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

This matter concerned an appeal by Mr Warwick against a decision by the Secretary of the Department of Social Services (DSS) to affirm the cancellation of his Disability Support Pension (DSP). Mr Warwick had been granted DSP in 2004 based on a learning disability, anxiety/depression, psychiatric impairment, and sleep apnoea. The dispute centred on whether Mr Warwick's conditions met the threshold for DSP at the time of the cancellation. The review was heard by Ac Cotter SM.

The primary legal issue before the court was whether Mr Warwick's impairments attracted a total of 20 or more points under the Impairment Tables, as required by section 94(1)(b) of the Social Security Act. This determination hinged on whether his conditions were fully diagnosed, treated, and stabilised as at the date of cancellation, and whether reasonable treatment was available. The court also considered the impact of untreated sleep apnoea on the validity of previous cognitive testing for his learning disability.

The court reasoned that for an impairment to attract points under the Impairment Tables, the condition must be fully diagnosed, treated, and stabilised. In Mr Warwick's case, evidence indicated that his depression and anxiety had not been consistently treated or stabilised, with no current treatment noted in 2003 and only counselling sessions by 2006. Furthermore, the court found that Mr Warwick had not received treatment for his sleep apnoea until 2016, after the cancellation date, and that the cost of obtaining a CPAP machine privately was prohibitive. The court also noted doubt regarding the validity of his intellectual disability assessment due to the potential impact of untreated psychiatric and sleep conditions. Consequently, Mr Warwick did not meet the 20-point threshold.

The court concluded that Mr Warwick did not have a total impairment rating of 20 points or more under the Impairment Tables as at the date of cancellation, and therefore did not satisfy the requirements for DSP. The decision to cancel his DSP was affirmed. The court encouraged Mr Warwick to make a fresh claim once his conditions had been appropriately treated and tested.