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

[2016] AATA 965

Elms and Secretary, Department of Social Services (Social services second review) [2016] AATA 965 (30 November 2016)

Division	GENERAL DIVISION
File Number	2016/1581
Re	Jonathan Elms
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	30 November 2016
Place	Brisbane

The Tribunal affirms the decision under review.

..................................[sgd] ......................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of pension – requirement that the person’s impairment is of 20 points or more under the Impairment Tables not met – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 27, 63, 80

CASES

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Shi v Migration Agents RegistrationAuthority (2008) 235 CLR 286
Natalizi and Secretary, Department of Social Services [2014] AATA 803

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

Guide to Social Security Law, version 1.227, released 7 November 2016

REASONS FOR DECISION

Senior Member A C Cotter

30 November 2016

INTRODUCTION

1. Mr Jonathan Elms was first granted Disability Support Pension (“DSP”) in June 2010.

2. Following a review by the Department of Human Services (“Department”), a decision was made in December 2015 to cancel Mr Elms’ DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.

3. Mr Elms sought reviews of that decision, first by an Authorised Review Officer (“ARO”), and then by the Social Services & Child Support Division (“SSCSD”) of this Tribunal, in which he was unsuccessful.

4. Dissatisfied with the SSCSD’s decision, Mr Elms has sought a review of it by the General Division of this Tribunal.

5. For the reasons outlined below, I consider that the decision of the SSCSD was correct, and that it should be affirmed.

   BACKGROUND

6. Mr Elms received DSP from 1 June 2010 in respect of two permanent conditions, namely, Depressive Disorder with history of psychotic and social anxiety, and Meniere’s disease.[1]

   [1] Exhibit 1, T Documents, T 24, page 164, Letter from Authorised Review Officer to Mr Elms dated 6 January 2016.

7. On 22 May 2015, Mr Elms was given a medical review form for the purpose of reviewing his continuing qualification for DSP.[2]

   [2] Exhibit 1, T Documents, T 18, page 121; T 19, page 127, Program of Support and Medical Review Disability Support Pension dated 22 May 2015.

8. The form was completed by Mr Elms’ general practitioner, Dr Bernard Gerber, on 11 June 2015 and returned to the Department.[3] In that form, Dr Gerber nominated two conditions which he considered had a significant impact on Mr Elms’ ability to function. The first, Major Depressive Disorder, was confirmed as diagnosed by a psychiatrist, Dr Chris Slack.[4] The impact on Mr Elms’ ability to function was described as: reduced endurance and lethargy; poor memory and very short concentration span.[5] It was stated that Mr Elms had not been able to form any new relationships since 2003; “he (was) so socially isolated(,) secondary to Agoraphobic traits.”[6]

   [3] Exhibit 1, T Documents, T 19, pages 127-136, medical report of Dr Bernard Gerber dated 11 June 2015.

   [4] Ibid, page 130.

   [5] Ibid.

   [6] Ibid, page 131.

9. The diagnosis of the second condition, Meniere’s disease, was confirmed by an ear, nose and throat specialist, Dr Bruce Black.[7] Current symptoms were listed as: completely deaf in left ear; balance disequilibrium; and severe tinnitus.[8] The report described the impact on Mr Elms as: “cannot tolerate loud noises, balance problems lead to gait impairment, does not tolerate air conditioning”.[9] Dr Gerber also noted that Mr Elms was “getting small recurrences of symptoms on left & may be developing symptoms on right”.[10]

   [7] Ibid, page 133.

   [8] Ibid.

   [9] Ibid, page 134.

   [10] Ibid.

10. In addition to those two conditions, Dr Gerber indicated that Mr Elms also suffered from myopia and Gastro-oesophageal Reflux Disorder (“GORD”). Dr Gerber also indicated that those conditions were generally well managed and caused minimal or limited impact on Mr Elms’ ability to function.[11]

    [11] Ibid, page 135.

