Knight and Secretary, Department of Social Services (Social services second review) - [2017] AATA 1103

Knight and Secretary, Department of Social Services (Social services second review) [2017] AATA 1103 (19 July 2017)
Division:GENERAL DIVISION
File Number: 2016/5565
Re:Jason Knight
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:19 July 2017
Place:Brisbane

The Tribunal sets aside the decision under review.
..........................[Sgd]..............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – portability – whether maximum portability period may be extended – decision under review is set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Acts Interpretation Act 1901

CASES
Applicant 0108 of 2014 V Secretary, Department of Social Services [2016] FCA 421
Applicant 0108 of 2014 v Secretary, Department Of Social Services (2016) 152 ALD 521
Applicant 0108 of 2014 V Secretary, Department of Social Services [2017] FCA 57
Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 267 ALR 464
Shi v Migration Agents’ Registration Authority [2008] HCA 31
Singh and Secretary, Department Of Education, Employment And Workplace Relations [2010] AATA 720
WMKR and Secretary, Department of Social Services [2015] AATA 483

REASONS FOR DECISION
Member D K Grigg
19 July 2017
INTRODUCTION

Mr Knight has been a recipient of the disability support pension (“DSP”) since 2007.[1]
[1] Exhibit 1, T documents, 14, page 126, Centrelink records.
On 12 February 2016 Mr Knight contacted Centrelink and requested a determination as to whether or not he could be paid his DSP for longer than the maximum portability period while he was overseas.[2] Centrelink advised Mr Knight that in order for that to occur he would need to have a medical review of his DSP qualification. [3]
[2] Exhibit 1, T documents, T 13, page 116, Centrelink records.
[3]Exhibit 1, T documents, T 5, pages 47 – 48, letter from Centrelink to the applicant re portability period, dated 12 February 2016.
Mr Knight provided Centrelink with a medical form in April 2016 together with a medical report from Dr Malcolm Ash, Mr Knight’s General Practitioner.[4]
[4] Exhibit 1, T documents, T6, pages 49 – 51, medical report – review for portability form, completed by Mr Knight,
dated 12 April 2016; T7, pages 52 to 67, medical report completed by Dr Ash, dated 12 April 2016.
On 4 June 2016 Centrelink determined that Mr Knight was not qualified for unlimited portability of his DSP on the grounds that his impairment did not prevent him from performing any work independently of a program of support within the next five years.[5]
[5] Exhibit 1, T documents, T13, page 118, Centrelink records.
Claim History
Mr Knight requested a review of Centrelink’s decision on 7 June 2016 by an Authorised Review Officer (“ARO”). Mr Knight told Centrelink that he planned to travel overseas for at least three months to assist with his recovery and management of his personal situation for his health. [6] However, the ARO affirmed the decision to not allow unlimited portability while Mr Knight is overseas.[7]
[6] Exhibit 1, T documents, T13, page 120, Centrelink records.
[7] Exhibit 1, T Documents, T11, pages 88 – 92, ARO Decision and ARO Notes dated 12 July 2016.
Mr Knight then sought a further review by the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD Rejected Mr Knight’s claim and affirmed the ARO’s decision on 5 October 2016.[8]
[8] Exhibit 1, T Documents, T2, pages 5 – 9, SSCSD’s Decision and Reasons for Decision dated 5 October 2016.
On 16 October 2016 Mr Knight lodged an application for review of the SSCSD’s decision by this Tribunal.[9]
[9] Exhibit 1, T Documents, T1, pages one – 4, Application for Review of Decision dated 16 October 2016.
ISSUES FOR DETERMINATION
The issues for determination are whether or not:
(a)the maximum portability period for Mr Knight’s DSP was 28 days in a 12-month period; and, if yes
(b)the maximum portability period may be extended indefinitely.
STANDARD MAXIMUM PORTABILITY PERIOD
Section 1217 of the Act sets out a person’s maximum portability period in which a person’s social security payment will be paid. If a person is absent overseas for longer than their maximum portability period, payment of their pension will be suspended.
If a person who is a recipient of the DSP is temporarily absent for reasons other than to seek eligible medical treatment, to attend to an acute family crisis or for a humanitarian purpose, the maximum portability period is 28 days in the last 12 months (see Table in section 1217).
If a person exceeds their maximum portability period, their social security payments are not payable for the period of absence as occurs after the end of the person's portability period for the payment: section 1215 of the Act.
