Lokanc v Secretary, Department of Social Services [2016] FCA 1134

FEDERAL COURT OF AUSTRALIA

Lokanc v Secretary, Department of Social Services [2016] FCA 1134 Appeal from: Lokanc v Secretary, Department of Social Services [2016] AATA 195

File number: VID 208 of 2016

Judge: NORTH J

Date of judgment: 1 September 2016

Legislation: Social Security Act 1991 (Cth) s 94

Date of hearing: 1 September 2016

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 25

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: Ms C Tipene

Solicitor for the Respondent: Sparke Helmore

ORDERS VID 208 of 2016

BETWEEN: FRANJO LOKANC Appellant

AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent

JUDGE: NORTH J DATE OF ORDER: 1 SEPTEMBER 2016

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal made on 22 February 2016 is set aside. 2. The matter is remitted to the Administrative Appeals Tribunal for determination in accordance with law. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J: 1 Before the Court is an appeal from a decision of the Administrative Appeals Tribunal made on 22 February 2016. The appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). Such an appeal is limited to questions of law. The Tribunal affirmed a first review decision of the Administrative Appeals Tribunal to refuse Mr Franjo Lokanc's application for a Disability Support Pension (DSP). 2 The Tribunal exercised a power to review the first review decision under s 179 of the Social Security (Administration) Act 1999 (Cth) (the SSA Act). 3 Section 94 of the Social Security Act 1991 (Cth) (the SS Act) relevantly provides as follows: (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 points or more under the Impairment Tables; and (c) one of the following applies: (i) the person has a continuing inability to work; (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and … (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: (aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and (a) in all cases--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) in all cases--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 2 years. … (3B) 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. (3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection. … [Underlining added] 4 The applicant applied for a DSP on 16 March 2015. He had to show that he qualified to receive the DSP within 13 weeks after making the application, namely, by 15 June 2015: see SSA Act sch 2, cl 4(1). 5 The applicant suffered three separate workplace injuries in 1997, 2000 and 2002 which the Tribunal erroneously, at [13], referred to as a single injury which occurred in December 2007. He suffered a multilevel lumbar disc injury and was later diagnosed with major depression and anxiety. As a result of a WorkCover case brought in the County Court, the applicant recovered nearly $460,000 for his injury. He was not able to claim social security benefits until March 2015 as a consequence of those proceedings. 6 The applicant's eligibility for the DSP depended in part on an assessment of his level of impairment. Under s 94(1) of the SS Act, he was to be assessed by reference to impairment table 4 relating to spinal function and impairment table 5 relating to mental health function. 7 Table 4 relevantly provided: There is a moderate functional impact on activities involving spinal function. (1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies: (a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or (b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or (c) the person is unable to bend forward to pick up a light object placed at knee height; or (d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair). There is a severe functional impact on activities involving spinal function. (1) The person is unable to: (a) perform any overhead activities; or (b) turn their head, or bend their neck, without moving their trunk; or (c) bend forward to pick up a light object from a desk or table; or (d) remain seated for at least 10 minutes. 8 Impairment table 5 relevantly provided: There is a moderate functional impact on activities involving mental health function. (1) The person has moderate difficulties with most of the following: (a) self care and independent living; Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition. (b) social/recreational activities and travel; Example 1: The person goes out alone infrequently and is not actively involved in social events. Example 2: The person will often refuse to travel alone to unfamiliar environments. (c) interpersonal relationships; Example: The person has difficulty making and keeping friends or sustaining relationships. (d) concentration and task completion; Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book). Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions). (e) behaviour, planning and decision-making; Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands. Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement). Example 3: The person's activity levels are noticeably increased or reduced. (f) work/training capacity. Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings. 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. 9 The Tribunal found that the applicant's impairment fell within the description of moderate in each of tables 4 and 5. The result was that the applicant's impairment was rated 10 under each table, a total of 20. Consequently, the Tribunal found that the applicant fell within the qualifying provision of s 94(1)(b). The applicant's impairment was not rated as severe under the impairment tables because under s 94(3B) his injury was not rated at the level of 20 under any one impairment table. That meant that the applicant had to demonstrate a continuing inability to work under s 94(1)(c). He could not do so because he had not actively participated in a program of support under s 94(3C). 10 The Tribunal referred to the level of the applicant's impairment under the tables in the following passage: 18. After consideration of all of the medical evidence, the JCA [Job Capacity Assessment Report] accepted that Mr Lokanc's spinal disorder was fully diagnosed, treated and stabilised, as was his depression. Therefore, it was appropriate to apply an impairment rating to both of those conditions based on his capacity to function. The JCA recommended that Mr Lokanc be given 10 points for his spinal disorder and 10 points for his depression under the relevant tables. The JCA's recommended ratings were based on what she was told by Mr Lokanc in the course of the interview and from observing him. Her reasons are set out in the Job Capacity Assessment Report. In summary, the JCA said there was a moderate functional impact on activities involving Mr Lokanc's spinal function and also a moderate functional impact on activities involving his mental health function. 11 The Job Capacity Assessment Report (JCA) was based on an interview with the applicant by a registered psychologist. The interview was conducted with an interpreter. In respect of the applicant's spinal disorder, the report recorded: Mr. Lokanc reported that he was generally independent with activities of daily living. He lived with his wife and their two adult sons. He said his wife does not work, and is on the Disability Support Pension. He reported to be independent with showering and self-care. He no longer drives, claiming that this is because of his reduced concentration levels, and that his son or wife usually drove him or he walked locally. He said he walked to the assessment. He advised that he did the grocery shopping with his wife, and leans on the trolley for support. He said he could carry light loads but not heavier than 13 kg. He spoke of his wife doing most of the household chores, but confirmed that he was capable of doing the light household chores. He said that sustaining overhead activities was difficult due to neck pain. He said he was able to bend to table level and straighten up again but bending to knee level was difficult due to back pain. He said he was able to put on his own shoes and socks. He reported that sitting for 10-15 minutes was gradually painful. He was observed to sit for the during [sic] of the assessment (about 45 minutes). He spoke of walking to and around his local shopping centre on a daily basis for about 30 minutes. He sometimes caught up with friends on these outings. Mr Lokanc attended the assessment alone. He walked with the aid of a walking stick. 12 On March 2016, the applicant filed in this Court a notice of appeal from the decision of the Tribunal. The notice of appeal is not particularly informative as to the question of law on which the applicant relies to challenge the Tribunal decision. However, in written and oral submissions it became clear that the essence of the applicant's complaint is that the Tribunal erred in the way in which it dealt with the level of his impairment. The applicant was not legally represented at the hearing of the appeal, but was assisted by an interpreter. 13 On 14 July 2016, at the initial hearing of the appeal, the applicant said that he had challenged the JCA report before the Tribunal. As there was no evidence of such a challenge produced on the appeal, the hearing was adjourned to allow the transcript of the hearing before the Tribunal to be procured. 14 The hearing before the Tribunal was conducted on 22 February 2016. It was conducted by phone and with the assistance of an interpreter. The interpreter was present with the Tribunal member. The applicant was at home. As a result of his impairment, he was lying on his bed during the hearing before the Tribunal. A representative of the Secretary, Mr de Uray, also attended the hearing. 