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

This matter concerned an appeal by Mr Lalic against the Secretary of the Department of Social Services regarding the cancellation of his Disability Support Pension (DSP). The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Lalic qualified for DSP at the relevant time, which was 29 October 2014.

The primary legal issue before the AAT was whether Mr Lalic's medical conditions met the criteria for DSP under section 94(1)(b) of the relevant Act, specifically whether his impairment was assessed at 20 points or more under the Impairment Tables. A secondary issue raised by the respondent was whether the Tribunal had jurisdiction to consider conditions, such as cervical osteoarthritis and depression/anxiety, that were not part of the original decision to cancel the DSP.

The Tribunal reasoned that it was empowered by section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to exercise all the powers and discretions of the original decision-maker for the purpose of reviewing a decision. Therefore, it could consider any material bearing upon the determination of Mr Lalic's qualification for DSP, irrespective of whether those conditions were considered by previous decision-makers. However, the Tribunal found that Mr Lalic's cervical osteoarthritis and depression/anxiety were diagnosed after his DSP was cancelled. Consequently, these conditions could not be considered "permanent" for the purposes of the Determination at the relevant time, as they had not been fully diagnosed by an appropriately qualified medical practitioner.

Based on the evidence before the Tribunal, it was not satisfied that Mr Lalic met the requirements of section 94(1)(b) of the Act at the relevant time. As the requirements of section 94 are conjunctive, other aspects of his qualification for DSP did not need to be considered. The decision to cancel Mr Lalic's DSP was therefore affirmed.