reasons the Tribunal did nothing more in disposing of the Table 1 issue than adopt the conclusion of a JCA. Ms Negri contends that in so doing the Tribunal failed to act independently and instead acted at the behest of the JCA, which was an error of law. This is the subject matter of ground 4.

74    Relying upon Telstra Corporation Limited v Kendall (1995) 55 FCR 221, Ms Negri submitted that “[t]he JCA’s recommendations were simply adopted, or given weight as evidence, of the Applicant’s functional impairment.” This misunderstands the holding in Kendall at 231 (Black CJ, Ryan and Hill JJ):

There is a fine line between saying that a decision-maker has taken into account as evidence what is said by another person in arriving at his or her conclusion and saying that the decision was one made at the direction or behest of another. What is encompassed by the ground referred to in s 5(2)(e) of the ADJR Act is the case where the decision-maker gives no real independent attention to the discretion which is conferred upon him or her, so that the exercise of discretion is really the exercise of that discretion by some other person.

The point of their Honours’ dictum is that taking into account as evidence the opinion of another is permissible, whereas acting at the behest of another is not. The test of the latter is set out in the second sentence extracted above. Ms Negri’s submission that the JCA’s recommendations were adopted or given weight as evidence does not go far enough. If the Tribunal had merely given the JCA’s recommendations weight as evidence, no complaint could be made about that and such a course would plainly be within the Tribunal’s power.

75    The Court in Kendall continued as follows, at 231–232:

In the present case, the decision under challenge was the decision to disconnect the service. That was not a decision made by the Police; it was a decision made by Mr Bennett. In making that decision, Mr Bennett took into account as a factor in the decision-making process what the Police said had been revealed by their investigations. He was entitled so to do. There was no obligation placed upon Mr Bennett to conduct an independent investigation into the use of the services for prostitution. He was entitled to take into account as evidence what he had been told by the Police. He certainly did not act at the direction of the Police.

The word "behest" is defined in the Oxford English Dictionary (2nd ed), relevantly as "a command, injunction, bidding", stemming from middle English where its meaning was "to command".

This is consistent with its meaning as given in the Macquarie Dictionary (2nd Revised ed) of "bidding or injunction; mandate or command".

In the context in which it appears in the ADJR Act, the word "behest" can not simply be a substitution for request. Both words are used against the background of the ordinary administrative law principle that, for a discretion to be valid it must be a real exercise of discretion by the decision-maker, not an acceptance by the decision-maker of a direction by some other person to whom the making of the decision has not been entrusted: cf R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 per Kitto J.

76    The Tribunal’s written reasons disclose clearly that it grappled with the evidence of Dr Sillcock and the evidence contained in the JCA reports and came to the view that the latter was more persuasive. This is not dissimilar to a court hearing evidence from two expert witnesses and preferring one’s conclusion to the other’s because the former’s reasons were more persuasive than the latter’s. It could not be said in such a circumstance that the court had acted at the behest of the expert witness whose evidence it was persuaded to accept.

77    Similarly, here, the Tribunal took into account the evidence before it and came to a view as to which it accepted. It gave reasons for that choice. There is no merit to the suggestion that the Tribunal acted at the JCA’s behest. Rather, as I have said above, the Tribunal was in effect stating that it was persuaded by the November JCA conclusion for the reasons there expressed and, for the same reasons, the Tribunal reached the same conclusion. That is not an error of law.

Ground 3

78    Ms Negri argued that she had been diagnosed with depression in such a way that it was necessary to assign points in relation to that disability under Table 5. The Tribunal rejected that submission. Ms Negri argues that, in so doing, it misconstrued the evidence of Dr Sillcock. Dr Sillcock, it was said, gave evidence that the drug Effexor was prescribed only for depression. The submission followed that, since Ms Negri had been prescribed Effexor, there must have been a diagnosis of depression. The legal question that underpins ground 3 is whether the Tribunal acted in a manner that was legally unreasonable by misconstruing or misapplying Dr Sillcock’s evidence.

79    It is convenient to set out Dr Sillcock’s evidence, so far as is relevant:

It's emerged that Ms Negri saw a psychiatrist in March of 2009 and was prescribed Effexor?---Yes.

