Secretary, Department of Social Security v Peter Thomas Murphy [1998] FCA 809 (29 June 1998)

Last Updated: 16 July 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Administrative Appeals Tribunal - Error of law - No material before Tribunal upon which the conclusion could properly be based.

Administrative Appeals Tribunal Act 1975 (Cth) - ss 33, 38, 43, 44

Social Security Act 1991 (Cth) - s 94, Schedule 1B

Collins v Minister for Immigration [1981] FCA 147; (1981) 36 ALR 598, followed

Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182, followed

SECRETARY, DEPARTMENT OF SOCIAL SECURITY v PETER THOMAS MURPHY

QG 205 OF 1997

DRUMMOND J

29 JUNE 1998

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 205 of 1997

on appeal from the Administrative Appeals Tribunal

BETWEEN:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY Applicant
AND:	PETER THOMAS MURPHY Respondent

JUDGE:	DRUMMOND J
DATE OF ORDER:	29 JUNE 1998
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be allowed and the decision of the Administrative Appeals Tribunal be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for redetermination.

3. The Administrative Appeals Tribunal have power to receive further evidence.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 205 of 1997

on appeal from the Administrative Appeals Tribunal

BETWEEN:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY Applicant
AND:	PETER THOMAS MURPHY Respondent

JUDGE:	DRUMMOND J
DATE:	29 JUNE 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is an appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Tribunal which set aside a decision of the Social Security Appeals Tribunal affirming the decision of the delegate of the applicant that the respondent was not qualified for a disability support pension.

The AAT found that the respondent suffered significant orthopaedic disabilities which left him with a physical impairment of 20% under the Impairment Tables referred to in s 94(1)(b) the Social Security Act 1991 (Cth), ie, 20% of "whole of person" functional capacity. However, the Tribunal did not form any opinion on whether, by reason of his orthopaedic disabilities, he had "a continuing inability to work" within s 94(1)(c) and so did not determine whether he was entitled to the pension by reason of those particular disabilities. Instead, it proceeded to consider the evidence that the respondent also had a longstanding alcohol problem. It concluded, by reference to Table 8 of the Impairment Tables, that the respondent's alcoholism resulted, by itself, in his having an impairment of 30%. It then applied the Combined Values Chart in the Impairment Tables to conclude that he had an overall impairment of "whole of person" functional capacity due to his orthopaedic disabilities and his alcoholism of 45% and that, in consequence, the respondent was "well and truly disabled so far as his physical and mental incapacity is concerned".

But an overall impairment as extensive as this, while satisfying the pension criteria in s 94(1)(a) and (b), can only give rise to an entitlement to a disability support pension if, among other things, the particular impairment also results in the person having "a continuing inability to work" within the meaning of that expression in s 94(1)(c). The Tribunal's conclusions on this last issue appear at para 8, where it said:

We have taken the view that Mr Murphy is incapable of work at the moment. He has a present inability to work. So far as expecting him to undertake a course of retraining is concerned, it seems to the Tribunal that that would be out of the question. We believe his afflictions have been fairly constant from his date of application for the pension. He satisfies the provisions of the Act relating to Disability Support Pension from the date of his application.

Counsel for the appellant said, correctly I think, that the Tribunal, in reaching its conclusion, accepted what Mr Murphy's general practitioner, Dr Devlin, had to say in her report of 12 July 1997 that, as a result of Mr Murphy's "present level of disability":

He would be unable to work in any manual or labouring position, because of the instability of his left knee. As a result of this disability, he would be incapable of being retrained for like positions. The only retraining he could possibly undertake would be for a sedentary type work. Mr Murphy's alcohol abuse would interfere with any retraining.

Dr Devlin also there said that, while his disability due to his orthopaedic injury was present at the relevant date (ie, that referred to in s 100 of the Act, here, 13 December 1995), his alcohol abuse had not been previously documented. Dr Devlin said that certain arm, back and eye conditions, as well as his alcohol abuse, had not been documented "prior to October 1996" and that each of these conditions would need further assessment. Her comment, in her conclusion, that his alcoholism would interfere with any retraining must therefore be read subject to this qualification. A reading of the doctor's report of Mr Murphy's complaints on the three occasions he saw her in October 1996 and April and July 1997 suggests that he mentioned his alcoholism to her only on 10 July 1997. But it is of no present significance whether that particular condition was first documented only in July 1997 or October 1996. Dr Devlin's opinion was that, as at 12 July 1997, it needed further assessment: she noted that Mr Murphy's statement to her as to the level of his alcohol consumption had not previously been documented and that no pathology tests of liver impairment had been done either. However, the Tribunal pretty plainly accepted Mr Murphy's own evidence as to the duration of his alcohol problem, as to his consumption pattern and as to his having an implacable opposition to seeking any treatment for it.

Section 94, so far as is relevant, provides:

(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% or more under the Impairment Tables; and

(c) because of the impairment the person has a continuing inability to work; and

...

(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 within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

(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 educational or vocational training or on-the-job training; or

(b) if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market.

Section 94(3)(b), read with s 94(4), permits the Secretary to have regard to the availability to the applicant for a pension of work in the person's locally accessible labour market only if he has turned 55.

The Impairment Tables are set out in Schedule 1B to the Act. So far as is relevant, the Introduction to the Tables provides:

1. These "Tables for Assessment of Impairment for Disability Support Pension" consist of system based tables that assign impairment ratings in proportion to the severity of the conditions and their impact on normal function particularly as they relate to work performance. ... One of the skills which needs to be developed in order to assess impairment is the ability to select the appropriate Tables. The question which must be asked in each and every case is "which body system has had its function impaired due to this condition?"