11. In August 2015, Mr Elms attended a face-to-face assessment with a Job Capacity Assessor (“JCA”), who in turn produced a report.[12] The JCA assessed Mr Elms as having a total impairment rating of 10 points, being five points each in relation to his mental health condition and Meniere’s disease.[13] No points were recommended in respect of the myopia or GORD conditions.[14]

    [12] Exhibit 1, T Documents, T 21, pages 138-147, Job Capacity Assessment Report dated 26 August 2015.

    [13] Ibid at pages 142-144.

    [14] Ibid at page 144.

12. In relation to the Depression condition, the JCA noted:

    Mr Elms reports he games (9-10 hours), with his online/gaming friends; still has some friends from school; sees his school friends every few months for barbecues; goes …out for coffee once per week at the shopping centre; not a close family but gets on well with family, except one sister who doesn’t get on with anyone; finds people generally “idiotic”.

    …spends his day sleeping (9-10 hours), gaming, reading news online, doing woodwork (cabinetry), doing mechanics/electronics (restoring a car), doing photography, listening to music and watching movies; can game (for 3 or more hours); can do woodworking/mechanics for 3-4 hours but feels tired/dizzy afterwards; can drive; does online banking; deals with frustration with disassociation; finds people generally “idiotic”. [15]

    [15] Ibid, page 143.

13. With respect to Meniere’s disease, it was considered that the condition had a mild functional impact on activities involving hearing (communication) function or other functions of the ear. Mr Elms had some difficulty hearing a conversation at an average volume in a room with background noise (such as people talking quietly in the background). The JCA observed that at the interview, Mr Elms sat with his right ear forward. Otherwise, he conversed with no observed difficulties without his hearing aid (that is, he did not require repetition). Mr Elms reported that it was difficult to localise sound and hearing conversations in a crowd. The JCA observed that Mr Elms stood up from a chair independently and had walked to the interview with a single stick, which he reported using for a third point of contact while walking to assist with maintaining balance. He was observed by the JCA to sit for 59 minutes.[16]

    [16] Ibid, pages 143-144.

14. The JCA expressed the view that the “(p)hysical presentation, observation, and Mr Elm’s (sic) self-report appeared better than Treating Health Professionals (sic) reports of the severity of, and functional impacts of, stated medical conditions.”[17]

    [17] Ibid, page 146.

15. Mr Elms was assessed as having a baseline work capacity of eight to 14 hours per week and a future work capacity within two years with intervention of 15-22 hours per week.[18]

    [18] Ibid, page 145.

16. On 15 December 2015, the Department made a decision to cancel Mr Elms’ DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[19]

    [19] Exhibit 1, T Documents, T 22, pages 148-149, letter from the Department to Mr Elms dated 15 December 2015.

17. In support of his application for review of the decision by the Department, Mr Elms provided written submissions, an audiology report dated 29 August 2011 and some online materials concerning Meniere’s disease.[20]

    [20] Exhibit 1, T Documents, T 23, pages 150-162, written submissions (undated) with attachments.

18. In his submissions, Mr Elms said that he had made great strides in keeping his Depressive Disorder under control; he had got better at identifying the symptoms and masking them from others, largely through disassociation. Exposure to large groups, particularly in smaller rooms, was exhausting, to the point where he could only maintain his façade for a few hours before he could not cope further. It also made him extremely anxious, which did not fit well with his naturally aggressive personality, resulting in a potentially volatile situation. As a result, he had made accommodations, such as no longer using public transport. However, he said that the effect of the mental health condition on his mood, concentration and outlook on life also needed to be taken into consideration. On that basis, he thought a 10 point impairment rating was more appropriate.[21]

    [21] Exhibit 1, T Documents, T 23, page 150, Mr Elms’ written submissions (undated) with attachments.

