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

This matter concerned an appeal by Mr Kierse against a decision by the Secretary of the Department of Social Services regarding his eligibility for a Disability Support Pension (DSP). The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Kierse's medical conditions, diagnosed, treated, and stabilised during the qualification period, resulted in an impairment rating of 20 points or more under the Impairment Tables, and whether he had a continuing inability to work.

The legal issues before the Tribunal were whether Mr Kierse's impairments met the criteria for a DSP qualification during the relevant period. Specifically, the Tribunal had to assess if his conditions were fully diagnosed, fully treated, and fully stabilised, and if these impairments resulted in a functional capacity rating of 20 points or more under the Impairment Tables, as required by the Social Security Act 1991 and the associated Rules for Applying the Impairment Tables. The Tribunal also needed to consider if these impairments led to a continuing inability to work.

The Tribunal reasoned that eligibility for DSP must be assessed based on the applicant's circumstances during the qualification period, with evidence post-dating this period being relevant only insofar as it illuminated the condition during that time. The Impairment Tables require a condition to be permanent, meaning fully diagnosed, treated, and stabilised, and to result in an impairment rating of 20 points or more. Permanence is assessed by considering corroborating evidence of the condition, the treatment received, and whether further treatment is likely to yield significant functional improvement within two years. Mr Kierse's diagnosis of myotonia congenita, a condition causing muscle stiffness and impacting both gross and fine motor skills, was confirmed in childhood. Despite attempts at treatment, including medication and allied health services, his muscle stiffness persisted, affecting his daily activities and ability to work. The Tribunal found that his functional capacity was significantly impacted, and his life had not changed substantially before, during, or after the qualification period.

The Tribunal set aside the decision under review and determined that Mr Kierse was qualified to receive the Disability Support Pension from 12 January 2018, being satisfied that he had a continuing inability to work.