Secretary, Department of Employment and Workplace Relations v Parry

[2007] FCA 1606

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal deciding the respondent qualified for Disability Support Pension – concession that the appeal must be allowed as Tribunal failed to address s 94(2)(b) Social Security Act 1991 (Cth) – ambiguity in Tribunal’s reasons

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Social Security Act 1991 (Cth) ss 39(1), 94, Sched 1B

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS v ROD PARRY

No WAD 26 of 2007

FINN J
26 OCTOBER 2007
ADELAIDE (VIA VIDEO LINK TO PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 26 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR P A STAER (MEMBER)

BETWEEN:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Appellant
AND:	ROD PARRY Respondent

JUDGE:	FINN J
DATE OF ORDER:	21 SEPTEMBER 2007
WHERE MADE:	ADELAIDE (VIA VIDEO LINK TO PERTH)

THE COURT ORDERS THAT:

1.The application be allowed.

2.The decision of the Administrative Appeals Tribunal of 18 December 2006 be set aside.

3.Remit the matter to the Tribunal for redetermination according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 26 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR P A STAER (MEMBER)

BETWEEN:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Appellant
AND:	ROD PARRY Respondent

JUDGE:	FINN J
DATE:	26 OCTOBER 2007
PLACE:	ADELAIDE (VIA VIDEO LINK TO PERTH)

REASONS FOR JUDGMENT

1. It has been conceded by the respondent, Rod Parry, that this appeal by the Secretary, Department of Employment and Workplace Relations under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Tribunal which determined that Mr Parry qualified for Disability Support Pension from 15 June 2005 onwards under s 94 of the Social Security Act 1991 (Cth) must be allowed. I have in consequence made orders allowing the appeal setting aside the Tribunal’s decision and remitting the matter to the Tribunal to be re-heard and determined according to law. I indicated at the time that I would publish my reasons at a later date. These are those reasons.

2. In essence, the appeal turns on a very narrow question.  It is whether the Tribunal, on a fair construction of its brief reasons, in fact found that Mr Parry had the “condition” described as “shortness of breath” or whether shortness of breath was merely an “impairment” which was caused by another condition, i.e. “diabetes mellitus”.  The appeal has proceeded upon the assumption that Mr Parry suffers at least from two conditions, diabetes mellitus and chronic liver failure.

3. It is the Secretary’s contention that the Tribunal found as well a third condition described as “shortness of breath” and it is in respect of this alleged finding that the questions of law founding the appeal are said to arise.  While three of the four questions of law said to arise build upon this finding, it will only be necessary for me to consider whether, on a proper construction of the Tribunal’s reasons, this alleged finding was in fact made.

   THE REASON

4. The fourth of the grounds of appeal relied upon relate to a failure by the Tribunal to address and arrive at the required satisfaction about one of the criteria statutorily prescribed in s 94(2) of the Social Security Act relating to whether a person has a continuing inability to work because of an impairment. It is clear on the face of the Tribunal’s reasons that the Tribunal only addressed one of the two criteria prescribed, that was s 94(2)(a). It is its failure to address s 94(2)(b) that led to the concession that was made. Because the matter must be re-determined by the Tribunal and because the Tribunal’s decision has been challenged on grounds other than the failure to which I have referred above, it is appropriate that I address briefly the question whether the Tribunal did make the finding of a condition of shortness of breath contended for by the Secretary. The essence of the Secretary’s challenge is that if such a finding was made the Tribunal failed properly to apply cl 4 of the Introduction to the Tables for the Assessment of Work-Related Impairment to be found in Sched 1B of the Social Security Act. The tables have statutory force: see s 39(1) of the Act.

5. To understand the significance of this it is necessary to refer in a little detail to the statutory setting. 

6. Section 94 of the Social Security Act insofar as presently relevant provides:

   “Qualification for disability support pension – continuing inability to work

   94(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;

   …

   94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

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

   (b)       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.”

7. The Impairment Tables referred to in the section are, as its Introduction indicates, designed to assess whether an applicant for disability support pension meets the empirically agreed threshold in relation to the effect of a person’s impairments on his or her ability to do work.  The impairments assessed are functional impairments resulting from conditions that have been fully documented and diagnosed. 

