Federal Court of Australia

Secretary, Department of Social Services v Doherty [2022] FCA 1242

ORDERS

THE COURT ORDERS THAT:

1.    The appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be allowed.

2.    The decision of the General Division of the Administrative Appeals Tribunal (AAT) made on 31 August 2020 be set aside.

3.    The matter be remitted to the AAT, differently constituted, to be heard and determined according to law.

4.    Unless a party notifies the Court in writing by 4.00 pm on Wednesday 26 October 2022, indicating opposition to this order as to costs, there be no order as to the costs of the proceeding.

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

REASONS FOR JUDGMENT

KENNY J:

1    On 31 August 2020, the General Division of the Administrative Appeals Tribunal (the Tribunal) decided to set aside the 16 April 2019 decision of the Social Services and Child Support Division of the Tribunal (SSCS Division) respecting the respondent’s entitlement to Disability Support Pension (DSP). The Tribunal decided that the respondent, Mr James Doherty, was entitled to DSP in respect of his foot condition with effect from 1 August 2018.

2    The Secretary of the Department of Social Security (the Secretary) instituted an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from this decision. The operation and implementation of the Tribunal’s decision was stayed by consent pending the determination of the appeal.

3    For the following reasons, I would allow the Secretary’s appeal under s 44 of the AAT Act, set aside the decision of the Tribunal, and remit the matter to the Tribunal, to be heard and determined according to law.

BACKGROUND circumstances

4    Mr Doherty has diabetes, with a number of complications. Relevantly here, these complications include peripheral neuropathy in his lower limbs leading to Charcot disease: see the Tribunal’s reasons (TR) at [21]. As a consequence of this disease, Mr Doherty has Charcot foot. According to Dr Craig Smith, general practitioner, this “means his right foot has collapsed” and he “is thus unable to stand or walk or move around normally”: TR, [22]. Mr Chris Harris, orthopaedic surgeon, further stated that Mr Doherty’s Charcot disease had “culminated in deformity and ulceration of the right foot”: TR, [23]. Mr Doherty’s eligibility for DSP in respect of his foot condition was the subject of the Tribunal’s decision.

5    On 1 August 2018, Mr Doherty lodged a claim with Centrelink for DSP for “charcut [sic] foot, hypertension, right foot reconstructed, lack of feeling in both feet, diabetic, peripheral edema [sic], peripheral neuropathy”: TR, [3]. This claim was rejected on 12 August 2018: TR, [4]. On 21 January 2019, a Centrelink Authorised Review Officer (ARO) affirmed the rejection decision on the basis that Mr Doherty did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables): TR, [4]. Mr Doherty applied to the Tribunal for a review of the decision made by the ARO. As indicated above, his application was unsuccessful on first review before the SSCS Division. He succeeded on second review, however, when the Tribunal decided that he was entitled to DSP with effect from 1 August 2018. It is from this second review decision that the Secretary has appealed under s 44 of the AAT Act. This provision provides for an appeal to this Court on a question of law from a decision of the Tribunal.

6    The Secretary’s overarching contention in this proceeding is that the Tribunal’s construction of the word “assistance” in descriptor (1)(a) of “severe functional impact” in Table 3 of the Impairment Tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) is legally incorrect; and that the Tribunal’s error in this regard gives rise to a question of law within the meaning of s 44 of the AAT Act. In one aspect of the Secretary’s argument, the Secretary contends that the Tribunal erred in finding that “assistance” in Table 3 includes assistance from a physical aid (such as a wheelchair or walking frame) and is not limited to mobility assistance from another person. The respondent contends that the Tribunal’s construction of “assistance” in Table 3 is correct.

7    In order to evaluate the parties’ competing arguments, it is necessary to understand the attendant legislative framework.

Legislative Framework

8    The governing legislation is the Social Security Act 1991 (Cth) (the Social Security Act). Section 94 of the Social Security Act concerns a person’s eligibility for DSP. This provision relevantly provides:

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

(d)    the person has turned 16; …

...

(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 (3B) ... – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and ...

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

  (ii)    in all cases—either:

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

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

...

(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.

9    The “Impairment Tables” to which s 94 refers are the tables determined by a legislative instrument under s 26(1): see s 23(1). Section 26 of the Social Security Act provides as follows:

26     Impairment Tables and rules for applying them

Impairment Tables

(1)     The Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension.

(2)     An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.

Rules for applying Impairment Tables

(3)     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) and the provisions referred to in subsection (2).

(4)     An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.

10    In addition, s 27 provides:

27     Application of Impairment Tables

Claims for disability support pension

(1)     If a person makes a claim, or is taken to have made a claim, for disability support pension, the Secretary, in determining the claim, must apply the instrument in force under section 26 on the day the claim was made or taken to have been made.

(2)     If:

(a)     the Secretary makes a decision (the original decision) relating to a claim referred to in subsection (1); and

(b)     the Secretary or the AAT is reviewing the original decision or a later decision arising out of the original decision;

the Secretary or the AAT, in making a decision on the review, must apply the instrument in force under section 26 on the day the claim was made or taken to have been made.

Note:    The effect of this subsection is that any change to the instrument under section 26 from the making of the claim to the making of a decision on the review must be disregarded.

...

11    The Determination was the applicable legislative instrument when the Tribunal made the decision concerning Mr Doherty’s entitlement to DSP. The Determination contained numerous Impairment Tables, each relating to different kinds of impairment: see Pt 1, s 4(2). Table 3, which concerned Lower Limb Function, was applicable to Mr Doherty’s foot condition. Table 3 was in the following form:

Table 3 – Lower Limb Function

THE TRIBUNAL’S DECISION

12    Mr Doherty was self-represented before the Tribunal, and gave evidence. He was cross-examined by a lawyer representing the Secretary. The Tribunal noted that Mr Doherty “was not very forthcoming in his evidence about his conditions” (TR, [24]) and that his evidence was “exceedingly difficult to follow” (TR, [50]). No-one other than Mr Doherty gave evidence at the hearing.

13    The Tribunal accepted (and it was not in dispute) that Mr Doherty suffered from a condition satisfying s 94(1)(a) of the Social Security Act: TR, [10], [49]. The Tribunal accepted (as did the Secretary) that Mr Doherty’s condition was “fully diagnosed, treated and stabilised”: TR, [52]-[55]. In this regard, the Tribunal referred to the medical reports before it, including Dr Smith’s report to the effect that Mr Doherty had “poorly controlled diabetes” and that his right foot had “collapsed” as a consequence of his having Charcot’s foot, a condition that despite extensive surgery had rendered him “unable to stand or walk or move around normally”: TR, [21]–[22]. Dr Smith stated that Mr Doherty’s condition was “lifelong and will not improve significantly to where he will be able to walk or stand without restrictions”: TR, [22]. As already noted, an orthopaedic surgeon made a report to similar effect.

