Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris

The contended errors 7 The contended errors of law on the part of the Tribunal are said to be these. 8 First, the Tribunal embarked upon an examination of whether Mr Harris would be able to "obtain work" or "find employment" instead of restricting its consideration to the question required to be answered by s 94(2) of the Social Security Act of whether Mr Harris's impairment is sufficient of itself to prevent him from doing any work having regard to the definition of "work" in s 94(5) of the Act. 9 Secondly, the Tribunal failed to consider whether as a result of Mr Harris's impairment, of itself, he was prevented from undertaking a training activity during a two year period commencing on 25 July 2007 which was the date of his application to Centrelink for a disability support pension. Further, the Tribunal failed to consider whether in the event that the impairment did not prevent Mr Harris from undertaking a training activity, such an activity was unlikely to enable him to do any work independently of a program of support within the relevant two year period. Thus, it follows, it is said, that the Tribunal failed to consider the application of s 94(2)(b)(i) or (ii) of the Act in determining whether Mr Harris qualified for a disability support pension. 10 Thirdly, the Tribunal fell into error by finding in the absence of any evidence to support the finding that doing work in retail positions would require the worker to stand for more than an hour at a time. 11 Fourthly, the Tribunal failed to provide adequate reasons for the determination that Mr Harris had a continuing inability to work as defined in the Social Security Act.

The questions of law 12 The Secretary identifies these questions of law to be determined on the appeal: 1. Whether the Tribunal misconstrued s 94(2)(a) of the Act as providing that a person has a continuing inability to work because of an impairment if a person is unable in fact to "obtain" employment because of an impairment whereas s 94(2)(a) provides that a person has a continuing inability to work because of an impairment where the impairment is of itself sufficient to prevent the person from doing any work. 2. Whether the Tribunal failed to consider the provisions of s 94(2)(b) of the Act, namely whether the Respondent was prevented from undertaking a training activity in the next two years, or whether such activity is unlikely to enable the Respondent to do any work independently of a program of support within two years. 3. Whether the Tribunal made a finding of fact in the absence of any evidence, namely that retail positions would have the requirement of standing for more than an hour at a time. 4. Whether the Tribunal failed to provide adequate reasons for its determination that the Respondent had a continuing inability to work as defined in the Act.

Background principles 13 In order to qualify for a disability support pension Mr Harris must demonstrate that he has a physical impairment (s 94(1)(a)); the impairment is of 20 points or more under the Impairment Tables for the purposes of the Act (s 94(1)(b)); and he has a continuing inability to work (s 94(1)(c)). Section 94(2) provides for a staged enquiry by the Secretary of the circumstances confronting Mr Harris both at the date of his application and, in relation to some matters, in a forward‑looking way over a period of two years from that date in order to be satisfied that Mr Harris has a continuing inability to work. At the first stage, the Secretary must be satisfied that the impairment is, of itself, sufficient to prevent the person from doing any work independently of a program of support within the next two years: s 94(2)(a). 14 Stage 1 requires the Secretary to look to Mr Harris's impairment, its features and characteristics and be satisfied that the impairment so understood is of itself sufficient to prevent Mr Harris from doing any work independently of a program of support within a period of two years from the date of his application. Apart from the notion that the impairment is of itself sufficient to prevent Mr Harris from doing something, there are two other concepts drawn within s 94(2)(a) of importance. The first is a reference to preventing a person from doing "any work" and the second is a reference to undertaking that work "independently" of what is described as a "program of support". 15 The reference to "any work" is a reference to any work that exists in Australia even if that work is not within the person's locally accessible labour market and work which consists of at least 15 hours work per week on wages that are at or above the relevant minimum wage: s 94(5). In deciding whether Mr Harris's impairment is of itself sufficient to prevent him from doing any work, the Secretary is not to have regard to the availability to Mr Harris of work in his locally accessible labour market: s 94(3)(b). The relevant work is work that exists in Australia and the question is whether Mr Harris's impairment is sufficient of itself to prevent him from doing any work as defined in s 94(5), in Australia. 16 Mr Harris is to be treated as doing work independently of a program of support if the Secretary is satisfied that to do the work Mr Harris is unlikely to need a program of support funded by the Commonwealth (or a relevantly analogous program otherwise funded) designed to assist him to prepare for, find or maintain work that exists in Australia for periods of at least 15 hours per week on wages as described previously: s 94(4)(a)(i) and (ii); s 94(5). Alternatively, Mr Harris is to be treated as doing work independently of such a program if the Secretary is satisfied that Mr Harris is likely to need such a program of support occasionally or is likely to need such a program of support that is not ongoing: s 94(4)(b) and (c). 17 Therefore, at the first stage, the Secretary must be satisfied that the impairment is, of itself, sufficient to prevent Mr Harris from doing, any work, as described, independently of a support program as described at [16]. That, however, is not the end of the matter. At the second stage, the Secretary must be satisfied that either Mr Harris's impairment is, of itself, sufficient to prevent him from undertaking a training activity during a two year period from the date of application (s 94(2)(b)(i)) or, alternatively, if the impairment does not prevent Mr Harris from undertaking a training activity, such an activity is unlikely (because of the impairment) to enable him to do any work independently of a support program, as described, within the relevant two year period: s 94(2)(b)(ii). 18 A training activity, so far as it relates to Mr Harris, means one or more of the following activities whether or not the activity is designed specifically for people with a physical impairment: (a) education; (b) pre‑vocational training; (c) vocational training; (d) vocational rehabilitation; (e) work‑related training (including on‑the‑job training). 19 In considering the Stage 2 matters, the Secretary must consider whether the impairment is sufficient of itself to prevent Mr Harris undertaking a training activity in the relevant two year period without the Secretary taking into account the availability to Mr Harris of a training activity: s 94(3)(a).

The legislation 20 The relevant provisions of the Social Security Act are these: 21 Section 94(1) provides: (1) A person is qualified for disability support pension if: (a) the person has a physical … 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; … 22 Section 94(2) provides: (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: (a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and (b) either: (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or (ii) if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next two years. Note: For work see subsection (5). 23 Section 94(3) provides: (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. 24 Section 94(4) provides: (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 that: (i) is designed to assist the person to prepare for, find or maintain work; and (ii) is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or (b) is likely to need such a program of support provided occasionally; or (c) is likely to need such a program of support that is not ongoing. 25 Section 94(5) defines 'training activity' and 'work': 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 reference to "any work" 26 The reference in s 94(2)(a) to any work is not a reference to any work of any kind anywhere at any time. The phrase "any work" is qualified by a relationship between the impairment of itself and work that might be undertaken without the need to support Mr Harris in a program designed to assist him in preparing for, finding or maintaining work and, more particularly, the second stage inquiry contemplates the possibility of a training activity across five possible areas of training that might have the effect of diversifying skills and exposing the claimant to wider employment or work opportunities, subject to the consideration specified in s 94(2)(b)(i) and (ii). 27 The Secretary accepts the formulation of the first stage of the field of inquiry as identified by Drummond J in Secretary Department of Social Security v Pusnjak [1999] FCA 994; (1999) 164 ALR 572 at [32] in these terms: As to s 94(2)(a) Does the impairment of itself, that is, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need of retraining? [emphasis added] 28 The reference in the paragraph quoted above to a descriptive qualification of the phrase "of itself" as embodying a consideration of the impact of the impairment in isolation from other matters that may influence the claimant's attitude to working, is a reference to factors such as the claimant's motivation or his or her views about whether particular work is acceptable or suitable or below that category of work for which the claimant is skilled and therefore work which he or she may not prefer to undertake although capable of doing so. These discretionary and motivational factors do not represent any qualification upon the phrase "any work" in determining whether the Secretary is satisfied that a claimant has a continuing inability to work. They are to be disregarded. 29 However, it is clear that the phrase "any work" in s 94(2)(a) is qualified by reference to work which the particular applicant is by reason of his existing work skills and experience capable of performing without the need for retraining. The expression also excludes work which is unlawful or which involves a contravention of occupational health and safety legislation: Crossland v Secretary, Department of Family and Community Services [2004] AATA 864 ("Crossland") at [34]. Although the point was conceded before the Tribunal in Crossland, the Tribunal at [34] accepted that the concession was correct. 30 As to the Stage 2 questions, Drummond J put the Secretary's inquiry in the following terms. If the answer to the Stage 1 question is yes, then: As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, that is, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired? If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. If not, the Secretary must proceed to consider s 94(2)(b)(ii) and ask: As to s 94(2)(b)(ii) If there is available training of a kind capable of fitting the claimant within a two year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within two years? If so, the applicant will not be eligible for the pension. But if there is a two year retraining course available to the claimant but his impairment is sufficient by itself to prevent him completing that course within that two year period, he will qualify for the pension. Training that necessarily takes an able bodied person longer than two years to complete is not training of the kind covered by this provision. 31 As to the first stage however, a person has a continuing inability to work because of an impairment if the Secretary is satisfied that the impairment is sufficient, of itself, (absent any discretionary or attitudinal disposition of the claimant) to prevent the claimant from doing any work for which he or she has skills or experience, that exists, anywhere in Australia, involving at least 15 hours per week on wages at the statutory wage rate.