Mr Knight is not seeking to be temporarily absent from Australia to seek eligible medical treatment, to attend to an acute family crisis or for a humanitarian purpose, and therefore, subject to any permissible extension, his maximum portability period is 28 days.
CAN THE MAXIMUM PORTABILITY PERIOD BE EXTENDED?
Section 1217 provides for different maximum portability periods in certain circumstances. Mr Knight’s maximum portability period may be extended under section 1218AAA(1) for an unlimited period if, among other things, he has a severe impairment (see section 94(3B) of the Act).
For a “severely impaired disability support pensioner” their maximum portability period is unlimited (section 1217, Item 2A).
A severely impaired disability support pensioner is defined as a person in respect of whom the Secretary has made a determination under subsection 1218AAA(1): section 1212.
Section 1218AAA(1) provides:
(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.
Mr Knight contends that his impairments are severe within the meaning of section 94(3B), and that he satisfies the qualifying circumstances in section 1218AAA(1).
DO ALL THE QUALIFYING CIRCUMSTANCE IN SECTION 1218AAA(1) EXIST?
Is Mr Knight Receiving The DSP: section 1218AAA(1)(a)
Mr Knight is a recipient of the DSP and therefore satisfies section 1218AAA(1)(a).
Does Mr Knight Have A Severe Impairment? Section 1218AAA(1)(b)
Timing of Assessment
Before determining whether Mr Knight had a severe impairment a preliminary issue arises, namely, what is the relevant date by which his impairment must have been assessed as severe? Is the date of assessment the date Mr Knight requested unlimited portability or is it also relevant whether or not Mr Knight met those requirements at the date of this decision? The High Court has discussed this issue of timing and relevance of subsequent evidence in Shi v Migration Agents’ Registration Authority [2008] HCA 31 (“Shi”). In Shi the High Court noted that the Administrative Appeals Tribunal Act 1975 (Cth) does not specifically provide whether or not the Tribunal’s review of the decision made is based on the evidence available at the time the original decision was made. The High Court held that the question of whether or not the Tribunal is restricted to a consideration of facts and events which had occurred at the time of the reviewable decision is answered by identifying the powers which are to be exercised by the Tribunal and the specific decision to which they are addressed ([at 119], per Kiefel J, as she then was).
I also note Kirby J stated (at [41]) in Shi that:
When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.
This Tribunal in WMKR and Secretary, Department of Social Services [2015] AATA 483 found that in relation to unlimited portability determinations that the date it should take effect was the date of the claim or request and subsequently as circumstances demand. Deputy President Forgie found, in Singh and Secretary, Department Of Education, Employment And Workplace Relations [2010] AATA 720, that unless there is a temporal element in the legislation requiring a contrary conclusion the Tribunal reviews a decision as at the date it conducts the review and reaches its own decision and that therefore the Tribunal may have regard to evidence on issues and matters up to the date of its decision on review.
The Secretary submitted that the approach in WMKR is the correct approach. The Secretary also submitted that, in this case, nothing turns on the relevant date of assessment because Mr Knight’s circumstances have not changed since February 2016.
There is nothing in the relevant legislation which requires the Tribunal to disregard evidence that may have come to light subsequent to Centrelink’s determination in June 2016. Following Shi and WKMR, I consider that I am not bound to only consider evidence that was available to Centrelink at the time of its decision, but may also consider evidence and matters that have arisen subsequently.
Does Mr Knight have a “severe impairment”?
A severe impairment is an Impairment that attracts 20 points under one single Impairment Table (section 94(3B)).
Dr Ash reported in April 2016 that Mr Knight had the following medical conditions:[10]
(a)Asperger’s syndrome - which was a lifelong condition diagnosed by Dr Nielson, Psychiatrist, on 6 April 2016;
(b)headache – which is noted as a presumptive condition that has not at this stage been confirmed by a specialist;
(c)anxiety and depression - which is noted as presumptive (although Dr Ash records that an unknown psychiatrist diagnosed the condition but that no reports are available); and
(d)ACL rupture - right knee, chondromalacia patella - right knee and chondromalacia medial femoral condyle - right knee.
[10] Exhibit 1, T documents, T7, pages 52 to 67, medical report completed by Dr Ash, dated 12 April 2016.
There is no dispute that Mr Knight’s Asperger’s syndrome is a permanent impairment (as defined in section 6(4) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011).
