Secretary, Department of Social Security v Chin [1999] FCA 44 (3 February 1999)

Last Updated: 5 February 1999

FEDERAL COURT OF AUSTRALIA

Department of Social Security v Chin [1999] FCA 44

SOCIAL SECURITY - appeal from Administrative Appeals Tribunal - disability support pension - respondent a profoundly deaf child- whether Tribunal correct in concluding unskilled labour unsuited to respondent due to potential psychological and other impact.

WORDS AND PHRASES- "any work"

Social Security Act 1991 (Cth) s 94

Re Hamal and Department of Social Security (1993) AAR 137, considered

Re Warren v Department of Social Security AAT No. 9711, 2 September 1994 (unreported), considered

SECRETARY, DEPARTMENT OF SOCIAL SECURITY v CHIN

WAG 32 OF 1998

R D NICHOLSON J

3 FEBRUARY 1998

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 32 OF 1998

BETWEEN:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY Applicant
AND:	MEI LIN (GRACE) CHIN Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	3 FEBRUARY 1999
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal made on 6 February 1998 be set aside.

3. The decision of the Social Security Appeals Tribunal dated 7 February 1997 be set aside.

4. The decision made by the delegate of the applicant on 26 June 1996 as affirmed by an authorised review officer on 16 October 1996 to reject the respondent's application for disability support pension be affirmed.

5. There be no order as to costs.

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	WAG 32 OF 1998

BETWEEN:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY Applicant
AND:	MEI LIN (GRACE) CHIN Respondent

JUDGE:	R D NICHOLSON J
DATE:	3 FEBRUARY 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by Deputy President T E Barnett, Dr J G Billings and Dr D Weerasooriya ("Members") given on 6 February 1998. The Tribunal affirmed a decision of the Social Security Appeals Tribunal ("the SSAT") dated 7 February 1997 to the effect that the respondent satisfied the requirements of s 94 of the Social Security Act 1991 (Cth) ("the Act") from the date of her claim on 8 May 1996 and so was entitled to a Disability Support Pension.

2 Essentially the appeal involves the question whether the Tribunal was correct in accepting the interpretation given by the SSAT to subs 94(2) of the Act, which reads:

"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 within the next 2 years; and

(b) either:

(i) if 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 The Tribunal considered the subsection should be read as applicable to work "suitable" to the respondent. That subsection is to be read in its context in s 94, the other portions of which, so far as is relevant read as follows:

"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% or more under the Impairment Tables; and

(c) because of the impairment 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.

...

94. (2) [ see above]

Meaning of continuing inability.

94.(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.

94.(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94.(5) In this section:

`educational or vocational training' does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

`on-the-job training' does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

`work' means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market." (Emphasis added).

Tribunal's reasons

4 The Tribunal found the following facts to be uncontested:

5. "The respondent was born in Malaysia to Chinese parents on 13 May 1980, and has suffered from profound deafness since birth. On 23 April 1987 she emigrated to Australia with her parents, holding a permanent entry permit, and has resided in Australia since that date. On 21 May 1987, at the age of seven years, she was diagnosed as having a hearing impediment said to be profound pre lingual bilateral sensory neural deafness. Prior to this date it was not known that she suffered a hearing impediment. The respondent became an Australian Citizen on 10 March 1994 when she was aged 13 years.

6. When the respondent arrived in Australia in 1987 she had no knowledge of English and no knowledge of the AUSLAN language but she had developed, in conjunction with her family, a basic form of personal home sign language. She had had no schooling. After her deafness was diagnosed she was enrolled at the Mosman Park School for the Deaf where she did all of her primary school education with the full support available for the teaching of deaf children. During this period she learnt English and the AUSLAN language and she completed her primary schooling satisfactorily

7. She was enrolled in the Swanbourne Senior High School, which has a special unit to assist deaf children. She attended there for 5 years. She has performed extremely well in her studies at the High School. She has managed to become integrated into the normal teaching classes and succeeded in her studies to an exceptional degree, obtaining very good examination results. In order for her to achieve this she was assisted by the provision of a full time AUSLAN interpreter during all class contact hours and occasionally (approximately 45 minutes per week) she received special tutoring from an English teacher assisted by an AUSLAN interpreter. She is the first deaf child to have had this sort of success in an integrated class in the Swanbourne High School.