The statutory integers in s 94(2)(a) 32 That inquiry contemplates an examination of the relationship between the impairment suffered by the claimant (that is, the clinical physical impairment as determined according to the Impairment Tables) and the sufficiency of that impairment (that is, the extent of the contribution of the impairment) in preventing the claimant from doing work within the range of his or her skills and experience that exists in Australia. That may mean that if s 94(2)(a) contemplates a relationship between the integers of impairment of itself; sufficiency of prevention; and work that exists anywhere in Australia, that relationship will engage actual work shown to exist (or not) to the impaired claimant. 33 Thus, if, on the evidence, the claimant's impairment is the circumstance that causes employers, in the industries in which the claimant is said to be able to work, to be unwilling to provide work of at least 15 hours per week at the relevant statutory rates, a conclusion might be open that work does not exist in the statutory sense and the impairment is of itself sufficient in the circumstances of the relevant parts of the labour market put forward as the sources of "any work", to prevent the claimant doing any work without retraining.

What work is to be considered? 34 Accordingly, before turning to the findings of the Tribunal, it is necessary to examine the relationship between the sufficiency of an impairment of itself to prevent a claimant undertaking any work and whether the work to be taken into consideration by the Secretary is work within a "normal" workplace labour market where employers take account of the claimant's disability (rather than the workplace of a "benign employer") and whether work consistent with the claimant's skills and experience is foreclosed to a claimant by reason of his or her impairment. 35 Examining that question involves a consideration of the history of the legislative provisions and the approach to construction. 36 Sections 23 and 24(1) of the Social Services Act 1947 (Cth) (the "1947 Act") were in these terms: 23 For the purposes of this Division, a person shall be deemed to be permanently incapacitated for work if the degree of his permanent incapacity for work is not less than eighty-five per centum. 24(1) Subject to this Act, a person above the age of sixteen years who is not receiving an age pension and - (a) is permanently incapacitated for work or is permanently blind; and (b) is residing in, and is physically present in, Australia on the date on which he lodges his claim for a pension, shall be qualified to receive an invalid pension. 37 In order to be eligible for an invalid pension under the 1947 Act, a person had to demonstrate that he or she was, among other things, "permanently incapacitated for work". In Re Panke and Director‑General Social Services ("Re Panke") (1981) 4 ALD 179, Mr Panke had been heavily injured in an industrial accident and could only work for one hour at a time before back pain obliged him to stop work. Davies J, as President of the Tribunal, at p 181 said that the phrase "incapacitated for work": denotes incapacity to engage in remunerative employment, that is to say, a lack of capacity for earning … [A]n ability to engage in remunerative employment involves an ability to attract an employer who is prepared to engage and to remunerate the disabled person. 38 His Honour further observed: No doubt there is work which he can do provided he has a sympathetic employer. But is it likely that a sympathetic employer can be found who will remunerate him for the limited type of work which he is physically capable of doing? … In my view, the applicant is virtually unemployable, by which I mean that he has little prospect of earning income from his work. That position has been brought about by the advanced degenerative changes in his spine associated with osteoporosis. I am therefore satisfied that … the applicant is permanently incapacitated for work. 39 The other two members of the Tribunal (Senior Member A N Hall and Member M Glick) ('the joint majority') substantially agreed, approving (at 193) the following principle of workers' compensation law as enunciated by Fletcher Moulton LJ in Cardiff Corporation v Hall [1911] 1 KB 1009 at 1020 that: if an accident had left a workman so injured that 'he is incapable of becoming an ordinary workman of average capacity in any well-known branch of the labour market - if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well-known lines of the labour market', it is incumbent on the employer to show that such special employment can in fact be obtained by him. In such a case, as his Lordship pointed out, it is not a question of fluctuations of the labour market at all. It is a question as to the chance of someone being found who can and will avail himself of the special residue of powers which have been left to the workman. What was in fact a case of partial incapacity was treated as total incapacity if the workman was unable to exploit his residual capacity for work in remunerative employment. 40 The joint majority distilled from the various authorities the principle that (at 196, [68]): It is only after a fair assessment of the extent of the person's physical or mental impairment and the impact which that impairment is likely to have upon his capacity to undertake suitable paid work that, in our view, a proper assessment of the degree of incapacity can be made. 41 In using the term "suitable" the majority did not have in mind suitability in the discretionary or attitudinal sense discussed at [28] of these reasons or in terms of the discussion of suitability in Re Secretary, Department of Social Security and Chin (1998) 52 ALD 337 or Crossland. Rather, the term was used in Re Panke by members Hall and Glick at p 196, [69] and [70] in these terms: [t]he assessment of what work is suitable to be undertaken by a person would appear to require consideration of matters such as the nature and extent to his disabilities, his capacity to sustain his work effort throughout a normal working day or week, his age, his previous work experience and the types of paid work available in the community which a person which those characteristics may reasonably be expected to be able to perform … The degree of incapacity will then depend upon an assessment, in each individual case, of the extent of the residual capacity for suitable work against the capacity for work which the person, absent his physical or mental impairment, might have expected to enjoy. 42 This notion of suitability engaged here is concerned with the diminished availability of work to the claimant attributable to the person's impairment. In Annas v Director‑General of Social Security (1985) 8 FCR 49, the Full Court of the Federal Court at pp 53 and 54 per Northrop, Morling and Wilcox JJ adopted the principles discussed in Re Panke, in these terms: [Re Panke] should be regarded as reflecting a correct understanding of ss 23 and 24 of the [1947] Act and of the appropriate process of assessing the degree of incapacity for work. Of course, like any other decision, it must be read in the light of its own facts. There may be cases in which the incapacity is so overwhelming, or so minimal, as to make the two stage process of evaluation unnecessary. But in relation to the many cases, like Panke and like the present case, where the disability is significant - in relation to work capacity - but not totally destructive of any prospect of employment, the approach suggested ought to be applied. (emphasis added) 43 The principles developed in Re Panke have not been applied to the present formulation of the Social Security Act. The 1947 Act concerned the notion of a "permanent incapacity for work" as the criterion for attracting an invalid pension. The present Act is concerned with the notion of a "continuous inability to work" in qualifying for a disability support pension. The 1947 Act was repealed by the Social Security Act 1991 (Cth) (No. 46, 1991). 44 However, the 1991 Act was not intended to effect any substantive changes. According to the Outline and Financial Impact Statement to Vol 1 Chapter 1 of the Explanatory Memorandum to the Social Security Bill 1990: The object of the Bill is to overcome the readability problem by using a 'clear English' drafting style and format. That style and format, together with other drafting innovations, should make it a more accessible piece of legislation that ordinary Australians could reasonably be expected to understand … The rewrite of the 1947 Act does not involve any major policy initiatives. The new legislation is intended to reflect existing policy which is, in turn, reflected by the existing legislation. 45 The Social Security (Disability and Sickness Support) Amendment Act 1991(Cth) (No. 141 of 1991) ("Amendment Act No. 141/91") introduced the disability support pension "in place of" the invalid pension: (See Outline to the Explanatory Memorandum (No. 27213/91) to the Social Security (Disability and Sickness Support) Amendment Bill 1991 (Cth)). Amendment Act No. 141/91 also introduced new eligibility requirements for a disability support pension including the requirement that the applicant have a "continuing inability to work". Amendment Act No. 141/91 introduced a new s 94 in these terms: PART 2.3 - DISABILITY SUPPORT PENSION Division 1 - Qualification for and payability of disability support pension Subdivision A - Qualification Qualification for disability support pension - continuing inability to work 94(1) A person is qualified for disability support pension if: (a) the person has a physical, intellectual or psychiatric impairment; and (b) the person's impairment is of 20% or more under the Impairment Tables; and (c) the person has a continuing inability to work; and (d) the person has turned 16; and (e) the person [satisfies certain residency requirements]. Meaning of continuing inability (2) A person has a continuing inability to work if the Secretary is satisfied that: (a) the person's impairment is of itself sufficient to prevent the person from doing: (i) the person's usual work; and (ii) work for which the person is currently skilled; for at least 2 years; and (b) either: (i) the person's impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or (ii) the person's impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled. Note: for 'work' see subsection (5). (3) In deciding whether or not a person has a continuing inability to work under subsection (2), the Secretary is not to have regard to: (a) the availability to the person of work in the person's locally accessible labour market (unless subsection (4) applies to the person); or (b) the availability to the person of educational or vocational training. (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 equip the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market. (5) In this section: "educational or vocational 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. Person not qualified under certain circumstances (6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance. 46 The Explanatory Memorandum (No. 27213/91) for