CDXB and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 1130

CDXB and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1130 (25 July 2025)

Applicant/s:  CDXB

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/6013

Tribunal:Senior Member M Kennedy

Place:Adelaide

Date:25 July 2025

Decision:The decision under review is affirmed.

Statement made on 25 July 2025 at 3:18pm

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 subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999

Catchwords

SOCIAL SECURITY - Disability Support Pension – rejection of claim – 2011 Impairment Tables and 2023 Impairment Tables – mental health conditions and brain function conditions – complex PTSD – Attention Deficit Disorder – Autism Spectrum Disorder – mental health conditions – qualification period – no diagnosis of ASD in qualification  period -  evidence of cessation in treatment and reduction in medication usage to sub therapeutic level in qualification  period  – conditions not fully treated and fully stabilised – conditions not reasonably treated and stabilised - insufficient impairment points for qualification – decision under review affirmed

Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023

Statement of Reasons

1. Mr CDXB applied for disability support pension on 14 March 2023.  His application was rejected by Centrelink on 23 August 2023.  An authorised review officer affirmed Centrelink’s decision on 21 May 2024.

2. Mr CDXB applied to the Administrative Appeals Tribunal (AAT) for review on 31 May 2024.  On 26 July 2024 the AAT affirmed Centrelink’s decision.

3. In doing so, the AAT accepted that Mr CDXB’s conditions of post-traumatic stress disorder (PTSD), anxiety, depression and attention deficit hyperactivity disorder (ADHD or ADD) were fully diagnosed, but none were fully treated and stabilised, finding that during the relevant period the medical evidence available established that Mr CDXB’s medication regime was sub-therapeutic.  The AAT had noted that Mr CDXB had not consulted his treating psychiatrist and had said he was rationing his medication during the relevant period.

4. In relation to Mr CDXB’s claimed condition of autism spectrum disorder (ASD), the AAT found that it had not been diagnosed in the relevant period. 

5. The AAT found that Mr CDXB’s conditions were not amenable to being assigned impairment points, and consequently he did not qualify for the grant of DSP.

6. Mr CDXB applied to the AAT for second review on 19 August 2024. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.

7. On 13 November 2024, Centrelink granted Mr CDXB DSP on the basis of a new claim he had lodged on 31 May 2024.  It is apparent from supplementary Tribunal documents lodged by the Secretary that Centrelink relied upon a report of a Psychiatrist (Dr “E”) dated 18 August 2024 to conclude that Mr CDXB was qualified.  It is important to note that the report of Dr “E” substantially post-dates the qualification period (discussed below).  It is also to be noted that the content of the report in relation to functional incapacity caused by mental health conditions is, in many respects, somewhat inconsistent with observations made by an earlier treating psychiatrist (Dr “L”) prior to the qualification period. 

8. However, I am not reviewing Centrelink’s decision to grant Mr CDXB DSP from his claim of 31 May 2024, but rather the decision of the AAT affirming the decision to reject his claim of 14 March 2023.  What is practically at stake therefore is Mr CDXB’s entitlement to arrears of DSP for a period of either 14 March 2023 to 30 May 2024, 1 April 2023 to 30 May 2024[1], or neither.

   [1] See paragraph 14

9. Mr CDXB has expressed his grievance with the process he experienced in relation to his claim of 14 March 2023, explaining that he was repeatedly assured that all was in order and there was no further information required, only to be rejected many months later without being asked to provide the updated medical information.  I note that grievance, understandable from Mr CDXB’s perspective given the subsequent grant, but I also reiterate that my task is to review the decision to reject the claim of 14 March 2023 by reference to the legislative framework and relevant evidence described below.

   CONSIDERATION

10. Medical qualification for DSP is provided for in section 94 of the Social Security Act 1991 (the Act).  It requires, among other matters, that a person have a physical, intellectual or psychiatric impairment, and that the person’s impairment is of 20 points or more under the impairment tables: paragraphs 94(1)(a) and (b) of the Act.

11. It is settled that it is in the 13-week period from the date of claim that medical evidence must establish the entitlement to DSP: Gallacher v SDSS [2015] FCA 1123 and sections 41 and 42 and Schedule 2 to the Social Security (Administration) Act 1999.  Evidence of subsequent changes to health and functional capacity is irrelevant. Later medical evidence that comes into existence outside that period may still be relevant if it casts light on the condition during the 13-week qualification period.

