Federal Court of Australia
Sesalim v Secretary, Department of Social Services [2020] FCA 1815
ORDERS
Applicant | ||
AND: | SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs of the proceeding, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
3. Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the respondent’s costs.
4. In the absence of any agreement:
(a) within 21 days, the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);
(b) within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and
(c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MOSHINSKY J:
Introduction
1 The applicant appeals on questions of law from a decision of the Administrative Appeals Tribunal (the Tribunal), General Division, dated 8 January 2020 relating to his entitlement to a disability support pension under the Social Security Act 1991 (Cth) (the Tribunal Decision). The Tribunal affirmed an earlier decision of the Social Services and Child Support Division of the Tribunal that had affirmed an earlier decision of an authorised review officer that the applicant’s disability support pension be cancelled. The Tribunal concluded, in summary, that the applicant was not entitled to a disability support pension as at 10 July 2015, which was the relevant date for the purposes of the Tribunal Decision.
2 By his notice of appeal dated 3 February 2020 in this proceeding, the applicant (who is not legally represented) raises three questions of law and relies on six grounds in relation to the Tribunal Decision. The “questions of law” in the notice of appeal are expressed as contentions rather than questions. Expressed as questions, they would read as follows:
(a) Did the Tribunal fail to consider relevant evidence?
(b) Did the Tribunal incorrectly interpret a statute relevant to the proceeding?
(c) Did the Tribunal deny the applicant procedural fairness?
3 For the reasons that follow, I have concluded that the applicant has not established any error of law by the Tribunal. It follows that the appeal is to be dismissed.
Procedural background
4 In this section of these reasons, I set out the procedural background to the Tribunal Decision.
5 On or about 20 January 2014, the applicant was granted a disability support pension.
6 On 10 July 2015, the Department of Human Services cancelled the applicant’s disability support pension on the grounds that he was no longer eligible for the pension.
7 By letter dated 13 July 2015, the Department informed the applicant that, because a medical review had resulted in the cancellation of his disability support pension, he was not eligible for unlimited “portability” under s 1218AAA of the Social Security Act.
8 On 16 July 2015, an authorised review officer of the respondent (the Secretary) affirmed the decision to cancel the applicant’s disability support pension.
9 The applicant applied to the Social Services and Child Support Division of the Tribunal for review of that decision.
10 On 1 September 2015, the Social Services and Child Support Division of the Tribunal affirmed the decision of the authorised review officer.
11 The applicant applied to the General Division of the Tribunal for review of the decision of the Social Services and Child Support Division.
12 On 22 March 2016, the General Division of the Tribunal affirmed the decision under review.
13 The applicant appealed on a question of law to this Court from the decision of the General Division of the Tribunal dated 22 March 2016.
14 On 7 August 2018, Bromberg J upheld the applicant’s challenge to the decision of the Tribunal dated 22 March 2016: Sesalim v Secretary, Department of Social Services (2018) 75 AAR 476; [2018] FCA 1159 (Sesalim). On 11 September 2018, Bromberg J made orders that the decision of the Tribunal dated 22 March 2016 be set aside and that the matter be remitted for redetermination in accordance with law by another member of the Tribunal: Sesalim v Secretary, Department of Social Services (No 2) [2018] FCA 1401.
15 On 27 August 2019, a hearing took place before the General Division of the Tribunal (differently constituted).
16 On 8 January 2020, the General Division of the Tribunal made the Tribunal Decision. The Tribunal decided to affirm the decision under review (namely, the decision of the Social Services and Child Support Division of the Tribunal dated 1 September 2015). The Tribunal concluded that the applicant did not qualify for the disability support pension on 10 July 2015 (being the date of cancellation of the disability pension). The Tribunal also concluded that the applicant did not satisfy the requirements for unlimited portability under s 1218AAA.
17 Although it is not directly relevant for present purposes, I note for completeness that on 1 April 2016 the applicant made a separate application for a disability support pension. In a decision dated 25 January 2017, the General Division of the Tribunal concluded that the applicant qualified for the disability support pension as at the date of that application, namely 1 April 2016. The Secretary appealed on a question of law to this Court from the Tribunal decision. That appeal was heard by Bromberg J at the same time as the applicant’s appeal that is referred to above, and is also dealt with in the judgments referred to above. Justice Bromberg dismissed the Secretary’s appeal in relation to the Tribunal decision dated 25 January 2017.
The relevant provisions
18 The principal relevant provisions are set out in the Social Security Act and in a determination made by the Minister pursuant to that Act. Although the provisions are lengthy, it is necessary to set them out in some detail to provide context for the Tribunal Decision and the matters raised by the applicant on appeal.
19 Section 94 of the Social Security Act deals with qualification for the disability support pension. It relevantly provides as follows:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and …
(Emphasis added.)
20 The expression “Impairment Tables”, which is used in s 94(1)(b), is defined in s 23 to mean the tables determined by an instrument under s 26(1). Section 26(1) provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension. Section 26(3) provides in part that the Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1).
21 On 6 December 2011, pursuant to s 26(1) of the Social Security Act, the Minister made the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables set out in that determination constitute the “Impairment Tables” for the purposes of the Social Security Act and will be referred to in these reasons as the Impairment Tables.
22 Section 3 of the Determination deals with interpretation, and contains a number of definitions. These include:
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.
