Nostrum and Secretary, Department of Social Services (Social security)
[2025] ARTA 1856
•20 August 2025
Nostrum and Secretary, Department of Social Services (Social security) [2025] ARTA 1856 (20 August 2025)
Applicant/s: Ms Nostrum
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2025/B194442
Tribunal: Member R King
Place:Brisbane
Date:20 August 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that Ms Nostrum qualified for disability support pension when she claimed on 26 March 2024.
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – motor vehicle accident – physical and psychological injuries – severely disabled while resident in Australia – work capacity – Australian citizen – decision under review set aside
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
Ms Nostrum is [an age]-year-old woman who worked in [Sector 1] until she sustained both physical and psychological injuries as a result of a motor vehicle accident (MVA) in 2016.
Ms Nostrum claimed disability support pension (DSP) on 26 March 2024, at which time she was a citizen of New Zealand. She subsequently became an Australian citizen. Ms Nostrum’s claim was rejected on 12 April 2024, but was granted following internal review by a Centrelink authorised review officer (ARO) on 27 March 2025. On 28 April 2025, Centrelink’s International Services Manager (ISM) overturned the ARO’s decision and reinstated the original decision to reject Ms Nostrum’s claim.
On 5 May 2025, Ms Nostrum applied to this Tribunal for external review of Centrelink’s decision to reject the claim for DSP that she lodged on 26 March 2024.
ISSUES
The statutory provisions relevant to this review are set out in the Social Security Act 1991 (the Act) and the Social Security (International Agreements) Act 1999 (the IA Act). A person who is required to qualify under the IA Act must also meet the qualifying requirements (other than the residency requirements) set out in the Act.
With respect to what are often termed the medical qualifying requirements, pursuant to paragraphs (1)(a) and (1)(b) of section 94 of the Act, a person must have a physical, intellectual or psychiatric impairment and an impairment rating of 20 points or more under the Impairment Tables.
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 Determination in force at the time of Ms Nostrum’s claim was the Social Security (Tables for the Assessment of Work‑related Impairment for Disability Support Pension) Determination 2023. An impairment rating can only be assigned when the condition or conditions responsible for the impairment have been diagnosed, reasonably treated and stabilised. There are a total of 15 Tables, each of which concerns a specific area of function. Of potential relevance to this application are Table 5 (Mental Health Function) and Table 7 (Brain Function).
The Impairment Tables provide criteria and/or examples to assist with impairment rating and require that there must be corroborating evidence from an appropriate health practitioner or other person with relevant expertise and independence. The Tribunal cannot assign impairment ratings solely on the basis of information provided by the applicant, family members or friends.
In addition to the medical requirements, pursuant to paragraph (1)(c) of section 94 of the Act, a person must have a continuing inability to work or be participating in a supported wage system. 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 2 years from the date of claim. When the impairment is not a severe impairment, the person must have also 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.
With respect to the residential requirements, the person must be a resident of Australia and meet the qualifying residence requirements. Pursuant to paragraph 94(1)(e) of the Act, a person can only meet the qualifying residence requirements if they first developed a continuing inability to work while a resident of Australia, have at least 10 years of qualifying residence or a qualifying residence exemption (refugee status) or they are a dependent child of an Australian resident who became an Australian resident while a dependent child. To be a resident of Australia for the purposes of social security law, the person must meet the requirements specified in subsection 7(2) of the Act. These requirements are that the person is either an Australian citizen, holds a permanent visa or is a protected SCV holder.
If the residency requirements set out in section 94 of the Act are not met, a person may qualify under the IA Act. Qualification under the IA Act is limited to people who are citizens or residents of a signatory country for which there is an agreement that includes DSP. New Zealand is a signatory country.
Schedule 3 to the IA Act contains the Agreement on Social Security between the Government of Australia and the Government of New Zealand (the Agreement). Article 2 of Schedule 3 states that DSP is limited to people who are severely disabled and became severely disabled while resident in either Australia or New Zealand. It also requires that a New Zealand citizen has resided in Australia for at least one year prior to becoming severely disabled. Article 1 of Schedule 3 defines severely disabled as meaning that as a result of a physical, psychiatric or intellectual impairment (or a combination thereof) the person is totally unable to work or benefit from a program of support for at least the next 2 years. The Social Security Guide states that this should be taken to be a work capacity of less than 8 hours per week.
The issue which arises in this case is whether Ms Nostrum qualified for DSP when she claimed on 24 March 2024.
CONSIDERATION
The evidence before me comprises:
(i) The documents provided by Centrelink as evidence it relied on when making the original decision and at the time of the internal review (the hearing papers).
(ii) Sworn evidence and oral submissions provided by Ms Nostrum during a telephone hearing on 12 August 2025. Ms Nostrum was represented by Ms [A] from [Legal service 1], who provided oral submissions.
(iii) A written submission and additional medical evidence provided by Ms [A].
Centrelink’s position is set out in the decision statement of the ISM. The ISM found that Ms Nostrum was not an Australian resident at the time of claim, which meant that she could only qualify for DSP under Schedule 3 to the IA Act. The ARO found that Ms Nostrum did not meet the requirements for qualification under Schedule 3 because she was not severely disabled. The ISM specified the requirements for being assessed as severely disabled but did not specify how Ms Nostrum failed to meet these requirements.
During the hearing, Ms [A] submitted that the Tribunal should find that Ms Nostrum had a severe disability because her work capacity was less than 8 hours per week. She submitted that such a finding would be consistent with the medical evidence, which the Tribunal should prefer to Centrelink’s job capacity assessment (JCA), which found that Ms Nostrum had a work capacity within 2 years of 8-14 hours per week. Ms [A] submitted that a finding that Ms Nostrum had a work capacity of less than 8 hours a week would establish that Ms Nostrum was severely disabled, in accordance with Centrelink’s guidelines.