19. With respect to the Meniere’s disease, Mr Elms submitted that the Department had simply evaluated the condition from the perspective of hearing loss without taking into account other aspects of the condition. His unilateral hearing loss meant that he had an inability to localise sounds and determine the position from where sound was coming. Isolating sounds, like speech, was impossible in some situations due to extra background noise. In some situations, that meant that he effectively had a total loss of hearing. That represented a potential safety hazard due to unheard or misunderstood communications. In those circumstances, Mr Elms thought that his hearing loss alone warranted at least 10 points.[22]

    [22] Ibid.

20. Mr Elms submitted that the other aspect of his condition, the Meniere’s disease itself, had gone unevaluated. He reported suffering tinnitus in both ears, persistent in one and sporadic in the other, combined with aural hypersensitivity and general instability, particularly in the presence of changing external air pressure. In addition, he said that he suffered sporadic mini-episodes of vertigo, or “dips”, which he likened to the sensation of missing a step when going down a flight of stairs. The tinnitus leads to sleep deprivation and irritability, which he said interacted poorly with his mental health condition. Mr Elms used a walking stick for his instability. He said that he was physically capable of walking without assistance, and did so at home to create a sense of “normality”. However, he considered it unsafe to walk without assistance in populated areas, as well as in sealed air conditioned environments or where there were significant amounts of machinery in operation.[23]

    [23] Ibid, page 151.

21. Based on his submissions, Mr Elms contended that he should be assigned 15 points for his Meniere’s disease, making a combined total of 35 points under the relevant tables.[24]

    [24] Ibid.

22. Despite Mr Elms’ submissions, the ARO affirmed the decision to cancel his DSP.[25]

    [25] Exhibit 1, T Documents, T 24, pages 163-169, letter from Authorised Review Officer to Mr Elms dated 6 January 2016, together with notes.

23. Mr Elms sought a review of the ARO’s decision by the SSCSD. In support of that application, he provided a letter from the psychiatrist, Dr Christopher Slack. Dr Slack said that Mr Elms leads a “very quiet life at home with his elderly parents” and goes out about once a week to the shops. The rest of his time was spent on the net, gaming with some Internet friends; he had a few friends that he had known for some years whom he saw from time to time. Dr Slack confirmed that Mr Elms has social anxiety and reported ongoing problems with his concentration and memory. He considered that Mr Elms may have had a major depressive episode but it was in remission. He noted that “there are chronic social anxiety symptoms” and he wondered about an “underlying schizotypal personality disorder”. He concluded by saying that, with the combination of psychiatric and physical problems, it was highly unlikely that Mr Elms would ever be gainfully employed.[26]

    [26] Exhibit 1, T Documents, T 27, pages 174-175, letter from Dr Christopher Slack to Dr Bernard Gerber dated 9 February 2016.

24. On 9 March 2016, the SSCSD affirmed the ARO’s decision.[27]

    [27] Exhibit 1, T Documents, T 3, pages 17-23, Social Services & Child Support Division decision and reasons for decision dated 9 March 2016.

    THE LEGISLATIVE FRAMEWORK

25. Under s 80(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment be cancelled. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[28] In this case, that is 15 December 2015. It is irrelevant that a person may later again fulfil the requirements for a grant.[29]

    [28] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

    [29] See Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 673-674.

26. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the person has a physical, intellectual or psychiatric impairment; that the person’s impairment is of 20 points or more under the Impairment Tables; and that the person has a continuing inability to work.

27. The documents sent to Mr Elms relating to the review of his eligibility for DSP constituted a notice under s 63(2) of the Administration Act.[30] Under s 27(3) of that Act, if a person is receiving DSP and receives a notice under s 63(2), the Secretary, in assessing their qualification for that pension, must apply the Impairment Tables in force at the time the notice is given.[31] At that time (22 May 2015), the Impairment Tables in force were those made under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“2011 Determination”), whereas Mr Elms’ original grant of DSP had been assessed under different requirements.

    [30] Exhibit 1, T Documents, T 18, page 121 and T 19, page 127, Program of Support and Medical Review Disability Support Pension dated 22 May 2015.