the Social Security (Disability and Sickness Support) Amendment Bill 1991 explained the operation of the new provisions and the underlying principles in these terms: The operation of these provisions will be in accord with several principles: · First, paragraph 94(2)(a) will have the result that where a person could, despite the impairment, do work for which he or she is currently skilled he or she will not qualify for the disability support pension. There will then be no need to test the person against paragraph 94(2)(b). · Secondly, paragraph 94(2)(b) is then applied to test the person's capacity to do work for which he or she could become skilled if trained. The person might qualify for disability support pension if the impairment of itself would prevent the person from undertaking training or if the impairment would prevent the person acquiring skills for potential work even if the impairment were no bar to doing the training. A person will not qualify for disability support pension if despite the impairment he or she could acquire skills through training and so equip himself or herself for work within the next 2 years. · Third, where the first 2 stages have been applied and the person still fails to qualify for disability support pension, if the person is aged 55 years or over and a training course would at best equip the person to do work not likely to be available in the locally accessible labour market then he or she may qualify for pension. · Fourth, the actual availability to the person of work in the locally accessible labour market is to be irrelevant except where the person is aged 55 years or over. · Fifth, the actual availability to the person of education or vocational training is to be irrelevant. · Sixth, the work relevant to new section 94 is commercial work, not sheltered employment or work relevant to a person classified as under workers compensation 'odd lot' principles. 47 The fourth principle addresses the notion of "the actual availability to the person of work" but does so only in the sense of making it clear that the availability of work in the locally accessible labour market of the claimant is irrelevant (by reason of s 94(3)(a) and the definition of work contained in s 94(5)) except where the person is aged 55 years or over. 48 However, the actual availability of work generally was not treated by Amendment Act No. 141/91 as irrelevant. 49 The sixth principle recites that the work relevant to the new s 94 is "commercial work", not sheltered employment or work applicable to a person classified as falling under Workers' Compensation"odd lot" principles. That reference concerns a passage in Foster v Wharnscliffe Woodmoor Colliery [1922] 2 KB 701 at 715 (adopted in Re Panke), where Scrutton LJ described "odd lot" workers (in a Workers' Compensation context) as a reference to: a man so injured that he is only able to do certain very special jobs depending on finding a very special employer who, either from compassion or because he has a special job is able to give him employment, but any ordinary class of work he is not able to do. [emphasis added] 50 The reference to "commercial work" in the sixth principle seems to be a direct comparison with diminished work described as "sheltered employment" or "odd lot" work. The reference to commercial work seems to suggest that the Parliament selected a reference point for relevant work for the new disability support pension regime as work which is actual or real work available to the pension claimant and therefore work which in every practical sense is work which "exists" for the pension claimant for the purposes of s 94(5) of the Act. 51 The Social Security Act was further amended in 1995 by the Social Security Legislation Amendment Act (No. 1) 1995 (Cth) (the "1995 Act"). The 1995 Act introduced into the legislation a version of s 94(2) set out below: 94 Qualification for disability support pension … (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 two 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 two years. Note: For work see subsection (5). 52 Section 94(5) retains the definition of "work" introduced into the Act by Amendment Act No. 141/91. 53 The Social Security Act was further amended by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (No. 154, 2005) (Cth) (the "2005 Act") to introduce into the Social Security Act s 94(2) and related subsections in the form quoted at [21] to [25] of these reasons. 54 The notion that "employability" denotes "incapacity to engage in remunerative employment" and is thus concerned with "a lack of capacity for earning" uninfluenced (in the absence of evidence that "special employment" can in fact be obtained), by whether a "sympathetic employer" or a "benign" or "benevolent" employer might possibly be found to provide work, was considered in Re Hamal and Secretary, Department of Social Security ("Re Hamal") (1993) 30 ALD 517 and Re Warner and Secretary, Department of Social Security ("Re Warner") (AAT, Decision No. 9711, 2 September 1994 (unreported)). 55 In Re Hamal, the pension applicant suffered an impairment that rendered him unable to sit for sustained periods. The Secretary contended that jobs such as a museum attendant or car park attendant would allow a person with such an impairment to walk around as necessary and allow such a person to work at his or her own pace. At p 525 [43], the Tribunal said this: Work as a museum attendant, or a car park attendant raises the problem of Mr Hamal's inability to sit for sustained periods. The respondent argued that these jobs would allow the applicant to walk around as necessary and work at his own pace and would therefore be suitable. The tribunal finds this proposition to be most unlikely given the realities of the modern workplace. Employees are required to work as directed and, at a time when multi‑skilling is the goal for 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. [emphasis added] 56 In Re Warner, the Tribunal addressed the same point in these terms at [32]: 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 s 94(2)(a) of the Act. [emphasis added] 57 In Secretary, Department of Social Security v Chin [1999] FCA 44; (1999) 56 ALD 682, R D Nicholson J considered Re Hamal and Re Warner and said this at [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. 58 R D Nicholson J at [50] was referring to the formulation of s 94(2)(a) which provided for an assessment of a person's continuing inability to work on the footing that the person's impairment is of itself sufficient to prevent the person from doing the person's usual work and work for which the person is currently skilled. The Tribunal in Re Warner made express reference to those two limbs of the old section. The 1995 Act introduced into the Social Security Act a materially different formulation of s 94(2). Sections 94(3), (4) and (5) were in similar although not identical terms to those provisions of Amendment Act 141/91. The new s 94(2) removed a reference to the person's impairment being of itself sufficient to prevent the person from doing his or her usual work and work for which the person was then skilled, for at least two years, in favour of a formulation that the impairment is of itself sufficient to prevent the claimant from doing any work within the next two years. Sections 94(2)(b)(i) and (ii) introduced a reference to "on‑the‑job training" in addition to educational or vocational training for the purposes of those subsections. 59 The Explanatory Memorandum to the Social Security Legislation Amendment Bill (1995) (Cth) explains that the reference in s 94(2)(a)(ii) of Amendment Act 141/91to work for which the pension claimant is "currently skilled" (rather than "any other work") was thought by the Tribunal (having regard to particular decisions) to suggest that in determining whether a pension claimant's impairment prevented him or her from performing work, it was not appropriate to consider unskilled or light work if the claimant was a skilled worker (such as a carpenter). 60 The Memorandum provides: Several recent Social Security Appeals Tribunal (SSAT) cases and an Administrative Appeals Tribunal (AAT) case have provided a more liberal interpretation of the words in s 94(2) than was intended when the provision was originally inserted. (a) The requirement in s 94(2)(a)(ii) that the person's impairment is of itself sufficient to prevent the person from doing work for which the person is currently skilled. … Amendments are made that ensure that a person will not qualify for DSP [a disability support pension] under s 94(2)(a) if the person is fit for any work (whether skilled or unskilled) that the person could do without the need for preparatory education or training. Secondly, as a consequence of the above amendment, s 94(2)(b) is amended to ensure that a person will not qualify for DSP if the person's impairment does not prevent the person from undertaking educational, vocational or on‑the‑job training unless such training would be unlikely (because of the impairment) to enable the person to do any work within two years. (b) The person's continuing inability to work must result from the person's physical intellectual or psychiatric impairment When DSP was introduced in November 1991, it was the intention that DSP be restricted to only those people whose medical condition or illness by itself prevented the person from working. … Several recent SSAT and AAT decisions have shown a trend to take factors into account that are a consequence of the person's impairment such as the person's attitude and lack of motivation when determining whether the person has a continuing in ability to work. Accordingly, amendments are made to the DSP qualification provisions to ensure that the Secretary must be satisfied that a person's continuing inability to work is directly caused by a person's impairment that has been assigned a rating of 20% or more under s 94(1)(b). Conversely, factors that are consequential upon the person's impairment, such as attitude and lack of motivation to work, are not to be taken into account in determining a person's continuing inability to work under s 94(2). 61 Accordingly, a disability support pension was intended to be restricted to only those people whose medical condition or illness (that is, impairment as determined) by itself prevented the person from working. The attitudinal disposition of the claimant to work was not relevant. The Secretary was to be satisfied of a direct causal relationship between the claimant's impairment and a prevention from doing any work if a claimant was to qualify for a disability support pension, although the language of s 94(2)(a) described the causal link as one of sufficiency of prevention by reason of impairment, of itself. 62 However, as Drummond J observed in Pusnjak, the 1995 Act demonstrates "clearly enough" that: A disability support pension applicant's continuing inability to work because of his impairment is to be determined by reference, first, to whether his impairment is sufficient to prevent him engaging in any of the necessarily limited range of work for which he has the requisite skills and experience and then by reference to whether there is training available to him of a kind that should fit him, within a two year period, for work which he cannot now do, but would be able to do, given his actual capacities. 