12. In Mr CDXB’s case, the qualification period can therefore be seen to be 14 March 2023 to 13 June 2023. 

13. During this period, the applicable legislative framework for the assessment of qualification for DSP changed.  On the date of claim, the assignment of impairment points for functional impairment was regulated by the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the 2011 Impairment Tables).  For claims lodged on and from 1 April 2023 however, new impairment tables took effect through the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (the 2023 Impairment Tables).

14. The Secretary contends, and I accept, that Mr CDXB’s application must be assessed against both impairment tables.  In the event that Mr CDXB would qualify under the 2023 Impairment Tables, but not the 2011 Impairment Tables (and if other criteria were met), he would qualify from the date the 2023 Impairment Tables applied: 1 April 2023. 

15. This submission has as its foundation the effect of section 4 of Part 2 of Schedule 2 to the Social Security (Administration) Act 1999, which relevantly provides that if a person makes a claim but is not qualified on the date of claim, but will become qualified because of the passage of time or the occurrence of an event within 13 weeks of the date of claim, then the claim is taken to be made on the first day on which the person is qualified.  In this way, if the coming into force of the 2023 Impairment Tables is accepted to relevantly be the occurrence of an event because of which Mr CDXB becomes qualified, then the claim is taken to be made on the day the 2023 Impairment Tables come into effect.

16. The construction is open on the language of Section 4 of Part 2 of Schedule 2 to the Social Security (Administration) Act 1999 in my view.  I accept the Secretary’s construction recognising it is the most natural and direct interpretation of the language of the provision and is in any event beneficial.  Ultimately however, in the final analysis, I note nothing turns on this in Mr CDXB’s case.

    Do Mr CDXB’s impairments rate at least 20 points under the 2011 Impairment Tables?

17. As mentioned, functional incapacity caused by impairment is to be rated against the Impairment Tables.  Relevantly, for an application for DSP lodged on 14 March 2023, the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 are applicable. 

18. The 2011 Impairment Tables include directions as to how they are to be applied.  Relevantly, and amongst other requirements and definitions:  

    ·subsection 6(3) of the Impairment Tables provides that a rating can only be applied if the condition is ‘permanent’ and the impairment that results from the condition is more likely than not to persist for more than 2 years;

    ·subsection 6(4) provides that a condition will be ‘permanent’ if it has been fully diagnosed, fully treated and fully stabilised, and is more likely than not to persist for more than 2 years;

    ·subsection 6(5) provides that in deciding whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and fully treated, a decision maker must consider corroborating evidence for the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned in the next 2 years; and

    ·subsection 6(6) provides that a condition is fully stabilised if the person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake  work in the next 2 years.

19. The 2023 Impairment Tables are similar, but not identical.  Like the 2011 Impairment Tables, an impairment rating can only be assigned if the condition has been diagnosed by an appropriately qualified medical practitioner, and in determining diagnosis there must be corroborative evidence of the condition as set out in the requirements of each table: section 8(3) and 8(4) of the 2023 Impairment Tables.

20. The 2023 Impairment tables also require that a condition be treated, using the term ‘reasonably treated’.  This concept is further explained by requiring consideration of what treatment or rehabilitation has occurred and whether it is continuing or is planned in the next 2 years, and whether it is likely to result in significant functional improvement: subsection 8(5) of the 2023 Impairment Tables.  Reasonable treatment is further defined at subsection 8(7) of the Impairment Tables, but no issue arises in relation to that definition in this matter.

21. Finally, and relevantly, subsection 8(6) of the 2023 Impairment Tables provide that a condition  is stabilised if either a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement, or the person has not undertaken reasonable treatment and significant functional improvement is not expected even if the person undertakes reasonable treatment, or there is medical or other compelling reason for the person not to undertake reasonable treatment.

22. In these reasons, I will assess Mr CDXB’s conditions as to whether they are fully or reasonably treated and stabilised.  To avoid doubt, I am not intending to conflate those terms, and nor do I fail to recognise that the changes to the language between the 2011 and 2023 Impairment Tables are intended to have legal meaning. My use of the composite phrase is to indicate that I have assessed the evidence against both the test set out in the 2011 and 2023 Impairment Tables.

