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

[2025] ARTA 2021

BYMK and Secretary, Department of Social Services (Social services second review) [2025] ARTA 2021 (8 October 2025)

Applicant/s:  BYMK

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/5782

Tribunal:Senior Member A Suthers (second review)

Place:Perth

Date:8 October 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 08 October 2025 at 2:04pm

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by

ss 201(1A)-201(1B) of the Social Security (Administration) Act 1999 (Cth).

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – legislative requirement for eligibility –decision under review affirmed

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
G v MIBP [2018] FCA 1229
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
McDonald v Director General of Social Security (1984) 1 FCR 354
Minister for Home Affairs v G and Another [2019] FCAFC 79
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2023 (CTH)
SOCIAL SECURITY (ACTIVE PARTICIPATION FOR DISABILITY SUPPORT PENSION) DETERMINATION 2014 (CTH)

GUIDE TO SOCIAL SECURITY LAW

Statement of Reasons

SUMMARY

1. This is a second review decision about whether the Applicant demonstrated that she met the qualification requirements for the disability support pension (DSP) when she lodged her application for the DSP on 3 January 2024, or otherwise within an allowable qualification period of 13 weeks thereafter.

2. When the Applicant lodged her claim for DSP with Services Australia (Centrelink)[1], she cited that she had three relevant medical conditions. The first was chronic pain. The other conditions were sciatica, and arthritis (together, the Applicant’s ‘spinal condition’).[2]

   [1] The entity administered by the Respondent.

   [2] Having reviewed it for accuracy, I have largely taken the relevant history of this matter from the Respondent’s Statement of Facts, Issues and Contentions.

3. On 9 January 2024, a Disability Support Pension Medical Eligibility Assessment Recommendation (MEAR) determined that the Applicant required further assessment through a Job Capacity Assessment.

4. By that time, the Applicant’s chronic pain was better understood as having elements of anxiety and depression (diagnosed by Dr Vogler, a General Practitioner) and post-traumatic stress disorder (also referred to by Dr Vogler), which the Applicant disclosed she had been diagnosed with after a traumatic experience over 20 years ago (together, the Applicant’s ‘mental health condition’).

5. On 10 April 2024, a Job Capacity Assessment Report (JCA) was completed. The report found that the Applicant’s spinal condition was diagnosed, reasonably treated and stabilised, and met the criteria for a moderate impairment (10 points) under the Impairment tables. The JCA assessor found that the Applicant’s mental health condition was not diagnosed, reasonably treated and stabilised, as there was no evidence of diagnosis by a psychiatrist or registered psychologist.

6. On 18 April 2024, Centrelink rejected the Applicant’s claim for DSP, on the basis that she did not meet the required impairment rating of 20 points under the impairment tables (original decision), as required by paragraph 94(1)(b) of the Social Security Act 1991 (Cth) (the Act).

7. On 28 May 2024, an authorised review officer (ARO) affirmed the original decision (ARO decision). The ARO determined that the Applicant’s:

   (a)spinal condition was diagnosed, reasonably treated and stabilised, and met the criteria for a moderate impairment under Table 4 of the impairment tables.

   (b)mental health condition was not diagnosed, treated and stabilised, as there was no evidence of a diagnosis by a registered psychologist or psychiatrist.

8. The Applicant then sought review of the ARO decision in the former Administrative Appeals Tribunal (AAT).

9. On 10 July 2024, the AAT affirmed the ARO decision (AAT decision). It made similar findings to the ARO Decision, in that the Applicant’s:

   (a)spinal condition was diagnosed, reasonably treated and stabilised at the time of her claim for DSP, and met the criteria for a moderate impairment (10 points) under table 4 of the impairment tables;

   (b)mental health condition was not diagnosed, treated and stabilised, as there was no evidence of a diagnosis by a registered psychologist or a psychiatrist.

