Chisholm and Secretary, Department of Social Services (Social services second review)

[2019] AATA 671

Chisholm and Secretary, Department of Social Services (Social services second review) [2019] AATA 671 (12 April 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3270

Re:Rodney Chisholm

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Mark Hyman

Date:12 April 2019

Place:Canberra

The decision under review is affirmed.

........................................................................

Member Mark Hyman

Catchwords

SOCIAL SECURITY – disability support pension – cancellation – ischaemic heart disease – major depressive disorder – whether fully diagnosed, fully treated and fully stabilised – decision affirmed

Legislation

Acts Interpretation Act 1901, s 15AD
Administrative Appeals Tribunal Act 1975, s 37
Legislation Act 2003, s 13
Social Security Act 1991, ss 26, 27, 94
Social Security (Administration) Act 1999, s 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

REASONS FOR DECISION

Member Mark Hyman

12 April 2019

1. This decision is about whether the applicant, Mr Rodney Chisholm, qualifies for disability support pension (DSP). Mr Chisholm used to receive DSP. In 2017 he asked to be assessed for unlimited portability of his DSP (that is, for the right to retain his DSP indefinitely when travelling overseas). The Department of Human Services – Centrelink (the Department) conducted the assessment and decided that he did not qualify for DSP, cancelling that benefit under section 80 of the Social Security Act 1991 (the Act) on 5 January 2018 (T60). Mr Chisholm applied for review of the Department’s decision, but the decision was affirmed twice on review, first by an authorised review officer of the Department (T63), and then most recently by the Social Services and Child Support Division of this tribunal (T2). On 17 May 2018 Mr Chisholm applied to this tribunal for further review (T1).

2. The tribunal held a hearing on 25 and 26 February 2019. Mr Chisholm appeared by video link and gave evidence; he was represented by Mr Ian Turton, a solicitor from the Illawarra Legal Centre who was present in person on 25 February and appeared with Mr Chisholm by video link on 26 February 2019. Ms Sally Moore, a departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter. Mr Chisholm called as witnesses Mr Steven Wilson, a friend and Ms Karen Donaldson, his current treating psychologist. Both appeared by telephone. The tribunal had available the documents provided by the Department of Social Services (the “T-documents”) under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act); a list of Mr Chisholm’s absences overseas from June 2008 to December 2017 (Exhibit R1); and a number of supporting documents provided by Mr Chisholm:

   ·a statutory declaration by Mr Chisholm (Exhibit A1);

   ·a list of Mr Chisholm’s current medication (Exhibit A2);

   ·a screenshot of Mr Chisholm’s current bank balance (Exhibit A3);

   ·an Apprehended Domestic Violence Order against Mr Chisholm (Exhibit A4);

   ·a witness statement by Mr Steven Wilson, undated (Exhibit A5); and

   ·a statement by Mr Chisholm’s treating psychologist, Dr Karen Donaldson, and a supporting statement with regard to it by Mr Chisholm’s previous treating psychologist, Mr Chris Symons (Exhibit A6).

   ISSUES

3. The issues before the tribunal in this matter are:

   ·whether Mr Chisholm has one or more physical, intellectual or psychiatric impairments;

   ·if so, whether those impairments together are of at least 20 points under the Impairment Tables;

   ·if so, whether he has a continuing inability to work; and

   ·whether his DSP should be suspended or cancelled.

   LEGISLATION

4. The grant of DSP is governed by section 94 of the Act. Section 94 reads in part as follows:

   94(1)  A person is qualified for disability support pension if:
   (a)      the person has a physical, intellectual or psychiatric impairment; and
   (b)      the person's impairment is of 20 points or more under the Impairment Tables; and
   (c)      one of the following applies:

   (i)  the person has a continuing inability to work;

   …

5. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

6. The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 and made a mandatory consideration in the decision process under paragraph 94(1)(b) by section 27 of the Act. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. The Impairment Tables are preceded by some preliminary material, including in Part 2 of the Determination a set of Rules for Applying the Impairment Tables (the Rules). Subsection 6(4) of the Rules provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.