23 Part 2 of the Determination, which comprises ss 5-11, sets out a series of rules for applying the Impairment Tables. Section 5 provides:
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.
24 Section 6 of the Determination provides:
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.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
25 Section 7 of the Determination provides:
7 Information that must be taken into account in applying the Tables
(1) 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.
(2) A person may be asked to demonstrate abilities described in the Tables.
26 Section 10 of the Determination provides:
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.
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
27 Section 11 of the Determination deals with assigning an impairment rating and provides in part:
11 Assigning an impairment rating
…
(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.
…
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.
28 The Impairment Tables are located in Part 3 of the Determination. There are 15 tables, of which two were considered by the Tribunal: Table 4 (Spinal Function) and Table 5 (Mental Health Function). Despite their length, it is necessary to set these tables out in full. They are in the following terms:
Table 4 – Spinal Function
Introduction to Table 4 |
• Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck. • The diagnosis of the condition must be made by an appropriately qualified medical practitioner. • Self-report of symptoms alone is insufficient. • There must be corroborating evidence of the person’s impairment. • Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following: o a report from the person’s treating doctor; o a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine); o a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury. • In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2. |
Points | Descriptors | ||
0 | There is no functional impact on activities involving spinal function. | ||
(1) | The person can: | ||
(a) | bend down to pick a light object off the floor (e.g. a piece of paper); and | ||
(b) | turn their trunk from side to side; and | ||
(c) | turn their head to look to the sides or upwards. | ||
5 | There is a mild functional impact on activities involving spinal function. | ||
(1) | The person has some difficulty in: | ||
(a) | activities over head height (e.g. activities requiring the person to look upwards); or | ||
(b) | bending to knee level and straightening up again without difficulty; or | ||
(c) | turning their trunk or moving their head (e.g. to look to the sides or upwards). | ||
10 | There is a moderate functional impact on activities involving spinal function. | ||
(1) | The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies: | ||
(a) | the person is unable to sustain overhead activities (e.g. accessing items over head height); or | ||
(b) | the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or | ||
(c) | the person is unable to bend forward to pick up a light object placed at knee height; or | ||
(d) | the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair). | ||
20 | There is a severe functional impact on activities involving spinal function. | ||
(1) | The person is unable to: | ||
(a) | perform any overhead activities; or | ||
(b) | turn their head, or bend their neck, without moving their trunk; or | ||
(c) | bend forward to pick up a light object from a desk or table; or | ||
(d) | remain seated for at least 10 minutes. | ||
30 | There is an extreme functional impact on activities involving spinal function. | ||
(1) | The person is: | ||
(a) | completely unable to perform activities involving spinal function; or | ||
(b) | unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework). | ||
Table 5 – Mental Health Function
Introduction to Table 5 |
• Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment). • The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). • Self-report of symptoms alone is insufficient. • There must be corroborating evidence of the person’s impairment. • Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
• In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed. • The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence. • The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon. • For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate. |
Points | Descriptors | ||
0 | There is no functional impact on activities involving mental health function. | ||
(1) | The person has no difficulties with most of the following: | ||
(a) | self care and independent living; | ||
Example: The person lives independently and attends to all self care needs without support. | |||
(b) | social/recreational activities and travel; | ||
Example 1: The person goes out regularly to social and recreational events without support. | |||
Example 2: The person is able to travel to and from unfamiliar environments independently. | |||
(c) | interpersonal relationships; | ||
Example: The person has no difficulty forming and sustaining relationships. | |||
(d) | concentration and task completion; | ||
Example 1: The person has no difficulties concentrating on most tasks. | |||
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe. | |||
(e) | behaviour, planning and decision-making; | ||
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making. | |||
(f) | work/training capacity. | ||
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training. | |||
5 | There is a mild functional impact on activities involving mental health function. | ||
(1) | The person has mild difficulties with most of the following: | ||
(a) | self care and independent living; | ||
Example: The person lives independently but may sometimes neglect self-care, grooming or meals. | |||
(b) | social/recreational activities and travel; | ||
Example 1: The person is not actively involved when attending social or recreational activities. | |||
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments. | |||
(c) | interpersonal relationships; | ||
Example: The person has interpersonal relationships that are strained with occasional tension or arguments. | |||
(d) | concentration and task completion; | ||
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour. | |||
Example 2: The person has some difficulties completing education or training. | |||
(e) | behaviour, planning and decision-making; | ||
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation. | |||
Example 2: The person has slight difficulties in planning and organising more complex activities. | |||
(f) | work/training capacity. | ||
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings. | |||
10 | There is a moderate functional impact on activities involving mental health function. | ||
(1) | The person has moderate difficulties with most of the following: | ||
(a) | self care and independent living; | ||
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition. | |||
(b) | social/recreational activities and travel; | ||
Example 1: The person goes out alone infrequently and is not actively involved in social events. | |||
Example 2: The person will often refuse to travel alone to unfamiliar environments. | |||
(c) | interpersonal relationships; | ||
