consideration
50 To qualify for DSP, a person must first satisfy s 94 of the Social Security Act. There is no dispute in this proceeding that Mr Doherty has an impairment within the meaning of s 94(1)(a) of that Act and the Determination. There is also no dispute that the relevant qualification period in Mr Doherty's case was from 1 August 2018 until 31 October 2018, as the Tribunal determined.
51 The fundamental question in this proceeding is whether the Tribunal erred in law in finding that Mr Doherty satisfied s 94(1)(b) of the Social Security Act, which requires that his impairment "is of 20 points of more under the Impairment Tables". Specifically, did the Tribunal err, as the Secretary contends, in finding that Mr Doherty's impairment attracted 20 points under Table 3 of the Impairment Tables? In particular, the Secretary challenged the Tribunal's decision, first, on the ground that the Tribunal erred in failing to apply s 9 of Pt 2 of the Determination correctly and, in so doing, misconstrued the word "assistance" in descriptor (1)(a) of the descriptors for severe functional impact in Table 3. The Secretary's case was that, having regard to s 9, "assistance" in that paragraph meant only assistance from another person, and did not include assistance from aids or other equipment. The Secretary's second ground was that the Tribunal failed to carry out its statutory task. This ground included a challenge to the Tribunal's finding that Mr Doherty was provided with assistance by occupational therapists in the form of advice.
52 Before turning to the Secretary's first ground, I would note that there are other eligibility requirements for DSP, as reference to s 94 indicates, although they do not arise for consideration here. I would also note that that, if a person is assigned 20 or more points in respect of an impairment under one Impairment Table, then the impairment is taken to be a severe impairment: see Social Security Act, s 94(3B). To qualify for DSP, persons with a severe impairment are not required to satisfy the Secretary that they have participated in a recognised program of support, although they need to satisfy the Secretary that the impairment itself is sufficient to prevent them from doing any work independently of a program of support or undertaking a training activity within the next two years: see Social Security Act, s 94(2)(aa), (a) and (b).
53 As already noted, the Impairment Tables (including Table 3) are part of the Determination. The Secretary accepted, and the Tribunal found, that Mr Doherty suffers from peripheral neuropathy and Charcot's foot, which condition is permanent, being "fully diagnosed, treated and stabilised": TR, [52]-[53]. The parties did not dispute that, in these circumstances, Table 3, addressing "Lower Limb Function", was the appropriate Impairment Table to consider in Mr Doherty's case.
54 The Social Security Act and the Determination governed the Tribunal's task on review in so far as it was required to assign points under the Impairment Tables to Mr Doherty's lower limb functional impairment to determine if Mr Doherty met the requirement in s 94(1)(b) of the Social Security Act. The outcome of the Secretary's appeal depends principally on the proper construction of the Determination, particularly Table 3.
55 Broadly speaking, the same principles of construction apply to the Social Security Act and the Determination: see, e.g., Legislation Act, 13(1). It may be accepted that, as counsel for Mr Doherty submitted, in construing the provisions of the Determination, effect should generally speaking be given to the ordinary meaning of the text, having regard to the purpose of the Determination and the context in which the provisions in question appear. I say "generally speaking" because this is not a hard and fast rule. In this regard, the statement of Kiefel CJ, Nettle and Gordon JJ in SZTAL at [14] is helpful. Their Honours said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, whilst at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, the meaning must be rejected.
56 The primacy of purpose to which their Honours referred at the close of the above passage is established by s 15AA of the Interpretation Act, which provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
The effect of s 13(1)(a) of the Legislation Act is that the Interpretation Act applies to the Determination (being a legislative instrument of the kind to which s 13(1)(a) applies) "as if it were an Act and as if each provision of the instrument were a section of an Act".
57 The Explanatory Statement accompanying the introduction of the Determination stated (at p 1) that:
Disability support pension is intended to provide income support to people who, because of an ongoing physical, intellectual or psychiatric impairment are prevented from working or from being re-trained for work.
