Federal Court of Australia

Prahauser v Administrative Appeals Tribunal [2020] FCA 1658

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Applicant is to pay the costs of the Second Respondent, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

WHITE J:

1    On 3 February 2020, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of the Social Services and Child Support Division of the Tribunal (AAT1) made on 4 March 2019 (Prahauser v Secretary, Department of Social Services [2020] AATA 105) which, in turn, had affirmed a decision of an Authorised Review Officer (ARO) of the then Department of Human Services made on 2 October 2018. The decision of the ARO had been to affirm the rejection of the applicant’s claim for a Disability Support Pension (DSP) lodged on 26 June 2017.

2    The applicant now appeals, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), against the decision of the Tribunal. By s 44(1), the appeal lies on a question of law only. The Secretary, Department of Social Services is the second respondent to the appeal. I will refer to the second respondent as “the Secretary”.

3    The applicant was unrepresented in the Tribunal. He was also unrepresented in this Court until shortly before the hearing.

4    At the hearing, the applicant’s counsel applied for, and was granted, leave to amend the Amended Notice of Appeal filed on 24 April 2020. The Further Amended Notice of Appeal (FANA) raises two issues which are said to be questions of law.

5    Following the amendment of the notice of appeal, the Secretary did not persist with the objection to the competency of the appeal filed in relation to the original notice of appeal.

6    At the time of the Tribunal hearing, the applicant was 58 years old. In his claim for the DSP, he listed his disabilities, illnesses and injuries as “osteoarthritis especially on the left side but also some on the right side, sensory loss of finger movement, and generalised loss of mobility, weakness in arms, hands and fingers as well as ankles, pain in cervical spine and lower back with osteoarthritis”.

7    The Tribunal determined the applicant’s claim by addressing the claimed disabilities in five categories: impairment of the upper limbs; impairment of the lower limbs; impairment of the applicant’s spinal (neck and back) function; impairment of the applicant’s continence function; and the condition of fatigue.

Statutory and regulatory provisions

8    The qualifying conditions for the grant of a DSP are contained in s 94 of the Social Security Act 1991 (Cth) (the SS Act) which provides (relevantly):

(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;

…

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

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

…

9    The Impairment Tables to which s 94(1)(b) refers are the tables determined by the Minister pursuant to s 26 of the SS Act. The tables to be applied in the applicant’s case were those in force on the day he made his claim for the DSP (s 27(1)). It was common ground that these are the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 made by the Minister for Families, Housing, Community Services and Indigenous Affairs on 6 December 2011 (the 2011 Tables). I will set out later in these reasons the particular tables within the 2011 Tables which are pertinent on the appeal. For the moment, it is sufficient to note that they involve the assignment of varying ratings according to the degree of functional impact of an impairment.

10    Part 2 of the Impairment Tables contains rules concerning their application generally. Rule 5(2) indicates that the Tables are function based rather than diagnosis based and that they describe functional activities, abilities, symptoms and limitations designed to assign ratings to determine the level of functional impact of impairment and not to assess the conditions themselves. Rule 6(2) provides that 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. Rule 6(3) provides that an impairment rating can be assigned to an impairment only if the person’s condition causing that impairment is permanent and if the impairment resulting from that condition is more likely than not, in light of the available evidence, to persist more than two years.

11    By Rule 6(4), a condition is permanent only if it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised and, in light of the available evidence, is more likely than not to persist for more than two years.

12    Rules 6(5), (6) and (7) elaborate the terms “fully diagnosed and fully treated”, “fully stabilised” and “reasonable treatment”.

13    Rule 7(1) provides:

Subject to subsection (2), in applying the Tables the following information must be taken into account:

(a)    the information provided by the health professionals specified in the relevant Table; and

(b)    any additional medical or work capacity information that may be available; and

(c)    any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.

14    The effect of ss 41 and 42 of the Society Security (Administration) Act 1999 (Cth) (the Administration Act) and of cll 3 and 4 in Sch 2 to the Administration Act is that the applicant had to have qualified for the DSP throughout an assessment period which, in his case, was 26 June 2017 to 25 September 2017.

15    The Tribunal proceeded on the basis that the applicant would qualify for the DSP if it was satisfied that:

(i)    the applicant had, during the assessment period, one or more physical, intellectual or psychiatric impairments;

(ii)    the impairments rated at at least 20 points under the Impairment Tables; and

(iii)    he has a “continuing inability to work”.

16    The applicant’s counsel accepted that this approach by the Tribunal was appropriate.

17    It was common ground before the Tribunal that the applicant did suffer from impairments of the kind to which s 94(1)(a) of the SS Act referred and that the applicant had participated actively in a program of support of the kind required by s 94(2)(aa) of the SS Act.

