DVQD and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 1521
•25 August 2025
DVQD and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1521 (25 August 2025)
Applicant:DVQD
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/2977
Tribunal:Senior Member S Trotter (second review)
Place:Brisbane
Date:25 August 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that that the Applicant satisfied paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 as of 23 March 2021 and remained medically qualified for disability support pension.
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 – cancellation – spinal condition – whether impairment rating of 20 points could be assigned as at date of cancellation – subsequent evidence of impairment at the relevant time – decision under review set aside
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Cases
Eid & Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2013] AATA 558
MDXJ v Secretary, Department of Social Services [2020] FCA 1767Secondary Materials
Nil
Statement of Reasons
Mrs DVQD (the Applicant) seeks review of a decision of the Respondent to cancel payment of disability support pension to her from 23 March 2021.
The Applicant had been in receipt of disability support pension since 8 February 2005, prior to cancellation from 23 March 2021. Disability support pension was subsequently re-granted to the Applicant from 25 February 2024. Therefore, essentially what is at issue is whether the Applicant was medically qualified for disability support pension between 23 March 2021 and 25 February 2024.
On 9 February 2021, Services Australia – Centrelink on behalf the Respondent (Centrelink)[1] decided to cancel payment of disability support pension to the Applicant on the basis that the Applicant did not have an impairment rating of 20 points, as required to remain qualified for disability support pension.
[1] Services Australia delivers social security payments and services and is overseen by the Department of Social Services. The Respondent is responsible for the overall management and administration of the Department of Social Security. Centrelink is the Government Agency that delivers social security payments and services as part of Services Australia and as the Agency with whom pension and benefit applicants/ recipients interact, the Respondent may be variously referred to as Centrelink or the Respondent throughout these Reasons.
The Applicant requested a review of this decision and, on 28 April 2021, a Centrelink authorised review officer affirmed the decision.
On 12 July 2021, following an application lodged on 7 May 2021, the Administrative Appeals Tribunal (the AAT) in its then Social Security and Child Support Division (SSCSD), affirmed the decision of the authorised review officer. The Applicant’s application was subsequently reheard and reconsidered by the SSCSD and, on 22 April 2024, the SSCSD again affirmed the decision of the authorised review officer.[2]
[2] The rehearing of the Applicant’s first review application was on the basis that it was determined that the previous hearing and decision were void and had no legal effect because the member of the Tribunal who had heard the matter was outside Australia at the time of the hearing.
On 14 May 2024, the Applicant lodged an application with the AAT seeking second review of the decision of the SSCSD.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The Applicant and the Respondent’s representative participated in a hearing by telephone before me on 26 June 2025, with the Applicant giving sworn evidence. I also heard sworn evidence from a doctor within the Health Professional Advisory Unit of Centrelink (referred to in these Reasons as Dr AA).
In addition to the oral evidence and submissions at hearing, a joint bundle of hearing documents was before me and marked as Exhibit 1, incorporating the following documents:
· Applicant’s documents as follows:
- Medical report Indicating Dosage Plan by Dr Md Shahnur Rahman, pages 1 to 3;
- Medical certificate by Dr Md Shahnur Rhaman, pages 4 to 6;
- Medical report by Dr Benjamin Omowaire and submissions on behalf of the Applicant, by Tamara Chin (Basic Rights Queensland), pages 7 to 10;
· Respondent’s documents as follows:
- HPAU (Heath Professional Advisory Unit) report, pages 11 to 20;
- Respondent’s Statement of Facts, Issues and Contentions (SFIC), pages 21 to 143;
- Documents provided by the Respondent pursuant to section 37 of the then Administrative Appeals Tribunal Act 1975 (the AAT Act), “the T-Documents”, (T1-T27 comprising pages 1-227), pages 144 to 373.
ISSUES
The statutory provisions setting out the qualification requirements for disability support pension are contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
I also had regard to the Social Security Guide (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 69.
I acknowledge that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for me to take into account in performing the review task and that a lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision.
Pursuant to section 80 of the Administration Act, a social security payment is to be cancelled or suspended if a person is not qualified for the payment.
The medical qualification requirements for disability support pension include those set out in paragraphs 94(1)(a), (b) and (c) of the Act. Each much be satisfied for a person to be medically qualified for disability support pension.
Paragraph 94(1)(a) requires that a person has a physical, intellectual or psychiatric impairment.
To satisfy paragraph 94(1)(b) of the Act, a person must have an impairment rating of at least 20 points under the Impairment Tables in operation at the relevant date. The relevant date in relation to a cancellation decision is the date of notification of the review of the Applicant’s entitlement to disability support pension – in this case, 11 November 2020.[3] At that date, the applicable Impairment Tables were those contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), which commenced on 1 January 2012. All references to the Impairment Tables in these Reasons are references to that Determination.
