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

This matter concerned an application to the Administrative Appeals Tribunal (AAT) by Mrs Emine Kara against a decision of the Secretary, Department of Social Services. Mrs Kara had applied for a Disability Support Pension (DSP) on 30 December 2016, which was initially rejected and subsequently affirmed by an Authorised Review Officer and then by the AAT in a prior decision. Mrs Kara sought review of that AAT decision by the current Tribunal.

The primary legal issues before the Tribunal were whether Mrs Kara qualified for the DSP under section 94 of the *Social Security Act 1991* (Cth). This required determining if she had a physical, intellectual, or psychiatric impairment that attracted 20 points or more under the Impairment Tables, and whether she had a continuing inability to work or was participating in a supported wage system. A significant complicating factor was the requirement for applicants to have completed a Program of Support (POS) for a specified period, which Mrs Kara had not done.

The Tribunal identified a "Catch-22" situation where Mrs Kara was unable to attempt a POS because she was already in receipt of the DSP, yet the requirement to have completed a POS was being used to deny her continued eligibility. The Tribunal noted that the Secretary accepted that Mrs Kara met the 20-point impairment threshold. The Tribunal found that the legislative scheme and operational requirements created a paradoxical situation for Mrs Kara, as she could not meet the POS requirement due to her existing DSP status.

The Tribunal set aside the decision under review. It remitted the matter to the Chief Executive Officer – Centrelink with findings that Mrs Kara satisfied the impairment criteria under section 94(a) and (b) of the Act. The Tribunal directed that the CEO determine whether the POS requirements had been met in light of Mrs Kara's status as a DSP recipient during the relevant period, and if so, that her claim for the DSP be successful from the date it was made.