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

This matter concerned an appeal by the applicant against a decision by the Secretary of the Department of Social Services regarding his eligibility for a disability support pension. The central dispute revolved around whether the applicant's impairments met the threshold required under the Social Security legislation, specifically whether they attracted 20 points or more under the relevant Impairment Tables, or alternatively, whether he had actively participated in a program of support. The appeal was heard by Senior Member Bill Stefaniak AM RFD.

The legal issues before the Tribunal were whether the applicant's impairments were fully diagnosed, treated, and stabilised as at the claim period, and if so, whether these impairments attracted 20 points or more under the Impairment Tables. If the applicant did not reach the 20-point threshold, the Tribunal also considered whether he had satisfied the requirement to have actively participated in a program of support for a sufficient duration.

The Tribunal considered evidence from the applicant, his treating doctor, and a representative from a disability support provider. It was noted that the applicant's emphysema, a significant breathing impairment, had not been diagnosed until after the claim period, and therefore could not be allocated points for the purposes of the appeal. The doctor estimated that this condition, had it been diagnosed earlier, would have attracted between 5 and 10 points. Regarding the applicant's back condition, the Tribunal accepted that if it was fully diagnosed, treated, and stabilised as at the claim period, it would warrant 10 points under Table 4 of the Impairment Tables. Evidence indicated that while there was uncertainty about the stabilisation of the back condition at the time, this related to the potential for surgery, which was ultimately not pursued as it was deemed likely to worsen the condition. The Tribunal also found that the applicant had well and truly satisfied the program of support requirement, having completed 883 days between February 2014 and February 2017, exceeding the 546-day requirement within the last three years.

The Tribunal concluded that the applicant's emphysema was not a qualifying impairment for the claim period. However, it found that his back condition, being fully diagnosed and stabilised (as no operation was undertaken), would attract 10 points. Crucially, the Tribunal determined that the applicant had satisfied the program of support requirement. Therefore, the applicant was found to have a continuing inability to work.