Tamua and Secretary, Department of Social Services (Social services second review)
[2016] AATA 757
•29 September 2016
Tamua and Secretary, Department of Social Services (Social services second review) [2016] AATA 757 (29 September 2016)
Division
GENERAL DIVISION
File Number
2014/0237
Re
Perise Tamua
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President F J Alpins
Date 29 September 2016 Place Melbourne The Tribunal sets aside the decision under review and in substitution decides that the applicant was eligible to be paid a disability support pension from 16 July 2013.
[sgd]........................................................................
Deputy President F J Alpins
SOCIAL SECURITY – disability support pension – eligibility - applicant did not meet residence requirements in s 94 of Social Security Act 1991 (Cth) – whether entitled to disability support pension under Agreement on Social Security between the Government of Australia and the Government of New Zealand - whether also required to satisfy s 94(1)(a) to (c) of Act – whether overridden by operation of s 6 of Social Security (International Agreements) Act 1999 (Cth) - bilateral carpal tunnel syndrome, diabetes and morbid obesity - whether applicant “severely disabled” under Article 2(2) of Agreement – whether “severe impairment” under s 94 of Act – whether had “a continuing inability to work”
Legislation
Social Security Act 1991 (Cth), ss 23, 94
Social Security (International Agreements) Act 1999 (Cth), ss 3, 4, 5, 6, Sch 3
Social Security (Administration) Act 1999 (Cth), ss 39, 41, 42, Sch 2 cls, 3, 4
Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (Cth)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)
Vienna Convention on the Law of Treaties 1969, done at Vienna on 23 May 1969, 1155, UNTS 331 (entered into force 27 January 1980), Arts 31, 32
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Materek v DFACS [2003] FMCA 14
Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 470
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 218 FCR 274
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532
Secretary, Department of Social Security v Pusnjak [1999] FCA 994
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Deputy President F J Alpins
29 September 2016
INTRODUCTION
This proceeding concerns the entitlement of the applicant, Mrs Perise Tamua, to a disability support pension by virtue of the Social Security (International Agreements) Act 1999 (Cth) (the “International Agreements Act”) and the terms of the Agreement on Social Security between the Government of Australia and the Government of New Zealand in Sch 3 to that Act (the “Agreement”).
Mrs Tamua was born in Samoa in 1954. In 2001, she moved to New Zealand as a permanent resident and subsequently became a New Zealand citizen. It did not appear to be in dispute that Mrs Tamua received an invalid’s benefit in New Zealand. On 22 June 2013, Mrs Tamua moved to Australia.
Shortly after her arrival in Australia, on 16 July 2013, Mrs Tamua lodged a claim for disability support pension pursuant to the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”). That claim was rejected and the decision to do so was successively affirmed.
Qualification for disability support pension in governed by s 94 of the Social Security Act 1991 (Cth) (the “Act”). It was conceded by Mrs Tamua that she did not satisfy the residence requirements prescribed by ss 94(1)(e) and 94(1)(ea) of the Act. Accordingly, her claimed entitlement to disability support pension could only derive from the operation of the International Agreements Act and the terms of the Agreement.
RELEVANT LEGISLATIVE PROVISIONS
Social Security Act 1991
At the time of Ms Tamua’s claim, s 94 relevantly provided as follows (although I note that the amendments to the provision since that time are immaterial to this proceeding):
“(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;
… and
(d)the person has turned 16; and
…
(e)the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea)one of the following applies:
(i)the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2:For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)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
(b)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.
Note:For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
…
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)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:
(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.
Other definitions
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
….
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre-vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work-related training (including on-the-job training).
work means work:
(a)that is for at least 15 hours per week 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.
….”
The International Agreements Act and the Agreement
Section 94 of the Act is to be read with the provisions of the International Agreements Act and the Agreement. Sections 3, 4, 5 and 6 of the International Agreements Act relevantly provide as follows:
“3 Interpretation
(1)Unless a contrary intention appears, an expression that is used in the Social Security Act 1991 has the same meaning, when used in this Act, as in the Social Security Act 1991.
(2)A reference in this Act (other than the reference in section 4) to the social security law is a reference to this Act, the Social Security Act 1991 and any other Act that is expressed to form part of the social security law.
(3)A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the Social Security Act 1991 or any other Act that is expressed to form part of the social security law.
4 Social security law
This Act forms part of the social security law.
5 Scheduled international social security agreements
(1)For the purposes of a provision of the social security law, an agreement is a scheduled international social security agreement if:
(a)the agreement is between Australia and another country; and
(b)the agreement relates to reciprocity in social security or superannuation matters; and
(c)the text of the agreement is set out in a Schedule to this Act.
(2)The reference in subsection (1) to a scheduled international social security agreement includes a reference to such an agreement as amended, or otherwise affected in its operation, by a further agreement or further agreements between Australia and the other country concerned.
6Overriding of social security law by scheduled international social security agreements
(1)The provisions of a scheduled international social security agreement have effect despite anything in the social security law.
(2)Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law.
….”
I note that s 23(17) of the Act is expressed in terms similar to those of s 3(2) of the International Agreements Act.
The preamble to the Agreement states that the parties made it:
“WISHING to strengthen the existing friendly relations between the two countries, and
DESIRING to coordinate the operation of their respective social security systems and to enhance the equitable access by people covered by this Agreement to specified social security benefits provided for under the laws of both countries …”
Part 1 of the Agreement contains provisions concerning its scope. It also contains Article 1, which defines the following terms in the following ways and otherwise provides as follows:
“1.In this Agreement unless the context otherwise requires:
(a)“Australian resident” has the meaning given to it under Article 5;
(b)“benefit”, in relation to a Party, means the benefits as listed and defined in Article 2 …;
…
(f)“date of severe disablement” means the date a person who applies for a disability support pension or invalid’s benefit was first assessed as meeting the criteria for a disability support pension or invalid’s benefit under this Agreement or, where evidence supports an earlier date, the competent institutions may agree on an earlier date;
…
(l)“severely disabled” means a person who:
(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa) to work for at least the next 2 years; and
(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(ii) is permanently blind;
(m)“social security law” … means the laws of that Party specified in Article 2;
(p)“working age residence” has the meaning given to it under Article 5 …”
2.In the application by a Party of this Agreement in relation to a person, any term not defined in this Article shall, unless the context otherwise requires, have the meaning assigned to it in the social security law of either Party.”