18    The Secretary accepted in the Tribunal that the applicant’s cervical spine condition could be assigned 5 impairment points but contended that neither the condition of his lower back or of his lower limbs could be assigned an impairment rating. The Secretary also contended that the applicant did not have a continuing inability to work.

19    The Tribunal member identified the main issue for determination as being whether the applicant’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work.

The evidence in the Tribunal

20    The applicant gave oral evidence in the Tribunal. In addition, the Tribunal received reports from his general medical practitioner, Dr Middleton; from a pain and rehabilitation specialist, Dr Vo; and from a urologist, Dr Horsell. Dr Middleton had provided medical certificates dated 5 May, 23 June and 24 September 2017 as well as reports dated 23 June 2017, February 2018, March 2018 and 7 February 2019. Dr Vo had provided two reports, in October and November 2019. Dr Horsell provided two reports dated 18 November 2019 and 9 December 2019. There were also other medical reports and certificates.

21    In addition, the Tribunal had a “Job Capacity Assessment Report” dated 20 September 2017 (the JCA Report). The assessment on which the JCA Report was based had been made by a registered psychologist (by telephone) on 14 August 2017.

22    The Tribunal described the applicant’s evidence about his medical conditions and their effects as “clear, consistent and honest”, at [18].

The Tribunal decision

23    The Tribunal commenced its consideration by noting, correctly, that it was required to consider the applicant’s condition as it was during the 13 week assessment period. In this respect, the Tribunal referred to Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33]; and to Secretary, Department of Social Services and Seyfang [2016] AATA 243 at [23]. In the last of these decisions, Bean DP said (correctly):

[I] am required to have regard to the state of affairs during the assessment period, and without regard to later developments. Whilst I may have regard to evidence which came into existence after the assessment period, this is relevant only in so far as it assists in establishing the true state of affairs during the assessment period.

24    The Tribunal found that the applicant did have a physical impairment with the consequence that s 94(1)(a) was satisfied.

25    The Tribunal found that the applicant’s upper limb condition, lower limb condition and spinal condition had been fully diagnosed, treated and stabilised during the assessment period and gave each an impairment rating of five points. It did not give any rating to the applicant’s condition of mild urinary incontinence on the basis that it was not fully diagnosed, fully treated or stabilised during the assessment period, at [72]. With respect to the applicant’s claimed condition of fatigue, the Tribunal member said:

[75]    Impairment Table 1 relates to functions requiring physical exertion and stamina. The Tribunal does not consider that the evidence about fatigue is sufficient to conclude that it was fully diagnosed, treated and stabilised. Accordingly, no impairment rating can be given.

(Emphasis added)

26    The Tribunal member then concluded that, because the applicant’s impairment points totalled 15, he did not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period, and, accordingly, did not satisfy s 94(1)(b) of the SS Act. That meant that the decision of AAT1 should be affirmed. It also meant that it was not necessary for the Tribunal member to consider whether the applicant had a continuing inability to work within the meaning of s 94(1)(c) of the SS Act during the assessment period.

The questions of law

27    As already noted, the appeal to this Court under s 44(1) of the AAT Act lies on a question of law only.

28    The applicant’s FANA to this Court identifies the questions of law on which his appeal lies as follows:

1.    The Tribunal erred in finding that there was insufficient evidence as it did in paragraph 75 to the effect that the impairment in Table 1 was not capable of being given an Impairment Rating.

2.    Whether the Tribunal erred in law in the application of Table 4 of the [Impairment Tables].

2.1    Whether the Tribunal’s application of Table 4 of the [Impairment Tables], particularly its decision to find the applicant suffered only mild spinal functional impact, lacks rational justification such that the decision was so unreasonable that no decision maker could have reasonably arrived at that decision.

(Emphasis added)

29    As is apparent, the first of these identified questions relates to the Tribunal’s application of “Impairment Table 1 – Functions requiring Physical Exertion and Stamina”. This impairment was given the shorthand label “fatigue” by the parties and by the Tribunal.

30    The second identified question related to the Tribunal’s application of Impairment Table 4 – Spinal Function.

The grounds of appeal

31    The grounds of appeal in the FANA focussed entirely on the Tribunal’s application of Table 4. However, the applicant’s outline of submissions filed on 1 June 2020, 11 days before the hearing of the appeal, also complained of the Tribunal’s application of Table 1 concerning fatigue.

32    In the oral submissions on the appeal, counsel for the applicant submitted that:

(a)    the Tribunal had failed to take into account at all Rule 7 in the Impairment Tables;

(b)    the consequence was that the Tribunal had not had regard to the information and opinion of Dr Middleton concerning the applicant’s fatigue and spinal function, in particular, the report of Dr Middleton of 7 February 2019;

(c)    the Tribunal had also failed to have regard to the JCA Report; and

(d)    the Tribunal’s decision was so manifestly unreasonable as not to be a proper discharge of the review function under s 43 of the AAT Act.