Example: The person has difficulty making and keeping friends or sustaining relationships. | |||
(d) | concentration and task completion; | ||
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book). | |||
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions). | |||
(e) | behaviour, planning and decision-making; | ||
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands. | |||
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement). | |||
Example 3: The person’s activity levels are noticeably increased or reduced. | |||
(f) | work/training capacity. | ||
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings. | |||
20 | There is a severe functional impact on activities involving mental health function. | ||
(1) | The person has severe difficulties with most of the following: | ||
(a) | self care and independent living; | ||
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker. | |||
(b) | social/recreational activities and travel; | ||
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues). | |||
(c) | interpersonal relationships; | ||
Example 1: The person has very limited social contacts and involvement unless these are organised for the person. | |||
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions | |||
(d) | concentration and task completion; | ||
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes. | |||
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects. | |||
(e) | behaviour, planning and decision-making; | ||
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed. | |||
(f) | work/training capacity. | ||
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness. | |||
30 | There is an extreme functional impact on activities involving mental health function. | ||
(1) | The person has extreme difficulties with most of the following: | ||
(a) | self care and independent living; | ||
Example 1: The person needs continual support with daily activities and self care. | |||
Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility. | |||
(b) | social/recreational activities and travel; | ||
Example: The person is unable to travel away from own residence without a support person. | |||
(c) | interpersonal relationships; | ||
Example: The person has extreme difficulty interacting with other people and is socially isolated. | |||
(d) | concentration and task completion; | ||
Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes. | |||
Example 2: The person has extreme difficulty in completing tasks or following instructions. | |||
(e) | behaviour, planning and decision-making; | ||
Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement. | |||
Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed. | |||
(f) | work/training capacity. | ||
Example: The person is unable to attend work, education or training sessions other than for short periods of time. | |||
29 Also relevant are the provisions of the Social Security Act dealing with portability. These are contained in Div 2 of Pt 4.2 of the Social Security Act. As s 1213 indicates, portability is concerned with receipt of the pension during a period of continuous absence from Australia. Subdivision A of that Division sets out the basic portability provisions. Subdivision B provides exceptions to those rules. Relevantly for present purposes, s 1218AAA, which falls within the Subdivision dealing with exceptions, provides in part:
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
(Emphasis added.)
30 The expression “severe impairment” is defined in s 94(3B) as follows:
Severe impairment
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
31 Provision for cancellation of the disability support pension is made by the Social Security (Administration) Act 1999 (Cth). Section 80(1) of that Act relevantly provides that if the Secretary is satisfied that a social security payment is being, or has been, paid to a person “who is not, or was not, qualified for the payment”, the Secretary is to determine that the payment is to be cancelled or suspended.
The Tribunal’s reasons
32 In this section of these reasons, I outline the reasons of the Tribunal for making the Tribunal Decision.
33 At [2]-[4], the Tribunal outlined the evidence before the Tribunal, noting that the applicant and a consulting psychiatrist, Associate Professor George Mendelson, gave oral evidence at the hearing before the Tribunal.
34 After setting out the applicable legislative provisions, the Tribunal identified the following two issues for consideration by the Tribunal:
(a) whether or not the applicant qualified for the disability support provision on 10 July 2015; and
(b) whether the applicant was entitled to unlimited portability on and from 10 July 2015.
35 The Tribunal made some observations about the applicant’s evidence at [18]-[23]. The Tribunal described the applicant’s life story as in many respects “quite remarkable” and referred to the many vicissitudes he had endured. After making some detailed comments about the applicant’s evidence in the witness box, the Tribunal stated that it “reluctantly concludes that the Applicant is an unreliable witness” (at [23]).
36 The Tribunal outlined, at [24]-[30], the applicant’s conditions based on the report prepared by the applicant’s treating general practitioner, Dr Olszewski dated 20 April 2015. The two conditions identified in the report were:
(a) anxiety and depression; and
(b) cervical canal stenosis.
37 The Tribunal noted that the conditions were described in different ways in some of the other documents before the Tribunal: at [28]-[30].
38 The Tribunal then considered each of the two conditions in turn.
39 The Tribunal considered the applicant’s anxiety and depression at [31]-[100] of its reasons. This section of the reasons was structured as follows:
(a) First, the Tribunal considered whether the condition had been “fully treated” and “fully stabilised” so as to satisfy the requirement of permanency under s 6(3) and (4) of the Determination: at [31]-[64]. (There was no issue that the condition had been “fully diagnosed”.) The Tribunal concluded, at [64], that the applicant’s anxiety and depression had not been fully treated and fully stabilised as at 10 July 2015.
(b) Secondly, the Tribunal considered whether, if (contrary to its earlier conclusion) the applicant’s condition satisfied the requirement of permanency, the applicant’s anxiety and depression had resulted in functional impairment under Table 5 (Mental Health Function) of the Impairment Tables: at [65]-[100]. The Tribunal in effect concluded, at [100], that, as at 10 July 2015, there was no functional impairment in relation to the activities identified in Table 5. In other words, the Tribunal assigned a zero rating to the applicant under Table 5 as at 10 July 2015.
40 The Tribunal considered the applicant’s cervical canal stenosis at [101]-[129] of its reasons. This section of the reasons adopted a similar structure to the earlier section:
(a) First, the Tribunal considered whether the condition had been “fully treated” and “fully stabilised” so as to satisfy the requirement of permanency: at [101]-[114]. (Again there was no issue that the condition had been “fully diagnosed”.) The Tribunal concluded, at [114], that the applicant’s condition had not been fully treated and fully stabilised as at 10 July 2015.
