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

This matter concerned an appeal by Ms Okungbowa against a decision of the Social Security Appeals Tribunal (SSAT) affirming a decision by the Secretary of the Department of Social Services (DSS) to refuse her request for indefinite portability of her Disability Support Pension (DSP) while travelling in the USA. Ms Okungbowa had been granted DSP in 1992 for a musculo-skeletal disorder. Her request for indefinite portability was based on medical reports detailing her conditions, including Emphysema/Asthma, neuropathic pain in her right leg, and Depression and Anxiety Disorder.

The primary legal issue before the court was whether Ms Okungbowa suffered from a "severe impairment" as defined by the relevant legislation, which would entitle her to indefinite portability of her DSP. This required an assessment of her functional capacity in relation to her diagnosed conditions, specifically whether they met the threshold for severe impairment under the applicable impairment tables. The court also considered whether her Depression and Anxiety Disorder was sufficiently diagnosed, treated, and stabilised to warrant an impairment rating.

The court considered the medical evidence, including reports from Ms Okungbowa's general practitioner and a Job Capacity Assessor (JCA). While the JCA assigned 10 points for Emphysema and 10 points for a spinal disorder, resulting in a total of 20 points, the court found that Ms Okungbowa's impairments were not "severe". The court noted discrepancies between Ms Okungbowa's reported functional limitations and her observed behaviour during a hearing, as well as her ability to travel and engage in activities during a previous trip to the USA. The court concluded that her Emphysema/Asthma did not meet the criteria for severe impairment, and her Depression and Anxiety Disorder was not considered fully diagnosed, treated, and stabilised for the purposes of an impairment rating.

Consequently, the court found that Ms Okungbowa did not qualify for indefinite portability of her DSP. The decision under review, which refused her request, was affirmed. As Ms Okungbowa was not a resident of the United States at the time of the decision, the court deemed it unnecessary to consider her entitlement to benefits under the US Agreement.