63 And at [28], Drummond J said this: But s 94(2) involves no departure form the intent of the 1991 version of the section: the necessarily limited range of work activities for which the particular claimant is fitted by his actual skills and experience is not to be ignored, in determining his eligibility for this pension. 64 The 1995 Act introducing the changes to s 94(2) made the Parliament's intention clear that a pension applicant would not qualify for a disability support pension if the person is fit for skilled or unskilled work that the person could do without the need for preparatory education or training; a disability support pension is restricted to only those people whose impairment by itself prevented the person from working; motivational factors are irrelevant; and, the impairment must directly cause the person's continuing inability to work. Nevertheless, the inquiry begins by examining the necessarily limited range of work for which the applicant has the requisite skills and experience and then involves an inquiry by reference to whether there is training available to him of a kind that should fit the applicant, within the defined period, for work which the applicant cannot now do, but would be able to do, given the actual capacities of the applicant. The 1995 Act did not amend the definition of "work". Nor did it address Principle 6 of the Explanatory Memorandum for Amendment Act 141/91 that work, relevant to s 94, is "commercial work" (that is, work undertaken in the ordinary course of commerce and industry), rather than diminished, limited or protected work such as sheltered employment, "odd‑lot" work or work provided by a "very special employer" willing out of "compassion" or because he has a "special job" to give employment to an impaired worker. 65 In other words, "work" for the purposes of s 94 is work falling within the "ordinary class of work" existing in the nominated commercial sectors of the workforce said to represent the sources of work available to the impaired claimant. 66 The 1995 Act formulation of s 94(2)(a) was considered in Re Chin. 67 The question in issue was whether the expression "any work" should be further qualified by a consideration of "suitability". The applicant for a pension was deaf. She had "performed extremely well" in her secondary school studies and had become "integrated into normal teaching classes": at p 339 [7]. She wished to study at a technical college in fashion, computer or art studies. However, according to the evidence, the only occupations a deaf person was capable of undertaking, taking into account safety considerations and difficulties of communication, were menial jobs. The Tribunal at [21] considered that the phrase "any work" implied a notion of suitability that took into account not only the person's disabilities but also his or her abilities and the impact of employment on the applicant's physical and psychological health and well‑being. The Tribunal concluded that s 94 deals with "ensuring that people who can do suitable work, do not continue to receive benefits" [emphasis added]. 68 The Tribunal concluded that the categories of employment suggested to the claimant were not suitable as they failed to accommodate the claimant's "intelligence and ability" and would tend to undermine her sense of self worth. The Tribunal's decision in Re Chin was appealed to the Federal Court: Secretary, Department of Social Security v Chin (1999) 56 ALD 682. R D Nicholson J allowed the appeal on evidential grounds but left open the question of whether "any work" should be qualified to mean "suitable work". 69 A differently constituted tribunal considered the reformulation of s 94(2)(a) in 2004 in Re Crossland and concluded that the phrase "any work" ought not to be qualified to mean "suitable work" because, at [34]: The Tribunal also notes, and accepts, the respondent's concession that the expression "any work" in s 94(2) of the Act should be qualified so as to exclude work which is unlawful or which involves a contravention of occupational health and safety legislation. Apart from that qualification, and the qualifications necessarily implied in s 94(3), and expressed in the definition of "work" in s 94(5), of the Act as discussed by Drummond J in Pusnjak …, the Tribunal does not accept that the expression "any work" in s 94(2) of the Act admits of any other qualification. In particular, the Tribunal does not accept that the expression "any work" in s 94(2) of the Act should be interpreted so as to mean any suitable work in the sense adopted by the Tribunal in Re Secretary, Department of Social Security and Chin … Such a qualified interpretation would be inconsistent with the literal words of s 94(2) of the Act and would, in the Tribunal's opinion, be contrary to the intention of the legislature when enacting that provision. The Tribunal is fortified in that opinion by a comparison between s 94(2) of the Act, on the one hand, and ss 541(1), 541D, 601(1) and 601(2A) of the Act, on the other. Whereas the latter provisions expressly refer to "unsuitable" work in the context of qualification for Youth Allowance and Newstart Allowance, s 94(2) of the Act refers generally to "any work" and contains no express reference to suitable/unsuitable work. The explanation for that distinction is clear. Sections 541(1), 541D, 601(1) and 601(2A) are concerned with a requirement that the person is actively seeking, and is willing to undertake, work and, in that context, the suitability/unsuitability of that work is, appropriately enough, expressly made a decisive consideration. By contrast, s 94(2) of the Act is concerned with the person's incapacity, by reason of physical or mental impairment, to do "any work" rather than with the particular kinds of work that the person's impairment prevents them from doing. [emphasis added] 70 In Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635, the applicant contended that the Tribunal ought not to have considered types of employment which were insufficiently intellectually challenging for him or which were of insufficient status, in his view. Branson J dismissed that contention at [27] in these terms: I am willing for present purposes to assume (I do not so find) that the language of the definition of "work" in s 94(5) admits of some qualification of the usual broad meaning of the word "work" (but see [Crossland]). However, I do not accept that the Act discloses an intention that a person with tertiary qualifications is to be regarded as a person with a continuing inability to work, and thus a person entitled to taxpayer‑funded DSP, just because the person's impairment prevents him or her from undertaking professional or other high status employment. A person able to do work of a character undertaken by a very large number of Australian taxpayers (ie. customer service, call‑centre or light retail work) is not, in my view, a person with a continuing inability to work within the meaning of the Act. 71 These cases make it plain that work for the purposes of s 94(2)(a) and s 94(5) of the Act does not admit of a qualification that a tertiary qualified claimant or otherwise skilled claimant is to be regarded as sufficiently prevented from doing any work by reason of the impairment of itself simply because the claimant is prevented from undertaking skilled or higher status work. Further, s 94(2) is concerned with impairment to do work rather than with kinds of work or classes of work that the claimant's impairment prevents him or her from doing. If the claimant's skills and abilities enable him or her to engage the labour market, it is no answer to say, "I don't want to do that work or work of that kind". 72 However, these cases do not engage the question of whether a claimant is sufficiently prevented from doing work by reason of the impairment, of itself, if the work put to the claimant as a possible source of work is work dependent upon finding, if possible, a benevolent, benign or very special employer who might engage a person with the relevant impairment, rather than an employer operating within the orthodoxy of an open workplace engaging in the normal flow of employment relationships when seeking out workers in the postulated areas of commercial activity where the impaired man or woman might work. 73 In Re Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56; (2003) 73 ALD 568, the Tribunal considered Re Hamal at [51] and said this in relation to the meaning of "work": Taking into consideration the special circumstances of this case involving the specific benefit of disability support pension the Tribunal in the present case interprets work to be work that is carried out in the complex entity that is the "open workplace" and not work that is insulated from the dynamic and unpredictable demands of this entity. There are other arrangements and benefits for work in sheltered workplaces. [emphasis added] 74 In Cremer and Secretary, Department of Employment and Workplace Relations [2007] AATA 1356 the Tribunal at [44] and [45] applied Re Hamal and particularly the passage quoted above from Re Triantafillou. 75 In this context, the decision of the Tribunal in Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846 is a difficult decision. The Secretary relies upon the decision in support of its challenge under ground 1. The decision therefore warrants examination. In Woodiwiss, the claimant Miss Woodiwiss, suffered from a "severe binaural hearing loss". Her impairment rating was 35 points. She obtained employment with a meat company initially to fill a two weeks casual vacancy but was kept on by the employer for three years until the business was placed in receivership. Before the Tribunal, Miss Woodiwiss read a prepared statement with difficulty due to lack of diction and explained the practical problems encountered by a profoundly deaf person in employment (and every day living) such as an inability to conduct telephone conversations or service‑counter communication, failure to hear warning signals such as alarm bells or approaching vehicles. Her dependence upon lip reading required enormous concentration. It was necessary to reside with relatives having regard to the level of support she needed. She described the difficult employment situation she faced and said that when working at the meat company she had a capacity to undertake clerical work but once she lost that employment through redundancy further job searches had proved unsuccessful as the reality was that few employers were willing to take on handicapped persons. 