    Autism spectrum disorder

23. A clearly expressed diagnosis of ASD is elusive prior to the report of Dr “E” dated 18 August 2024, which is well outside the qualification period.  Earlier (but still after the qualification period) Dr “E” had completed a report of 29 April 2024 and mentioned that he considered Mr CDXB’s symptom complex was suggestive of ASD, and observed he would need a referral to a clinical psychologist to ‘r/o’ (which I interpret to mean ‘rule out’) ASD.  The reservation as expressed in relation to ASD and the expressed need to consult another speciality leads me to conclude that report falls short of a diagnosis.

24. Medical certificates issued during or more proximate to the qualification period do not  identify ASD as a diagnosed condition.  A referral note from General Practitioner Dr “A” to psychiatrist Dr “L” of 1 July 2021 queries ASD, but neither of the two reports of Dr “L” (21 October 2021 and 27 January 2022) mention that diagnosis.

25. A GP Mental Health Care plan dated 22 May 2024 records Mr CDXB ‘seeking a diagnosis as per psychiatrist’ as the presenting issue.

26. I am not satisfied that ASD was diagnosed prior to or during the qualification period.  It follows that the condition is not amenable to attracting Impairment Points under either the 2011 Impairment Tables or the 2023 Impairment Tables.

    Diagnosis - Post Traumatic Stress Disorder, Complex Post Traumatic Stress Disorder,  Depression and Anxiety

27. Mr CDXB consulted Dr “L” (Consultant Psychiatrist) on or about 21 October 2021 following a referral from his General Practitioner.  In Dr “L”’s report, Dr “L” identifies longstanding dysthymia , and an acute adjustment reaction with anxious mood.  Prior to this, there is also a body of medical certificates recording depression and anxiety as a diagnosis.

28. Dr “L” confirms a diagnosis of complex post traumatic stress disorder (cPTSD), recognising the impact of longstanding childhood developmental trauma.  I am satisfied that Mr CDXB’s conditions of depression, anxiety and cPTSD are fully diagnosed, meeting the requirement in the introduction to Table 5 of the 2011 Impairment Tables that the diagnosis be made by an appropriately qualified medical practitioner, and that evidence from a clinical psychologist is not required where the diagnosis is made by a psychiatrist. It also follows that this condition is diagnosed for the purpose of the 2023 Impairment Tables.

    Diagnosis – Attention Deficit Disorder

29. Dr “L” does not mention ADD in his letter of 21 October 2021, but discussed Mr CDXB’s excellent response to dexamphetamine in a letter to Dr “A” of 27 June 2022. In this regard I proceed on a lay understanding that dexamphetamine is a treatment for ADD.

30. A letter dated 17 August 2023 from Dr “L” to Centrelink confirms Dr “L” has diagnosed Mr CDXB with PTSD (perhaps intended to refer to cPTSD given the detail in the earlier report) and ADD.

31. I am satisfied that Mr CDXB’s condition of ADD is fully diagnosed for the purpose of both the 2011 and 2023 Impairment Tables.

    Is Mr CDXB’s ADD, cPTSD, Depression and Anxiety fully or reasonably treated and stabilised?

32. The Secretary contends that Mr CDXB’s ADD, cPTSD, depression and anxiety are not fully treated and stabilised during the qualification period.  In this regard, the Secretary points to the evidence available of Mr CDXB’s level of functionality as reported by Dr “L” in 2022 when engaged in treatment and the level of functionality after the qualification period. 

33. The Secretary further relies upon records of prescriptions of medications dispensed to Mr CDXB under the Pharmaceutical Benefits Scheme (PBS), to contend that Mr CDXB was not taking medication as prescribed, and as such the conditions of ADHD, anxiety and depression were not fully or reasonably treated or stabilised.

34. The Secretary contends that these records demonstrate that Mr CDXB accessed dexamphetamine monthly from 2 December 2021 to May 2022, and there was then a gap of 5 months to September 2022 where the medication was not accessed.

35. In response to these observations, in cross examination, Mr CDXB explained that the dexamphetamine is a controlled substance and there are many hoops to jump through in order to access it.  Mr CDXB explained that his life circumstances at the time were challenging and it wasn’t viable for him to access it.

36. He also explained that there were many days when he didn’t need to take all three doses of the medication, and so he was able to keep some doses in reserve, as there were 100 pills in each bottle.