On 13 May 2016 Mr Knight was assessed face-to-face by a job capacity assessor (“May JCA”). The May JCA concluded that Mr Knight Asperger’s condition was permanent and attracted a 20 point impairment rating under Table 5;[11] in other words, it was a severe impairment.
[11] Exhibit 1, T Documents, T9, pages 76-85, JCA Report dated 26 May 2016.
The Respondent accepts that Mr Knight’s Asperger’s condition was a severe impairment.[12]
[12] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 March 2017, para 41.
Given that Mr Knight has a severe impairment in relation to his Asperger’s syndrome, it is not necessary to consider Mr Knight’s other medical conditions.
Mr Knight satisfies section 1218AAA(1)(b).
The next issue to be determined is whether or not Mr Knight will have that severe impairment for at least the next 5 years.
Will Mr Knight Have That Severe Impairment For The Next 5 Years? Section 1218AAA(1)(c)
The medical evidence of Dr Ash and Dr Nielson supports a finding that Mr Knight’s Asperger’s condition will continue to be a severe impairment for the next 5 years.[13] This is accepted by the Respondent.[14]
[13] Exhibit 1, T documents, T10, pages 86-87, Letter from Dr Ash, dated 13 June 2016; Exhibit 1, T documents, T12,
page 107, Letter from Dr Nielsen, dated 15 August 2016; Exhibit 3, Letter from Dr Ash dated 12 October 2016; Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 March 2017, Attachment B, Letter from Dr Ash dated 9 February 2017.
[14] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 March 2017, para 41.
Mr Knight satisfies section 1218AAA(1)(c).
Does Mr Knight’s Severe Impairment Prevent Him From Performing Any Work Independently Of A Program Of Support Within The Next 5 Years? Section 1218AAA(1)(d)
Section 1218AAA(1)(d) requires a consideration of whether, if in Australia, Mr Knight’s severe impairment would prevent him from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
For the purpose of section 1218AAA(1)(d) “work” means work:[15]
(a)that is on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
(my emphasis)
[15] Section 1218AAA(5).
A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person (section 94(4)):
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
What is meant by the words “any work”.
The Secretary submits that the words “any work” do not import any requirement that the work is regular or ongoing or that the person must be able to sustain the work for a particular length of time. The Secretary contends that provided there is some evidence that Mr Knight is capable of performing any work, that is sufficient.[16]
[16] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 March 2017, paras 42-48.
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that 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.
Schedule 3 of the Explanatory Memorandum to the Bill for the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act 2012 (“Reforms Act”), which introduced the current version of section 1218AAA(1)(d), dealt specifically with portability of DSP, relevantly as follows:
Schedule 3 — Portability of disability support pension
Summary
This Schedule introduces more generous rules, for disability support pensioners with a severe impairment that is likely to continue for at least five years and result in the person having no future work capacity, allowing them to retain access to their disability support pension if they travel overseas for more than 13 weeks.
Background
…
The amendments made by this Schedule establish a new category of people who can access an unlimited portability period that is similar to the existing section 1218AA. The Secretary will be able to determine that a person who has a severe impairment that is likely to continue for at least five years and who, as a result of the impairment, is not able to undertake any work, has an unlimited portability period. This will mean that a person who meets the criteria can live outside Australia indefinitely and continue to be paid disability support pension.
The amendments made by this Schedule commence on 1 July 2012.
Explanation of the changes
… A severely impaired disability support pensioner, as determined in accordance with new section 1218AAA of the Social Security Act (inserted by item 10 below), can live outside Australia and continue to be paid disability support pension.
…
Item 9 provides for the amendment of the table at the end of section 1217, by inserting a new table item 2A to provide that the maximum portability period for a severely impaired overseas disability support pensioner is unlimited.
…
It is generally intended that, before the Secretary makes a determination under new section 1218AAA, the disability support pensioner would be required to undergo an assessment in Australia to determine whether they meet the criteria for a severely impaired overseas disability support pensioner.
…
New subsection 1218AAA(5) inserts a definition of work for the purposes of this new section. For the purposes of new section 1218AAA, work means employment that is available in Australia for a wage that is at or above the appropriate minimum wage. This includes work that is in a location away from where the person ordinarily lives.
(my emphasis)
Barker J in Applicant 0108 of 2014 v Secretary, Department Of Social Services (2016) 152 ALD 521 (“Applicant 0108”) said (at [55]), “[p]lainly the changes [made by the Reforms Act] were intended to introduce “more generous rules””.
