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

This matter concerned an application for a disability support pension (DSP) by the applicant, who had a history of depression and anxiety. The core dispute revolved around whether the applicant first experienced a continuing inability to work (CITW) while she was an Australian resident, a prerequisite for DSP eligibility under the *Social Security Act 1991* (Cth). The applicant had periods of Australian residency between 1 September 2010 and 24 November 2011, and again from 13 November 2015 to the present. The Secretary, Department of Social Services, contended that the applicant's CITW arose during an 18-month period between May 2014 and November 2015, when she was in Macedonia and before her return to Australia, which would render her ineligible.

The legal issue before the Tribunal was to determine when the applicant first satisfied the requirements of sections 94(1)(c) and (e)(i) of the *Social Security Act 1991* (Cth), specifically whether her CITW occurred during a period of Australian residency. The respondent accepted that the applicant had the capacity to work for at least part of 2014, based on Macedonian employment records. The Tribunal had to consider whether the evidence supported a finding that the applicant lost the ability to work more than 15 hours per week after May 2014 and before her return to Australia in November 2015.

The Tribunal reasoned that it would be unsafe to infer a CITW solely from the applicant's cessation of formal employment in Macedonia and the absence of declared informal employment during the contested period. It acknowledged the fluctuating nature of the applicant's mental health and noted that having a mental illness does not automatically equate to a CITW. The Tribunal found that the applicant first satisfied the conditions of section 94(1)(c)(i) of the Act while she was a resident in Australia.

Consequently, the Tribunal set aside the reviewable decision and substituted a new decision finding that the applicant satisfies section 94(1) of the *Social Security Act 1991* (Cth) and is qualified for DSP from the date of her application, 28 May 2018.