Articles 2, 3 and 5 are also contained in Part 1, and relevantly provide as follows:
“ARTICLE 2
Legislative Scope
1.Except as provided under paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, consolidates or replaces them:
(a)in relation to Australia: the Acts forming the social security law in so far as those Acts provide for, apply to or affect the following benefits:
(i)age pension;
(ii)disability support pension;
(iii)carer payment in respect of the partner of a person who is in receipt of a disability support pension; and
…
2.For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid’s benefit shall be limited to cases where:
(a) the person is severely disabled;
(b)the person was a resident of one of the Parties at the date of severe disablement; and
(c)the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.
ARTICLE 3
Personal Scope
This Agreement shall apply to any person who:
(a) is or has been an Australian resident; or
(b) is or has been a New Zealand resident.
ARTICLE 5
Residence Definitions
1.“Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. In deciding whether a person is residing in Australia, regard must be had to the following factors:
(a)the nature of the accommodation used by the person in Australia;
(b)the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person’s employment, business or financial ties with Australia;
(d)the nature and extent of the person’s assets located in Australia;
(e)the frequency and duration of the person’s travel outside Australia; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia;
and “residence in Australia” has a corresponding meaning.
…
3.“permanent resident” in relation to Australia means a person who is a citizen of Australia or who holds a permanent visa under the Migration Act 1958 of Australia.
…
5.“working age residence” in relation to a person means a period of residence between the ages of 20 and 64 years inclusive (being a maximum of 45 years) but does not include any period deemed pursuant to Article 8 or Article 12 to be a period in which that person was an Australian resident or a New Zealand resident.”
Part III of the Agreement, which concerns “Provisions Relating to Australian Benefits”, including Article 12, which is headed “Totalisation for Australia” and provides:
“1.Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
(a)a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the social security law of Australia for a benefit;
(b)a period of working age residence in Australia equal to or greater than the period identified in accordance with paragraph 3; and
(c) a period of working age residence in New Zealand.
then:
That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the social security law of Australia.
2.Where a person’s period of working age residence in Australia and a period of working age residence in New Zealand coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this Article as a period as an Australian resident.
3.The minimum period of working age residence in Australia to be taken into account for the purposes of subparagraph 1(b) shall be 12 months, of which at least 6 months must be continuous.
4.No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand.
5.A claimant for an age pension must be at least 65 years of age to be able to obtain the benefit of this Article.”
ISSUES
Given the parties submissions, it is necessary to address the relationship between Article 2(2) of the Agreement and s 94 of the Act. It was not in dispute between the parties that Mrs Tamua was prima facie entitled to rely upon the International Agreements Act and the terms of the Agreement with respect to her claimed entitlement to a disability support pension. In that regard, the respondent did not dispute that Mrs Tamua met the requirement in Article 12(4) of the Agreement, in that she had “accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand” for the purposes of that provision.
Further and with more general import, the respondent conceded in his written submissions lodged after the hearing that Mrs Tamua was an “Australian resident” within the meaning of that term prescribed in Article 5 of the Agreement. Based upon the evidence given by Mrs Tamua and her daughter, Mrs Ah Man, at the hearing bearing upon the factors enumerated in Article 5, the Tribunal finds that she satisfies that definition. In that regard, I infer from that evidence that Mrs Tamua, who has lived with her daughter and other family members since arriving in Australia, intends to remain in Australia permanently.
However, Mrs Tamua and the respondent differed as to whether Article 2(2)(a) of the Agreement was satisfied when she made her claim. Furthermore, they also differed in respect of the proper relationship between that provision of the Agreement and s 94 of the Act; particularly, as to whether Article 2(2)(a) must be satisfied instead of, or in addition to, s 94(1)(a) – (c) of the Act.
With respect to the first issue, Mrs Tamua contended that she was “severely disabled” for the purposes of Article 2(2)(a) of the Agreement, within the meaning of that expression set out in Article 1(1)(l)(i), while the respondent contended that she was not.
With respect to the second issue, the respondent contended, essentially in the alternative, that even if Article 2(2) of the Agreement were satisfied, in that Mrs Tamua was “severely disabled” for the purposes of paragraph (a) (the satisfaction of the other provisions of Article 2(2) not being in dispute), she was not on that account entitled to a disability support pension. The respondent contended that it was nevertheless necessary for the Tribunal to consider whether, and find that, she also satisfied the requirements of s 94(1)(a) to (c) of the Act. In that regard, the respondent submitted that s 94(1)(c) was not satisfied.
Mrs Tamua’s essential contention was that her entitlement to a disability support pension arose under the terms of the Agreement and that the provisions of s 94 upon which the respondent relied were overridden by Article 2(2)(a) read with Article 1(1)(l)(i), by operation of s 6 of the International Agreements Act, relying in that regard on the Full Federal Court’s decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532 (Kenny, Flick and Kerr JJ).
In Mahrous, the Full Court held that a claimant who could satisfy Art 12(4) of the Agreement and who otherwise qualified was entitled to a disability support pension despite not satisfying the residence requirement in s 94(1)(e)(ii) of the Act, as Article 12(4) prevailed over s 94(1)(e)(ii) of the Act by operation of s 6 of the International Agreements Act. The Full Court reached that conclusion having regard to, amongst other things, the principles set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969, done at Vienna on 23 May 1969, 1155, UNTS 331 (entered into force 27 January 1980) and relevant case law concerning the Vienna Convention (see at [52]-[56]). noting that the Agreement formed part of the law of Australia by operation of s 6 of the International Agreements Act.
The Full Court held that “Art 12(4) of the Agreement both describes the category of persons ‘who are entitled to claim a disability support pension’ and identifies those who would satisfy the residence qualification for such a benefit once a claim can be made” (at [51], emphasis in original; see also at [43] and [66]). The Full Court noted that a person could qualify for a disability support pension under the Act or under the Agreement (see, for example, at [51]) and emphasised that the claimant’s entitlement in that case arose under the Agreement (see, e.g. at [60], [66]).