76 The Tribunal heard evidence from Ms Lethberg of the efforts she had made to try and find employment for Miss Woodiwiss. However the difficulty was that Miss Woodiwiss was always competing with candidates not suffering her substantial disability. The Tribunal concluded at [30] that it was Miss Woodiwiss's "severe disability and the reluctance of employers to recruit handicapped persons, which is the problem". At [33] the Tribunal noted that the principal obstacle confronting Miss Woodiwiss appeared to be a "lack of suitable job opportunity" and noted that s 94(3)(b) of the Social Security Act prevented the Tribunal from "dealing with labour market matters". That subsection, of course, addresses a different question, and prevents the Tribunal from taking into account the availability to the claimant of work in the person's locally accessible labour market and s 94(5) makes it clear that relevant work is work that exists, in Australia, even if not within the person's locally accessible labour market. The Tribunal considered some of the authorities and noted at [34] that those authorities did not address the notion of a continuing inability to work "per se". The section, however, requires the Secretary to be satisfied of a relationship between the claimant's impairment of itself and sufficiency in preventing a claimant from doing statutory work. The impairment, although considered of itself, is not considered "per se" in the absence of a relevant work relationship. 77 Having concluded at [30] that it was Miss Woodiwiss's severe disability and the reluctance of employers to recruit handicapped persons which was "the problem", the Tribunal also concluded at [30] that although Miss Woodiwiss had been unable to secure employment since her redundancy, there was "no formal evidence her capacities have decreased and she herself believes she is capable of work if granted an opportunity" [emphasis added]. Therefore, since her infrastructure stock of capacities had not degraded the Tribunal concluded that the question of whether there was any possibility of work in an open market was irrelevant in determining whether the applicant had a continuing inability to work. 78 Accordingly, the Tribunal concluded (absent any question of orthodox, non‑benevolent open workplace opportunities of obtaining work) that, for the purposes of s 94(2)(a), Miss Woodiwiss was not prevented by her severe impairment, of itself, from "doing any work" being, of course, statutory work, that is, work shown to "exist" in Australia, being work for at least [now 15 ] hours per week on wages that are at or above the relevant minimum wage: s 94(5). 79 The Tribunal took that view because it considered that s 94(2) did not permit it to have regard to the willingness or otherwise of employers in the relevant work sectors to engage a person exhibiting the particular features of impairment when deciding whether an applicant had a continuing inability to work. The Tribunal in Toma and Secretary, Department of Employment and Workplace Relations [2007] AATA 1352 took the same view. 80 The position reflected in Woodiwiss seems an odd analytical position to adopt as s 94(2) expressly contemplates a consideration of the relationship between the scope and character of the claimant's impairment and the sufficiency of that impairment of itself in preventing an applicant from doing any work. A consideration of whether the field of labour market employers (complying with the relevant occupational health and safety and employment laws) might be likely to engage a claimant exhibiting the particular impairment is a necessary part of the statutory test. Section 94(2)(a) requires the Secretary to ask - what work is it that this claimant is prevented from doing by reason of the impairment of itself? The first answer is the Pusnjak answer (subject now to the further consideration of doing work "independently of a program of support": see [82] to [90] of these reasons) of the necessarily limited range of work for which the claimant has the requisite skills and experience and then by reference to whether there is training available to the applicant of the relevant kind. However, the work the claimant might do, deploying the requisite skills and experience, must be work available to be done (that is, work shown to exist) in fact, in Australia, by a person exhibiting the impairment and not simply work that might be available on a speculative basis assuming a very special employer might elect to engage an impaired person, by reason of benevolence or benign disposition, for 15 hours per week at the s 94(5) wages. 81 Section 94(5) of the Act defines work, apart from anything else, as work that "exists" in Australia. The Macquarie Dictionary of Australian English defines the term "exist" as "to have actual being; be; to have life or animation; live; … to have been in a specified place or under certain conditions; be found; occur". The New Oxford Dictionary of English defines the term as "have objective reality or being; be found, especially in a particular place or situation; live, especially under adverse conditions". The statutory concept of work suggests that the Secretary must be satisfied that the sources of work the applicant might be said to be able to do, must be work which has "actual being" or an "objective reality [of] being".

The 2005 amendment 82 In 2005, the Social Security Act was amended by the 2005 Act (see [53] of these reasons for the full title of the 2005 Act) which introduced a new s 94(2) as set out at [22] of these reasons which for the sake of convenience is reproduced below again. (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: (a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and (b) either: (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or (ii) if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next two years. Note: For work see subsection (5). [emphasis added] 83 The new s 94(2) frames a person's continuing inability to work by reference to the question of whether the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the relevant two years. Section 94(3) substitutes a reference to a "training activity" for the reference to educational, vocational and on‑the‑job training. Section 94(2)(b)(ii) contains a reference to the unlikelihood (because of the impairment) of a training activity enabling the person to do any work independently of a program of support. 84 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 is unlikely to need a program of support (funded by the Commonwealth or an analogous program otherwise funded) designed to assist the person to prepare for, find or maintain work; or the person is likely to need such a program although only occasionally; or the person is likely to need such a program of support in a non‑ongoing way. 85 In any of those three cases, the person is treated as doing work independently of a program of support. 86 These amendments to s 94(2) recognise that from time to time a person suffering an impairment may need support in order to participate in work to the extent of their capability for work. According to p (i) of the Explanatory Memorandum (the "2005 EM") to the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Bill 2005 (Cth) (the "2005 Bill") a number of "work first principles" are said to underpin the amendments including a principle that: A working age income support recipient should have an obligation to participate in the workforce to the extent of their capacity to work, with this being determined having regard to whether the people have: o a disability that constrains their capability to work; and/or o caring responsibilities (eg parents of young children or those caring for a frail adult or disabled child) that constrain their availability to work … [emphasis added] 87 At p 2, the 2005 EM provides that the 2005 Bill makes amendments to the disability support pension to ensure that people are "able to participate" in the workforce "as far as they are capable". At p 14, the 2005 EM addresses the new test that work be done independently of a program of support in these terms: If a person is capable of working 15 or more hours a week at award wages within two years, but to do the work the person will require ongoing or regular support, then the person will also qualify for a disability support pension. The current test for disability support pension assesses a person's capacity to work for 30 [15] or more hours a week at award wages within 2 years, taking account of the types of activities that may assist a person to increase his or her work capacity. Currently only mainstream training is considered. However, programs that are designed to take account of a person's disability can significantly improve a person's capacity to work. Recognising this, this Bill broadens the types of activities that Centrelink will take into account in determining a person's capacity. These activities specifically include programs and activities designed for people with physical, intellectual or psychiatric impairments. [emphasis added] 88 The 2005 EM at p 15 discusses some aspects of the relationship between a person's impairment and engagement in labour market activity, in these terms: The current test for disability support pension effectively encourages many people with disabilities who can do some work to withdraw from the labour market. … The Government believes long-term dependence on the disability support pension is not the best option for people who have the ability to work reasonable hours, on a sustained basis, in the open labour market for award wages. The changes to income support arrangements and the increased funding for employment services are designed to encourage and assist people with disabilities to test their capacity to work. In many cases people with disabilities, who have skills to offer but cannot work full-time, could do part-time jobs, in many cases receiving a part-rate of income support. [emphasis added] 89 The 2005 EM at p 17 addresses, in the following terms, the operation of s 94(2) in the case of a person who can do work of at least 15 hours per week at award wages (or above) but only if provided with ongoing or regular support: The requirement that work at award wages be done "independently of a program of support" means that, if a person can do work of at least 15 hours per week at award wages or above … within the next 2 years (taking into account activities that the person could undertake to assist him or her), but the person can only do the work if provided with certain types of ongoing or regular support, then the person will have a "continuing inability to work". If the person meets all other qualification requirements the person will therefore qualify for a disability support pension. This ensures that people who are working at full award wages in the open labour market who require significant support in the workplace on an ongoing basis to maintain that employment, such as an attendant carer to assist with toileting and eating in the workplace, will continue to qualify for the disability support pension. [emphasis added] 90 Accordingly, under the 2005 Act amendments to the Social Security Act, the Secretary must be satisfied that the impairment is of itself sufficient to prevent the person from doing any statutory work (as discussed) and must also be satisfied that the person is unlikely to need a support program of assistance in preparing for work, finding work or maintaining work, or will need such a program only occasionally or in a non‑ongoing way.

