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

This matter concerned an application by the Secretary, Department of Social Services, for review of a decision by the Administrative Appeals Tribunal (AAT) that granted a disability support pension (DSP) to the respondent. The respondent had lodged a claim for DSP, which was initially rejected and then affirmed by an authorised review officer. However, the AAT's Social Services and Child Support Division subsequently set aside that decision and granted the DSP. The Secretary sought review of this grant.

The primary legal issues before the Tribunal were whether the respondent was entitled to a DSP under the Agreement on Social Security between Australia and New Zealand, and whether this entitlement required the respondent to also satisfy the criteria under section 94(1) of the Social Security Act 1991 (Cth). Specifically, the Tribunal had to determine if the respondent was "severely disabled" for the purposes of Article 2(2) of the Agreement, and if they met the criteria for severe impairment under section 94 of the Act, including a continuing inability to work.

The Tribunal departed from previous AAT reasoning in *Tamua and Secretary, Department of Social Services* [2016] AATA 757, which had held that satisfying Article 2(2)(a) of the Agreement was sufficient for DSP entitlement and that section 6 of the International Agreements Act 1999 (Cth) meant Article 2(2)(a) prevailed over section 94(1) of the Act. The current Tribunal found that the Agreement did not displace the general operation of Australian social security law, as confirmed by Article 2(1) of the Agreement. The Tribunal concluded that Article 2(2) of the Agreement was not a self-contained regime and that other aspects of Australian social security law, such as claim procedures and payment rates, were still governed by the Act. Based on the medical evidence, the Tribunal was not satisfied that the respondent was totally unable to work for at least the next two years.

Consequently, the Tribunal set aside the AAT's previous decision and substituted it with a decision that the respondent was not eligible for a disability support pension.