Al-Najjar and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr Al-Najjar against a decision of the Secretary of the Department of Social Services regarding his eligibility for a Disability Support Pension. The core of the dispute revolved around whether Mr Al-Najjar's medical conditions were permanent and whether these impairments attracted an impairment rating of 20 or more points under the relevant Impairment Tables, as required by the Social Security Act 1991 (Cth). The Administrative Appeals Tribunal was tasked with reviewing the Secretary's decision.

The legal issues before the Tribunal were twofold: firstly, whether Mr Al-Najjar's impairments, specifically a left ankle impairment, left wrist impairment, and sleep apnoea, met the criteria under section 94(1)(a) of the Act during the qualification period. Secondly, and crucially, the Tribunal had to determine if these impairments attracted an impairment rating of 20 or more points under section 94(1)(b) of the Act, which involved assessing whether the conditions were permanent and likely to persist for more than two years.

The Tribunal found that the Secretary conceded that Mr Al-Najjar had impairments satisfying section 94(1)(a) during the qualification period. The Tribunal further concluded that Mr Al-Najjar suffered from a left ankle impairment, left wrist impairment, and sleep apnoea impairment for the purposes of the Act, thus meeting the requirement of section 94(1)(a). However, for conditions such as diabetes, hypocholesterolaemia, and aortic sclerosis, the Tribunal found insufficient medical evidence to determine if they were fully diagnosed, treated, and stabilised, or how they impacted Mr Al-Najjar's functioning. The Tribunal then addressed the assessment of impairment ratings under section 94(1)(b), noting that an impairment rating could only be assigned if the condition causing the impairment was permanent and likely to persist for more than two years. The Determination stipulated that a condition is permanent if it is fully diagnosed, treated, stabilised, and more likely than not to persist for more than two years.