(b) Secondly, the Tribunal considered whether, if (contrary to its earlier conclusion) the applicant’s condition satisfied the requirement of permanency, the applicant’s cervical canal stenosis had resulted in functional impairment under Table 4 (Spinal Function) of the Impairment Tables: at [115]-[129]. The Tribunal concluded, at [129], that, as at 10 July 2015, there was a mild functional impact in relation to the activities identified in Table 4. The Tribunal therefore assigned a rating of 5 points to the applicant under Table 4 as at 10 July 2015.
41 The Tribunal concluded, at [130], that the overall impairment rating applicable to both the mental health and spinal conditions as at 10 July 2015 did not satisfy s 94(1)(b) of the Social Security Act. The Tribunal also concluded, at [131], that given the finding that the applicant’s conditions had not been fully treated and fully stabilised as at 10 July 2015, his impairment was not a “severe impairment” as defined in s 94(3B); therefore, all of the requirements of s 1218AAA for unlimited portability of the disability support pension had not been established.
The appeal on a question of law
42 By his notice of appeal, the applicant raises three questions of law and relies on six grounds in relation to the Tribunal Decision. The “questions of law” in the notice of appeal are expressed as contentions rather than questions:
1. The AAT failed to consider relevant evidence.
2. The AAT incorrectly [interpreted] a statute relevant to the proceeding.
3. The AAT denied procedural fairness to the Applicant.
43 These contentions can be expressed as questions as follows:
(a) Did the Tribunal fail to consider relevant evidence?
(b) Did the Tribunal incorrectly interpret a statute relevant to the proceeding?
(c) Did the Tribunal deny the applicant procedural fairness?
44 As discussed below, there is an issue whether the first question is a question of law, as is required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
45 The grounds relied on by the applicant are as follows:
1. In determining the status of the Applicant’s mental health condition, the Member overlooked evidences of impacts on the Applicant’s mental health condition since the date of the affirmed decision. In particular, proceedings due to the cancelation of the Applicant’s DSP including defamation were evident in the treating specialists reports.
2. The Member made an error of law by not considering the fluctuation in the Applicant’s medical condition.
3. The Member made an error of law in dismissing the evidences by the treating doctor and the treating specialists in favour of opinion by non-treating specialist.
4. The Member made an error of law by misinterpreting the role of the AAT when the member decided that the evidence in relation to the neurosurgeon opinion is not applicable because it was not available before the respondent cancelled the Applicant’s DSP.
5. The member denied the Applicant procedural fairness by making direction that the Applicant be examined by a medical specialist contracted by the Respondent.
6. The member denied the Applicant procedural fairness by putting the Applicant under unnecessary emotional stress during the hearing. Although evidences suggest that this can impact on the Applicant’s ability to self-represent.
46 Both parties provided written submissions in advance of the hearing. The applicant provided both a written submission (headed “Submission and Chronology”) dated 11 May 2020 and filed written submissions in reply dated 22 June 2020. In circumstances where the applicant is not legally represented, I have considered the matters raised in these submissions even if they go beyond the questions of law and grounds in the notice of appeal. That said, because the proceeding is an appeal on a question of law pursuant to s 44 of the AAT Act, only matters that give rise to a question of law can be raised within the framework of this proceeding.
47 At the hearing of the appeal, which took place using video-conferencing software (Microsoft Teams) due to the COVID-19 pandemic, the applicant made brief oral submissions and essentially relied on his written submissions.
48 I will now consider each of the three questions of law, and the associated grounds and submissions.
The first question of law
49 The first question of law identified in the notice of appeal is whether the Tribunal failed to consider relevant evidence. Grounds 1 and 3 appear to relate to this question. By these grounds it is contended, in summary, that:
(a) in determining the status of the applicant’s mental health condition, the Tribunal overlooked evidence of impacts on the applicant’s mental health condition since the date of the affirmed decision; and
(b) the Tribunal made an error of law in dismissing the evidence of the treating doctor and the treating specialists in favour of the opinion of a non-treating specialist.
50 The applicant’s contentions are developed in his written submissions: see, in particular, the applicant’s Submission and Chronology at paragraphs 13, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 32 and 35; and the applicant’s written submissions in reply at paragraphs 5, 6, 7, 10, 13, 14, 15. These submissions relate to both the applicant’s mental health condition and to his spinal condition.
51 As noted above, there is an issue whether the first “question of law” constitutes a question of law as required by s 44 of the AAT Act. The Secretary submits that, in reality, the applicant’s complaint concerns the weight the Tribunal gave various pieces of evidence, and that issues relating to the weight to be given to evidence do not give rise to a question of law, relying on Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472 (Edington) at [61].
52 I note that, in the passage from Edington relied on by the Secretary, Kenny and Lander JJ stated that, generally speaking, issues as to the weight to be given to evidence do not give rise to a question of law; their Honours’ statement was not unqualified. In the present context, the matters raised by the applicant, if established, could give rise to a question of law if, for example, they constituted a failure to take into account the information provided by health professionals specified in the relevant Table, as required by s 7(1) of the Determination (set out at [25] above). I therefore proceed to consider whether the matters raised by the applicant are established.