33    I took the first three of these submissions to be directed to the first of the stated questions of law and the fourth to the second. Counsel sought to establish the fourth by reference to some of the matters on which he had relied in relation to the first. Counsel for the Secretary did not submit that the applicant should be confined to the stated grounds of appeal.

The Impairment tables

34    Impairment Table 1 provides (relevantly):

35    Impairment Table 4 provides (relevantly):

36    The application of these Tables was discussed in some detail by Bromberg J in Sesalim v Secretary, Department of Social Services [2018] FCA 1159; (2018) 75 AAR 476 at [17]-[23]. I respectfully agree with his Honour’s analysis. As Bromberg J noted, the assessment of a person’s functional impairment in accordance with the Tables is not a mechanical task amenable to a precise answer, at [17]. It is instead a task which involves a broad evaluative judgment on which reasonable minds may differ, and perhaps substantially so, at [17]. Further, it is appropriate for the decision-maker to have regard to the structure of the Tables as a whole as each rating is located on a spectrum of the severity of an impairment. The examples given for each rating are not to be understood as definitional. Instead they are illustrative in the sense that they provide examples of the extent of the functional difficulties which a person who falls within that particular rating may be expected to have in relation to the stated activities, at [20].

Regard to Rule 7

37    The applicant is correct in submitting that the Tribunal made no reference to Rule 7, as set out earlier in these reasons. However, contrary to the applicant’s submission, this does not mean that the Tribunal failed to have regard to Rule 7 or to comply with it in the review.

38    As previously noted, Rule 7 required the Tribunal to have regard to certain matters, in particular, the reports of any specified health practitioner (which included “an appropriately qualified medical practitioner” and an applicant’s “treating doctor”) and any work capacity information. The following reasons indicate that the Tribunal did have regard to both matters and that the applicant’s submission that the Tribunal did not have regard to the opinion of Dr Middleton stated in his report of 7 February 2019 and to the content of the JCA Report cannot be accepted.

39    Dr Middleton’s report of 7 February 2019 stated (relevantly):

This letter is written in support of Gerhard Prahauser who is applying for [the] Disability Pension. His diagnosis is generalised osteo-arthritis, involving his neck, lower back, knees, ankles and fingers. This condition is permanent, and there is no treatment which will change the level of impairment caused by the condition. At the time of his Disability Pension claim, ie, June 2017, his condition had been fully diagnosed and treated, and had stabilised. There has been no significant change since. He has been unable to work for 15 hours per week.

I submit the following information for the purpose of applying the Impairment Tables.

(1)    Impact on activities requiring physical exertion or stamina:

Fatigues easily;

Limits his walking, needs to rest after short walks;

Limits his ability to carry out household duties such as vacuuming, making bed, mowing lawn.

My estimate: 5 or 10 points

…

(4)    Impact on activities involving spinal function:

Pain and stiffness on bending forward eg to wash face;

Pain and limited range of movement on turning neck;

Difficulty dressing;

Pain sitting on certain chairs;

Pain on arising;

Pain and difficulty with all household chores;

Pain during sexual intercourse;

Headaches often associated with these pains;

Morning stiffness, especially in fingers.

My estimate: 20 points

…

Mr Prahauser’s condition affects many parts of his body, and has a significant impact on his ability to live a normal life.

(Emphasis in the original)

40    In a section of his reasons entitled “Medical Evidence”, the Tribunal member summarised the material provided by Dr Middleton, including his medical certificates and reports. In relation to Dr Middleton’s report of 7 February 2019, the Tribunal said:

Dr Middleton’s wrote a report on 7 February 2019 which confirmed the diagnosis of generalised osteoarthritis involving the neck, lower back, knees, ankles and fingers. Dr Middleton wrote that the condition is permanent and no treatment will change the level of impairment. He considered that the condition had been fully diagnosed treated and stabilised and the time of the DSP claim without any significant, subsequent change. Dr Middleton’s report included his assessment of the appropriate ratings under the Impairment Tables. His estimate for impact on activities using hands or arms was 5 or 10 points, the estimate for impact on activities involving legs and feet was 5 or 10 points, the estimate for impact on activities involving spinal function was 20 points. In relation to other conditions Dr Middleton estimated the impact on activities requiring physical exertion or stamina was 5 or 10 points while his estimate for impact on bladder continence was 5 points.

(Citations omitted)

41    When considering each of the impairments claimed by the applicant, the Tribunal member referred specially to Dr Middleton’s report of 7 February 2019. In relation to the spinal impairment, the Tribunal member said:

[64]    Dr Middleton’s report dated 7 February 2019 confirms that the condition involving the lower limbs was fully diagnosed, treated and stabilised during the assessment period.