14    The main issue before the Tribunal was whether Mr Doherty’s impairment (focussing on his foot condition) satisfied s 94(1)(b) of the Social Security Act: that is, as the Tribunal put it, “whether he qualifies for an impairment rating of 20 points or more under the Tables” during the “qualification period” between 1 August 2018 and 31 October 2018: TR, [11], [13], [16]. There was a further issue as to whether Mr Doherty also satisfied s 94(1)(c), in particular, whether he “has a continuing inability to work”: TR, [11].

15    The Tribunal accepted that Mr Doherty had had an operation on 9 July 2018 and that he had been in a wheelchair for some “eight weeks or more” afterwards. During that time, the Tribunal found that Mr Doherty was unable to walk around a shopping centre unaided: TR, [25]–[26]. The Tribunal found that, during this period, when not in a wheelchair, his foot was encased in an “exterior fixator” and that he walked with the assistance of a “four-wheel manual walking frame”: TR, [28]. The Tribunal noted that Mr Doherty confirmed in cross-examination that the wheelchair was returned about September 2018, but that he continued to use the frame for mobility outside his house: TR, [40]–[41].

16    The Tribunal apparently accepted Mr Doherty’s evidence to the following effect. Its reasons recorded that:

29.     At home during this period the Applicant said if he wanted to shower or go to the toilet, he would use a different kind of frame—“a…more solid one”—for balance. He also had a chair situated in the shower itself “for me to get up”. During the whole of the qualification period he was not able to bear weight on his feet, so if he did venture out he would be in the wheelchair or using the frame, but used the other frame at home when showering and toileting.

30.     The Applicant was quite clear that walking from a car park into shops could not be done without assistance. Indeed, he said: “if I did go to the shopping centre, and I don’t think I did in that period, I would have stayed in the car”. In fact, he said, medical appointments were the only times he would leave home during the period.

31.     At home, the Applicant said he could not get up from a seated position during the qualification period without assistance. For example, he could not get up from the toilet without assistance because “I had the frame in front of me”. He said he could get up on one foot but he would have no stability.

The Tribunal also apparently accepted that Mr Doherty had attended medical appointments with the help of a friend who would drive him, and that he was unable to catch a tram: TR, [32]–[33].

17    The Tribunal made its decision on the basis that, as the Secretary had submitted, the points to be assigned to Mr Doherty in respect of his condition were to be assessed by reference to Table 3 of the Impairment Tables in the Determination: see [11] above. The Tribunal commenced its assessment by observing that “[i]t cannot reasonably be considered possible on the evidence” that Mr Doherty’s condition fell within either the 0-point ‘no functional impact’ or the 5-point ‘mild functional impact’ impairment ratings of Table 3: TR, [59]. The Tribunal continued:

60.    This leaves open only three possibilities: 10 points (moderate functional impact); 20 points (severe functional impact); and 30 points (extreme functional impact).

61.    Considering the serious nature of the Applicant’s condition, (and how incapacitating it has been especially during the qualification period and since), it would be nothing short of remarkable to find he qualified as only suffering moderate functional impairment. None of the evidence, in my view, could reasonably lead to that conclusion. This, however, was the rating which the Respondent submitted was “appropriate”. ...

62.    This of course is not a question to be answered in the abstract. It is a question which is to be resolved by reference to the descriptors appropriate to a moderate functional impairment reading of 10 points. But considering those descriptors, I am satisfied that the Applicant’s functional impairment falls well outside the 10 points category.

63.    As regards descriptor (2) of Table 3 under “moderate”, I am not satisfied that either now, or during the qualification period, the Applicant is or was “able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket”. I rely upon his evidence in this regard, when he said that if he went shopping in his car he would stay in the car.

…

69.     If the Applicant fails to satisfy descriptor (2) of Table 3 under the 10-point rating, I consider that he therefore cannot satisfy both descriptors (1) and (2) because they are separated by “and” and are not expressed as alternatives. If one of them is not satisfied, then neither are they both satisfied because they occur as a single item. In other words, a 10 point rating under Table 3 is contingent upon both (1) and (2) being satisfied such that if (1) or (2) is not satisfied, a 10 point rating cannot be assigned.

70.     Descriptor (3) is differently expressed to descriptors (1) and (2) and is largely clarificatory of them without itself being a criterion to be met. It is not well drafted. Be that as it may, I am satisfied that, on my analysis, the Applicant is not within the moderate function impairment category.

18    The Tribunal thus rejected the Secretary’s submission that 10 points represented the appropriate impairment rating: TR, [71]. The Tribunal reasoned (TR, [72]) that if Mr Doherty’s condition fell within any category in Table 3, “it must be either that his impairment warrants 20 points (severe functional impairment) or 30 points (extreme functional impact)”. The Tribunal did not consider that the evidence “reasonably led” to the conclusion that Mr Doherty’s functional impairment warranted 30 points under Table 3 because the Tribunal was not satisfied that Mr Doherty was “unable to mobilise independently”: TR, [73]. The Tribunal concluded that “if the Applicant is within any category at all, he is within the category of 20 points (severe functional impairment)”: TR, [74].

19    The Tribunal was satisfied on the balance of probabilities that Mr Doherty “falls squarely within the 20 points rating for severe functional impairment”: TR, [77]. Regarding the descriptors comprising this impairment rating, the Tribunal reasoned:

78.     I consider that the Applicant during the qualification period, and subsequently, meets the requirement in descriptor (1). In particular, I find that he has been “unable” to do any of the matters set out in (a). I find also, as regards (b), that the Applicant, had he used public transport, would have required assistance. I attribute this especially to his difficulties with balance and weight-bearing.

79.     I am not satisfied that the word “any” in descriptor (1) (a) means all. That is, I consider an applicant satisfies descriptor (1)(a) if unable to do any one of (i), (ii) or (iii) but need not satisfy all (i), (ii) and (iii).

80.     It is clear also that descriptors (1) and (2) are not cumulative. An applicant will succeed if satisfying descriptor (1) or descriptor (2) or both. Indeed, descriptor (2) is even more in the nature of being clarificatory or amplificatory of descriptor (1).

81.     As regards descriptor (1)(a)(iii), I am satisfied the Applicant has been unable to “stand up from a seating position without assistance”. This is plainly the case given the Applicant’s evidence on his toileting. His evidence was clear that at the toilet he would use a frame. Otherwise he had no balance. In reference to the shower, and I consider the toilet too, he said “to actually [go] up and down I couldn’t weight-bear”. He said “I had to have the frame” for getting up from the toilet.

82.     This suffices for the Applicant to have satisfied descriptor (1)(a) on the basis that the word “any” does not mean all.

