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

This matter concerned an appeal by Mr. Ngo against the Secretary of the Department of Social Services' decision to cancel his Disability Support Pension (DSP). The dispute centred on whether Mr. Ngo qualified for the DSP as at the date of cancellation, 7 August 2018, under the relevant legislative criteria, which had been amended from 1 January 2012 to include more stringent Impairment Tables. The Administrative Appeals Tribunal (AAT) was required to determine if the Secretary had been satisfied that Mr. Ngo was not qualified for the DSP on that date, and if so, whether cancellation or suspension was the appropriate course of action.

The legal issues before the Tribunal were whether Mr. Ngo's spinal and upper limb conditions, as they existed on 7 August 2018, met the qualification criteria for the DSP. Specifically, the Tribunal had to consider if Mr. Ngo's impairments were fully diagnosed, treated, and stabilised, and if they resulted in an impairment rating of 20 points or more under the Impairment Tables, as required by section 94(1) of the *Social Security Act 1991*. The Secretary contended that Mr. Ngo had not undertaken reasonable treatment for his spinal disorder, and alternatively, that even if treated and stabilised, it would only warrant a 5-point rating. For his upper limb disorder, the Secretary argued it was diagnosed but not fully treated or stabilised, and if it were, it would attract a 0-point rating, leading to an overall impairment rating below the required 20 points. The Secretary also contended that Mr. Ngo did not have a continuing inability to work.

The Tribunal's reasoning focused on the operative decision being the cancellation of the DSP, not a new grant. It applied the principles established in *Freeman v Secretary Department of Social Security* and *Frugtniet v Australian Securities and Investments Commission*, which dictate that the Tribunal must address the same question the primary decision-maker was required to address, considering all facts proved before it at the time of the original decision. The Tribunal noted that the Secretary accepted Mr. Ngo suffered from an impairment arising from his spinal disorder. However, the core of the Secretary's contention was that the disorder was not fully treated or stabilised, or alternatively, that the impairment rating was insufficient. The Tribunal's decision was to set aside the decision under review.