NVNC and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 1927
•26 September 2025
NVNC and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1927 (26 September 2025)
Applicant/s: NVNC
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/0378
Tribunal:Senior Member T Simon
Place:Sydney
Date:26 September 2025
Decision:1. The Tribunal reinstates the second review application
2. The Tribunal affirms the decision of Centrelink, made on 28 January 2023, to refuse the applicants claim for a disability support pension.
……………[SGD]………………….
Senior Member T Simon
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 – fully diagnosed, treated and stabilised –– decisions under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Social Security Act 1991
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023The Social Security (Active Participation for Disability Support Pension) Determination 2014
Cases
RHKL and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1053 (21 July 2025)
Statement of Reasons
On 15 January 2024 the applicant lodged an application with the Administrative Appeals Tribunal for second review of decisions made by the agency (Centrelink) to refuse three claims made by the applicant for disability support pension.
On 10 January 2024, the Tribunal affirmed all three decisions at first review.
From 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal and under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the Administrative Appeals Tribunal that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal.
On 26 February 2025, the Tribunal dismissed the second review application as the applicant did not attend the hearing. The applicant subsequently sought reinstatement of the proceedings, and the Tribunal listed the reinstatement application and the substantive application together.
The parties appeared at the hearing by audio visual link. The applicant appeared with his sister as a support person at the hearing. The respondent appeared through a legal representative.
The parties had provided the following documents:
·A collated set of documents provided by the respondent on 24 February 2024, totalling 250 pages (Exhibit 1)
·Further supplementary documents provided by the respondent on 22 October 2024, totalling 16 pages (exhibit 2).
·The applicant provided a submission from the Australian Medical Association (exhibit 3).
·The applicant provided a Centrelink medical certificate dated 14 July 2025 (exhibit 4)
The respondent also provided a statement of facts, issues and contentions dated 10 January 2025. The applicant gave evidence at the hearing. The Tribunal has considered the written and oral evidence and submissions made by the parties in coming to its decision.
Reinstatement Application
Section 102(7)(b) of the Administrative Review Tribunal Act 2024 (Cth) provides that a party may apply for reinstatement of an application in circumstances where a matter was dismissed under s 99 for non-appearance by the applicant. A party has 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows) to apply for the reinstatement application. The applicant made his reinstatement application immediately on 26 February 2025. Therefore, the reinstatement application was made within time.
Generally, the Tribunal may consider the following matters in determining whether to reinstate an application: [1]
(i) The reason for the applicant’s non-appearance at the time the hearing was dismissed.
(ii) The prejudice that would be caused to the respondent if the application was reinstated.
(iii) The general merits of the substantive review.
[1] See RHKL and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1053 (21 July 2025) at [15].
The applicant states in his reinstatement application that on 26 February 2025 he initiated the video conference at 10am and after no response he contacted the Registry by telephone who informed him that he had been given the wrong commencement time for the hearing. The applicant then attempted to join the video conference again at 11am with no response. He has provided a photo of himself which he submits shows him waiting for the proceedings to commence. He states that he has no record of missed calls. The Tribunal accepts there was some confusion in relation to the listing time and that there would be no prejudice to the respondent in proceeding with the application. The parties were ready and able to proceed with the hearing and there are some general merits to the substantive review. On that basis the Tribunal was satisfied to reinstate the second review application.
CONSIDERATION OF SECOND REVIEW APPLICATION
Pursuant to s 131D of the Administrative Review Tribunal Act 2024 (Cth), a person whose interests are affected by an ART social services decision may apply to the Tribunal for second review of the decision. An ART social services decision includes an eligible social services decision which has been affirmed by the Tribunal; s 131D(3)(a). An eligible social services decision includes a decision made under the Social Security Act 1991; s 131C(g). Section 131J of the Administrative Review Tribunal Act, provides that an application for second review must be made within the time prescribed under s 18 of the Act. Relevantly, s 18 provides that a second review application must be made within 28 days of the party receiving the decision. The decision made by the Tribunal on 10 January 2024, is an eligible social services decision and the applicant's interest are affected by the decision. The second review application was made on 12 January 2024. On that basis, the second review application has been made within time.
Schedule 2, Part 2, subclause 4(1) of the Social Security (Administration) Act 1999 provides that if a person makes a claim for a payment and on the date on which the claim is made, the applicant does not qualify for the payment but instead becomes qualified for the payment within the period of 13 weeks after the day on which they first made the claim, then the claim will be taken to as made on the first day on which the person qualified for the social security payment.
Accordingly, the applicant’s claim for disability support pension must be assessed based on his medical conditions as at the date of claim or within 13 weeks of that time. The applicant made claims for disability support pension to Centrelink on 1 January 2023, 17 July 2023 and 25 September 2023. The applicant's qualification periods in relation to each of those claims are:
i.1 January 2023 and 2 April 2023. (January claim)
ii.17 July 2023 and 16 October 2023. (July claim)
iii.17 August 2023 and 16 November 2023. (August claim)
In his claim for disability support pension made on 1 January 2023, the applicant listed his medical condition as cancer and noted that he was terminally ill with a life expectancy of less than 2 years.[2]
[2] Exhibit 1, p 113.
