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

The applicant, Mr. Farah, sought review of a decision by the Administrative Appeals Tribunal (AAT) that affirmed a rejection of his claim for a Disability Support Pension (DSP). Mr. Farah, a New Zealand citizen residing in Australia, lodged a claim for DSP based on ankylosing spondylitis. The respondent, the Secretary of the Department of Social Services, had rejected the claim on the basis that Mr. Farah was not "severely disabled" as defined by Schedule 3 of the Social Security (International Agreements) Act 1999 (the Agreement Act), as he was assessed as having a work capacity of more than eight hours per week. An Authorised Review Officer and the AAT had previously concluded that Mr. Farah did not meet the requirements for DSP under section 94 of the Social Security Act 1991, including having an impairment rating of 20 points or more or a severe impairment.

The primary legal issue before the Tribunal was whether Mr. Farah satisfied the definition of "severely disabled" under Article 1 of the Agreement Act. This definition requires a person to be "totally unable to work." The Tribunal also considered the applicant's residency status and whether he met the ten-year qualifying Australian residence requirement or a qualifying residence exemption for a disability support pension, as stipulated in section 94(1)(e)(ii) of the Social Security Act.

The Tribunal reasoned that to be considered "severely disabled" under the Agreement Act, Mr. Farah needed to be totally unable to work. The Tribunal had regard to the Job Capacity Assessment (JCA) report, which indicated that Mr. Farah had worked for more than eight hours per week in the recent past. This evidence, according to the Tribunal, demonstrated that he was not totally unable to work, and therefore he did not satisfy the requirements of Schedule 3, Article 1 of the Agreement Act. Consequently, the Tribunal found that Mr. Farah could not satisfy the definition of "severely disabled" as required by the Agreement Act.

As Mr. Farah was required to satisfy the requirements of Article 1 of the Agreement Act and had not done so, the Tribunal affirmed the reviewable decision.