During the hearing, Ms Nostrum told me that, prior to her MVA, she had been working in [Sector 1] approximately 50 hours per week. However, because of the combined effect of her physical and psychological injuries she has not been able to engage in any work since then. Ms Nostrum said that she has been living in Australia since January 2011 and became an Australian citizen in June or July 2024 (she could not recall the date)[1].
Did Ms Nostrum qualify for DSP when she claimed on 26 March 2024?
[1] The hearing papers contain a copy of Ms Nostrum’s Australian Citizenship certificate, which is dated [date] June 2024.
I note that the ARO found that Ms Nostrum qualified under section 94 of the Act, on the basis of a JCA rating of 20 points under Table 5 of the Impairment Tables and a work capacity assessment of 8-14 hours per week. The impairment rating had been confirmed by a government-contracted clinical psychologist. The ARO did not give consideration to Ms Nostrum’s status as a New Zealand citizen or her entitlement to DSP under the IA Act. Rather the ARO determined that Ms Nostrum qualified under section 94 of the Act because she had an impairment rating of 20 points and a continuing inability to work. In overturning this decision, the ISM determined that Ms Nostrum could not qualify under section 94 of the Act because she was not an Australian resident, pursuant to section 7 of the Act. While she was allowed to reside and work in Australia under an SCV, this was not a protected SCV and therefore did not confer Australian resident status for purposes of social security law.
It is notable that, given that Ms Nostrum became an Australian citizen within 13 weeks of her claim, the ISM did not consider the early claim provisions in Schedule 2 to the Social Security (Administration) Act 1999 (the Admin Act). It is my view that Centrelink often applies these provisions too liberally but that in this case, they could have been considered, especially if the decision to grant Ms Nostrum citizenship had been made prior to her claim. However, a decision that Ms Nostrum qualified under the IA Act would be more beneficial to her than qualification under the combined provisions of the Act and the Admin Act because DSP would be payable from the date of claim if she qualified under the IA Act whereas it would only be payable from 6 June 2024 under the combined provisions of the Act and the Admin Act. I will therefore start by determining whether she qualified under the IA Act.
Qualification under the IA Act depends on whether Ms Nostrum was severely disabled at the time of claim. According to Centrelink’s guidelines this requires that, as a result of her impairments, Ms Nostrum’s work capacity was less than 8 hours per week and unlikely to increase, regardless of interventions within a period of 2 years.
The ISM did not explain the reasons for the finding that Ms Nostrum did not have a severe disability, but I presume it was based on the JCA that she had a work capacity of 8-14 hours per week.
Ms [A] provided additional medical evidence in the form of a copy of a letter, dated 2 July 2025, from Ms Nostrum’s treating GP, Dr [A]. In this letter, Dr [A] advised that, in his opinion, “Ms Nostrum’s day to day function has been significantly impaired by her mental health conditions even without taking into account her physical symptoms, such that she would be prevented from working at all in any job in the open market in the next two years.” Dr [A] went on the state that this was true at the date when Ms Nostrum claimed DSP, as the medical certificates he issued at the time indicated.
Ms [A] submitted that Dr [A’s] recent evidence was consistent with a report he previously provided, dated 30 May 2025, a copy of which can be found in the hearing papers. She submitted that Dr [A’s] opinion should be preferred to the JCA.
I note that Dr [A] has a well-established clinical relationship with Ms Nostrum as her treating GP and is in possession of a substantial amount of medical evidence that was not available at the time of the JCA. While I usually accord greater weight to the findings of a JCA than to a medical report in the area of work capacity, in this case, I prefer Dr [A’s] evidence. I note that the JCA work capacity assessment was based on a review of evidence held by Centrelink and was conducted in relation to what was thought at the time to be qualification for DSP under section 94 of the Act. The critical threshold for qualification under section 94 is a work capacity of less than 15 hours per week. In the rationale for the work capacity assessment, the JCA refers to Ms Nostrum as “he” raising a suspicion that the rationale may have been cut and pasted from another assessment and did not properly take into account Ms Nostrum’s particular difficulties. Dr [A], while not an expert on work capacity, has an excellent longitudinal understanding of Ms Nostrum’s more general functional limitations and is in a strong position to draw reliable inferences about the implications of these limitations for Ms Nostrum’s capacity to work.
I take Dr [A’s] evidence to be consistent with a finding that, as a result of her psychiatric and physical impairments, Ms Nostrum had a work capacity of less than 8 hours per week, when she claimed DSP on 26 March 2024, and I find accordingly. It follows that Ms Nostrum was severely disabled, pursuant to Article 1 of Schedule 3 to the IA Act.
It is not in dispute that, except for the residency requirements, Ms Nostrum qualified for DSP, pursuant to section 94 of the Act. I have found that Ms Nostrum was severely disabled for the purposes of Schedule 3 to the IA Act. I am satisfied that Ms Nostrum became severely disabled as a result of an event that occurred in Australia at a time when she had been resident in Australia for many years. This means that she met the requirements set out in Schedule 3 that entitle New Zealand citizens to DSP. It follows that I must set aside Centrelink’s decision to reject her claim, and that Ms Nostrum must be granted DSP in respect of the claim that she lodged on 26 March 2024.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that Ms Nostrum qualified for disability support pension when she claimed on 26 March 2024.
| Date of hearing: | Monday, 11 August 2025 |
| Representative for the Applicant: | Ms [A, Legal service 1] |
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