[65]    Noting all of the medical evidence the Tribunal considers that Mr Prahauser’s neck condition can be regarded as fully diagnosed, treated and stabilised in the assessment period.

42    The reference in [64] to Dr Middleton’s opinion concerning the applicant’s “lower limbs” appears to be a mistake, especially as a paragraph in exactly the same terms appears in that part of the Tribunal’s earlier reasons concerning the impairment of the applicant’s lower limbs. It may be taken that the Tribunal member was intending in [64] to refer to the applicant’s spinal condition. Counsel for the applicant said that he did not take any issue with [64] in the Tribunal’s reasons.

43    In relation to the fatigue impairment, the Tribunal said:

[73]    Dr Middleton’s report dated 7 February 2019 refers to an impact on activities requiring physical exertion or stamina. Dr Middleton noted that Mr Prahauser fatigued easily which resulted in limitations on his walking and his ability to carry out various household duties.

44    Earlier in the reasons, at [34], the Tribunal member had noted the estimates made by Dr Middleton of the appropriate ratings under the Impairment Tables for the impacts on the applicant’s activities:

    hands or arms – 5 or 10 points;

    legs and feet – 5 or 10 points;

    spinal function – 20 points;

    physical exertion or stamina – 5 or 10 points; and

    bladder continence – 5 points.

45    Having regard to these matters, it is plain that the applicant’s contention that the Tribunal did not comply with the obligation imposed by Rule 7 by failing to have regard to Dr Middleton’s opinions cannot be sustained. The Tribunal did have regard to those matters. The applicant may be dissatisfied with the Tribunal’s evaluation of Dr Middleton’s opinions in the circumstances of the case and consider that the Tribunal could have made greater use of those opinions but that does not, of itself, give rise to a question of law. The evaluation of the evidence was a matter for the Tribunal. The fact that the Tribunal member did not accept all of Dr Middleton’s opinions does not mean that he did not have regard to them. As counsel for the Secretary submitted, a requirement to take a medical opinion into account is not the same as a requirement to adopt that opinion.

46    Some of the submissions made on the applicant’s behalf hinted at a complaint about the adequacy of the Tribunal’s reasons or about the adequacy of the disclosure of the Tribunal’s reasoning process in the reasons, but no ground to that effect was raised in the FANA.

47    For similar reasons, the applicant’s contention that the Tribunal member did not have regard, as required by Rule 7, to the JCA Report cannot be sustained. The Tribunal did have regard to the JCA Report, as the member referred to it specifically in [53] in relation to the assessment of the applicant’s upper limb impairment, in [60] in relation to the assessment of the applicant’s lower limb impairment, and in [67] in relation to the applicant’s spinal impairment.

48    Accordingly, even if a question of law is raised by reference to Rule 7, it does not avail the applicant. The applicant does not establish any error in approach. The submissions were more directed to a merits review of the Tribunal’s decision, which is beyond this Court’s jurisdiction on an appeal under s 44.

The finding of fatigue

49    As noted earlier, the Tribunal concluded that the evidence about the applicant’s fatigue was not sufficient to conclude that it was fully diagnosed, treated and stabilised, with the consequence that no impairment rating could be given.

50    The complaint that the Tribunal erred in law in concluding that the evidence about the applicant’s fatigue was not “sufficient” to conclude that the condition was “fully diagnosed, treated and stabilised” faces the difficulty that, ordinarily, the evaluation of the evidence and its sufficiency is a matter for the Tribunal. This was not a case in which the Tribunal found that there was no evidence supporting the relevant conclusion. It was a finding about the sufficiency of the evidence, a conclusion which depended very much on the Tribunal’s own evaluation of the evidence. The Tribunal could err in law in the manner of its approach to the evaluation, but the applicant did not allege an error of the kind. His complaint concerned only the outcome of the Tribunal’s evaluation. Providing that a factual finding of the Tribunal does not involve a mixed issue of fact and law and is not affected by an error of law, it is not reviewable by this Court on appeal under s 44(1): Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315. The Court cannot usurp the fact-finding function of the Tribunal: Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320 at [19].

51    However, as will be seen, even if the appeal does raise the first of the claimed questions of law, it cannot succeed.

52    Counsel submitted first that the finding that the evidence was not sufficient to conclude that the condition of fatigue was fully diagnosed, treated and stabilised had not been open to the Tribunal. He referred in this respect to the opinion of Dr Middleton expressed in his report of 7 February 2019, set out earlier in these reasons. Dr Middleton had reported that the applicant fatigues easily, that his fatigue limits his walking, requires him to rest after short walks, and limits his ability to carry out household duties such as vacuuming, making his bed, and mowing his lawn. Dr Middleton had given an estimate of 5 or 10 points applying Impairment Table 1.