In interpreting a section of an Act, the High Court has said that “[t]he words of the statute, not non-statutory words seeking to explain them, have paramount significance”: Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at [22].
The High Court discussed the primary objective of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 at [69]-[70] (per McHugh, Gummow, Kirby and Hayne JJ):
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed“. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals…
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision…
(my emphasis)
Section 1218AAA(5) defines “work”, for the purpose of section 1218AAA(1)(d), without any reference to a necessary number of hours or regularity. “[I]t is silent in that regard and simply provides that work means work “that is on wages … that exists in Australia”: Applicant 0108, at [86]. By contrast the definition of “work” in section 94(5), used in assessing eligibility for DSP, incorporates an ability to work for a minimum of 15 hours per week. Barker J in Applicant 0108, at [88], noted that the Secretary submitted, as it does in this case, that the concept of being prevented from performing “any work” in this context is to be contrasted with the concept of work under s 94, being work “that is for at least 15 hours per week”. That is, the Secretary submits, if there is any capacity for work, however small (even less than two hours), para (d) cannot be satisfied. However, Barker J held that that contention did not answer the question and said:
[89]…the question remains not whether, in some theoretical or detached setting, free from the actual labour market in Australia, the severely impaired person is prevented from performing work, but whether their impairment prevents them from performing any work that is on wages that are at or above the relevant minimum wage and that exists in Australia. That work needs to be identified before the question can be answered whether or not they are prevented, by their impairment, from performing such work. (my emphasis)

Barker J held in Applicant 0108, that, in determining whether a person is prevented from performing work because of a severe impairment it is “essential to identify what work for wages the applicant would be able to do, having regard to the state of [his/her] impairment”.[17] It “is insufficient to identify the fact that the applicant may be able to do, for example, some household chores and therefore should be able to do some remunerative work”.[18]
[17] 0108 of 2014 v Secretary, Department of Social Services [2017] FCA 57, at [5]; Applicant 0108 of 2014 v
[18] 0108 of 2014 v Secretary, Department of Social Services [2017] FCA 57, at [5].
Barker J noted in Applicant 0108 that if, in that case, the work had been identified, a medical practitioner could have provided evidence as to the applicant’s work capacity (at [90]).
While I accept that there is no set number of hours per week that a person must not be able to work in order to satisfy section 1218AAA(1)(d), that does not answer the question of whether work exists which Mr Knight is capable of doing despite his severe impairment.
Greenwood J in Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 267 ALR 464 (“Harris”), noted, in the context of the definition of work in section 94(5) of the Act (which similarly requires that the “work” must “exist”) that:
[81] … The Macquarie Dictionary of Australian English defines the term “exist” as “to have actual being; be; to have life or animation; live; … to have been in a specified place or under certain conditions; be found; occur”. The New Oxford Dictionary of English defines the term as “have objective reality or being; be found, especially in a particular place or situation; live, especially under adverse conditions”. The statutory concept of work suggests that the secretary must be satisfied that the sources of work the applicant might be said to be able to do, must be work which has “actual being” or an “objective reality [of] being”. (my emphasis)
Greenwood J said (Harris, at [15]) that “[t]he reference to "any work" is a reference to any work that exists in Australia even if that work is not within the person's locally accessible labour market and work…on wages that are at or above the relevant minimum wage: s 94(5)”.[19]
[19] Section 94(5) is identical to the definition of work in section 1218AAA(1)(d), other than that section 94(5) imports a
requirement that the person must be able to work a minimum of 15 hours per week. Therefore, Greenwood J’s findings in relation to the phrase “any work” provide guidance as to their meaning in section 1218AAA(1)(d).
In Harris Greenwood J held that:
[113] The sources of work identified by the secretary [real estate, in retail or perhaps as a service station console operator]…lack any content. There is no evidence of the field of activities, jobs, position descriptions, tasks or other particularity of the work within the nominated industrial sectors that Mr Harris is said to be able to do. There is no evidence of the scope of the work falling within the activity of "real estate" or "retail sales". Nor is there any evidence of the tasks which would fall to a person filling the quite specific position of operator of a console in a service station whatever that job may actually be or involve.”
[114] There is no evidence of the duties attached to work positions said to be available in the nominated sectors which exhibit a line of activity (that is, tasks) that accommodates the limitations confronting Mr Harris (as described at [111]) together with his need to use a walking stick. Further, there is no evidence of whether such work exists attracting the payment of wages that are at or above the relevant minimum wage applicable to the particular position.