    [31] See also Natalizi and Secretary, Department of Social Services [2014] AATA 803 at [3].

28. The Impairment Tables under the 2011 Determination are function based, rather than diagnostic based,[32] and describe functional activities, abilities, symptoms and limitations.[33] They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.[34]

    [32] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2)(b).

    [33] Ibid, s 5(2)(c).

    [34] Ibid, s 5(2)(d).

29. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[35] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and be more likely than not, in light of available evidence, to persist for more than two years.[36]

    [35] Ibid, s 6(3).

    [36] Ibid, s 6(4).

    ISSUES FOR THE TRIBUNAL

30. The Secretary accepts that Mr Elms suffers from physical and psychiatric impairments and that therefore, the first requirement in s 94(1)(a) of the Act is satisfied.[37] Having regard to the evidence before me, I agree with, and accept, that submission.

    [37] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 September 2016, [5.18].

31. Consequently, the central issue which falls for my consideration in determining whether Mr Elms qualified for DSP on 15 December 2015 (being the date of cancellation), is whether his impairments attracted 20 points or more under the Impairment Tables contained in the 2011 Determination. If they did, it is then necessary to also consider whether he had a continuing inability to work. I deal with those issues below.

    CONSIDERATION

    Did Mr Elms’ impairments attract 20 points or more?

32. I consider below the impairment ratings which should be assigned to each of Mr Elms’ conditions under the relevant Impairment Tables: Mental Health Function (Table 5) and Hearing and other Functions of the Ear (Table 11).

    The mental health condition

33. There is no doubt that Mr Elms’ mental health condition was fully diagnosed, treated and stabilised at the date of cancellation.[38] As such, an impairment rating could be assigned in respect of it.

    [38] Ibid, [5.19].

34. Each of the descriptors in Table 5 contain the same six domains of mental health impairment: 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. In determining which descriptor applies to the person, most of the domains must apply to the person in line with the relevant level of severity under consideration.[39]

    [39] See Guide to Social Security Law, 3.6.3.50 Guidelines to Table 5.

35. The Secretary agreed with the findings of the SSCSD that Mr Elms’ condition attracted five points under Table 5 at the date of cancellation.[40] Mr Elms contended that 10 points, or possibly 20 points, should be assigned.[41] Having considered each of the domains, I agree with, and accept, the Secretary’s submission that this impairment would have attracted five points under Table 5 at the date of cancellation. My reasoning follows.

    [40] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 September 2016, [5.21].

    [41] Exhibit 2(a), Attachment A to Secretary’s Statement of Facts and Contentions dated 16 September 2016, Applicant’s submissions, undated (“Applicant’s submissions”), page 4.

    Self care and independent living

36. I do not consider that Mr Elms has any significant functional impairment with respect to self care and independent living. While he lives with his elderly parents, there was no suggestion that he was unable to care for himself. He told the SSCSD that he is able to look after his own self care and can prepare his own meals if need be. He said that he was able to manage his own personal affairs, such as banking.[42] On that basis, I do not believe there was any functional impact in respect of this domain.

    [42] Exhibit 1, T Documents, T 2, page 12, Social Security & Child Support Division decision and reasons for decision dated 9 March 2016 (“SSCSD decision”), [10].

    Social/recreational activities and travel

37. With respect to social/recreational activities and travel, Mr Elms does not like large groups and becomes very anxious in them. Notwithstanding that, he told the SSCSD that he has a group of half a dozen close friends from school with whom he socialises. He attends barbecues with them every couple of months and more recently, attended a Hog’s Breath Café with them.[43] At the suggestion of his psychiatrist, he goes out for coffee once per week.[44] He told me that he meets a friend who shares similar collecting interests to him. That has been ongoing for about the last two years.[45] 

    [43] Ibid.

    [44] Ibid.

    [45] Exhibit 2(a), Applicant’s submissions (undated), page 2.