7. The specific Impairment Tables that follow the Rules each relate to an area of impairment (e.g. Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each table is preceded by additional Rules governing how the table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

8. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables. These tests are to be applied at the time of cancellation; that is, if Mr Chisholm is to qualify for DSP, I must be satisfied that he met the relevant tests on 5 January 2018: Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 (at 675).

9. Section 80 of the Social Security (Administration) Act 1999 provides, relevantly, that if the Secretary is satisfied that a payment is being paid to a person who is not qualified for it, the payment is to be suspended or cancelled.

   THE LAY EVIDENCE

10. Mr Chisholm and Mr Wilson each gave evidence and there is a witness statement from each.

    Mr Chisholm’s evidence

11. Mr Chisholm’s mental health problems appear to have arisen from episodes of bullying and difficulties in the workplace (Exhibit A1). Mr Chisholm was the chief engineer at a hotel in Sydney between 2006 and 2010, and he reports that bullying by one of the managers led to the onset of depression in about 2009. He was diagnosed with major depressive disorder in 2010. He separated from his wife and moved in with his parents. He applied successfully for DSP in 2012.

12. Mr Chisholm had some family difficulties leading to an interim apprehended violence order being taken out against him. Partly as a result, in October 2012 he decided to move away from Sydney. He bought a property in a holiday community area on the south coast of NSW and moved there permanently. He remains living in that house. He has a dog but says the dog is now old and only walks as far as the shops, which are 200 metres away. He sometimes prepares his own food but it is mostly a matter of microwaving food bought already prepared.

13. Mr Chisholm said that he lives alone in his house, without visitors. He does not know most of his neighbours, and in any case most of the houses nearby are holiday homes. He knows one neighbour, an elderly may, to whom he might say hello “every now and then”. A neighbour used to mow his lawn but he had a fight with him and “sent him packing”. He tries to lead an independent life, but finds it difficult. He has episodes of depression which might last weeks or even a month. During those times he will not leave the house. He stocks up on food so that during an episode he will not need to do any shopping. He sees his brother, who lives about 20 minutes’ drive away, about once every month or two months; it is his brother who takes care of his dog when he goes away, and he returns the favour when his brother is away. He talks to his mother by telephone occasionally, for example on her birthday. At the time of the hearing, he had not spoken to her since Christmas, two months earlier.

14. Mr Chisholm said that he does not shower every day, as he does not need to; he does not take proper care of the house, which is neglected, with the washing up not done and the place a mess. He is hoping the National Disability Insurance Scheme might help – he applied when it became available, having had it brought to his attention through a flyer left in his letterbox.

15. Mr Chisholm’s father died in 2013, and this affected him severely. Mr Wilson and another of Mr Chisholm’s old friends, who had known him before the onset of depression, suggested that he join them on a holiday in Thailand, and he did so. Subsequently, Mr Wilson married a woman from Thailand and moved there, and Mr Chisholm adopted the practice of travelling to Thailand and staying with him from time to time. He drives to his mother’s house in Sydney, and then his old friend takes him to the airport; Mr Wilson meets him at the airport in Bangkok and takes him to the house, which is well away from the city, or else he arranges for someone else to undertake that task. Mr Chisholm said that when at Mr Wilson’s Thai house (he was last there at the end of 2017) he usually did little except relax, swim in the pool and watch sport on television. Sometimes he would go to the markets with Mr Wilson and his partner, or even into Bangkok.

16. Mr Chisholm acknowledged that he had met a Thai woman himself; he had met her on the internet, and she had come to Mr Wilson’s house to visit. She had also visited him in Australia on two occasions, in perhaps 2014 and again in 2016. But the relationship had not lasted; it was geographically impossible and on her last visit she had been here for a few days while he was in the middle of a depressive episode.

