Kenally and Secretary, Department of Social Services (Social security)
[2025] ARTA 1858
•6 August 2025
Kenally and Secretary, Department of Social Services (Social security) [2025] ARTA 1858 (6 August 2025)
Applicant/s: Mr Kenally
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2025/B193875
Tribunal: Member R King
Place:Brisbane
Date:6 August 2025
Decision:The Tribunal affirms the decision under review.
SOCIAL SECURITY – Disability Support Pension – start date – whether qualified at an earlier date due to receipt of another payment – outcome of job capacity assessment and opinion of Government-contracted doctor – evidence not consistent with finding that condition reasonably treated and stabilised prior to application date – 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 Kenally is [an age]-year-old Indigenous man who has a history of [Body part 1] pain, secondary to a [Body part 1] fracture in 2005 and degenerative changes. He also has a history of mental health difficulties and [Medical condition 1].
Mr Kenally claimed disability support pension (DSP) on 10 June 2024. His claim was initially rejected but was granted with a start date of 10 June 2024 following internal review by a Centrelink authorised review officer on 18 January 2025.
On 25 March 2025, Mr Kenally applied to this Tribunal for external review of the decision to start payment of his DSP from 10 June 2024.
ISSUES
The statutory provisions relevant to this review are contained in the Social Security (Administration) Act 1999 (the Admin Act).
Pursuant to section 11 of the Admin Act, as a general rule, a person who wishes to be granted a social security payment must make a claim. A claim can be deemed to have been made at an earlier date, pursuant to section 13 of the Admin Act, if a vulnerable person contacts Centrelink about a claim and then lodges a formal claim within 14 days or, in some circumstances, within 13 weeks of the contact. In such circumstances, the date of claim is the date of contact.
Pursuant to section 12 of the Admin Act, a claim for a payment can be deemed to have been made if the person was in receipt of one income support payment and became qualified for another income support payment. For example, if a person was in receipt of jobseeker payment (JSP) and became qualified for DSP, the person can be deemed to have claimed DSP even though no such claim was lodged. The decision maker must determine that the person was qualified for the second payment and the start date for the second payment (in this case, DSP) cannot be more than 13 weeks prior to this determination.
Pursuant to section 15 of the Admin Act, if a person claims an income support payment (such as JSP) and subsequently claims another income support payment (such as DSP) and the person was qualified for the second payment at the time of claim for the first payment, the person can be taken to have claimed the second payment at the time when the first payment was claimed. This provision can only be applied if the decision-maker is satisfied that it is reasonable to do so. Centrelink guidelines suggest that the decision-maker “should take particular care when there is a gap of more than 13 weeks between the making of the initial claim and the later claim. In these cases, the person would need to provide acceptable reasons why they did not lodge the second claim within 13 weeks of lodging the first”.
Section 16 of the Admin Act allows Centrelink to specify the form of the claim and the means by which it may be lodged.
The rules for determining a person’s start day, once a payment is granted, are set out in Schedule 2 to the Admin Act. As a general rule, pursuant to clause 3 of Schedule 2, if a person is qualified on the date when the claim is lodged, the lodgement date is the start day for payments. Clause 4 allows the start date to be the date that the person becomes qualified if an early claim is lodged and “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”.
The issue which arises in this case is the proper and lawful start date for Mr Kenally’s DSP.
CONSIDERATION
The evidence before me in this matter consists of:
(i)The documents provided by Centrelink as representing the evidence it relied upon at the time of the original decision and at the time of the internal review (the hearing papers).
(ii)A written submission from Mr [A].[1]
[1] Mr [A] did not represent Mr Kenally at the hearing scheduled for 23 July 2025 and Mr Kenally did not appear at the hearing. The matter was therefore decided on the documentary evidence.
The ARO was satisfied that Mr Kenally qualified for DSP on the basis of the outcome of a job capacity assessment (JCA) and the opinion of a Government-contracted doctor (GCD). The start date was the date of claim, pursuant to the provisions of Schedule 2 to the Admin Act. The ARO did not turn their mind to section 12 or section 15 of the Admin Act.
Mr [A] submitted that the medical evidence upon which the findings of the JCA and the GCD were based dated from 2022. This means that Mr Kenally qualified for DSP when he claimed JSP on 3 August 2022. Pursuant to section 15 of the Admin Act, Mr Kenally can be deemed to have claimed DSP on 3 August 2022. Mr [A] submitted that it was reasonable to do so because Mr Kenally’s mental health difficulties and literacy difficulties were such as to prevent him from lodging a claim for DSP prior to June 2024. Alternatively, Mr [A] submitted that section 12 of the Admin Act should be applied to deem that Mr Kenally claimed DSP 13 weeks prior to his actual claim.