83.     But if the word “any” does mean all, I am satisfied, nonetheless, that the Applicant meets the criteria in both descriptor (1)(a)(i) and (1)(a)(ii). In other words that he wholly satisfies descriptor (1)(a).

84.     As regards descriptor (1)(a)(i) I am satisfied that the Applicant was unable to “walk around a shopping centre or supermarket without assistance”. I have already dealt with this above in discussing descriptor (2) relating to moderate functional impairment. I referred there also to the views of Dr Smith and Mr Harris. It should not be forgotten that for eight weeks following his foot surgery the Applicant was wheelchair-bound. If not wheelchair-bound, then he was using a frame to move around. Others did his shopping for him.

85.     As regards descriptor (1)(a)(ii) I am satisfied on the evidence that the Applicant could not “walk from the carpark into a shopping centre or supermarket without assistance”. This is clearly so based on his evidence. It seems also to follow as a natural consequence of my finding regarding descriptor (1)(a)(i) in that if he could not walk around a shopping centre, it is hard to see how he could walk from the car park to the shopping centre. In any event at the relevant times the Applicant barely left home.

20    The Tribunal also assessed Mr Doherty’s functional impairment on the alternative basis that descriptor (2) needed to be satisfied in addition to and separately from descriptor (1). The Tribunal was satisfied on the basis of Mr Doherty’s evidence that he required assistance to move around in a wheelchair, to transfer to and from a wheelchair and to move around using walking aids: TR at [86]–[89]. The Tribunal added that:

90.    The “ie” in descriptor (2) is curious and unclear in meaning. I am satisfied the Applicant would not have been able to walk on some surfaces (uneven ones, for instance) without help from someone because of his weight-bearing and balance issues: these would be critical factors in him moving independently around a workplace or training facility even using his frame. A workplace or training facility could well have an uneven floor and he could, in his words, “overbalance”.

21    The Tribunal rejected the Secretary’s submission that the word “assistance” in “the severe impairment category” in Impairment Table 3 of the Determination, “means assistance from another person and not mechanical assistance (such as that obtained by use of a wheelchair or frame)”: TR, [92]. After noting the Secretary’s reliance on the Social Security Guide, Nelson and Secretary Department of Social Services [2016] AATA 721, Arkell and Secretary Department of Social Services [2017] AATA 1987, and Summers and Secretary, Department of Social Services [2014] AATA 165, the Tribunal said:

94.     The main decision in this area (which is referred to in both of those cases and other cases) is Summers and Secretary, Department of Social Services [2014] AATA 165 where at [17] the Member said that the “conclusion that ‘assistance’ refers to assistance from a person and not from an object or physical aid is inescapable”.

95.     I consider this to be erroneous. It is not an “inescapable” conclusion at all that assistance means assistance from a person. The word “assistance” in descriptor (1)(a) is not qualified in any way. It means assistance of any kind. That includes assistance from a person and assistance “from an object or physical aid”. Had it been intended to mean assistance from a person only then that could have easily been specified. Compare, for example, descriptor (2)(b) which refers to a person needing “assistance from another person”.

96.     The fact that some such expression was not used in descriptor (1)(a) means that “assistance” in that descriptor should not be read as if it did include some such expression.

97.     I consider this is a reading of descriptor (1)(a) which is consonant with cl 9 of the Tables, by which a person’s impairment is “to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses” and with the remainder of the Tables. To say that descriptor (1)(a) means, because of this, that “assistance” in that descriptor means or includes only assistance from a person — as the Guide states — is to invert the effect of cl 9. If I was to assess the Applicant in accordance with that argument it would seem to follow from it that I must exclude assistance from a wheelchair or frame when doing so. This would be because assistance from a wheelchair or frame would be “superfluous”, so the Guide says. But this is wrong. By cl 9, I must include those items when doing so. The Respondent’s argument, therefore, far from showing that “assistance” in descriptor (1)(a) means assistance from a person only does not take account of the true effect of cl 9 and cannot be reconciled with it. I, therefore, reject the Respondent’s argument. The word “assistance” in descriptor (1)(a) means, as I say, any assistance including “from an object or physical aid” or from a person.

98.     Normally, of course, the Guide’s analysis should be followed unless there are cogent reasons for not doing so but it remains true that I am not bound by the Guide and must not follow it if I consider it to be erroneous or lacking cogency. I do consider it to be erroneous and lacking cogency on this point. To follow it in such circumstances would be to abdicate my review function. See Control Investments and Australian Broadcasting Tribunal [1980] AATA 78.

(Emphasis in original)

22    Further and alternatively, the Tribunal reasoned that, if this analysis was wrong and the word ‘assistance’ in descriptor (1)(a) was intended to refer only to assistance from another person, then, “on the balance of probabilities”, Mr Doherty “did need assistance also from another person during the qualification period, and beyond”. The Tribunal referred to Mr Doherty’s “evidence relating to his issues with weight-bearing, balance and the unevenness in his feet”, as well as “his evidence about waiting in the car, if going shopping, because of difficulties he would have in moving around a shopping centre or supermarket or getting to or from one”: TR, [99].

23    With reference to the descriptor in (1)(a)(iii), the Tribunal added:

100.    ... I am satisfied, on the balance of probabilities, that it was by virtue of assistance from other persons that the Applicant was able to get up from a seated position on the toilet. I note, as before, that the word “assistance” is not defined in the descriptor. The Applicant, moreover, did not articulate this well—perhaps because it is such a personal issue—so there is no specific evidence given by him on this point. But he did give evidence of occupational therapists coming to his house after his time in hospital to make sure his house was “liveable” for him. I did not hear from them, but I would take it that his house would include its bathroom and toilet and it is likely he was given advice about using both—such as needing to have a chair placed in the shower, as was the case. Indeed, he indicated this in his evidence. He gave examples in this regard which have led me to my view—in making sure the house was liveable, he said “like if the shower was wide enough, if the doors-you know, and if I could cook or…get around the house”. I doubt they would have failed to advise him about the toilet, including sitting down on it and getting up from it safely, if they were considering the suitability or safety of the shower.

101.    Likely knowing the Applicant’s condition, and the difficulties it presented for him, it is probable also, therefore, they assisted him with this advice – this advice may have included advice about balance by using a frame, which he did use. And, of course, he was given assistance of another kind altogether by being afforded the use of the frame itself, namely, by his late mother, in having it available in the house for use in the first place even though it was used by her for her own purposes when alive.

24    Later, when considering the issue of corroboration, the Tribunal stated:

108.    ... I am satisfied that the Applicant does have sufficient corroboration of the symptoms of his medical condition causing his impairment. ...