10. On 8 August 2024, the Applicant applied to the General Division of the AAT for further review.

11. For the reasons that follow, the AAT was correct to affirm the ARO decision. Principally, that is because the Applicant has still not obtained evidence from a psychiatrist or registered psychologist relevant to her mental health condition during the qualification period, which is a requirement under the Act for the mental health condition to be recognised in respect of this application for DSP.

12. At the hearing, I explored ways the Applicant might obtain such an assessment, despite her financial difficulties and the effect of what she describes as her agoraphobia. If the Applicant was able to do so, and if a relevant diagnosis was made, it may allow her to promptly lodge a further application for the DSP. That was also an issue canvassed in the AAT decision.

13. Since the hearing, I have conducted open source enquiries through the Services Australia website. As the website makes clear, Centrelink could have had the Applicant assessed after the JCA by a clinical psychologist.[3] Had it done so last year, and had a relevant diagnosis been made, the Applicant may have been found eligible for the DSP from 3 January 2024. Whilst I do not know whether the resulting diagnosis would have enabled the Applicant to obtain the DSP, it is concerning that the matter may have reached this stage without Centrelink engaging with the Applicant for assessment by one of its own contracted clinical psychologists. During the hearing, the Applicant said, in passing, that she had engaged with a psychologist through Centrelink. I do not know whether the Applicant was assessed in that context. If necessary, the Applicant could be encouraged to complete another application for the DSP for that to occur.

    [3] of legislative and policy framework

14. The legislation relevant to this decision is mostly contained in the Act, the Social Security (Administration) Act 1999 (Cth) (Administration Act), the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (the Impairment Determination) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Participation Determination). Unless otherwise stated, all legislative references in this Statement of Reasons are to the Act.

15. I have also taken into account the Guide to Social Security Law (the Guide), which contains government guidelines as to how the legislation is to be applied. In conducting the review, I should apply the policy contained in the Guide where relevant, so long as what it contains is lawful, does not purport to control my decision, and there are no cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57]–[62]. I am not bound to follow the Guide, though, and will record any instance where I disagree with what it contains.

16. A person whose interests were affected by a first review decision of this nature was entitled to seek a further review in the AAT. On 14 October 2024, the AAT was replaced by the Administrative Review Tribunal (the Tribunal). An application for review by the AAT that was not finalised before 14 October 2024 is taken to be an application for review by the Tribunal, and the Tribunal has the authority to continue and finalise any aspect of the review that was not completed by the AAT: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).

17. The application for further review was filed within the prescribed time and I have jurisdiction and power to conduct this second review due to the combined effect of s 131D(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), read with ss 12, 105 and 131C(g) of the ART Act.

18. There is no presumption that the AAT’s Decision is correct.[4] However, whilst I am to review the matter afresh, that does not mean I must do so without regard to what has gone before.[5] In conducting the review, I may have specific regard to the record of the first review proceeding, including the record of any evidence taken in that proceeding. That includes any document or thing relating to the earlier proceeding given to the Tribunal and any order or recommendation the Tribunal made.[6]

    [4] McDonald v Director General of Social Security (1984) 1 FCR 354, 357.

    [5] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [60].

    [6] ART Act, s 131P.

19. I ‘stand in the shoes’[7] of the original decision maker, in that I am to determine for myself, on the material before me, the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision-maker for the purpose of making the original decision. The Tribunal is subject to the same constraints as the original decision-maker.[8] However, as s 9 of the ART Act makes clear, the Tribunal makes its decision independently of the parties.

    [7] Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, 671 (Smithers J).

    [8] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, [51] discussing relevantly indistinguishable provisions of the Administrative Appeals Tribunal Act 1975 (Cth).

    CONSIDERATION

20. Claims for DSP are assessed under the qualification criteria set out in s 94.

21. It provides a set of requirements that must all be met for the Applicant to have qualified for the DSP.

22. Firstly, the Applicant must have a physical, intellectual or psychiatric impairment.[9]

    [9] Section 94(1)(a).