53 I will consider in turn each of the four sections of the Tribunal’s reasons (see [39]-[40] above).
54 First, in the section of the Tribunal’s reasons relating to the applicant’s mental health condition and the issue whether this was fully treated and fully stabilised as at 10 July 2015, the Tribunal undertook a careful and detailed examination of the medical evidence. The Tribunal considered:
(a) the medical report of the applicant’s treating general practitioner, Dr Chris Olszewski, which was lodged with the Secretary on 20 April 2015 (at [25], [33]);
(b) a report of a psychologist, Ms Lyn Bender of 12 October 2010 (at [37], [54]-[55]);
(c) a report of another psychologist, Mr Francois Joubert, of October 2012 (at [38]-[39], [56]-[57]);
(d) reports of Dr Gerke Witt, prepared on or about 20 January 2014, 16 June 2015 and 17 July 2015 (at [40]-[43], [58]-[59]);
(e) a report (or “Opinion”) prepared by a clinical psychologist engaged by the Secretary’s Health Professional Advisory Unit (HPAU), dated 29 June 2015 (the HPAU report) (at [44]);
(f) two reports prepared by a clinical psychologist, Dr Michael King of 28 April 2017 and 22 August 2018 (at [45]-[47], [60]);
(g) a report of Mr Bryan Kimpton of 23 April 2019 (at [48], [61]); and
(h) a report of Associate Professor Mendelson of 15 March 2019 (at [49]-[52], [53], [60], [62]-[63]).
55 In light of the Tribunal’s detailed analysis of the reports and other evidence, I am not satisfied that it failed to have regard to relevant evidence. Further, insofar as the Tribunal preferred the evidence of the non-treating specialist (Associate Professor Mendelson) over the treating doctor (Dr Olszewski) and the treating specialists (including Dr Witt) and certain other evidence, the Tribunal gave clear and cogent reasons for preferring the evidence of Associate Professor Mendelson at [53] and [62]-[63] of its reasons. The Tribunal stated:
53. The Tribunal considers that the Applicant’s mental health conditions including PTSD had not been fully treated and stabilised as at 10 July 2015. It does not accept the conclusion in the HPAU report. It prefers the conclusions of Associate Professor Mendelson which is to a considerable extent supported by the slightly more recent opinion of Mr Kimpton. The effect of the other reports referred to will also be considered. The opinion expressed in the HPAU report relied upon a conclusion that in the light of moderate improvements achieved with the treatments to date, it cannot be asserted that psychiatric treatment would result in a significant improvement in the next 24 months. This conclusion or opinion was arrived at after taking into account comments from Dr Olszewski and the contents of reports and observations made by Dr Witt. The Tribunal considers that neither Dr Olszewski nor Dr Witt went that far. They acknowledged that there had been no psychiatric intervention as at the relevant date. Dr Olszewski considered planned treatment could include medication and noted that his symptoms fluctuate. Dr Witt also noted that the Applicant’s symptoms tended to fluctuate and also noted there had been past treatment with medication and psychological therapy. Neither of them reached the conclusion that the HPAU report did; that psychiatric treatment would not result in significant improvement in the next 24 months. Both of them did not rule psychiatric treatment out. Given the extent of the Applicant’s problems that have been extensively recorded, it seems illogical, or perhaps unlikely, to reach a conclusion that psychiatric treatment would not be undertaken. To do otherwise would not exhaust all of the Applicant’s possible treatment options and maximise the potential treatment outcomes.
…
62. By way of conclusion, the Tribunal should make several other comments on why it prefers the opinions expressed by Associate Professor Mendelson both in his report, and oral evidence given to the Tribunal. As noted above, and for the reasons outlined there, the report was prepared specifically for the purposes of this application, after a detailed letter of instruction was given to him with a vast array of reports and other material. Associate Professor Mendelson also as noted previously, is a vastly experienced consultant psychiatrist of very high esteem. His evidence in the witness box was given professionally and impartially, understanding that his obligations as an expert witness were to the Tribunal not to the party calling him. He was an impressive witness. In both his report and his oral evidence he provided rationally based reasons for reaching the conclusion he did, that he considered the Applicant had not received optimum treatment for his conditions.
63. Associate Professor Mendelson concluded that optimum treatment in psychiatric terms involves a combination of medication and psychological therapies. He reached his conclusions also after considering established professional literature and guidelines which in his undoubted experience provided an appropriate basis for consideration of the optimum level of treatment within the requirements of the Act and the Impairment Tables. He also considered the other experts’ reports and explained why he disagreed, or otherwise differentiated from them, and the conclusions reached in them. After explaining with appropriate reasons, why he recommended a course of treatment, he opined that he would have expected such treatment to have led to significant amelioration of symptoms even if full remission had not been achieved. Importantly, he considered such recommendations to be further reasonable treatment. As described by him, the Tribunal finds the recommendation of psychiatric intervention and referral to the Psychological Trauma Recovery Centre at Austin Health is “reasonable treatment” available to the Applicant within the meaning of Clause (7) of the Impairment Tables. When an eminent consultant psychiatrist such as Associate Professor Mendelson expresses this opinion it is difficult to see why it should not be accepted. There is also really nothing in the other material in evidence before the Tribunal (or for that matter that emerged in cross examination of him) which strictly poses a challenge to his recommendations. For these reasons, the Tribunal prefers them over any other opinions that have been expressed, including insofar as they conflict with those reports of Bender, Joubert, Dr Witt and the contents of the HPAU.