It was presumably on that basis that in this proceeding the respondent accepted that Mrs Tamua was not required to meet the residence requirements under s 94 of the Act in addition to satisfying those under the Agreement, which the respondent accepted that she did.
However, respondent’s submissions made in this proceeding concerning the relationship between Article 2(2)(a) of the Agreement and paragraphs (a) to (c) of s 94(1) were redolent of those rejected by the Full Court in Mahrous; the respondent essentially sought to confine the import of the Full Court’s reasoning to the particular provision of the Agreement with which it was concerned, despite the wider considerations the Court addressed.
It is interesting to note that, to some extent, the respondent’s submissions in this proceeding appear to contradict those made by the appellant before the Full Court, where the appellant pointed to Art 2(2)(a) of the Agreement as a provision falling within the terms of s 6 of the International Agreements Act and thus affecting s 94(1)(c), read with s 94(2) and the definition of “work” in s 94(5) of the Act (see at [45]). Significantly, the Full Court accepted that Art 2(2)(a) affected the social security law for the purposes of s 6 of the International Agreement Act, but without reaching the consequential conclusions sought (at [46]).
In Mahrous, the Full Court addressed the meaning and import of Article 2(2) of the Agreement, albeit in making observations in the context of the issue before it. Furthermore, I note that the appellant accepted before the Full Court that the claimant would otherwise qualify for disability support pension because he was “severely disabled” for the purposes of Article 2(2)(a) and did not suggest or contend that he should also satisfy the balance of equivalent provisions in s 94 of the Act (see at [9], [61]).
In Mahrous, the Full Court, in drawing a distinction between Article 2(2) and Article 12(4) of the Agreement, stated that “Article 2(2) … is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement” (at [61]; emphasis added). It had earlier noted the appellant’s submission that the requirement that a claimant be “severely disabled” in Article 2(2)(a), as defined in Article 1(1)(l), was a more restrictive requirement in relation to work capacity that the equivalent requirement in the Act.
Consonantly with the Full Court’s reasoning with respect to Article 12(4) of the Agreement, it is apparent that the Court considered that the provisions of Article 2(2) did not merely impose a further requirement which must be met by a claimant; rather, it provided a basis upon which a person might qualify for disability support pension, under the Agreement. In order to do so, their circumstances must fall within the intendment of the Agreement, as explained by the Full Court (at [64]):
“A disability support pension is only available under the Agreement where a person is severely disabled, in accordance with Art 2(2)(a), and otherwise satisfied the residence requirements in Art 2(2). Where a person has an impairment sufficient to qualify as severely disabled, it is unsurprising that Art 12(4) treats residence in Australia and New Zealand as equivalent, in order, as the preamble states, ‘to enhance … equitable access’ to disability support pensions. The position of a severely disabled person necessarily attracts unique considerations and calls for special provision, in order to meet this object.”
I have considered the detailed written submissions of both parties. Having regard to the Full Court’s reasoning in Mahrous, and reading the provisions of Article 2(2) and the other terms of the Agreement with s 6 of the International Agreements Act and s 94 of the Act according to the principles of interpretation applicable to international agreements to which the Full Court referred, I accept Mrs Tamua’s submission that she will be entitled to a disability support pension if she satisfied the terms of Article 2(2)(a) (the other provisions of that Article not being dispute) and that, by operation of s 6 of the International Agreements Act, it is unnecessary for her to establish, in addition, that she satisfied s 94(1)(a), (b) and (c) of the Act.
Contrary to the respondent’s submissions, there is nothing anomalous about this outcome. I do not accept the respondent’s submission that it would be anomalous if a claimant under the Agreement was not required to meet the requirement under s 94(2)(aa) of having “actively participated in a program of support”, nor the related submission that the requirements of Article 2(2)(a) are in that respect less onerous than the requirements of s 94(1)(c) of the Act.
A claimant under the Act is relieved of the requirement to have “actively participated in a program of support” if their impairment is of sufficient severity so as to constitute a “severe impairment” within the meaning of s 94(3B). The impediments to participating in such a program for a person claiming a disability support pension by virtue of the Agreement would lie not only in the extent of their impairment (as might be said to explain the scope of s 94(2)(aa)), but also in the fact that a claimant not meeting the residence requirements under s 94 of the Act would be unlikely to be able to satisfy the requirement of having “actively participated in a program of support” within the meaning of s 94(3C) of the Act at the time they make their claim for a disability support pension in reliance upon the Agreement.
I do not consider that it is within the intendment of the Agreement that a person otherwise within the terms of Article 2(2) should be required to wait until they had participated in such a program for the prescribed period before making a claim for a disability support pension under the Agreement (see s 94(3C) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011) (Cth), particularly given that a person with a “severe impairment” for the purposes of s 94(2)(aa) would not be required to have participated in such a program.
Having regard to the respondent’s other submissions, the use of words of limitation in Article 2(2) do not alter my conclusion; while the language of Article 2(2)(a) is different to that employed in Article 12(4), it is not materially different when read in its wider context. That is so despite being contained in an article headed “Legislative Scope”; I do not consider that that supports the respondent’s submissions. Article 2, like the other Articles in Part 1, forms part of provisions in the Agreement relating both to Australian benefits and New Zealand benefits and is to be read in that context.
The Full Court in Mahrous explained the context of the “special provision” in Article 2(2), which serves both to bestow an entitlement under the Agreement and to limit its compass to appropriate cases. There is nothing in the Full Court’s reasons to suggest that the Court contemplated that a “severely disabled” claimant might be subject to additional requirements in order to establish an entitlement to disability support pension under the Agreement; indeed, its reasoning concerning Article 2(2) suggests quite the contrary and its reasoning with respect to Article 12(4) is equally apposite to Article 2(2); both Articles affect the operation of the social security law for the purposes of s 6 of the International Agreements Act and thus prevail.