109.    As regards descriptor (1)(a)(iii) I find there is corroborating evidence of the Applicant being unable to stand up from a seated position in the physical existence of the frame positioned by him. I am not clear as regards toileting that Table 3 can require more than that given ordinary standards of privacy and decency and respect for persons. I refer also to the need for a seat in the shower and the help needed to get up from that.

25    Lastly, the Tribunal found that s 94(1)(c) of the Social Security Act was satisfied: TR, [110]-[112]. On the basis of the medical evidence before it, particularly the opinion of Dr Smith as set out in his 31 July 2018 report, the Tribunal rejected a statement in the Department’s Job Capacity Assessment report, which assessed Mr Doherty’s “baseline work capacity” “at 8–10 hours per week”. The Tribunal noted Dr Smith’s statement that Mr Doherty had a “lifelong” condition “and cannot stand, walk or move around normally”. The Tribunal also referred to, and apparently accepted, Mr Doherty’s own evidence that “his feet are uneven and he leans to one side. He ... could not even see himself getting to and from work”.

26    The Tribunal concluded:

113.    In my view it is plain that the Applicant has a severe impairment rating of 20 points under Table 3 and had and continues to have a continuing incapacity for work within the meaning of s 94(1)(c) of the Act. That is to say, I am satisfied that the Applicant’s impairment is of itself sufficient to prevent him from doing any work independently of a program of support or undertaking any training activity within the next two years”.

Accordingly, the Tribunal set aside the decision under review and substituted a decision “whereby the Applicant is entitled to DSP from the date of his claim in respect of his foot condition”.

APPEAL under section 44 of the AAT Act

27    As already indicated, the Secretary instituted an appeal from the Tribunal’s decision under s 44 of the AAT Act.

28    The Secretary’s notice of appeal identified two questions of law for determination. These questions were:

1.     In reviewing the Tribunal’s decision and substituting it with a decision entitling the First Respondent to DSP, did ss 26(3) and 27(2) of the Social Security Act 1991 (Cth) (the SS Act) and s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), require the Tribunal, in considering whether s 94(1)(b) of the SS Act was satisfied, to apply the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) in such a way as to:

a.     apply s 9 of Part 2 of the Determination to descriptor (1)(a) of the “severe” functional impact category in Table 3 – Lower Limb Function (Impairment Table 3) so as to assess the First Respondent’s impairment when he is using aids, equipment or assistive technology that he has or usually uses;

b.     interpret the use of the term “assistance” in descriptor (1)(a) of Impairment Table 3 as limited to “assistance” from another person and not including “assistance” using aids, equipment or assistive technology that the First Respondent has or usually uses;

c.     interpret the use of the term “assistance” in descriptor (1)(a) of Impairment Table 3 as limited to mobility assistance from another person and not including “assistance” such as the provision of advice relating to the disability or the provision of disability aids.

2.     In reviewing the Tribunal’s decision and substituting it with a decision entitling the First Respondent to DSP, did the Tribunal fail to understand or carry out its statutory task, or alternatively, make a finding or draw an inference not available on the evidence that:

a.     the First Respondent was provided with assistance by occupational therapists in the form of advising him about toileting, “including sitting down on it and getting up from it safely” (Reasons at [100]).

The parties’ submissions

The Secretary

29    In support of ground 1, the Secretary submitted that the Tribunal erred by failing to apply s 9 of the Determination in interpreting the descriptors in Table 3 of the Impairment Tables. Referring to s 9 of the Determination, s 13(1) of the Legislation Act 2003 (Cth) (Legislation Act) and s 46(1) of the Acts Interpretation Act 1901 (Cth) (Interpretation Act), the Secretary submitted that, in determining the level of functional impairment in Mr Doherty’s case, the Tribunal was first required to identify whether Mr Doherty “uses or wears any aids, equipment or assistive technology” and then to assess the frequency of such use. Relying on Nelson at [50], Arkell at [40] and Summers at [17], the Secretary contended that the Tribunal erred in rejecting the submission that ‘assistance’ in descriptor 1(a) of “severe functional impact” in Table 3 meant “assistance from another person and not mechanical assistance”. Responding at the hearing to Mr Doherty’s submissions, counsel for the Secretary, Ms Lucas, contended that s 9 of the Determination was a rule that determined how the Impairment Tables were to be applied, and that the Secretary’s case did not involve preferring the specific over the general, as Mr Doherty maintained.

30    Referring to s 3 of the Determination, the Secretary submitted in writing that “there will be occasions where, using a disability aid, a person will remain entirely independent and ... not prevented from working or being retrained for work (consistent with no functional impact and assigned 0 points under the Impairment Tables)”. The Secretary further submitted that the Tribunal’s construction led to unintended consequences.

In particular, a number of descriptors in the Impairment Tables refer to the ability to mobilise in a wheelchair. If the wheelchair were not taken into account in these contexts ... this would result in ... some cases [where] impairment ratings [are] much higher or at the “extreme” end of the scale if an individual was only able to function at a very low level without the assistance of a wheelchair.

31    In written submissions in reply, the Secretary submitted that, in considering the text of the Determination to determine the meaning of the word ‘assistance’, the Court should take into account “the relevant qualification given to the term ‘assistance’ in the examples contained in [the] severe descriptor when compared to the mild and moderate descriptors in Table 3”. In this context, the Secretary submitted that “[w]hen comparing each of the levels of functional impact in Table 3, it is evident that both the mild and moderate functional impact may require the assistance of mobility aid or equipment but preclude the need for assistance from another person”. At the hearing, Ms Lucas also submitted that when the Table 3 descriptors applicable to “moderate functional impact” and “severe functional impact” were compared, “the distinguishing factor between the examples given in the moderate table under (3) ... and the ones ... just referred to in the severe under (2) is ... the requirement of assistance from another person”.

32    Also at the hearing, Ms Lucas emphasised the importance of s 15AA of the Interpretation Act in construing the Determination. In this context, Ms Lucas referred to the statement in the Explanatory Statement for the Determination (Explanatory Statement) about the purpose of DSP. She submitted that the purpose of DSP was “to provide income support to people who, because of an ongoing physical, intellectual or psychiatric impairment, are prevented from working or being re-trained for work”. Ms Lucas submitted that s 9 of the Determination, when read with the Social Security Guide published by the Department of Social Services (Guide), was consistent with the purpose of DSP. She submitted that paragraph [3.6.3.30] of the Guide accurately set out the effect of s 9 of the Determination when it stated that:

The 10- and 20-point ratings in Table 3 use the term ‘assistance’. Assistance means assistance from another person, rather than any aids or equipment the person has and usually uses...

Explanation: This interpretation of the term ‘assistance’ has been adopted in a number of decisions by the AAT (General Division), including in Summers and Secretary, Department of Social Services [2014] AATA 165.