56 It was open to the Tribunal to prefer the evidence of Associate Professor Mendelson for the reasons it gave. No error is shown in the Tribunal’s preference for the evidence of Associate Professor Mendelson over the other evidence.
57 The next section of the Tribunal’s reasons relates to the applicant’s mental health condition and the level of functional impairment as at 10 July 2015 under the Impairment Tables. As Bromberg J stated in Sesalim at [17]-[22] (followed in Prahauser v Administrative Appeals Tribunal [2020] FCA 1658 at [36]), the assessment of a person’s functional impairment in accordance with the Tables is not a mechanical task amenable to a precise answer; it is, rather, a task which involves a broad evaluative judgment on which reasonable minds may differ, and perhaps substantially so: at [17]. In the present case, the Tribunal noted at [67] that the several reports relied upon by the applicant and referred to earlier in the Tribunal’s reasons did not specifically address the application of Table 5 and the descriptors contained therein. The Tribunal indicated that it would nevertheless examine these reports, together with the other evidence before the Tribunal: at [67]. The Tribunal referred to the evidence of several of the health professionals in its subsequent consideration of the issue: see [68]-[98]. Having reviewed this section of the reasons, and the references to the various medical reports that were in evidence, I am not satisfied that the Tribunal overlooked evidence relating to the applicant’s mental health condition, or that it erred in law in its treatment of the medical evidence relating to that condition. The Tribunal provided cogent reasons for reaching the conclusions that it did in relation to each of the descriptors: at [69]-[99].
58 I now turn to the section of the Tribunal’s reasons dealing with his spinal condition and whether the condition had been fully treated and fully stabilised. In this section, the Tribunal considered:
(a) the report of Dr Olszewski of 20 April 2015 (at [102]);
(b) evidence of a conversation between Dr Olszewski and a member of the HPAU on 10 June 2016 (at [104]);
(c) a report of Mr Brendan O’Brien of 29 September 2015 (at [105]);
(d) a report of Dr David Oehme of 23 February 2016 (at [106]);
(e) a report of Dr Bryden Dawes of 19 February 2019 (at [107]);
(f) a report of a physiotherapist, Ms Melissa Manuelpillaj (undated) (at [109]);
(g) a report of another physiotherapist, Ms Johanna Cross of 14 January 2016 (at [110]); and
(h) other physiotherapy reports that were in evidence (at [111]-[112]).
59 In light of the detailed consideration of this material (at [102]-[114]), I am not satisfied that the Tribunal overlooked evidence relating to the applicant’s spinal condition. Further, the contention that the Tribunal made an error of law by dismissing the evidence of the treating doctor and the treating specialists in favour of the non-treating specialist does not appear to be directed to this section of the reasons. In any event, it was open to the Tribunal to prefer the medical evidence that it did, for the reasons it gave.
60 I now consider the section of the Tribunal’s reasons dealing with the applicant’s spinal condition and his level of functional impairment under the Impairment Tables. The Tribunal noted at [117] that there was limited evidence from the applicant and the experts on activities involving spinal function. The Tribunal considered the evidence given by the applicant himself at [117]-[122] and had regard to the medical evidence at [123]-[127]. In several instances, the Tribunal noted that the medical reports did not address the relevant matters. In light of the Tribunal’s consideration of the medical evidence in these paragraphs, I am not satisfied that the Tribunal overlooked relevant evidence. Further, it is not established that the Tribunal erred by dismissing the evidence of the treating doctor and the treating specialists (if and to the extent that that contention has application to this section of the reasons).
61 Fundamentally, grounds 1 and 3 and the associated submissions express the applicant’s (strong) disagreement with the conclusions that the Tribunal reached in each of the four sections of its reasons discussed above. These grounds and submissions are largely directed at the merits of the Tribunal’s decision, rather than demonstrating an error of law. In particular, the applicant has not shown that the Tribunal failed to consider the medical evidence relied on by the applicant. To the contrary, the reasons of the Tribunal show that it carefully considered the medical evidence that was before it.
62 I note for completeness that some of the applicant’s submissions complain about inconsistency between decisions of the Tribunal about his case. However, in each instance the Tribunal needed to decide the matter on the basis of the issues and material before it on that occasion.
63 For these reasons, grounds 1 and 3 are not made out.
The second question of law
64 The second question of law identified in the notice of appeal is whether the Tribunal incorrectly interpreted a statute relevant to the proceeding. I will proceed on the basis that this question refers both to the Social Security Act and to the Determination, even though the latter is a legislative instrument, rather than a statute.
65 Grounds 2 and 4 appear to relate to this question. By these grounds, the applicant contends that:
(a) the Tribunal made an error of law by not considering the fluctuation in the applicant’s medical condition; and
(b) the Tribunal made an error of law by misinterpreting the role of the Tribunal when it decided that the evidence relating to the neurosurgeon’s opinion was not applicable because it was not available before the decision to cancel the applicant’s disability support pension.
66 These grounds are developed in the applicant’s Submission and Chronology at paragraphs 32, 33 and 34 and in his written submissions in reply at paragraphs 8, 9, 11, 12 and 16.