17. Mr Chisholm said he booked his travel himself online; that he travelled with carry-on luggage only; that he found ways of coping with the stresses of travel, by finding a quiet spot; and that his stress is reduced by not having to manage the transfers at each end of his flight.

18. Mr Chisholm goes to Sydney by car to see his cardiologist, and his mother comes occasionally to see his brother. When that happens he might visit his mother and brother perhaps once during the visit. He catches up with his other old friend by telephone perhaps once a fortnight, at his (Mr Chisholm’s) initiative. Mr Chisholm explained that his old friend has a hereditary form of depression and he is the only person he can talk to about his own problems. On a long weekend his old friend might come to his house to stay.

    Mr Wilson’s evidence

19. Mr Wilson provided a witness statement (Exhibit A5) and gave oral evidence by telephone. He has known Mr Chisholm for more than 40 years. His account of events corroborated, in large measure, the evidence given by Mr Chisholm. He stated that they had first gone to Thailand for a holiday with their other old friend after Mr Chisholm’s father had died, an occurrence that Mr Chisholm had taken badly. That first trip they had stayed in “a cheap motel” and had just sat by the pool and looked over the local area.

20. Mr Wilson noted that after he had settled in Thailand, Mr Chisholm, when visiting, would largely keep to himself, sitting by the pool, or watching English soccer on television. He did not talk much. They might sometimes go to the markets but Mr Chisholm found the markets a little too hectic. He did not want to meet the locals, was content to remain by himself, and often did not join him and his wife even for meals.

21. Sometimes Mr Chisholm had a depressive episode and on those occasions he might retreat to his room for up to a fortnight. Mr Wilson commented that at those times he saw that Mr Chisholm’s motivation and focus were diminished. Mr Chisholm has expressed appreciation for the support and assistance that Mr Wilson offers.

22. Mr Wilson said that he would sometimes visit Mr Chisholm at the latter’s house. He said it was an old house, dating from the 1970s with no updating or improvements since it was built. He said Mr Chisholm was happy for the visit but also happy when he left. The house was clean but not wonderfully kept. Mr Chisholm had no real engagement with the locals; he had quarrelled with some. He would take his dog to the waterfront, and perhaps drop a fishing line in.

23. Mr Wilson says that he and Mr Chisholm normally speak about twice a month; sometimes he initiates contact, sometimes Mr Chisholm does (Mr Wilson now lives in Australia). Not long ago he saw Mr Chisholm when he came up to Sydney for one or two nights. But Mr Chisholm likes his solitude.

24. Despite having known him for 40 years, Mr Wilson said that he had met only one member of his family, namely a brother; Mr Chisholm did not talk about his family.

    THE MEDICAL EVIDENCE

25. Mr Chisholm suffers from a number of medical conditions, namely ischaemic heart disease, a back injury, pain in the right knee, gout and a mental health condition. These are considered below in turn.

    Ischaemic heart disease

26. Mr Chisholm has suffered from a heart problem for at least 20 years. His general practitioner, Dr Declan Mulvaney, in a medical report dated 7 April 2017 (T46), gave 1998 as the date of onset of ischaemic heart disease. Mr Chisholm has had coronary artery bypass surgery on two occasions, in 1998 and 2007 (T46, folio 227; the second bypass may have occurred in 2009 – see T15). He is under the supervision of a cardiologist, Dr David Ramsey, and it is clear from Dr Ramsey’s reports (T20, T34, T35, T36, T39, T48) and from a note by a general practitioner, Dr Nim Yohendran (T32, folio 181), that Mr Chisholm suffered a myocardial infarct at some time. Dr Ramsey supervises Mr Chisholm’s medication, performs regular ECG stress tests and monitors indicators such as cholesterol levels, blood pressure and pulse.

27. Mr Chisholm experiences limitations on his physical activity from his heart condition, which causes him some shortness of breath, occasional chest pains and reduced stamina.