[122]… the tribunal will be required to consider whether there is, on the evidence, such a job, in fact. If so, the tribunal must decide whether Mr Harris can do the work independently of a program of support. If there is no such workplace job, in fact, and Mr Harris seeks work on the open workplace market for labour, the tribunal must also decide whether Mr Harris's impairment is of itself sufficient to prevent him from doing any work taking account of the finding of fact, independently of a program of support.
What is the identified “work” that the Respondent submits Mr Knight could do?
The May JCA concluded that:
(a)Mr Knight’s future work capacity within 2 years was 8 to 14 hours per week;
(b)Mr Knight’s impairments/work capacity criteria for indefinite portability of DSP were not met; and
(c)despite Mr Knight’s severe impairment, suitable work included light semiskilled work for example in guest services or product information.[20]
[20] Exhibit 1, T Documents, T9, pages 76-85, JCA Report dated 26 May 2016.
In December 2016, the Department conducted a further job capacity assessment (“December JCA”). The December JCA was conducted by way of a file assessment by a registered occupational therapist and registered psychologist. The December JCA did not meet with or interview either Mr Knight nor any of his treating medical practitioners. The December JCA concluded that:[21]
(a)an appropriate impairment rating for Mr Knight’s Asperger’s syndrome was 20 points;
(b)Mr Knight’s future work capacity within 2 years was 8 to 14 hours per week;
(c)Mr Knight’s impairments/work capacity criteria for indefinite portability of DSP were not met; and
(d)despite Mr Knight’s severe impairment, suitable work included light semi-skilled work for example as a laboratory technician, English teacher for culturally and linguistically diverse people, librarian, data entry, animal trainer, psychology research assistant, or statistician.
[21] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 March 2017, Attachment A, JCA
Report dated 12 January 2017.
The Secretary contends that the suitable work Mr Knight could do, is the work identified by the December JCA.
Can Mr Knight perform the work identified by the December JCA?
In response to the May JCA report Dr Ash wrote a letter refuting Mr Knight’s ability to work at least 8 hours per week.[22] Dr Ash has been Mr Knight’s doctor for 10 years. Dr Ash reports that on occasions when Mr Knight has attempted regular work that he has either been terminated by the employer or has voluntarily left the job due to distress. Dr Ash writes that this is because he becomes overwhelmed with anxiety to the extent that he can become unable to communicate; his personality is such that he becomes the brunt of victimisation in the workplace; he finds himself isolated and friendless; and this, in turn, aggravates the anxiety. Dr Ash says Mr Knight has a fixed developmental problem that has always been with him and always will be. Dr Ash says he has no money or fixed abode and whilst he has been seen by psychologists in the past they have not been able to assist him alter the direction of his life. Dr Ash concludes that in his opinion “I do not think it is in anyone’s benefit to require Mr Knight to obtain regular employment as a condition of granting him portability of his disability support pension. He is not fit now, or ever, to work more, less, or 8 hours per week on a regular or irregular basis.”[23]
[22] Exhibit 1, T documents, T10, pages 86-87, Letter from Dr Ash, dated 13 June 2016.
[23] Exhibit 1, T documents, T10, pages 86-87, Letter from Dr Ash, dated 13 June 2016.
Dr Nielsen, Psychiatrist, provided a letter on 15 August 2016 to say that in his opinion “Mr Knight is unable to work 8 hours per week. He seems able to work 8 hours per week, and is willing to work 8 hours per week. The problem is that his Asperger’s disorder is severe enough that people do not put up with him.”[24]
[24] Exhibit 1, T documents, T12, page 107, Letter from Dr Nielsen, dated 15 August 2016.
In October 2016 Dr Ash wrote again confirming that in his opinion, “Mr Knight has been unable to obtain sustained full, or part-time, work of any type, despite his best efforts to obtain this.… Mr Knight’s permanent and severe disability will persist at its current level for 5 years and beyond. I also assert that Mr Knight is prevented from performing any work independently on a program support within the next 5 years.” Dr Ash supports Mr Knight’s application for portability of his DSP.[25]
[25] Exhibit 3, Letter from Dr Ash dated 12 October 2016.