67 The applicant’s submissions include the following:
(a) The applicant made written submissions to the Tribunal in relation to impairment under Table 1 of the Impairment Tables, but the Tribunal assessed his spinal condition under Table 4 instead of Table 1.
(b) When assessing the applicant’s impairment under Table 4, the Tribunal did not consider whether the applicant could carry out the activities described in the descriptor on a repetitive or habitual basis, rather than only once or rarely.
(c) The Tribunal “mixed” its consideration of treatment and ongoing monitoring. The Tribunal overlooked the fact that the applicant must undergo ongoing and regular physiotherapy management to keep his condition stabilised.
(d) The Tribunal found that the applicant’s spinal condition was not fully treated and stabilised on the basis of the ongoing monitoring and surveillance of his cervical canal stenosis by way of yearly examinations and MRIs. The Tribunal did not consider whether this monitoring was likely to result in significant functional improvement to a level that would have enabled the applicant to undertake work for at least 15 hours per week in the two years following the relevant time, at or above the relevant minimum wage and that exists anywhere in Australia.
(e) Monitoring of the applicant’s spinal condition could not result, and has not resulted, in any improvement, but the Tribunal basically ruled that if the applicant was receiving any kind of medical attention (even if only monitoring), his spinal condition was therefore not fully treated and stabilised, regardless of whether the monitoring was likely to result in significant improvement that would allow him to work.
68 Insofar as the applicant submits that the Tribunal erred by considering Table 4 rather than Table 1 of the Impairment Tables (in relation to impairment resulting from his spinal condition), it is not established that the Tribunal erred in law by considering the applicant’s impairment under Table 4 (Spinal Function) rather than Table 1 (Functions requiring Physical Exertion and Stamina). Section 10(1) of the Determination (see [26] above) sets out the steps to be taken in selecting a Table. This involves identifying the loss of function, and referring to the Table related to the function affected. Section 10(2) provides that the Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise. Having regard to these rules, it was open to the Tribunal to assess the functional impairment resulting from the applicant’s spinal condition under Table 4. The Tribunal’s reasons do not indicate that it misinterpreted the rules in the Determination or in the introduction to Tables 1 or 4.
69 Insofar as the applicant submits that the Tribunal erred in its consideration of impairment under Table 4 by not considering whether the applicant could carry out the activities described in the descriptors on a repetitive or habitual basis (as distinct from only once or rarely), the relevant section of the Tribunal’s reasons (at [115]-[129], relating to impairment resulting from the spinal condition) does not provide support for this submission. The Tribunal evaluated both the evidence given by the applicant himself and the medical evidence (to the extent that it bore upon the issue). At the conclusion of [122], the Tribunal expressed a finding that the applicant “has some difficulty” with the functions identified in Table 4. At the conclusion of [127], the Tribunal stated that the earlier physiotherapy reports “tend to indicate that overall the functional impact on the spinal function activities was at best mild to moderate”. These statements indicate that the Tribunal was correctly directing its mind to whether the applicant could generally carry out the activities involving spinal function listed in Table 4, rather than whether he could carry out those activities occasionally.
70 The applicant’s submission that the Tribunal mixed (or conflated) its consideration of treatment and ongoing monitoring appears to be directed to the section of the Tribunal’s reasons concerning whether the spinal condition had been fully treated and fully stablished. In this section of its reasons, the Tribunal stated at [108] and [114]:
108. These reports indicate that ongoing monitoring or surveillance of the Applicant's condition was the most appropriate clinical approach to adopt on the relevant dates concerned, but in particular, on or about the time relevant to this application namely 10 July 2015. As was contended by the Respondent, the Applicant’s condition had not progressed to a stage where the doctors who conducted the several examinations of him reached the conclusion that there was nothing further that could be done in a clinical sense, such that it would be open to the Tribunal to accept that the condition had been fully treated and stabilised.
…
114. For the reasons noted previously that the spinal condition was subject to ongoing monitoring and surveillance particularly by yearly examinations and MRI’s the Tribunal accepts the Respondent’s contention that such condition was not fully treated and stabilised as at the relevant date of 10 July 2015.
71 If, by these passages, the Tribunal was intending to express a general proposition that ongoing monitoring and surveillance of a medical condition are inconsistent with the condition having been “fully treated” and “fully stablished” for the purposes of s 6 of the Determination (see [24] above), I would respectfully disagree with that proposition. There may well be situations where a condition is the subject of ongoing monitoring and surveillance, where it would be fair to describe the condition as having been fully treated and fully stabilised for the purposes of s 6. However, when the relevant statements are read in context, I do not take the Tribunal to have adopted such a proposition. Rather, the thrust of the Tribunal’s reasons (read as a whole) is that, as at 10 July 2015, the applicant’s condition “had not yet progressed to a stage where the doctors … [had] reached the conclusion that there was nothing further that could be done in a clinical sense” (at [108], quoted above). This was in circumstances where, as at 10 July 2015, the applicant had been referred to, but had not yet seen, a neurosurgeon (see [102]). The applicant did not see a neurosurgeon until 8 September 2015 (see [102], [105]). In light of this, the Tribunal’s finding that the spinal condition had not been fully treated and fully stabilised as at 10 July 2015 is unsurprising. Further, the Tribunal referred (at [110]-[112]) to certain physiotherapy reports and made a finding that, as at 10 July 2015, at least insofar as physiotherapy was concerned, “further methods of treatment were being explored” (at [112]). Accordingly, I do not accept that the Tribunal erred in law as submitted by the applicant.
