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

This matter concerned an appeal by the applicant, WHYW, against a decision of the Administrative Appeals Tribunal (AAT1) which affirmed a decision rejecting his claim for a disability support pension (DSP). The applicant lodged his DSP claim on 5 January 2016, citing eosinophilic oesophagitis, L4/5 disc prolapse, a right posterosuperior labral tear, and post-traumatic stress disorder (PTSD). The AAT1 had found that while some of his conditions were diagnosed, treated, and stabilised, his PTSD was not, and consequently, he did not achieve the required 20-point impairment rating under the Impairment Tables.

The primary legal issues before the court were whether the applicant's medical conditions attracted an impairment rating of 20 points or more under the relevant Impairment Tables, and whether he had a continuing inability to work. The Secretary contended that the applicant did not satisfy paragraph 94(1)(b) of the Social Security Act 1991 (Cth) because his conditions did not meet the threshold for an impairment rating, and he had not demonstrated the requisite period of active participation in a program of support or met an exemption. The court was required to determine if the applicant's conditions were fully diagnosed, treated, and stabilised within the Qualification Period, which ran from 5 January 2016 to 5 April 2016.

The court considered the applicant's submissions regarding various medical reports and documents, including those related to his PTSD and chronic pain. The applicant argued that certain FOI documents and a letter from a social worker dated 21 January 2016 demonstrated that his conditions were fully diagnosed, treated, and stabilised within the Qualification Period, and that his mental health condition warranted a 30-point rating under Table 5. However, the court noted that the applicant acknowledged some of the medical evidence he relied upon fell outside the Qualification Period, and that the social worker was unaware of the Impairment Tables at the time of her assessment. The AAT1 had previously found a total impairment rating of 15 points, which was insufficient for DSP eligibility.

Following further discussion and consideration of the evidence, the applicant agreed to make written submissions to the Tribunal regarding the documents he had forwarded, specifically those in the FOI material he intended to rely upon. The court advised the applicant to examine and refer to all relevant FOI documents and to include submissions concerning them. The applicant was to provide these written submissions to the Tribunal for consideration.