23. Secondly, the Applicant’s medical conditions must attract an assessment of ‘20 points’ using legislative instruction from the Impairment Determination, and the tables within it (wherein a particular type of impairment is described, and points are ascribed to different levels of impairment within that table), as to how those points are to be assessed.[10]

    [10] Section 94(1)(b).

24. Thirdly, the Applicant must have a ‘continuing inability to work’[11], which is again a defined term. If the Applicant is not assessed as having a severe impairment (defined to mean 20 points or more from a single table in the Impairment Determination[12]) the Applicant must have actively participated in a ‘program of support’ (which has a defined meaning) to prepare for or gain employment.[13]

    [11] Section 94(1)(c)(i).

    [12] Section 94(3B).

    [13] Section 94(2)(aa).

25. Fourthly, if the Applicant meets all of those criteria, her impairments must prevent her from working 15 hours per week or more, independently of a program of support, within the next 2 years.[14]

    [14] Section 94(2)(a), read with the definition of ‘work’.

26. The Guide, at 3.6.3.01, states:

    The determination of an impairment rating and the assessment of [continuing inability to work] are 2 separate assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for a person to have a minimum qualifying impairment rating of 20 points or more and the requirement for a person to have a CITW, must both be met and are of equal importance.

27. The Respondent accepts, and the evidence demonstrates, that the Applicant satisfied the first requirement by reference to her spinal condition during the qualification period of 13 weeks from her application for the DSP.[15]

    [15] Schedule 2, subclause 4(1) of the Administration Act sets the qualification period.

28. To apply the impairment tables, as required by paragraph 94(1)(b), and decide whether the Applicant had an impairment rating of 20 points or more, it is necessary to consider[16] – whether each relevant condition has been diagnosed by an appropriately qualified medical practitioner[17]; has been reasonably treated[18]; has been stabilised[19]; and the condition and the resulting impairment is more likely than not, in light of available evidence, to persist for more than 2 years.[20]

    [16] Paragraph 8(3) of the Impairment Determination.

    [17] Above, paragraph 8(3)(a).

    [18] Above, paragraph 8(3)(b).

    [19] Above, paragraph 8(3)(c).

    [20] Above. paragraph 8(3)(d).

29. Paragraph 8(4) of the Impairment Determination provides that, in determining whether a condition has been diagnosed for the purposes of paragraph 8(3)(a), the decision-maker must consider whether there is corroborating evidence of the condition, as set out in the requirements of each table.

30. Paragraph 8(5) of the Impairment Determination then provides that in determining whether a condition has been reasonably treated for the purposes of paragraph 8(3)(b), the decision-maker must consider:

    (a)what treatment or rehabilitation has occurred in relation to the condition; and

    (b)whether treatment is continuing or is planned in the next 2 years and is likely to result in significant functional improvement.

31. Subsection 8(6) of the Impairment Tables provides that a condition is stabilised if either:

    (a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i) significant functional improvement is not expected, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

32. Paragraph 5 of the Impairment Determination defines ‘significant functional improvement’ as ‘improvement that is likely to enable the person to undertake work in the next 2 years.’

    The spinal condition

33. The Respondent accepts, and I am satisfied, that the spinal condition was diagnosed, reasonably treated and stabilised at the time of claim.

34. As to the assessment of the points to be attributed to the spinal condition, it is necessary to consider the available evidence.

35. On 26 June 2020, Dr Michael Corbett, General Practitioner to the Applicant, completed a medical report. Dr Corbett said that the Applicant had been a patient at the practice since April 2016 and had first sought a consultation regarding her back pain in October 2017. Dr Corbett noted that the Applicant had been referred to a neurologist and a pain specialist and had recently undergone a spinal nerve stimulator implant. This report does not directly address the Applicant’s level of functional impairment.

