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

This matter concerned an appeal by Mr Makki against the cancellation of his disability support pension (DSP) and a subsequent claim for DSP. The dispute centred on whether Mr Makki met the criteria for receiving a DSP at the time of his application on 11 November 2014, particularly concerning the severity of his impairments and his continuing inability to work. The decision was made by J F Toohey SM.

The primary legal issues before the court were whether Mr Makki's impairments, as assessed under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011, rated 20 points or more, and whether he had a continuing inability to work. A further issue arose regarding the cancellation of his DSP due to his absence from Australia and the expiry of his portability period.

The court found that Mr Makki's impairments did not rate 20 or more points on the Impairment Tables during the relevant claim period. The court noted that for an impairment to be rated, the condition must be permanent, meaning fully diagnosed, treated, and stabilised, and more likely than not to persist for more than two years. The court was not satisfied that Mr Makki's impairments met this threshold. Consequently, the court determined that it was not necessary to decide whether he had a continuing inability to work. However, for completeness, the court also found that Mr Makki did not have a continuing inability to work because, unless an impairment is severe, a person must have actively participated in a program of support for 18 months in the three years immediately before applying for DSP, which Mr Makki had not done.

The court affirmed the decision under review, finding that Mr Makki's claim for DSP must fail. The court also noted that Mr Makki's request for an extension of his portability period was rejected, and he did not pursue a review of that decision.