33    Also referring to the Guide, the Secretary submitted in writing that:

The Guide further provides in relation to Impairment Table 3, that in respect of assessing impairment for persons using wheelchairs or walking aids, where a person uses a wheelchair or certain walking aids (including a walking frame), the correct impairment rating depends, amongst other factors, upon the extent to which they are independent or dependent on other persons to mobilise while using a wheelchair or walking aids, and to transfer to and from a wheelchair. Furthermore, the Guide requires that an impairment rating can only be assigned if all the descriptors for a specific impairment rating are met.

34    In written submissions filed before the hearing, the Secretary contended that to limit ‘assistance’ in Table 3 to assistance from another person was also consistent with the use of the word ‘assistance’ elsewhere in the Impairment Tables, although at the hearing Ms Lucas submitted that little, if any, guidance as to the proper construction of Table 3 could be obtained from a Table dealing with a different type of impairment.

35    As to the meaning of the word “walk” in descriptor (1)(a)(i) of “severe functional impact” in Table 3, Ms Lucas submitted that this word should be understood to mean “mobilise in a wheelchair” or “mobilise with a walking frame”; and that this interpretation was not only supported by s 9 of the Determination but also by descriptor (2) insofar as descriptor 2 indicated that the “severe functional impact” included a person who required assistance from another person to transfer to and from a wheelchair. As Ms Lucas put it, as regards “severe functional impairment”, “walk ... is inclusive ... of somebody moving around in a wheelchair requiring personal assistance”.

36    Regarding the Tribunal’s alternative findings (made in the event that, contrary to the Tribunal’s view, ‘assistance’ was limited to assistance from a person) the Secretary’s written submissions reiterated that ‘assistance’ meant mobility assistance given by another person and did “not extend to any other form of assistance such as the provision of mobility aids or advice on matters pertaining to mobility”. The Secretary contended in writing that, at TR [100]-[101], the Tribunal “sought to incorporate into the meaning of “assistance from another person”, assistance other than mobility assistance, which ... is not contemplated by the Impairment Tables”. Reference was made to the fact that “the Tribunal has sought to infer from the evidence that Mr Doherty was provided with “assistance” by occupational therapists ...” and also relied on the provision of a walking frame by his late mother. The Secretary submitted in writing that this was “a far broader meaning of “assistance” by a person than can be reasonably intended by the descriptors”.

37    At the hearing, Ms Lucas expanded on the Secretary’s written submissions regarding the Tribunal’s alternative findings. She submitted that the difficulty with the Tribunal’s decision was that it did not perform the task it was required to perform. She submitted:

... that the Tribunal really had to undertake an extensive exercise of going through [] Impairment Table 3 and looking at each and every one of those descriptors and also, obviously, comparing it to the moderate descriptors and forming a view, looking at it through the prism of “assistance” meaning [mobility assistance from another person].

38    In reply at the hearing, Ms Lucas referred to TR [99] before submitting that “the only reference that’s given as the alternative finding is under descriptor (2)(b) in Table 3”, adding that:

But at no point does it go back and consider through the lens of assistance, as ... contended by the Secretary ... the matters that are set out in descriptor (1).

39    In support of ground 2, the Secretary submitted in writing that in making its finding at TR [100], the Tribunal “made a finding or drew an inference that was not available on the evidence. This was because it was not open, in the Secretary’s submission, to the Tribunal to find, “on the balance of probabilities that Mr Doherty was provided with assistance by occupational therapists in the form of advising him about using the toilet”.

40    Both in writing and orally, the Secretary submitted that each of the errors identified in submissions were material, observing that the Tribunal’s interpretation of ‘assistance’ affected all of its decision-making process, including “the way in which it sought to elicit evidence from Mr Doherty throughout the Tribunal hearing”. The Secretary noted that where a person’s impairment is not assessed as severe, that person must meet other continuing inability to work criteria: see s 94(2) and (3B).

Mr Doherty

41    Regarding the Secretary’s first ground, Mr Doherty contended (in the written submissions filed on his behalf before the hearing) that the ordinary meaning of the word ‘assistance’ in the Determination did not support the Secretary’s construction. These submissions contended that even if ‘assistance’ meant ‘assistance from another person’, the Secretary’s “attempt to confine the scope” of the word ‘assistance’ to ‘mobility assistance’ found no support in the text and was inconsistent with the purpose of the Determination.

42    In support of the Tribunal’s construction, Mr Doherty submitted (and the Secretary subsequently accepted) that, in construing Table 3, effect should be given to the ordinary meaning of the text, having regard to the purpose of the provision and the wider statutory context. Reference was made to North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11] and R v A2 [2019] HCA 35; 269 CLR 507 at [36]. Mr Doherty submitted that:

The ordinary meaning of assistance is to ‘help’ or ‘aid’. The term is used many times throughout the Determination but it is not specifically defined in the instrument. Occasionally, it is followed by words that refine its scope but at the relevant point of table 3 it features without clarification or qualification. Accordingly the critical question ... is whether the unqualified use of the word ‘assistance’ in table 3 should nevertheless be construed in the more restrictive manner that the [Secretary] asserts it should be.

43    I interpolate here that in written submissions in reply the Secretary referred to SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14], in support of the proposition that context should be considered at the first stage of construction, not at some later stage.

44    As to the meaning of ‘assistance’ in Table 3, Mr Doherty noted that in some of the Impairment Tables the word ‘assistance’ was “followed by words that refine its scope”, as in Table 5, s 1(a) and Table 8, s 2(d) (which, as the Secretary noted in reply, related to functions that did not require the use of mobility aids), but that such refinement was absent in Table 3. Further, Mr Doherty noted that elsewhere in the Determination ‘assistance’ was specifically limited to ‘assistance from another person’, as in Table 3, s 2(b) and Table 13, s 4(b), but that this was not the case elsewhere in Table 3. Mr Doherty submitted that “absent such limitation, the term assistance in the relevant section of Table 3 must be given its ordinary, unqualified meaning” and, in consequence, there was no error in the Tribunal’s approach. Referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69], Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611 at 618, Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [39] and other authorities, Mr Doherty submitted that this approach was supported by the context of the Determination.

45    Mr Doherty sought to meet the Secretary’s argument about the effect of s 9 of the Determination. In his written submissions, he contended:

In essence, that is an argument that the general stipulation in s 9 that ‘a person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology’ should overrule the particular conditions outlined in Table 3 relating to evaluating Lower Limb Function.

