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

This matter concerned an appeal by Mr Dane Milos against a decision by the Secretary of the Department of Social Services to cancel his Disability Support Pension (DSP). The appeal was heard by Senior Member B. Pola of the Administrative Appeals Tribunal. The central dispute revolved around whether Mr Milos continued to qualify for the DSP, specifically concerning the requirement that his condition be fully diagnosed, fully treated, and fully stabilised, and whether he achieved 20 points or more under the Impairment Tables as at the date of cancellation.

The Tribunal was required to determine if Mr Milos's impairments, including a left ankle condition, a spinal condition, and a mental health condition, met the criteria for the DSP under section 94 of the relevant Act. This involved assessing whether these conditions were fully diagnosed, treated, and stabilised, and crucially, whether they resulted in an impairment rating of 20 points or more according to the Impairment Tables. The Tribunal also considered the procedural fairness afforded to Mr Milos during the review process.

In its reasoning, the Tribunal applied the principles of procedural fairness, referencing Mason J's observation in *Kioa v West* that procedural fairness is a flexible obligation adapted to the circumstances of the case. The Tribunal found it had acted flexibly and made best endeavours to ensure fairness. Regarding the substantive eligibility, the Tribunal was satisfied that Mr Milos suffered impairments under section 94(1)(a) of the Act, a point conceded by the Respondent. However, the Tribunal noted that Mr Milos did not wish for his left ankle condition to be considered as part of the application. Despite this, the Tribunal reviewed the extensive medical evidence presented concerning his left ankle, including MRI results, specialist opinions regarding pain and surgical options, and details of a past surgical procedure. The Tribunal ultimately concluded that it did not need to consider whether Mr Milos met the remaining eligibility requirements for the DSP as at the cancellation date.

Consequently, the Tribunal affirmed the decision of the Social Security and Child Support Division dated 24 October 2019.