Colbeck and Secretary, Department of Social services (Social security)
[2025] ARTA 1845
•16 July 2025
Colbeck and Secretary, Department of Social services (Social security) [2025] ARTA 1845 (16 July 2025)
Applicant/s: Mr Colbeck
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2025/B193945
Tribunal: Member R King
Place:Brisbane
Date:16 July 2025
Decision:The Tribunal affirms the decision under review.
SOCIAL SECURITY – Disability Support Pension – claim rejected – no impairment ratings assigned – doctor suggests an impairment rating of 20 points – accepted into rehabilitation – not reasonably treated and stabilised until rehabilitation complete or further participation would yield no gains – decision under review affirmed
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
Mr Colbeck is [an age]-year-old [Occupation 1] who suffered [Medical condition 1] in November 2024, while being prepared for surgery to treat his [Medical condition 2]. He has been unable to work since because of his [Medical condition 1] problems.
Mr Colbeck claimed disability support pension (DSP) on 18 December 2024. His claim was rejected on 3 January 2025, a decision that was affirmed by a Centrelink authorised review officer (ARO), following internal review, on 20 February 2025.
On 28 March 2025, Mr Colbeck applied to this Tribunal for external review of Centrelink’s decision to reject the claim for DSP that he lodged on 18 December 2024.
ISSUES
The statutory provisions relevant to this review are set out in the Social Security Act 1991 (the Act).
To qualify for DSP, pursuant to section 94 of the Act, a person must meet the residency requirements, have a physical, psychiatric or intellectual impairment, a total impairment rating of at least 20 points and a continuing inability to work.
The impairment rating must be in accordance with the Impairment Tables, which form part of a Ministerial Determination under subsection 26(1) of the Act. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 was in force at the time of MrColbeck’s claim. An impairment rating can only be assigned when the condition or conditions responsible for the impairment have been diagnosed, reasonably treated and stabilised and if the condition and the resulting impairment are likely to persist for more than two years.
There are a total of 15 Tables, each of which concerns a specific area of function. Of most relevance to this application is Table 1 (Functions requiring Physical Exertion and Stamina). When assigning an impairment rating, the decision maker cannot rely solely on evidence regarding functioning that is provided by the applicant. There must be corroborating evidence from a medical practitioner or another person with the expertise and independence necessary to form an objective opinion regarding the person’s ability to function.
When a person has a severe impairment (an impairment that is assigned 20 points or more under a single Table), a continuing inability to work means that the person will be unable to work for 15 or more hours per week for a period of at least two years from the date of claim. When the impairment is not severe, the person must also have actively participated in a program of support, the requirements for which are set out in a Ministerial Determination entitled the Social Security (Active Participation for Disability Support Pension) Determination 2014.
The issue which arises in this case is whether Mr Colbeck qualified for DSP when he claimed on 18 December 2024.
CONSIDERATION
The evidence before me comprises:
(i)documents submitted by Centrelink (the hearing papers) as being relevant to the original decision and the internal review of that decision;
(ii)sworn evidence provided by Mr Colbeck during a telephone hearing on 2 July 2025, at which time Mr Colbeck was represented by Mr [A] from [Organisation 1] who made oral submissions; and,
(iii)a written submission and associated medical evidence provided by Mr [A].
Centrelink’s position is set out in the ARO’s decision statement. The ARO accepted that Mr Colbeck had significant impairment as a result of his [Medical condition 1] and possible impairment as a result of his [Medical condition 2]. However, the ARO found impairment ratings could not be assigned in respect of this impairment because the conditions responsible for the impairment had not been diagnosed, reasonably treated and stabilised, in accordance with the requirements set out in the Impairment Tables, at the time of claim. This meant that he did not meet the qualifying requirement of an impairment rating of 20 points or more. It followed that he did not qualify for DSP.
Mr Colbeck told me that he accepted that his [Medical condition 1] was not diagnosed until some time in January 2025. He said that he had expected his claim to be rejected but Centrelink encouraged him to lodge a claim because it appeared that his health difficulties would prevent him from undertaking work in the foreseeable future. He said that his specialist had advised him to avoid any kind of exertion.
Mr [A] submitted that the medical evidence provided by Mr Colbeck’s treating GP (Dr [B]) established that Mr Colbeck’s [Medical condition 1] was diagnosed, reasonably treated and stabilised by 25 January 2025. As this was within 13 weeks of his claim, Centrelink was able to assign an impairment rating. Mr [A] submitted that Mr Colbeck’s evidence regarding his physical limitations was corroborated by the medical evidence and was consistent with an impairment rating of 20 points under Table 1 of the Impairment Tables. Mr [A] further submitted that the medical evidence was consistent with a finding that Mr Colbeck has a continuing inability to work. This means that he qualified for DSP within 13 weeks of his claim and Centrelink’s decision to reject his claim should be set aside.
Did Mr Colbeck qualify for DSP when he claimed on 18 December 2024?
During the hearing, Mr Colbeck was clear that it was his [Medical condition 1] rather than his [Medical condition 2] that was likely to prevent him from returning to work in the foreseeable future. Mr [A] also submitted that Mr Colbeck’s [Medical condition 1] provided the grounds for an impairment rating of 20 points under Table 1 of the Impairment Tables. He stated “we have no evidence to argue that Mr Colbeck had any other conditions that were diagnosed, reasonably treated and stabilised so we have confined our submission to his [Medical condition 1]”.
