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

This matter concerned an appeal by the Secretary, Department of Social Services, regarding a decision to grant a disability support pension (DSP) to the respondent. The core dispute revolved around whether the respondent's spinal and mental health conditions qualified him for the DSP at the date of his application, specifically whether these impairments attracted a rating of 20 points or more under the relevant Impairment Tables and resulted in a continuing inability to work. The case was heard by R. Cameron, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the respondent's physical and psychiatric impairments were fully diagnosed, treated, and stabilised during the qualification period, and whether these impairments attracted a rating of 20 points or more under the Impairment Tables. Crucially, the Tribunal had to determine if these impairments resulted in a continuing inability to work, either independently or within a program of support, or to undertake a training activity for a period of two years subsequent to the qualification period, as required by sections 94(1)(b), 94(2)(a), and 94(2)(b) of the Social Security Act 1991 (Cth).

The Tribunal considered extensive documentary evidence, including medical reports and photographs, as well as the respondent's oral evidence. While the applicant conceded that the respondent met the initial requirement of having a physical, intellectual, or psychiatric impairment during the qualification period under section 94(1)(a) of the Act, the focus shifted to the severity and impact of these impairments. The Tribunal accepted the applicant's contention that the respondent's impairments, despite being diagnosed and treated, were not of a severity that prevented him from doing any work independently of a program of support or undertaking a training activity within the subsequent two years.

Consequently, the Tribunal concluded that the respondent did not satisfy the requirements of sections 94(2)(a) and (b) of the Act. The previous decision of the Administrative Appeals Tribunal was set aside, and the Tribunal determined that the respondent was not qualified to receive the DSP for a claim lodged on 2 February 2016 or within 13 weeks thereafter.