On 3 January 2023, a disability support pension Medical Eligibility Assessment Recommendation[3] was prepared by a registered nurse, and the applicant was found ineligible for disability support pension because he had not received any reasonable treatment for his cancer or any of his other conditions, including hypertension, neck, spinal, shoulder and upper arm disorder and vasculitis. The report also notes that an authorised review officer in relation to a previous claim had contacted the applicant’s specialist and the specialist had stated that ‘there was no peritoneal involvement and life expectancy would be much longer than 2 years. He has also stated that the applicant ‘would have limited functional impact from the condition’.
[3] Exhibit 1, pp 123 – 125.
On 5 February 2023, the applicant was notified that his January claim for disability support pension had been rejected.[4] The rejection letter stated that the applicant did not have an impairment rating of 20 points or more under the 2011 impairment tables. The applicant sought internal review of the January decision on 6 February 2023.[5]
[4] Exhibit 1, p 128.
[5] Exhibit 1 p 222.
The applicant made a further claim for disability support pension on 17 July 2023.[6] He again listed his condition as cancer. Again, after the completion of a Medical Eligibility Assessment[7] on 24 July 2023 it was recommended that the applicant was ineligible for disability support pension. The report records that in relation to the cancer a referral letter to a Urological surgeon noted that the applicant had been putting off commencing the degarelix as recommended by his urologist. It also noted that the client was to be referred to the surgeon for robot-assisted prostatectomy as that was his preferred treatment. There were no further reports provided from to confirm that the applicant has undergone treatment. It is also noted in the report that there are confirmed diagnosis of chronic back pain, chronic neck pain and mild chronic bilateral De Quervain's tenosynovitis, however there was no information regarding treatment and functional impacts and there were no supporting documents from specialists. The outcome of the assessment was that that the applicant was manifestly medically ineligible as the condition were not diagnosed, reasonably treated and stabilised. On 16 August 2023, the applicant was notified that his July claim was rejected.[8]
[6] Exhibit 1, pp 134 – 141.
[7] Exhibit 1 pp 144 -146.
[8] Exhibit 1, p 127.
The applicant again submitted a further claim for disability support pension on 17 August 2023.[9] Again he reported his condition as cancer. A Medical Eligibility Assessment Recommendations following assessment on 17 August 2023[10] again recommended that the applicant was manifestly medically ineligible. The report notes that a referral dated 9 March 2023 states that the applicant had extensive ISUP 5 prostate cancer. He had been under the care of urologist, although he had yet to commence treatment. The applicant has been recommended Androgen Deprivation Therapy and had not yet started it. The applicant had forms to have a PET scan and wanted to pursue robotic prostate surgery. A referral letter from a urological surgeon dated 4 April 2023 noted that the applicant had been putting off commencing the degarelix recommended by the urologist. It is recorded in the report that there is no medical evidence to confirm the applicant had undergone the recommended treatment of Androgen Deprivation Therapy or robotic prostate surgery or a PET scan for prostate cancer. The report concludes that
‘as such treatment has the potential to cause improvement in function, the condition is unable to be considered reasonably treated and stabilised at this stage.
[9] Exhibit 1, pp 149 – 150.
[10] Exhibit, pp 151 – 153.
On 25 September 2023, the applicant was notified that his August claim was rejected.[11]
[11] Exhibit 1, p 162.
The applicant subsequently sought internal review of decision to reject the July claim[12] and the August claim.[13]
[12] Exhibit 1, p 232.
[13] Exhibit 1, p 240.
On 16 October 2023, an authorised review officer affirmed all three decisions under review[14] finding that the applicant’s medical conditions were not diagnosed, reasonably treated and stabilised could not be assigned impairment points.
[14] Exhibit 1, pp 164 – 168.
Subsection 94(1) of the Social Security Act sets out the qualification criteria for disability support pension and relevantly provides as follows:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
Does the applicant have a physical, intellectual or psychiatric impairment? ss94(1)(a)
The respondent does not dispute that the applicant has been diagnosed with prostate cancer, chronic back pain, chronic neck pain and mild chronic bilateral De Quervain's tenosynovitis.
Having considered the evidence the Tribunal find that the applicant has impairments arising from his medical conditions, and paragraph 94(1)(a) of the Social Security Act is satisfied.
Does the applicant’s impairment attract 20 points or more under the Impairment Tables? ss 94(1)(b)
Paragraph 94(1)(b) of the Social Security Act requires a person’s impairments to attract 20 points or more under the Impairment Tables. Subsection 26(1) of the Social Security Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension.
In relation to the relevant impairment tables, the 2011 Impairment Tables were in force as at the date of the applicant made the claim on 1 January 2023. On 1 April 2023, the 2023 Impairment Tables came into effect.
Section 27 of the Social Security Act provides that”
(1) If a person makes a claim, or is taken to have made a claim, for
disability support pension, the Secretary, in determining the claim,
must apply the instrument in force under section 26 on the day the
claim was made or taken to have been made
The 2023 determination applied to all new claims for disability support pension lodged on or after 1 April 2023. Accordingly, the 2011 table is applicable to the January claim as the claim was made prior to 1 April 2023, and the 2023 determination is applicable to the July and August claims.
