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

This matter concerned an appeal by the Applicant against a decision of the Administrative Appeals Tribunal (AAT) which affirmed a decision to cancel her Disability Support Pension (DSP). The dispute centred on whether the Applicant met the eligibility criteria for the DSP, specifically concerning the assessment of her impairment at the date of cancellation. The case was heard by I Fletcher M.

The primary legal issues before the court were whether, as at the date of cancellation, the Applicant had a physical, intellectual, or psychiatric impairment, whether this impairment rated at least 20 points under the Impairment Tables Determination, and whether she had a continuing inability to work. These questions were to be determined by applying the qualification criteria for DSP as found in section 94(1) of the *Social Security Act 1991* (Cth).

The court's reasoning focused on the evidence regarding the Applicant's spinal condition. While the condition was diagnosed in early 2018, the court found there was limited evidence of its treatment between 2003 and 2017. Although the Applicant was prescribed pain medication, it was unclear if this was primarily for her spinal condition or a pre-existing shoulder condition. Crucially, a referral to a neurosurgeon was made in January 2018, but the Applicant was still awaiting an appointment at the date of cancellation. The court accepted that, as at the cancellation date, future treatment was planned and the Applicant had not undertaken all reasonable treatment, meaning her spinal condition was not fully treated or stabilised. Consequently, her impairment could not be rated under the Impairment Tables Determination.

The court affirmed the AAT's decision, upholding the cancellation of the Applicant's DSP.