James and Secretary, Department of Social Services

This matter concerned an application by Mr James for a disability support pension, which was summarily dismissed by the Administrative Appeals Tribunal. The Secretary, Department of Social Services, sought the dismissal on the basis that Mr James could not satisfy the criteria for the pension, specifically the requirement of a "continuing inability to work" as defined by the Social Security Act 1991 (Cth). The core of the dispute revolved around whether Mr James's employment during the relevant period, which encompassed more than 15 hours per week, precluded him from meeting this criterion.

The Tribunal was required to determine whether, despite Mr James having worked between 25 and 35 hours per week during the period relevant to his claim, it was still possible for him to satisfy the definition of a "continuing inability to work". This definition requires that the impairment, of itself, be sufficient to prevent the person from doing any work for at least 15 hours per week at or above the relevant minimum wage, independently of a program of support. Mr James had also confirmed he had not participated in a supported wage system program, which offered an alternative pathway to satisfying the pension requirements.

The Tribunal reasoned that while Mr James's employment during the relevant period presented a difficulty for his claim, it did not automatically mean he could not satisfy the "continuing inability to work" criterion. Drawing on precedent, particularly *Re Preston and Secretary, Department of Family and Community Services* [1999] AATA 614, the Tribunal noted that where an applicant has worked immediately before or during the relevant period, the question of their continuing inability to work can still be a "medical question" requiring resolution. The Tribunal emphasised that summary dismissal is a power to be exercised with caution, and it is not appropriate where there is a real issue of fact or mixed law and fact to be determined, such as the extent to which an impairment prevents a person from working.