72 Insofar as the applicant contends that the Tribunal made an error of law by not considering the fluctuation in the applicant’s medical condition, I note that the Tribunal referred to evidence that the applicant’s conditions fluctuated at [34]-[35], [53], [85] and [104]. The Tribunal therefore did have regard to this material. If and to the extent that the applicant relies on s 11(4) of the Determination (see [27] above), the Tribunal did not make a finding that the applicant’s conditions had “stabilised as … fluctuating”, therefore it was not required to approach the assessment on the basis set out in s 11(4). In any event, the Tribunal’s task was to make a finding as to the overall functional impact of the applicant’s conditions; a fair reading of the Tribunal’s reasons shows that it did so.
73 Insofar as the applicant contends that the Tribunal erred by deciding that the evidence relating to the neurosurgeon’s opinion (presumably, the report of Mr O’Brien of 29 September 2015 referred to at [105] of the Tribunal’s reasons) was “not applicable” because it was not available before the decision to cancel the applicant’s disability support pension, the premise of this submission is incorrect. The Tribunal did have regard to the report of Mr O’Brien at [105] of its reasons. The Tribunal also had regard to two other neurosurgery reports: at [106] and [107].
74 For these reasons, grounds 2 and 4 are not made out.
The third question of law
75 The third question of law identified in the notice of appeal is whether the Tribunal denied the applicant procedural fairness. Grounds 5 and 6 relate to this question. By these grounds, the applicant contends that:
(a) the Tribunal denied the applicant procedural fairness by making a direction that the applicant be examined by a medical specialist contracted by the Secretary; and
(b) the Tribunal denied the applicant procedural fairness by putting the applicant under unnecessary emotional stress during the hearing, which affected his ability to represent himself.
76 These grounds are developed in the applicant’s Submission and Chronology at paragraphs 24 and 25 and in his written submissions in reply at paragraphs 17-21.
77 The applicant submits that he was “forced with aggression” by the Tribunal “to answer ambiguous questions during the hearing” and that this impacted his mental health and left him unable to present his case.
78 The applicant also submits that he was “shocked” by the Tribunal ordering him “with clear aggression” to answer a question regarding travelling alone overseas, and that the applicant felt that he had no choice but to say yes.
79 Insofar as the applicant contends that there was a denial of procedural fairness in the Tribunal making a direction before the hearing that the applicant be examined by a doctor retained by the Secretary (namely Associate Professor Mendelson), I do not see how the making of this direction could be said to constitute or to have led to a denial of procedural fairness. It was open to the applicant to challenge the report of Associate Professor Mendelson and to lead contrary evidence. This contention is not made out.
80 I note for completeness that it has been accepted that the Tribunal has power to direct an applicant to attend such a medical assessment: see Applicant 0108 v Secretary, Department of Social Services [2017] FCA 535 at [8].
81 Insofar as the applicant contends that he was denied procedural fairness by the way in which the Tribunal questioned him and directed him to answer certain questions, I have read the transcript of the applicant’s oral evidence before the Tribunal (a copy of which is included in the Appeal Book) and there does not appear to be any substance to these complaints. On the basis of reviewing the transcript of the applicant’s oral evidence as a whole, nothing stood out that would suggest that the Tribunal questioned the applicant aggressively or that the applicant was consequently unable to represent himself.
82 I note the following passage in the transcript (at p 40), which appears to be the particular exchange that is the subject of complaint:
[COUNSEL FOR THE SECRETARY:] Now, there’s a letter that you prepared – sorry, before we get to that. Can I just check, so you have said to the tribunal in the past, and I can take you to it in a moment if you wish, that you travelled alone when you travelled?---Well, I have an exception about this, Your Honour.
SENIOR MEMBER: You have a what, sorry?---I have, like, objection to this question. Because it’s not clear – it’s very vague, this question. When you say “alone”, what do you mean by alone? Did I fly the aeroplane on my own and went to Thailand? No.
[COUNSEL FOR THE SECRETARY]: But the - - -?---Or did I - - -
SENIOR MEMBER: I think the question’s fairly - - -?---I didn't have somebody that I know with me.
The question’s fairly clear, isn’t it?---No, it’s not really.
Well it is, so answer it?---What is that question?
Answer the question: Did you travel alone?---Yes.
Thank you. That’s all you’ve got to do.
[COUNSEL FOR THE SECRETARY]: And you arranged your trips yourself?---Yes.
You booked them online?---Yes.
You went to the airport alone?---Yes.
83 The Tribunal member’s questions, and the direction that the applicant answer the question, are unremarkable. They do not indicate, let alone establish, that the Tribunal member acted in a way that was aggressive or otherwise unfair to the applicant. There is no other evidence before me to make good the submission that the Tribunal member’s questioning was aggressive or unfair.
84 For these reasons, grounds 5 and 6 are not made out.
Conclusion
85 It follows from the above that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also make an order that the applicant pay the Secretary’s costs of the proceeding, to be fixed by way of a lump sum.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. |
Associate:
