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

[2016] AATA 609

Herzog and Secretary, Department of Social Services (Social services second review) [2016] AATA 609 (16 August 2016)

Division	GENERAL DIVISION
File Number	2015/5324
Re	Dean Herzog
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	16 August 2016
Place	Brisbane

The decision under review is affirmed.

......................[Sgd]..................................................

Senior Member A C Cotter

Catchwords

SOCIAL SECURITY – disability support pension –  cancellation – whether condition fully treated – whether 20 points or more under the impairment tables – applicant did not qualify for DSP at the date of cancellation – decision under review affirmed.

Legislation

Social Security Act 1991 (Cth), ss 27(3), 94

Social Security (Administration) Act 1999 (Cth), ss 63(2), 80

Cases

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Freeman v Secretary, Department of Social Security [1988] FCA 294

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 (Cth),

REASONS FOR DECISION

Senior Member A C Cotter

16 August 2016

INTRODUCTION

1. Mr Dean Herzog was granted an invalid pension in 1979. He was transferred to a Disability Support Pension (“DSP”) in 1991.

2. Following a request by Mr Herzog for indefinite portability of his DSP in October 2014, the Department commenced a review of his entitlement to DSP. That resulted in a decision to cancel his DSP on the basis that his impairments did not attract 20 points or more under the Impairment Tables and that, therefore, he no longer qualified for DSP.

3. Mr Herzog unsuccessfully sought review of that decision by an Authorised Review Officer (“ARO”). He then sought a review of the ARO’s decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal. That, too, was unsuccessful. He now seeks review of the SSCSD’s decision by the General Division of the Tribunal.

4. For the reasons outlined below, I do not consider that Mr Herzog qualified for DSP at the date of cancellation, as his impairments did not attract the requisite number of impairment points. The SSCSD’s decision is therefore affirmed.

   BACKGROUND

5. It is useful to set out in some detail the background to the current application for review.

6. Mr Herzog’s original grant of invalid pension in July 1979 was in respect of a psychotic illness and Reiter’s Disease.[1]

   [1] Exhibit 1, T Documents, T 10, page 86, letter from Dr Richard Perkins dated 5 July 1979; and T11, pages 87-88, medical report by Government Medical Officer dated 18 July 1979.

7. In 1991, Mr Herzog was transferred to DSP. The evidence suggests that his entitlement was subsequently reviewed and confirmed in both 1997 and 2002.

8. On applying for indefinite portability of his DSP in October 2014, Mr Herzog had to submit an application and provide supporting medical evidence. His application listed his disabilities, illnesses and injuries as Rheumatoid Arthritis, cardiac; and remission from Lymphoma.[2]

   [2] Exhibit 1, T Documents, T 17, page 132, Mr Herzog’s Disability Support Pension review for portability dated 20 October 2014.

9. A report was also prepared by Mr Herzog’s general practitioner, Dr Lynne Barnes.[3] She identified two conditions, Schizophrenia and Ischaemic heart disease/Angioplasty, as having a significant impact on his ability to function.

   [3] Exhibit 1, T Documents, T 18, pages 134-143, Medical Report (Disability Support Pension Review for Portability) of Dr Lynne Barnes dated 20 October 2014.

10. As to Schizophrenia, she put the date of onset as 1979 and indicated that diagnosis had been confirmed in the same year. Dr Barnes noted that the condition had been treated with major tranquillisers in 1979, but that Mr Herzog had stopped taking them by the early 1980s. She said that since then he had managed his symptoms by “simplifying his life and finding a social framework of people who accept his behaviour”. There was no plan to change that course. Nor had there been a referral by her or her practice to a specialist since Mr Herzog commenced as a patient in May 2005. Mr Herzog’s current symptoms were described as follows:

    He continues to have negative thoughts and delusions. He has learnt to challenge these thoughts by himself. He is fortunate to have considerable insight into his symptoms.

11. Dr Barnes said that the condition and current treatment impacted on Mr Herzog’s ability to function, in that it would affect his cognitive functioning when he was having delusions. That impact was expected to persist for more than five years and in that time would remain unchanged.[4]

    [4] Ibid, pages 136-138.

