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

This decision concerns an appeal by Ms Noy against a decision by the Secretary of the Department of Social Services regarding her eligibility for a disability support pension. The core of the dispute revolved around whether Ms Noy's impairments met the criteria for a permanent impairment attracting a rating of 20 or more points under the relevant Impairment Tables, as required by section 94(1)(b) of the Social Security Act 1991 (Cth). The matter was heard by Member D K Grigg.

The legal issues before the Tribunal were whether Ms Noy's impairments were "permanent" for the purposes of the Act and the Determination, and if so, whether these permanent impairments attracted an impairment rating of 20 or more points. The Tribunal was required to consider the definition of "permanent" as set out in the Determination, which includes conditions that have been fully diagnosed, fully treated, fully stabilised, and are more likely than not to persist for more than two years. The Tribunal also had to assess the functional impact of these impairments using the Impairment Tables.

The Tribunal reasoned that for an impairment to be considered permanent, it must satisfy four conditions: full diagnosis, full treatment, full stabilisation, and the likelihood of persisting for over two years. In applying these criteria, the Tribunal noted that while Ms Noy suffered from a lumbar spine impairment, a knee impairment, and a mental health impairment during the qualification period, the evidence regarding her sleep apnoea and shoulder conditions was insufficient. These latter conditions were either not diagnosed or not fully treated during the relevant period, and there was a lack of evidence concerning their functional impact. Consequently, the Tribunal found that these conditions could not be considered for the disability support pension application. The Tribunal affirmed the decision under review.