Van Der Kruys and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr Van der Kruys against the Secretary of the Department of Social Services' decision to cancel his Disability Support Pension (DSP) payments. The cancellation decision was made on 12 January 2015. The appeal was heard by Mr Conrad Ermert, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the decision to cancel Mr Van der Kruys’ DSP payments on 12 January 2015 was the correct or preferable decision. This required the Tribunal to determine if, as at that date, Mr Van der Kruys met the eligibility criteria for receiving the DSP, specifically whether his impairments attracted an impairment rating of 20 points or more under the relevant Impairment Tables, and whether his conditions were fully diagnosed, treated, and stabilised.

The Tribunal noted that the Respondent conceded that as at 12 January 2015, Mr Van der Kruys had impairments from a cervical spine condition, depression, and migraines that satisfied the requirements of section 94(1)(a) of the Social Security Act 1991 (Cth). The Tribunal was satisfied that the medical evidence supported this concession. The critical question then became whether these impairments attracted an impairment rating of 20 points or more under section 94(1)(b) of the Act, which required the conditions to be permanent and likely to persist for more than two years. Section 6(4) of the Impairment Tables defines a condition as permanent if it has been fully diagnosed, fully treated, and stabilised. The Respondent accepted that Mr Van der Kruys’ cervical spine condition was of long standing and was fully diagnosed, treated, and stabilised at the relevant date, and the Tribunal found the medical evidence supported this. However, the Tribunal's reasoning indicates that despite the concession regarding the cervical spine condition, the overall assessment led to the conclusion that Mr Van der Kruys was not qualified to receive DSP at the relevant date.

The Tribunal affirmed the reviewable decision. As a result, the decision to cancel Mr Van der Kruys’ DSP payments was found to be correct.