38. Mr Elms said that he engages in sessions of “VOIP”, a virtual club, for up to three hours on up to three occasions per week, with periodic breaks. He said, however, that the interaction in those cases was more focussed than social, “relating to performing online tasks rather than idle chit-chat”, and participation was largely voluntary. He has the opportunity to distance himself from the conversation because he is particularly good at the activity.[46] He did say, however, that he had made friends through the VOIP sessions.[47]

    [46] Ibid.

    [47] Ibid, page 3.

39. Mr Elms said that he often travels alone, but almost never to unfamiliar environments. For example, he travels to purchase a specific item or to attend a meeting with DEN (Disability Employers Network). He also said that he enjoys driving.[48]

    [48] Ibid, page 2.

1. Taking those matters into account, I believe they are indicative of a mild functional impairment in this area.

   Interpersonal relationships

2. As regards interpersonal relationships, Mr Elms has maintained a long-standing friendship with half a dozen close friends from school. For the last two years, he has met up weekly for coffee with a friend who shares his interest in collecting.[49] He has also made friends through VOIP sessions.[50]

   [49] Ibid.

   [50] Ibid, page 3.

3. On the other hand, Dr Gerber observed in his medical report completed for the DSP review that Mr Elms had not been able to form any new relationships since 2003. He remarked, “(h)e is so socially isolated secondary to agoraphobic traits.”[51] That divergence of views led the JCA to comment that Mr Elms’ physical presentation and the observations of him at the assessment, together with his self-report, “appeared better than Treating Health Professionals (sic) reports of the severity of, and functional impacts of, stated medical conditions”.[52] 

   [51] Exhibit 1, T Documents, T 19, page 131, medical report of Dr Bernard Gerber dated 11 June 2015.

   [52] Exhibit 1, T Documents, T 21, page 146, Job Capacity Assessment Report dated 26 August 2015.

4. Having regard to Mr Elms’ more detailed accounts and descriptions of his activities (which he confirmed during his evidence at the hearing), I would not rate the functional impact on this domain as more than mild.

   Concentration and task completion

5. The fourth domain is concentration and task completion. Dr Gerber reported that Mr Elms has poor memory and a very short concentration span.[53] However, Mr Elms reported engaging in video-gaming sessions of three hours or more on three occasions per week, although with his concentration decreasing over that period.[54] During cross-examination, Mr Elms said that he previously spent time doing woodworking two to three times per week before he ran out of room. While he acknowledged that he did spend an “extended period out of the house, tools in hand”, it was not fair to say that he accomplished a corresponding amount of work. Only simple tasks were achievable as a result, such as a small set of cabinets for optical media and a small set of stairs for an elderly cat,[55] although he said during cross-examination that he had plans to make himself a desk and a small cabinet for speakers. Mr Elms also spent time restoring an old Valiant motor vehicle,[56] although he said that was more in maintenance mode at present.

   [53] Exhibit 1, T Documents, T 19, page 131, medical report of Dr Bernard Gerber dated 11 June 2015.

   [54] Exhibit 2(a), Applicant’s submissions (undated), page 3. See also Exhibit 1, T Documents, T 21, page 143, Job Capacity Assessment Report dated 26 August 2015.

   [55] Exhibit 2(a), Applicant’s submissions (undated), page 3.

   [56] Exhibit 1, T Documents, T 2, page 12, SSCSD decision, [10].

6. During cross-examination at the hearing, Mr Elms said that he reads news online daily. He also watches movies (he has a collection of over 1,000 movies). His other hobby is photography. While he still uses his camera, he has not used it as frequently as he previously did. The SSCSD observed that at its hearing, Mr Elms was able to present a focussed and articulate case to the Tribunal, both verbally and in writing.[57] That, too, was my experience of his representing himself at the hearing before me. As to task completion, Mr Elms was able to assist his family with the household’s connection to the National Broadband Network (“NBN”), making telephone calls which were both stressful and frustrating.[58] Although I appreciate that Mr Elms’ concentration span was affected, I consider that, having regard to all those matters, the functional impact was mild.

