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

This matter concerned an appeal by Mr Mitchell against a decision by the Secretary of the Department of Social Services to reject his application for a disability support pension. The appeal was heard by Dr L Bygrave, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether Mr Mitchell's impairments were permanent, fully diagnosed, treated, and stabilised, and whether he had a continuing inability to work as defined by the Social Security Act 1991. Specifically, the Tribunal had to determine if Mr Mitchell met the threshold of 20 impairment points under the Impairment Tables Determination and if his impairments were sufficient to prevent him from working independently within the next two years, including undertaking training activities.

The Tribunal found that, based on the evidence presented, it could not be satisfied that Mr Mitchell's conditions were permanent during the relevant claim period, which prevented the assignment of an impairment rating. However, the Tribunal did find that Mr Mitchell had accumulated a total of 25 points under the Impairment Tables, thereby meeting the requirement for an impairment rating of 20 points or more. The Tribunal then considered the definition of a "continuing inability to work," which, for individuals not suffering from a severe impairment and not being a reviewed 2008-2011 DSP starter, required active participation in a Commonwealth-funded program of support. The Tribunal noted that Mr Mitchell had not actively participated in such a program, as defined by the Social Security (Active Participation for Disability Support Pension) Determination 2014, which mandates participation for at least 18 months within the preceding 36 months before a claim is made.

Consequently, the Tribunal concluded that Mr Mitchell had not met the criteria for a continuing inability to work due to his failure to actively participate in a program of support.