The appropriate test under s 94(2)(a) 91 Therefore, in the context of the 2005 Act and a proper application of the notion of statutory work in s 94(5) as discussed in these reasons having regard to the authorities, the first of the Pusnjak questions concerning s 94(2)(a) ought to be reframed in these terms. 92 As to s 94(2)(a): Does the impairment of itself considered in isolation from other matters that may influence the person's attitude to working (such as motivational matters and the like) have such an impact on the person's capacity for work that it prevents him or her from doing at least 15 hours of work per week that exists anywhere in Australia for persons with such an impairment judged in a normal or open workplace in that part of the labour market relevant to the person's skills and experience (recognising that such work includes less skilled or unskilled work with no regard to discretionary suitability on the part of the claimant), on wages that are at or above the relevant minimum wage, being work which the person is by reason of his or her existing work skills and experience capable of performing without retraining, independently of a relevant program of support designed to assist the person in preparing for, finding or maintaining such work.

The Tribunal's decision 93 Mr Harris applied for a disability support pension on 25 July 2007. He unsuccessfully sought review of Centrelink rejection decisions before the Social Security Appeals Tribunal (the "SSAT") which affirmed the Secretary's decision that Mr Harris did not qualify for a disability support pension under the Act. The Tribunal set aside that decision and determined that: (a) Mr Harris's lumbar spine impairment and his ankle injury are both permanent conditions; (b) Mr Harris has an impairment rating of 10 points in relation to his lumbar spine condition; (c) Mr Harris has an impairment rating of 20 points in relation to his ankle injury; (d) With respect to the ankle injury, Mr Harris has "a continuing inability to work" in light of the "work" requirements of s 94(5) [of the Social Security Act]; and (e) The matter is remitted to Centrelink for assessment on the basis that Mr Harris qualified for [disability support pension] in respect to the ankle injury with effect from the start date of 25 July 2007. 94 At [11] of the Tribunal's reasons, the Tribunal found that Mr Harris was regarded as a truthful witness; he has a degenerative lumbar spine condition with sciatica in the left side; he has degenerative osteoarthritis in the right foot as a result of an injury he suffered when 17 years of age; radiological evidence demonstrates disc protrusion in his back; and Dr Winstanley, in giving specialist medical evidence before the Tribunal, recommended rehabilitation of Mr Harris's back and possible surgery to Mr Harris's ankle to improve the symptoms of pain although surgery would not result in any improvement in functionality. 95 At [4] to [8], the Tribunal recorded aspects of the evidence. The Tribunal noted Mr Harris's response to questions on behalf of the Secretary to the effect that he used a walking stick for 90% of every day. The Tribunal noted Mr Harris's evidence at [7] that he was determined not to allow his disability to limit his achievements. The Tribunal noted the evidence that Mr Harris had completed three trade qualifications and had done hard manual work throughout his life despite some limitation to his mobility. The Tribunal noted Mr Harris's evidence that because of the hard physical work done throughout his life, his condition had deteriorated. At [8], the Tribunal noted Mr Harris's evidence that his limitations now are that he can sit for no longer than an hour before he needs to stand. Similarly, Mr Harris can stand with the aid of a walking stick although usually for only about an hour at a time, after which Mr Harris experiences tingling sensations. 96 At [12], the Tribunal noted the evidence of an orthopaedic specialist, Dr Winstanley, to the effect that surgery was not recommended for the lumbar condition but that Mr Harris would benefit from a "muscle rehabilitation and strengthening program". Dr Winstanley noted in his report of 4 July 2007 that "reduction in his heavier‑type cleaning activity would prove beneficial to him. He would be best suited for light activity". 97 As to the ankle injury, the Tribunal noted at [15] Dr Winstanley's observation in his report that Mr Harris suffers from advancing osteoarthritic change present within the subtalar joint which could be surgically corrected with a fusion significantly improving the symptoms of the injury. As to the assessment of the lumbar spine condition, the Tribunal at [18] noted Dr Winstanley's evidence that the symptoms of pain could improve with treatment but functionality would not be expected to improve. At [19], the Tribunal concluded that the lumbar spine condition is a permanent one. At [20] and [21], the Tribunal found that the ankle injury is also a permanent condition. In considering the impairment rating to be allocated to each impairment, the Tribunal noted at [23] the observations of Mr Harris that he uses a walking stick and has done so for a very long time. At [25], the Tribunal noted Dr Winstanley's evidence that Mr Harris suffered a loss of half of the normal range of movement as a result of the lumbar conditions. The Tribunal allocated a rating of 10 points in relation to the lumbar spine condition. In reliance upon the evidence of Dr Winstanley and that of Mr Harris, the Tribunal found that 20 points was the appropriate impairment rating in relation to Mr Harris's ankle impairment "on the basis that the condition causes a major (not a moderate) interference with walking and also affects at least sitting given that he cannot sit for more than one hour". 98 The Tribunal then considered whether the applicant had demonstrated a "continuing inability to work" for the purposes of s 94(1)(c) noting that that term is defined in s 94(2) of the Act. At [29], the Tribunal further noted the evidence of Dr Winstanley that Mr Harris is best suited for "light activity". The Tribunal further noted at [30] Dr Winstanley's evidence that any surgery to Mr Harris's foot would result only in a reduction of pain with no improvement in functionality. 99 At [31], the Tribunal observed that in making an assessment for the purposes of s 94(2) of the Act "the legislation must be strictly applied" which required the Tribunal to take no account of factors which could not be assigned a rating under the Impairment Tables. The Tribunal noted that a person's motivation for work or other discretionary factors such as whether work is available in the local labour market where the applicant resides are not to be taken into account. 100 At [32], the Tribunal noted that excluding the extraneous factors noted at [31], Mr Harris could, on the evidence of Dr Winstanley, "theoretically work 15 hours per week, which is the definition of 'work' in s 94(5) of the Act". The Tribunal noted at [32] that Dr Winstanley was asked whether Mr Harris might be able to work in real estate, in retail or perhaps as a service station console operator. The Tribunal noted at [32] Dr Winstanley's response that the applicant might be able to work in such industries or roles "provided the work situation could accommodate the limitations of [Mr Harris]". 101 The particular evidence was given in these terms: Dr Winstanley: The reason for the surgery is again to get, to reduce his pain from his foot. Mr Guthrie: Reduce his pain. So in terms of his mobility and the like, it may not assist greatly? Dr Winstanley: His surgery is mainly - is purely designed to reduce his pain because the surgery is a fusion of the subtalar joint, which is the joint at the base of his foot, so it will leave him with a permanent impairment associated with his foot. Mr Guthrie: Thank you. Now, in relation to the recommendation that he would be more suitable for light work, is there any type of work that Mr Harris would be able to do with his conditions? Dr Winstanley: At the time I reviewed - he was doing heavy type of work so my recommendation would be that work for him would be one which didn't require - he was cleaning at the time - bending, lifting, twisting type activity. Mr Guthrie: Okay, so would he be able to do perhaps something along the lines of real estate or retail, perhaps a service station operator, something like that? Dr Winstanley: He may well be able to do something like that. His job would need to be sort of tailor‑made to his situation, because he couldn't have a fixed posture, which means he couldn't stand for long periods and sit for long periods. He would have to be able to vary his posture. Mr Guthrie: So as long as he was able to vary his posture, you don't see any medical reason that he wouldn't be able to work in some capacity? Dr Winstanley: Yes, he would be able to work in some capacity. Whether he would be able to work full‑time or not would depend on his job. Mr Guthrie: Would he perhaps be able to work say 15 hours a week? Dr Winstanley: You would expect that if he had a suitable job and a suitable line of type activity he would probably be able to work 15 hours a week. Mr Guthrie: Okay, thank you very much, I have no further questions. [emphasis added] 102 The Tribunal member asked