2. Another concept essential to an understanding of impairment is that of the "whole person". ... Impairments have first been calculated in terms of their effect on the relevant body system and then converted to whole person impairment figures. The impairment rating is expressed as a percentage of the "whole of person" functional capacity. ...

3. For the purposes of these Tables, impairment refers to any loss or abnormality of psychological and/or physiological function remaining after appropriate medical treatment and rehabilitative processes have been completed. ...

4. For an impairment rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. 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.

NOTES

...

7. Where more than one impairment is present, separate scores are allotted for each. The values are not added but are combined using the Combined Values Chart. ...

Table 8 - "Alcohol and Drug Abuse" - and the notes to that Table show that the Legislature has accepted that, even where no physical damage has resulted to any part of a body, alcohol abuse can constitute an impairment within s 94, ie, an impairment capable of attracting a disability support pension. But paras 3 and 4 of the Introduction to the Tables show that alcohol abuse, not accompanied by any physical damage to the body, is, if sufficiently severe as assessed by reference to the impairment ratings in Table 8, only capable of constituting an "impairment" within s 94 if it is a "permanent" condition. That is, it must be "fully documented, [and] diagnosed" and it must have "stabilised". In addition, it must also be the condition of disability that the pension applicant is in after that person has received "appropriate medical treatment" for his or her alcohol abuse and after "appropriate ... rehabilitative processes" for such abuse have been completed.

The Tribunal was, I think, alert to these restrictions on a person's entitlement to a pension because that person is disabled by alcohol abuse. It said, in para 4 of its reasons:

The applicant's alcohol problems have been of long standing ... It is a serious problem. It has stabilised. It has been documented by his treating doctor.

And in para 5, it said:

The Tribunal believes that there is no known appropriate treatment that [the respondent] could undergo to prevent his alcohol problem. His mind set now is such that he probably would not co-operate in any case. The treatment programs open for people with alcohol problems are of questionable efficiency.

What the Tribunal had to say about there being no known appropriate treatment and about treatment programs for alcoholism being of questionable efficacy are necessarily conclusions of fact. What the Tribunal here said does not purport to be an opinion as to the proper reading of the legislation and, if it were, it would necessarily be erroneous in law: it was not contended by the respondent that there was any basis for reading the legislation as revealing an intention to accept that there is no appropriate treatment or rehabilitative process for alcohol abuse. (By way of contrast, permanent blindness, which is dealt with not in the Impairment Tables but in s 95 of the Act itself, is recognised by the Legislature as a non-treatable condition.)

Unfortunately, there was simply no material in the information placed before the Tribunal by the parties upon which it could reach its conclusion about the unavailability or lack of efficacy of alcohol abuse treatments and programs.

Where it is necessary for the Tribunal to reach a conclusion on a matter of fact in order to make its determination, the Tribunal must have available to it material logically probative of the existence of that fact. So much is implicit in the nature of the role of the Tribunal as a merit-review body and in ss 38(1) and 43(2B) of its Act. It has been held by the Full Court that if the Tribunal reaches a conclusion critical to its determination without any material available to it, that will constitute an appealable error of law: see Collins v Minister for Immigration [1981] FCA 147; (1981) 36 ALR 598 at 601.

Material necessary to support the Tribunal's decision will generally have been provided by the parties themselves. But it can be obtained by the Tribunal from its own inquiries: see s 33(1)(c) the AAT Act. It would also be open to the Tribunal to satisfy itself as to a critical fact by noticing the existence of that fact, if it were a notorious fact which tribunals bound by the rules of evidence could notice either under the common law doctrine of judicial notice or under statutory provisions such as s 144 the Evidence Act 1995 (Cth). (I would not, however, accept that the conclusion here in question is one which the Tribunal could reach without access to material probative of its correctness.) There is also an area in which the Tribunal can rely upon its own expertise to acquire information necessary to the making of its determination.

Where the Tribunal obtains material of importance to its decision otherwise than from the parties, it will be a breach of the rules of natural justice if the Tribunal fails to alert the party affected that it has obtained material of potential importance to its decision in sufficient time to give that party an opportunity to deal with that material. Such a breach would, of course, result in the decision being affected by appealable error of law. Section 43(2B) would, in any event, require the Tribunal to identify the material critical to such a conclusion as that now in question was made. The Tribunal did not say anything in its reasons to suggest it had sought out for itself information which might have justified what it had to say about the matter now in question.

It was not suggested that the Tribunal may have acquired knowledge of the material sufficient to justify its conclusion as to alcoholism being non-treatable from its own inquiries or expertise. Nor did respondent's counsel dispute that the proper conclusion is that the Tribunal, in making these findings, acted without the necessary probative material.

The conclusion that Mr Murphy's alcohol problem left him with an "impairment" within s 94(1)(a) and (b) was critical to the Tribunal's decision that he was entitled to be paid the pension he sought. That determination, being made without necessary supporting material, is infected with error of law. The Tribunal's decision must therefore be set aside: Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 at 188.

The matter should be remitted to the Tribunal differently constituted, in accordance with the general rule referred to in this Human Rights and Equal Opportunity Commission case at 199 - 200, for redetermination. The Tribunal should have the power to receive further evidence. The applicant does not seek any order for costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond

Associate:

Dated: 29 June 1998

Counsel for the Applicant:	Mr JA Logan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr DP O'Gorman
Solicitor for the Respondent:	Gilshenan & Luton
Date of Hearing:	24 June 1998
Date of Judgment:	29 June 1998