36. On 17 July 2023, Dr Eamonn McCloskey, orthopaedic spinal surgeon, prepared a medical report after reviewing the Applicant. The report noted that the Applicant had undergone a lumbar discectomy in February 2021, however she was still experiencing back pain. The report noted that a spinal fusion could be possible as further treatment, however conservative management was recommended. This report does not directly address the Applicant’s level of functional impairment.

37. On 21 November 2023, Dr John Salmon, a pain specialist, reported that the Applicant had a long history of left sided hip lumbar and leg pain and had undergone L5/S1 discectomy surgery in 2014. Dr Salmon was of the view that the Applicant was unlikely to be able to recommence work due to her neck and back symptoms, but the report does not directly address the Applicant’s level of functional impairment.

38. On 8 April 2024, Mr Danny Smith, trainee physiotherapist, prepared a report for the Applicant. Mr Smith recorded that the Applicant’s lumbar spine range of motion showed global restriction, particularly into rotation bilaterally. Mr Smith ventured the opinion that the Applicant has a complex presentation of musculoskeletal and psychological conditions which impact her ability to work, including housework. Specifically addressing functional impairment, Mr Smith recorded that the Applicant told him she could walk for up to one hour on flat ground and drive up to three hours at a time. He reported that the Applicant could do basic housework and cleaning, however she experienced pain after five minutes.

39. The JCA report, dated 10 April 2024, recorded the following:

    The Applicant reported she has pain through her lower back and down to her legs. The Applicant reported she has been living on her own since separating from her husband a few months ago. She is independent with self-care and light household tasks, but has difficulties with bending for long, and with prolonged sitting, standing and walking. The Applicant estimated being able to walk for about 20 minutes on level ground and being able to drive for up to 30 minutes before needing to stop and rest. The Applicant reported she has difficulties stacking a dishwasher due to repetitive and prolonged bending and is unable to mop or vacuum. She reports she is able to complete her laundry, needing to pull washing out of the washer slowly and feeling some discomfort when hanging out on an overhead line. The Applicant reported she is able to prepare simple meals for herself, but when previously cooking for her family had difficulties being able to lift a heavy pot full of water. The Applicant reports she is able to drive to the local shops, and undertake a grocery shop. She reports she has some difficulty with pushing the trolley. She is unable to take her dogs for a walk due to their pulling on the lead. She reports she has a pulling sensation in her neck when she looks side to side and she finds it difficult to sustain a forward lean, such has having to sit and work at a computer for prolonged period as her back and neck will hurt.

40. The AAT recorded that, at the hearing on first review conducted in July 2024, the Applicant said that:

    …the physiotherapy report she provided was completed by a trainee physiotherapist. The report said she can drive for 3 hours but she pointed out this happened once in January 2024 but had not happened in the 4 years prior to that and she ended up in bed for 3-4 days after. The physiotherapist also reports she has pain after changing bed sheets for 5 minutes, however she is unable to make the bed without help.

    … what she is able to do on a particular day varies. Some days she can’t do much at all and on other days she can do more. …[S]he has a ‘bad day’ 3 or 4 days a week.

    …[S]he has lived alone since January 2024 in the marital home but tends to live in only one room. …[S]he can attend to her self-care, although she can’t always get in the bath, and she has a shower chair… [S]he is able to cook basic meals for herself… [S]he struggles with light housework and with hanging the washing… [S]he shops every 2 weeks. …[S]he can walk around the shop to do her shopping without a break, get things from the shelves and unpack the shopping. She said she struggles with lifting and only has the shopping bags filled part way. The shop attendants pack the bags for her… [S]he said her local supermarket is only 3 miles away, but she can drive to a larger shopping centre 40 minutes away if it is a ‘good day’ for her.

    …[S]he struggles when standing for too long, and she leans on the shopping trolley if she has to stand in a queue. She also reported difficulties sitting for long, depending on the chair, having to shift her position and use lots of cushions to get comfortable… [S]he also struggles with bending, for example cleaning the bath, and she can only do it once.