8. The respondent applied for a disability support pension on 8 May 1996 and was assessed by the Commonwealth Medical Officer as having an impairment rating of 40 percent under table 16 of the impairment tables. Her claim was rejected on 24 June 1996 on the basis that her deafness did not of itself prevent her from doing any work or from being trained to do work within two years. This was confirmed by an authorised review officer on 16 October 1996. The respondent then applied for review by the Social Security Appeals Tribunal which set aside that decision and found that she satisfied the criteria for disability support pension set out in paragraphs 94(1) of the Social Security Act 1991 (`the Act')...".

5 Before the Tribunal, as here, it was agreed by the parties that the respondent meets the criteria laid out in pars 94(1)(a), (b), (d) and (e) of the Act. The critical question was whether she met the requirements of par 94(1)(c), that is, whether her impairment was sufficient to prevent her from doing work within the next two years and whether she was unable to do any training in the next two years which would be likely to enable her to do any work within that period.

6 The Tribunal then turned to evidence before it. It found that all witnesses regarded the respondent to be a very intelligent, stable and friendly person. The respondent told the Tribunal she wanted to study at tertiary level at TAFE in the general area of fashion, computer and art studies. On behalf of the applicant a list of occupations prepared by Dr A Home, an occupational health specialist, was tendered as indicative of what she was clearly capable of undertaking. Dr Homes' evidence was that the occupations had been chosen because they would not be too demanding, would not raise any safety considerations for a deaf worker and would not require more than a minimal amount of communication between the respondent, her employers and co-workers. The list he submitted referred to the occupations of light process work in testing or fabrication of jewellery or electronics, care-taker, photo developer, cleaner, mail sorter, gardener, labourer, trade's assistant, factory hand, kitchen hand, laundry work, industrial cleaner, apprentice baker and shop assistant.

7 The Tribunal found that it had been greatly assisted by the evidence of Dr Blackmore who was described as a renowned specialist in the problems facing the deaf in society. His assessment of the respondent was that she was very intelligent, very capable, very balanced and highly motivated to succeed in a challenging occupation suited to her intellectual capacity. He said that if she was required to undertake menial tasks similar to those ones on the list tendered by Dr Home, she would feel devastated and let down. He said that many deaf people, in such circumstances, would become incapable of sustaining that employment and could suffer a permanent damage to their personality and attitude. He was unable to give an opinion that the respondent would necessarily have that same reaction. He said that, because of her integrated personality and sense of balance she may be prepared to continue in the work and reluctantly "accept that as her lot in life". He said, however, that such a result would be a tragic waste of her capabilities and of the contribution that she could make to the community. He said that clearly from a psychological point of view such work was not suitable for the respondent.

8 The Tribunal was satisfied on the evidence of the respondent's teachers and of Dr Blackmore that she has the motivation and capacity to successfully complete tertiary education if she is provided with the services of AUSLAN interpreter and, perhaps, a few hours a week of special tutorial support.

9 Before the Tribunal it was submitted on behalf of the applicant that the respondent was not entitled to a disability support pension unless she was prevented by the incapacity (her deafness) itself from performing any work at all. Inasmuch as it was clear the respondent was able to perform the types of occupations included on the list tendered by Dr Home, it was submitted she was ineligible for the pension. It was also submitted it was not a question of whether those occupations would be her preference but whether she was capable of performing any of them. Alternatively, it was submitted that if the Tribunal should find those occupations were not suitable, it was clear the respondent was capable of being trained in a course which would enable her to carry out more suitable employment within a period of two years.

10 Submissions for the respondent before the Tribunal were directed to the contention that it was not correct to interpret s 94 of the Act as meaning that the respondent should be denied a disability support pension if she could do any work at all. In addition, it was submitted for the respondent that, on the evidence of Dr Blackmore, the jobs listed by Dr Home would not be suitable for her as they would destroy her motivation, crush her spirit and could lead to permanent personality damage. It was submitted for the respondent that suitable employment must involve an opportunity to use her intelligence and to obtain a sense of achievement.

11 The Tribunal then considered these submissions. It accepted an argument that the intention of the legislature in the plain language of s 94 of the Act was to imply a concept of suitability to qualify the phrase "any work". It said:

"It is obvious that "any" work cannot be read without some implied limitation. If it were, then work in conditions which are dangerous to the health or life of the person in question would be within the term `any work'. It could possibly even include unlawful work.

