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

This matter concerned an appeal by Ms Malcolm against a decision by the Secretary of the Department of Social Services regarding her eligibility for a disability support pension. The core of the dispute revolved around whether Ms Malcolm met the legislative requirements for the pension, specifically concerning the diagnosis, treatment, and stabilisation of her medical conditions, her impairment rating, and her continuing inability to work. The decision was made by Dr L Bygrave, a Member of the Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether Ms Malcolm's multiple medical conditions were fully diagnosed, treated, and stabilised during the relevant claim period, and if her impairment rating met the threshold of 20 points or more under the Impairment Tables. Secondly, the Tribunal had to assess whether Ms Malcolm had a continuing inability to work, as defined by the Social Security Act 1991, considering her participation in a program of support and her capacity to undertake work independently of such a program.

In reaching its decision, the Tribunal found that while Ms Malcolm had a total impairment rating of 25 points, satisfying the requirement of 20 points or more, there was insufficient evidence to conclude that her osteoarthritis was fully diagnosed, treated, and stabilised during the claim period. However, the Tribunal accepted that Ms Malcolm had participated in a program of support, as conceded by the Respondent. Crucially, the Tribunal relied on a medical certificate from Dr Chamberlain, dated shortly after the claim period but considered relevant due to its consistency with earlier reports, which stated Ms Malcolm's conditions rendered her unfit to work and were fully treated, stabilised, and diagnosed. This evidence, combined with Ms Malcolm's own testimony of constant pain and limited mobility, led the Tribunal to conclude that she had a continuing inability to work. Consequently, the Tribunal set aside the Respondent's decision and substituted it with a decision in favour of Ms Malcolm.