Holdsworth; Secretary, Department of Social Services (Social services second review)

[2017] AATA 446

Holdsworth; Secretary, Department of Social Services (Social services second review) [2017] AATA 446 (7 April 2017)

Division:GENERAL DIVISION

File Number:           2016/1343

Re:Secretary, Department of Social Services

APPLICANT

James HoldsworthAnd  

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:7 April 2017

Place:Adelaide

The decision under review is set aside.  In substitution, it is found that Mr Holdsworth was not qualified for the disability support pension as at the date of cancellation.

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

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension – cancellation of existing payment - medical review – respondent did not qualify for DSP as at the date of cancellation – decision under review set aside.

LEGISLATION

Social Security Act 1991(Cth), s 94

Social Security (Administration) Act 1999

CASES

McDonald v Director-General of Social Security [1984] FCA 57

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

Re Conaghan and Secretary, Department of Social Services (Social services second review) [2017] AATA 64

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

7 April 2017

INTRODUCTION

1. Mr Holdsworth was granted the disability support pension (DSP) on 23 March 2009.  In June 2015, Centrelink commenced a medical review and decided on 18 August 2015 that Mr Holdsworth no longer qualified for the DSP.  He sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to cancel the DSP.  The ARO concluded that Mr Holdsworth’s conditions of depression and anxiety, and chronic fatigue syndrome were not fully treated and stabilised while conditions of hypothyroidism and testosterone deficiency did not attract any impairment ratings under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The ARO considered that Mr Holdsworth had a work capacity of more than 15 hours per week.

2. Mr Holdsworth applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of Centrelink’s decision.  His application succeeded.  On 8 February 2016 the AAT1 set aside the decision under review to cancel Mr Holdsworth’s DSP and substituted a decision that the payment is not cancelled.  The AAT1 was satisfied that Mr Holdsworth’s chronic fatigue syndrome and anxiety and depression are conditions of long standing that have been reasonably treated.  The AAT1 concluded that there is no evidence that would support a finding that improvement is likely to enable Mr Holdsworth to work for 15 hours per week within 2 years. 

3. The Secretary requested a second review of the decision by the general division of the Administrative Appeals Tribunal (AAT2).

4. The hearing took place on 27 January 2017.  Mr Holdsworth was represented by Ms M Riley, Welfare Rights Centre (SA) and gave evidence.  The Secretary was represented by Ms L Odgers, Department of Human Services.  The Secretary called oral evidence from Dr D Kutlaca and Dr G Tschirn.  The Tribunal received in evidence as exhibits various medical and associated reports, Centrelink reports and documents.

   LEGISLATION AND ISSUES

5. The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP. Section 94(1) of the Act provides that an applicant must have:

   ·a physical, intellectual or psychiatric impairment;

   ·an impairment of 20 points or more under the Impairment Tables; and

   ·a continuing inability to work.

6. Under s 94(2) of the Act a person is regarded as having a “continuing inability to work” if:

   ·they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   ·they have actively participated in a “program of support”.

   The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

7. Under s 80 of the Social Security (Administration) Act 1999 (Administration Act) the Secretary may determine that a social security payment should be cancelled or suspended for a person who is not or was not qualified for the payment.

8. Under s 63 of the Administration Act the Secretary may require a person who is receiving a social security payment to undergo a medical examination.  A notice under s 63 of the Administration Act was given to Mr Holdsworth.  He was examined by a general medical practitioner Dr C Dobson and a report dated 15 July 2015 was provided. 

9. The Secretary subsequently made a determination under s 80 of the Administration Act to cancel Mr Holdsworth’s DSP. In making that decision the Secretary was required by s 27(3) of the Act to apply the Impairment Tables in force as at the date of the assessment notice that was given to Mr Holdsworth. The notice was dated 26 June 2015.

10. Mr Holdsworth had been granted the DSP under qualification criteria that were different from the qualification criteria in force from 1 January 2012 when the Act was amended.  From 1 January 2012 the qualification for DSP is assessed using a new version of the Impairment Tables.

11. The Secretary contended that the AAT1 applied the incorrect test in assessing whether Mr Holdsworth was or was not qualified for DSP at the date of cancellation by failing to positively determine whether his impairment was of 20 points under the Impairment Tables and whether he had a continuing inability to work.  The AAT1 did not proceed to assign points under the relevant Impairment Tables.