Can you just state what class of drug Effexor is?---That's an SSR—SSRI which is selective serotonin receptor inhibitor - - -

And what does that mean?---Antidepressant. It’s a - - -

No, an antidepressant, thank you?---It's an antidepressant, yes. I mean, it means it inhibits the—yes, inhibits the uptake of serotonin, yes.

And I know [you’re] not a psychologist or a psychiatrist but as a trained doctor would an antidepressant be prescribed if there wasn't depression in a person?---Yes. Yes. And Effexor is a commonly used antidepressant.

Sorry, if I can just ask that question again. Would an antidepressant be prescribed if a person didn't have depression?---Well, one would hope not. I mean, sometimes - - -

MEMBER: Well, how about if I say in your experience are you aware of any medical practitioner prescribing an antidepressant in circumstances other than a full on clinical diagnosis of depression?---Do I have to answer that question? Look, no, seriously I think—look, the vast majority of prescriptions are made when—when it's considered that the person is suffering from depression. Now, sometimes in the milder end of the spectrum there may be argument and—and you know, that you might get a couple of practitioners saying, "Well look, I don't really think this person is actually depressed", but yes. I mean, it's—that's all it's prescribed for. It’s not used for anything else.

Not even as a sleeping tablet?---No. Well, no, not as a straight sleeping tablet. I mean, usually you take it during the day anyway. I mean, it—the antidepressants normally do help with sleeping even though they're—this particular class of antidepressant is taken in the morning usually.

Are you familiar with a class of antidepressant being prescribed in a program of pain management?---Yes. Yes. Yes, but they're—they're different ones. I mean, they're- Cymbalta is—is another one which is used in treatment of pain management because it's been shown to have a—a pain relieving property of that sort of type of antidepressant but—and the other ones are the old tricyclics, you know, like the Endep which she is, in fact, on but the doses that are used for pain management are somewhat lower than those used for—for, you know, full antidepressant doses, so yes, they're widely used, but yes. In fact, those drugs are used more for pain management these days than for the treatment of depression.

80    In its oral reasons, the Tribunal said this:

In Dr Sillcock’s oral evidence today she indicated that the prescription of an antidepressant … is not a specific indicator of a diagnosis of depression. And, in fact, they are, in her own oral evidence, they are used as hypnotics, by which I mean sleeping tablets at night time.

In its written reasons, the Tribunal said as follows (italicisation in original):

[43]    The Tribunal finds that it is difficult, on the evidence before it, to separate depression from fibromyalgia and its associated chronic pain. This finding is supported by the oral evidence of Dr Sillcock. The Tribunal is aware from its own experience, that the management of chronic pain is undertaken by a multidisciplinary team comprising pain management experts, often anaesthetists, rehabilitation experts, rheumatologists, neurologists and psychiatrists. The Tribunal considers that the Applicant’s interaction with a psychiatrist in 2009 was in the context of overall pain management and not specifically related to a referral for depression. The Tribunal considers that an unsigned, hand-written note featuring the word depression is not sufficient to establish a diagnosis of depression, even if it can be proven that the author of the note is a consultant psychiatrist. This is particularly so given that there was no follow-up correspondence related to this potential diagnosis, no management plan and no plan for regular review.

[44]    In addition, not all recipients of antidepressant medications have a clinical diagnosis of depression, and antidepressant medications are used in the management of chronic pain syndromes. Moreover, the Applicant herself stated that she was prescribed antidepressants to assist with sleep and pain management. …

81    Preliminarily, I note that it was not here submitted that the differences between the oral and written reasons were so great that I would find that the Tribunal had utilised substantially-altered reasoning in its determination of Ms Negri’s depression claim. Thus, the written reasons are those to which I should look in determining whether the Tribunal erred.

82    Ms Negri relied upon Minister for Immigration and Border Protection v SZSNW (2014) 229 FCR 197. Therein, at [16]–[19], Mansfield J found legal unreasonableness where a plainly-wrong assertion was adopted by the decision-maker and unfairly used to reject an applicant’s evidence. The reasoning of Buchanan J was similar: his Honour held (at [91]–[93]) that the independent merits reviewer committed an error of law when he “disregarded [a] plain fact”, and then embarked on findings adverse to the credit of the first respondent based on that false premise. Accordingly, Buchanan J concluded, the merits reviewer had not carried out his function in accordance with the purpose to which it was directed.