   [57] Ibid, page 14, [19].

   [58] Ibid, page 12, [10].

   Behaviour, planning and decision-making

7. With respect to the domain of behaviour, planning and decision-making, Mr Elms states that he has difficulty coping with stress. He told the SSCSD that he can become volatile interacting with others under stress.[59] However, there was no suggestion of him having acted unusually or inappropriately as a result. As the SSCSD noted, his behaviour at its hearing, and indeed, at the JCA assessment, was that of someone who is able to control stress and anxiety well.[60] His actions were not inappropriate or unusual at the hearing before me. I also note that Mr Elms was apparently able to assist his family with the household’s connection to the NBN, even though that process was both stressful and frustrating.[61] Taking into account those matters, I would rate the impairment in this area as mild.

   [59] Ibid.

   [60] Ibid, page 14, [20].

   [61] Ibid, page 12, [10].

   Work and training capacity

8. The final domain is work and training capacity. Mr Elms has not worked since 2005/2006.[62] I note, however, that he attends DEN meetings, at which possible employment opportunities are discussed and explored. Mr Elms also told me that he has been trying to learn program languages with a view to obtaining future work. None of the above suggests that there is any significant functional impact in this domain.

   [62] See Exhibit 1, T Documents, T 21, page 146, Job Capacity Assessment Report dated 26 August 2015.

   Impairment rating – Table 5

9. For the reasons outlined above, I consider that Mr Elms had a mild functional impact in respect of at least four of the domains considered, namely social/recreational activities and travel; interpersonal relationships; concentration and task completion; and behaviour, planning and decision-making. As a consequence, I consider that the functional impact on him was mild. Therefore, five points should be assigned under Table 5.

   Hearing loss and Meniere’s disease

10. Again, there is no dispute that Mr Elms’ hearing loss and Meniere’s disease condition was fully diagnosed, treated and stabilised at the date of cancellation.[63]

    [63] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 September 2016, [5.24].

11. The Secretary agreed with the findings of the SSCSD that an impairment rating of five points should be assigned under Table 11.[64] At the hearing, Mr Elms contended that either 10 points (for hearing loss) or 20 points (for non-aural ear issues) should be assigned.[65]

    [64] Ibid, [5.25].

    [65] Exhibit 2(a), Applicant’s submissions (undated), page 8.

12. It is important to note that, at least for the five, 10 and 20 point descriptors under Table 11, an applicant must satisfy either point (1), relating to hearing loss, or point (2), which relates to balance or ringing in the ears.[66] I deal below with each of points (1) and (2) below.

    [66] See Guide to Social Security Law, 3.6.3.110 Guidelines to Table 11.

    Hearing loss 

13. In order to satisfy point (1), all of the sub-points (a), (b) and (c) must apply to the claimant.

14. Dr Gerber reported that Mr Elms is completely deaf in his left ear.[67] However, he has good hearing in his right ear, meaning that he suffers from unilateral or single-sided deafness. That brings with it its own particular challenges, such as difficulty in localising sound and what Mr Elms describes as “head shadow”.[68]

    [67] Exhibit 1, T Documents, T 19, page 133, medical report of Dr Bernard Gerber dated 11 June 2015.

    [68] Exhibit 2(a), Applicant’s submissions (undated), page 5.

15. The JCA found that Mr Elms had some difficulty with hearing a conversation at an average volume in a room, or when using a standard telephone, where there was background noise.[69] Mr Elms also has a hearing aid, but did not wear it for the JCA assessment;[70] nor did he wear it at the hearing before me. Based on that evidence, I am satisfied that Mr Elms met the requirements under point (1) for mild functional impairment (attracting five points).

    [69] Exhibit 1, T Documents, T 21, page 143, JCA report dated 26 August 2015.

    [70] Ibid, page 140.

