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

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding a decision by the Secretary of the Department of Social Services concerning the Respondent's eligibility for a Disability Support Pension (DSP). The AAT had previously remitted the matter for reconsideration, directing that the Respondent met specific paragraphs of the *Social Security Act 1991* (Cth). The core dispute revolved around whether the Respondent's medical conditions were fully diagnosed, fully treated, and fully stabilised, and whether these conditions resulted in a sufficient level of impairment as defined by the Impairment Tables.

The legal issues before the Tribunal were whether the Respondent's various medical conditions, including Hepatitis C, hemochromatosis, liver fibrosis, severe obstructive sleep apnoea, and chronic fatigue, were fully diagnosed, fully treated, and fully stabilised during the relevant qualification period. Furthermore, the Tribunal had to determine if the Respondent's impairments attracted the requisite 20 points or more under the Impairment Tables during that period, particularly in light of comorbid symptoms that complicated the assessment of treatment and stabilisation.

The Tribunal accepted that the Respondent had impairments for the purposes of the Act, specifically Hepatitis C, hemochromatosis, and liver fibrosis, which were conceded to be fully diagnosed, treated, and stabilised. However, the Department contended that the severe obstructive sleep apnoea, while fully diagnosed, was not fully treated and stabilised during the qualification period. The Tribunal noted that the Respondent had co-existing conditions, some stabilised and others not, with symptoms that could not be entirely severed from comorbid fatigue. The Tribunal applied the principle that the assessment of whether a condition is stabilised must be based on the situation and evidence available at the time of the DSP application and the subsequent 13 weeks, and that subsequent progression of an illness cannot be used to award a DSP based on changed circumstances.

Ultimately, the Tribunal found that the Respondent did not satisfy the requirement under paragraph 94(1)(b) of the Act. Consequently, it was not necessary to consider whether he had a continuing ability to work. The decision of the AAT dated 2 November 2017 was set aside and substituted with a decision that the Respondent did not qualify for DSP at the date of his claim, as he failed to satisfy paragraphs 94(1)(b) and (c) of the Act.