In response to the December JCA report, Dr Ash provided the following additional opinion on 9 February 2017:[26]
I would assert that I know him better than anyone else alive. Despite that he still positions himself in the room at the point furthest from me. A function of his Asperger’s syndrome. Dr Ash says he has read the job capacity assessment dated 12 January 2017 and noted the work history and work capacity and assessment summary. In Dr Ash’s opinion Mr Knight’s sad situation currently is a direct consequence of his Asperger’s syndrome with associated depression and anxiety and not a separate entity. Mr Knight is a man of middle years now, with tertiary qualifications, who has only ever had occasional intermittent brief employment since gaining his qualifications. His possessions are minimal and he almost qualifies as a person with no fixed address. He has no long-term relationships or friends other than one other person. Compare this with the usual expectations and experiences of any other men of middle years with a tertiary education. The differences are strikingly obvious. All of this is a direct consequence of his Asperger’s syndrome. His situation socially is not a consequence of non-medical events. Not only has Mr Knight had only a few brief periods of employment in his adult life, the employment is usually terminated by his employer as he is performing poorly or causing difficulties with those with whom he interacts in the course of his employment. If it is Mr Knight who terminates the employment, it is because he is too depressed, anxious or paranoid as a result of the stress of employment to be able to continue. These periods of employment are torture for him and he only manages to continue by sheer act of will. He then needs long periods to recover emotionally from the experience. This scenario repeats itself each time. His accommodation is only ever temporary because he is usually either ejected from the dwelling by the other occupants. He has even had death threats on more than one occasion. This is hard to believe… However, it is a fact and is directly related to his personality traits inherent in his Asperger’s syndrome. To state that he can hope to ever [perform]… 2 hours paid work all week on a regular basis is a fallacy. He may be currently doing up to 4 hours a week as a volunteer, but this allows him to fail to attend or leave early without any repercussions, if he is unwell on the day. After all he is… not receiving any payment from the employer. How can a man who is constantly beset with multiple physical and psychological symptoms, takes to his bed for days on end, who may never leave his room for weeks be relied upon to turn up on time for rostered shifts and be expected to perform adequately. All professional interventions, over many years, to alter his behaviour have failed totally. Once again I reiterate that Mr Knight is unfit permanently for any and all paid employment now and in the future. This will not change. His previous employment history speaks for itself. It is pointless pushing him into a role that will predictably fail, cause him anguish at the time, and well after it ceases, prematurely as always. Well-intentioned postulations about being given support, gradual increase in hours will make no difference. The end is predicted before the start. He is permanently unfit to be a laboratory technician [and the other positions listed by the December JCA] or any of the paid occupation suggested, at any level and to think otherwise is fantasy.”
[26] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 March 2017, Attachment B, Letter from
Dr Ash dated 9 February 2017.
Dr Ash also gave evidence before the Tribunal. Dr Ash has been a General Practitioner since 1972 and Mr Knight’s doctor for over 10 years. Dr Ash told the Tribunal that Mr Knight was originally diagnosed with Asperger’s syndrome by Dr Nielson, psychiatrist, in April 2016 and that it is a lifelong condition. When asked under cross-examination whether or not Mr Knight’s condition had worsened Dr Ash said there are been very little change and that while people with Asperger’s can learn to adapt the look of their behaviour, their condition remains the same over time, although other aspects may fluctuate due to external factors. In terms of treatment Dr Ash says no treatment has worked because medication caused side-effects which outweighed any benefit and that Mr Knight had seen psychologists for many years in the past but that none of them had assisted. Dr Ash confirmed his previous opinion that due to his condition, Mr Knight can only stay employed for a short period. In Dr Ash’s opinion even though Mr Knight could commence employment, his condition means that it is inevitable that he could only perform any work for a very short time. Dr Ash says the stress that this causes on Mr Knight outweighs any potential benefits Mr Knight might have from working. Dr Ash says working destabilises Mr Knight, causes him to become depressed and reinforces Mr Knight’s opinion of himself as a failure. Dr Ash says that forcing Mr Knight to commence work has negative consequences and that Mr Knight deteriorates greatly. In Dr Ash’s opinion, forcing Mr Knight to work is inappropriate, cruel and pointless. Dr Ash said Mr Knight is not fit to start a job, he has never sustained any employment, he has no fixed abode and cannot settle anywhere. When it was put to Dr Ash that Mr Knight has travelled overseas in the past and that this indicates that he can plan and interact with people, Dr Ash said that whilst he can interact briefly, it is only on a superficial level and that he can only sustain very short term relationships. Dr Ash says the very nature of his severe Asperger’s condition means that he cannot appropriately interact with people on more than a superficial level and that it is for this reason that he is permanently unfit for any kind of employment. Dr Ash says that Mr Knight has no connections and his solution is to go overseas where he could live cheaper and better. Dr Ash referred to an incident in the past where Mr Knight had been living in community housing and that because of behaviour related to his condition he required police protection when he moved out. Dr Ash says that Mr Knight has given a lot of things a try, he can plan and make decisions such as buying tickets and food but when he is stressed and not well he cannot make decisions at all and ongoing interactions, such as those required in the workplace, cause Mr Knight significant stress.