Having regard to the provisions of Pt 2.3 of the Social Security Act, s 26 of that Act, the Explanatory Statement and the Determination itself, I accept Ms Lucas's description of the purpose of DSP. The purpose of the Determination is therefore to facilitate the provision of DSP to people who are unable to work or be re-trained for work due to a physical, intellectual or psychiatric impairment. This purpose is reflected in the definition of "impairment" in the Determination itself, where impairment is defined as "a loss of functional capacity affecting a person's ability to work that results from the person's condition": see Determination, s 3. As explained below, this purpose is relevant to the specific issue falling for determination under the Secretary's first ground.
58 There are further contextual matters to be considered. The Determination contains the rules made by the Minister under s 26(3). These are set out in Pt 2 of the Determination and govern how the Impairment Tables are to be applied: Determination, s 4. The rules direct that, in applying the Tables, a decision-maker must have regard to certain principles, including that the Tables "are function based rather than diagnosis based"; and "are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions": Determination, s 5(2)(b) and (d). The rules also direct a decision-maker to assess a person's impairment "on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person": Determination, s 6(1). Critically for this case, the rule in s 9 (headed "Use of aids, equipment and assistive technology") requires a decision-maker to assess a person's impairment "when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses" (emphasis added).
59 Pausing here, it is clear that the rule in s 9 of Pt 2 of the Determination is a rule for applying the Impairment Tables (including table 3), as s 4 of the Determination and s 26(3) of the Social Security Act indicate. If a decision-maker fails to observe the rule in s 9 in applying Table 3, the decision-maker fails to act in accordance with the Determination. If a person uses or wears "any aids, equipment or assistive technology" - which would include a walking frame or wheelchair - then the decision-maker (here the Tribunal) was not only required to identify that the person used that equipment, but was also required to determine whether the person usually used that equipment in the relevant period. If the decision-maker found this to be the case, then the rule in s 9 required the decision-maker to assess the person's impairment when the person was using the equipment (or aid or technology as the case may be). In this way, the rule in s 9 is consistent with the purpose of the Determination - to facilitate the provision of DSP to people who are unable to work or re-train for work due to a physical, intellectual or psychiatric impairment. This is because s 9 takes account of the situation where the usual use of any aid, equipment or assisted technology mitigates the functional impact of the impairment and may therefore affect a person's capacity to work or to be re-trained for work. The application of the rule in s 9 to Table 3 does not involve any preference for a general provision over a specific provision, as the submissions for Mr Doherty maintained. Rather, the application of s 9 to Table 3 is that which is contemplated or required by s 4 of the Determination and s 26(3) of the Social Security Act.
60 Other rules in Pt 2 of the Determination govern how particular parts of a Table are to be applied. They indicate that, in substance, a decision-maker assigns a rating that is intended to reflect the level of the functional impact of a person's impairment. For present purposes, it suffices to note the rules in s 5(3) and s 11 of Pt 2 of the Determination.
61 Section 5(3) in Pt 2 of the Determination states that:
In the Tables:
(a) subject to section 11, where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment; and
Note: For impairment rating and descriptor see section 3.
(b) the first line of each descriptor, which is formatted in italics, describes the level of impact of the impairment to be identified by reference to the particular examples of functional activities, abilities, symptoms and limitation contained in the numbered paragraphs below it, if any; and
(c) the introduction to each Table sets out further rules with which to apply the tables and rate an impairment.
62 Section 11, also in Pt 2 of the Determination, relevantly states:
(1) In assigning an impairment rating:
(a) an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b) a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d) a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2) In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
…
63 These rules make it clear that a decision-maker must have regard to the descriptors in the applicable Table in assessing which level of functional impact results from an impairment: see also Negri at [41] (Bromberg J). Broadly speaking (and subject to s 11), where a descriptor applies in relation to an impairment, an impairment rating can be assigned to that impairment: Determination, s 5(3)(a).
64 To identify the applicable rating, a decision-maker must compare the descriptors for each rating: Determination, s 11(2). In Table 3 (see [11] above) as in all the Impairment Tables, a descriptor is the entirety of information in the column headed "Descriptors". The first line (in italics) describes a level of impairment impact. The examples of functional activities below the first line enable the decision-maker to identify what this impact level means in terms of the functional impact on a person's activities, abilities, symptoms and limitations: Determination, s 5(3)(b). Each level of impairment impact carries a different rating.
65 In Negri at [43]-[44], Bromberg J helpfully observed:
[T]he impairment level is to be "identified by reference to the particular examples of functional activities, abilities, symptoms and limitations…". [...] The examples are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.