83    Ms Negri’s argument, however, does not get beyond the hurdle of establishing a plain fact that was disregarded, or a plainly-wrong finding. I do not consider that Dr Sillcock’s evidence was nearly as unequivocal as Ms Negri put. Dr Sillcock allowed that anti-depressants are sometimes prescribed in the absence of a formal diagnosis of depression, for example at the “milder end of the spectrum.” Further, she did not categorically rule out the use of Effexor as a sleeping tablet. She said only that it would not be used as a “straight” sleeping tablet and stated that Effexor was “usually” taken in the morning (as indicating, evidently, that it would be of diminished usefulness as a sleeping tablet). Indeed, in Ms Negri’s oral submissions before the Tribunal the submission put in relation to this evidence was as follows (emphasis supplied):

She was prescribed an anti-depressant, Effexor, by Dr Krapivensky, and Dr Sillcock has given oral evidence that it is completely consistent with a diagnosis of depression and it would be quite unlikely that Effexor would have been prescribed unless there was a diagnosis of depression by that practitioner.

84    The Tribunal’s operative finding in the written reasons, that “not all recipients of antidepressant medications have a clinical diagnosis of depression” could stand together with Dr Sillcock’s evidence, including that relating to Effexor. The finding that “antidepressant medications are used in the management of chronic pain syndromes” was consistent with what Dr Sillcock said concerning Endep.

85    Even if the findings that the Tribunal made were not the most obvious ones—indeed, even if many Tribunals might have reached the opposite finding—they were findings that were open to the Tribunal on the evidence: they were not plainly wrong; they do not demonstrate that a plain fact was disregarded. Accordingly, the submission that such a finding or such disregard was built upon to result in legal unreasonableness or another error of law must fail.

Ground 2

86    In a confidential review, which was prepared by the Department of Human Services and which was in evidence before the Tribunal, there is reference to a medical report of Dr L Kader, psychiatrist, dated 1 May 2014, and against it the words, “Fibromyalgia related depression since 2010”. Ms Negri alleged that the Tribunal was permitted to take into account an ex post facto diagnosis (relying upon Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180), was obliged to take it into account as it constituted a claim by Ms Negri, and failed to take it into account. Whether Ms Negri is right in so alleging is the subject matter of ground 2.

The evidence before, and consideration thereof by, the Tribunal

87    The “confidential review” was prepared by a Dr Sandra Armstrong, on review of material held by the Department of Human Services in relation to Ms Negri. Under numbered heading 2, “Evidence considered for this review,” appears a table detailing (inter alia) letters, medical certificates, medical reports, JCA reports, and medical imagery. On the sixth page of that table, there appears the following row (emphasis added):

88    In relation to depression, Dr Armstrong’s discussion was as follows:

[T]his diagnosis was not confirmed by either a psychiatrist or clinical psychologist until well outside the relevant period, so cannot be rated as permanent and FDTS for this appeal. The [medical report] from Dr Kader a psychiatrist is dated 1/5/14 and there is no evidence suggesting that Ms Negri saw a psychiatrist prior to 2014 (except when she was 18 years old).

I assume “FDTS” stands for “fully diagnosed, treated, and stabilised.”

89    Dr Armstrong was not called. The Secretary indicated to the Tribunal contentedness to rely upon Dr Armstrong’s written statement.

90    Dr Kader was discussed in Ms Negri’s oral evidence. Ms Negri said that she saw Dr Kader in early 2014, and that Dr Kader had said that for Ms Negri to see a psychological nurse was “more appropriate for [Ms Negri’s] condition.” Thereafter, Ms Negri saw a psychiatric nurse. The fact of Ms Negri having seen Dr Kader also arose in Dr Sillcock’s evidence.

