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

This matter concerned an appeal by Mrs Vicaretti against a decision by the Secretary, Department of Social Services, to reject her claim for a Disability Support Pension (DSP). The central dispute revolved around whether Mrs Vicaretti had a continuing inability to work (CITW) for at least 15 hours per week, a key eligibility criterion for the DSP. The case was heard by Emeritus Professor P A Fairall, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether Mrs Vicaretti met the "15 hour work capacity rule" for a DSP. This rule generally requires an applicant to be unable to work for 15 hours or more per week and to be unlikely to be retrained for such work within two years. A significant exception to this rule allows individuals working more than 15 hours per week to still be considered as having a CITW if their employer provides "extraordinary support" or "certain types of ongoing or regular support" that enables them to work those hours.

The Tribunal considered medical evidence from 2013 and 2019 detailing Mrs Vicaretti's Multiple Sclerosis, which indicated increasing fatigue, mobility issues, and a need for assistance with daily living and going out. The Tribunal noted that while Mrs Vicaretti was working 19 hours per week, the adjustments made by her employer, such as allowing her to sit rather than stand, having customers walk to her desk, providing longer breaks for personal hygiene due to the distance to toilet facilities, and prioritising her for working from home during the COVID-19 pandemic, did not constitute "extraordinary support" beyond what is reasonably expected under modern workplace law. The Tribunal reasoned that the employer's concessions were minor and did not impose unreasonable costs, and therefore did not elevate her work capacity beyond the 15-hour threshold in a way that would disqualify her from having a CITW.

The Tribunal found that Mrs Vicaretti did not have a continuing inability to work for at least 15 hours per week in open employment, as the support provided by her employer was not extraordinary. Consequently, she did not satisfy the eligibility criteria for a Disability Support Pension.