The proper course is to consider the "particular examples" (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact - no, mild, moderate, severe, or extreme - applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all of the descriptors are applicable. In such a case, that impairment rating applies.
66 His Honour added, at [45]:
[W]here the impairment falls between two ratings it may be necessary to make express findings in relation to particular descriptors. That is because the tie-breaking mechanism in item 11(1)(c) precludes application of a higher rating unless all of its descriptors are satisfied. If, on consideration of the examples, it were clear that a claimant experienced something between moderate and severe functional impact, but that person did not have difficulty sustaining work-related tasks of a clerical, sedentary, or stationary nature for a continuous shift of three hours, the 20-point level could not apply and the 10-point level would necessarily apply. In practical terms, a finding that the person did not meet one or more of the descriptors in the 20-point level may be necessary in order for a court to be satisfied that the correct procedure had been followed
67 A rating is intended to reflect the level of functional impact associated with a particular person's impairment. Assigning a rating is an evaluative exercise. In substance, the decision-maker assigns a rating based on the available evidence, by making a comparison of the descriptors in the relevant Table to determine which one best describes the functional impact of the person's impairment.
68 Bearing in mind the purpose of the Determination and the contextual matters to which I have referred, it seems to me that the Tribunal erred in its interpretation of "assistance" in paragraph (1)(a) of the descriptor under the first italicized line referencing "a severe functional impact on activities using lower limbs" in Table 3. The Tribunal was not only required to identify the equipment (relevantly here, a walking frame or wheelchair) that Mr Doherty had at the relevant time; it was also required to determine whether he usually used that equipment at that time. The Tribunal made no express finding to this effect, although it found that Mr Doherty had and used a walking frame and a wheelchair in the qualification period, but that his use of the wheelchair had ceased before that period ended. Assuming that the effect of the Tribunal's findings were that Mr Doherty "usually" used a mobility aid or equipment, the rule in s 9 required the Tribunal to assess his impairment when he was using that equipment. Bearing this in mind, the Tribunal erred in concluding that "assistance" in paragraph (1)(a) of the relevant descriptor could include 'assistance' from equipment of this kind. Since Table 3 was subject to the rules in Pt 2, including the rule in s 9, the descriptors were required to be read subject to that rule. The separate and additional descriptive element introduced by the phrase "without assistance" in paragraph (1)(a) of the descriptors must be construed in light of that rule. Since the usual use of 'assistance' of this kind was already addressed by rule in s 9, the phrase "without assistance" in paragraph (1)(a) of the descriptor for the "severe functional impact" rating in Table 3 should be taken to mean without assistance "from another person". The alternative construction favoured by the Tribunal fails to have adequate regard to the effect of the rule in s 9. Accordingly, in the context of that paragraph, the word "walk" should be construed to mean "walk or mobilise with the use of the aid, equipment or assistive technology that the person usually uses". This is a case in which the ordinary meanings of words such as "walk" and "assistance" are modified or qualified by the context in which they are used and the effect of other provisions in the Determination, such as s 9.
69 I accept that, as the Secretary submitted, this construction of "without assistance" in paragraph (1)(a) as regards "severe functional impact" in Table 3 is consistent with the fact that paragraph (2) (also as regards "severe functional impact" in Table 3) states that this impairment rating "includes a person who requires assistance to "move around in, or transfer to and from a wheelchair ..." or "move around using walking aids".
70 Furthermore, comparison between the levels of functional impact in Table 3 also tends to support the Secretary's submission that "without assistance" in descriptor (1)(a) in the "severe functional impact" rating means "without assistance from another person". This is because the "mild functional impact" and "moderate functional impact" ratings in Table 3 allow for assistance from a mobility aid or other equipment, but do not contemplate the need for non-mechanical assistance, that is, assistance from another person. If the "moderate functional impact" and "severe functional impact" ratings are compared, it is apparent that there is a significant difference between the examples referable to each of them, in that the "severe" rating refers to the need for assistance from another person, while the "moderate" rating does not.