8. The question posed by the assessment to be engaged in is, as indicated in clause 2 of the Introduction, “which body systems have a functional impairment due to this condition?”

9. Clause 4 of the Tables indicates that a rating under any one of the specific tables relating to functional impairments is only to be assigned after a particular diagnosed condition “has been investigated, treated and stabilised”. 

10. Clauses 5 and 6 insofar as presently relevant go on to provide:

    “5.The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years. 

    6.In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider: 

    ·what treatment or rehabilitation has occurred;

    ·whether treatment is still continuing or is planned in the near future;

    ·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.”

11. If I can interpolate at this stage, it is clear, in my view, that if the Tribunal had made a finding that “shortness of breath” was a separate medical condition, there was no evidence to support a finding that that condition had been diagnosed, treated and stabilised as required by clauses 4, 5 and 6 of the Introduction.  The respondent has faintly, but unconvincingly, contended to the contrary.  The mandatory requirements of those clauses cannot be ignored. 

12. Clause 7 of the Introduction provides:

    “7.A single medical condition should be assessed on all relevant Tables when that medical condition is causing a separate loss of function in more than one body system.  For example, Diabetes Mellitus may need to be assessed using the endocrine (19), exercise tolerance (1), lower limb function (4), renal function (17), skin disorders (18) and visual acuity (13) tables.  When using more than one Table for a single medical condition the possibility of double assessment of a single loss of function must be guarded against.  For example, it is inappropriate to assess an isolated spinal condition under both the spine table (5) and the lower limb table (4) unless there is a definite secondary neurological deficit in a lower limb or limbs.”

13. It is noteworthy that the example given of diabetes mellitus is the condition suffered by Mr Parry and that he was assessed using both the endocrine table (table 19) and the exercise tolerance table (table 1). 

    THE TRIBUNAL’S DECISION

14. It needs to be stated at the outset that the Tribunal’s reasons are brief to the point of being uninformative and that language has been used in a fashion which regrettably creates ambiguity rather than clarity.  The Tribunal’s reasons insofar as presently relevant can be set out briefly: 

    “At the time of his application for the disability support pension in June 2005, the medical conditions noted were:  diabetes, mellitus, chronic liver failure and bruising to his back.  The bruising to the back settled as it was a temporary thing caused by a fall on rocks. 

    His diabetes is poorly controlled by medication, but is stable and in the Tribunal’s opinion it does not warrant a point score.

    At the time of the application his liver condition was also stable, but was causing him symptoms and the Tribunal finds that it was correctly assessed at 10 points under Table 11.1 of the Guide to the Tables to the Assessment of Work Related Impairment and for Disability Support Pension.

    The concern of the Tribunal is Mr Parry’s inability to work at the time of his application, which should have covered a wider range of disabilities than his diabetes and liver function.”

15. I would note in passing that in the first paragraph quoted diabetes mellitus and chronic liver failure are described as “medical conditions” while in the fourth quoted paragraph diabetes and liver function are described as “disabilities”.  The Tribunal went on: 

    “His evidence was that he was restricted from doing anything strenuous at the time of his application and that he would become short of breath with any strenuous activity. 

    In the treating doctor’s report, dated 14 June 2005, filled in by his then GP, Dr Michael Lee, the diabetes and liver problems were mentioned and Dr Lee also states, under Condition 2, point H, ‘Impact on ability to function’, ‘poor exercise tolerance’.  He stated that this disability would impact on the patient’s ability to function for more than 24 months and that the condition will deteriorate.”

16. I would again note in passing that the reference above to Dr Lee’s report was to that part of it dealing with the condition “diabetes mellitus” and with how that condition affected Mr Parry’s ability to function at the time of the application, i.e. it was addressing a functional impairment caused by diabetes.  Returning to the Tribunal’s reasons, the Tribunal continued:

    “I now turn to Table 1.2, ‘Metabolic cost of activities’.