[3] Paragraph 4.14 of the Respondent’s SFIC.
Only conditions which are permanent can be assigned a rating under the Impairment Tables. The word “permanent” does not have its ordinary meaning for these purposes; rather, it is defined to mean a condition that is fully diagnosed, fully treated, and fully stabilised, and is more likely than not to persist for more than two years. Section 6 of the Impairment Tables specifies matters to be taken into account when considering whether a condition has been fully diagnosed, fully treated and fully stabilised.
Each Impairment Table includes a set of descriptors, which provide examples of functional impacts of permanent conditions, to which an applicant’s symptoms are compared to arrive at a point allocation. Symptoms must be corroborated by medical or similar evidence before they can be taken into account (see subsection 8(1) of the Impairment Tables and the introduction to each Table).
To satisfy paragraph 94(1)(c) of the Act a person (not part of the supported wage system) must also have a “continuing inability to work”. This term is defined in subsection 94(2) of the Act.
I am required to determine the Applicant’s qualification for disability support pension, as of 23 March 2021, being the date from which payment was cancelled.
It follows from the relevant statutory provisions that the issues for me to determine are:
(a) Did the Applicant have a physical, intellectual or psychiatric impairment as of 23 March 2021? And, if so,
(b) What impairment rating(s) can be assigned in relation to any permanent condition(s) impacting upon the Applicant as of 23 March 2021? And
(c) Did the Applicant have a continuing inability to work as of 23 March 2021?
CONSIDERATION
The Respondent’s position is that as of 23 March 2021 the medical evidence did not support a finding that the Applicant’s impairments rated 20 points or more under the Impairment Tables. Accordingly, the Applicant did not satisfy paragraph 94(1)(b) of the Act and therefore did not qualify for disability support pension at that time.[4] The Respondent accepts, however, that paragraph 94(1)(a) and (c) were met at the relevant date.
[4] Paragraph 5.2 of the Respondent’s SFIC.
The Applicant’s position is that she had been on disability support pension for a long time, her conditions were fully diagnosed, fully treated and fully stabilised, and her health had not changed. She stated that she feels penalised because she was not attending the doctor consistently for treatment when the conditions were already fully treated.
Issue 1 – Did the Applicant have a physical, intellectual or psychiatric impairment as of 23 March 2021?
Having reviewed the medical reports in evidence, I am satisfied that as of 23 March 2021 the Applicant had impairments caused by a spinal condition and a mental health condition. I therefore find the Applicant satisfied paragraph 94(1)(a) of the Act at that date. I note that, as already noted, the Respondent accepts that paragraph 94(1)(a) of the Act was satisfied as of 23 March 2021.
Issue 2 – What impairment rating(s) can be assigned in relation to any permanent condition(s) impacting upon the Applicant as of 23 March 2021?
Spinal condition
The Respondent does not dispute that the spinal condition impacting the Applicant was fully diagnosed, fully treated and fully stabilised as of 23 March 2021. However, the Respondent contends that only 5 points could be allocated under the relevant Impairment Table, Table 4, in relation to the functional impact of that condition upon the Applicant at that time. Based upon the medical evidence before me, I find that the spinal condition impacting upon the Applicant was fully diagnosed, fully treated and fully stabilised as of 23 March 2021. Accordingly, an impairment rating can be allocated for the functional impact of the condition upon the Applicant at that time.
The relevant Impairment Table is Table 4, which assigns impairment ratings for a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck and contains the following points and corresponding descriptors:
Points Descriptors 0 There is no functional impact on activities involving spinal function.
(1) The person can:
(a) bend down to pick a light object off the floor (e.g. a piece of paper); and
(b) turn their trunk from side to side; and
(c) turn their head to look to the sides or upwards.
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10 There is a moderate functional impact on activities involving spinal function.
(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 is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20 There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
30 There is an extreme functional impact on activities involving spinal function.
(1) The person is:
(a) completely unable to perform activities involving spinal function; or
(b) unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).
The medical evidence of potential relevance to the functional impairment upon the Applicant as a result of the spinal condition as of 23 March 2021 included the following:
(a)Job Capacity Assessor Report of 23 December 2020,[5] including as follows:
[5] Document T14, pages 142 to 149 of the T-Documents
Customer reports she takes panadine 2x 3 daily. Customer reports she uses to be on morphine and now she has been medically encouraged to reduce her medication. Since stopping morphine many years ago, this reduces the need for rest due to feeling tired all day to now having fewer sleeps during the day. Customer reports her pain management was maintained rather than presenting for surgery.