Mr Harris whether he would like to comment on Dr Winstanley's observation that if Mr Harris had a suitable job and a suitable line of type activity, Mr Harris would probably be able to work 15 hours a week. The following exchange occurred: Mr Harris: I understand I have to do something. I think the situation most probably is that I will have to find some way of self employment. … It may be the fact that I have to do something that is more self employed which Centrelink doesn't recognise. … I know I have to do something but it's how, where and what. And at the moment I've just spent a year and a half trying to work out what hurts and what doesn't hurt. … But I have no doubt about I have to do something. I mean who wants to sit on a couch every day doing nothing. … Even if I could sit on a couch, because I can't. Dr Levy: Have you any idea about what sort of work you think you could do for 15 hours a week? Mr Harris: I don't know. … I would like to think I could most probably continue to pursue wood carving but once again it's a thing where you've got to sit in a certain position for a certain period of time and you have to be able to get up and move away and come back. … I'm a wood carver, you know, that's what I do. When I gave up the tools I decided I'd do something different, when I found I couldn't do those things. So I've adapted. … I'm hoping that maybe I can make some kind of money out of doing something with that. I mean, sitting around, … I've been sitting around for a year and a half and I am just so over it. … I am just so over not being able to move on. It's pretty devastating. But I doubt very much the mainstream is going to help me out, but I've got to find some way and something and I will irrespective. That's the way it is. Dr Levy: Right … There were a couple of examples raised in evidence about the sorts of work you might be able to do. I just want to get an understanding of what you think you can do. I think Mr Guthrie, you gave some examples … to [Dr] Winstanley. Mr Guthrie: Certainly, I think I gave the examples of real estate sales or retail or perhaps a console operator at a service station. Dr Levy: Okay. What do you think about any of those? Mr Harris: Well, I originally tried to do a course in CRS with that and they told me they'll never give me any funding. … Console operator … I'm pretty hopeless. I'm a bit of a dinosaur when it comes to buttons. … But, you know, … I think most probably at garage work you'll find there's a lot more you do than just sitting behind a desk. Dr Levy: That would require standing all day, I guess, though, wouldn't it, or at least a couple of hours at a time. Mr Guthrie: It may potentially do so. Dr Levy; Yes. Mr Harris: And if I'm standing, I've only got my left hand and I'm right handed so. You know, this is the predicament I'm in. I don't like it. Dr Levy: Alright. Mr Harris: But I will survive. 103 At [33], the Tribunal noted that Mr Harris's lack of work in the preceding 18 months was not due to a lack of motivation on his part. The Tribunal noted that Mr Harris had tried to gain Commonwealth Rehabilitation Service ("CRS") funding to undertake a course in real estate training. The Tribunal noted Mr Harris's evidence that he did not obtain that funding. 104 At [34], the Tribunal said that in assessing the application, the Tribunal took into account that "Dr Winstanley has conceded that the Applicant can work 15 hours but it would have to be in a sedentary occupation". The Tribunal noted that Mr Harris has "previously been in heavy manual jobs". The Tribunal noted at [34] that Dr Winstanley "emphasised any employment would have to be suitable for the restrictions which Mr Harris now has". The Tribunal said at [34] that it took that evidence into account. 105 At [35], the Tribunal noted Mr Harris's evidence that he would try to find something to do "perhaps making crafts with woodwork and trying to sell them". The Tribunal noted at [35] that this activity, without any further evidence, might not fall within the definition of "work" in s 94(5) of the Act. 106 At [36], the Tribunal said this: Certainly, the examples proffered by [the Secretary] would be difficult for the Applicant to achieve. As mentioned [Mr Harris] had an interest in real estate but his attempts to undertake a course had been unsuccessful as he doesn't have the funding himself to pay for such a course and he was unsuccessful in gaining financial assistance. Retail positions also would have the requirement of standing for more than an hour at a time which the evidence shows would become very difficult for Mr Harris. A similar result would be likely to occur as a console operator in a service station. Mr Harris himself pointed out that (apart from a lack of technological competence by him which might be required - but which could undoubtedly be overcome by training) he would need to stand and use a walking stick with his right hand and he would also need his right hand to work a computer terminal, to write and perform other practical tasks in a service station. [emphasis added] 107 At [37], the Tribunal accepted the evidence [of Dr Winstanley] that Mr Harris would "theoretically, be capable of performing 15 hours of work per week". The Tribunal at [37] further said: Having considered the evidence and the realistic options, and that his trade skills will no be of assistance to him in his present condition and for the future, his physical incapacity and limitations about standing and sitting for more than one hour at a time together with his need to use a walking stick, means his capacity for effective employment in positions requiring bending, lifting or administrative work of a prolonged nature are unfortunately, going to be impractical. Even the retail types of positions suggested by the respondent are going to be extremely difficult to achieve and prospective employers are likely to be similarly sceptical about the realistic capability of the applicant. There are also his interpersonal factors to which I refer below. [emphasis added] 108 At [40], the Tribunal concluded that Mr Harris had not demonstrated a continuing inability to work in respect of his lumbar spine condition but had done so with respect to his ankle impairment in the light of Dr Winstanley's report and detailed evidence. 109 In determining whether Mr Harris has a continuing inability to work for the purposes of s 94 of the Act, the Tribunal accepted that the clinical features of Mr Harris's impairment were such, on the evidence of Dr Winstanley, that Mr Harris retained a capacity to perform 15 hours work per week. However, that finding at [37] based on Dr Winstanley's "concession" noted at [34] is qualified by the description of the capability as a theoretical residual capability. At [34], the Tribunal described Dr Winstanley's concession of Mr Harris's impairment capability as a capacity to do 15 hours work "in a sedentary occupation". The oral evidence of Dr Winstanley was more circumspect than that as he gave evidence that the work would need to be work that "didn't require bending, lifting, twisting type activity" and said that Mr Harris would probably be able to work 15 hours per week if he had a suitable job and a suitable line of type activity and his job would need to be sort of tailor‑made to his situation. By suitable, Dr Winstanley was referring to work adapted to the clinical features of Mr Harris's impairment not work Mr Harris thought suitable in any discretionary sense. 110 The observation of the Tribunal at [32] that the evidence of Dr Winstanley shows that, excluding particular extraneous factors, Mr Harris "could theoretically work 15 hours per week" and the Tribunal's observation at [34] that Dr Winstanley had conceded that Mr Harris "can work 15 hours but it would have to be in a sedentary occupation", led to the observation or finding at [37] where the Tribunal said that it [accepted] "the evidence that Mr Harris would, theoretically, be capable of performing 15 hours of work per week. Apart from the discussion of those references which shortly follows, it should be noted that those observations of the Tribunal are expressed in quite imprecise and general terms. 111 The precise finding which was open on the evidence was not the finding made by the Tribunal. The finding open on the evidence of Dr Winstanley, tested by cross‑examination from the Secretary, was that if a "suitable job" involving a "suitable line of type activity" existed which was a job "tailor‑made to [Mr Harris's] situation" which job did not involve "bending, lifting or twisting type activities" and which recognised that Mr Harris could not "have a fixed posture which means he couldn't stand for long periods and sit for long periods", Mr Harris would "probably" be able to work 15 hours a week in such a job, so described. That was the qualified finding open to the Tribunal. 