Mr Darron Kearse, was the Registered Psychologist who prepared the December JCA and gave evidence at the Tribunal hearing. Mr Kearse is a qualified Registered Psychologist with an Honours degree in psychology from Griffith University and has worked as a JCA since 2007. Mr Kearse says he was requested by the Department to conduct a file assessment and in order to prepare his report he considered the departmental documents and medical evidence on file, including Mr Knight’s original DSP claim. Mr Kearse said the basis for his findings were as a result of the conclusions reached by the previous JCA’s and from the recorded departmental information regarding Mr Knight’s previous work history. Mr Kearse also said that he did not take into account any external factors that may be impacting further on Mr Knight’s condition, such as being homeless. Mr Kearse gave evidence that Asperger’s certainly affects people in social and work situations and that people with this condition have difficulty getting along with other people. Mr Kearse says the reasons that he identified the particular types of jobs that he did in his report was because those jobs involve more workplace isolation and that those jobs may be easier and more suitable for someone like Mr Knight. Mr Kearse said that he was “quite confident” that Mr Knight could find appropriate work “if” he is well. Mr Kearse acknowledged that in preparing the December JCA and forming his opinion, he had not consulted with Dr Ash or Mr Knight.
Detective Sergeant Michael Hall also gave evidence before the Tribunal. Detective Sergeant Hall has 30 years experience in the police force and currently works in the Brisbane City CIB. He said he has known Mr Knight for 4 to 5 years and that in his dealings with Mr Knight, Mr Knight has never been dishonest and he has always found the information that Mr Knight provides him to be honest and accurate. Detective Sergeant Hall says that he has assisted Mr Knight through difficult times when he has been having issues with his accommodation and that he has seen how stressful situations have had a negative effect on Mr Knight.
Mr Knight told the Tribunal that he has tried to get jobs and that he wants to work. However,he says he is too honest and does not have a filter and this can be very difficult for employers. Mr Knight referred to his time as a guest support worker at Hayman Island in 2015 where he was working for 8 hours a day and sometimes up to 10, but he says he was unable to sustain it due to tension and issues arising (as a result of his condition) with his boss and fellow workmates. Mr Knight’s employment at Hayman Island was terminated after only 2 months. Mr Knight says he was even being supported by somebody at that time and still couldn’t manage to sustain the work. He has also worked previously in New Zealand and Japan briefly as an English language teacher but again those jobs were extremely short lived. The May JCA records that Mr Knight worked in Japan for approximately 2 months in 2006 but was again terminated due to difficulties with his employer. Mr Knight said that that was inaccurate as it was actually a far shorter period of time. Mr Knight says he does not get on with his family and has no friends, that he wants to be better and wants to keep trying things. He said he essentially lives in backpacking establishments but that because of the relationship breakdowns that inevitably occur in these establishments, he ends up having to move along to different backpacking accommodation after very short periods of time. Mr Knight also commented that his reaction to situations can sometimes be unpredictable. Mr Knight said he had significant thoughts of suicide some time ago and had intervention resulting in admission to hospital. Mr Knight said he had never had a proper relationship. He knows he looks normal but he is not able to form any kind of deep connections with people. He says he cannot stay around people for long because they get “worn out”. Mr Knight also pointed out that the May JCA recorded that he owned a car but he says that is simply not correct. He also says that whilst he would accept work if offered to him when he was overseas that this was not his intention for wanting to travel despite how that has been recorded in the May JCA report.
Subsequent to the hearing Mr Knight provided the Tribunal with written submissions.[27] Mr Knight expressed concern that he had not communicated effectively in the hearing. However, I believe he did communicate well and effectively.
[27] Submissions of Mr Knight dated 23 June 2017.
Mr Knight reiterated in his written submissions that:[28]
[28] Submissions of Mr Knight dated 23 June 2017.