Customer continues to self-manage and does not need to see her doctor. Last time she spoke to the doctor about pain management was in 2005/6. Customer reports she moved to Hervey Bay 2004 with this doctor. Customer reports she has been with the same doctor since that time.
Customer complained of brain fog and numbness in leg at times.Customer reports she has walking limited to 20 minutes and then she can sit down to rest for 1 hours depending on the pain she may experience. Customer reports she takes frequent rests when moving around. Customer reports she can pace herself around the house and her partner does the picking up and putting things away. She can not always bend and she reports her partner helps and the partner is her carer.
(b)Report of Dr Sam Osedimilehin, general practitioner, Divine Medical & Cosmetic Skin Centre, dated 7 December 2020,[6] including as follows:
[6] Document T13, pages 134 to 141 of the T-Documents.
Occasionally affects her walking/standing.
(c)Report of Dr Benjamin Omowaire, general practitioner, Fraser Shores Medical Centre and Hervey Bay Skin, dated 17 January 2024,[7] including as follows:
[7] Document T2, pages 29 to 34 of the T-Documents.
Spinal condition
Symptoms and Functional impact
The report states that the condition is episodic or fluctuating with the frequency, duration and severity of episodes and fluctuations compared to baseline functioning as being:
Every night/day
Moderate to severe 0-10/10 at night
Reduce to 4-6/10 day timeWith descriptions and examples of why the rating was chosen as follows:
- Chronic persistent pain interfering with sleep & AOLD.
- Persistent pain when remaining seated for at least 10 minutes
- … frequently changes positions from sitting, standing or lying down.
- … has difficulty bending forward from hip height with pinching of nerves & spasms in her spine, hips, buttocks & legs.
Evidence provided with the MRI from 2021 and current 2022 was all relevant at the time of lodgment with her condition meeting table 4 fully treated, fully diagnosed and stable while maintaining daily pain relief with medication and physiotherapy.
(d)Report of Dr Omowaire, general practitioner, Fraser Shores Medical Centre and Hervey Bay Skin of 11 June 2024,[8] including as follows:
[8] Page 10 of Exhibit 1.
I have been a regular GP for [the Applicant] since 2009 and I am well Informed of [the Applicant’s] medical condition.
I consider Or Sam Osedimilehin report of 07/02/2020 as Incomplete as this was a casual visit. There was no investigate provided, there was no details about the psychosocial impacts of [the Applicant’s] chronic back pain I considered the report was hurridly (sic) filled out without provision of the requisite information.
The opinion I expressed in the questionnaire dated 17/01/2024 was relevant at the time of cancelation of [the Applicant’s] DSP from 10/02/2021 as evident in the MRI spine of February 2021 which confirmed discovertebral degeneration at L4-S1 vertebra. This was consistent with [the Applicant’s] symptomatology.
The opinion I expressed regarding my clinical observations in the questionnaire on 17/01/2024 remain the same. The ticked boxes for both moderate and severe was an error which was meant to be corrected and was forgotten as [the Applicant] was very emotional that day. The ticked box should have been only severe.
Again, I explain, [the Applicant] has difficulty bending forward or sideways from hip height she experiences neuropathic pain, spasms from her lower spine down her buttocks, hips to her legs whenever she bend to pick up objects from a lower level.
(e)HPAU report of Dr AA dated 19 August 2024,[9] including as follows:
[9] Pages 11 to 20 of Exhibit 1.
In 2020 [the Applicant] described her condition to the job capacity assessor. ‘Customer continues to self-manage and does not need to see her doctor. Last time she spoke to the doctor about pain management was in 2005/6. Customer reports she moved to Hervey Bay 2004 with this doctor. Customer reports she has been with the same doctor since that time.
Customer complained of brain fog and numbness in leg at times. Customer reports she has walking limited to 20 minutes and then she can sit down to rest for 1 hour depending on the pain she may experience. Customer reports she takes frequent rests when moving around. Customer reports she can pace herself around the house and her partner does the picking up and putting things away. She cannot always bend and then she can sit down to rest for 1 hours depending on the pain she may experience. Customer reports she takes frequent rests when moving around.
Customer reports she can pace herself around the house and her partner does the picking up and putting things away. She reports her partner helps and her partner is her carer.
Customer has continued independently without the need for medical hospitalisations, treatments or support and customer reports to be occupied at home with the family requiring minimal medical supports’ (T14).
The GP completed the DSP medical review report and described low back pain present for many years. Occasional pain radiating to right leg. Occasionally effects walking/standing. Treatment was with paracetamol/codeine tablets when required, which was the same treatment (together with anti-inflammatory medication ibuprofen) as in 2004 (T13).