What is the proper and lawful start date for Mr Kenally’s DSP?
I can only apply section 12 or section 15 of the Admin Act if I am satisfied that Mr Kenally qualified for DSP prior to his claim on 10 June 2024. This means that pursuant to section 94 of the Social Security Act 1991 (the Act), Mr Kenally met the standard qualifying requirements including an impairment rating of at least 20 points under the Impairment Tables. A rating can only be assigned when a condition has been reasonably treated and stabilised[2], meaning that no further functional improvement, to a degree consistent with increased work capacity within two years, would result from additional treatment.
[2] Prior to 1 April 2023, the wording was “fully treated and fully stabilised”.
Having carefully reviewed the medical evidence in the hearing papers, for reasons set out in the following paragraphs, I am not satisfied that there was a basis for assigning an impairment rating of 20 points or more prior to 10 June 2024. I note that the impairment points assigned in respect of Mr Kenally’s 2024 claim were under Table 4 and rely on a finding that Mr Kenally had a sitting tolerance of less than 10 minutes.
The hearing papers (at p 205) contain a copy of a report, dated 26 September 2017, in which Ms [B] (physiotherapist) advised that, after completing the EPC program, Mr Kenally had increased his sitting tolerance from 5 minutes to 45 minutes. She recommended further physiotherapy treatment. This suggests that Mr Kenally was able achieve substantial functional improvement of his sitting tolerance in response to physiotherapy.
Given his past response to physiotherapy, I am of the view that there was a reasonable expectation that further physiotherapy would increase Mr Kenally’s sitting tolerance prior to 10 June 2024. I am mindful that on 9 September 2022, Dr [C] advised that Mr Kenally had been in receipt of past physiotherapy and then stated that “there is no intervention that would likely improve his functional ability to a level enabling him to work in the next two years”. It is not clear whether Dr [C] had access to Ms [B’s] report, which was addressed to a different doctor and possibly a different clinic. However, his opinion does not appear to be consistent with Ms [B’s] report. It is possible that Dr [C] relied on Mr Kenally’s account of his past treatment and was not aware of his response to treatment provide by Ms [B]. I therefore do not accept that Dr [C’s] evidence can provide a basis for a finding that Mr Kenally’s [Body part 1] condition had been fully and/or reasonably treated and stabilised prior to 10 June 2024.
The hearing papers (p 262 and following) contain a JCA report that stated: “It is anticipated that Mr Kenally’s work capacity will improve to 15 - 22 hours per week with disability services intervention to facilitate attendance in a interdisciplinary pain management program as well as in the ongoing implementation of effective pain management strategies within the context of work”. There is no evidence to indicate that Mr Kenally has undertaken a pain management program. Such a program may be of considerable benefit, especially given Mr Kenally’s comorbid mental health difficulties.
The hearing papers (at page 280 and following) contain a copy of a referral dated 25 April 2024 from Dr [D] (GP) for Mr Kenally to an orthopaedic specialist (Dr [E]). The referral requests an opinion and management of Mr Kenally’s chronic [Body part 1] pain. This suggests that Dr [D] was not satisfied that all reasonable treatment had been undertaken and no further treatment was likely to assist in management of Mr Kenally’s pain.
Overall, I am not satisfied that the available evidence is consistent with a finding that Mr Kenally’s [Body part 1] pain had been reasonably (or fully) treated and stabilised prior to 10 June 2024. It follows that I am unable to assign an impairment rating under Table 4 prior to that date. While I accept that Mr Kenally has a history of mental health difficulties, the evidence regarding the treatment history for these difficulties and their impact on his mental health function is scant and does not provide a basis for an impairment rating under Table 5. I note that no such rating was assigned when Mr Kenally was found to have qualified for DSP from 10 June 2024.
I am therefore unable to find that Mr Kenally met the qualifying requirements, as specified in section 94 of the Act, prior to 10 June 2024. This means that there is no basis for applying either section 12 of the Admin Act or section 15 of the Admin Act to determine a start date prior to 10 June 2024, and I must affirm the decision before me.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | Wednesday, 23 July 2025 |
| Representative for the Applicant: | Mr Kenally was not represented and did not attend the hearing. |
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