I am satisfied that the medical evidence indicates that Mr Colbeck’s [Medical condition 1] is the primary, if not sole, source of impairment to Mr Colbeck’s work-related functioning. It follows that the success of Mr Colbeck’s application depends on a finding that Mr Colbeck can be assigned an impairment rating of at least 20 points under the Impairment Tables. In accordance with the introduction to the Impairment Tables, I can only assign an impairment rating if I am satisfied that Mr Colbeck’s [Medical condition 1] was diagnosed, reasonably treated and stabilised when he claimed disability support pension.
Neither Mr Colbeck nor Mr Davidson submitted that this was the case. Rather, Mr [A] submitted that an impairment rating could be assigned if I was satisfied that Mr Colbeck’s [Medical condition 1] was diagnosed and reasonably treated within 13 weeks of his claim. He submitted that Dr [B’s] evidence was consistent with such a finding.
Mr [A] did not provide the legal reasoning that led to his submission that a decision to reject a claim could be set aside, even though there was no basis for assigning an impairment rating at the time of claim, as long as a basis for assigning an impairment rating was established within 13 weeks of the claim. However, decision-makers have at various times relied on the early claim provisions in Appendix 2 to the Social Security (Administration) Act 1999 (the Admin Act), to make such an argument. I will therefore make some comments about these provisions and also about section 39 of the Admin Act, which requires that a claim is rejected if not determined within 13 weeks (unless Centrelink requests that the applicant provide further information).
Subclause 4(1) of Appendix 2 to the Admin Act states:
If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
I am of the view that the proper reading of this subclause requires a rather narrower interpretation of “the person will, because of the passage of time or the occurrence of an event, become qualified …” than is necessary to treat it as enabling the provision to create what is in effect a 13-week window after a claim to qualify for a social security payment. The provision restricts such post-claim qualification to circumstances where the passage of time or the occurrence of an event would qualify a person for a payment. The most widespread application of this provision is in early claims for age pension, where the passage of time ensures the occurrence of the qualifying event (reaching pension age). In my view, the provision should be restricted in its application to such events that will necessarily occur as a result of the passage of time, rather than indeterminate events such as a diagnosis being made, reasonable treatment being completed and stabilisation being achieved. Such indeterminate events may or may not occur as a result of the passage of time within a 13-week period following a claim and therefore it cannot be said that the person “will … become qualified within the period of 13 weeks”, as required for the application of the early claim provisions in Schedule 2 to the Admin Act.
As neither the occurrence nor the timing of such indeterminate events can be known at the time of claim a claim should not be lodged until such time as the events have occurred (or at least the applicant believes they have occurred). Centrelink is, in my view, entitled to reject a claim if the evidence suggests the person is not qualified, even though there is the possibility of qualification within 13 weeks, except when it is clear that a person will qualify within 13 weeks because of the passage of time or the occurrence of an event which it is known will occur within 13 weeks at the time of claim.
Pursuant to section 39 of the Admin Act, a claim is automatically rejected after 13 weeks if not already determined, unless Centrelink has asked the applicant to provide further information, in which case additional time can be allowed. Section 39 thereby provides a 13-week (or greater) window within which qualification can be established. However, the purpose of this window is, in my view, to allow an applicant to provide evidence of qualification at the time of claim. Section 39 does not establish a period within which a person can become qualified, if they did not already qualify at the time of claim.
As it is not in dispute that Mr Colbeck’s [Medical condition 1] was neither diagnosed, nor reasonably treated when he claimed DSP, there is no basis for me to assign an impairment rating under the Impairment Tables in respect of impairment caused by this condition.
Even if I was to accept Mr [A]’s submission (which I do not), I am not satisfied that the evidence establishes that Mr Colbeck’s [Medical condition 1] was reasonably treated and stabilised within 13 weeks of his claim. During the hearing, Mr Colbeck told me that he has been attending [rehabilitation] at [Hospital 1] since around April this year. I doubt Mr Colbeck would have been accepted into [rehabilitation] unless there was a reasonable prospect that he could develop his capacity for exertion and/or his stamina, such as to enable him to better manage the requirements of everyday living. Even modest gains could result in a change in classification from severe impairment to moderate impairment under Table 1 of the Impairment Tables and could also improve his work capacity (even if his work capacity remained restricted to fairly sedentary work). It would therefore be inappropriate to regard his condition as reasonably treated and stabilised until such time as he completes his program or there is evidence that further participation would yield no functional gains.
While I accept that Dr [B] was of the view that Mr Colbeck’s [Medical condition 1] had been diagnosed, reasonably treated and stabilised by the end of January 2025, I suspect that Dr [B] was taking a rather narrow medical perspective and meant that further medical interventions such as medications or procedures were unlikely to yield functional gains. I have to consider the likely impact of a range of reasonable interventions, and I am satisfied that [rehabilitation] is a reasonable intervention. It may not reverse the damage to Mr Colbeck’s [Organ 1], but functioning is dependent not only on the effective treatment of pathology but also the development of compensatory capacities. This is the function of a rehabilitation program, which, in this case, had not even commenced within 13 weeks of Mr Colbeck’s claim.
Overall, I am satisfied that there is no basis for assigning an impairment rating in respect of Mr Colbeck’s [Medical condition 1]. As this is the only condition that is clearly compromising Mr Colbeck’s work-related functioning, Mr Colbeck could not qualify for DSP as he did not meet the threshold impairment rating of 20 impairment points, pursuant to section 94 of the Impairment Tables.
It follows that I must affirm Centrelink’s decision to reject the claim for DSP that Mr Colbeck lodged on 18 December 2024.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | Wednesday, 2 July 2025 |
| Representative for the Applicant: | Mr [A], [Organisation 1]. |
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