O'Cass and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr O’Cass against a decision by the Secretary of the Department of Social Services regarding his claim for a disability support pension (DSP). The dispute centred on whether Mr O’Cass met the criteria for a DSP, specifically concerning the rating of his permanent impairments and his participation in a program of support. The case was heard by Mr S. Webb, a Member of the Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether Mr O’Cass’s impairments, specifically the functional impairment of his lumbar spine and functional impairment of his cervical spine arising from separate conditions, were sufficient to establish a severe impairment under the relevant legislation. Secondly, the Tribunal had to consider the meaning of "participating in a program of support" and whether Mr O’Cass’s circumstances, including periods of temporary medical incapacity exemption, constituted such participation, particularly in light of an indefinite suspension of a program.

The Tribunal reasoned that Mr O’Cass’s impairments attracted a rating of more than 20 points under the Impairment Tables and that he had a continuing inability to work. It was held that a program of support is taken to be terminated when an indefinite suspension continues without action after a reasonable period. The Tribunal concluded that Mr O’Cass satisfied the essential requirements to qualify for DSP as of the date of his claim. Consequently, the decision under review was set aside, and the Tribunal substituted its own decision finding that Mr O’Cass qualified for DSP on the date of his claim.