    Mental health condition

28. As noted above, Mr Chisholm developed a mental health condition following difficulties in his workplace in 2010 and the immediately preceding period. A report by a psychologist, Mr Kevin Judge, dated 25 June 2010 (T16), reports on seven consultations up to that time, and suggests a diagnosis of depression and anxiety. The report was apparently prepared in the context of a workers’ compensation claim and consequently focuses on questions of causation.

29. Mr Chisholm saw Dr Zhen Zhang, a psychiatrist. Dr Zhang (T18, report dated 15 August 2010) diagnosed major depressive disorder with melancholic features, in partial remission. He noted symptoms of early morning wakening, lethargy and tiredness, poor concentration, amotivation, generalised anxiety, anhedonia, social withdrawal and irritability. Dr Zhang increased the dosage of sertraline, an anti-depressant, prescribed for Mr Chisholm. (There is one contradiction in the report: Dr Zhang states that “I last saw him on 3rd March 2008”, although he records that Mr Chisholm’s history of depression dates back only to the middle of 2009; I assume that the date of 3 March 2008 is an error.)

30. A forensic psychiatric report by a consultant psychiatrist, Dr Robert Hampshire, dated 18 August 2011 (T26), appears to have been prepared in the context of a workers’ compensation claim. Dr Hampshire diagnosed major depressive disorder with melancholic features, which he identified as chronic and stable at that time, and severe in intensity. Dr Hampshire provided an assessment against five areas relating to activities of daily living, finding mild impairment against one, moderate against two and severe against two, leading to a 22% whole person impairment.

31. Mr Chisholm was assessed for workers’ compensation purposes by A/Professor Michael Robertson, who submitted a report dated 20 December 2011 (T30). Prof Robertson diagnosed chronic adjustment disorder with depressed mood, with symptoms including guilt, loss of interest in enjoyed activities and anhedonia, disturbed sleep, early morning wakening, weight loss, low energy, loss of appetite and cognitive impairment. He identified a whole person impairment of 17%.

32. In more recent years Mr Chisholm has been treated by Mr Chris Symons, a psychologist. Mr Symons provided a report dated 27 November 2017 (T57), countersigned by his successor as Mr Chisholm’s psychologist, Dr Karen Donaldson (Dr Donaldson is a clinical psychologist). Mr Symons identified Mr Chisholm as experiencing a major depressive episode at the time he was writing the report, which made it difficult for him to get out of bed, to undertake basic activities like showering, and to concentrate and make decisions. He diagnosed non-melancholic depression at a “severe” impairment level. The condition was chronic and would prevent him from working, especially as the episodes he experiences make him “quite dysfunctional”. Mr Symons drafted an addendum to his report, dated 1 May 2018. In that addendum he notes that he is passing care of Mr Chisholm to Dr Donaldson because of his own retirement. He adds that during depressive episodes Mr Chisholm is totally reclusive with poor appetite and diminished self-care. He can only travel overseas because he is met at both ends, and because of his general familiarity with overseas travel from earlier in his life.

    Evidence of Dr Donaldson

33. Dr Donaldson provided a report dated 8 August 2018 (this is well after the date of cancellation, 5 January 2018, but Mr Symons has signed a note stating that the contents of Dr Donaldson’s report were equally true at the date of cancellation, when Mr Chisholm was still his patient). Dr Donaldson noted that Mr Chisholm has “significant difficulties” with self-care, going sometimes for months without washing his sheets and cleaning the bathroom. He feeds himself with ready-prepared food. He has no social contacts and is now unable or unwilling to form relationships with people he does not know. He has no interest in social activities. When coming to appointments with doctors and other health professionals, he organises things to minimise the contact he has with other people.

34. He used to start projects and fail to finish them; now he is unwilling even to start them. His difficulties with problem solving and concentration are evident in their sessions together. He does not have the ability to make decisions. He is unable to attend work or training and has no work capacity.