15 The applicant told the Tribunal that he had been regarded as totally and permanently impaired in the County Court proceeding and in numerous expert medical reports over many years. As to the JCA report, the applicant said: Yes, I tried to explain to her but I couldn't. She said, "No we have different law" – I don't know what it means. After I saw this – it was this point, but I came – I sent to you for many, many documents. I think documents is proof, like MRI medical report from orthopaedic specialist. 16 The Tribunal then explained to the applicant that s 94 and the impairment tables had different requirements than a common law negligence action. The applicant then said: MR LOKANC: If you let me I will tell you my opinion, if you --- SENIOR MEMBER: Yes, you're welcome to give your opinion. MR LOKANC: Yes, all the (indistinct) decisions made person who is not qualified for this. And in this decision she wrote many false parts. If you can I would like please interpreter. I will easier. SENIOR MEMBER: Yes, sure. MR LOKANC: Yes, thank you. SENIOR MEMBER: Go ahead. INTERPRETER: I was talking – I started talking about the original decision made in May 2015. SENIOR MEMBER: Yes. INTERPRETER: The person – what I have to say about this is that the person who made the original decision is not medically qualified or is not in medical field and all the time what is required is medical assessment, medical documents that supports the reason. The person also put some incorrect even false data. In her decision she put that I can lift lighter objects up to 13 kilograms. You have a report by Mr McCormack who is a physiotherapist. I have been seeing him since '98, since the beginning of my medical problems. After my second injury in 2000 he wrote that following, that my limit of weight lift was 10 kilograms. And Mr Tobin, who was my legal representative, he proved at the court the negligence of my company (indistinct) on that particular detail. So it just proves that I would never had 13 kilograms put or mentioned anywhere. In the meantime the limit of weight I could lift was reduced down to two kilograms. In her decision the original assessor put that I have a neck problem, but I've never had problem with my neck ever. And you have a list of about 20 specialists – well known specialist in Melbourne. Some I saw twice, some three times, but a least once. And all those reports could be obtained. They are from neurosurgeon, from orthopaedic surgeon, from (indistinct) else and because all the reports were required for the court, whether I was referred by my doctor or by the other side. The name of the judge at the County Court and I have transcripts of his final decision as well as all the doctors' findings and decisions and every single one of them put that I am permanently disabled or incapacitated for work. After a further lengthy explanation by the applicant about his impairment he said: Just to put it plainly, I cannot be disabled - totally disabled and incapacitated for work at the same time, while my wife is getting carer's allowance for me. The applicant then said to the Tribunal: If you have any questions, please ask me. 17 Then the representative of the Secretary made submissions to the Tribunal. The applicant interrupted him several times. For instance, the following exchange occurred: MR DE URAY: … So, in conclusion - in summary, you could do many things in relation to daily living when you claimed DSP such as showering, getting dressed, being able to sit in the car for 30 minutes --- The applicant through interpreter then interrupted saying, "That's not true". Mr de Uray then continued: Doing shopping with your wife. Walking to the shopping centre, is that true? And the applicant replied: I tried to walk but - I'll comment once you've finished. 18 Mr de Uray then finished his submission and the following exchange occurred: Mr DE URAY: … Can I just ask you one question, Mr Lokanc. Where you sitting right now or where are you right now? INTERPRETER: I am lying in my bedroom. MR DE URAY: You're lying on your bed are you? MR LOKANC: Yes. MR DE URAY: Okay. Thank you. 19 The Tribunal then explained to the applicant the requirement of the impairment tables and the need in his case for a continuing inability to work. The explanation included the following exchange: SENIOR MEMBER: … A person has a severe impairment if they have 20 or more points under the impairment tables of which 20 points or more is under one table. Now, you have 20 points but you do not have 20 points under one table. INTERPRETER: Because someone who has made such decision decided to do it that way. SENIOR MEMBER: They didn't just decide. They decided in accordance with the instrument. The instrument is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. They've made it under an instrument which is the law. INTERPRETER: I've never allowed to say fully what I want to say. I understand what the law is and I don't need