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

This matter concerned an application for a second review of a decision to affirm the rejection of Mr Kirk's claim for a Disability Support Pension (DSP). Mr Kirk had lodged his claim on 23 November 2017, listing several conditions including chronic pain, chronic fatigue, generalised anxiety, depression, and chronic insomnia. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Kirk qualified for the DSP on the date of his claim or within the subsequent 13 weeks.

The central legal issue before the Tribunal was whether Mr Kirk's diagnosed conditions, specifically his mental health condition and chronic pain condition, were "fully diagnosed, fully treated and fully stabilised" as required by the relevant legislation for the purposes of a DSP claim. The Tribunal had to consider the evidence available as at 23 November 2017 and the following 13-week period, and not any subsequent deterioration or improvement in Mr Kirk's conditions.

The Tribunal applied the principles established in cases such as *Bobera* and *Fanning*, which clarify that the assessment of a DSP claim must be based on the applicant's condition at the time of the claim and the subsequent qualification period. Any progression of a medical condition after this period is irrelevant to the original claim and would necessitate a new application. In this instance, the Tribunal found that Mr Kirk's mental health condition was fully diagnosed but not fully treated or stabilised, and his chronic pain condition was also fully diagnosed but not fully treated or stabilised.

Consequently, the Tribunal affirmed the decision under review, finding that Mr Kirk did not meet the criteria for the DSP at the relevant time. The Tribunal noted that Mr Kirk was able to make a new claim with updated evidence, and his representative indicated assistance in seeking further medical treatment to facilitate such a claim.