FEDERAL COURT OF AUSTRALIA

Secretary, Department of Social Services v Vaneski [2015] FCA 433 

Citation:	Secretary, Department of Social Services v Vaneski [2015] FCA 433	
		
Appeal from:	Vaneski and Secretary, Department of Social Services [2014] AATA 728 	
		
Parties:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES  v DARKO VANESKI	
		
File number:	VID 656 of 2014	
		
Judge:	NORTH J	
		
Date of judgment:	29 April 2015	
		
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B) 
Social Security Act 1991 (Cth) ss 94(3B), 1217, 1218AAA(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 	
		
Cases cited:	Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259,  [1996] HCA 6 	
		
Date of hearing:	29 April 2015	
		
Place:	Melbourne	
		
Division:	GENERAL DIVISION	
		
Category:	No Catchwords	
		
Number of paragraphs:	25	
		
Counsel for the Applicant:	Mr M McInnis	
		
Solicitor for the Applicant:	Australian Government Solicitor	
		
Counsel for the Respondent:	Ms A Burt	

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 656 of 2014	

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES 
Applicant
	
AND:	DARKO VANESKI
Respondent

JUDGE:	NORTH J	
DATE OF ORDER:	29 APRIL 2015	
WHERE MADE:	MELBOURNE	

THE COURT ORDERS THAT:

1.	The appeal is dismissed.
2.	The applicant pay the respondent’s costs of the appeal. 

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 656 of 2014	
 
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES 
Applicant
	
AND:	DARKO VANESKI
Respondent

JUDGE:	NORTH J	
DATE:	29 APRIL 2015	
PLACE:	MELBOURNE	

REASONS FOR JUDGMENT
1		Before the Court is an appeal from a decision of the Administrative Appeals Tribunal dated 7 October 2014.  The Tribunal determined that the respondent, Mr. Darko Vaneski, had a severe impairment entitling him to unlimited portability of his disability support pension.  It therefore set aside the contrary decision previously made by the Social Security Appeals Tribunal (SSAT).  
2		By notice of appeal dated 5 November 2014, the applicant, Secretary, Department of Social Services, sought an order that the decision of the Tribunal be set aside because, in construing ss 1218AAA(1), 1217 and/or and 94(3B) of the Social Security Act 1991 (Cth) (the Act), and the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011(the Determination), the Tribunal had applied the wrong test.
3		The notice of appeal also challenged whether the Tribunal had provided reasons as required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).  This latter ground was abandoned in the course of the applicant’s argument.  
4		The respondent suffered a workplace accident in 1997 when he was hit in the face by a crane.  He said that, since then, he has not felt like a human being.  On 13 December 2012, he requested an assessment for an unlimited portability of his disability support pension (DSP) so that he could travel to Macedonia.  The Tribunal described the issues before it as follows:
7.	Section 1217 of the Act provides for a maximum portability period of 6 weeks unless the person is terminally ill or severely impaired.  There is no contention that Mr Vaneski is terminally ill.  The issue in contention is whether Mr Vaneski is severely impaired in the terms of the Act.

8.	The provisions regarding severe impairment are contained in section 1218AAA of the Act.  This section allows the Secretary (and the Tribunal acting in the Secretary’s position) to determine that a person’s portability period for DSP payments is unlimited, if all of the following circumstances are met:

(a)	The person is receiving disability support pension;
(b)	The Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c)	The Secretary is satisfied that the person will have that severe impairment for at least the next five years;
(d)	The Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4) within the next five years.
…

10.	The issues to be determined are whether Mr Vaneski’s impairment is severe (section 94(3B)), and whether he is able to work independently of a program of support for the next five years (section 94(4)).

5		The Tribunal then set out a summary of the evidence before it.  That summary included evidence of the everyday living conditions of the respondent, as observed by his uncle, Mr Tanevski, with whom the respondent lived.  
6		The Tribunal then set out the task which it was to undertake, as follows:  
20.	The first issue I need to consider is whether Mr Vaneski’s impairments are severe in the terms of section 94(3B) of the Act.  If I find that his impairments are severe I will go on to consider whether Mr Vaneski is able to work independently of a program of support for the next five years as prescribed in section 94(4) of the Act.

7		It is this first issue with which this appeal is concerned.  
8		The Tribunal then set out section 94(3B) of the Act as follows:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

9		Before the Tribunal, the applicant accepted that the respondent suffers from psychological or psychiatric conditions labelled in various different ways by the medical practitioners who were consulted about his condition.  Consequently, Table 5 of the Determination, relating to mental health functions, applied.
10		Table 5 provides as follows:
Mental Health Function

20	There is a severe functional impact on activities involving mental health function.
(1)	The person has severe difficulties with most of the following:
(a)	self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)	social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)	interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)	concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)	behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)	work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.	

[Emphasis in original.]

11		Table 5 required that the diagnosis had to be made by an appropriately qualified medical practitioner. Before the Tribunal, the representative of the applicant accepted that the various diagnoses of the respondent’s depression were properly supported by the opinion of a psychiatrist, Dr Wahr.  
12		The Tribunal then further refined the task which it had to undertake and said:
28.	I must now assess the functional impact of the condition on Mr Vaneski’s activities.  In doing so, I note the Introduction to Table 5 includes the following: [s]elf-report of symptoms alone is insufficient … there must be corroborating evidence of the person’s impairment.  