...

The phrase "any work" applies a notion of suitability to work that takes into account not only the persons disabilities but also their abilities, and the impact of that employment on their physical and psychological health and well being."

The Tribunal noted that the words "any work" are not defined in the Act although the word "work" is defined to some extent in particular sections including s 94. It accepted that the word would have different meanings in different sections within the Act.

12 It noted that the concept of suitability in relation to work was expressly incorporated into the Act and the Student And Youth Assistance Act 1973 (Cth) in relation to disqualification from New Start Allowances (ss 601, 603 and 603C); disqualification from special benefits (subs 732(1)); and disqualification from Youth Training Allowances (subs 75(1) and 78B(2)). It noted these sections all deal with the disqualifications of people who would otherwise qualify for the relevant benefit. In contrast, s 94 dealt with criteria for eligibility rather than disqualification.

13 Having considered these matters the Tribunal rejected the contention that, because the legislature has referred to the concept of suitable work in the aforementioned sections and has not expressly incorporated the concept of suitability in s 94, it must have had a deliberate intention to disqualify a person from receiving a disability services pension where that person can only do work which is clearly unsuitable.

14 The Tribunal then turned to the possible application, raised in submissions, of the Disability Discrimination Act 1992 (Cth) ("the Discrimination Act"). After reference to ss 29 and 51 of the Discrimination Act it concluded that a decision-maker acting under the Act could not discriminate against a person with a disability except to the extent that they are acting directly under the authorisation or the direction of a provision of the Act allowing them to do so. The Tribunal considered that it was consistent with the policies and provisions of the Discrimination Act, with the Act and with the general reasoning of the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353 that the exempting provision of s 51 would apply only where a provision was clearly discriminatory or there was clear provision allowing a discriminatory act to be performed. It concluded s 94 of the Act was not clearly discriminatory so that discrimination under it would not be protected by s 51 of the Discrimination Act.

15 Turning to the evidence of Dr Blackmore, the Tribunal said it accepted that evidence to the effect "that a position which does not allow the respondent to make use of her intellectual potential would, in the context of her particular disabilities, be likely to undermine her psychological health and would not be suitable." Referring to that evidence the Tribunal said "any work which failed to recognise her intelligence and ability and which tended to undermine her sense of self worth and motivation is likely to have a profound negative effect upon her personality and could lead to her developing a permanent `underlying paranoid feeling'". It continued by stating that "the employment categories listed by Dr Home will, in [the respondent's] case tend to have this effect and are not suitable for her." Furthermore, her ability to obtain suitable work so understood would involve the respondent "undergoing tertiary level training in excess of two years from the commencement of her course".

16 The Tribunal concluded that, alternatively, even if this were not so, all of the jobs listed by Dr Home required some degree of communication between the respondent and "hearing" persons at the workplace. It found the respondent does not have adequate lip reading skills and no spoken speech capacity so that such communication would depend upon an employer permitting her to communicate in writing and thus upon the benevolence of the employer. It concluded this was not work in the open market place intended by the Act: Re Hamal and Department of Social Security (1993) AAR 137 at 146-147; Re Warren v Department of Social Security AAT No. 9711, 2 September 1994 (unreported).

17 The Tribunal found therefore that the respondent met the criteria set out in subs 94(2) of the Act. It said "her impairment is of itself sufficient to prevent her from undertaking any work within the next two years; and to prevent her from undertaking educational training during the next two years which would enable her to do any work within that period".

18 The Tribunal, returning to the aspects of discrimination, noted that the decision which it reached was consistent with the Discrimination Act and with Australia's international obligations under the Convention on the Rights of the Child and the United Nations Declaration on the Rights of Disabled Persons ("The Declaration"). It said that the Discrimination Act reflects some of the matters contained in the Declaration.

19 Noting the reasoning of the High Court in Teoh that there was at least a legitimate expectation Ministers would treat the interests of a child as a paramount consideration so that an opportunity would be provided for an indication to be made why the best interests of a child should not prevail, the Tribunal concluded it had favoured a construction of the legislation consistent with Australia's international obligations.