·he lives in isolation and frequently spends months without talking to anybody;
·he has no close relationships;
·he often does nothing but avoid pain;
·he has a very difficult lifestyle but he manages to create his own projects to get by;
·other factors go on to compound the difficulties, such as destructive neighbors, mental & physical harassment, ensuing medical symptoms, the spiral down into the abyss, etc;
·when one part of his life collapses his whole world falls apart everywhere else;
·he often finds himself living in the wrong environment (fish out of water) and it feels like living in a prison cell, so isolated, or a pressure cooker, too much to deal with, so I look to escape. For these reasons, and more, I must move on when I need to;
·travel is a tool that works.
·I live a good clean life by myself. I am not a huge cost to society - such as criminals & druggies are. I don't need more experts prodding and probing me at great expense.
·I need self direction. And I need help attaining self actualization above the first level on the pyramid - food, shelter, safety. From there I can build a life.
·I don't waste money on smoking, I don't go to parties, I don't dine-out, don't socialize, don't drug up. I don't waste money.
·I am honest and fair. I am a responsible person. I manage my life in a unique way, the way I learned to survive. I live by my routines. I have my patterns. They work for me. Travel is a tool that enables me while having no negative effects towards others. Portability suits my condition.
·Over twenty years ago travel first broke me out of my isolation. Travel helped me grow. Freedom of travel is a vital tool for me to use because it enables me to have successful contact with people, practice my social skills, and build confidence, heal, and return to my home with more resilience. Travel is therapy.
·Portability is a stepping stone to a life beyond suffering.
·Work does not happen in a vacuum. There are reasons behind my unemployment - pre-work reasons. Doctors are aware of these issues {in depth) and have provided medical evidence in the hearing. If you require additional information I will provide it.
·In my state of mind work is impossible. My circumstances compound the problem, no life, no accommodation, no support. I have nothing. I need to rebuild myself, my way. At times, travel helps me to heal, and connect with people, even if only superficially. What more can I say.
·“Any work" - work does not happen in a vacuum. My life is excessively challenging before I even get to work and deal with those extra issues.

Mr Knight appeared to be an intelligent man with a good understanding of his condition and the difficulties he faces in day-to-day life as a result. Mr Knight became emotional and upset when describing his persistent failure to hold down any employment. As Dr Ash commented, Mr Knight presents well and does well at initial meetings and as a result often has no difficulty in being hired for the jobs that he seeks. However the overwhelming evidence is that none of the jobs that Mr Knight has had over the past 10 years have lasted longer than a few weeks or months and that this is solely due to his Asperger’s syndrome.
The evidence from Dr Ash and Dr Neilson indicates that whilst Mr Knight is not obviously physically impaired, his condition, and its severity, means that the length of time in which Mr Knight can remain in a workplace is only ever of a very limited duration. Dr Ash and Dr Nielsen clearly do not consider that Mr Knight is capable of working within the next 5 years. The question however is whether or not being capable of working once for a short period of time is sufficient in order to render Mr Knight incapable of fulfilling the criteria in section 1218 AAA(d).
As noted by Greenwood J in Harris, there is no evidence of “position descriptions, tasks or other particularity of the work” identified by the December JCA that [Mr Knight] is said to be able to do. “There is no evidence of the scope of the work falling within the activit[ies]… Nor is there any evidence of the tasks which would fall to a person filling the quite specific position of [laboratory technician, English teacher for culturally and linguistically diverse people, librarian, data entry, animal trainer, psychology research assistant, or statistician]… Further, there is no evidence of whether such work exists attracting the payment of wages that are at or above the relevant minimum wage applicable to the particular position.
Therefore, I find that the requirement set out by Barker J in Applicant 0108 has not been satisfied. Even if that were not the case, in Mr Knight’s treating medical practitioner’s opinion, Mr Knight is not capable of working at all.
Further, Dr Ash has given evidence that Mr Knight could not perform this work, or indeed any work, and to do so would be contrary to medical advice. Mr Knight’s work history certainly indicates that Mr Knight cannot perform work at an appropriate level and as a result his employment is terminated or he resigns.
CONCLUSION
In the circumstances I find that section 1218AAA(1)(d) is satisfied and Mr Knight’s maximum portability period is unlimited.
The decision under review is set aside.

I certify that the preceding 69 (seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 19 July 2017

Date of hearing: 13 June 2017

Applicant: In person

Solicitors for the Respondent: Department of Human Services

Secretary, Dept of Social Services [2016] FCA 421, at [82].

Date of hearing:	13 June 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services