37. In relation to other medication, the Secretary also observed that Mr CDXB appeared not have accessed escitalopram between November 2022 and 16 November 2023, except for one occasion on 4 March 2023.  I note that the PBS records establish that Mr CDXB had escitalopram dispensed monthly prior to this period.  In response Mr CDXB asserted there had not been a time when he wasn’t taking it, but I do not accept Mr CDXB’s evidence in this regard in light of the PBS records.  I am satisfied on the basis of those records that Mr CDXB had not been and was not taking that medication as prescribed.

38. As discussed with the parties at the hearing, I am conscious that care and judgment must be exercised in concluding that because a prescribed course of medication is not being strictly followed that therefore a mental health condition is not fully or reasonably treated.  I am conscious that there are some mental health conditions where difficulties in following the medication regime strictly can essentially be understood to be a feature of the condition, and it will be a matter of fact and degree.

39. The observations of the AAT in this regard should not be overlooked.  The member,  accurately in my view,  tracked the medical evidence from 2013, identifying that Mr CDXB had worked for 10 years despite the diagnosis of mental health conditions  in 2013, before the more recent medical evidence which I have addressed.

40. The medical evidence also demonstrates, as observed by the AAT, that following intervention by Dr “L” and the recommencement of medication there appeared to have been an excellent response, with significant functional improvement.

41. Also as identified by the AAT, there is indeed a significant gap in medical evidence including for periods contemporaneous to the qualification period, before the medical evidence of Dr “E documents the reintroduction of medication (particularly the dexamphetamine) at that time. In his evidence to the AAT, Mr CDXB is documented to have told the member that he had rationed his medication during this period and was on a lower dose, which the AAT member described as sub-therapeutic.  Mr CDXB told me in his evidence that Dr “L”’s letter of 28 April 2022 coincided with the last occasion he had consulted Dr “L”.  I note that Dr “L” had indicated he wished to review Mr CDXB at  the end of that year (so approximately in 6 months).

42. The Secretary asks me to draw the inference that during the qualification period Mr CDXB’s cPTSD, ADD, depression and anxiety was neither fully nor reasonably treated and stabilised.  On careful reflection of the medical evidence, the PBS evidence and Mr CDXB’s response to those matters, I find that these conditions were not fully or reasonably treated or stabilised during the qualification period.  In particular, as Mr CDXB had ceased consulting his psychiatrist for review and had either ceased his medication, reduced it or commenced rationing it, I cannot be satisfied that his condition was fully treated or reasonably treated. In this regard I note the degree to which the treatment previously initiated by Dr “L” was documented to have assisted Mr CDXB and positively impacted on his functional capacity.

43. Therefore, I am not satisfied that these conditions are amenable to attracting Impairment Points under either the 2011 Impairment Tables or the 2023 Impairment Tables.

44. For completeness, I also record that in the course of the hearing, I explored with Mr CDXB the observation made by Dr “L” as to the improvement in his functional capacity in April 2022, including making progress in finding a new job, advancing creative pursuits and longer term career goals.  I note that this evidence appears to be the most relevant evidence for the purpose of seeking corroboration of function incapacity during the qualification  period.   These observations of Dr “L” and Mr CDXB’s answers to my questions addressing the various domains in Table 5 and, indirectly, Table 7 of both the 2011 Impairment Tables and the 2023 Impairment Tables raise a real question as to whether Mr CDXB’s mental health conditions had a severe functional impact during the qualification period under either Table 5 or Table 7 of the respective Impairment Tables.  As I have found that the conditions were not fully or reasonably treated and stabilised during the qualification period, it is unnecessary to reach firm findings in that regard.

    Conclusion

1. As I am satisfied that Mr CDXB’s conditions were either not diagnosed, or were not fully or reasonably treated and stabilised during the qualification period, no Impairment Points may be assigned under either the 2011 or 2023 Impairment Tables.

2. It is an essential criterion for qualification for DSP that a person’s impairment is of 20 points or more under the Impairment Tables: paragraph 94(1)(b) of the Act.  For the reasons set out above, while I accept Mr CDXB has a number of medical conditions impacting on his health, there are insufficient impairment points to qualify during that relevant period. In these circumstances, it is not necessary to consider whether during the qualification period Mr CDXB had a continuing inability to work within the meaning of paragraph 94(1)(c) of the Act.

   DECISION

   The decision under review is affirmed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kennedy.

...............................[SGND]....................................

Associate, 25 July 2025

Date of hearing:	11 July 2024
Applicant:	Self-Represented
Advocate for the Respondent:	L. Manalili (Services Australia)