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

Shane Hare (the applicant) sought a review of the Secretary of the Department of Social Services' decision to reject his application for a Disability Support Pension (DSP). The applicant's initial application was made on 23 March 2018 and subsequently rejected by the Secretary on 17 May 2018. This decision was affirmed by an Authorised Review Officer on 6 December 2018, and then by the Social Services and Child Support division of the Tribunal (AAT1) on 7 April 2020. The applicant appealed the AAT1 decision to the General Division of the Tribunal. The applicant contended that his claim was mishandled and sought for his DSP payments to be backdated to his original application date.

The central legal issue before the Tribunal was whether the applicant met the criteria for a DSP during the qualification period, specifically whether he had a physical, intellectual, or psychiatric impairment that was assessed at 20 points or more under the Impairment Tables. This required the Tribunal to determine if the applicant's medical condition was fully diagnosed, fully treated, and stabilised, and if the impairment was present at the time of his claim or within 13 weeks thereof. The Tribunal also needed to consider the requirements for a condition to be considered "fully stabilised" as defined in the Impairment Tables.

The Tribunal considered the applicant's left shoulder and brachial plexus injury. While the applicant's General Practitioner provided a report suggesting a severe impairment warranting 20 points under the Impairment Tables, the Respondent argued that this condition was not fully diagnosed, treated, and stabilised during the qualification period. This contention was supported by an orthopaedic surgeon's report from 2017, which indicated that a firm diagnosis had not been achieved and recommended a neurological consultation. Although the applicant later saw a neurologist who provided a diagnosis in August 2018, the Tribunal found that during the relevant qualification period, a firm diagnosis had not been established, and therefore, reasonable treatment could not have been accessed for a condition that was not yet fully diagnosed. Consequently, the Tribunal concluded that the applicant did not meet the requirement of having an impairment of 20 points or more under the Impairment Tables.

As the applicant failed to satisfy the impairment points threshold, the Tribunal determined it was unnecessary to consider whether he met the other criteria for DSP, such as a continuing inability to work. The Tribunal affirmed the decision under review, which was the decision of AAT1 dated 7 April 2020.