12. In the statement of facts and contentions before this Tribunal, the Secretary accepted that Mr Holdsworth suffered from impairments arising from depression and anxiety, chronic fatigue syndrome, hypothyroidism and testosterone deficiency and therefore met paragraph s 94(1)(a) of the Act. The Secretary contended that the impairment arising from depression and anxiety was fully diagnosed, treated and stabilised as at the date of cancellation and rated 5 points under Impairment Table 5 (Mental health function). The Secretary contended that the chronic fatigue syndrome was fully diagnosed, treated and stabilised at the date of cancellation and rating 10 points under Impairment Table 1 (Functions requiring physical exertion or stamina). The Secretary accepted that Mr Holdsworth’s conditions of hypothyroidism and testosterone deficiency were fully diagnosed, treated and fully stabilised at the date of cancellation and any functional impact from these conditions were adequately assessed under Impairment Table 1 and did not require a further rating. Accordingly with an overall impairment rating of 15 points the Secretary submitted that Mr Holdsworth did not satisfy s 94(1)(b) of the Act. Furthermore the Secretary contended that Mr Holdsworth did not have a continuing inability to work as required by s 94(1)(c) of the Act.

13. In his statement of facts and contentions, Mr Holdsworth submitted that his conditions and the resultant effect on his ability to function were in evidence for some years prior to the DSP cancellation and that the Secretary failed to accept the appropriateness of his treatment at the time of cancellation. Mr Holdsworth claimed that he met s 94(1)(a) of the Act, that the functional impact of his conditions rate at least 20 impairment points, and, that he had a continuing inability to work as at the date of the DSP cancellation.

14. Also in his statement of facts and contention, Mr Holdsworth referred to the decision of the Federal Court in McDonald v Director-General of Social Security[1] and asserted that the Secretary must be positively satisfied that either the recipient is not qualified or the payment is not payable. 

    [1] [1984] FCA 57.

    EVIDENCE OF MR HOLDSWORTH

15. Mr Holdsworth is 32 years old.  He resides with his partner and their young son.  Mr Holdsworth obtained a Batchelor of Visual Arts in 2012 after commencing studies several years previously.  Between 2002 and 2007 he worked intermittently as a retail sales assistant and as a store man.  Currently he works as a self employed visual artist for six to eight hours per week. 

16. Mr Holdsworth gave evidence to the Tribunal about the effects of his anxiety and depression, chronic fatigue and hypothyroidism.

17. Mr Holdsworth told the Tribunal that he resides in rented accommodation with his partner and their son aged 2 years and 2 months.  He described the difficulties which he had experienced since 2002 with chronic fatigue and anxiety and depression.  He said that the difficulties manifested themselves after a trip that he made to India in 2001.  At that time he was still at school and features of his condition included despair and disorganisation.  By and by he has become better at managing his symptoms and difficulties.  Strategies such as cognitive behavioural therapy and maintaining a healthy diet have assisted.  He was granted the DSP in March 2009.  By the time of the cancellation of the DSP in August 2015 his life had changed considerably since the onset of the health problems in 2002.

18. Mr Holdsworth gave evidence about his routines and lifestyle in mid 2015 when the DSP was cancelled.  A substantial portion of his time and energy was devoted to domestic duties, participation in family life and contributing to the care and upbringing of his son.  During the course of domestic duties at home he tired quite easily and felt the effect of tiredness particularly in the late morning and mid afternoon.  He said that he was forgetful, unduly slow and disorganised, with a sensation of “fogginess of the brain”.  He drove a car.  He goes to the shopping centre with his son but forgets the things he is meant to buy.  He mowed the lawn.  He helped with the cleaning and washing clothes.  However everything takes time and effort and he said that he felt fatigued after any type of activity.  He was and still is depressed by the fact that he has low energy and excessive tiredness.  His social life has been somewhat restricted.  Visiting friends and family tires him and can cause anxiety before and during a social event.  The birth of his son brought about a sense of depression and in early 2015 he described himself as profoundly negative, tired, despairing and worried.