91    Dr Kader featured in Ms Negri’s oral submissions to the Tribunal. Ms Negri’s primary submission, which was rejected, was that Dr Krapivensky had diagnosed Ms Negri with depression in 2009. Ms Negri continued, “[a]lternatively, if the diagnosis wasn’t made until 2014 by Dr [Kader], then the evidence in between those periods, in particular the evidence from the GPs and from the psychologist, Ms Donati, showed that Ms Negri did suffer from depression at the time of the claim even though it might have been diagnosed later by Dr [Kader].”

92    Before the Tribunal, the Secretary dealt with the issue in this way (emphasis added):

Whilst there were diagnoses from Dr Gredina, Dr Green, Dr Lewis and Ms Donati, the Australian Health Practitioner Regulation Agency confirms that none of those practitioners are a psychiatrist or a clinical psychologist. This was also consistent with the findings of the Centrelink Authorised Review Officer at T15, as well as previous Social Security Appeals Tribunal at T2. The Secretary also notes that it was not until 2014, which is after the qualification period, that the applicant begun seeing either a psychiatrist or a clinical psychologist.

The italicised passage seems to be a reference to Dr Kader.

93    Ms Negri made a brief further submission, which directly related to Dr Kader, just before the Tribunal commenced its oral reasons. That submission was as follows:

In relation to the diagnosis by a psychiatrist for Ms Negri’s depression, it appears that there is a report from Dr [Kader] dated 1 May 2014 referred to in page 222 of the materials. We’ve made inquiries about that report. Unfortunately it can’t be found and the best we’ve got is that summary or the excerpts in the table done by Dr Armstrong when preparing her report.

The summary done by Dr Armstrong of Dr [Kader’s] report is that there is fibromyalgia-related depression since 2010. We would submit that is consistent with Dr [Kader] confirming that the depression has existed since 2010 prior to the claim period.

94    In reply, the Secretary submitted as follows:

Whilst unfortunately we don’t have the benefit—and I’d like to make this clear, that we don’t have the benefit of reviewing Dr [Kader’s] medical report, even still, if the tribunal does accept that the applicant’s depression was fully diagnosed, treated and stabilised, and that it should be assigned a maximum of 10 impairment points, unfortunately this still does not assist with her application because she hasn’t completed a program of support for the required time, and she doesn’t have 20 impairment points under a single impairment table.

95    Dr Kader was not mentioned in the oral reasons that followed. In the written reasons, Dr Kader was thrice mentioned. At [23], [30] and [44] the Tribunal said this (italicisation in original, evidently to indicate quotation):

[23]    The Applicant agreed that her mental state is related to the impact of fibromyalgia. This mental state manifests as low mood and motivation, as well as panic and anxiety symptoms. Although Lyrica provided some of those symptoms, they could occur without an increased dosage of Lyrica. She was prescribed Endep in 2010 [by someone whose name she cannot recall but stated was a psychiatrist], but said it was prescribed as a sleeping additive to begin with then increased for depression purposes… It’s one of those pills that is multifunctional so it can help with sleeping, it can help with pain. Her visit to a psychiatrist, Dr Kater [sic. This is presumably a reference to Dr Kader], in early 2014 did not result in any alteration of her prescription and subsequent visits were with a psychiatric nurse.

[30]    In a referral letter to consultant psychiatrist Dr L Kader dated 20 February 2014, Dr Greene wrote that the Applicant, whilst attempting to obtain DSP, and having engaged in multiple pain management programmes, had a [w]orsening mood over time secondary to her underlying pain...but ha[d] never been reviewed independently by a psychiatrist.

[44]    In addition, not all recipients of antidepressant medications have a clinical diagnosis of depression, and antidepressant medications are used in the management of chronic pain syndromes. Moreover, the Applicant herself stated that she was prescribed antidepressants to assist with sleep and pain management. In his referral letter to consultant psychiatrist Dr L Kader dated 20 February 2014, Dr Greene stated the Applicant has never been reviewed independently by a psychiatrist.

96    There are also references to reports and other documentation prepared by Dr Krapivensky, Dr Greene, and Ms Donati. The Tribunal concluded by saying, “[t]he Tribunal cannot identify any firm evidence related to a diagnosis of depression per se at the relevant period.”

