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

This matter concerned an appeal by the Secretary of the Department of Social Services against a decision of the Administrative Appeals Tribunal (AAT) concerning an application for a Disability Support Pension (DSP) by Mr Al-Salem. The core dispute revolved around whether Mr Al-Salem met the criteria for DSP, specifically regarding the severity of his impairments and his continuing inability to work. The case was heard by C Edwardes M.

The legal issues before the Tribunal were whether, at the time of the qualification period, Mr Al-Salem had any physical, intellectual, or psychiatric impairment that attracted a rating of at least 20 points under the Impairment Tables, and if so, whether he had a continuing inability to work as defined by the Social Security Act 1991 (Cth). The Tribunal was required to assess the functional capacity of Mr Al-Salem based on the evidence presented, considering whether his conditions were permanent and likely to persist for more than two years, and whether reported symptoms were corroborated.

The Tribunal considered extensive medical evidence, including reports from psychiatrists and orthopaedic surgeons detailing Mr Al-Salem's post-traumatic stress disorder and a severe, unhealed fracture of his left foot. While some medical professionals opined that his combined impairments could be rated at 20 points and supported his application for DSP, the Tribunal also noted evidence that Mr Al-Salem continued to own and operate a hairdressing business, performing various duties for approximately 40 hours per week. The Tribunal applied the principles that impairments must be assessed based on functional capacity, not chosen activities, and that symptoms require corroborating evidence. The Tribunal found that the evidence regarding his continued business activities cast significant doubt on his claimed inability to work.

Ultimately, the Tribunal set aside the AAT's decision. In substitution, the Tribunal determined that Mr Al-Salem did not qualify for a Disability Support Pension, finding it highly unlikely that his application would have succeeded, irrespective of the impairment point assessment, due to the evidence of his ongoing engagement in business activities.