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

The Administrative Appeals Tribunal (AAT) considered the appeal of Mr. Hovens against the Secretary of the Department of Social Services regarding his application for Disability Support Pension (DSP). Mr. Hovens sought to challenge the rejection of his DSP claim, which had been affirmed by an Authorised Review Officer. The core of the dispute revolved around whether Mr. Hovens' various medical conditions met the criteria for a severe impairment under the Social Security (Australian Government Payments) Determination 2019 (the Determination), which would qualify him for DSP.

The legal issues before the Tribunal were whether Mr. Hovens' medical conditions, specifically his ischaemic heart disease and sternal wire failure, were fully diagnosed, treated, and stabilised during the relevant qualification period, and if so, whether they resulted in a severe impairment as defined by the Determination. The Tribunal was required to assess the functional capacity of Mr. Hovens in accordance with the impairment tables set out in the Determination, considering the evidence presented regarding his physical limitations and pain.

The Tribunal reasoned that for an impairment to be assessed, the underlying medical condition must first be fully diagnosed, treated, and stabilised. While the Respondent conceded that Mr. Hovens had an impairment arising from cardiac failure during the qualification period, and the Tribunal was satisfied that his ischaemic heart disease was fully diagnosed, treated, stabilised, and permanent, it found that the sternal wire failure remained speculative in terms of assessable impairment. The Tribunal noted that the descriptors for moderate functional impact under Table 1, relating to physical exertion and stamina, were met by Mr. Hovens' symptoms of shortness of breath and fatigue, attracting 10 points. However, the Tribunal ultimately affirmed the decision under review, finding that the sternal wire failure did not translate into an assessable impairment under the Determination.