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

The Administrative Appeals Tribunal considered the case of an applicant seeking a Disability Support Pension (DSP) and the Secretary of the Department of Social Services. The applicant, who lives alone in Melbourne and receives unemployment benefits, injured his back in 2005, leading to surgery in 2008. He reported experiencing constant pain, difficulty with daily activities, and reliance on medicinal cannabis for pain relief. He last worked in 2019 but has been unemployed since, attributing this to his deteriorating back condition and his use of medicinal cannabis.

The primary legal issue before the Tribunal was whether the applicant's spinal or lumbar condition met the criteria for a DSP, specifically whether it was fully diagnosed, treated, and stabilised during the relevant qualification period, and whether it resulted in a sufficient degree of impairment. The Tribunal also considered the corroboration of the applicant's evidence and the weight to be given to the Job Capacity Assessment Report.

The Tribunal found that while the applicant's condition was fully diagnosed, the respondent contended it was not fully treated and stabilised. However, the Tribunal was satisfied, based on the oral evidence of Dr. Han, that no further surgery could improve the applicant's condition. Although Dr. Han's letter suggested referral to a pain management specialist, his oral evidence indicated that pain management could be either beneficial or useless, and he could not confirm it would make a difference in the applicant's case. This led the Tribunal to conclude that the condition was sufficiently stabilised for the purposes of the DSP assessment.

Consequently, the Tribunal set aside the decision under review and substituted a new decision finding the applicant entitled to a DSP from the date of his claim, specifically in respect of his spinal or lumbar condition. No findings were made regarding any other health conditions the applicant may have.