19. Mr Holdsworth completed a Batchelor of Visual Arts, a four year degree in 2012.  He studied for about eight years before finally completing the degree.  He has been working for about six to eight hours per week as an artist.  He said that the work requires a level of consistency, application and a methodical approach.  His partner is also an artist.  In his words, they are “emerging artists.”  They rent an art studio in the suburbs where they work.  At times he also does his artwork at home.  At the time of the DSP cancellation they rented a different studio in the city.  In 2016 Mr Holdsworth participated in two exhibitions.  Some of his paintings are available for viewing on his website.  Sometimes he works from home on aspects of his art work.  He also accesses a computer at home.  He also worked in a casual capacity cleaning bricks.  He stopped that work because he was increasingly miserable and he reached a low point of depression doing that work.  He has not received psychiatric treatment

20. Sleeping has been problematic for Mr Holdsworth with difficulties trying to feel refreshed after a night’s sleep.  He does not take sleeping tablets and would only use them as a last resort.  He acknowledged that there is some tension in the family arising out of his disorganisation and tiredness

    IMPAIRMENT TABLES

21. The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  That document also contains the Rules for the application of the Impairment Tables. 

22. In Re Ulukut and Secretary, Department of Social Services[2], Senior Member Isenberg explained the operation of the Impairment Tables in this way at [5-6]:

    …  The Tables are function-based and describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impairment.  Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination.  A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    The Tables may only be applied after the person’s medical history has been considered.  An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination. …

    [2] [2014] AATA 399.

23. Section 6(5) of the Rules for applying the Impairment Tables (the Rules) provides that a decision whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition and whether treatment is continuing or is planned in the next two years. 

24. Section 6(6) of the Rules states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment in unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

25. Section 10(1) of the Rules sets out the steps for selecting the applicable Table as follows:

    (a)identify the loss of function; then

    (b)refer to the Table related to the function affected, then

    (c)identify the correct impairment rating.

26. Section 10(2) of the Rules requires that the table specific to the area of function affected must be applied, unless the instructions in a table specify otherwise, and section 10(3) requires that where a single condition causes multiple impairments, each impairment should be addressed under the relevant table.  Under section 10(5) where two or more conditions cause a common impairment, a single rating should be assigned in relation to that common or combined impairment under a single table.

27. Guidelines to the Rules for Applying the Impairment Tables were received in evidence.  The Guidelines include information about rating multiple impairments that result from a single condition, pointing out that the number of conditions does not necessarily correspond with the number of impairments.  For example, a single medical condition could have several functional impairments that attract ratings from more than one Impairment Table.  In relation to rating a common or combined impairment, which result from multiple conditions, the Guidelines state: [3]

    Rating a common/combined impairment resulting from multiple conditions

    Two or more medical conditions may result in a common impairment. Because the Tables are function-based and not condition-based, where this occurs, only one relevant Table should be applied and a single impairment rating assigned to reflect the combined impairment. It would be inappropriate to assign a separate impairment rating for each medical condition as this would result in the same impairment being assessed more than once (double counting).

    Note:  Double counting is not allowed and must be avoided.

    Example 1:- The presence of both heart disease and chronic lung disease may each contribute to difficulties a person may have with breathing and to reduced effort tolerance. The overall loss of function however, is a common and combined effect of the 2 conditions that impact on function requiring physical exertion and stamina. Therefore, to avoid double counting, only one impairment rating should be assigned using Table 1 – Functions requiring Physical Exertion and Stamina.

    Example 2:- A person diagnosed with peripheral vascular disease suffers from calf pain on walking a certain distance (intermittent claudication) and also suffers significant right knee symptoms due to osteoarthritis. There is also permanent impairment from chronic ligamentous instability affecting the left ankle. Although the person suffers from 3 distinct medical conditions affecting both legs, it would be inappropriate to apply 3 separate impairment ratings as the conditions all result in the same impairment affecting lower limb function. In this case, only one rating from Table 2 – Lower Limb Function should be applied.

    [3] Exhibit 6, Guidelines to the Rules for Applying the Impairment Tables, [3.6.3.05].