20 Furthermore, it said that in deciding whether employment is suitable or not for the respondent, the interests of her as a child should be paramount and Australia's obligations to disabled persons should be upheld unless clear legislative or other reasons mitigate against these requirements.

Grounds of Appeal

21 There are two broad grounds of appeal against the reasoning of the Tribunal. The first is that the Tribunal was in error of law in the interpretation which it gave to the requirement in par 94(2)(a) of the Act that "the impairment is of itself sufficient to prevent the person from doing any work within the next two years." Secondly, it is contested that there was any evidence to support certain findings of fact broadly said to relate to the psychological health of the applicant.

22 In answer to certain supplementary submissions filed by the respondent following the hearing pursuant to leave it is also contended on behalf of the applicant that the Tribunal purported to rule in favour of the respondent on the basis of an issue which was not properly before it, namely the psychological condition of the respondent as a basis of impairment.

23 It is convenient therefore to proceed to the evidentiary foundations upon which the second group of grounds of appeal are founded.

Evidence of psychological impairment

24 The critical findings to which this evidence is relevant, it will be recalled, were as follows. The first was that the Tribunal accepted the evidence of Dr Blackmore to the effect that a position which does not allow the respondent to make use of her intellectual potential, would, in the context of her particular disabilities, be likely to undermine her psychological health and would not be suitable. Further, the Tribunal concluded that any work which failed to recognise her intelligence and ability and which tended to undermine her sense of self worth and motivation is likely to have a profound negative effect upon her personality and could lead to her developing a permanent "underlying paranoid feeling".

25 The respondent's claim identified the medical conditions (illnesses or injuries) which stopped her from working as "profound deafness". The treating doctor's report addressed the condition of "profound pre lingual sensory-neural deafness (bilateral)". The treating doctor (Dr Khoo) testified in cross-examination he was not in a position to tell whether there are any psychological features which might emerge if the respondent had to do some fairly menial work.

26 In her application the respondent said that her medical condition did not affect the way she did things around the home such as gardening and housework. She also relied on an assessment of the Australian Hearing Services which only dealt with her deafness.

27 The Departmental Medical Officer dealt only with the condition of "profound deafness".

28 In her appeal to the SSAT the respondent stated as her ground for believing the decision of the applicant's delegate which had denied her the pension was incorrect was that it had "not taken into account the full linguistic, social and cognitive ramifications" of her profound deafness.

29 In its reasons for allowing the appeal the SSAT referred to the fact that quite frequently a hearing impaired student has difficulty in undertaking a full-time load and will often take longer to complete the same course of studies as a hearing student. Apart from that there does not appear to have been any reliance by the SSAT on cognitive factors.

30 The application to the Tribunal made by the applicant relied only on the ground that the SSAT had erred in law by holding that the respondent had a "continuing inability to work".

31 The position therefore was that the application arrived at the door of the Tribunal with no prior mention of any psychological impairment.

32 Dr Blackmore's report was prepared specifically in support of the hearing before the Tribunal. The purpose of his examination of the respondent was stated to be "an assessment of psychological and emotional development re possible impact upon her for work now."

33 In his report Dr Blackmore concluded:

"I have had the opportunity to read the reports of Dr M C Thong, Commonwealth medical officer (18.06.96) and of Dr Alan Home, specialist in occupational medicine (30.06.97). I concur in principle with their observations that, on leaving school, [the respondent] is likely to be capable of working in the kinds of relatively unskilled menial tasks suggested and for which no higher education is required."

34 It is submitted for the applicant, based on the applicant's understanding of the statutory provision, that that is the end of the case and concludes the application against the respondent.

35 Dr Blackmore then proceeded to a further conclusion that it would be contrary to natural justice and the principles of equity and access to deny the respondent an opportunity for further and higher education simply because she was deaf and thus to relegate her to vocations for which she was not inclined and for which she is intellectually and motivationally unsuited. He reached this view on his express understanding that par 94(1)(c) in its requirement for "a continuing inability to work" was referable to a vocation of the respondent's choice. I accept the submission for the respondent that in these conclusions Dr Blackmore made no reference to any issue of psychological impairment or even to the possibility that such impairment might be developed if the respondent did unskilled work.