1. Before me, the Applicant confirmed her concerns that Mr Smith may have inaccurately recorded what she told him, due to his lack of qualifications and experience, which she did not know about at the time. When taken to some relevant aspects of what was recorded in Mr Smith’s report, the Applicant disagreed with the length of time she could walk on flat ground and do housework other than on ‘good days’. However, the Applicant appeared to me to have real difficulty recounting what happened in the past, without reference back to the situation she finds herself in currently. I am satisfied that the evidence recorded in Mr Smith’s report was more likely to have accurately recorded what he was told at the time, given it was, in effect, a contemporaneous record.

2. When the Applicant was taken to what the JCA report recorded as her answers to questions, the Applicant agreed with what was recorded but said she may have been in bed for days after performing some of the tasks described. I am satisfied the JCA report accurately recorded what the Applicant said in answer to questions asked of her, for the same reason as Mr Smith’s report.

3. Noting the Applicant now uses a walking assistance device, she was asked whether that was the case in the qualification period. She said she had the device for many years and used it on and off. She could not recall whether she was using it during the qualification period. I am satisfied that the Applicant would have mentioned using the device to at least one of the people who assessed her within the qualification period, had she required the device during that period.

4. The Applicant also described how her conditions have subsequently worsened, but I am unable to take that into account for the purposes of this review as it does not shed any light on her condition during the qualification period. Where a person’s condition has subsequently worsened, they can make another claim for the DSP.[21]

   [21] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; Fanning and Secretary, Department of Social Services [2014] AATA 447 and Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

5. The impairment table ‘Table 4 – Spinal Function’ relevantly provides for an impairment rated at either 10 points for a ‘moderate’ functional impact, or 20 points for a ‘severe’ functional impact.

6. The Impairment Determination also contains rules for applying the impairment tables, in that:

   (a)Paragraph 10 provides that symptoms reported by a person in relation to their condition can only be taken into account when there is corroborating medical evidence.

   (b)Paragraph 13(1) provides that a rating cannot be applied between consecutive impairment ratings, for example a rating of 15 where the table allows for only 10 or 20 points and a rating must not be assigned unless all descriptors for that level of impairment are satisfied.

   (c)Paragraph 13(4) provides that, when assessing episodic and fluctuating impairments and conditions, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations, as appropriate.

7. To be assigned 10 points:

   (1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

   (a) the person has moderate difficulty sustaining overhead activities such as accessing items above head height; or

   Example: looking up to hang washing on a clothesline.

   (b) the person has moderate difficulty moving their head to look in all directions; or

   Example: turning their head to look over their shoulder;

   (c) the person has moderate difficulty bending forward to pick up a light object placed at knee height; or

   (d) the person has moderate difficulty standing up from a sitting position in a standard chair without assistance.

   Example: the person has moderate difficulty standing after being seated in a dining chair.

   Note 1: the impairment rating level includes a person who can:

   (a) move around independently using a wheelchair and can independently transfer to and from a wheelchair; or

   Example: the person can use a wheelchair accessible toilet independently.

   (b) move around independently using walking aids such as a quad stick, crutches or walking frame.

   Note 2: the person may require additional time and effort to move around a workplace, may need to use accessible entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

8. To be assigned 20 points:

   (1) The person has severe difficulty with at least one of the following:

   (a) looking upwards to perform any overhead activities; or

   (b) either turning their head, or bending their neck at all, without moving their trunk; or

   (c) bending forward to hip height; or

   Example: the person cannot bend forward to wipe a table or pick up a light object weighing less than 1kg from hip height.

   (d) remaining seated for at least 10 minutes.

   Example: the person frequently changes positions between sitting and standing or frequently shifts weight in a chair when seated.