We have subsequently received a report from the GP in 2024 where he describes constant pain worse at night, interfering with sleep and activities of daily living. Pain on seated for 10 minutes and frequently changes position from sitting, standing and lying down. Difficulty bending forward with pinching of nerves and spasm in the spine, hips, buttocks and legs (T23).
[The Applicant] described her function to the tribunal in 2024 as follows: She cannot push herself; when she has pain she can be in pain for days. She has never been able to hold her infant children for too long or bend to pick them up. She cannot reach overhead as this stretches all the ligaments in her back and hurts the nerve. She cannot sit at a table or bend forward; if she tries she will experience pins and needles in her legs and up her spine radiating out to her shoulder blade. She can hold light objects at chest height but nothing above shoulder height, irrespective of the weight. She has a driver’s licence but does not drive as she cannot get comfortable. She later amended this by stating she will drive for no more than 10 minutes, and never when she has taken her medication. She can check her mirrors but not her blind spots as this would require her to move her body. She can only sit as a passenger in a car for a maximum of 20 minutes. For longer trips she must take frequent breaks. By way of example, a recent drive that should have taken four hours took 10 hours because of her need to stop because of her back pain. She can only sit in a lounge chair for no more than 10 minutes at a time. She requires assistance out of the chair. She sometimes requires a walking aid. She cannot walk on uneven surfaces or undertake shopping. Recently she lost all sensation in her legs for three days and could not walk at all without a walking frame. She can stand still for only about 5 to 10 minutes (T2).
It would be reasonable to expect that someone who experiences symptoms described in the 2024 medical and tribunal report would seek medical attention.
…
The functional information provided to the job capacity assessor in 2020 (T14) is consistent with the information provided by the treating doctor in the report from 2020 (T13). It is also commensurate with the radiological findings of 24/2/2021 which state: Minor mid and lower lumbar spondylosis but without significant spinal canal narrowing at any level. Mild to moderate neural exit foraminal narrowing L5/S1. No neural impingement detected (T16).
We have not been provided with objective functional assessment to the contrary at the time of the claim cancellation.
[The Applicant] did not consult Fraser Shores medical centre regarding her back pain since 2009 other than to get a carer’s report.
There is mention that the doctor that completed the report in 2020 was not her usual doctor, and that Dr Omowaire was her usual doctor (T2), yet the last time she consulted Dr Omowaire prior to 2020 was in 2013.
…
After careful consideration it is my opinion that her functional impairment is best assessed under Table 4 -spinal function. [The Applicant] has a mild impairment and I assign 5 points, meeting 1b at that level. The descriptors for a higher impairment rating are not sufficiently present to allow allocation of a severe rating.
Applicant’s evidence and submissions re impairment
When queried as to the impact of the spinal condition upon her as of March 2021, the Applicant said she was constantly juggling between sitting, standing, walking, lying down, readjusting herself and moving. She said she couldn’t and can’t bend and she can’t pick things up off the floor. She said that the impact is constant day to day with some days different to others depending upon the pain. When asked to speak to the impact of the condition upon her as of March 2021, the Applicant stated that in 2021, because of COVID-19, she and her husband moved into a town house and that had a massive impact upon her. It was two levels with the bedrooms upstairs and everything else downstairs. She could therefore speak to the impact upon her in 2021 by recollecting the time they were living in the townhouse. She said they have since moved to a low set house with no stairs.
As regards Dr Omowaire and his report of 17 January 2024, the Applicant said Dr Omowaire is her longstanding general practitioner since about 2009. She said he is the family doctor and whenever she was at the medical centre, including for other family members’ appointments, he would ask her how her back was going but she didn’t necessarily see him about her back pain. She was not actively seeking further treatment because of what she had already tried in the past and her wanting to manage it by herself without going (back on to) strong medication. She said at one point she had been receiving weekly morphine injections and then slow-release morphine, but she had an allergic reaction to it, so she stopped the morphine. She then tried codeine but also had an allergic reaction to that.
The Applicant’s further evidence included that although she might not have seen her doctor about pain management since 2005/2006, as is recorded by the Job Capacity Assessor, that would be consistent with when she went off the strong medication (morphine) – she didn’t want to be a zombie, and she didn’t want to be on such strong medication.
As regards her reporting to the Job Capacity Assessor in December 2020 that her walking was limited to 20 minutes, the Applicant said that was probably an exaggeration – she said it depended upon the day and she could usually walk for 5 to 10 minutes but definitely not for 20 minutes. Focussing on 2021, the Applicant said that that was when she was living in the townhouse, and she often slept downstairs because of the difficulty she had with the stairs and that she experienced twinges in the bottom of her spine that went down to her legs. She said she was helped on the stairs and also used a walking stick when she used them.