    The applicant was questioned in relation to activities requiring 4-5 METs and 5-6 METs.  He indicated he would not be able to shovel dirt, play tennis, dig in the garden, walk slowly but steadily upstairs or push a wheelbarrow containing 20 kilograms or more.

    The Tribunal accepts that his shortness of breath was causing significant difficulties at the time of his application and in looking at 5-6 METs under Table 1 (which relates to ‘Loss of Cardiovascular and Respiratory Function: Exercise Tolerance’), one comes up with a score of 15. Adding 15 to the 10 points given for the liver problem under Table 11.1, one comes to 25 points and the applicant therefore qualifies under section 94(1)(b).”

17. I would note of the last quoted paragraph that it may well be taken as suggesting that shortness of breath was itself the condition causing the significant difficulties referred to there. 

18. The Tribunal went on to find that Mr Parry had a continuing inability to work and he found “the impairments of themselves were sufficient to prevent him doing any work within the next two years”. 

19. The impairments referred to here would seem to relate to the 10 point rating given for his “liver problem” under Table 11.1 and 15 points given under Table 1 under which cardio vascular and respiratory function is measured by reference to “exercise tolerance”.  The Tribunal’s reasons continued:

    “The Tribunal finds, as a fact, the applicant has diabetes mellitus;  chronic liver disease;  and shortness of breath.

    On the basis of the comments by Dr Martin he has only very mild shortness of breath on exertion and has unlimited exercise tolerance on the flat and the poor exercise tolerance noted by Dr Lee, which he said was going to deteriorate and would last for more than 24 months, there is sufficient evidence to say the applicant was/is suffering from shortness of breath and that this will continue to get worse.

    The shortness of breath was there at the time of his initial application and has continued and is now substantially worse.

    The Tribunal therefore sets aside the decision of the Social Security Appeals Tribunal, which had affirmed the decisions of Centrelink and in its place finds the applicant qualified for a disability support pension from the time of his application on 15 June 2005.”

20. The facts found in the first of the above paragraphs have augmented the ambiguity in the Tribunal’s reasons.  Is the Tribunal there finding conditions or is it finding impairments?

    CONSIDERATION

21. I mean no disrespect to counsel for the Secretary in not outlining his submissions in detail.  Given that I have set the decision aside in any event, it is in my view appropriate to make the following observations about the Tribunal’s reasons. 

    (i)At no point does the Tribunal explicitly state that the impairment assessed under Table 1 was caused by diabetes mellitus although the reference made to Dr Lee’s report might be taken as suggesting that that is what the Tribunal had in mind.

    (ii)The Tribunal’s reasons appear to refer inconsistently to Mr Parry’s diabetes and his liver condition as being impairments or conditions.

    (iii)The medical conditions that were noted at the time of the application which are of present relevance, were simply diabetes mellitus and chronic liver failure.  In this context it would be surprising for the Tribunal to find a third operative condition.

22. It is unnecessary for me to reach a concluded view on what the Tribunal should properly be taken as having decided.  If its finding was that shortness of breath was a condition then, for the reason I noted earlier, the decision would have to have been set aside for that reason.  There was no evidence to support the conclusion that the requirements of clauses 4, 5 and 6 of the Introduction had been satisfied.  If, however, the Tribunal was referring to shortness of breath as a disability in the sense of an impairment and that the causative condition of the impairment was diabetes, the decision would not suffer the same vice.  This said the reasons themselves do not readily yield up any process of reasoning which could lead to the conclusion that the impairment was caused by diabetes.  I have emphasised these matters because they will require the attention of the Tribunal on the re-hearing and determination of this matter.  The important part of the function of reasons is to explain to the parties why a particular outcome was reached.  It is difficult to suggest that the reasons in this case have adequately performed that function.

23. I have ordered that:

    1. The application be allowed.

    2. The decision of the Administrative Appeals Tribunal of 18 December 2006 be set aside.

    3. Remit the matter to the Tribunal for redetermination according to law.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:        26 October 2007

Counsel for the Appellant:	Mr J Lenczner
Solicitor for the Appellant:	Sparke Helmore
Counsel for the Respondent:	Mr H Christie
Date of Hearing:	21 September 2007
Date of Reasons:	26 October 2007