53    The Tribunal member referred explicitly to this passage in Dr Middleton’s report. The Tribunal member noted, however, that the applicant’s oral evidence in the Tribunal was to different effect. The Tribunal recorded:

[74]    Mr Prahauser’s evidence to the Tribunal did not paint a bleak picture about tiredness and loss of stamina. Indeed, Mr Prahauser said he sometimes gets a moment of fatigue “every now and then,” maybe on average every fortnight or month and he also mentioned that if he gets up too quickly he suffers from dizziness.

(Emphasis in the original)

54    This was an accurate summary of the applicant’s evidence, as is indicated by the following passage in the transcript:

 Member:    Do you suffer from general tiredness or fatigue in any way?

Witness:    Yes, sometimes I get a fatigue moment, not very often but every now and then.

Member:    Okay. Now and then, can you just give me an idea? Are we talking weekly or some days are better than other days, that sort of thing?

Witness:    Yes. If I put a number on it maybe average every fortnight or maybe every month. You know, it’s just like my condition, so if I get up too quickly I might get dizzy and not getting enough blood into by brain or I don’t know what it is.

Member:    Okay.

Witness:    I’ve got like black for in front of the eyes for a moment, not for a minute or so and sit down and relax then it goes back again.

55    The only limitations which the applicant had reported in connection with vacuuming occurred when he was describing his upper limb and neck restrictions, and he attributed those restrictions to the pain which he experienced, and not to fatigue.

56    Having regard to that evidence, it would have been unsurprising had the Tribunal declined to give a rating of even 5 points on account of the applicant’s fatigue. However, the Tribunal did not adopt that line of reasoning. It said instead that it considered the evidence about the fatigue insufficient to conclude that it was “fully diagnosed, treated and stabilised”.

57    It is true that in his report of 7 February 2019, Dr Middleton said that the applicant’s condition in June 2017 had been “fully diagnosed and treated, and had stabilised”. He did not, however, offer a diagnosis of the seemingly transitory symptoms reported by the applicant, let alone indicate treatment provided for those symptoms and the applicant’s progress under that treatment. That being so, there was material on which the Tribunal member could conclude that, with respect to the condition of fatigue, the evidence was insufficient to conclude that the condition had been fully diagnosed, treated and had stabilised.

58    Accordingly, this submission of the applicant (if encompassed by the questions of law identified in the FANA), does not succeed.

59    This means that the first three of the contentions made in the oral submissions fail.

Legal unreasonableness

60    The power of review being undertaken by the Tribunal was that bestowed on it by s 179 of the Administration Act and by s 25 of the AAT Act. For the purpose of its review, the Tribunal could exercise all the powers and discretions conferred on the decision-maker under the Administration Act. It could make a decision affirming, varying or setting aside the decision under review and, either make a decision in substitution for the decision set aside or remit the matter for reconsideration in accordance with any directions or recommendations (s 43(1) of the AAT Act).

Relevant principles

61    In the context of judicial review, it is now accepted that, in the absence of any indication to the contrary, a statutory decision making power is subject to an implied condition that the power be exercised reasonably, with the consequence that a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have made the decision or have taken the action will invalidate that exercise: Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at [23]-[26] (French CJ), at [63] (Hayne, Kiefel and Bell JJ), at [88]-[92] (Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, (2018) 264 CLR 541 at [51]-[52] (Gageler J).

62    In support of the submission that the Tribunal’s exercise of the power of review was subject to the implied condition of reasonableness, counsel for the applicant referred to Kelk v Australian Postal Corporation [2014] FCA 147, in which Greenwood J at [173]-[178] reviewed a number of the authorities bearing upon legal unreasonableness in the context of identifying a question of law for the purposes of s 44 of the AAT Act. His Honour determined the appeal in that matter on the basis that the implied condition was applicable. See also AZAFG v Minister for Immigration and Border Protection [2016] FCA 81; (2016) 242 FCR 566 at [73]-[76] (Griffiths J).

63    Counsel for the Secretary did not contest the applicant’s contention that decision making by the Tribunal in the exercise of its power of review is subject to the implied condition of reasonableness. The submissions on the hearing of the application were made on the basis that the principle is applicable.