   Note: this impairment rating level includes a person who requires assistance to:

   (a) move around in, or transfer to and from a wheelchair; or

   Example: the person needs personal care assistance to use a toilet;

   (b) move around using walking aids such as a quad stick, crutches or walking frame and the person requires assistance from another person to walk on some surfaces and cannot move independently around a workplace or training facility, even when using a walking aid.

   Example: the person is at significant risk of, or has frequent falls due to balance or other issues.

9. The Respondent submits that the spinal condition should attract an assessment of 10 points. The Applicant submitted that it should be 20 points.

10. Taking into account the totality of the available evidence that I have accepted, and the descriptors contained in Table 4, I find that, as at the date of the Applicant’s claim and for the 13 weeks thereafter, the evidence supported a finding of a moderate functional impact on activities involving spinal function. It follows that an impairment rating of 10 points can be allocated under Table 4 in relation to the spinal condition.

11. I am not satisfied that a higher impairment rating could be allocated at that time because there is no direct and probative evidence the Applicant had a pattern of severe difficulty with any of the elements necessary to find a severe functional impact. I have taken into account the Applicant’s evidence before me that she may have been ‘in bed for days’ after undertaking some activities. I accept that someone being confined to bed by back pain may allow an inference that they would experience severe difficulty with, for example, bending forward to hip height. However, there is a lack of any contemporary evidence to that effect, or of the frequency of it occurring. I have also found that, in evidence, the Applicant had difficulty separating her current circumstances from those at the time. On that basis, I am not satisfied that there was a significant pattern of that occurring during the qualification period, such that it reflects the overall functional impact of the spinal condition, taking into account the severity, duration and frequency of the episodes or fluctuations.

    The mental health condition

12. The introduction to ‘Table 5 – Mental Health Functions’ explains that, for an impairment rating to be assigned under that table, a diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (such as a general practitioner or a psychiatrist) with evidence from a registered psychologist (if the diagnosis has not been made by a psychiatrist).

13. Therefore, if a report from a psychiatrist is not provided, a report from a psychologist is required to accompany a report from another type of appropriately qualified medical practitioner.

14. Whilst the Applicant has provided some evidence in respect of her mental health condition from general practitioners and Dr Salmon[22], there is no supportive evidence of a registered psychologist that diagnosed or assessed her mental health condition during the qualification period.

    [22] Report dated 26 June 2020, Dr Corbett; report dated 16 May 2024, Dr Volger; report dated 21 November 2023, Dr Salmon.

15. Therefore, I agree with the Respondent’s basal contention that the Applicant’s mental health condition cannot be assigned any impairment points as it was not diagnosed and assessed in accordance with the requirements of Table 5 within the qualification period.

    Conclusion as to the assessment of the impairment rating

16. The Applicant did not have an impairment rating of 20 points under the impairment tables during the qualification period, and did not satisfy paragraph 94(1)(b).

17. As that was the decision of the AAT and where the requirements of s 94 are cumulative, I must affirm the decision under review.

    Further consideration

18. However, I should also consider the remaining requirements under s 94.

19. Paragraph 94(1)(c) invokes a requirement that the Applicant has a ‘continuing inability to work’.

20. Subsection 94(2) provides that a person has a continuing inability to work because of an impairment if, relevantly:

    (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) …—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b) in all cases—either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

21. As I have found that the Applicant does not have a severe impairment, i.e. a condition attracting an impairment rating of 20 points or more from one table during the qualification period, she would need to have participated in a ‘program of support’ (which is itself a defined term[23]) in order to be found to have a continuing inability to work. There is no evidence that she has done so. As a result, The Applicant could also not have met the requirements of s 94(2) to qualify for the DSP.

    [23] Section 94(2).

    DECISION

22. The decision under review is affirmed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for the decision herein of Senior Member Suthers.

......................................................................

Associate

Dated: 8 October 2025

Date of hearing:	20 August 2025
Applicant:	Self-represented
Solicitors for the Respondent:	Self-represented by Ms Kelly Richardson