12. The Ischaemic heart disease was stated as commencing in September 2010. Mr Herzog underwent Angioplasty at the time. His current treatment was described as a combination of medication and follow up by a cardiologist (to whom he was referred in February 2013). Dr Barnes noted that Mr Herzog had been advised to take statin. Despite being reluctant to take it, she confirmed that he was using it at the time. The doctor described the impact on Mr Herzog’s ability to function as reducing his capacity to lift and carry things. She expected that impact to persist for two to five years.[5]

    [5] Ibid, pages 139-141.

13. Dr Barnes also noted that Mr Herzog had chemotherapy for Hodgkin’s Lymphoma in 2010 and that he was currently in remission. That condition was therefore said to be generally well managed and having limited or minimal impact on his ability to function.[6]

    [6] Ibid, page 142.

14. Following receipt of Mr Herzog’s request for indefinite portability, the Department commenced a review of his entitlement to DSP. A referral was made to the Department’s Health Professional Advisory Unit (“HPAU”), which produced a report.[7]

    [7] Exhibit 1, T Documents, T 20, pages 152-154, Health Professional Advisory Unit (“HPAU”) Opinion – 1998 dated 11 May 2015.

15. The HPAU assessor spoke with Dr Barnes by telephone and learnt that the latter was planning to refer Mr Herzog to a psychiatrist, as she was concerned at the possibility that his DSP would be cancelled. Dr Barnes said that she did not have any of the historical psychiatric medical records and therefore was unable to say why, or precisely when, Mr Herzog had ceased treatment in the early 1980s. She told the assessor that Mr Herzog “currently deals with his schizophrenia by having relationships with people who can tolerate his behaviour.” He hears voices, but Dr Barnes was unable to corroborate whether this was a daily occurrence. She said that Mr Herzog had an insight into his condition and was aware that he was hearing voices. However, she believed that he was able to manage his delusions. As to the Ischaemic heart disease, Dr Barnes confirmed it had a mild functional impact, saying that while Mr Herzog does not experience cardiac pain, he has shortness of breath with prolonged activity. Dr Barnes also confirmed that the Reiter’s syndrome was no longer a current condition and that the Hodgkin’s Lymphoma was in remission and had no functional impact.

16. Based on that discussion, the HPAU assessor concluded that while there was sufficient evidence that the Schizophrenia condition was fully diagnosed, it could not be said that it was fully treated and stabilised.

17. After receiving the HPAU opinion, a Job Capacity Assessor (“JCA”) produced a report recommending that five points be assigned in respect of the Ischaemic heart disease. The JCA concluded that the Schizophrenia condition was fully diagnosed but not fully treated and stabilised, as Mr Herzog’s current treatment was self-management.  No points were assigned in respect of Rheumatoid Arthritis, since it was no longer considered a current condition and did not impact on Mr Herzog’s ability to function. The JCA concluded that Mr Herzog’s baseline work capacity was eight to 14 hours per week and his future work capacity with intervention, 15 to 22 hours per week.[8]

    [8] Exhibit 1, T Documents, T 21, pages 155-160, Job Capacity Assessment (“JCA”) report dated 25 May 2015.

18. On 29 March 2015, the Department decided to cancel Mr Herzog’s DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[9]

    [9] Exhibit 1, T Documents, T 4, pages 41-42, Centrelink letter to Mr Herzog dated 29 May 2015.

19. The decision to cancel Mr Herzog’s DSP was affirmed on review by an ARO.[10]

    [10] Exhibit 1, T Documents, T 6, pages 45-50, letter from Authorised Review Officer to Mr Herzog, dated 23 June 2015, with notes.

20. Mr Herzog then applied for a review of the ARO’s decision by the SSCSD.

21. Prior to the SSCSD hearing, two additional pieces of medical evidence were produced, being a report from a psychiatrist, Dr Caleb Armstrong[11] (to whom Dr Barnes had referred Mr Herzog), and a Medical Certificate by Dr Barnes.