36 In the report of Dr Home upon which Dr Blackmore relied, Dr Home undertook an assessment in relation to the issue of deafness and work. The main issues he considered were work efficiency, safety and employer's responsibilities and "associated disabilities". He concluded the respondent was capable of undertaking work in the next two year period. He then provided the list of suitable forms of work which he had in mind. In reaching this conclusion he noted that the respondent did not have "any associated disabilities, either physical or intellectual".

37 The evidence of Dr Blackmore in-chief and cross- examination before the Tribunal contained the following statements:-

(1) It would be mind-constricting for a person like the respondent to do the sort of things listed in Dr Home's list, given her potential. Later he testified that it would be more mind constricting for the respondent, given her background and her disability, than it would be for other people.

In cross-examination Dr Blackmore accepted that the mind constricting effects to which he referred would apply to any ordinary person of the same superioral intellectual and level of potential as the respondent. Some people might accept that position, some might not. In her case it was both her intelligence and deafness which produced the mind constricting effect.

(2) Because she had a stable personality, strong character and good intelligence, she would initially be disappointed, perhaps devastated by finding that she had to work at the level of the jobs in Dr Home's list. However she might, like some people in her situation with her background, with her innate attitude to life, be able to surmount that and find some other way of getting around the problem and eventually getting on to do the things she wanted to do.

Later he testified that it certainly would happen that the respondent would feel disappointed, she would feel devastated that she was not able to do or be offered an opportunity to do anything other than the types of jobs listed by Dr Home. Dr Blackmore could not foretell how long she would feel that. For some people in her situation that might be felt for the rest of their lives.

Later in cross-examination he said that if the respondent was given a position less than that for which she had potential it would be devastating.

(3) Following immediately on his evidence relating to devastation Dr Blackmore said:

"It might be psychologically damaging to the point that they extrapolate beyond that experience to their contact with hearing people thereafter. But in [the respondent's] particular case, I couldn't say."

He accepted however that in other cases with people with whom he had dealt it had been permanently damaging. The subject of this passage was the respondent's feelings of devastation referred to in point 2.

(4) He said if the respondent was in employment of less than her potential she would feel resentment and have some negative attitude. Again he said that might be extrapolated to her attitude to life in general but he could not say that was going to be the way the respondent would cope with life in the future.

(5) When asked whether the respondent's continued feelings of resentment and devastation could effect a change of personality, Dr Blackmore testified that was possible only to the extent there would be an underlying degree of paranoid feeling which quite a number of deaf people have over the years acquired. He said this "not from a psychological disturbance" but because deaf people have come to realise that hearing people don't seem to understand. That could be a permanent feature in her life.

(6) Later he said that while there was the possibility of a personal change it was "not to the extent ... that it would be regarded as a psychological disorder". It would be within the range of normal personality although the respondent would be a different person.

38 It is clear there is nothing in this evidence upon which the Tribunal was entitled to conclude that a position which did not allow the respondent to make use of her intellectual potential would, in the context of her particular disabilities, be likely to undermine her psychological health and would not be suitable. Dr Blackmore expressly testified that there would be no psychological disorder. There is no evidence that mind constriction, devastation, resentment and negative attitudes would produce any psychological disorder.

39 The closest that the evidence comes to the point reached by the Tribunal is in point 3 above where Dr Blackmore used the words "psychological damaging". However, he expressly stated that in the respondent's case he could not say whether that would be the case.

40 The other potentially relevant evidence is his reference to an underlying degree of paranoid feeling. Again he expressly stated that would not give rise to a psychological disorder.

41 There was therefore no evidence upon which the Tribunal, even on the interpretation which it gave to s 94(1)(c) of the Act, could find that the employment opportunities were unsuitable because they would undermine the psychological health of the respondent.

42 I therefore consider that the applicant succeeds in making out the second ground of appeal.

Availability of "work" as defined in the Act

43 The Tribunal further concluded that even if it was the case the work required by s94(2) did need to recognise the respondent's intelligence and ability the respondent:

44 "All of the jobs listed by Dr Home require some degree of communication between [the respondent] and `hearing' persons at the workplace. [The respondent] does not have adequate lip reading skills and no spoken speech capacity. Such communication will depend upon an employer permitting her to communicate in writing and thus would depend upon the benevolence of her employer. This is not work in the open market place intended by the Act: Re Hamal and Department of Social Security (1993) AAR 137 at 147-147; Re Warren and Department of Social Security AAT No 9711, 2 September 1994 (unreported) at p.4".

