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

The Administrative Appeals Tribunal (AAT) reviewed a decision by the Secretary, Department of Social Services, which affirmed a prior decision not to grant indefinite portability of the applicant's Disability Support Pension (DSP). The applicant sought to receive their DSP while overseas for an unlimited period, a request that had been denied by the Department and subsequently affirmed by the Social Services & Child Support Division of the Tribunal.

The central legal issue before the AAT was whether the applicant met the criteria for indefinite portability of their DSP while outside Australia. Specifically, the Tribunal was required to determine if the applicant had a "severe impairment" as defined by the Social Security Act 1991 (Cth) and associated determinations, which is a condition for unlimited portability. This involved assessing whether the applicant's medical conditions, Osteoarthritis and Chronic Obstructive Airways Disease, resulted in an impairment rating of 20 points or more under a single impairment table, and whether these conditions were permanent and likely to remain so for at least five years, with no future work capacity independent of an ongoing program of support.

The Tribunal considered the evidence, including medical reports and a Job Capacity Assessment. It noted that for indefinite portability, a person must be assessed as having a severe impairment, meaning an impairment rating of 20 points or more under a single impairment table, and that such an impairment must be likely to remain for at least five years with no future work capacity independent of ongoing support. The applicant's conditions of Osteoarthritis and Chronic Obstructive Airways Disease were each assigned a rating of 10 points, falling short of the 20-point threshold for a severe impairment. While the applicant's work capacity was assessed as limited, the Tribunal found that based on the available evidence, the applicant had the capacity to undertake work independently of a program of support within the next five years.

Consequently, the Tribunal affirmed the review decision of 30 June 2020, which had determined that the applicant did not meet the criteria for indefinite portability of their DSP. The applicant's absence from Australia would therefore be limited to the standard 28-day period within a 12-month timeframe.