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

This matter concerned an application by Mr Petrovic for review of a decision by the Secretary, Department of Social Services, to cancel his Disability Support Pension (DSP). The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Petrovic met the eligibility requirements for the DSP as at 8 October 2015, the date of cancellation.

The legal issues before the Tribunal were whether Mr Petrovic had any physical, intellectual, or psychiatric impairments, and if so, whether the conditions causing these impairments were permanent. Permanence required an assessment of whether the conditions were fully diagnosed, treated, and stabilised, and more likely than not to persist for more than two years. The Tribunal also had to determine if these impairments attracted a rating of 20 points or more under the Impairment Tables, and if so, whether Mr Petrovic had a continuing inability to work.

The Tribunal applied the principle that it must consider eligibility as at the date of cancellation, as established in *Freeman v Secretary, Department of Social Security* [1988] FCA 294 and consistently applied in subsequent AAT decisions. This principle was further supported by *Harris v Secretary, Department of Employment and Workplace Relations* [2007] FCA 404, which held that entitlement must be considered as at the date of claim, with subsequent changes in health being irrelevant except insofar as they shed light on the position at the relevant time. The Tribunal found that Mr Petrovic had permanent conditions affecting his spinal function, lower limb function, and brain function, which were fully diagnosed, treated, and stabilised, and likely to persist for more than two years. These conditions attracted ratings of five points each under Tables 4, 3, and 7 respectively. However, other claimed impairments, such as adjustment disorder and chronic pain, were not considered permanent as they were not fully diagnosed, stabilised, or treated. Mr Petrovic's oesophageal condition was permanent but had no functional impact, attracting zero points.

The Tribunal concluded that Mr Petrovic's combined impairment rating of 15 points did not meet the required 20 points to satisfy one of the mandatory eligibility requirements under s 94(1)(b) of the Act. Consequently, the Tribunal affirmed the decision to cancel Mr Petrovic's DSP, finding that he did not meet the eligibility requirements as at the qualification date.