that explanation. SENIOR MEMBER: All right. I won't give you an explanation. You go ahead. INTERPRETER: Well why don't you hear me what you have to say? You are both lawyers. Now you can hear what I have to say about this. SENIOR MEMBER: But it has to be in accordance with the law. We cannot act outside the law. INTERPRETER: It is all within the law and by the law. SENIOR MEMBER: All right. Tell me – I gave you about 25 minutes to say what you wanted to say but I thought you'd said it all. MR LOKANC: Thank you. INTERPRETER: I had three injuries at work. The last one was in May 2002? SENIOR MEMBER: What's that got to do with this? INTERPRETER: Just hear me and you'll see what I have to say. SENIOR MEMBER: You've already told us you have a common law claim. Yes, you got a certificate of permanent impairment, so what? INTERPRETER: But that's the law. WorkCover is also a government authority. SENIOR MEMBER: It's a state government, it's not the Commonwealth government. Two different governments. MR LOKANC: (Indistinct) common law. SENIOR MEMBER: You're entitled to a common law claim for disability, that's correct. But that is under the State legislation. INTERPRETER: At the end of the hearing which went for eight days, the judge said this man is never going to be able to work again. So I didn't (indistinct) case. SENIOR MEMBER: You've already told us that and I'm trying to say to you – I'm trying to say to you that it does not matter for the purposes of this application. It's irrelevant. 20 Then later the applicant and the Tribunal engaged in the following exchange: INTERPRETER: When I applied, (indistinct) was also going to be based on medical evidence which I gave the evidence and asked that they can check and they didn't want to get any report. I haven't been enable - it's now the third year that I can't drive at all. My wife (indistinct). I have a question. Why was carer's allowance not attached to the documentation supplied by Centrelink? SENIOR MEMBER: Because it's not relevant. INTERPRETER: (Indistinct). I provided all the documents that are material evidence rather than blah, blah, blah, just saying - all the evidence that I have provided was not sufficient someone who is not qualified can just decide this or that just out of nowhere - out of nothing. All my material evidence was not sufficient to make a decision but what one person says is sufficient reason. SENIOR MEMBER: Mr Lokanc, what I've tried to do is try to explain to you that - how the law works in this case but you don't wish to hear me on that and I cannot help you if you do not wish to understand how this legislation works. I am trying to assist you in understanding because if you can understand how the legislation works, you may be able to understand why the decision has been made the way that it has and if you understand that, you may very quickly realise that your position now is different - as Mr De Uray tried to say to you- it's now- he just talks over the top of me. Can you please stop that. INTERPRETER: He said my situation has been the same since 2002. SENIOR MEMBER: You keep repeating yourself. Can you just listen to me for a moment. Mr De Uray has also indicated to you that if you were to make a new application now, the medical documents indicate that your condition has become worse. Okay, please yourself. If you don't want to, you don't have to. INTERPRETER: You can make a decision as to what you want and what is the legal remedy and I'll see what I can do next. SENIOR MEMBER: Very well. I'll make the decision. The decision is to affirm the decision which was made previously. I will not change that decision because I do not thing [sic] it is wrong because I think they have correctly applied the law, particularly to the evidence and the functional incapacity which arises from that medical evidence has been correctly assessed – why won't you let me finish? INTERPRETER: I just don't understand the decision. The application law here that is being decided - not the decision but the law that has been applied. SENIOR MEMBER: I don't think he wants to understand. The County Court matter is different. I've told you that. The real problem here too is that it is - I was - when you stopped me from telling you about the law, I was going to tell you about the program of support. The program of support is a program which you must - in your circumstances - because you don't have 20 points on one table, you must do a program of support. MR LOKANC: You made decision what you want - that's it. SENIOR MEMBER: I thought you would want to understand why I make this decision. INTERPRETER: (Indistinct). Decide what you want to decide. (Indistinct). You have all the documents and MRI. SENIOR MEMBER: As I said, the decision will be affirmed. MR LOKANC: Okay. SENIOR MEMBER: I can't do anything more because I believe it's correct and particularly, it's because you have not