In any event, although this issue was the subject of considerable focus in the parties’ written submissions, my conclusion about it has not affected the Tribunal’s decision in this proceeding, for the reasons explained below.
CONSIDERATION
Was Mrs Tamua “severely disabled” for purposes of Article 2(2)(a) of the Agreement?
Leaving aside the issue of the relevance and application of s 94(1) to this proceeding for now, the essential dispute between the parties concerned whether Mrs Tamua was “severely disabled” for the purposes of Article 2(2)(a) of the Agreement. As I have indicated, the respondent did not dispute that if, contrary to his contention, Mrs Tamua was “severely disabled” for the purposes of Article 2(2)(a) of the Agreement, then she satisfied the residency requirements prescribed by paragraphs (b) and (c) of that Article, the “date of severe disablement” for those purposes being 2008, based upon the evidence of Dr Sillcock and Dr De Croos.
As I have also indicated¸ the expression “severely disabled” as employed in Article 2(2)(a) of the Agreement is relevantly defined in Article 1(1)(l)(i). Both parties submitted that the Tribunal, in construing the expression “totally unable” in the definition of “severely disabled” should, as that expression was undefined, be guided by the definition expressed in clause 1.1.S.110 of the Guide to Social Security Law, which states, both for the purposes of the Agreement (and s 23(4B) of the Act) (see clause 10.2.100) that:
“A recipient is accepted as being severely disabled if their impairment prevents them from:
·doing any work for 8 hours a week or more for the next 2 years, and
·benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours a week.”
As a general matter, it is appropriate for the Tribunal to have regard to the policy expressed in the Guide in reviewing the respondent’s decisions; however, the Tribunal is not bound by it, as the law lies in the statutory text rather than in the policy (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70 per Bowen CJ and Deane J). In my view, the definition of “severely disabled” expressed in the Guide is inconsistent with the definition of “severely disabled” in Article 1(1)(l)(i) upon its proper construction and accordingly should not be followed (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J; cf. Materek v DFACS [2003] FMCA 14)).
In my view, the expression “totally unable”, read according to its ordinary meaning, means that the person is unable to work or benefit in the stated manners at all (see Mohamed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 470 at [23])). The word “totally”, as employed in that expression, is to be given meaning and effect. There is nothing in the text of the definition of “severely disabled” or the provision in which it employed which dictates or suggests any temporal allowance of 8 hours, nor of any other hours. The context in which the expression “totally unable” is used in the definition of “severely disabled” for the purposes of Article 2(2)(a) which, as the Full Court stated in Mahrous in the passage set out above, is a special provision concerning persons of sufficient impairment, confirms that the expression “totally unable” is to be accorded its ordinary meaning.
However, although I decline to apply the definition of “totally unable” expressed in the Guide, for the reasons that follow that has not affected my decision in this proceeding.
It was not in dispute that Mrs Tamua suffered from a physical impairment for the purposes of the definition of “severely disabled” in Article 1(1)(l)(i) of the Agreement when she made her claim, which resulted from the following medical conditions - bilateral carpal tunnel syndrome, diabetes and morbid obesity. However, the respondent’s essential contention was that the impairment was not of the requisite degree as required in order to satisfy that definition.
Evidence
I turn now to the evidence before the Tribunal. In seeking to establish that she was “severely disabled” for the purposes of Article 2(2)(a), Mrs Tamua relied upon the evidence of Dr Amanda Sillcock, an occupational physician, and also upon correspondence from Dr De Croos, who was Mrs Tamua’s general practitioner in New Zealand.
The respondent relied upon the evidence of Ms Tyla McKeeman, an occupational therapist, Dr Sandra Armstrong, a general practitioner employed by the Health Professional Advisory Unit of the Commonwealth Department of Human Services and Dr Sarfraz Kailani, who has been Mrs Tamua’s general practitioner since her arrival in Australia in 2013.
Dr Sillcock prepared reports dated 8 August 2014 and 4 March 2015 following examinations of Mrs Tamua conducted on 28 May 2014 and 26 February 2015 respectively. She gave oral evidence and was cross-examined. In giving evidence, she explained that, as an occupational physician, she specialises in assessing the functional impact of people’s medical conditions on their work capacity.
In her report dated 8 August 2014, Dr Sillock noted that Mrs Tamua had been diagnosed as suffering from bilateral carpal tunnel syndrome in 2008 and diabetes in 2006. She noted that Mrs Tamua had undergone surgery for her carpal tunnel syndrome in late 2008, for both hands, but that it had been unsuccessful, apparently because she had “presented late with severe symptoms and there was already considerable damage before the surgery”. Dr Sillcock opined as follows:
“I believe that Ms Tamua is severely disabled, especially because of her carpal tunnel syndrome. The state of her hands renders her unable to perform many activities of daily living and she is completely unable to undertake work tasks, especially working in a meatworks as was her last position in the workforce. She has always done work that requires the use of both hands and she is completely unable to do any of these sorts of jobs. This situation will persist for at least the next two years and there is no rehabilitation program that would provide any benefit to her.
….
I believe that Ms Tamua became severely disabled when she ceased working in 2008”.
In her report dated 4 March 2015, Dr Sillcock stated:
“In my opinion, Ms Tamua’s impairment is appropriately described as severe disablement due to a combination of carpal tunnel syndrome, diabetes and morbid obesity.”
When asked whether Mrs Tamua could perform work other than manual work, such as work as a school crossing supervisor and whether pain medication might assist in that regard, Dr Sillcock stated:
“In my opinion Ms Tamua would not be able to perform non-manual work either. School crossing supervisor requires holding a sign and I do not believe that she has the strength in her hands to do this. Pain medication is not going to be helpful as her main problems with regard to her hands are weakness and loss of sensation. While she does have some pain this is not the overriding issue.”
In her oral evidence, Dr Sillcock said that Mrs Tamua had the most severe case of carpal tunnel syndrome that she had ever seen, having assessed hundreds of such cases, given the extent of muscle wasting which had occurred. She agreed that, based on her experience, it would be rare for physicians to see a case as severe as Mrs Tamua’s. She explained that most people have surgery before it reaches such an advanced stage and that if carpal tunnel syndrome remains untreated, in that surgery is not undertaken, nerve damage occurs, resulting in muscle wasting, in which case surgery will not improve the condition as it is too late.