    Job Capacity Assessment Reports

28. A Job Capacity Assessment (JCA) report with a submit date of 17 August 2015 recorded Mr Holdsworth’s base line work capacity at 15-22 hours per week.  Capacity for work within two years with intervention was postulated at 23-29 hours per week noting that work capacity may increase with disability specific support.  Suitable work would be light skilled employment.  The report followed a face to face assessment on 6 August 2015.  Mr Holdsworth was then working 8 hours per week (on one day) cleaning bricks which involved removing concrete with a claw hammer and stacking the bricks on a pallet.  He had also worked at his rented arts studio as a trader in visual art.  The JCA report stated that it was likely that Mr Holdsworth was capable of part time work, noting that he may have difficulties sustaining a labouring job because of fatigue.  The report indicated that Mr Holdsworth had worked as a storeman in 2007 and earlier as a checkout operator for two years. 

29. A later JCA report dated 7 October 2015 confirmed the findings of the previous JCA report and concluded there was a capacity for work within two years with disability specific intervention of 23-29 hours per week. 

    CONSIDERATION

30. The applicable impairment rating, if any, for each of Mr Holdsworth's conditions will be considered in turn by reference to the Impairment Tables.  The Tribunal accepts the Secretary’s contention that it is necessary to assign an impairment rating to each of Mr Holdsworth’s conditions.  

31. In Conaghan and Secretary, Department of Social Services (Social services second review) [2017] AATA 64 the Tribunal, comprising Senior Member Sosso, confirmed in relation to a DSP cancellation at [29-31]:-

    29.     The central question to be determined by the Tribunal is whether the Applicant was qualified for the DSP on the day it was cancelled, namely 15 April 2015 and not at the time the cancellation decision was reviewed by the Tribunal – Freeman v Secretary, Department of Social Security [1988] FCA 294; 19 FCR 342 at [9] per Davies J.

    30.     In reaching its decision the Tribunal is not limited to considering the material that was presented to the original decision-maker. The Tribunal’s mandate is to stand in the shoes of the original decision-maker and consider the matter afresh and in so doing receive such evidence that is relevant and of value, including evidence produced after 15 April 2015 – Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ.

    31.     In particular, the Tribunal is at liberty to admit into evidence and consider medical reports prepared after 15 April 2015 provided that those reports relate to the Applicant’s medical condition at the time the original cancellation decision was made – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.

32. In Conaghan, the Tribunal determined that the correct approach to the DSP cancellation is to assess whether an impairment rating could be assigned to each of the applicants conditions.  As indicated, consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised at the time of the DSP cancellation before determining an impairment rating, as the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating.

    Depression and anxiety

1. Table 5 of the Impairment Tables relates to mental health function.  The introduction to Table 5 states that it is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition and that includes recurrent episodes of mental health impairment.  The introduction to Table 5 also acknowledges that the signs and symptoms of mental health impairment may vary over time and that for mental health conditions that are episodic, the rating that best reflects the person’s overall functional ability is appropriate and needs to take into account the severity, duration and frequency of the episodes or fluctuations.

2. A report by a psychologist, Ms Sperou,[4] focussed on Mr Holdsworth’s depression and anxiety. Features included his lack of organisation, difficulties with sleep, and some problems with appetite, short term memory problem and difficulties with libido. In regards to self-esteem he told Ms Sperou that he felt that he was not doing anything right and he had a sense of under achieving and no sense of satisfaction. Ms Sperou “formulated the impression” that Mr Holdsworth continued to have a major depressive disorder and generalised anxiety disorder. She considered that additional cognitive behavioural therapy would be appropriate to manage his anxiety and his mood while refocusing on constructive rather than self-defeating thought patterns.

   [4] Exhibit 5. Report dated 27 May 2013.

3. In the report referred to previously by Mr Holdsworth’s general medical practitioner, Dr Dobson[5] a diagnosis of depression and anxiety was confirmed with specialist opinion support by a clinical psychologist Mr A Ceniuch.  Dr Dobson referred to symptoms of low mood and energy, fatigue, poor concentration, low motivation, depression and poor sleep.  She wrote that the depression was triggered by chronic fatigue syndrome and low thyroid. 

   [5] Exhibit 1, T14 p 137.