64    The authorities in the judicial review context have established a number of principles concerning legal unreasonableness. These include:

(a)    a decision made in the exercise of a statutory power will be unreasonable in the legal sense if it lack an evident and intelligible justification: Li at [76]. That will be so in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 (so unreasonable that no reasonable decision-maker could have come to it), although that does not exhaust the circumstances in which a finding of legal unreasonableness may be made: SZVFW at [10];

(b)    a conclusion of legal unreasonableness may also be reached when an underlying jurisdictional error in the decision making process is identified: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44];

(c)    legal unreasonableness is not amenable to minute and rigidly-defined characterisation or a precise textual formulary: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [10], [62];

(d)    the indicia of legal unreasonableness must be found in the scope, subject and purpose of the particular statutory provisions in issue and will inevitably be fact dependent: Singh at [48];

(e)    when there are reasons for the exercise of a power, it is those reasons to which the Court should look in order to understand why the power was exercised as it was: Singh at [47]. The “intelligible justification” must lie within the reasons which the decision-maker gave for the exercise of the power – at least, when a discretionary power is involved: ibid. That is because it is the decision-maker in whom the Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform the review by a supervising court: ibid;

(f)    normally, the issue of unreasonableness is the legal sense is to be assessed by reference to the circumstances existing at the time of the decision: Plaintiff S53-2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCA 42 at [8]. However, in this case, the Tribunal was making the assessment of the extent of the applicant’s impairments with respect to the period from 26 June 2017 to 25 September 2017. It is the Tribunal’s assessment of the applicant’s condition as it was during that period which is to be considered; and

(g)    the standard of legal unreasonableness has been described as “demanding”: TTY167 v Republic of Nauru [2018] HCA 61; (2018) 362 ALR 246 at [24] and as “stringent”: SZVFW at [11] or involving “stringency”: Li at [108]-[115]. This is because the courts do not lightly interfere with the exercise of statutory powers involving exercises of discretion: SZVFW at [11] or, as in this case, involving elements of evaluation and impression, “The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”: Li at [30] (French CJ).

65    In Stretton, Wigney J summarised the confined nature of review on the ground of legal unreasonableness by saying:

[92]    The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision … or if the decision is within the “area of decisional freedom” of the decision-maker …, it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently …

(Citations omitted)

66    As Allsop CJ noted in Stretton at [21]:

… The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion …

67    In the present case, the submissions of counsel for the applicant were directed to the outcome of the Tribunal’s review, rather than to the reasoning process it adopted. Counsel submitted in particular that the Tribunal’s assessment of 5 impairment points for the applicant’s spinal function lacked a “rational and intelligible justification”.

68    Accordingly, it is necessary to have regard to all the evidence before the Tribunal concerning the impairment of the applicant’s spinal (neck and back) function.

The evidence of impairment of spinal function

69    Counsel referred first to the applicant’s oral evidence before the Tribunal as to the impairment of his spinal function. As already noted, the Tribunal member regarded the applicant’s evidence as “clear, consistent and honest”. The applicant had said that:

(a)    if he lifted something heavier than a shopping bag, he gets pain like a cramp in his lower back (“like if there was a needle somewhere in between your bones, like – muscles”) which inhibits him bending down and sitting down;

(b)    he is able to adopt a comfortable sitting posture so that he can read for an hour or so at a time. Even so, he has to move frequently but “that’s not a big deal”;

(c)    his ability to lift both arms overhead is restricted, with the consequence that he limits his usage of the higher cupboards in his kitchen and makes use of a step ladder (instead of reaching) when he has to access those cupboard;

(d)    he takes care to bend carefully and slowly because of the prospect of experiencing pain into his back if he engages in quick movements. He is able to put items into the dishwasher with the drawer out “so it’s not a big deal to do that. So I don’t have problems with the dishwasher”;

(e)    he engages in activities such as mopping floors “very slowly and very carefully” in order to avoid pain;

(f)    rotating his head, as when in a motor vehicle, is restricted to about 45 degrees, with the effect that if wishes to turn more than that he moves his shoulders; and

(g)    dressing himself can be painful, for example, getting into trousers or putting on socks.

70    Secondly, counsel referred to the JCA Report. He referred to the following aspects of that Report:

Client reported that he has neck pain, and stiffness which started 12-18 months ago and became worse in 2016. The client stated that the stiffness is mostly in forward and back movement and that side to side is not too bad … Regarding back pain,

The client reported that he has low back pain most of the time, and that moving and bending are very painful, and that if he has to stand more than ten minutes he get bad back pain, and that sitting is ok, but he has to get up every now and then to move.

71    Next, counsel referred to Dr Middleton’s report of 7 February 2019. The extract relevant to the assessment of the applicant’s spinal function has been set out earlier in these reasons.

72    Finally, counsel referred to the report of Dr Vo of 11 November 2019 in which Dr Vo expressed the following opinion:

In my opinion, given that his low back and neck conditions are chronic with underlying degenerative changes, his presentation would be considered as meeting 20 points under Table 4 (Spinal Function) under (1)(a) and (b) of the Impairment Tables for DSP application purposes.

The Tribunal’s assessment

73    The Tribunal accepted Dr Middleton’s opinion that the applicant’s neck condition could be regarded as “fully diagnosed, treated and stabilised in the assessment period”.

