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

This matter concerned an appeal by Ms Caine against a decision by the Secretary of the Department of Social Services regarding her eligibility for a disability support pension. The central dispute revolved around the appropriate impairment rating for Ms Caine's conditions, specifically fibromyalgia and myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS), under Impairment Table 1 of the Social Security Act 1991 (Cth). The case was heard by Mr S Evans, a Member of the Tribunal.

The legal issues before the Tribunal were whether Ms Caine's conditions resulted in a severe impairment, and specifically, how her ability to perform certain activities, such as using public transport, walking, and performing tasks habitually or repetitively, should be assessed under the Impairment Tables. The Tribunal was required to determine if Ms Caine could perform these activities normally and on a repetitive or habitual basis, or only once or rarely, considering the impact of post-exertion malaise (PEM) on her functional capacity.

The Tribunal reasoned that while Ms Caine could technically perform some of the listed activities, the critical factor was whether she could do so normally and repetitively, as required by the legislation. Applying the principles from relevant case law, including *Root v Secretary, Department of Social Services*, the Tribunal found that Ms Caine's significant post-exertion exhaustion following even minimal activity meant she could not perform these tasks habitually or regularly. The Tribunal was satisfied that Ms Caine met the requirements for a disability support pension.

Consequently, the Tribunal set aside the decision under review and substituted a new determination that Ms Caine satisfied the requirements of section 94 of the Social Security Act 1991 (Cth) and qualified for a disability support pension as at the date of her claim.