    [11] Exhibit 1, T Documents, T 22, pages 161-163, medical report of Dr Caleb Armstrong dated 13 July 2015.

22. Dr Armstrong reported Mr Herzog’s psychiatric history. In particular, Mr Herzog told him that he had not been on any treatment for more than 25 years. Apart from consulting a psychiatrist who confirmed that he was fit to proceed with chemotherapy for his Hodgkin’s Lymphoma, he had not seen a psychiatrist for more than 25 years. Mr Herzog told Dr Armstrong that he sometimes has negative thoughts but is able to deal with them, although he did not go into detail. He reported that his mood was reasonably good but that he had to work on it to maintain it; he said that he is able to enjoy things. Dr Armstrong observed Mr Herzog to be alert and orientated, pleasant and cooperative. However, his form of thought was “somewhat meandering and indirect” and best described as being “circumstantial rather than consisting of loosening of associations”. The flow was normal. Mr Herzog’s thought content revealed no suicidal ideation, no delusions and no hallucinations. He was positive and future focused. He did not seem to think of his mental illness as a major part of his personal history.

23. Dr Armstrong observed that while Mr Herzog had significant symptoms of Schizophrenia in the 1970s and 1980s, more recently he had been coping well with life and did not require any medication for more than 25 years. He thought that Mr Herzog was currently symptom free and able to conduct himself within a normal framework of life. Dr Armstrong concluded that there did not appear to be any current major mental health concerns. In particular, he did not consider that Mr Herzog was suffering with Schizophrenia.

24. Dr Barnes’ Medical Certificate was dated 30 July 2015.[12] It referred only to Mr Herzog’s mental health condition, confirming a diagnosis of “previous psychotic illness”. She described the symptoms as follows:

    He was treated long term for this as a young man. Currently he has no classic symptoms of psychosis but he has developed some behaviour characteristics that would make it difficult for him to work in a main stream employment – eg he goes off on a tangent during conversations, concentration is a problem.

    [12] Exhibit 1, T Documents, T 23, page 164, Medical Certificate of Dr Lynne Barnes dated 30 July 2015.

25. The SSCSD concluded that, notwithstanding a past diagnosis of Schizophrenia, the weight of psychiatric evidence suggested there was no current psychiatric impairment. It found that Ischaemic heart disease was fully diagnosed, treated and stabilised and that it caused a mild impairment (five points). It therefore found that Mr Herzog had less than 20 impairment points and did not qualify for DSP. Accordingly, it affirmed the decision to cancel his DSP.[13]

    [13] Exhibit 1, T Documents, T 2, page 8, Social Services and Child Support Division (“SSCSD”) decision and reasons for decision dated 4 September 2015, [16].

26. Before I address the issues raised by the application for review of the SSCSD’s decision, it is useful to highlight the key legislative provisions that require consideration.

    THE LEGISLATIVE FRAMEWORK

27. Under s 80 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.[14] In this case, that is 29 May 2015. It is irrelevant that a person may later again fulfil the requirements for a grant.[15]

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

    [15] See Freeman v Secretary, Department of Social Security [1988] FCA 294, [12].

28. 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.

29. The documents relating to the review of Mr Herzog’s eligibility for indefinite portability of DSP constituted a notice under s 63(2) of the Administration Act.[16] Under s 27(3) of the 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.[17] At that time (9 October 2014), 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 Herzog’s original grant of DSP and subsequent reviews had been assessed under different requirements.

    [16] Exhibit 1, T Documents, T 17, pages 130 -133, Medical Report (Disability Support Pension – Review of Portability) dated 9 October 2014.

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

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

31. 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.[18] 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 more likely than not, in light of available evidence, to persist for more than two years.[19]

    [18] See s 6(3) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“2011 Determination”).

    [19] See s 6(4) of the 2011 Determination.

    ISSUES FOR THE TRIBUNAL

32. The Secretary accepts that Mr Herzog suffers from an impairment and that therefore, the first requirement in s 94(1)(a) of the Act is satisfied.[20] Having regard to the evidence before me, I agree with, and accept, that submission.