35. In oral evidence Dr Donaldson explained that her particular field was disability assessment. She said that because Mr Chisholm had frequently travelled in his work, his overseas travel was not so stressful or demanding for him. As for his condition, there is no reason for her to think that his condition when she took up his care was any different from that at the time of his DSP being cancelled. Dr Donaldson was emphatic that Mr Chisholm does not have the capacity to work more than 15 hours a week.

36. Under cross-examination Dr Donaldson:

    ·reiterated her view that Mr Chisholm’s concentration and decision-making capacities were noticeably impaired, although she acknowledged that he could book his air travel online, because it was such a routine and familiar task for him;

    ·stated that Mr Chisholm had not travelled overseas since he had become her patient, so she was unable to comment on his capacities to manage;

    ·repeated that Mr Chisholm’s day-to-day living was restricted even if he largely managed by himself; and

    ·suggested that it would be very difficult for Mr Chisholm to engage in supported training or respond to disability-specific interventions – indeed she wondered if any form of training would be of any help.

    Other conditions

1. The papers include mention of a lower back injury; pain in the right knee resulting apparently from a fracture occurring a number of years ago; and gout.

2. Mr Chisholm evidently injured his right leg in a motor vehicle accident in 1996 (T52). Reports of imaging, dated 20 and 28 March 1996 (T5, T6), record a comminuted fracture of the head and neck of the right fibula. The reports also note an old healed fracture of the shaft of the right tibia, a discontinuity in the mid shaft of the right fibula, assumed to be associated with the earlier tibial injury and a possible undisplaced fracture of the right tibial condyle.

3. The knee clearly continues to give Mr Chisholm problems. Clinical notes by Mr Chisholm’s general practitioner, dated 21 July 2017 (T52) diagnose right osteoarthritis of the knee. Mr Chisholm was referred to a physiotherapist (T53). Dr Allen Turnbull, an orthopaedic surgeon, completed a confidential medical report, apparently in connection with Mr Chisholm’s superannuation, on 31 July 2017. That report notes that Mr Chisholm’s knee caused pain and would give way. In a work capacity report completed for the Department on 4 April 2017 (T45), Mr Chisholm referred to “ligament and cartilage damage” to his right knee, and said that it (along with his back injury) affected his ability to stand, walk, climb stairs, pick up, lift and carry objects; he foreshadowed a future knee replacement.

4. In 2007 Mr Chisholm suffered an episode of lower back pain. An imaging report dated 4 June 2007 identified moderate disc space narrowing at L5/S1 with minor osteophytic lipping at all levels (T7). His back pain episode evidently resulted from a work injury occasioned by lifting tables in the workplace, occurring on 4 May 2007 (or possibly 5 May - see T9, T10, T12, T13); Mr Chisholm was granted time off work and his return to work was carefully managed (T11). He returned to work on 16 or 18 June 2007 (T11, folio 95, T13, folio 103) and was back on full-time duties by 29 June 2007.

5. A report was sought by Allianz, an insurer, on 30 September 2011 in respect of a recurrence of Mr Chisholm’s back injury. A report dated 12 October 2011, completed by Dr P J Barrett (T28), records that Mr Chisholm had a recurrence of his back pain on or around 12 June 2011; that he reported not being free of pain since the initial injury in 2007 and had had other recurrences; that the diagnosis remained musculoskeletal back pain with L5/S1 disc degeneration; and that recurrences of this kind of injury were to be expected with people who had disc degeneration at L5/S1. Dr Barrett prescribed medication and on a subsequent consultation found Mr Chisholm to be much improved; he did not return for further scheduled review.

6. Mr Chisholm identified his back as causing problems with sitting, standing, walking, climbing stairs, picking up, lifting and carrying objects and bending.

7. Mr Chisholm appears to have been diagnosed with gout in 2015; this is mentioned in the report of the Department’s Health Professional Advisory Unit (HPAU), dated 20 December 2017 (T58), although there is no first hand evidence. The HPAU report says that Mr Chisholm has had two acute gout episodes, in 2015 and 2017. There is evidence of an episode in March 2017, when pathology tests showed an elevated urate level. Dr Mulvaney prescribed prednisolone as treatment.