45 For the applicant it is contended also in the grounds of appeal that the Tribunal was in error in excluding from consideration any work where employing the disabled person would entail benevolence or forbearance on the part of the would- be employer, such as allowing a person with a hearing impairment to communicate in writing.

46 The applicant submits that the concept of "open market" in this context should be tested against the norm of the reasonable employer, complying inter alia with the letter and spirit of the laws against discrimination on the basis of disability, relying on the test proposed by the Tribunal in Re Panke and Director- General of Social Services (1981) 4 ALD 179; a test which was approved by this Court in Annas v Director- General of Social Security [1985] FCA 428; (1985) 8 FCR 49.

47 The applicant further submits that there is no basis for assuming that no potential employer or class of employers would make any allowance for the respondent's hearing disability. In addition it is submitted for the appellant that the view taken by the Tribunal is inconsistent with the Discrimination Act, in particular sections 5, 6 and 8. The need to communicate by writing or signs cannot, it is submitted, convert all of the types of employment open to the respondent into "special employment of an unusual kind" ( a phrase taken from Annas v Director-General of Social Security [1985] FCA 428; (1985) 8 FCR 49).

48 In Re Hamal and Department of Social Security (1993) AAR 137 at 146 the Tribunal said ( in a passage cited by the Tribunal in this case) :

"Employees are required to work as directed and, at a time when multi-skilling is the goal of all businesses, Mr Hamal's physical, intellectual and psychiatric impairment would prevent him from participating in the workforce at this level of employment for 30 hours per week. When considering the issue of work in this context, the Tribunal is of the view that it is the "normal" workplace against which a person's abilities are to be judged, not the workplace of the "benign employer".

49 In Re Warren and Departmental of Social Security AAT Number 9711, 2 September 1994 ( unreported ), in a passage cited by the Tribunal in this case, the Tribunal stated (at pages 3-4):

"It is apparent from the evidence before the Tribunal and from seeing [the applicant] at the hearing that he is "physically" capable of doing his usual work of cleaning and in that sense only it may be possible for him to gain employment as a cleaner, (or in similar unskilled work), from a benign employer who is prepared to take extra time to train him in the cleaning routine required for the job. This however, is not the end of the matter as [the applicant's] "physical" ability needs to be considered alongside his personality disorder, his basic underlying intelligence and resourcefulness, his motivation and his degree of co-operativeness on the job." (Emphasis added)

At page 13, in a passage not cited by the Tribunal in this case, the following passage appears:

"On the open job market only a benign employer is likely to risk employing [the applicant] when other persons with no disability are available in large numbers. In the Tribunal's view if the only work he can do is work offered by such a benign employer then he does not have an ability to do his usual work or work for which he is currently skilled for the purpose of s94(2)(a) of the Act. In any event, such a benign employer would only be likely to take [the applicant], and to continue to employ him, if there was a willingness on [the applicant's] part to use his undoubted intelligence and resourcefulness to do the job successfully. At present, [the applicant] is unable, because of his deafness and immature personality disorder, to demonstrate that willingness and motivation."

50 Neither of these decisions purports to define what is meant by the description "a benevolent employer". The concept is applied in relation to the former requirements of the Act involving reference to usual work or work for which a claimant was currently skilled. The present statutory provisions may not now allow for that construction as a matter of law. However, without deciding that point, it is sufficient here to look to the evidence which was before the Tribunal.

51 Dr Home was asked how an employer would go about providing instructions to a deaf person and the following exchange took place:

"...I would imagine that you would need to organise an interpreter maybe, or it could be given in written form. If, I mean, placements have been arranged for deaf people in these sorts of forms of work and generally these, most of these things can be instructed in written form.
Question: Are you saying that that would need a special arrangement with the employer and a special acceptance on his (sic) part of the status of the worker ?

Answer: Could do.

Question: For the work to be gained ?
Answer: I don't think it requires an enormous amount of accommodation from an employer. I think that would be within the normal gamut, I think, of accommodation of an employer to - if they were prepared to accept people with disabilities, as many employers are these days, I would expect that they would be able to make accommodations. I'd be disappointed if they didn't quite frankly." (Emphasis added)

52 Dr Home was asked whether he knew of the existence of jobs in the industries on the list in his report and whether deaf people had been placed in these jobs. He stated that these jobs are available in Australia and that he had placed deaf people in jobs of the type included on his list.