Discussion

97    The Secretary submitted that the Tribunal was clearly aware of Dr Kader because it referred to her in its written reasons, and that it must have decided that Dr Kader’s May 2014 opinion was of no relevance in assessing whether there was “depression in the relevant period.” The Secretary submitted that the Tribunal inferentially said, “[t]he doctor wasn’t produced. A proper report wasn’t produced. Therefore, I’m not satisfied.” The Secretary further submitted that the Tribunal did not need to refer to every piece of evidence, and that the evidence concerning Dr Kader was the kind of evidence that the Tribunal could permissibly pass over. I think that the following passage encapsulates the Secretary’s submissions on the question:

Unless my learned friend can put this into the category of evidence that the tribunal had to deal with expressly in those terms, then it’s just entitled to say, “I’m not satisfied for all sorts of reasons that there was a history of depression in the relevant period. I don’t care what Dr Kader says in 2014.” And that’s what the tribunal did … by ignoring Dr Kader beyond mentioning [her] twice.

98    With reference to the submission concerning Dr Kader that I extracted under [93] above, the Secretary said, “[s]o it’s not like the tribunal is not aware of it. They have been given the date and the – where it is in the notes, and strong reliance on it. And to suggest that therefore the tribunal is not aware of it and just sort of forgets about it – I mean, it has been put to the tribunal.” Earlier, the Secretary had submitted that the Tribunal was aware of Dr Kader “because the submission was clearly made.”

99    Ms Negri relied upon Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, where at [47] the Court (French, Sackville and Hely JJ) said this (emphasis added):

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

100    Recently, in MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425, I summarised (at [24]) principles as set out by Griffiths J in SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 relating to whether jurisdictional error lay in failing to consider a clearly-articulated submission. Those principles are again relevant and so I set out [24] of MZABA below:

In [SZSSC], Griffiths J set out the Minister’s submissions as to the state of the authorities at [75]-[78] (which he accepted subject to provisos not here relevant), and at [81] set out additional principles relevant in determining whether the Tribunal committed jurisdictional error in failing to address a substantive and clearly-articulated submission. I will endeavour to summarise from Griffiths J’s judgment (and the authorities his Honour cited) the principles here relevant: first, the Tribunal’s duty is to review, which requires it to consider and deal with clearly-articulated submissions of substance (SZSSC at [81(a)]); second, a failure to consider a submission that was substantial and clearly articulated (SZSSC at [75], [78], citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 389 at [24]) or an undertaking of the task of review “without a consciousness and consideration of the submissions, evidence and material”, (SZSSC at [76], citing [Minister for Immigration and Border Protection v] MZYTS [(2013) 230 FCR 431] at [38]), could amount to jurisdictional error. Those may be different ways of expressing the same principle (SZSSC at [77], citing SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 at [23]-[24]); third, not every failure to deal with a submission, evidence, or other material, will constitute jurisdictional error (SZSSC at [81(b)], citing [Minister for Immigration and Citizenship v] SZRKT [(2013) 212 FCR 99] at [97]). Some evidence may be irrelevant and some contentions misconceived, though there is a distinction between failure to advert to evidence that might have led to a different factual finding, and failure to address a contention which, if accepted, might establish well-founded fear for a Convention reason (SZSSC at [81(c)], citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]); fourth, it may be appropriate to have careful regard to the Tribunal’s statement of decision and reasons including its summary of submissions received (and how it dealt with them) and its structure (SZSSC at [81(e)]); fifth, the burden is on the appellant to persuade the Court that any failure to deal with a submission is a jurisdictional error (SZSSC at [81(g)], citing MZYTS at [53]), and the Tribunal’s reasons are not to be approached with an eye keenly attuned to detection of error (SZSSC at [81(h)], citing Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290 at [19]-[20]).