As regards it being reported to the Job Capacity Assessor that she could sit down for an hour, the Applicant said it wasn’t sitting down she was talking about, it was lying down. She said that whatever she did - sitting down or lying down, whatever she is constantly moving or rolling from side to side. She said when she is sitting down, she is constantly readjusting herself because she is putting pressure on nerves that then numbed her legs. She said that she could not then, and cannot now, do anything freely for an hour.
The Applicant’s evidence continued to include that she cannot bend – for example her partner does the shopping and puts it away. She cannot bend to pick up shopping bags. When queried if she could, at the time (23 March 2021) bend to pick something up at knee height or coffee table height, the Applicant said she couldn’t bend as such but would squat with her knees to do that. She said she cannot, for example, bend to load or unload a dishwasher at all. She said she could wipe a table or pick something up from their table, but it is not at knee height – their table is tall. She said she could not and cannot bend to knee height or desk height.
The Applicant said that nothing has changed for her; the impact in 2021 was the same as it is now and as reported in Dr Omowaire’s 17 January 2024 report.
The Applicant accepted that she did not frequently consult Dr Omowaire about back pain between 2009 and 2020 but maintained that her pain persisted throughout and was raised incidentally with doctors during other attendances.
The Applicant said that although she may not have specifically attended upon Dr Omowaire for back pain, at each attendance she regularly raised her ongoing symptoms with him or other doctors during routine consultations. She repeated that the condition was largely managed with pain medication, self-management strategies and avoidance of exacerbating activities. She confirmed she ceased physiotherapy as it aggravated her condition.
In cross-examination, the Respondent’s representative put to the Applicant that there were limited recorded consultations with Dr Omowaire about back pain between 2009 and 2020. The Applicant maintained that her back symptoms were talked about when she consulted doctors in relation to health even if that was not the specific reason for her visit. She noted that some of the attendances were for her children or family members and the table relied upon by the Respondent contained some entries not related solely to her. She also noted discrepancy in the list prepared by the Respondent in that it included her husband’s records in parts. She explained that Dr Omowaire had been her family doctor since 2009 but that she also saw other doctors in the same practise group when Dr Omowaire was unavailable or for Centrelink paperwork. She rejected the suggestion that she had not seen Dr Omowaire between 2013 and 2020 stating that the medical practice had undergone a split and changed names and been reorganised during that time, which she suggested may account for gaps in the documentary records.
The Applicant said that although she attended Dr Omowaire on 24 November 2020, he was unable to complete a report because he commenced leave and instead the report was prepared by another doctor (Dr Osedimilehin) in December 2020. She maintained that Dr Omowaire was nonetheless aware of her condition and the functional limitations at the time and remained well placed to provide an opinion in 2024.
Dr AA’s evidence
Dr AA gave evidence that her opinion remained that the Applicant’s functional impairment as of 23 March 2021 is best assessed under Table 4 as impairment corresponding to an impairment rating of 5 points, with descriptors for a higher impairment not sufficiently met. Dr AA said that her assessment was based upon the medical evidence at the time and having regard to the Applicant not attending at the medical centre in relation to her back since 2009 other than to obtain a carer’s report. Dr AA noted that the Applicant had reported to the Job Capacity Assessor that she cannot always bend, and it is not clear what that means. She further noted that Dr Osedimilehin reported that the condition occasionally effects walking and standing but otherwise provides no detail. When queried as to the extent that she had taken into account Dr Omowaire’s 2024 reports, Dr AA stated that she had taken them into account, but those reports were not looked at in isolation – she had regard to all of the evidence. She is not dismissing his evidence, but it has to be weighed up with the other evidence and is really the report from 2020 and the Job Capacity Assessor’s report from 2020 that we are really looking at. Dr AA suggested that there could have been numerous things that happened after 2020/2021 such that the back pain was worse by 2024 when Dr Omowaire reported, and disability support pension was re-granted such that the functional impairment increased to impairment corresponding with allocation of 20 points. However, she does not have any information about what may have happened in the intervening period. Dr AA said that it is not disputed that the Applicant has back pain but according to policy and the strict requirements of the Impairment Tables, she has to look at the evidence from 2020 and that is why she has come to the opinion she has in her report.
Respondent’s submissions re impairment
The Respondent relied upon the Applicant’s own report of her functional capacity at that time, as reported to a Centrelink Job Capacity Assessor on 11 December 2020. The Respondent in their SFIC referred to the Job Capacity Assessor’s record of the Applicant’s description of the impact of the condition upon her as noted earlier in these Reasons.
