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

This matter concerned an appeal by Ms Nicholson against a decision by the Secretary, Department of Social Services, affirming a decision that she did not qualify for a Disability Support Pension (DSP). The Administrative Appeals Tribunal was required to determine whether Ms Nicholson qualified for the DSP during the relevant qualification period, which was the date of her claim (4 May 2018) and the subsequent 13 weeks.

The Tribunal was tasked with determining two primary legal issues. Firstly, whether Ms Nicholson had an impairment rating of 20 or more points according to the Impairment Tables, and secondly, whether she had a continuing inability to work. This latter issue involved assessing whether she had actively participated in a program of support or, alternatively, had a severe impairment sufficient to prevent her from working independently.

The Tribunal found that Ms Nicholson did not meet the requirements for having actively participated in a program of support, as periods of exemption, such as those she received, do not count towards active participation according to the Social Security Guide. Consequently, she was required to demonstrate a severe impairment to satisfy the continuing inability to work requirement. While the Respondent accepted Ms Nicholson had an impairment during the qualification period, the Tribunal noted that medical reports post-dating the qualification period were only relevant to the extent they referred to her condition during that time. The Tribunal also considered the issue of her Chronic Obstructive Pulmonary Disease (COPD), noting that her continued smoking, contrary to medical advice, meant the condition could not be considered fully treated and stabilised within the qualification period, drawing a parallel with the decision in *Fenton*. Ultimately, because Ms Nicholson did not meet the threshold requirement of 20 points under the Impairment Tables, her claim for DSP was unsuccessful. The Tribunal affirmed the decision under review.