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

This matter concerned an appeal by Mr Dernaj against a decision by the Secretary, Department of Social Services, regarding his eligibility for a Disability Support Pension (DSP). Mr Dernaj had not worked since June 2013 due to end-stage renal failure, a condition he was diagnosed with in November 2015. He required regular haemodialysis, which significantly impacted his ability to work. The Secretary was represented by Mr Pietro Nacion.

The primary legal issue before the Tribunal was whether Mr Dernaj met the criteria for a DSP under section 94 of the *Social Security Act 1991*. Specifically, the Tribunal had to determine if Mr Dernaj had a physical impairment that was rated at 20 points or more under the Impairment Tables, and if he had a continuing inability to work, or if the Secretary was satisfied he was participating in the supported wage system. A key aspect of this was whether his impairment qualified as a "severe impairment" under section 94(3B), which requires 20 points or more to be assigned under a single Impairment Table.

The Tribunal considered a Job Capacity Assessment (JCA) which noted that while Mr Dernaj's renal failure was permanent, it was not considered fully treated and stabilised as transplantation remained an option. The JCA estimated his work capacity within two years, with intervention, to be between 15 and 22 hours per week, potentially increasing to over 30 hours with further medical treatment. The Tribunal found a paucity of medical evidence and opinion regarding Mr Dernaj's prognosis during the relevant qualifying period (26 November 2015 to 25 February 2016). Consequently, the Tribunal could not conclude that the requirement for an impairment rating of 20 points had been met.

The Tribunal affirmed the decision under review. It noted that as Mr Dernaj remained on long-term haemodialysis and had not been placed on a renal transplantation waiting list, he had been advised to lodge a new application for a DSP.