53 Dr Blackmore was not asked directly whether employers would need to show benevolence in employing a deaf person in any of the jobs on Dr Home's list. However he was asked how difficult it was for deaf people to communicate in the workplace. His evidence was that it depended a lot on the employer being able to make allowances for the difficulty associated with deaf people expressing themselves in English. He stated that more often than not deaf people are left isolated from their working peers and when necessary have to communicate in writing to the best of their ability, or they may have to get in a sign interpreter to enable them to communicate. In some workplaces co-workers picked up basic signing which enabled a deaf worker to communicate but in many instances they have no communication with co-workers other than basic signing.

54 It was clear the Tribunal was entitled to conclude the respondent did not have adequate lip reading skills or a speech capacity. However there was not evidence that communication could only occur through a "benevolent" employer. Dr Home's evidence was that special arrangements for communication by an employer were within the "normal gamut". Dr Blackmore's evidence recognised that communication could occur through other means. There was not therefore an evidentiary foundation to enable the Tribunal to conclude the respondent would require a benevolent employer in the sense referred to in Hamal and Warren.

Nature of claim

55 In the supplementary submissions the respondent advanced the contention that the impairment which the Tribunal was bound to take into account should be viewed as the impairment tables require, as a "whole person" functional capacity. This, it is said, encompasses "associated aspects of daily living". By this means it is said that the respondent's impairment required the Tribunal to take into account not only her deafness but the other matters raised in the evidence.

56 In reply, the case for the applicant makes the telling point that, as appears from matters set out above, no claim in respect of psychological damage was raised in the course of the process leading to the hearing before the Tribunal until the evidence of Dr Blackmore. The consequence was that the applicant's case was not run on the basis of a claim in respect of deafness leading to psychological damage. So far as the reference to "an underlying degree of paranoid feeling" is concerned it is submitted that the Tribunal would have had no way of correlating that expression with impairment in terms of the Impairment Tables.

57 As I consider this appeal falls to be resolved on the basis of the evidence which was before the Tribunal and which did not justify the findings made by the Tribunal, it is unnecessary to resolve the issues raised in these further submissions. However, I would add the comment that if causative effects of a particular condition are to be relied upon in the claim process, it would appear necessary that the effects be identified at an early stage in order that the claim to that extent can be addressed with procedural fairness at all levels of the appeal process.

Statutory interpretation

58 As I consider that the appeal falls to be resolved on the issue of evidence it is not necessary to resolve the other issues in the grounds of appeal relating to the interpretation of the meaning of "any work" in s 94(2)(a). Even if the Tribunal was correct in considering that the paragraph required consideration of "any suitable work", there was no evidence entitling the Tribunal to conclude the work was unsuitable for the reasons upon which it did so. On its own interpretation of the relevant statutory provision, the evidence did not entitle it to apply it in favour of the respondent.

Conclusion

59 For these reasons I consider that the law require that the appeal be allowed. To achieve that the decision of the Tribunal and of the Social Security Appeals Tribunal should each be set aside and the decision of the delegate of the Minister affirmed. No order is sought as to costs.

60 There is, however, a human side to the application. It was made patent in the evidence of Dr Blackmore. The issue arises because of the potential the respondent has for further development. Dr Blackmore testified:-

A. The tragedy where deaf people are concerned is that most hearing people seem to relegate them to the sort of level of work in Dr Home's list.

B. There is nothing in place to enable deaf children who are capable of going on further and who have the potential of further advancement to do so.

C. He could not think of one deaf person who has gone on to further education at the university. He regarded that as an extraordinary commentary on the difficulty that deaf children have of getting ahead.

D. The hearing world always puts deaf people down and is impatient with them regarding them as being stupid.

61 It may be that there are other ways for the respondent to be enabled to proceed other than success in obtaining the disability service pension. The human, as distinguished from the legal, side of her case is one which commends further consideration in her interests.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON.

Associate:

Dated: 2 February 1999

Counsel for the Applicant:	Dr J Schoombee
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr R Hooker
Solicitor for the Respondent:	Fidock & Fidock
Date of Hearing:	8 October 1998
Date of Judgment:	3 February 1999