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

This matter concerned an appeal by Mr Leng against the rejection of his claim for Disability Support Pension (DSP). The claim was rejected by a Centrelink authorised review officer and subsequently affirmed by the Social Security Appeals Tribunal (SSAT). The grounds for rejection were that Mr Leng’s impairment did not meet the threshold of 20 points under the Impairment Tables, and that he did not have a continuing inability to work. Mr Leng had lodged further medical reports prior to the hearing but declined to give evidence or make submissions.

The legal issues before the court were whether Mr Leng’s spinal condition resulted in an impairment rating of 20 points or more under the Impairment Tables, and whether he had a continuing inability to work for the purposes of the relevant legislation. The court was required to determine Mr Leng’s qualification for DSP as at the date of his claim and within the subsequent 13-week period, with any subsequent changes in his health being relevant only insofar as they cast light on his condition during that period.

The court considered the medical evidence concerning Mr Leng’s chronic lower back pain and psychosis schizophrenia. It was not disputed that Mr Leng had a permanent spinal condition resulting in back pain during the relevant period, and that an impairment rating could be assigned. However, the respondent contended that the impairment from the spinal condition was only 5 points under Table 4 of the Impairment Tables, which applies to functional impairment in activities involving spinal function. The court found that during the relevant period, Mr Leng’s impairment was not of 20 points or more under the Impairment Tables, meaning section 94(1)(b) of the Act was not satisfied. As the requirements of section 94(1) are conjunctive, it was unnecessary to consider whether section 94(1)(c) was satisfied.

Consequently, Mr Leng did not qualify for DSP at any time during the relevant period. The court affirmed the decision under review, noting that this conclusion did not preclude the possibility of Mr Leng qualifying for DSP during some other period, which was not an issue before the Tribunal.