   CONSIDERATION

8. As noted above, to qualify for DSP Mr Chisholm must meet all of paragraphs 94(1)(a), (b), and (c) of the Act.

   Does Mr Chisholm have one or more impairments?

9. It is common ground between the parties and clearly shown by the evidence that Mr Chisholm has both physical and psychiatric impairments. I find that he satisfies paragraph 94(1)(a) of the Act.

   Do Mr Chisholm’s impairments together warrant ratings of at least 20 points under the Impairment Tables?

10. Ratings under the Impairment Tables reflect the severity of the impairments rated. Ratings are given to those impairments that meet the tests set for permanence.

    Permanence

11. Mr Chisholm has clear impairments to his right knee and his back. These have been diagnosed and have been with him for several years, but in neither case has Mr Chisholm investigated or taken up the options available for treatment. In the case of his knee there is the possibility of a knee replacement, but he does not seem to have sought the views of a surgeon (the referral to Dr Turnbull was not for treatment) or asked for referral to an orthopaedic specialist to explore what treatment options might be available short of a replacement. In the case of his back, I note from the HPAU report that Dr Mulvaney was not even aware that Mr Chisholm has a back problem. Neither condition was pressed at the hearing by Mr Turton. In neither case can I find that the condition is fully treated and fully stabilised, although I find that each is fully diagnosed.

12. The HPAU decided that Mr Chisholm’s gout is not fully treated and fully stabilised because he has not been referred for options such as diet, weight management and exercise. But this is a condition which is highly episodic, with two episodes two years apart. These episodes are managed with medication, apparently successfully. Mr Chisholm has seen dieticians for other issues, to do with his heart condition and the blood pressure and elevated cholesterol problems that go with it (T38, T65), and his ability to manage wider changes in behaviour that might help control his gout must be called into question in light of his significant mental health issues. I do not think, in all the circumstances, that Mr Chisholm’s gout would warrant more intensive management. I find the condition to be fully diagnosed, fully treated and fully stabilised.

13. It is clear that Mr Chisholm’s heart condition is well understood. He has had at least two episodes of surgery; he is under regular supervision and monitoring by a cardiologist; he takes medication for the condition and sees a dietician. It is common ground and not at issue that the condition is fully diagnosed, fully treated and fully stabilised, and I so find.

14. Mr Chisholm’s major depressive disorder has been diagnosed for some years, including by Dr Zhang, a psychiatrist (a diagnosis by a psychiatrist or with input from a clinical psychologist is required under Table 5 of the Impairment Tables). Mr Chisholm takes medication (currently mirtazapine) and has received treatment from a psychiatrist and from psychologists. He is continuing to receive treatment from Dr Donaldson. It is common ground and not at issue that Mr Chisholm’s mental health condition is fully diagnosed, fully treated and fully stabilised and I so find.

    Severity

15. Those impairments that are permanent may be rated for severity under the Impairment Tables. The tables provide for no (zero points), mild (5 points), moderate (10 points), severe (20 points) and extreme (30 points) functional impacts to be assigned. Descriptors are given in each table for each rating, and in some cases examples are used to illustrate how a rating might be assigned.

16. In the case of Mr Chisholm’s gout, it is doubtful whether the information available allows a rating to be assigned. There is no indication of the particular joint or part of the body affected, which makes it impossible to know which table should be used (e.g. Table 2 – Upper Limb Function or Table 3 – Lower Limb Function). Further, there is absolutely no information about the severity of the effects of Mr Chisholm’s gout or the duration of the episodes. Given the paucity of information, no rating can be assigned. It seems likely in any case that the assigned rating would be zero, reflecting the apparently well managed nature of the impairment, but the available evidence does not even allow that conclusion to be drawn with any confidence.

