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

This matter concerned an appeal by the Applicant against the decision of the Secretary, Department of Social Services, to reject his claim for a Disability Support Pension (DSP). The Applicant contended that he met the criteria for DSP under section 94 of the Social Security Act 1991 (Cth), while the Secretary argued that the Applicant did not satisfy paragraphs 94(1)(b) and (c) of the Act as at the qualification period. The Applicant had lodged two claims for DSP, both of which were rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.

The primary legal issues before the court were whether the Applicant had a continuing inability to work (CITW) and whether his conditions attracted the requisite 20 points under the Impairment Tables, thereby satisfying section 94 of the Act. The court was required to consider the medical evidence, including reports from the Applicant's general practitioner and a specialist, as well as the Applicant's own testimony regarding his chronic perianal abscess condition and its impact on his daily life and capacity to work.

The court found that the medical evidence, particularly from Dr Kennedy, indicated that the Applicant would only be able to work three days per month and was unable to sustain work activity for more than one hour without a break due to his condition and the need for personal hygiene. Dr Kennedy also opined that the Applicant's impairment was likely to prevent him from improving his ability to prepare for, find, and keep a job. Based on this evidence, the court concluded that the Applicant had a continuing inability to work at the date of his claim, thus meeting the requirements of subsection 94(1)(c) of the Act.

Consequently, the court set aside the previous decision and substituted a new decision finding that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) and was qualified for a Disability Support Pension as at 20 April 2021.