101    In my view the Tribunal did here fail to deal with a clearly-articulated submission. The Secretary acknowledged that Dr Kader had been strongly relied upon by Ms Negri, that the submission concerning Dr Kader’s report as outlined in Dr Armstrong’s report was put to the Tribunal, and that the Tribunal was aware of Ms Negri’s reliance upon Dr Kader because the submission was “clearly made.” The Secretary relied on those submissions to support the further submission that the Tribunal could not have simply forgotten about Dr Kader. But the submissions cut both ways: if the submission concerning Dr Kader was “clear”, and if “strong reliance” was put on it—and I consider that both of those descriptions are apt—it is hard to explain how the Tribunal could, consistently with fulfilment of its duty under s 43(2A) of the AAT Act, fail to mention the submission at all.

102    The Secretary’s submission is that the summary of Dr Kader’s report in Dr Armstrong’s report was of so little moment and so devoid of probative force that it did not need even to be mentioned to be disposed of. I cannot accept that submission. In the passage extracted under [88] above, Dr Armstrong herself appeared to treat Dr Kader’s report as containing a diagnosis of depression, and dismissed it because it post-dated the relevant period rather than because it did not establish the diagnosis. If it was the case that Dr Kader had diagnosed Ms Negri with depression—and there seems to be a fair argument, based on Dr Armstrong’s summary, that Dr Kader did so diagnose—then it would be necessary for the Tribunal to consider whether the condition was “fully diagnosed” and “fully treated” (involving consideration of the matters listed in item 6(5) of the Determination), and “fully stabilised” (item 6(6)). Evidence was led on those questions. It is not impossible that they would have been answered in Ms Negri’s favour.

103    In other words, if the evidence of Dr Kader’s report had been adverted to, it might have led to a different finding of fact in relation to whether Ms Negri had been diagnosed with depression. That would have led to consideration of whether the depression so diagnosed had been fully diagnosed, treated, and stabilised. There was evidence available that might have led to an answer in Ms Negri’s favour. If so, it would have been necessary for the Tribunal to assign Ms Negri a certain number of points under Table 5 of the Determination. Again, it is not impossible that Ms Negri would have been assigned 10 points, as she had submitted should occur. If she had been assigned 10 points, all other of the Tribunal’s findings remaining the same, it would have answered the s 94(1)(b) question—did Ms Negri have 20 points of impairment or more under the Tables—in the affirmative.

104    In setting out the foregoing, I should not be understood as indicating that I think Ms Negri would necessarily, or even likely, have succeeded had Dr Kader’s report been taken into account. It may have been open to the Tribunal to find that the second-hand account of the diagnosis made was insufficient to persuade it that Dr Kader had diagnosed Ms Negri with depression. Or, the Tribunal might have been unsatisfied in relation to the “fully diagnosed,” “fully treated,” or “fully stabilised” tests. But consideration of the evidence of Dr Kader’s report would have given Ms Negri a chance of success that she was, in the event, denied by the failure of the Tribunal to so consider. On the Tribunal’s reasoning, it was the finding that no diagnosis of depression had been made that foreclosed the assigning of points under Table 5. The evidence of Dr Kader’s report went directly to that question. The submission relating to that evidence was substantial. What is more, it was clearly articulated: it was plainly submitted that the evidence in Dr Armstrong’s report established a diagnosis by Dr Kader relating to the relevant period.

105    In that light, the submission that Dr Kader had diagnosed Ms Negri with depression should have been dealt with. Ms Negri has established an error of law.

Active Participation in a Program of Support

106    Section 94(1) requires not only that a person’s impairment be of 20 points or more under the Tables, it requires also either that the person have a “continuing inability to work” (s 94(1)(c)(i)), or that the Secretary be satisfied that the person is participating in the “supported wage system” (s 94(1)(c)(ii)).

107    In order to have a “continuing inability to work,” a person must (inter alia) either have a “severe impairment” or have “actively participated in a program of support” (s 94(2)). A “severe impairment” is one where the person’s impairment is of 20 points or more, “of which 20 points or more are under a single Impairment Table” (s 94(3B)). The Secretary’s submission to the Tribunal was that Ms Negri had not actively participated in a program of support, and therefore that in order to qualify for a disability support pension Ms Negri required 20 points under a single table.