4. In her report to the Department of Human Services dated 28 August 2015[6] Dr Dobson wrote that the anxiety and depression were stable but severe.  Medication was administered, namely Escitalopram (10 mg) with psychological therapy from Mr Ceniuch.  Dr Dobson referred to Mr Holdsworth’s family situation:

   … He has a 9 month old son … but is struggling to participate in family life.  His partner finds his disability difficult to understand and manage and they … have sought relationship counselling in the past.

   [6] Exhibit 1, T18 p 161.

5. A report by Mr Ceniuch,[7] clinical psychologist, dated 11 September 2015 confirmed that Mr Holdsworth’s experience of depression had caused challenges for his adaption to parenthood together with continuing challenges to the maintenance of intimate relationships, social relationships and employment.  Mr Ceniuch wrote that he was working with Mr Holdsworth to manage those symptoms using an approach based around cognitive behavioural therapy in conjunction with anti-depressant medication.  He reported that Mr Holdsworth was receiving treatment of good quality but it was likely his symptoms would persist.

   [7] Exhibit 1, T19 p 162.

6. The Secretary referred Mr Holdsworth to a psychiatrist Dr D Kutlaca for an assessment and Dr Kutlaca provided a report dated 14 June 2016.[8]  Dr Kutlaca is an experienced and well known psychiatrist in Adelaide and qualified in psychiatry in 1985.  He has extensive history in clinical work and medico legal and forensic evaluations.  In this report Dr Kutlaca considered that Mr Holdsworth was perhaps anxious and depressed to a minor extent.  He noted that Mr Holdsworth had not been referred to a psychiatrist for treatment.  He considered that psychiatric or psychological referrals, or anti-depressant trials, would be unlikely to lead to any change.  Dr Kutlaca wrote:-

   It was noted that, whilst he might have done so as a child, Mr Holdsworth stated he had not attended a psychiatrist as an adult; such would be somewhat unusual for an individual with his putative illness issues. He reported minimal benefit from trials of two classes of antidepressant, adverse effects from citalopram and withdrawal effects form each.[9]

   [8] Exhibit 3.

   [9] Exhibit 3, p8.

7. On balance, Dr Kutlaca concluded that Mr Holdsworth’s activities of daily living were from choice.  On mental status examination, Dr Kutlaca concluded that Mr Holdsworth did not present with an obvious sense of sadness, he did not appear to be psychotic and informal cognitive testing indicated verbal functioning within the average to upper range. 

8. The Secretary also referred Mr Holdsworth for assessment by a physician, Dr G Tschirn.  The assessment took place on 14 July 2016.  Dr Tschirn is an experienced physician currently working in private occupational medicine and he is an accredited impairment assessor under Comcare, WorkCover SA and for military personnel.  In his report dated 14 July 2016,[10] Dr Tschirn noted that Mr Holdsworth had been consulting psychologists for some time and had been treated with anti-depressants, including Escitalopram and currently Cymbalta.  Dr Tschirn noted corroborating evidence of psychological involvement and he supported a conclusion that the mental health condition was fully diagnosed, treated and stabilised. 

   [10] Exhibit 4.

9. The Tribunal is satisfied that Mr Holdsworth’s mental health condition was fully diagnosed by a general medical practitioner, Dr Dobson and by a clinical psychologist, Mr Ceniuch.  Next, the Tribunal accepts that the mental health condition was fully treated and stabilised at the date of cancellation. 

10. A mild functional impact on activities involving mental health function attracts 5 points as set out in Impairment Table 5 as follows:

5

There is a mild functional impact on activities involving mental health function.

(1)      The person has mild difficulties with most of the following:

(a)      self care and independent living;

Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

(b)      social/recreational activities and travel;

Example 1: The person is not actively involved when attending social or recreational activities.

Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

(d)      concentration and task completion;

Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.

Example 2: The person has some difficulties completing education or training.

(e)      behaviour, planning and decision-making;

Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.

Example 2: The person has slight difficulties in planning and organising more complex activities.

(f)       work/training capacity.

Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

1. A moderate functional impact  on activities involving mental health function attracts 10 points as set out in Impairment Table 5 as follows:

10

There is a moderate functional impact on activities involving mental health function.