The Respondent, at paragraph 5.7 of their SFIC, further relied upon the HPAU report dated 19 August 2024, including that that report’s recounting of other relevant medical evidence which may be summarised as follows:
general practitioner, Dr Sunkanapally, had reported on 8 July 2014 that the Applicant was independent with grooming, feeding and bathing, need minor help with transfers, was mostly independent with walking and also needed some help with dressing and toileting.
the Applicant’s clinical history stated worsening low back pain with radiculopathy and nerve root compression, with Imaging reported from 2020, 2021 and 2023 consistently finding minor mid and lumbar spondylosis but without significant spinal canal narrowing at any level.
general practitioner, Dr Osedimilehin having completed a disability support review form on 7 December 2020 and describing low back pain present for many years, with occasional pain radiating to the right leg reported and it also being noted that the Applicant’s condition ‘occasion (sic) affects her walking and standing’.
Dr Osedimilehin later reporting on 17 January 2024 that the Applicant had ‘chronic persistent pain interfering with sleep and AODL’, ‘persistent pain when remaining seated for at least 10 minutes’, frequently changes position from sitting, standing of lying down’, ‘difficulty bending forward from hip height with pinching of nerves and spasm in the spine, hips, buttocks and legs’.
The Respondent at paragraphs 5.7(e) and (f) of its SFIC refers to the HPAU report also stating that it would be reasonable for someone experiencing the symptoms described in Dr Osedimilehin’s 2024 report, and the symptoms the Applicant reported to the AAT on first review, would seek medical attention but that a review of medical records shows that there were no entries (of the Applicant having sought medical attention for back pain) from 2009 until 2014 or again between 2014 and 2020 with it noted that consultation in 2014 was for the purposes of obtaining a carer medical form. The Respondent further notes that the HPAU report also refers to the Applicant having no specialist referrals or referrals to allied health in this time, and there being no indication she attended the emergency department for back pain.
The Respondent at paragraph 5.8 of their SFIC submitted that the Applicant’s self-reporting of the impact of the condition upon her to the Job Capacity Assessor was consistent with the information provided by her treating general practitioner, Dr Osedimilehin, at the same time and also consistent with radiological findings. The Respondent’s submissions continued on to note that the Applicant did not consult her medical centre regarding back pain from 2009 other than to obtain a carer’s report and concluded that it appears the Applicant has a chronic underlying back pain with fluctuating exacerbations, and that it was not clear what was meant by the Applicant reporting to the Job Capacity Assessor that she ‘cannot always bend’.
The Respondent in their written submissions concluded, including in reliance upon the HPAU opinion, that 5 points (only) could be allocated under Table 4 in relation to the functional impairment upon the Applicant because of the spinal condition impacting her as of 23 March 2021. Specifically, the Respondent noted that a 5-point impairment rating corresponded with the Applicant having some difficulty bending to knee level and straightening up again without difficulty, based upon the Applicant’s reporting that she ‘cannot always bend’ and Dr Osedimilehin’s report that the condition ‘occasionally affects walking and standing’.
The Respondent’s representative, in oral submissions, stated it should be noted that the subsequent grant of disability support pension to the Applicant in 2024 was based on new Impairment Tables, which have been reported to be a lot less stringent than the Impairment Tables relevant to cancellation of the Applicant’s disability support pension on 23 March 2021. I invited the Respondent’s representative to address the differences in the Impairment Tables if it was contended that was the determinative issue. The Respondent’s representative responded that a passing note only was made in that regard, and it was not contended that the difference in the Impairment Tables was determinative and that, rather, the determinative issue was the medical evidence.
Oral submissions on behalf of the Respondent included that the Applicant relied heavily on her own descriptions of functional limitations, together with medical evidence obtained or expressed retrospectively. While acknowledging the self-reported information and retrospective evidence, it was submitted that such evidence carries limited weight unless corroborated by medical evidence contemporaneous to the relevant time.
Particular reference was made to the report of Dr Osedimilehin. It was submitted that the reported impact of some difficulties with standing and walking did not consistently document restrictions severe enough to warrant 20 points. Further there were notable gaps in the Applicant’s medical attendance and treatment records, which undermined the reliability of assertions that the Applicant’s functional capacity had been severely limited throughout. It was further submitted that inconsistencies between the medical practitioners’ reports reduced the probative value of the evidence. For example, references to the Applicant’s mobility fluctuated, with some reports suggesting she was able to walk moderate distances, while later reports presented a more significant picture of limitation. These inconsistencies supported the conclusion that the Applicant's impairment did not reach the required impairment rating as at the date of cancellation. The Respondent also emphasised that the Act and the Impairment Tables require that functional assessments be made on the basis of observable and medically supported limitations.
