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

This matter concerned an application for review of a decision by the Secretary of the Department of Social Services to cancel the applicant's Disability Support Pension (DSP). The cancellation occurred on 23 September 2016, pursuant to section 80 of the *Social Security (Administration) Act 1999* (Cth). The Administrative Appeals Tribunal (AAT) had jurisdiction to hear the matter under section 179 of the same Act.

The primary legal issues before the Tribunal were whether the applicant qualified for a DSP at the date of cancellation, and specifically, whether the applicant's various medical conditions, including chronic degeneration of the lumbar spine, diabetes, hip and shoulder degeneration, asthma, COPD, depression, and obesity, were fully diagnosed, fully treated, and fully stabilised, and whether these conditions collectively attracted at least 20 impairment points under the *Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011*. The Tribunal was required to assess the applicant's eligibility based on the conditions and their impact on work capacity as at the date of cancellation, not at any subsequent time.

The Tribunal reasoned that the assessment of eligibility for a DSP must be conducted by reference to the legislative framework in place at the time of the cancellation decision. This framework includes the *Social Security Act 1991* (Cth) and the *Social Security (Administration) Act 1999* (Cth), as well as the relevant Impairment Tables. The Tribunal emphasised that an impairment can only be allocated if a condition is permanent, meaning it is fully diagnosed, treated, and stabilised, and is likely to persist for more than two years. The assessment is to be based on functional capacity and what the applicant can do, rather than what they choose to do or what others do for them.

Ultimately, the Tribunal found that the applicant's conditions, when assessed as at the date of cancellation, only attracted five impairment points. Consequently, the applicant did not meet the threshold for qualification for a DSP. The Tribunal affirmed the decision of the AAT dated 24 November 2016.