71 I accept that, as counsel for Mr Doherty submitted, some Impairment Tables expressly refine the scope of what is meant by the use of the word 'assistance' in their descriptors and that no equivalent refinement is contained in paragraph (1)(a) of the descriptors in Table 3. Further, I accept that, as counsel for Mr Doherty submitted, elsewhere in the Determination 'assistance' is specifically limited to 'assistance from another person', as, for example in paragraph (2)(b) of the descriptors of "severe functional impact" in Table 3. In the latter case, as explained above, I regard the example in paragraph (2)(b) to be supportive of the conclusion that I have reached with respect to the meaning of the phrase "without assistance" in paragraph (1)(a) of that rating. More generally, however, while the rules in Pt 2 of the Determination, including in s 9, govern all the Impairment Tables, it does not seem to me that the differences in language in the Tables themselves is particularly persuasive with respect to the present inquiry, bearing in mind that the Tables are directed to impairments and functional impacts of different kinds.
72 As already noted, the Tribunal also purported to address the possibility that its understanding of the phrase "without assistance" in paragraph (1)(a) of the descriptors in the "severe" rating in Table 3 was incorrect by making alternative findings on the assumption that the phrase was in fact only directed to assistance from another person. As we have seen, counsel for Mr Doherty submitted that these findings were sufficient to support the Tribunal's decision, whilst counsel for the Secretary contended they were not. For the reasons I am about to state, I do not consider that the Tribunal's alternative findings were sufficient to ground the Tribunal's decision.
73 As indicated already, in assessing which rating was appropriate in Mr Doherty's case, the Tribunal was required to consider all the descriptors in Table 3 in determining which level of functional impact resulted from Mr Doherty's impairment. To identify the appropriate level of functional impact, the decision-maker was required to compare the descriptors for each impairment rating, including the examples they gave.
74 I accept that as counsel for Mr Doherty submitted, the Impairment Tables provide examples designed to illustrate, rather than define, what is appropriate for each rating, but it does not seem to me that this proposition provides an answer to the Secretary's case. If, as it would seem was the case here, his impairment fell within two ratings, being "moderate" and "severe", the Tribunal could not assess his impairment as "severe" unless it was satisfied that all the descriptors for "severe functional impact" were satisfied. In the event that Mr Doherty's case failed to satisfy all these descriptors, the lower rating would apply.
75 In this case, the Tribunal did not examine each descriptor relevant to "severe functional impact" in Table 3, make specific findings with respect to each of them, and compare these descriptors to those relevant to "moderate functional impact" in that table. The failure to engage in this inquiry flows from the Tribunal's assumption that the phrase "without assistance" meant "without assistance from another person". The only reference to a finding on this alternative basis with respect to paragraph (1)(a) of the severe functional impact rating in Table 3 was a finding at TR [99] that "on the balance of probabilities ... [Mr Doherty] did need assistance also from another person during the qualification period and beyond". In making this finding, the Tribunal referred to "his evidence about waiting in the car, if going shopping, because of difficulties he would have in moving around a shopping centre or supermarket or getting to or from one". This was a good deal less than required of the Tribunal in making in making findings on the alternative basis to which it referred.
76 Further, there are evident difficulties with respect to the Tribunal's findings regarding paragraph (1)(a)(iii) of the descriptors relevant to severe functional impact rating in Table 3. In this connection, the Tribunal "inferred" from Mr Doherty's evidence that occupational therapists came to his house after his surgery that they gave him advice about using the bathroom and toilet. The Tribunal found that the provision of such advice was the provision of 'assistance' to Mr Doherty, within the meaning of paragraph (1)((a)(iii). This paragraph is plainly concerned with physical, or mobility, assistance; and, therefore, the Tribunal's analysis required it to attribute a meaning to the word "assistance" that it cannot reasonably bear in the context of paragraph (1)(a)(iii) of the descriptors relevant to severe functional impact in Table 3.
77 The Tribunal also found that Mr Doherty was 'assisted by another person' "by being afforded the use of the frame ... by his late mother ... even though it was used by her for her own purposes when alive". This too cannot be described as 'assistance' of the kind to which the descriptors in this rating in this Table refer. Further, as already noted, the Tribunal did not apply the rule in s 9 of the Determination by making all the findings required by that rule.
78 For these reasons, I reject the submission made by counsel for Mr Doherty that the Tribunal's decision is maintainable on the basis of its alternative findings.