Conclusion re functional impairment related to spinal condition
I accept that the Tribunal’s task is to assess the Applicant’s functional impairment in relation to the spinal condition as at the cancelation date, 23 March 2021. However, that does not mean evidence contemporaneous to that date may not be considered. Subsequent medical evidence may be relevant if it sheds light on the functional impact upon the Applicant of the spinal condition at the earlier point in time. Notably, in Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2013] AATA 558, Deputy President Forgie observed that a medical diagnosis need not be contemporaneous in order for a condition to be accepted as existing at an earlier date. The reasoning reflects a broader principle that the absence of contemporaneous evidence, or even inconsistent contemporaneous evidence, does not necessarily preclude a finding that impairment was present at a certain level at the relevant time in question. By analogy, I consider that subsequent medical evidence from Dr Omowaire about the functional impact of the spinal condition upon the Applicant can similarly shed light on the extent of impairment as of 23 March 2021, even if the reports were prepared later. What matters is whether the evidence taken as a whole, reliably supports the conclusion that the functional limitations existed at the relevant time at the relevant level.
The Respondent submitted that little or no weight should be given to Dr Omowaire’s 2024 reports on the basis that they were not contemporaneous to 23 March 2021. I do not accept that proposition. While the timing of a report is plainly relevant to its probative value, later assessments may nonetheless assist in assessment of functional impact at an earlier point in time.
The medical opinions expressed by Dr Omowaire in January 2024 and June 2024 were well after 23 March 2021. However, I am satisfied that they provide relevant insight in relation to functional impact as of 23 March 2021, particularly having regard to Dr Omowaire’s long-standing knowledge of the Applicant and the back condition impacting her, his attendance upon her on 24 November 2020 as noted in the medical records and, further, his clear statement in that regard.
The Respondent also submitted that little reliance could be placed on Dr Omowaire’s 2024 evidence because the Applicant had not regularly consulted him since 2009 and there were no specific records of attendance for back pain after 2013. I do not accept that submission. While it is correct, having regard to the summary table prepared by the Respondent of the Applicant’s GP consultations, that the Applicant's consultations with Dr Omowaire were infrequent, I accept the Applicant’s evidence that she was largely self-managing the condition during this period and that the spinal condition and impact was likely only raised in passing given her previously exhausted treatment options, self-management of the condition and her wish to avoid previously trialled strong medication, in the course of other attendances. The absence of frequent consultations is consistent with her evidence of longstanding self-management, rather than inconsistent with the existence of chronic pain.
I note that the medical records confirm that the Applicant did see Dr Omowaire on 24 November 2020 for ‘reassessment for review of DSP’ shortly before the cancellation date. In those circumstances, I am satisfied that Dr Omowaire was sufficiently familiar with the Applicant’s condition to provide a probative retrospective opinion in 2024 as to her functional impairment contemporaneous to March 2021. The fact that he was unable to provide a contemporaneous report in December 2000 (it seems because after the 24 November 2020 appointment he was on leave) and that another GP in the practise instead completed the DSP medical report, does not materially detract from the weight given to his later opinion. I therefore reject the Respondent’s submission that Dr Omowaire’s 2024 evidence cannot be relied upon in assessing the functional impairment of the spinal condition upon the Applicant as at the relevant date 23 March 2021.
I place greater weight on the evidence of Dr Omowaire than on the opinion of the HPAU. Notwithstanding gaps in treatment, Dr Omowaire clearly states that he has been the Applicant’s treating general practitioner for many years and is familiar with her medical history and functional limitations. By contrast the HPAU opinion was prepared without the benefit of an ongoing clinical relationship and is necessarily more limited in scope. Notably, Dr Omowaire’s evidence is also consistent with the Applicant’s long-standing qualification for and receipt of disability support pension from 2005 to 2021, and again from 2024. Although raised by the Respondent’s representative in oral submissions, it was not maintained, and I do not accept, that there was a determinative difference in the Impairment Tables between 2005, 2021 and 2024 as regards functional assessment of the Applicant’s spinal condition.
Having had regard to all matters, I am satisfied that the functional impact of the spinal condition upon the Applicant as of 23 March 2021 is as described by Dr Omowaire in his January and June 2024 reports. In particular, I note the evidence that, including as of 23 March 2021, the Applicant had difficulty bending; experiencing neuropathic pain and spasms from her lower spine down her buttocks, hips to her legs and had persistent pain when remaining seated for at least 10 minutes.
As regards undertaking an activity that causes pain, clause 3.6.3.40 of the Guide includes the following guidance in relation to the allocation of impairment ratings:
When determining whether the person is able to undertake the activities listed under the descriptors, consideration must be given to whether the person suffers pain on undertaking the activities. For example, under the 20-point descriptor, if a person is able to remain seated for 10 minutes but suffers severe pain while doing so, it should be considered that the person is unable to remain seated for at least 10 minutes.