(1)      The person has moderate difficulties with most of the following:

(a)      self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)      social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2:  The person will often refuse to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)      concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)      behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)       work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

1. Considering all of the evidence about Mr Holdsworth's mental health functioning, the descriptors for a mild functional impact are appropriate and accurate.  His difficulties in the life domains specified in sub-paragraphs (a), (b) and (c), correlate with the examples and themes provided by the descriptors for a mild functional impact.  He also has some problems in the area of behaviour, planning and decision-making which have a mild bearing on his organisational skills.

2. The difficulties which Mr Holdsworth experiences in self-care, independent living, social and recreational activities and travel, interpersonal relations, concentration and task completion, behavioural areas, and work/training capacity have a mild impact on him which he finds frustrating and quite difficult to address.  Fortunately, however, he succeeds in maintaining a focus with his family and in his domestic and work activities to a degree which enable him to cope with daily demands of living, though not always at a standard which he holds for himself or assumes that others expect of him.  In turn, he suffers a negative impact on his self-confidence and self-esteem.

3. The Tribunal is satisfied that that Mr Holdsworth had a mild functional impact on activities involving mental health function.  The appropriate rating is 5 points in accordance with the descriptors in Impairment Table 5.

   Brain function

4. For Mr Holdsworth, it was contended that Impairment Table 7, which relates to brain function, should be applied in the assessment of Mr Holdsworth’s functional impairment.  The introduction to Impairment Table 7 refers to neurological or cognitive functions.  Examples of conditions associated with neurological or cognitive impairment are provided in the Introduction to Impairment Table 7.  They include acquired brain injury, stroke, conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders and chronic pain.

5. In the statement of facts and contentions for Mr Holdsworth it was contended that Impairment Table 7 should be applied in the context of Mr Holdsworth’s poor memory, prolonged recovery after physical or mental exertion, poor concentration and some cognitive impairment.  It was noted that Mr Holdsworth had taken eight years to complete a tertiary degree in visual arts.

6. In evidence Dr Tschirn said that Mr Holdsworth did not present with a neurological condition.  In this regard, he considered that the relevant, functional impairment arose out of a psychological issue rather than a neurological issue.  Therefore, it was appropriate to apply Impairment Table 5, and avoid “double counting”.  On consideration of all of the evidence, the Tribunal considers that Dr Tschirn's proposition is correct and that it  would not be appropriate to apply Impairment Table 7

   Chronic fatigue syndrome

7. Impairment Table 1 is used where the person has a permanent condition which results in functional impairment in activities that require physical exertion or stamina.  The Table requires a diagnosis by an appropriately qualified medical practitioner.

8. In October 2002, Mr Holdsworth’s then general medical practitioner Dr D J Mitchell, provided a report in which he described a presumptive diagnosis of chronic fatigue syndrome which featured mood swings, loss of motivation, poor memory, poor sleep, severe daily fatigue, fluctuating moods of anxiety and depression and difficulties waking up in the morning.  Current and past treatment had included medication and it was planned to monitor testosterone levels.[11]

   [11] Exhibit 1 T20 at 164.

9. Some seven years later, in March 2009, Dr Mitchell provided a written report in which he acknowledged a confirmed diagnosis of chronic fatigue syndrome with recurrent exacerbations which caused confinement to bed for days, poor coordination and communication and aggravations following infections, increased physical or mental exertion.  Dr Mitchell wrote that Mr Holdsworth could be “bed-ridden for days”.  He did not consider that Mr Holdsworth was fit to hold a part time job.[12] 

   [12] Exhibit 1, T20 p 189.

10. At the time of the DSP cancellation, Dr Dobson was Mr Holdsworth’s general medical practitioner.  In her report[13] which was provided to the Secretary, she confirmed a diagnosis of chronic fatigue syndrome and queried possible coeliac disease.  Current symptoms were fatigue, difficulty completing physical activity, excessive but poor sleep.

    [13] Exhibit 1, T14 p 137-146.

11. In a report dated 28 August 2015 to the Department of Human Services,[14] Dr Dobson referred to the diagnosis of chronic fatigue syndrome and symptoms of constant tiredness, slow thinking, lack of focus and initiative, exhaustion after physical exertion and waking unrefreshed after excessive sleep.

    [14] Exhibit 1, T18 p 161.