Dr Sillcock said that, although it was “an educated guess”, based upon the material she had reviewed dating around the time of Mrs Tamua’s surgery, including reports from Mrs Tamua’s orthopaedic surgeon Mr Charles Luecker dated 6 November 2008, 13 December 2008 and 10 March 2009, nerve conduction tests dated 10 October 2008, and from the history provided by Mrs Tamua, in her view Mrs Tamua’s condition had not changed significantly between July 2013, when she made her claim for disability support pension, and the time when she first assessed Mrs Tamua.
Under cross-examination, Dr Sillcock said that “it’s always something of an educated guess when you’re asked to look back at … how somebody was 12 months ago”, referring when Mrs Tamua had made her claim, but said that, having regard to Mrs Tamua’s history and at the time she had had surgery six years earlier. “I would confidently say that I didn’t believe that her condition on the day that I saw her was very much different to what it had been 12 months ago”, by way of either improvement or deterioration, and that Mrs Tamua’s muscle wastage “had been there for a long time”. She said further that “by the time she had the surgery things were pretty bad … [and] it hasn’t recovered”.
Dr Sillcock stated, albeit in the context of a question as to whether Mrs Tamua was “totally unable to work for eight hours per week” that that was so, being “a combination of the obesity and diabetes which produces fatigue and difficult moving around and difficulty getting around” and “then the carpal tunnel syndrome, which really inhibits her from doing almost anything … with her hands from a work point of view”. While noting that Mrs Tamua had done manual work in the past, Dr Sillcock opined that “I can’t think of anything that she would be able to do”, noting that even sedentary work would require the use of hands.
Dr Sillcock was of the view that Mrs Tamua could not perform any of the jobs suggested in the Job Capacity Assessment report dated 17 April 2015 to which I refer below, namely packing work, console work or call centre work.
Under cross-examination, Dr Sillcock said that there was no treatment or rehabilitation program could improve Mrs Tamua’s carpal tunnel syndrome or which could “be of any benefit to her” to “get her back into the workforce”.
In correspondence dated 27 November 2014, Dr De Croos stated that Mrs Tamua was “severely disabled” in July 2013, albeit in terms of a definition reflecting that in the Guide to which I have referred and that she became severely disabled “soon after leaving the job at the meatworks” which, I note, occurred in 2008. I note that, in a letter dated 6 October 2011, Dr De Croos, he requested a “review hearing” on Mrs Tamua’s behalf, referring in that context to her medical conditions including diabetes, but omitting any reference to her carpal tunnel syndrome. I note also the contents of a medical certificate for Mrs Tamua prepared by Dr De Croos dated 9 September 2011, which would appear, having regard to a list of matching codes for the conditions listed, to refer to carpal tunnel syndrome but to point to diabetes as the condition having the greatest impact on her functional capacity.
There were two reports prepared by Dr Armstrong before the Tribunal, dated 25 November 2014 and 31 March 2015. I note that Dr Armstrong did not examine Mrs Tamua for the purpose of her reports. Much of Dr Armstrong’s first report was directed towards assessment of Mrs Tamua’s degree of impairment according the tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the “Determination”); I return to this issue later in these reasons. Dr Armstrong concluded that:
“I would agree that Ms Tamua’s work capacity will be restricted by her physical endurance limitations and problems with manual dexterity. I believe that she would benefit from further medical assessments and management, as well as rehabilitation and programmes of assistance, so that she may be able to consider employment, which does not require manual dexterity or physical exertion.”
In her later report, in response to a question directing her attention in essence to the definition of “severe disablement” contained in the Guide to which I have referred, Dr Armstrong opined:
“ … I would agree that Ms Tamua’s work capacity may currently be less than 8 hours per week … Dr Sillcock’s report states that Ms Tamua ‘would not be able to perform non-manual work’ and Dr Kailini [sic] … told me that Ms Tamua was unfit for work. I continue to believe that further medical management …, rehabilitation and programmes of assistance would have improved her work capacity to more than 8 hours per week, within 2 years. The specifics of rehabilitation programmes and programmes of assistance, including vocational assistance, are outside my area of expertise, but I would suggest that an initial programme could focus on English language skills. Ms Tamua would need sedentary employment which does not require repetitive wrist movement, good manual dexterity or high quality visual skills.”
I note, however that, as will be apparent from this passage, Dr Armstrong’s view about Mrs Tamua’s work capacity was expressed in the context not only in the context of limitations on her physical endurance and manual dexterity but also in the context of Mrs Tamua’s cataracts, not being a condition relevant to this proceeding.
Dr Armstrong gave evidence by telephone and was cross-examined. Under re-examination, she confirmed that, upon confining her consideration to Mrs Tamua’s bilateral carpal tunnel syndrome, diabetes and obesity, she remained of the view that Mrs Tamua currently lacked the capacity to work 8 hours or more per week but that it could be improved so as to meet that standard within two years.
Under cross-examination, Dr Armstrong said that “I think the primary factor that would improve her work capacity would be better management of her condition, but I agree that there are non-medical barriers such as English language skills”. When asked about her concluding statement quoted above as to the kind of employment Mrs Tamua would need, Dr Armstrong accepted that she did not have a specific position in mind when she wrote it and that it “was just a general statement”. She later said that “[v]ocational rehabilitation would be outside my expertise”.
A job capacity assessment report dated 17 April 2015 was before the Tribunal; Ms McKeeman was the “contributing assessor” for that report. It was stated in that report that Mrs Tamua’s current work capacity was 8 to 14 hours per week “due to the combined impact of bilateral carpal tunnel syndrome, diabetes … and associated morbid obesity … due to … significant reduction in upper limb function, poor endurance, concentration and physical incapacity”. It was further stated that it was anticipated that Mrs Tamua’s capacity to work would increase with intervention and support to 15 to 22 hours per week within two years.