74    The Tribunal member then quoted the requirements for a rating of 5, which I have set out earlier. The description indicated that that rating was available if a person has a mild functional impact on activities involving spinal function, and gave the following examples:

(a)    difficulties in activities over head height which involved the person looking upwards;

(b)    activities bending to knee level and straightening up again without difficulty; or

(c)    difficulties in turning their trunk or moving their head (for example, to look to the sides or upwards).

75    The Tribunal member summarised the evidence which the applicant had given to the Tribunal as indicating that he does have “some difficulty” in each of the activities listed in the descriptors for a mild functional impact, at [68].

76    The Tribunal member also referred to the JCA Report. The manner in which the Tribunal did so indicates that it accepted and relied upon that assessment.

77    The JCA Report commenced by noting that the applicant’s neck disorder was verified by medical evidence and fully diagnosed, treated and stabilised. Then, under the heading “Remarks” it continued:

Dr Middleton, GP, in Medical Certificate (Mx) dated 23.6.2017 notes Osteoarthritis neck, – Left arm weakness, onset 2016. Letter of 23.6.17 notes generalised Osteoarthritis causing pressure on nerves in the neck resulting in left arm weakness and loss of sensation.

MRI cervical spine, 15.5.17, Dr Sandy Patel, notes mild to moderate degenerative changes, moderate narrowing of some of the left sided foramina however no indication of foraminal stenosis.

Report by Dr James Leyden, Neurologist 6.6.17, notes that the MRI cervical scan showed osteoarthritis with osteophyte complexes between C4/C5, C5/C6 and C6/C7 with potential for nerve root irritation in different positions, and that this most likely causes the symptoms. Nerve conduction studies were noted to be normal.

Symptoms noted by GP: Left arm weakness and sensory loss (mx 23.6.17).

Dr James Leyden, Neurologist 6.6.17, noted symptoms as “intermittent altered sensations down the left arm and intermittent feeling of weakness in the left finger grip.

Client reported that he has neck pain, and stiffness which started 12-18 months ago and became worse in 2016. The client stated that the stiffness is mostly in forward and back movement and that side to side is not too bad. He stated that Nurofen helps him sleep.

He stated that he is right dominant, and has pain in his left fingers and a whole left arm sensation.

78    The JCA Report then continued:

Impact noted by Doctor: Dr Leyden, 6.6.17, noted that the symptoms, ie "intermittent altered sensations down the left arm and intermittent feeling of weakness in the left finger grip" "are relatively minor but likely to remain persistent”.

There is no confirmation of neck pain or stiffness or loss of movement in the cervical spine ie neck. The client reported that while sitting in the interview his pain level in his neck is 0/10, and pain in his back was 0/10, but pain in the arm was 6-7 / 10, and pain in the fingers 5-6 / 10.

Past Treatment: analgesia (Dr Middleton, 23.6.17). Client stated that he saw his GP early 2017 and then Dr Leyden who said that there is nothing can be done about it.

Current Treatment noted in evidence: analgesia (Dr Middleton, 23.6.17). The client stated that he has not had physiotherapy.

Future Treatment noted in evidence: Dr Leyden, 6.6.17, suggested that the client continue with regular gentle exercise, and that steroid injections were not indicated.

Prognosis:

GP notes in Mx of 23.6.17 that the condition is permanent and likely to persist.

Neurologist Dr J. Leyden, indicated that the symptoms are minor but likely to remain persistent. The condition is assessed as fully diagnosed, Treated and Stabilised (FDTS).

Contributing assessor Helen, Rehabilitation counsellor noted this condition to be FDTS [fully diagnosed treated and stabilised].

(Emphasis added)

79    Under the heading “Impairment”, the JCA Report continued:

Functional Impact:

There is a mild functional impact on activities using hands or arms.

GP notes osteoarthritis of the neck affects the left arm, with left arm weakness (Dr Middleton, 23.6.17). The client stated that he is right dominant, and has pain in his left fingers and a whole left arm sensation.

Impact noted by Neurologist, Dr Leyden, 6.6.17, noted that the symptoms, ie "intermittent altered sensations down the left arm and intermittent feeling of weakness in the left finger grip" "are relatively minor but likely to remain persistent". Neither the GP, nor the neurologist have confirmed any symptoms or impacts in the right arm from the neck condition. As it is the left arm that is affected, the client would be able to do some tasks with his right hand.

(1)    The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)    picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag); The client reported that he is able to do this, but one hand only.

(b)    handling very small objects (e.g. coins); the client reported that he has difficulty with clips on the clothesline.

  (c)    doing up buttons; He reported difficulty with this.

  (d)    reaching up or out to pick up objects. The client reported that this is possible.

On the basis of neurologist confirmation of symptoms/ impacts, ie intermittent weakness and altered sensations in the arm, a mild impairment is applied on the basis of 1:a, b, c.