    [20] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 17 May 2016, [46].

33. Consequently, the central issue which falls for my consideration in determining whether Mr Herzog qualified for DSP on 29 May 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 Herzog have 20 points or more under the Impairment Tables?

    Ischaemic heart disease

34. Having regard to Dr Barnes’ evidence, there is no dispute that this condition was fully diagnosed, treated and stabilised at the date of cancellation.[21]

    [21] See also ibid, [47].

35. As to the impairment rating, the Secretary agrees with the JCA, the ARO and the SSCSD and submits that five points should be assigned under Table 1 (Functions requiring Physical Exertion and Stamina).[22]

    [22] Ibid, [48].

36. Mr Herzog told the JCA that he experiences occasional symptoms of mild shortness of breath when performing physically demanding activities. However, he said that he was able to perform most work related tasks, other than tasks involving heavy manual labour, such as digging, and carrying or moving heavy objects.[23] In her report, Dr Barnes noted that this condition had reduced Mr Herzog’s ability to lift and carry things. She told the HPAU assessor that the condition had a mild functional impact on Mr Herzog, confirming that he does not experience cardiac pain, but will experience shortness of breath with prolonged activity.[24] Dr Barnes also confirmed in her evidence to the SSCSD that the impact of the condition was mild.[25]

    [23] Exhibit 1, T Documents, T 21, page 157, JCA report dated 25 May 2015.

    [24] Exhibit 1, T Documents, T 20, page 154, HPAU Opinion-1998 dated 11 May 2015.

    [25] Exhibit 1, T Documents, T 2, page 7, Social Services and Child Support Division decision and reasons for decision dated 4 September 2015, [14].

37. At the hearing, Mr Herzog told me that he sometimes experiences tinges in the chest. He said that he suffers from shortness of breath more regularly and not just when he undertakes prolonged activity. However, that self-report was not corroborated by the medical evidence.[26]

    [26] See 2011 Determination, s 8(1) and Introduction to Table1 (Functions requiring Physical Exertion and Stamina).

38. Based on the corroborated evidence, I think that Mr Herzog meets descriptors (1)(a)(ii) and (b) for mild functional impact under Table 1. I therefore consider that five points should be assigned in respect of this impairment.

    Schizophrenia

39. There is no dispute that Mr Herzog suffered from a mental health condition earlier in his life. However, for present purposes, the relevant period I have to consider is the date of cancellation of his DSP.

40. Dr Barnes’ report of October 2014 nominated Schizophrenia as a condition having a significant impact on Mr Herzog’s ability to function. She referred to a diagnosis by a psychiatrist, Dr Richard Perkins, in 1979, but did not have any of the historical psychiatric medical records. She therefore referred Mr Herzog to the psychiatrist, Dr Caleb Armstrong, who concluded in his report of 13 July 2015 that Mr Herzog did not have any current major mental health concerns. Dr Barnes subsequently provided a Medical Certificate, referring to a diagnosis of “previous psychotic illness”.

41. She also referred Mr Herzog to another psychiatrist, Dr Keith Muir, for a second opinion. Dr Muir expressed the view that Mr Herzog had “residual Schizophrenic illness” and that he “certainly is not capable of holding any meaningful employment”.[27]

    [27] Exhibit 2, Attachment A to Secretary’s Statement of Facts, Issues and Contentions dated 17 May 2016, medical report of Dr Keith Muir dated 9 March 2016.

42. At the hearing, a further report was produced from a third psychiatrist, Dr Gavin Cape.[28] He referred to the difference of opinion between Dr Armstrong and Dr Muir and indicated that he agreed with the latter, that Mr Herzog has a “diagnosis of schizophrenia with multiple past episodes and currently in partial remission” He went on to also express the view that Mr Herzog “would be incapable of holding down meaningful employment”.

    [28] Exhibit 3, medical report of Dr Gavin Cape dated 13 May 2016.