Also in evidence were three witness statements made by Ms McKeeman, dated 30 September 2015, 9 October 2015 and 26 October 2015. Ms McKeeman gave evidence before the Tribunal, by telephone. I note that Ms McKeeman did not examine Mrs Tamua for the purpose of the job capacity assessment report or in relation to the preparation of her witness statements. Under cross-examination, Ms McKeeman said that the primary assessor also had not examined Mrs Tamua. She accepted that it was beneficial to examine a claimant personally in assessing their work capacity.
In her witness statements and in oral evidence, Ms McKeeman explained that her role as a “contributing assessor” was to review the report prepared by the primary assessor (who, I note, did not give evidence), comment on the Impairment Tables and ratings applied by the primary assessor and to discuss the primary assessor’s assessment of work capacity based on the available medical evidence.
Ms McKeeman stated that Mrs Tamua had been referred to an employment services provider, having been assessed as belonging to a stream of customers “having multiple non-vocational barriers”, being barriers which need to be addressed before a person is ready to start looking for work. Under cross-examination, Ms McKeeman said that the primary assessor had recommended “prevocational intervention” with respect to “language assessment/training”, but that she was unaware of what such training involved. In a witness statement, she said that she was not qualified “to comment on the programs of support, training, education or rehabilitation that would be provided”.
Ms McKeeman stated, on her review of the medical evidence, she considered that:
“ .. upon retraining Mrs Tamua would be capable of employment for 15 to 22 hours per week by July 2015 that did not involve repetitive and/or dexterous use of the hands and/or lifting moderate weights. Suitable employment would include tourist information officer and museum attendant.”
Ms McKeeman said that, in making the statement set out in the first sentence above, she gave most weight to the report of Dr Armstrong dated 31 March 2015 and particularly noted Dr Armstrong’s discussion with Dr Kailani. In oral evidence, Ms McKeeman said that she had recently had regard to extracts from the Job Guide published by the Department of Education and Training which set out the tasks which a tourist information officer and museum attendant may be required to perform, and that she remained of the view set out in the above passage. Under cross-examination, Ms McKeeman said that she would not have recommended the examples of suitable jobs put forward in the job capacity assessment report, as packing and console operator roles involved manual handling and call centre work was likely to require the repetitive use of a computer.
Under cross-examination, Ms McKeeman accepted that the primary assessor had used Dr Armstrong’s report to form her opinion. Ms McKeeman said that she had not spoken to Dr Kailani and that the primary assessor had not done so either, so that the references to conversations with Dr Kailani were taken from Dr Armstrong’s report of 31 March 2015. Further, neither she nor the primary assessor had spoken to Dr Armstrong for the purpose of the job capacity assessment report. Under re-examination, Ms McKeeman confirmed that the main reason why most weight was given to Dr Armstrong’s opinion was that Dr Armstrong had spoken to Dr Kailani and gained his opinion as to what Mrs Tamua was capable of doing with her hands.
Ms McKeeman said in a witness statement that, if Mrs Tamua’s bilateral carpal tunnel syndrome was so severe that she was unable to use her hands for any activity at the time she made her claim, it was extremely unlikely that vocational rehabilitation, education or training would increase her capacity so as to enable her to work 8 hours per week by July 2015.
In oral evidence, Dr Kailani stated that his first record in his notes with respect to Mrs Tamua’s “wrists pain condition” (as put to him) was made on 18 September 2013; amongst other things, he noted that Mrs Tamua “[h]ad surgery in New Zealand three years ago”. He noted “there was a wasting of interosseous … muscles … pain of both hands, more on right side. … with use[d] … there was a numbness of the thumb, index finger, middle finder, mainly both hands …”. He said that Mrs Tamua had reduced grip and inability to lift heavy weights, by which he meant weights of five kilograms. Under cross-examination, Dr Kailani confirmed that he had observed Mrs Tamua’s limited ability to grip in both hands (having tested her grip) and that her muscle wasting would have affected her manual dexterity.
Dr Kailani was asked about his consultations with Mrs Tamua from July 2013 to October 2013. He noted that “that patient has so many medical problems, so with each consultation we will work out more and more things about patients’ medical conditions”.
He said that he thought that Mrs Tamua could use cutlery to eat her food, but he merely “supposed” that was the case as she had not lost weight at the time and said that “there could be a severe disability where she might have a difficulty using the cutlery”. He did not test her ability to pick up and place objects or her ability to use a pen, nor to turn a page. He said that she could have used a keyboard with one or two fingers given the nature of carpal tunnel syndrome, but that he did not test her.
Dr Kailani recalled speaking to Dr Armstrong and answering her questions about Mrs Tamua’s ability to undertake various tasks. Under cross-examination he said that he was not given a copy of the Impairment Tables set out in the Determination prior to his conversation with Dr Armstrong.
Dr Kailani said that, as he was not an occupational physician or occupational therapist, he did not feel qualified to give an opinion about Mrs Tamua’s work capacity.
Mrs Tamua gave evidence with the assistance of an interpreter of the Samoan language; she was cross-examined. She described the work she had undertaken at the meatworks in New Zealand and said that she had resigned from her job “because I wasn’t able to use my hands at all”. In the course of her evidence, she described the ways in which her carpal tunnel syndrome prevented her from undertaking various manual tasks at the time she made her claim. For example, she was unable to handle cutlery, so she instead blended her food in a blender and drank it through a straw.
Mrs Tamua’s daughter, Mrs Eleanor Ah Man, gave evidence by way of witness statement and also gave oral evidence; she was cross-examined. She lived with her mother in New Zealand before moving to Australia in 2011. She said that Mrs Tamua moved to Australia in 2013 to live with her after Mrs Ah Man was involved in a car accident. Amongst other things, she described the tasks that her mother was unable to perform and said that her mother had experienced such difficulties both before and after her surgery in 2008. She said that her mother had been unable to use cutlery and he needed to use a straw to drink blended food instead since before her surgery.
Mrs Tamua is entitled to disability support pension under the Agreement
Taking into account all of the documentary and oral evidence before the Tribunal, I have concluded that Mrs Tamua was “severely disabled” for the purposes of Article 2(2) of the Agreement on 16 July 2013, when she made her claim. She is thus entitled to disability support pension by virtue of the provisions of the Agreement from that date.