17. It is common ground between the parties that Mr Chisholm’s ischaemic heart disease should be assigned a 5-point rating. The appropriate table is Table 1 – Functions requiring Physical Exertion and Stamina, which assigns zero points where a person can undertake age-appropriate exercise for 30 minutes at a time and has no difficulty completing physically active tasks around their home. The Table assigns 5 points to someone who  experiences occasional symptoms (including shortness of breath or cardiac pain) when walking to local facilities or performing physically active tasks but is able to perform most work-related tasks not involving heavy manual labour. The 10-point rating is assigned where those symptoms are frequent rather than occasional but the person can perform sedentary or clerical tasks.

18. The evidence records that Mr Chisholm does experience shortness of breath from time to time and may also occasionally suffer some chest pains (T39, T48, T46). Although he is able to walk to his local shops (recorded as about 200 metres) his capacity for exercise is limited (T48). I find that his impairment is mild and assign him 5 points under Table 1.

19. Table 5 - Mental Health Function is used to assess psychiatric impairments. Mental health is assessed against six aspects of daily life: 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. The successive ratings apply where the person being assessed has no, mild, moderate, severe or extreme difficulties in most of those aspects, and each is illustrated with examples (section 15AD of the Acts Interpretation Act 1901 provides that examples are not exhaustive and may extend the operation of a provision; subsection 13(1) of the Legislation Act 2003 extends the operation of the Acts Interpretation Act to legislative instruments (such as the Impairment Tables Determination)).

20. Each of the aspects of daily living is considered below in turn.

    (a)Self-care and independent living: Mr Chisholm lives by himself, and copes with the demands of self-care and independent living, although he says that he neglects housework and survives on frozen pre-prepared food that he heats in the microwave. He says he often does not shower or wash his sheets, especially when he has a depressive episode. He has sought home help through the National Disability Insurance Scheme. Dr Donaldson says that Mr Chisholm has severe difficulties in this aspect of daily living. The examples given in the Impairment Tables for the 10 and 20-point ratings suggest that a person with moderate difficulties in this area would need someone’s help occasionally; a person with severe difficulties would need regular help. Generally, Mr Chisholm gets little help, perhaps because he has quarrelled with those who have helped him in the past. It is clear that the examples given in the Table, although a useful and rational guide to the assignment of ratings, do not reflect the kind of challenge that might be the result of the interactions among a person’s particular behaviours resulting from their mental illness. Mr Chisholm says that he used to have a neighbour mow his lawn; but he fought with the neighbour and that no longer happens. Does that indicate that Mr Chisholm is more able to take care of himself, or the opposite? It appears to me that Mr Chisholm’s reluctance to engage with others and difficulties with interpersonal relations mean that he has no-one to help him out in his day-to-day living, rather than reflecting his capacity to manage independently; and he has removed himself from the locations where family might be able to offer him assistance (and is in any case estranged from many of his family). Taking all of the above into account, I find that his impairment has a severe functional impact in this area.

    (b)Social/recreational activities and travel: Mr Chisholm seems to be almost completely devoid of social activities except with his two long-term friends. His contacts with family are very limited and, it appears, brief. On the other hand, he has been able to undertake regular international travel, an activity that most people would find stressful. This has been explained as reflecting previous extensive experience with such travel, so that it is not something that makes him nervous. The examples in the Table suggest that a person with a higher rating would be increasingly reluctant to go to unfamiliar places; yet Mr Chisholm drives to Sydney, and travels to a foreign country where there are significant differences of language and culture. Taking all of this into consideration, I find that Mr Chisholm’s impairment has a mild functional impact in this area.

    (c)Interpersonal relationships: Mr Chisholm not only finds such relationships difficult, he actively avoids situations where he might be obliged to meet new people. He has difficulty controlling his anger, and fights with some of the people he does know (such as the neighbour who used to mow the lawn). He is no longer in touch with most of his family, and has limited contact with those he still sees. Above all, he seeks solitude and avoids company, even if others try to arrange it. This behaviour is corroborated by his treating health professionals. I find that his impairment has a severe functional impact in this area.