112 The references at [36] to Mr Harris's difficulty of achieving employment in the nominated sectors of commercial activity of real estate, retail sales or the specific position of operator of a console in a service station, and the distinction drawn at [37] between a theoretical residual impairment capability to do work and Mr Harris's realistic options for effective employment being impractical and extremely difficult to actually achieve, reflect an assessment of whether, in an open market, work exists, in fact, for Mr Harris having regard to his impairment and the clinical physical incapacity and limitations about standing and sitting for more than one hour at a time together with his need to use a walking stick. The Tribunal concluded at [37] in determining whether work in the labour market exists for Mr Harris that prospective employers were likely to be sceptical about the realistic capability of the applicant. 113 The sources of work identified by the Secretary and put to Dr Winstanley in the course of cross‑examination lack any content. There is no evidence of the field of activities, jobs, position descriptions, tasks or other particularity of the work within the nominated industrial sectors that Mr Harris is said to be able to do. There is no evidence of the scope of the work falling within the activity of "real estate" or "retail sales". Nor is there any evidence of the tasks which would fall to a person filling the quite specific position of operator of a console in a service station whatever that job may actually be or involve. 114 There is no evidence of the duties attached to work positions said to be available in the nominated sectors which exhibit a line of activity (that is, tasks) that accommodates the limitations confronting Mr Harris (as described at [111]) together with his need to use a walking stick. Further, there is no evidence of whether such work exists attracting the payment of wages that are at or above the relevant minimum wage applicable to the particular position. 115 The Tribunal in taking account of actual employment opportunities in the market in the relevant sectors of the economy said to be the sources of work, Australia‑wide, available to a person exhibiting the particular impairment, did not fall into error as a matter of principle in determining whether for the purposes of s 94(2)(a) of the Act Mr Harris's impairment is of itself sufficient to prevent him from doing any statutory work independently of a program of support within the next two years. 116 It follows therefore that the first contended error described at [8] of these reasons is not made out. 117 It is equally clear however that the Tribunal failed to give consideration to s 94(2)(b)(i) or (ii) of the Act and thus failed to consider the second aspect of the statutory test described at [17] of these reasons and the subject of the second contended error described at [9] of these reasons. 118 The third contended ground of error (described at [10] of these reasons) is that the Tribunal fell into error by finding that work to be done in retail positions would have the requirement of standing for more than an hour at a time in circumstances where there was no evidence before the Tribunal to support such a finding. The proposition that Mr Harris would be capable of doing work in an undefined retail position emerged as a proposition put to Dr Winstanley by Mr Guthrie. As previously described, there was no content to the job, its tasks, demands or any other matter. Nevertheless, the Tribunal concluded at [36] that retail positions would have the requirement of standing for more than an hour at a time. The Tribunal then concluded at [36] in reliance upon the evidence before it that standing for more than an hour at a time would become very difficult for Mr Harris. 119 As to the preliminary conclusion that retail positions would have the requirement of standing for more than an hour at a time, Mr Harris in commenting on Dr Winstanley's observation said simply and speculatively that he thought garage work would involve a lot more than just sitting behind a desk. The Tribunal Member then responded by saying that "[garage work] would require standing all day, I guess, though, wouldn't it, or at least a couple of hours at a time": see [102] of these reasons. Mr Guthrie on behalf of the Secretary said "it may potentially do so" and the Tribunal Member then said "yes". Mr Guthrie's response ought not to be taken as an admission that on the balance of the evidence it was open to conclude that working in a garage position would require standing all day. 120 More fundamentally, this exchange took place in relation to the demands of a position as a console operator in a service station although that position is not identified in any proper way in the evidence. There is no exchange of this kind in relation to "retail positions", also unidentified. The finding of fact by the Tribunal was not open to it on the evidence and thus the third ground of error is made out. 121 Having regard particularly to the failure on the part of the Tribunal to consider the application of s 94(2)(b), it follows that the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for further consideration according to law taking account of the test to be applied as discussed in these reasons. An order will be made setting aside the decision of the Tribunal and remitting the case to the Tribunal to be heard and decided again subject to the following finding of fact made by the Court pursuant to s 44(7) of the AAT Act, namely: If a suitable job exists in the Australian workplace involving a suitable line of type activity, suitable in the sense that the workplace job is, tailor‑made to the impairment affecting Mr Harris because the workplace job does not involve bending, lifting or twisting type activities, and does not require the person to have a fixed posture requiring the person to stand for more than one hour or sit for more than one hour, Mr Harris, on the balance of probabilities, would be able to do work for 15 hours a week in such a job. 122 Apart from other questions the Tribunal would need to address, the Tribunal will be required to consider whether there is, on the evidence, such a job, in fact. If so, the Tribunal must decide whether Mr Harris can do the work independently of a program of support. If there is no such workplace job, in fact, and Mr Harris seeks work on the open workplace market for labour, the Tribunal must also decide whether Mr Harris's impairment is of itself sufficient to prevent him from doing any work taking account of the finding of fact, independently of a program of support.

part 2 123 Item 9 of Part 1 of Schedule 2 of the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (No. 154 of 2005) (Cth) made an amendment to s 94(5) of the Social Security Act to omit a reference to "30" as the relevant number of hours for the purposes of the first limb of the definition of "work" and substitute a reference to "15". 124 However, although the Act received assent on 14 December 2005, s 2 provided that Part 1 of Schedule 2 was to commence on 1 July 2006. Until 1 July 2006 the first limb of s 94(5) would continue to make reference to 30 hours as the relevant number of hours for the purposes of the definition of "work". 125 On 17 March 2006, the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) (Cth) were made which included at Schedule 12 an amendment to the Social Security Act (at clause 2) in these terms: substitute (a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and 126 The principal Act pursuant to which the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) (Cth) were made, makes provision for the amendment of the principal Act by regulation and amendment of other relevant Acts touching the subject matter of the principal Act, by regulation. 127 Regulation 3 provided that the regulations commence "on commencement of Schedule 5 to the Workplace Relations Amendment (Work Choices) Act 2005" for Schedules 2 to 58 (thereby including Schedule 12). Section 2 of the Workplace Relations Amendment (Work Choices) Act 2005 (No. 153 of 2005) provided that Schedule 6 of that Act commenced on "a single day to be fixed by Proclamation". On 17 March 2006, the Workplace Relations Amendment (Work Choices) Act 2005 - Proclamation proclaimed that the commencement date of Schedule 5 of the Workplace Relations Amendment (Work Choices) Act 2005 was to be 27 March 2006. 128 It follows that until 26 March 2006, s 94(5) of the Social Security Act provided that "work" means "work: (a) that is for at least 30 hours per week at award wages or above; and …". From 27 March 2006 to midnight on 30 June 2006, s 94(5) of the Social Security Act provided for a reformulation of the description of wages with the result that "work" was defined to mean "work: (a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and …". 129 From 1 July 2006, having regard to the post‑dated commencement of Part 1 of Schedule 2 of the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) to 1 July 2006, the definition of work in s 94(5) of the Social Security Act provided, as to the first limb, that: In this section … 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 130 It follows that in determining Mr Harris's claim for disability support pension made on 27 July 2007, the first limb of the statutory definition of "work" for the purposes of s 94 of the Social Security Act was, at that time, "work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage". 131 Finally, it should be noted that the Secretary does not seek an order for costs and accordingly there will be no order for costs. I certify that the preceding one hundred and thirty‑one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.