Mrs Tamua’s physical impairment arising from her bilateral carpal tunnel syndrome, diabetes and morbid obesity made her, without taking into account any other factor, totally unable to work for at least the next 2 years, and totally unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program, for the purposes of the definition of the expression “severely disabled” provided for in Article 1(1)(l) of the Agreement.
As I have said, in my view the words of that definition, by employing the expression “totally unable”, require that a claimant not be able to work or benefit in the subsequently stated ways at all; to the extent that the Guide provides for an allowance of 8 hours, it does not correctly reflect the terms of the Agreement and therefore should not be followed. However, as Mrs Tamua meets the requirement as expressed, which is stricter than that expressed in the Guide, nothing turns on this point; she would also meet the definition expressed in the Guide.
In reaching this conclusion, I have preferred the evidence of Dr Sillcock to that of Dr Armstrong, Dr Kailani and Ms McKeeman, having regard to Dr Sillcock’s expertise, the basis upon which she reached her conclusions and the substance of her evidence. Dr Sillcock has considerable experience as an occupational physician and with respect to carpal tunnel syndrome in particular. She examined Mrs Tamua twice, conducted relevant tests for carpal tunnel syndrome and took the result of those examinations and tests into account in forming her opinion, while neither Dr Armstrong nor Ms McKeeman had the benefit of examining Mrs Tamua at all.
I accept Dr Sillcock’s evidence in its entirety and consider that evidence to be probative with respect to Mrs Tamua’s circumstances at the time she made her claim, in July 2013. I have taken into account the fact that Dr Sillcock did not examine Mrs Tamua until 28 May 2014. Dr Sillcock was aware that she was required to give an opinion as to whether Mrs Tamua was “severely disabled” at the time she made her claim, in July 2013. She acknowledged that such an exercise necessarily involves what she described as an “educated guess”. However, in the circumstances, given the matters to which Dr Sillcock had regard in forming her view and her particular expertise and experience, as well as the confidence she felt about that conclusion upon cross-examination, I am satisfied that her opinion was a carefully considered one. The mere fact that Dr Sillcock undertook her examinations and reports after Mrs Tamua made her claim does not, of itself, mean that they lack probative value (see Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [31], [35]).
I note in passing that, to the extent that the respondent relied upon the fact that Dr Sillcock’s assessments occurred after the claim was made so as to submit that her evidence ought to be given lesser weight, that submission would appear to be at odds with his concession that the date of severe disablement for the purposes of Article 2(2)(b) of the Agreement fell in 2008, when Mrs Tamua ceased work.
I do not accept the respondent’s submission that Dr Sillcock’s evidence under cross-examination concerning the functional impact of Mrs Tamua’s diabetes and obesity measured under the Impairment Tables was somehow inconsistent with her answer to a question concerning the effect of those conditions according to the definition in the Guide to which I have referred, given the hypothetical and theoretical nature of the question she was asked.
As Dr Armstrong did not examine Mrs Tamua, in forming her opinion, she was reliant upon the views of Dr Kailani and the reports to which she had regard. I infer from Dr Kailani’s oral evidence that, given his role as Mrs Tamua’s general practitioner, which required him to pay attention to a variety of medical conditions she had in the context of that role, his observations were made on a more cursory basis and were sometimes made on the basis of assumptions he made, rather than comprehensive testing. As he properly acknowledged, he has no expertise in occupational medicine. I also infer from his evidence that his testing of Mrs Tamua, although more contemporaneous than that undertaken by Dr Sillock, was less rigorous. Furthermore, his consideration of Mrs Tamua’s conditions the subject of this proceeding in consultations appears from his evidence to have been somewhat imprecise, which is understandable given his role. Given Dr Armstrong’s reliance on his comments in the absence of any examination by her of Mrs Tamua, her evidence is somewhat lacking in probative value.
I do not consider that Dr Armstrong’s opinion that Mrs Tamua’s work capacity could be improved so as to reach 8 hours to week within two years was well-founded, given her lack of expertise in vocational rehabilitation and the fact that her evidence as to the kind of work Mrs Tamua might be able to do was, as she said, no more than a general statement. I consider that Dr Armstrong’s conclusions were overly theoretical in that regard.
I note that I give little weight to Dr De Croos’ view expressed in correspondence, given its brevity and lack of explanation.
I turn now to the evidence of Ms McKeeman. As I have said, Ms McKeeman did not examine Mrs Tamua; moreover, she was merely the contributing assessor for the job capacity assessment report. I do not give Ms McKeeman’s evidence much weight, as it is too derivative to have significant probative value. The job capacity assessment report was prepared by the primary assessor, who was a psychologist. It is difficult to see how the primary assessor was sufficiently qualified to analyse the medical evidence relating to Mrs Tamua’s conditions. Moreover, that report is not medical evidence; rather, it involves a summary and analysis of medical evidence (see Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180 at [60]). Accordingly, Ms McKeeman’s role, as a contributing assessor, on her evidence essentially involved an analysis of an analysis. To the extent that it was founded on Dr Armstrong’s opinion, which was in turn based upon her discussion with Dr Kailani, it was infected with the same deficiencies.
As will be apparent from my acceptance of Dr Sillcock’s evidence, I do not accept Ms McKeeman’s contrary evidence that Mrs Tamua would be able, upon retraining, to engage in employment as a tourist information officer or museum attendant.
Section 94 of the Act
Given my conclusion that Mrs Tamua was “severely disabled” for the purposes of Article 2(2)(a) of the Agreement when she made her claim for a disability support pension, it follows that she is entitled to disability support pension by virtue of the Agreement. For the reasons I have expressed, it is unnecessary for her to meet any additional requirement which might otherwise apply under s 94(1)(a) to (c) of the Act, as Article 2(2)(a) prevails over those provisions by operation of s 6 of the International Agreements Act.