16. However, I do not consider that Mr Elms satisfied the corresponding point in the table for moderate functional impact (10 points). That is because he does not have to use a telephone with a T-switch and is not partially reliant on lip-reading or a recognised sign language (sub-points (1)(b) and (1)(c) respectively).

17. It follows from what I have said that, at the date of cancellation, Mr Elms would have attracted five points under Table 11 in respect of hearing loss. The question therefore arises as to whether a higher rating can be assigned under Table 11 in respect of Mr Elms’ Meniere’s disease.

    Meniere’s disease

18. Point (2) of the descriptor for moderate functional impact (10 points) provides that the claimant has:

    …more frequent difficulty with balance (e.g. has to sit down or hold on to a solid object) or ringing in the ears which interferes with communication ability or routine activities, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).

19. That is to be contrasted with the corresponding point for mild functional impact, which refers to “occasional difficulty” with balance (such as occasional dizziness) or ringing in the ears which “occasionally interferes with communication ability or routine activities”.

20. In his report prepared for the DSP review, Dr Gerber noted that Mr Elms had balance and disequilibrium as well as severe tinnitus.[71] The balance problems were said to have led to gait impairment. Dr Gerber expected the effect of the condition on Mr Elms’ ability to function to deteriorate within the following two years, observing:

    Getting small recurrences of symptoms on left & may be developing symptoms on right.[72]

    [71] Exhibit 1, T Documents T 19, page 133, medical report by Dr Bernard Gerber dated 11 June 2015.

    [72] Ibid, page 134.

21. Mr Elms told the SSCSD hearing that he has persistent tinnitus, the volume of which increases when there is no background noise. He said that he finds his tinnitus particularly unbearable when he is trying to sleep. As to his balance, he said that he had episodes of disequilibrium, which he called “dips”, every couple of days. Those “dips” usually lasted a few seconds, but he had experienced an unusual one the night before the SSCSD hearing that lasted 10 to 15 minutes. Mr Elms said that he had never fallen over due to his “dips”, but he uses a stick when out in public to give him a third point of contact with the ground.[73]

    [73] Exhibit 1, T Documents, T 2, page 14, SSCSD decision, [25].

22. At the hearing before me, Mr Elms said that he would suffer from separate events with his balance more than twice per week, at random. He described them, not as outright vertigo, but rather, “momentary disequilibriums (sic)”. He told me that this had a “continual effect” on the most basic activities. These included: having to exercise caution when showering, especially when washing his hair due to the necessity to close his eyes; using an electric toothbrush and having to close his eyes; having his sleep disturbed by persistent, polyphonic tinnitus in his left ear; browsing a website or document broken into tables, causing nausea, or scrolling through such things, resulting in either a momentary loss of equilibrium or failing to see the contents entirely; and visiting shopping centres with powerful air-conditioning systems which can change the pressure on his ears, skewing his sense of balance. Mr Elms also said that he periodically experienced tinnitus on his right side, accompanied by sharp bursts of pain (as in the case of tinnitus in his left ear).[74]

    [74] Exhibit 2(a), Applicant’s submissions, pages 6-7.

23. While I understand the thrust of Mr Elms’ submissions and the added explanation he provided at the hearing, the difficulty I have is that there is no evidence to suggest that such impact was being experienced as at the date of cancellation, 15 December 2015.  That is important for several reasons.

24. First, it appears that a number of the matters concerning functional impact mentioned by Mr Elms at the hearing had not previously been specifically raised by him. There was no indication as to when he began experiencing such impact, and with what frequency. Without that evidence, it is difficult to determine whether it was referable to the position as at the date of cancellation.

25. Second, both the rules for applying the Impairment Tables[75] and the introduction to Table 11 emphasise that the claimant’s self-reporting alone is insufficient, and that there needs to be corroborating evidence of the claimant’s impairment. Apart from Dr Gerber’s report on the DSP review, there is no other corroborating evidence of this impairment as at, or about, the date of cancellation. Dr Gerber’s later report of August 2016 makes a brief reference to the condition without descending into the details of its functional impact on Mr Elms, particularly as at the cancellation date. [76]

    [75] See s 8(1) of the 2011 Determination.