However, such an approach is contrary to the rule “that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative”. Here, the statutory context for the Determination arises from ss 26 and 27 of the [Social Security] Act. Against that backdrop, it is clear that the Impairment Tables are the ‘particular enactments’ relating to the assessment of work-related impairments, while the provisions in part 2 of the Determination (including s 9) are the general provisions that relate to the way in which the Impairment Tables are to be applied. Accordingly, to the extent that there is any inconsistency, the Impairment Tables must take precedence over any general stipulation outlined in Part 2 of the Determination. 

46    Mr Doherty argued that the Tribunal’s alternative basis for its decision that he was entitled to DSP was sound. He submitted that the Secretary’s argument that ‘assistance’ in the ‘severe’ category in Table 3 was limited to ‘mobility assistance from another person’ should not be accepted. He argued that the Secretary’s construction left the ‘extreme’ category with no work to do. Counsel for Mr Doherty, Mr Tito, elaborated on this latter submission at the hearing.

47    At the hearing, relying on Sesalim v Secretary, Department of Social Services [2018] FCA 1159 at [20]-[22] and Negri v Secretary, Department of Social Services [2016] FCA 879; 246 FCR 1 at [43] and [46], Mr Tito submitted that the Impairment Tables were designed to provide illustrative examples for functional ratings. He submitted that the Secretary was erroneously seeking to have them treated as criteria, noting the use of the word “includes” in the first line of descriptor (2). Mr Tito contended that the Secretary focussed on the examples in Table 3 “in an attempt ... to distort the meaning of walk to suit a construction that is present in the Guide ... but finds no basis in the context of the scheme”. As to the word “walk” in descriptor (1), Mr Tito submitted that it should be attributed with its ordinary meaning and that descriptor (2) was merely an inclusive, not an exhaustive, definition of the circumstances covered by the ‘severe functional impact’ rating. Mr Tito submitted that “one shouldn’t distort the meaning of that test [in descriptor (1)] by reference to some non-exhaustive examples which aren’t intended to moderate the definition of walk in [(1)]”. Mr Tito took issue with the Secretary’s statement about the primary purpose of the Impairment Tables, emphasising that their purpose was to satisfy s 94(1)(b) of the Social Security Act, rather than to assess a person’s continuing ability to work, which was “an entirely different statutory function”.

48    Regarding the Secretary’s ground 2, Mr Doherty submitted that this ground invited the Court to enter illegitimately into the merits of the Tribunal’s decision; and, in any event, the Tribunal’s conclusion that “Mr Doherty was provided with assistance by other persons was open in light of its findings about occupational therapists visiting his house to ensure that it was liveable”. In the latter regard, citing Waterford v Commonwealth (1990) 163 CLR 54 at 77 and Repatriation Commission v Strickland (1990) 22 ALD 10, Mr Doherty submitted in writing that “[s]o long as there is some basis for an inference – in other words, the particular inference is reasonably open — then no error of law has taken place”, and that “[d]ecision-makers are entitled to make assumptions or draw on their own knowledge or experience”.

49    Mr Tito augmented these submissions at the hearing, referring to TR at [99], and submitting that “the evidence of Dr Smith and Mr Harris was sufficient for this point”. Mr Tito submitted that this evidence allowed the Tribunal “to draw inferences on whether or not Mr Doherty had weight bearing issues”. Mr Tito commented that “[n]ot only could it [the Tribunal] observe it itself, but it had evidence from a doctor about Charcot’s foot and what it meant”. Mr Tito also submitted that the Tribunal had before it the requisite corroborative evidence of Mr Doherty’s impairment. He submitted that this was because, apart from Mr Doherty’s evidence, the Tribunal had before it both the medical reports of Dr Smith and Mr Harris and the evidence of Mr Doherty’s sisters (as to which, see TR at [36]).

consideration

50    To qualify for DSP, a person must first satisfy s 94 of the Social Security Act. There is no dispute in this proceeding that Mr Doherty has an impairment within the meaning of s 94(1)(a) of that Act and the Determination. There is also no dispute that the relevant qualification period in Mr Doherty’s case was from 1 August 2018 until 31 October 2018, as the Tribunal determined.

51    The fundamental question in this proceeding is whether the Tribunal erred in law in finding that Mr Doherty satisfied s 94(1)(b) of the Social Security Act, which requires that his impairment “is of 20 points of more under the Impairment Tables”. Specifically, did the Tribunal err, as the Secretary contends, in finding that Mr Doherty’s impairment attracted 20 points under Table 3 of the Impairment Tables? In particular, the Secretary challenged the Tribunal’s decision, first, on the ground that the Tribunal erred in failing to apply s 9 of Pt 2 of the Determination correctly and, in so doing, misconstrued the word “assistance” in descriptor (1)(a) of the descriptors for severe functional impact in Table 3. The Secretary’s case was that, having regard to s 9, “assistance” in that paragraph meant only assistance from another person, and did not include assistance from aids or other equipment. The Secretary’s second ground was that the Tribunal failed to carry out its statutory task. This ground included a challenge to the Tribunal’s finding that Mr Doherty was provided with assistance by occupational therapists in the form of advice.

52    Before turning to the Secretary’s first ground, I would note that there are other eligibility requirements for DSP, as reference to s 94 indicates, although they do not arise for consideration here. I would also note that that, if a person is assigned 20 or more points in respect of an impairment under one Impairment Table, then the impairment is taken to be a severe impairment: see Social Security Act, s 94(3B). To qualify for DSP, persons with a severe impairment are not required to satisfy the Secretary that they have participated in a recognised program of support, although they need to satisfy the Secretary that the impairment itself is sufficient to prevent them from doing any work independently of a program of support or undertaking a training activity within the next two years: see Social Security Act, s 94(2)(aa), (a) and (b).

53    As already noted, the Impairment Tables (including Table 3) are part of the Determination. The Secretary accepted, and the Tribunal found, that Mr Doherty suffers from peripheral neuropathy and Charcot’s foot, which condition is permanent, being “fully diagnosed, treated and stabilised”: TR, [52]-[53]. The parties did not dispute that, in these circumstances, Table 3, addressing “Lower Limb Function”, was the appropriate Impairment Table to consider in Mr Doherty’s case.

54    The Social Security Act and the Determination governed the Tribunal’s task on review in so far as it was required to assign points under the Impairment Tables to Mr Doherty’s lower limb functional impairment to determine if Mr Doherty met the requirement in s 94(1)(b) of the Social Security Act. The outcome of the Secretary’s appeal depends principally on the proper construction of the Determination, particularly Table 3.

55    Broadly speaking, the same principles of construction apply to the Social Security Act and the Determination: see, e.g., Legislation Act, 13(1). It may be accepted that, as counsel for Mr Doherty submitted, in construing the provisions of the Determination, effect should generally speaking be given to the ordinary meaning of the text, having regard to the purpose of the Determination and the context in which the provisions in question appear. I say “generally speaking” because this is not a hard and fast rule. In this regard, the statement of Kiefel CJ, Nettle and Gordon JJ in SZTAL at [14] is helpful. Their Honours said:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, whilst at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, the meaning must be rejected.