29.	To attract a rating of 20 points, Table 5 requires a person to have severe difficulties with most of the following:
•	Self-care and independent living;
•	Social/recreational activities and travel;
•	Interpersonal relationships;
•	Concentration and task completion;
•	Behaviour, planning and decision-making; and
•	Work/training capacity.

13		At [30], the Tribunal set out its analysis of the evidence of Mr Tanevski by reference to the requirements of the severe section of Table 5.  
14		The Tribunal then considered the medical evidence from a number of sources and said:
36. 	I note, however, that none of the doctors, psychiatrists, psychologists, Job Capacity Assessors or the HPAU Review Officer had the benefit of the evidence of Mr Tanevski.  Mr Tanevski testified that he did not attend Mr Vaneski’s medical interviews as he would be embarrassed.  He said that his testimony at the hearing was his first ever involvement in Mr Vaneski’s reviews and assessments.
15		Then, the Tribunal said:
37.	Mr Tanevski’s evidence corroborates Mr Vaneski’s evidence.  It also provides direct evidence relating to many of the activities listed as examples for consideration in the severe section of Table 5.  Mr Tanevski testified that Mr Vaneski:

•	is not capable of caring for himself, that he needs constant care from Mr Tanevski, his wife and his cousin ((1)(a));
•	Is not able to travel alone, even to the local shops ((1)(b));
•	Has social contact only with his cousin, organised by Mr Tanevski ((1)(c)); and
•	When left alone, does nothing other than sit and forgets where he is ((1)(d)).

16		And finally, the Tribunal referred to the remaining elements in the severe section of Table 5 and said:
39. 	In regard to the remaining elements in the severe section of Table 5, I note the reports of Dr Tipirneni…… regarding Mr Vaneski’s behaviour, planning and problem-solving characteristics ((1)(e)), and his lack of work capacity due to his psychiatric condition ((1)(f)).

17		Central to this appeal is what the Tribunal then said, as follows:
40.	From all the evidence before me, I am satisfied that Mr Vaneski has significant difficulties with most of the activities listed in the severe section of Table 5.  Accordingly, I find that Mr Vaneski’s impairment resulting from his psychological/psychiatric condition attracts an impairment rating of 20 points under Table 5.  Section 94(3B) of the Act determines that a person’s impairment is severe if it attracts 20 or more points under a single Impairment Table. As Mr Vaneski’s impairments attract 20 points under Table 5, I find that Mr Vaneski’s impairments are severe.

18		In the conclusion of the decision under the heading Findings, the Tribunal said:
48.	In regard to the provisions of section 1218AAA(1) of the Act, I make the following findings:
	
	…
(b)	I am satisfied that Mr Vaneski’s impairment is a severe impairment within the meaning of section 94(3B) of the Act…

19		The applicant’s argument was succinctly set out in  the applicant’s written submissions as follows:
22. 	It is submitted that the Tribunal in paragraph 40 of its decision misinterpreted the requirements of the relevant legislation by introducing a concept of “significant” when there is no reference to that concept at all in the relevant legislation and/or the Impairment Tables.  Instead the Tribunal should have considered the factors set out in Table 5 which refers to “severe difficulties” rather than the concept of “significant difficulties”.  

20		Counsel for the applicant reiterated this contention in oral submissions and drew attention to the distinction between the word “significant” used by the Tribunal in [40] and the meaning of the word “severe”, which defines the requirement in Table 5.  It may be accepted that there is a distinction between a significant difficulty and a severe difficulty, although the distinction may not be very great.  Accepting that there is a distinction, the question before the Court is whether the Tribunal made an error of law reflected by its reference in [40] to its satisfaction that Mr Vaneski had significant difficulties rather than severe difficulties.
21		It would have been preferable had the Tribunal used the words of the Table. However, on a consideration of the decision of the Tribunal as a whole, it is clear that the Tribunal directed itself properly.  This can be seen, for example, in [20] and [37] and, indeed, in other sentences of [40] itself, where the Tribunal uses the word ‘severe’ three times in defining the task it is undertaking.  
22		That the Tribunal adopted the correct approach can also be seen in the analysis made by the Tribunal of the evidence before it.  In particular, the Tribunal related the facts of the case to the examples given in Table 5 of what constitutes severe difficulties.  
23		Table 5 itself uses the expression “significant” in the example of severe difficulties referred to in cl (1)(e). That clause deals with severe difficulties in “behaviour, planning and decision-making.” The example of severe difficulty given is that “the person’s behaviour, thoughts and conversation are significantly and frequently disturbed” [emphasis added]. In this way, the language of Table 5 itself recognises some correlation between what is a severe difficulty and what is a significant difficulty. 
24		In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, the Full Court of the Federal Court said at 287: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” Pozzolanic was cited with approval by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Taking into account the way in which the Tribunal described the task it had to undertake and the evidence from the decision itself of the process the Tribunal did undertake, the applicant’s construction of the Tribunal’s decision by reference to the single use of the word “significant” in [40] amounts impermissibly to construing the decision minutely and finely with an eye keenly attuned to the perception of error.    
25		I am satisfied that the Tribunal did not make the error of law alleged and that the appeal should be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.	

Associate: 

Dated:	11 May 2015