    [76] Exhibit 2(b), report of Dr Bernard Gerber dated 22 August 2016.

26. Significantly, Dr Gerber’s initial report notes that Mr Elms was getting “small recurrences of symptoms” on the left ear, and that he may be developing symptoms on the right ear, whereas Mr Elms’ evidence at the hearing was to the effect that the symptoms were more frequent, and in some instances, more severe. Having regard to the 2011 Determination’s requirements as to corroboration, and in the absence of any other supporting evidence, I accept Dr Gerber’s evidence, that there were “small” recurrences of the Meniere’s disease symptoms about the time of cancellation.[77] That is also consistent with the JCA’s observations from August 2015, that Mr Elms walked to the interview with a single stick, sat for 59 minutes, and stood from his chair independently.[78]

    [77] Exhibit 1, T Documents, T 19, page 134, medical report of Dr Bernard Gerber dated 11 June 2015.

    [78] Exhibit 1, T Documents, T 21, page 143, JCA report dated 26 August 2015.

27. Third, the Secretary contends that Mr Elms’ ability to regularly drive alone to familiar environments, attend DEN meetings and the shopping centre, play video games and engage in woodwork projects/mechanics for extended periods of time, is evidence that the difficulty with balance and ringing in the ears did not have a moderate impact on Mr Elms. Accordingly, it was submitted that point (2) of the moderate (10 point) rating was not met as at the date of cancellation.[79] I am inclined to agree with, and accept, that submission.

    [79] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 September 2016, [5.32].

28. For those reasons, I do not consider that there is sufficient corroborating evidence that, at the date of cancellation, Mr Elms had “more frequent difficulty” with balance or ringing in the ears which interfered with communication ability or routine activities. I therefore do not consider that this impairment attracts more than five impairment points.

    Impairment rating – Table 11

29. As both the hearing loss under point (1) and the Meniere’s disease under point (2) each attracted five points, the total number of impairment points to be assigned under Table 11 is five.

    Other conditions

30. At the hearing, Mr Elms confirmed that his GORD condition is controlled by medication and that his myopia condition is corrected by glasses. He therefore did not submit that any points should be assigned in respect of those conditions.[80] I consider that approach to be reasonable and appropriate, especially having regard to Dr Gerber’s report for DSP review, in which he noted that both conditions were well managed and caused minimal or limited impact on Mr Elms’ ability to function.[81]

    [80] Exhibit 2(a), Applicant’s submissions, page 1.

    [81] Exhibit 1, T Documents, T 19, page 135, medical report of Dr Bernard Gerber dated 11 June 2015.

    Impairment points – summary

31. To summarise, I consider that Mr Elms’ impairments attracted a total of 10 points as at the date of cancellation, being five points each under Table 5 (Mental Health Function) and Table 11 (Hearing and other Functions of the Ear).

32. As Mr Elms did not have 20 impairment points or more at the date of cancellation, he did not meet the requirement in s 94(1)(b) of the Act and, therefore, did not qualify for DSP as at that date.

    Did Mr Elms have a continuing inability to work?

33. In light of my conclusion that Mr Elms did not have the requisite impairment points and did not qualify for DSP as at the date of cancellation, it is unnecessary to address this question.

    CONCLUSION

34. In conclusion, I do not consider that, as at the date of cancellation, Mr Elms had 20 impairment points or more under the Impairment Tables. He therefore did not qualify for DSP at that date. The cancellation of his DSP was correct.

35. Accordingly, the decision under review is affirmed.

I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

...............................[sgd].........................................

Associate

Dated 30 November 2016

Date(s) of hearing	28 October 2016
Applicant	In person
Solicitors for the Respondent	Ms C Campbell, Sparke Helmore