56    The primacy of purpose to which their Honours referred at the close of the above passage is established by s 15AA of the Interpretation Act, which provides:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The effect of s 13(1)(a) of the Legislation Act is that the Interpretation Act applies to the Determination (being a legislative instrument of the kind to which s 13(1)(a) applies) “as if it were an Act and as if each provision of the instrument were a section of an Act”.

57    The Explanatory Statement accompanying the introduction of the Determination stated (at p 1) that:

Disability support pension is intended to provide income support to people who, because of an ongoing physical, intellectual or psychiatric impairment are prevented from working or from being re-trained for work.

Having regard to the provisions of Pt 2.3 of the Social Security Act, s 26 of that Act, the Explanatory Statement and the Determination itself, I accept Ms Lucas’s description of the purpose of DSP. The purpose of the Determination is therefore to facilitate the provision of DSP to people who are unable to work or be re-trained for work due to a physical, intellectual or psychiatric impairment. This purpose is reflected in the definition of “impairment” in the Determination itself, where impairment is defined as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”: see Determination, s 3. As explained below, this purpose is relevant to the specific issue falling for determination under the Secretary’s first ground.

58    There are further contextual matters to be considered. The Determination contains the rules made by the Minister under s 26(3). These are set out in Pt 2 of the Determination and govern how the Impairment Tables are to be applied: Determination, s 4. The rules direct that, in applying the Tables, a decision-maker must have regard to certain principles, including that the Tables “are function based rather than diagnosis based”; and “are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions”: Determination, s 5(2)(b) and (d). The rules also direct a decision-maker to assess a person’s impairment “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”: Determination, s 6(1). Critically for this case, the rule in s 9 (headed “Use of aids, equipment and assistive technology”) requires a decision-maker to assess a person’s impairment “when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses” (emphasis added).

59    Pausing here, it is clear that the rule in s 9 of Pt 2 of the Determination is a rule for applying the Impairment Tables (including table 3), as s 4 of the Determination and s 26(3) of the Social Security Act indicate. If a decision-maker fails to observe the rule in s 9 in applying Table 3, the decision-maker fails to act in accordance with the Determination. If a person uses or wears “any aids, equipment or assistive technology” – which would include a walking frame or wheelchair – then the decision-maker (here the Tribunal) was not only required to identify that the person used that equipment, but was also required to determine whether the person usually used that equipment in the relevant period. If the decision-maker found this to be the case, then the rule in s 9 required the decision-maker to assess the person’s impairment when the person was using the equipment (or aid or technology as the case may be). In this way, the rule in s 9 is consistent with the purpose of the Determination – to facilitate the provision of DSP to people who are unable to work or re-train for work due to a physical, intellectual or psychiatric impairment. This is because s 9 takes account of the situation where the usual use of any aid, equipment or assisted technology mitigates the functional impact of the impairment and may therefore affect a person’s capacity to work or to be re-trained for work. The application of the rule in s 9 to Table 3 does not involve any preference for a general provision over a specific provision, as the submissions for Mr Doherty maintained. Rather, the application of s 9 to Table 3 is that which is contemplated or required by s 4 of the Determination and s 26(3) of the Social Security Act.

60    Other rules in Pt 2 of the Determination govern how particular parts of a Table are to be applied. They indicate that, in substance, a decision-maker assigns a rating that is intended to reflect the level of the functional impact of a person’s impairment. For present purposes, it suffices to note the rules in s 5(3) and s 11 of Pt 2 of the Determination.

61    Section 5(3) in Pt  2 of the Determination states that:

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 limitation 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.

62    Section 11, also in Pt 2 of the Determination, relevantly states:

(1)    In assigning an impairment rating:

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

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

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

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

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

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

…

63    These rules make it clear that a decision-maker must have regard to the descriptors in the applicable Table in assessing which level of functional impact results from an impairment: see also Negri at [41] (Bromberg J). Broadly speaking (and subject to s 11), where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment: Determination, s 5(3)(a).

64    To identify the applicable rating, a decision-maker must compare the descriptors for each rating: Determination, s 11(2). In Table 3 (see [11] above) as in all the Impairment Tables, a descriptor is the entirety of information in the column headed “Descriptors”. The first line (in italics) describes a level of impairment impact. The examples of functional activities below the first line enable the decision-maker to identify what this impact level means in terms of the functional impact on a person’s activities, abilities, symptoms and limitations: Determination, s 5(3)(b). Each level of impairment impact carries a different rating.

65    In Negri at [43]-[44], Bromberg J helpfully observed:

[T]he impairment level is to be “identified by reference to the particular examples of functional activities, abilities, symptoms and limitations…”. [...] The examples are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.

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

66    His Honour added, at [45]:

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

67    A rating is intended to reflect the level of functional impact associated with a particular person’s impairment. Assigning a rating is an evaluative exercise. In substance, the decision-maker assigns a rating based on the available evidence, by making a comparison of the descriptors in the relevant Table to determine which one best describes the functional impact of the person’s impairment.

68    Bearing in mind the purpose of the Determination and the contextual matters to which I have referred, it seems to me that the Tribunal erred in its interpretation of “assistance” in paragraph (1)(a) of the descriptor under the first italicized line referencing “a severe functional impact on activities using lower limbs” in Table 3. The Tribunal was not only required to identify the equipment (relevantly here, a walking frame or wheelchair) that Mr Doherty had at the relevant time; it was also required to determine whether he usually used that equipment at that time. The Tribunal made no express finding to this effect, although it found that Mr Doherty had and used a walking frame and a wheelchair in the qualification period, but that his use of the wheelchair had ceased before that period ended. Assuming that the effect of the Tribunal’s findings were that Mr Doherty “usually” used a mobility aid or equipment, the rule in s 9 required the Tribunal to assess his impairment when he was using that equipment. Bearing this in mind, the Tribunal erred in concluding that “assistance” in paragraph (1)(a) of the relevant descriptor could include ‘assistance’ from equipment of this kind. Since Table 3 was subject to the rules in Pt 2, including the rule in s 9, the descriptors were required to be read subject to that rule. The separate and additional descriptive element introduced by the phrase “without assistance” in paragraph (1)(a) of the descriptors must be construed in light of that rule. Since the usual use of ‘assistance’ of this kind was already addressed by rule in s 9, the phrase “without assistance” in paragraph (1)(a) of the descriptor for the “severe functional impact” rating in Table 3 should be taken to mean without assistance “from another person”. The alternative construction favoured by the Tribunal fails to have adequate regard to the effect of the rule in s 9. Accordingly, in the context of that paragraph, the word “walk” should be construed to mean “walk or mobilise with the use of the aid, equipment or assistive technology that the person usually uses”. This is a case in which the ordinary meanings of words such as “walk” and “assistance” are modified or qualified by the context in which they are used and the effect of other provisions in the Determination, such as s 9.