12. Dr R Kwiatek is a consultant physician in musculoskeletal medicine and rheumatology.  In a letter dated 1 February 2016, Dr Kwiatek wrote that Dr Mitchell’s diagnosis of chronic fatigue syndrome was correct.  Dr Kwiatek continued:

    There are no specific treatments for the chronic fatigue syndrome, only the rehabilitation approaches of so-called cognitive behavioural therapy and graded exercise therapy.  These help mildly only a minority of patients and have already been effectively trialled.  In other words reasonable treatment of Mr Holdsworth’s condition has already been trialled and this was the case as at 18^th August, 2015 when his condition was fully diagnosed, fully treated and fully stabilised.[15]

    [15] Exhibit 2, ST2, p 3.

13. Under a GP mental health care plan, Mr Holdsworth was referred to a psychologist Ms J Sperou in 2010 and subsequently in 2013.  She acknowledged the diagnosis of chronic fatigue syndrome originating in 2002.[16]

    [16] Exhibit 5.

14. The psychiatrist, Dr Kutlaca, interviewed Mr Holdsworth on 14 June 2016.  He confirmed that Mr Holdsworth was presently attending his general medical practitioner Dr Dobson at least once each month, while also consulting the rheumatologist, Dr Kwiatek approximately every third month and he was in the process of organising further sessions with the psychologist Mr Ceniuch.  Dr Kutlaca received information from Mr Holdsworth about the chronic fatigue syndrome and the effects on his daily life.  Mr Holdsworth indicated that the chronic fatigue syndrome and the depression feed one another.  Mr Holdsworth told Dr Kutlaca that he suffered post natal depression following the birth of his son in late 2014.  In diagnostic terms, Dr Kutlaca considered that chronic fatigue syndrome remains controversial and there are experts who do not regard it as a valid diagnosis.  In Dr Kutlaca’s opinion:[17]

    … There may be non-organic or non-illness features to individuals who present with so-called chronic fatigue syndrome.  It is a collection of complaints in the absence of identified and validated and highly inter-rater reliable physical pathologys.  In this instance, I consider that there is not an underlying psychogenic cause to his chronic fatigue complaints.

    [17] Exhibit 3, p 9.

15. Dr Kutlaca noted that Mr Holdsworth was able to maintain focus for the ninety minute interview and in that time there was no obvious cognitive impairment or loss of composure.  Dr Kutlaca also wrote that any relevant anxiety and depressive morbidity is not the cause of chronic fatigue that Mr Holdsworth may experience.  In evidence, Dr Kutlaca broadly confirmed the findings and opinions that were set out in his report.  Ideally, for Mr Holdsworth’s sake, Dr Kutlaca considered that there should be further investigations from another rheumatologist, an endocrinologist and an experienced occupational physician.  Those evaluations would assist to provide a complete, organic, clinical database for assessing Mr Holdsworth’s condition.

16. In relation to the chronic fatigue syndrome Dr Tschirn noted in his report that the problems appear to surface after Mr Holdsworth had made a trip to India in 2002.  The difficulties manifested themselves over the following years.  Both in his report, and in giving evidence to the Tribunal, Dr Tschirn was prepared to accept a diagnosis of chronic fatigue syndrome given the corroborating evidence through the assessment by Dr Kwiatek.  However, Dr Tschirn noted that it is a controversial condition and the basis for it medically is unknown.  In his report, Dr Tschirn wrote that chronic fatigue syndrome is essentially a diagnosis of exclusion, when other known causes of fatigue, of which there are many and varied, are eliminated.  In evidence he said he would expect a neurologist not a rheumatologist to make the diagnosis.

17. On balance, the Tribunal accepts that Mr Holdsworth suffered from chronic fatigue syndrome at the date of the cancellation of the DSP.  Dr Kwiatek considered that the condition was fully diagnosed, fully treated and fully stabilised.

    Endocrine

18. In her report dated 15 July 2015, Dr Dobson referred to Mr Holdsworth’s hypothyroidism, testosterone deficiency and possible coeliac disease in the category of other medical conditions that are generally well-managed and which cause minimal or limited impact on ability to function.[18] 

    [18] Exhibit 1, T14.

