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

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Ms. Markus against the Secretary of the Department of Social Services' decision to reject her claim for a Disability Support Pension (DSP). Ms. Markus, aged 62 at the time of her claim, presented with a range of medical conditions including lumbar and cervical spine issues, knee osteoarthritis, psychological conditions, and shoulder and upper arm disorders. The Department had rejected her claim on the basis that her impairments did not attract the required 20 points under the Impairment Tables.

The primary legal issue before the Tribunal was whether Ms. Markus's various impairments were fully diagnosed, treated, and stabilised, and whether these impairments attracted an impairment rating of 20 points or more under the relevant Impairment Tables, as required by the Social Security Act 1991 (Cth) for DSP qualification. The Tribunal was required to assess Ms. Markus's conditions as they stood during the qualification period, which was from the date of her claim (27 October 2017) to 13 weeks thereafter.

The Tribunal applied the principles established in cases such as *Gallacher v Secretary, Department of Social Services* and *Fanning and Secretary, Department of Social Services*, which emphasise that an applicant must be qualified for DSP on the date of claim or within the subsequent 13-week period. Evidence arising after this period is only relevant insofar as it refers to the applicant's condition during that time. The Tribunal considered the evidence, including medical reports and oral testimony, and found that Ms. Markus's lumbar spine condition attracted 10 impairment points. However, her other conditions could not be assessed under the Impairment Tables as they were either not fully treated and stabilised, or there was insufficient evidence to determine their status within the qualification period. Consequently, Ms. Markus did not meet the threshold of 20 impairment points.

The Tribunal affirmed the decision of the Social Services and Child Support Division, which had previously affirmed the Department's rejection of Ms. Markus's DSP claim. The outcome was that Ms. Markus did not qualify for a Disability Support Pension because her impairments did not attract the requisite 20 points under the Impairment Tables during the relevant qualification period.