43. Dr Barnes gave evidence at the hearing. She confirmed that Mr Herzog first attended her practice in 2005, and that she had been personally treating him since 2010. She said there was nothing on his file concerning a history of Schizophrenia, and that the “penny dropped” about the time of cancellation of his DSP. Asked if she put in place any arrangements at the time to treat Mr Herzog for the condition, she said that she had not considered that he required medication, although she did refer him to Dr Armstrong. She did not subsequently speak to Dr Armstrong about Mr Herzog’s mental health condition (which is understandable, in light of Dr Armstrong’s opinion). Dr Barnes confirmed that after receiving Dr Armstrong’s report, she referred Mr Herzog to Dr Muir, as she wanted a second opinion. She was asked whether she had since spoken with Dr Muir about treatment of Mr Herzog’s condition, but said that she did not think that Dr Muir thought it was necessary to do anything because of the degree of illness. She said that “they all thought” that Mr Herzog had managed with it because he was not being forced to go to work. Asked whether Mr Herzog would find it easier to return to work if he were on medication, Dr Barnes said that neither psychiatrist (presumably meaning Dr Muir and Dr Cape) had offered medication or said anything about it. Nor was Cognitive Behaviour Therapy suggested. In fact, there had been no discussion about how to progress treatment; she thought that Mr Herzog had managed to live his life “not too badly”. In response to the question as to what she intended to do about future treatment, Dr Barnes said that the psychiatrists had offered for Mr Herzog to come back and see them. Dr Muir was on a long sabbatical and she had not spoken at all to Dr Cape. She did not know whether he had followed up Mr Herzog.

1. At the hearing, Mr Herzog explained that he had stopped taking medication as part of a self-help program developed by Dr Patrick McGorry to reduce drug dependence. He also had the support of some doctor friends. Mr Herzog gave evidence that in the last few months he had been attending a mental health unit. In particular, he had seen Dr Cape on two further occasions since he had his initial consultation (which Dr Cape said was 10 May 2016). Asked whether there had been any discussion about a treatment program or a mental health plan, he said that he and the doctor had been beginning to make plans when Dr Cape went on leave. Mr Herzog thought that was about a month before the hearing. He plans to go back to see Dr Cape. Mr Herzog also said that since about October/November 2015, he had attended on 10 to 12 occasions a group called MACCS,[29] which offers a range of counselling and other services. In about the same period, he had made a similar number of visits to a men’s behaviour group that focuses on domestic violence issues, as well as attending sessions with Relationships Australia. He said that those various groups had been “helpful”.

   [29] From my inquiries, I understand this is the Macquarie Centre for Cognitive Science.

2. As none of the psychiatrists were called to give evidence at the hearing, it is not possible for me to resolve the difference of opinion between Dr Armstrong on the one hand and Drs Muir and Cape on the other. For present purposes, however, that is not necessary. If Dr Armstrong’s diagnosis is correct, there is no impairment. If, however, the diagnoses of Dr Muir and Dr Cape are correct, the focus inevitably turns to whether Mr Herzog’s condition was fully treated and stabilised at the date of cancellation. I discuss that further below.

3. A number of matters are indisputable. While Mr Herzog was first diagnosed with Schizophrenia in 1979 and underwent treatment for several years following, it is apparent that he was not receiving treatment at the date of cancellation and, indeed, had not received any treatment for many years prior. Dr Barnes noted that treatment with major tranquillisers had stopped by the early 1980s and that Mr Herzog was managing his symptoms by “simplifying his life and finding a social network of people who accept his behaviour”. He was said to have “considerable insight” into his symptoms. Dr Armstrong recorded that Mr Herzog had effectively not seen a psychiatrist in 25 years. Significantly, when the “penny dropped” for Dr Barnes that Mr Herzog’s DSP could be cancelled, she referred him to Dr Armstrong and later sought a second opinion from Dr Muir.

4. Despite their diagnoses that Mr Herzog was suffering from a form of Schizophrenia, neither Dr Muir nor Dr Cape made any references in their reports to current or future treatment (although Dr Muir did note that Mr Herzog had “some support groups in town and … is still involved with a men’s group”). There was no discussion with the referring general practitioner, Dr Barnes, as to any planned treatment. Indeed, she was unaware as to whether Mr Herzog had further consultations with the psychiatrists.