(Emphasis added)

80    The T Documents before the Tribunal included a later JCA Report dated 23 March 2018 following a further assessment of the applicant on 13 March 2018. The Tribunal did not refer to this later JCA Report but it was not suggested on the hearing that any error of law was occasioned thereby.

Other material

81    The T Documents included other material which was potentially relevant. In a letter dated 23 June 2017, Dr Middleton said:

This man suffers from generalized osteoarthritis which affects his mobility. This also is causing pressure on nerves in his neck, resulting in left arm and hand weakness and loss of sensation. This situation will likely be permanent, and renders him unable to work.

82    The report of Dr Leyden to which the JCA Report referred was in the T Documents. It contained the content recorded in the JCA Report.

83    In a letter of 5 March 2018, Dr Middleton confirmed that the applicant had been an occasional patient of his for 20 years but had seen him more frequently in the previous 12 months. He confirmed the diagnosis of osteoarthritis in the applicant’s cervical spine with associated left sided nerve root irritation and said that the applicant also has symptoms of osteoarthritis in his lower back and knees. Dr Middleton then said that the applicant’s condition “causes numerous significant symptoms”, which he listed as follows:

Neck pain with associated headaches

Arm pains

Cramps in fingers

Dropping things

Loss of fine motor skills

Unable to sit or stand for a long period

Back pains

Unsteady on his feet; uses a walking stick

Riding on public transport causes discomfort

Limited use of his left hand

Needs frequent analgesics

84    The Tribunal also had other medical reports and documents but these were dated well after the assessment period applicable in the applicant’s case. It was not suggested that they were of assistance presently.

Consideration

85    I note again the stringent standard to be satisfied before a finding of legal unreasonableness can be made. The question in a case like the present is, as Allsop CJ noted in Stretton, whether a decision-maker could reasonably have come to the decision under review. As was noted by Bromberg J in Sesalim, that decision required necessarily a “broad evaluative judgment” about which reasonable minds could differ. Accordingly, the applicant must get over a high hurdle in order to establish legal unreasonableness.

86    In this case, there was some evidence before the Tribunal which could have supported an assessment rating of 10 in respect of the applicant’s spinal function. However, there was other evidence which indicated that an assessment rating of 5, in accordance with the criteria in the Tables set out earlier in these reasons, would be appropriate. For example, the Tribunal had the report of the neurologist, Dr Leyden, of 6 June 2017 in which he described the applicant having “intermittent altered sensations down the left arm and [an] intermittent feeling of weakness in the left finger grip” but described these as “relatively minor”. The JCA Report recorded the applicant’s spinal condition as having “mild functional impact” on activities using hands or arms. The JCA Report also noted that the applicant was right hand dominant and had not reported symptoms or impacts in his right arm. It considered that the applicant was able to do some tasks with his right hand. The JCA Report assessed the applicant’s functional impairment resulting from the cervical spine condition as “mild”.

87    It is true that the report of Dr Middleton suggested that the impairment could have been assessed at a greater level. However, it was for the Tribunal to evaluate the evidence and there was material before it upon which it could make the assessment which it reached.

88    I refer again to the criteria for the assessment ratings of 5 and 10 contained in Table 4 set out earlier in these reasons. The first criteria for a rating of 10 is that the person is “able to sit in or drive a car for at least 30 minutes”. The manner in which this is expressed raises the query of whether the word “able” was intended to be “unable” but that query can be put to one side. If the person is able to sit in or drive a car for at least 30 minutes, then at least one of the four matters must apply. Of those, that which seems most open to the applicant is “the person has difficulty moving their head to look in all directions (eg turning their head to over their shoulder)”. The applicant did report in general terms a difficulty of that kind. However, even that assessment involves some evaluation of the nature and extent of the restriction. That evaluation was for the Tribunal member. I note again that the examples of the impairments in the Tables are not intended to be definitional, but are instead illustrative. Their application involves, almost inevitably, assessments on which reasonable minds may differ.

89    In my opinion, the contents of the JCA Report and of Dr Leyden’s report mean that it cannot be concluded presently that the Tribunal could not reasonably have come to the conclusion which it did. It follows that the applicant has not shown that the Tribunal’s decision was vitiated by an error of law. For this reason, the appeal to this Court must fail.

90    Before leaving the matter, I add that it may have been desirable for the Tribunal to have explained in greater detail why it considered that the applicant did not satisfy the criteria for a rating of 10 in respect of the impairment of his spinal function. Had the Tribunal done so, it is likely that some of the issues agitated on the appeal may have been obviated.

91    For the reasons given above, the appeal is dismissed. The applicant is to pay the costs of the Secretary, to be taxed in default of agreement.

Associate:

Dated:    17 November 2020