Having regard to Dr Omowaire’s evidence of the impairment with pain experienced by the Applicant upon bending and sitting, including as of 23 March 2021, I am satisfied there was a severe functional impact on activities involving spinal function for the Applicant as at that date. It follows that an impairment rating of 20 points can be allocated under Table 4 in relation to the spinal condition impacting the Applicant and I find accordingly.
In reaching this conclusion, I observe that the Applicant’s reporting to the Job Capacity Assessor, that she could sit down to rest for one hour depending upon the pain she is experiencing and that she cannot always bend, is arguably inconsistent with Dr Omowaire’s reporting that she had persistent pain when remaining seated for 10 minutes and difficulty bending with that causing pain. I do not necessarily find these recountings inconsistent; rather I note that the functional impact is affected by pain on either recounting, with it understandable and consistent with the medical evidence that the pain is variable. I am satisfied overall that the ability to undertake these activities was as of 23 March 2021 accompanied by pain such that, consistent with the Guide, it should be considered that the Applicant was unable to bend and unable to remain seated for at least 10 minutes.
Subsection 10(3) of the Impairment Determination provides that where one medical condition causes multiple impairments, each impairment should be assessed under the relevant table. There is also mention in the documentation of consideration of impairments caused by the spinal condition relevant to other Impairment Tables, specifically Table 1 (which assigns impairment ratings for a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina) and Table 3 (which assigns impairment ratings for a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet). There is minimal if any medical evidence before me of impairments relevant to those Tables, separate to the impairments considered under Table 4, caused by the spinal condition. Further, impairments can not be double-counted and I have not considered or allocated impairment ratings in relation to the spinal condition other than under Table 4.
Mental health condition
Dr Omowaire’s 17 January 2024 report refers to the Applicant’s treatment including a mood stabiliser. There is otherwise minimal evidence before me as to the impact of a mental health condition upon the Applicant and any such condition was not pursued as the basis of the Applicant’s qualification for disability support pension. In any event the relevant Impairment Tables at the time required that impairment associated with mental health functioning is rated under Table 5 of the Impairment Tables. The introduction to Table 5 states “The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”. There is no evidence before me of the required diagnosis of a mental health condition and as such no impairment rating can be allocated in relation to the impact, if any, of a mental health condition upon the Applicant.
Conclusion
I have found that the Applicant had a total impairment rating of 20 points under Table 4 as of 23 March 2021. The requirements of paragraph 94(1)(b) of the Act were therefore met as of 23 March 2021.
Issue 3 – Did the Applicant have a continuing inability to work as of 23 March 2021?
The Respondent does not dispute that the Applicant had a continuing inability to work as of 23 March 2021. As acknowledged by the Applicant, at the time the Applicant was granted disability support pension on 11 May 2005, subsection 94(5) of the Act defined work to include work for at least 30 hours per week, and persons whose start date for disability support pension is before 11 May 2025 are to be assessed accordingly to the ’30-hour rule’. As noted by the Respondent, the Job Capacity Assessor in December 2020 assessed the Applicant’s baseline work capacity as 15 to 22 hours per week with a work capacity within the subsequent two years with intervention of 23 to 29 hours, such that the Respondent accepts the Applicant had a continuing inability to work from the date of cancellation.
The evidence before me includes that the Applicant did not undertake paid work from the time disability support pension was granted in 2005 until after cancellation in March 2021, following which she claimed jobseeker payment and in initial appointments with a disability employer service provider was advised that they did not consider they were going to be able find work for her. The Applicant was subsequently employed by her husband’s small business, for a maximum of 24 hours per week to meet her jobseeker payment mutual obligations. It was also noted that her work was flexible and allowed her to lie down between phone calls and the like.
I am satisfied based upon the Job Capacity Assessor’s assessment and the evidence of work she did undertake between 2021 and 2024 being limited to no more than 24 hours per week at most, that the Applicant’s capacity to work was not for at least 30 hours per week and accordingly she had a continuing in ability to work as defined such that paragraph 94(1)(c) of the Act was satisfied as of 23 March 2021.
CONCLUSION
I have concluded that the Applicant satisfied the requirements of subparagraphs 94(1)(a), (b) and (c) as of 23 March 2021. It follows that she remained qualified to disability support pension from that date and it should not have been cancelled. It follows that the decision under review will be set aside and the matter will be remitted for reconsideration on that basis.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that that the Applicant satisfied paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 as of 23 March 2021 and remained medically qualified for disability support pension.
65.
Date of hearing: 26 June 2025 Applicant’s representative: Self-represented Respondent’s representative: Mr C Darben
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