5. Significantly, since his initial consultation with Dr Cape in May this year, Mr Herzog has had two further consultations with him. On my calculations (and taking into account Dr Cape’s leave), that equates to three consultations in less than two months. Before Dr Cape went on leave relatively recently, Mr Herzog said they were beginning to make a plan for treatment; he intends to return to Dr Cape. Presumably, a plan will then be agreed and put in place. Mr Herzog also revealed that since October/November last year, he has attended some 10 to 12 sessions with MACCS and about the same number of meetings with a men’s behaviour group over the same period.

6. What those undisputed matters confirm is that Mr Herzog’s condition was not being treated at the date of cancellation. The various steps reported by Mr Herzog came some months after that date and are still ongoing. A treatment plan is still being developed over a year after the date of cancellation. Those matters are clear indicators that at the relevant time, the condition was not fully treated and fully stabilised. I therefore do not think that any impairment rating can be assigned to this impairment.

7. Even if, contrary to my view, Mr Herzog’s condition were fully diagnosed, treated and stabilised at the date of cancellation such that impairment ratings could be assigned, I do not think that his impairment would be rated any higher than mild. Of the six descriptors used for assessing impairments under Table 5 (Mental Health Function), I believe that the functional impact for the majority would be considered mild.

8. As to self-care and independent living, Mr Herzog provided care for his partner for many years.[30] There is nothing to suggest that he required support or assistance to look after himself. Dr Armstrong noted that he worked three to five hours per week for a bush bus company. He observed that Mr Herzog presented as a kempt man whose appearance was consistent with his age; he had an awareness of looking after himself.[31] I therefore consider that, at its highest, he had a mild impairment under this descriptor.

   [30] Exhibit 1, T Documents, T 21, page 159, JCA report dated 25 May 2015.

   [31] Exhibit 1, T Documents, T 22, page 162, medical report of Dr Caleb Armstrong dated 13 July 2015.

9. With regard to the social/recreational activities and travel descriptor, Mr Herzog enjoys the work he does with the bush bus company, helping ensure that Aboriginal people are understood and that there are fewer cultural misunderstandings.[32] He has also travelled extensively, with 18 overseas trips between 2007 and 2015. The most recent was from 23 March 2015 to 3 May 2015, less than a month before the date of cancellation.[33] I therefore think that he has at most a mild impairment under this descriptor.

   [32] Ibid.

   [33] Exhibit 1, T Documents, T 9, page 84, Immigration Advised Movements.

10. His impairment under the interpersonal relationships descriptor is, I think, at best mild. While Mr Herzog experienced a recent marriage breakdown, he spent many years caring for his partner before she went into a care facility. Although Dr Cape stated that Mr Herzog appeared unable to achieve his expected level of interpersonal, academic or occupational functioning,[34] Dr Barnes observed that he had found a social network of people who would accept his behaviour.[35] Dr Muir also spoke of his having support groups in town,[36] while Dr Armstrong observed that Mr Herzog had no strong beliefs that clashed with other people and that he was able to conduct himself within a normal framework of life.[37] For his own part, Mr Herzog described his network as the “beautiful people” who have helped him over time.

    [34] Exhibit 3, medical report of Dr Gavin Cape dated 13 May 2016.

    [35] Exhibit 1, T documents, T 18, page 137, Medical Report (Disability Support Pension Review for Portability) of Dr Lynne Barnes dated 20 October 2014.

    [36] Exhibit 2, Attachment A to Secretary’s Statement of Facts, Issues and Contentions dated 17 May 2016, medical report of Dr Keith Muir dated 9 March 2016.

    [37] Exhibit 1, T Documents, T 22, page 162, medical report of Dr Caleb Armstrong dated13 July 2015.

11. While the evidence supports the conclusion that Mr Herzog’s concentration and task completion is impaired, I am also conscious of his ability to arrange, and undertake, what has been extensive overseas travel and to attend various appointments and meetings with doctors and support groups, as well as perform his (admittedly limited) work with the bush bus company. I therefore consider that his impairment under this descriptor would, at its highest, be moderate.

