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

This matter concerned an appeal by GFHF against a decision of the Administrative Appeals Tribunal (AAT) Tier 1, which had affirmed the Secretary of the Department of Social Services' decision to cancel GFHF's Disability Support Pension (DSP). GFHF had sustained injuries to her lower back and knees, which led to her ceasing work in 2007. While initially granted a DSP, its payment was cancelled following a review. The core of GFHF's appeal was that her ongoing rehabilitation program at TSIC constituted participation in a program of support equivalent to the requirements of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).

The legal issues before the Tribunal were whether GFHF had a continuing inability to work due to her impairments, and specifically, whether her participation in the rehabilitation program at TSIC satisfied the requirements of section 94(2)(aa) of the *Social Security Act 1991* (Cth) and the POS Determination. This required the Tribunal to consider whether the program was wholly or partly funded by the Commonwealth and whether GFHF had actively participated in it. The Tribunal also had to determine if GFHF's impairments were of themselves sufficient to prevent her from doing any work independently of a program of support within the next two years, and whether she was prevented from undertaking training activity or if such activity would be unlikely to enable her to do any work.

The Tribunal accepted the impairment rating of 25 points assigned by AAT Tier 1, acknowledging that GFHF did not have a severe impairment. It noted that the medical evidence, though not entirely up-to-date, indicated that GFHF could not perform physically demanding duties and might only be suited for sedentary work. Crucially, the Tribunal found that there was no evidence GFHF had undertaken retraining for sedentary work. While acknowledging GFHF's consistent attendance at rehabilitation, including physiotherapy, Pilates, pain management, and cognitive behavioural therapy, the Tribunal determined that this did not satisfy the specific requirements of the POS Determination, particularly in relation to active participation in a program of support that would lead to employment. The Tribunal concluded that GFHF satisfied the impairment criteria but not the active participation requirements under section 94(2)(aa) of the Act.

The Tribunal affirmed the decision of AAT Tier 1.