108    The Secretary went on to submit that the Tribunal should find that Ms Negri fell into the 10-point impairment rating of Table 1 and that there was an absence of evidence that Ms Negri had been diagnosed with depression during the relevant period. In the alternative to the latter point, the Secretary submitted that the Tribunal would not assign more than 10 points under Table 5, in which case—even if Ms Negri had been diagnosed with depression—she had not received 20 points under any one Table, did not have a “severe impairment,” and could not qualify for a disability support pension. Ms Negri had submitted that her depression merited 10 point under Table 5.

109    In its written reasons, the Tribunal identified that submissions were made concerning the “program of support” issue, but did not determine the issue.

110    The Tribunal held that Ms Negri had 10 impairment points under Table 1. All challenges to that conclusion have failed. Ms Negri has succeeded in establishing legal error in relation to Table 5. But, on Ms Negri’s own submissions to the Tribunal, she would not have attracted more than 10 points under that Table. Had the Tribunal considered the “program of support” submissions and evidence, and had the Tribunal determined that issue adversely to Ms Negri, the outcome of this appeal would likely have been that, although legal error was established, that error was immaterial because even if Ms Negri had attracted 10 points under Table 5 she would not have fulfilled the “serious impairment” requirement of s 94(3B).

111    Instead, remittal of the matter is now in prospect. That will require expenditure of time and money by the parties and it will further draw upon the resources of the Tribunal. I respectfully observe that that could all have been avoided if the submissions and evidence concerning the “program of support” issue had been dealt with.

Conclusion

112    Ms Negri’s appeal succeeds. As I said in O’Loughlin v Linfox Australia Pty Ltd (2015) 235 FCR 164 (at [68]–[70]):

[68]    … A remittal may be on a confined basis, or at large: Repatriation Commission v Nation (1995) 57 FCR 25 (Beaumont J, with whom Black CJ and Jenkinson J agreed); Stateships v Lawson (2009) 107 ALD 42 at 53 (Gilmour J). Where no condition is imposed on remittal, the whole of the case is remitted without limitation as to the presentation of further evidence or as to the scope of the matter to be dealt with: Rigoli v Federal Commissioner of Taxation (2014) 96 ATR 19 at [34] (Edmonds, Jessup and McKerracher JJ). An unqualified remittal, even for a matter to be determined according to law, would require the whole of the matter to be heard and decided again, and all questions of law and fact relevant to the claim to be considered and determined: Rigoli at [34], citing Peacock v Repatriation Commission (2007) 161 FCR 256 (Downes, Lander and Buchanan JJ).

[69]    Confined remittals can cause difficulty, for reasons identified by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [73]-[74]:

Necessarily, the findings that are recorded in the Tribunal’s written statement of its decision and reasons will reflect the matters that the applicant for review will have sought to agitate. No less importantly, the findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented.

It follows, therefore, that to attempt to divorce the Tribunal’s statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law. There are several reasons why it may be a dangerous process. First, there is the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle. Secondly, assuming that those difficulties can be surmounted, the findings of fact which the Tribunal makes after hearing and assessing the body of material and submissions will necessarily reflect the Tribunal’s conclusions about applicable legal principle and will be directed to the questions that those principles present. If, in that review, the Tribunal makes an error of law and a subsequent review is ordered, what is the Tribunal then to do if further findings are to be made about subjects with which the first Tribunal dealt? For it to take, as its starting point, findings that were made on that earlier review under a misapprehension of applicable legal principles may, indeed often would, skew the second factual inquiry by the Tribunal.

[70]    Nevertheless, there may be good reason to limit the scope of the referral including by the Court making an order under s 44(5) of the AAT Act that the case be heard and determined without the hearing of further evidence. I should specify whether I am remitting the whole case, or only part, and, if so, which part: Peacock at [24]. As Downes, Lander and Buchanan JJ there stated, “Parties should routinely put submissions on the topic”. …

113    As no submissions were put, it is appropriate that I make directions requiring the parties to file and exchange short written submissions as to whether any order ought to be made limiting the scope of the referral.

114    Also, nothing was said concerning costs. The parties should confer as to costs. In the absence of agreement, I will allow the parties an opportunity to file submissions. In the absence of such submissions, I will order that Ms Negri’s costs be paid by the Secretary.

Associate:

Dated:    5 August 2016