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

This matter concerned an appeal by the applicant against the cancellation of her Disability Support Pension (DSP). The applicant had previously been granted a DSP based on an assessment under older impairment tables, where her spinal condition was rated at 20 points. Following an inquiry about receiving her DSP payments overseas, Centrelink initiated a reassessment of her eligibility using the Impairment Tables that came into effect on 1 January 2012. The applicant's DSP was subsequently cancelled on 17 June 2015, a decision later affirmed by an Authorised Review Officer. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant qualified for the DSP at the date of cancellation, or at another date, and to assess her eligibility under the current Impairment Tables.

The Tribunal was required to determine two primary legal issues. Firstly, it needed to ascertain the relevant date for assessing the applicant's eligibility for the DSP, specifically whether this assessment should be made as at the date of the cancellation decision (17 June 2015) or at the date of the Tribunal's own decision, or some other date. Secondly, the Tribunal had to determine whether the applicant met the criteria for DSP qualification at the determined date, which involved assessing whether her impairments were fully diagnosed, treated, and stabilised, and whether they rated 20 points or more under the relevant Impairment Tables.

The Tribunal reasoned that the assessment of the applicant's impairment and incapacity for work should be made as at the date of the cancellation decision, 17 June 2015, a principle supported by case law. While this was the operative date, the Tribunal noted it could consider evidence that arose after that date if it was relevant to the task. The respondent accepted that the applicant had four medical conditions at the cancellation date: non-insulin dependent diabetes, a lower limb condition, a spinal condition, and a mental health condition. The Tribunal found that the applicant's non-insulin dependent diabetes was fully diagnosed, treated, and stabilised, but it resulted in a 0-point rating under Table 1 as it caused minimal functional impairment. The applicant's lower limb condition was diagnosed but not fully treated and stabilised, as she anticipated future surgery for pain and had a specialist appointment pending. The Tribunal also found that the applicant's mental health condition was not fully treated and stabilised. Crucially, the applicant's spinal condition was assessed under Table 4 and awarded only 10 points.

Consequently, the Tribunal found that at the date of cancellation, the applicant's total impairment rating under the Impairment Tables was 10 points. As this rating was less than the required 20 points, she did not qualify for a DSP. The Tribunal affirmed the decision of the Social Services and Child Support Division, which had affirmed the cancellation of the applicant's DSP.