However, in case I am wrong, and for the sake of completeness, I have considered whether Mrs Tamua would have satisfied s 94(1)(c)(i) of the Act (being the only one of those paragraphs in dispute and the relevant provision in s 94(1)(c)) at the date of her claim (the qualification period beginning of that day and ending 13 weeks thereafter (ss 39(3), 41, 42 of the Act and cls 3(1) and 4(1) of Sch 2 to the Administration Act)).
It was not in dispute that Mrs Tamua’s carpal tunnel syndrome, diabetes and obesity were “permanent” for the purposes of the Determination and that an impairment rating could therefore be assigned to impairments resulting from those conditions. Given that Dr Sillcock and Dr Armstrong concurred in this respect, it was not in dispute that Mrs Tamua’s impairment from her diabetes and obesity warranted an impairment rating of 10 points under Table 1 of the Impairment Tables, those conditions having a moderate functional impact on activities requiring physical exertion or stamina.
However, the parties differed in that Mrs Tamua contended that her impairment resulting from her bilateral carpal tunnel syndrome warranted an impairment rating of 20 points under Table 2 of the Impairment Tables. In contrast, the respondent contended that that impairment only warranted an impairment rating of 10 points, under that Table.
Accordingly, it was not in dispute that Mrs Tamua satisfied s 94(1)(b) of the Act, in that her impairment was of 20 points or more under the Impairment Tables. The issue is therefore whether Mrs Tamua had “a continuing inability to work” during the qualification period for the purposes of s 94(1)(c)(i), as defined in s 94(2). As Mrs Tamua had not participated in a program of support, it was necessary for her to establish, accepting for present purposes that s 6 of the International Agreements Act did not override s 94(1)(c), that her impairment from her carpal tunnel syndrome was a “severe impairment” as defined in s 94(3B) (see ss 94(1)(c), 94(2)(aa), 94(3C)). Accordingly, she would need to establish that her impairment from her carpal tunnel syndrome warranted a rating of 20 points under, relevantly, Table 2.
In her report dated 8 August 2014, Dr Sillcock assigned an impairment rating of 20 points to Mrs Tamua’s carpal tunnel syndrome under Table 2, which reflects a severe functional impact on activities using hands or arms. She said that Mrs Tamua “has difficulty with many activities because of the muscle wasting and numbness in her hands … [s]he tends to drop things”. In her report dated 4 March 2015, Dr Sillcock, as instructed, addressed each of the relevant descriptors for that degree of impairment under Table 2, and confirmed that Mr Tamua met each of them (in addition to meeting those for 10 points); she confirmed her opinion that a 20 point rating was warranted. (I note that, in order for an impairment rating of 20 points to be assigned under Table 2, it is merely necessary that most of the descriptors be met.) Dr Sillcock confirmed in that context that both of Mrs Tamua’s hands were affected by her condition; while the functional impact was greater on the dominant hand, it was “splitting hairs” to say that one was worse than the other. Dr Sillcock addressed those descriptors further in her oral evidence.
For reasons consonant to those expressed above, I prefer Dr Sillcock’s assessment of Mrs Tamua’s degree of impairment resulting from her carpal tunnel syndrome to Dr Armstrong’s opinion that an impairment rating of only 10 points was warranted (having expressed an opinion in her earlier report that an impairment rating of 5 points was warranted). Given that she did not examine Mrs Tamua, the somewhat vague and general basis of the information provided by Dr Kailani upon which she relied and the assumptions upon which her opinion was founded, as were made apparent under cross-examination, Dr Sillcock’s evidence has more weight in that regard.
I note also that, under cross-examination, Dr Armstrong said that she believed that, as the prefatory words under Table 2 for the assignment of 20 points concern circumstances where there is a severe functional impact on activities using hands or arms, she “would therefore infer that there would have to be a severe impact under each of the descriptors”. I infer from that evidence that Dr Armstrong, in considering the application of Table 2 to Mrs Tamua’s impairment from her carpal tunnel syndrome, incorrectly read all of the descriptors (including those in paras (a) and (c)) as requiring the interpolation and satisfaction of the word “severe”, despite the fact that it is only used in some of them.
I accept the submission made on Mrs Tamua’s behalf that, to the extent that Dr De Croos or Dr Kailani failed to mention carpal tunnel syndrome in any report, or attributed greater impairment to Mrs Tamua’s diabetes, that should not be given weight in terms of the proper assessment of Mrs Tamua’s degree of impairment from that condition at the relevant time, particularly given the various medical conditions from which Mrs Tamua suffered.
Based upon the evidence of Dr Sillcock, I am satisfied that, at the time she made her claim, Mrs Tamua’s impairment was of itself sufficient to prevent her from doing any work independently of a program of support within the next 2 years (so that s 94(2)(a) of the Act was satisfied) and that the impairment was of itself sufficient to prevent her from undertaking a training activity during the next 2 years (so that s 94(2)(b)(i) was satisfied), for consonant reasons as serve to establish that Mrs Tamua was “severely disabled” for the purposes of Article 2(2)(a) of the Agreement (see also Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris (2010) 218 FCR 274; Secretary, Department of Social Security v Pusnjak [1999] FCA 994). I note in that regard that the word “work” is defined in s 94(5) to mean work “that is for at least 15 hours per week on wages that are at or above the relevant minimum wage” and “that exists in Australia, even if not within the person’s locally accessible labour market”.
CONCLUSION
For the above reasons, Mrs Tamua was eligible to be paid a disability support pension from 16 July 2013, being the date of her claim. The Tribunal will set aside the decision under review and make a decision in substitution to that effect.
In concluding, I wish to acknowledge the effort that both parties made in presenting their respective cases. In particular, it is evident that considerable care was taken by Mrs Tamua’s counsel, Ms Wong, and her instructing solicitors, in preparing the detailed written submissions upon which Mrs Tamua relied.
95. I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of:
96. Deputy President F J Alpins
[sgd].....................................................
Associate
Dated 29 September 2016
Dates of hearing 14 – 16 September, 27 October 2015 Date final submissions received 24 December 2015 Counsel for Applicant
Solicitor for Applicant
Ms A Wong
Ms R Casamento, Victoria Legal Aid
Representative for Respondent Mr T Noonan, Programme Litigation and Review Branch, Department of Human Services
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