19. Dr Tschirn wrote about Mr Holdsworth’s conditions in three categories, namely chronic fatigue syndrome, psychological factors and endocrine.  In relation to the condition of endocrine, Dr Tschirn reported that Mr Holdsworth has a history of hypothyroidism for which he has received treatment.  The condition appears to be controlled and stable.  Dr Tschirn went on to say:

    … He has also been treated for androgen deficiency.  It appears his symptoms of fatigue and memory disturbance may be influenced by going off androgen therapy, suggesting that androgen deficiency is a component to his presentation.  In any case, again I think this condition is fully diagnosed, treated and stable.

20. Dr Kwiatek had also noted that Mr Holdsworth’s presentation was complicated by other factors, namely:

    …lifelong non-coeliac gluten sensitivity (an increasingly recognised phenomenon), autoimmune thyroid disease (a proven link at least with the related fibromyalgia syndrome) and anxiety and depression (seemingly commencing coincident to the onset of his chronic fatigue syndrome when on a five week trip to Calcutta in 2002).  The interesting finding of testosterone deficiency has also been complicating the presentation for the last three years, but is presumably coincidental.[19]

    [19] Exhibit 2, ST1, p 1; Report of Dr Kwiatek dated 4 January 2016.

21. Dr Tschirn rated the chronic fatigue syndrome and androgen deficiency together under Impairment Table 1.  As stated previously, the Secretary contended that the combined functional impairment from Mr Holdsworth’s chronic fatigue syndrome and the endocrine condition should be rated under Impairment Table 1.

22. The evidence is not clear about the effects of Mr Holdsworth’s hypothyroidism and endocrine dysfunction on the functions involving physical exertion and stamina.  To the extent that those conditions may contribute to functional impairment in physical exertion and stamina, they are best considered in the assessment of an appropriate rating under Impairment Table 1.  It is the appropriate approach in view of the state of the medical evidence.  The risk of double counting is also avoided.

1. For a mild functional impact on activities requiring physical exertion or stamina, Impairment Table 1 provides the following descriptors:

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)       walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)       performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)      is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

1. For a moderate functional impact on activities requiring physical exertion or stamina, Impairment Table 1 provides the following descriptors:

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

1. Fatigue is the symptom of most relevance in relation to Mr Holdsworth’s impairment of physical activities.  He gave evidence about his domestic tasks, both indoors and outdoors.  He participates actively in those duties.  However, they result in fatigue and the symptoms are best described as frequent, rather than occasional.  Mr Holdsworth is able to manage the shopping at the supermarket.  He performs work-related tasks, which may be described as sedentary or stationary, particularly with his artistic work.  Accordingly, a rating of 10 points under Impairment Table 1 is appropriate for the functional impairment to Mr Holdsworth’s activities requiring physical exertion or stamina.

   SUMMARY

2. The Tribunal finds that s 94(1)(a) of the Act is satisfied in relation to conditions of depression and anxiety, chronic fatigue syndrome, hypothyroidism and testosterone deficiency.

3. As outlined previously, the Tribunal finds that Mr Holdsworth’s mental health condition was fully diagnosed, fully treated and fully stabilised at the cancellation date.  The applicable rating for the mental health function is 5 points.

4. The Tribunal finds that Mr Holdsworth’s conditions of chronic fatigue syndrome, hypothyroidism and testosterone deficiency were fully diagnosed, treated and stabilised at the cancellation date.  Together, the combined functional impact from those conditions rates 10 points under Impairment Table 1.

5. Mr Holdsworth has a total impairment rating as at the date of cancellation of 15 points under the Impairment Tables and does not satisfy s 94(1)(b) of the Act.

6. In those circumstances, it follows that Mr Holdsworth did not have a continuing inability to work as required by s 94(1)(c) of the Act.

   DECISION

7. The decision under review is set aside.  In substitution, it is found that Mr Holdsworth was not qualified for the DSP as at the date of cancellation.

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

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

Administrative Assistant

Dated: 7 April 2017

Date(s) of hearing:	27 January 2017
Advocate for the Applicant:	Ms L-A Odgers
Solicitors for the Applicant:	Dept of Human Services
Advocate for the Respondent:	Ms M Riley
Solicitors for the Respondent:	Welfare Rights (SA) Inc