completed a program of support – INTERPRETER: I am not required to do the program because I am unable to breath properly or work. 21 The hearing then ended as follows: INTERPRETER: I still have to see the responses to whose medical report was the basis of this decision. SENIOR MEMBER: You need to read pages 58 onto about 65 and that is the job capacity assessment report. It refers to those report which the job capacity assessor - - - INTERPRETER: It doesn't mention whose - - - SENIOR MEMBER: Yes, it does. For example, page 59 talks about psychiatrist, Dr Rastoge and it talks about Dr Aranathan. INTERPRETER: What do they say? I can work? SENIOR MEMBER: They don't talk about work. They talk about a diagnosis. It's not their role to. MR DE URAY: Mr Lokanc, can I just say this. Can you just - - - INTERPRETER: But it says that the decision must be made on medical reports. SENIOR MEMBER: No, it's about function. INTERPRETER: You have to tell me that. SENIOR MEMBER: I can't tell you anything more, Mr Lokanc. You don't want to listen to me so I'm not going to say anything further. INTERPRETER: I've been listening to you. SENIOR MEMBER: No, you're not listening and you're taking simple advice which is that you need - you really need to look at lodging another claim. That's what you should be doing rather than complaining about past decisions. INTERPRETER: I am never allowed to say anything. SENIOR MEMBER: I think if you get a - this has been recorded and you can get a transcript of it. You can see how much you had to say and then you can revisit your question. INTERPRETER: I am glad this is recorded. SENIOR MEMBER: You can. It will cost you to get a transcript but you can get it. INTERPRETER: I am reading what is written in the law, that it has to be based on medical report, not just what I say. SENIOR MEMBER: Diagnosis and treatment and stabilisation is based on medical reports. Functional capacity is done by a job capacity assessor. INTERPRETER: I am still being seen or have been seen by doctors and by physiotherapists and they know my physical condition. That person who made the report is - they just decided to write that. What can I do. SENIOR MEMBER: That's your view. I've pointed out - Mr Lokanc, I've pointed out to you what you should do and I think that's enough. I think I've given you as much time as is necessary. You keep repeating yourself and it doesn't help your case. 22 The function of the Tribunal was to assess the merits of the applicant's application for the DSP. As part of that function, the Tribunal was bound to determine on the evidence the level of the applicant's impairment. It had the JCA report. The Tribunal relied on that report: see [18] of the decision. However, the transcript reveals that the applicant challenged the accuracy of the report. He said that it contained false statements. The Tribunal did not address the applicant's criticism of the report. That was a failure to deal with the case put by the applicant. That was an error of law. 23 There is another aspect to the failure of the Tribunal to address the case put by the applicant. He was unrepresented and appeared by phone through an interpreter not present with him. The Tribunal was obliged to provide him with a real opportunity to be heard. That required the Tribunal to draw out from the applicant what he meant by his criticisms of the JCA report. It was open to the Tribunal to raise with the applicant the functional requirements prescribed by the impairment tables for the relevant time period. The Tribunal was not bound to accept the report. Indeed, in the circumstances in which the report was challenged, it was bound to consider the challenge. 24 The applicant tried to explain the errors in the report. Instead of attempting to understand or obtain elaboration of the applicant's criticisms, the Tribunal provided an explanation of the legal requirement to establish impairment, but did so at a high level of generality unrelated to the specific application of the tables to the applicant's actual situation. The Tribunal was concerned to emphasise that the medical opinions obtained in the past were not relevant to the impairment rating. The Tribunal's explanations give the appearance that the Tribunal was committed to the view expressed in the JCA report and was not open to deciding the functional requirements for itself, even though the applicant had questioned the report. The way the transcript reads as a whole satisfies me that the applicant was not provided with a fair opportunity to elaborate on his criticism of the JCA report and was, therefore, denied the opportunity to be heard in a realistic sense. That was also an error of law. 25 It follows that the decision of the Tribunal is set aside and the application is remitted for hearing by the Administrative Appeals Tribunal in accordance with law. 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.