    (d)Concentration and task completion: Dr Donaldson said that Mr Chisholm used to start tasks and be unable to finish them; now he cannot even start them, knowing he will not be able to finish. Mr Chisholm himself frequently refers to problems with concentration as a central indication of his reduced mental health function. He says he cannot read, and prefers to watch sport because he cannot concentrate for long enough to follow a plot in a movie. He cannot absorb complex written material of the kind he used to rely on when he was employed. He is reported as lacking motivation. Table 5 gives as an example of a severe functional impact that a person “has difficulty concentrating on any task or conversation for more than 10 minutes” and assigns a moderate rating to a person who “finds it very difficult” to concentrate for more than 30 minutes or finds it difficult to follow complex instructions such as in an operating manual. Mr Symons apparently said to the HPAU that Mr Chisholm can concentrate for more than 10 minutes; and he appeared to manage in the hearing for a significantly longer period. In my view, although the examples are not binding, they provide a sensible and graded guide to the severity of functional impacts in this aspect of daily living. The evidence does not extend to assigning Mr Chisholm a severe rating against this criterion, as his behaviour aligns closely with the moderate examples. I find that his impairment has a moderate functional impact.

    (e)Behaviour, planning and decision-making; Mr Chisholm reports that he finds it difficult to control his anger and he has quarrelled with many of those around him. His estrangement from family and neighbours illustrates and corroborates the point and Mr Wilson also noted Mr Chisholm’s propensity to fall out with others. Ms Moore noted Mr Chisholm’s ability to manage his affairs and to book his travel online. That necessarily implies some level of planning and decision-making. Mr Turton argued that online travel bookings can be done very quickly, even for international travel. That is true, but some level of planning and the capacity to make decisions is nevertheless required. Dr Donaldson said that Mr Chisholm’s decision-making capacities were “noticeably impaired”. The Table gives as an example of a severe impact that the person’s behaviour, thoughts and conversation “are significantly and frequently disturbed”. That does not describe Mr Chisholm; a better description is that given as an example of a moderate impact: the person has “occasional behavioural or mood difficulties”. The behaviour Mr Chisholm displays is clearly more closely aligned with the moderate rather than severe rating. I find that his impairment has a moderate functional impact.

    (f)Work/training capacity: Ms Moore was keen to assert that “disability-specific interventions” might allow Mr Chisholm to undertake training and resume work at some level; it was not clear to me what such interventions might involve or how they would improve Mr Chisholm’s work or training capacity. Dr Donaldson was sceptical, believing that Mr Chisholm would have great difficulty in doing so. In her report Dr Donaldson said that Mr Chisholm has “no work capacity” because of his mental health problems. A number of doctors have made similar comment (e.g. T47, folio 231; T49, folio 234; T57, folio 254). I accept these opinions and find that Mr Chisholm’s impairment has a severe functional impact in this area.

21. Mr Chisholm has three severe ratings, two moderate and one mild. To achieve a severe rating overall, he must have a severe rating against “most” of the nominated areas, which implies at least four severe scores. Mr Chisholm falls just short of that level. Applying subsection 11(1) of the Rules for Applying the Impairment Tables, Mr Chisholm must be assigned the lower of two ratings if he falls between them. Accordingly, Mr Chisholm has 10 points under Table 5.

    Overall rating

22. Mr Chisholm has a total rating of 15 points. He therefore does not meet paragraph 94(1)(b) of the Act. As a person must satisfy all of paragraphs 94(1)(a), (b) and (c) of the Act to qualify, Mr Chisholm does not qualify for DSP.

23. Having reached that conclusion, I do not need to examine whether Mr Chisholm meets paragraph 94(1)(c) of the Act.

24. The decision under review is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of

........................................................................

Associate

Dated: 12 April 2019

Date(s) of hearing:	2-26 February 2019
Solicitors for Mr Chisholm:	Mr Ian Turton, Illawarra Legal Centre
Solicitors for the Secretary:	Ms Sally Moore, Department of Human Services