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

This matter concerned an application for a second review of a decision by the Administrative Appeals Tribunal (AAT) concerning eligibility for a disability support pension (DSP). The applicant, Ms Burmas, sought review of the AAT's decision to affirm the Secretary's decision to reject her claim for DSP. The Secretary contended that Ms Burmas' impairments did not attract the requisite points under the Impairment Tables and that she did not have a continuing inability to work.

The Tribunal was required to determine whether, during the qualification period, Ms Burmas had any physical, intellectual, or psychiatric impairments that attracted a rating of at least 20 points under the Impairment Tables, and if so, whether she had a continuing inability to work as defined by the Social Security Act 1991 (Cth). Specifically, the Tribunal had to consider the applicant's conditions of migraines, fibromyalgia, depression/anxiety, and gastroenterological issues in light of the requirements for diagnosis, treatment, stabilisation, and functional impairment ratings.

The Tribunal applied the principles outlined in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), which stipulate that an impairment can only be allocated if a condition is permanent, meaning fully diagnosed, treated, and stabilised, and likely to persist for more than two years. The Tribunal found that Ms Burmas' migraines were not fully treated or stabilised during the qualification period, as she declined recommended efficacious treatment. Her depression/anxiety was also not fully diagnosed or treated within the relevant period, with a diagnosis only being confirmed by a clinical psychologist outside the qualification period. While her fibromyalgia was conceded as diagnosed, treated, and stabilised, the Secretary contended it attracted only 5 points under the Impairment Tables, based on contemporaneous evidence of her ability to work and maintain daily activities. The Tribunal ultimately found that Ms Burmas had a total of 10 points under the Impairment Tables.

Consequently, as Ms Burmas failed to satisfy the requirement of having impairments attracting a rating of 20 points or more under subsection 94(1)(b) of the Act, the Tribunal did not need to consider whether she had a continuing inability to work. The decision under review was affirmed, meaning Ms Burmas did not qualify for the disability support pension.