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

This matter concerned an application for review of a decision by the Secretary of the Department of Social Services to reject Mark Brassington's application for a Disability Support Pension (DSP) made on 12 October 2017. Although Mr Brassington was subsequently granted DSP on a later application, the Secretary contended that he did not meet the eligibility criteria at the time of the earlier application. The Administrative Appeals Tribunal (AAT) was tasked with determining whether Mr Brassington qualified for DSP in October 2017.

The primary legal issue before the Tribunal was whether Mr Brassington's various medical conditions, including bilateral lower limb compartment syndrome secondary to rhabdomyolysis with secondary loss of nerves and chronic lower back pain, resulted in an impairment rating of 20 points or more under the Impairment Tables, as required by section 94 of the *Social Security Act 1991* (Cth). This section stipulates that a person must have a physical, intellectual, or psychiatric impairment that rates 20 points or more under the Impairment Tables and results in a continuing inability to work.

The Tribunal considered the evidence regarding Mr Brassington's bilateral lower limb compartment syndrome and accepted that this condition was fully diagnosed, treated, and stabilised by October 2017, based on a neurologist's report. This condition qualified Mr Brassington for 10 points under Table 3 of the Impairment Tables. However, the Tribunal found that the corroborating evidence did not indicate that he met any of the 20-point descriptors for this condition, which would require him to be unable to perform certain mobility tasks without assistance. Regarding his chronic lower back pain, the Tribunal noted that while the condition was fully diagnosed, the Secretary argued it was not fully treated and stabilised as Mr Brassington had not exhausted all reasonable conservative rehabilitation options, such as physiotherapy, during the relevant period. Although Mr Brassington commenced exercise physiology less than five weeks before his claim, the Tribunal found that the evidence did not demonstrate he met the criteria for an impairment rating for this condition.

Ultimately, the Tribunal concluded that while it accepted that Mr Brassington suffered from his claimed conditions during the qualification period, he did not meet the statutory requirements for a DSP qualification at that time. Consequently, the decision under review, which affirmed the rejection of his October 2017 application, was affirmed.