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

This matter concerned an appeal by HHBF (the Applicant) against a decision of the Secretary, Department of Social Services (the Respondent) to reject her claim for a Disability Support Pension (DSP). The Applicant's claim was initially rejected on the basis that she had not participated in a program of support. Subsequent reviews by an Authorised Review Officer and the Administrative Appeals Tribunal (AAT1) affirmed this decision, although the AAT1 also made findings regarding the Applicant's level of impairment. The appeal was heard by A G Melick AO SC, Deputy President.

The primary legal issue before the Deputy President was whether the Applicant's claim for DSP should have been granted, specifically considering the findings of the AAT1 regarding her level of impairment and the requirement for participation in a program of support. The Deputy President was required to determine if the AAT1 had erred in its assessment of the Applicant's conditions and their impact on her work capacity, and whether the failure to participate in a program of support was a determinative factor in the rejection of her claim.

The Deputy President noted that the AAT1 had found that the Applicant's thoracic outlet syndrome and chronic pain condition were not fully treated or stabilised at the time of the claim, and that these conditions were subject to further investigations and treatment post-claim. The AAT1 had also found that the Applicant's neurodevelopmental and mental health conditions were fully diagnosed, treated, and stabilised, rating 10 points under Table 5 of the Impairment Tables. The AAT1 had also assigned five points under Table 4 for cervical spondylosis. The Deputy President considered the interplay between these findings and the legislative requirement for participation in a program of support, which had been the basis for the initial rejection of the claim. The Deputy President ultimately found that the AAT1 had made an error of law in its decision.