69    I accept that, as the Secretary submitted, this construction of “without assistance” in paragraph (1)(a) as regards “severe functional impact” in Table 3 is consistent with the fact that paragraph (2) (also as regards “severe functional impact” in Table 3) states that this impairment rating “includes a person who requires assistance to “move around in, or transfer to and from a wheelchair ...” or “move around using walking aids”.

70    Furthermore, comparison between the levels of functional impact in Table 3 also tends to support the Secretary’s submission that “without assistance” in descriptor (1)(a) in the “severe functional impact” rating means “without assistance from another person”. This is because the “mild functional impact” and “moderate functional impact” ratings in Table 3 allow for assistance from a mobility aid or other equipment, but do not contemplate the need for non-mechanical assistance, that is, assistance from another person. If the “moderate functional impact” and “severe functional impact” ratings are compared, it is apparent that there is a significant difference between the examples referable to each of them, in that the “severe” rating refers to the need for assistance from another person, while the “moderate” rating does not.

71    I accept that, as counsel for Mr Doherty submitted, some Impairment Tables expressly refine the scope of what is meant by the use of the word ‘assistance’ in their descriptors and that no equivalent refinement is contained in paragraph (1)(a) of the descriptors in Table 3. Further, I accept that, as counsel for Mr Doherty submitted, elsewhere in the Determination ‘assistance’ is specifically limited to ‘assistance from another person’, as, for example in paragraph (2)(b) of the descriptors of “severe functional impact” in Table 3. In the latter case, as explained above, I regard the example in paragraph (2)(b) to be supportive of the conclusion that I have reached with respect to the meaning of the phrase “without assistance” in paragraph (1)(a) of that rating. More generally, however, while the rules in Pt 2 of the Determination, including in s 9, govern all the Impairment Tables, it does not seem to me that the differences in language in the Tables themselves is particularly persuasive with respect to the present inquiry, bearing in mind that the Tables are directed to impairments and functional impacts of different kinds.

72    As already noted, the Tribunal also purported to address the possibility that its understanding of the phrase “without assistance” in paragraph (1)(a) of the descriptors in the “severe” rating in Table 3 was incorrect by making alternative findings on the assumption that the phrase was in fact only directed to assistance from another person. As we have seen, counsel for Mr Doherty submitted that these findings were sufficient to support the Tribunal’s decision, whilst counsel for the Secretary contended they were not. For the reasons I am about to state, I do not consider that the Tribunal’s alternative findings were sufficient to ground the Tribunal’s decision.

73    As indicated already, in assessing which rating was appropriate in Mr Doherty’s case, the Tribunal was required to consider all the descriptors in Table 3 in determining which level of functional impact resulted from Mr Doherty’s impairment. To identify the appropriate level of functional impact, the decision-maker was required to compare the descriptors for each impairment rating, including the examples they gave.

74    I accept that as counsel for Mr Doherty submitted, the Impairment Tables provide examples designed to illustrate, rather than define, what is appropriate for each rating, but it does not seem to me that this proposition provides an answer to the Secretary’s case. If, as it would seem was the case here, his impairment fell within two ratings, being “moderate” and “severe”, the Tribunal could not assess his impairment as “severe” unless it was satisfied that all the descriptors for “severe functional impact” were satisfied. In the event that Mr Doherty’s case failed to satisfy all these descriptors, the lower rating would apply.

75    In this case, the Tribunal did not examine each descriptor relevant to “severe functional impact” in Table 3, make specific findings with respect to each of them, and compare these descriptors to those relevant to “moderate functional impact” in that table. The failure to engage in this inquiry flows from the Tribunal’s assumption that the phrase “without assistance” meant “without assistance from another person”. The only reference to a finding on this alternative basis with respect to paragraph (1)(a) of the severe functional impact rating in Table 3 was a finding at TR [99] that “on the balance of probabilities ... [Mr Doherty] did need assistance also from another person during the qualification period and beyond”. In making this finding, the Tribunal referred to “his evidence about waiting in the car, if going shopping, because of difficulties he would have in moving around a shopping centre or supermarket or getting to or from one”. This was a good deal less than required of the Tribunal in making in making findings on the alternative basis to which it referred.

76    Further, there are evident difficulties with respect to the Tribunal’s findings regarding paragraph (1)(a)(iii) of the descriptors relevant to severe functional impact rating in Table 3. In this connection, the Tribunal ”inferred” from Mr Doherty’s evidence that occupational therapists came to his house after his surgery that they gave him advice about using the bathroom and toilet. The Tribunal found that the provision of such advice was the provision of ‘assistance’ to Mr Doherty, within the meaning of paragraph (1)((a)(iii). This paragraph is plainly concerned with physical, or mobility, assistance; and, therefore, the Tribunal’s analysis required it to attribute a meaning to the word “assistance” that it cannot reasonably bear in the context of paragraph (1)(a)(iii) of the descriptors relevant to severe functional impact in Table 3.

77    The Tribunal also found that Mr Doherty was ‘assisted by another person’ “by being afforded the use of the frame ... by his late mother ... even though it was used by her for her own purposes when alive”. This too cannot be described as ‘assistance’ of the kind to which the descriptors in this rating in this Table refer. Further, as already noted, the Tribunal did not apply the rule in s 9 of the Determination by making all the findings required by that rule.

78    For these reasons, I reject the submission made by counsel for Mr Doherty that the Tribunal’s decision is maintainable on the basis of its alternative findings.

disposition

79    For the foregoing reasons the Secretary’s first ground of appeal is made out. I accept, moreover, that the Tribunal’s misconstruction of the word ‘assistance’ in the severe functional impact rating in Table 3 pervaded its review. As to the Secretary’s second appeal ground, I accept that, for the reasons already stated, the Tribunal did not carry out its statutory task, and therefore this ground is also made out. It is unnecessary to deal with any other issue raised by the Secretary’s second ground.

80    Accordingly, I would allow the Secretary’s appeal under s 44 of the AAT Act, set aside the decision of the Tribunal, and remit the matter to the Tribunal, differently constituted, to be heard and determined according to law. Bearing in mind that the Secretary’s legal representatives previously advised the Court that the Commonwealth would meet Mr Doherty’s costs up to a nominated amount, I would further order that, unless a party notifies the Court in writing by 4.00 pm on Wednesday 26 October 2022, indicating opposition to this order as to costs, there be no order as to the costs of the proceeding.

Associate:

Dated:    19 October 2022