12. In relation to the descriptor concerning behaviour, planning and decision-making, I note that Dr Armstrong found Mr Herzog was alert and orientated, pleasant and cooperative, even though his form of thought was somewhat meandering and indirect.[38] Dr Muir commented that he was circumstantial in his thinking and found it very hard to get to the point. Mr Herzog acknowledged some auditory hallucinations, but told Dr Muir that he had learned to “manage them and manage (his) mind” as best he can.[39] While noting vagueness and lack of coherence in the content of Mr Herzog’s speech, Dr Cape found no evidence of perceptual abnormality or of delusional thinking.[40] Considering those remarks and Mr Herzog’s obvious capacity to plan and undertake overseas travel, I believe that the impairment under this descriptor would be no more than mild.

    [38] Ibid.

    [39] Exhibit 2, Attachment A to Secretary’s Statement of Facts, Issues and Contentions dated 17 May 2016, medical report of Dr Keith Muir dated 9 March 2016.

    [40] Exhibit 3, medical report of Dr Gavin Cape dated 13 May 2016.

13. Finally, in relation to work/training capacity, both Dr Muir and Dr Cape concluded that Mr Herzog would be incapable of holding down meaningful employment. Dr Barnes did not consider he was able to “work enough to support himself”, suggesting the possibility that he might be able to work at least to some degree.[41] However, at the hearing, Dr Barnes said that she thought Mr Herzog’s impairment for this descriptor would be moderate to severe. In particular, she was concerned that he might not attend work on time, or at all, and would need a lot of time to have things explained to him. That is at odds with his experience with the bush bus company and with his proven ability to attend various appointments and support sessions, as well as with his history as an experienced overseas traveller. The JCA considered that Mr Herzog had a baseline work capacity of eight to 14 hours per week and may have episodic fluctuations and benefit from a supportive workplace environment.[42] Mr Herzog also told the JCA that he would like to study, but was uncertain in which field.[43] Having regard to all those matters, I think that the impairment in respect of this descriptor would be moderate.

    [41] Exhibit 2, Attachment A to Secretary’s Statement of Facts, Issues and Contentions dated 17 May 2016, covering letter from Dr Lynne Barnes dated 31 March 2016 (my emphasis added).

    [42] Exhibit 1, T Documents, T 21, page 158, JCA report dated 25 May 2015.

    [43] Ibid, page 159.

14. Of the six descriptors for Mental Health Function, I would rate the majority of Mr Herzog’s impairments as at most mild. Therefore, even if (contrary to my view) Mr Herzog’s Schizophrenia condition were fully treated and stabilised and could attract an impairment rating, I would assign five points in respect of it.

    Rheumatoid Arthritis and Hodgkin’s Lymphoma

15. Dr Barnes’ report of October 2014 said that Mr Herzog’s Hodgkin’s Lymphoma was in remission and that therefore , this condition was generally well managed and had limited or minimal impact on ability to function.

16. Similarly, Dr Barnes told the HPAU assessor that Reiter’s syndrome was no longer a current condition.

17. In those circumstances, I do not consider that either condition would attract more than zero points.

    Summary - impairment rating

18. It follows from what I have said that Mr Herzog’s impairments attract five points, being under Table 1 (Functions requiring Physical Exertion and Stamina).

19. As Mr Herzog did not have 20 points or more, he did not qualify for DSP at the relevant time.

    Does Mr Herzog have a continuing inability to work?

20. In light of my conclusion as to Mr Herzog’s impairment rating, it is not necessary for me to address this question.

    CONCLUSION

21. To summarise, I do not consider that Mr Herzog had a rating of 20 points or more under the Impairment Tables at the time of cancellation. I therefore consider that he did not qualify for DSP at the relevant time. As a result, the decision to cancel his DSP was correct.

22. Accordingly, the decision under review is affirmed.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

....................[Sgd]....................................................

Associate

Dated 16 August 2016

Date of hearing	3 August 2016
Applicant	By Phone
Solicitors for the Respondent	Department of Human Services