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

This matter concerned an application for a disability support pension (DSP) by the applicant, Mr Foenander, against the Secretary of the Department of Social Services. The applicant's claim was based on several conditions, including a mental health condition, spinal issues, right shoulder pain, and cryptogenic organising pneumonitis. The central dispute revolved around whether these conditions constituted a "severe impairment" as defined by the relevant legislation, which was a prerequisite for the applicant to be exempt from undertaking a program of support. The Administrative Appeals Tribunal was tasked with determining these issues.

The primary legal questions before the Tribunal were whether the applicant's claimed impairments could be rated under the Impairment Tables, and if so, whether they attracted a rating of 20 points or more. This assessment was crucial because a rating of 20 points or more would classify the impairment as "severe," thereby exempting the applicant from the requirement to have participated in a program of support. For an impairment to be rated, the Tribunal had to be satisfied that the condition causing it was fully diagnosed, fully treated, and fully stabilised during the qualification period, and was likely to persist for more than two years.

The Tribunal considered the applicant's mental health condition, noting that while it was diagnosed and accepted by the respondent, there was a dispute as to whether it was fully treated and stabilised. Medical evidence indicated that the applicant had trialled various treatments and medications, and his general practitioner assessed that he had exhausted reasonable treatment options with no expected improvement within two years. A consultant psychiatrist also reported that the condition was likely to persist and follow a chronic course, though future treatment adjustments were considered. Despite this, the Tribunal ultimately found that the applicant did not have an impairment that rated 20 points or more under the Impairment Tables, nor did he meet the definition of a continuing inability to work due to a severe impairment or participation in a program of support.

Consequently, the Tribunal affirmed the decision under review.