2011 Determination
The 2011 impairment tables arose under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. Part 2 of the impairment tables sets out the rules which must be satisfied before an impairment rating can be assigned.
Subsection 6(3) of the rules provides that an impairment rating can only be assigned for an impairment that arises from a condition that is permanent. Subsection 6(4)) provides that a condition is "permanent" if
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b) the condition has been fully treated;
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Subsection 6(5) of the rules provides that, in determining whether a condition is fully diagnosed and fully treated for the purposes of paragraphs 6(4)(a) and (b), the following must be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Subsection 6(6) provides that a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition 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; or
(b) the person has not undertaken reasonable treatment for the condition:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Subsection 6(8) provided that where a medical condition has no functional impact, no rating will be assigned.
2023 Determination
The 2023 impairment tables arose under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023. Part 2 contains the rules which must be satisfied before an impairment rating can be assigned.
Subsection 8(3) provides that an impairment rating can only be assigned to an impairment if the condition is diagnosed by an appropriately qualified medical practitioner, reasonably treated and stabilised, and is more likely than not, in light of available evidence, to persist for more than two years.
Subsection 8(4) requires that in determining whether a condition has been diagnosed by an appropriately qualified medical practitioner, the Tribunal must consider whether there is corroborating evidence of the condition, as set out in the requirements of each table.
Subsection 8(5) provides that in determining whether a condition is "reasonably treated", the Tribunal must consider what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years and likely to result in ‘significant functional improvement’. ‘Significant functional improvement’ is defined in section 5 as ‘improvement that is likely to enable the person to undertake work in the next 2 years’.
Subsection 8 provides that a condition is stabilised if either
(a) the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement is not expected, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of subsection 8(5) and (6), ‘reasonable treatment’ is treatment that:
(a) is available at a location reasonably accessible to the person;
(b) is at a reasonable cost;
(c) can reliably be expected to result in a significant functional improvement;
(d) is regularly undertaken or performed;
(e) has a high success rate; and
(f) carries a low risk to the person.
Section 10 provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating medical evidence, and unless required under the tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Prostate Cancer
The applicant stated at the hearing that the only option he had at the time of the claim for stabilization was radical prostatectomy, which he found traumatic at the time because his father had one and it left him in impotent and incompetent for the rest of his life. He had also heard of other bad outcomes from the operation. The applicant stated he had misgivings about the treatment and assumed that the androgen derivation therapy was a prerequisite to having the having the surgery. He also felt it was a basic human right not to have the invasive treatment and to be able to pursue alternative treatments.
The applicant also relied on the Australian Medical Association submission to the Senate Standing Committees on Community Affairs – Inquiry into the Disability Support Pension (DSP).[15] The applicant referred to the submission’s recommendations about the involvement of General Practitioners in diagnosis. The applicant referred to the following excerpt from the submission:
The DSP requirement for the disability or medical condition to be fully diagnosed, fully treated and fully stabilised can also be an issue for the following reasons:
• defining “stabilised” is problematic when the patient may experience impairment that is progressive, episodic or fluctuating;
• the patient may have a degenerative disease that is progressively impacting on their functionality and thus not clinically considered stabilised; and
• defining a condition as treated is difficult when emerging treatments can be on the medical horizon.
The AMA also suggests that for people with episodic and degenerative conditions the requirement for a condition to be fully diagnosed, treated and stabilised needs to be applicable to the disease stage.
[15] Exhibit 3
The excerpts referred to by the applicant are submissions on legislative policy by a medical association. As was explained to the applicant at hearing, those submissions have no role in determination of the review. The Tribunal must consider the applicable legislative framework as it applies at the time and proposed policy submissions have no role to play in that application. The applicant also made submissions that the table impairments and legislation should be reviewed. Again, it was explained to the applicant that was outside the role of the Tribunal.
The applicant also stated that the symptoms of cancer were impairing him and that he has had incontinence, urinary bleeding and pain. He has been sleeping deprived and, waking up in cold sweats.
On his own evidence the applicant had declined to engage treatment recommended by his treating specialist, as he was considering alternative therapies and did not which to engage in the therapies at that stage.
In a report from the applicant’s treating urological surgeon dated 9 December 2022,[16] the surgeon states
Today I caught up with [the applicant] He is yet to have the PSMA scan or the ADT injection. I suspect [the applicant] may be delaying this process, but I have encouraged him to pursue both. He tells me the medication is waiting for him at the pharmacist. My office will chase his PSMA booking.
I have answered a few questions for [the applicant] today, but essentially I am waiting for his scan results before I can make any further decisions regarding his treatment.
Please encourage [the applicant] to get these two things done
[16] Exhibit 1, p 180.
The applicant provided with his second review application, a report from GP dated 9 April 2023.[17] It is stated in the report:
Thankyou for seeing [the applicant], age 63 yrs, for opinion and management of prostate cancer. He has diagnosis extensive high risk ISUP 5 prostate cancer. He has been under the care of urologist … although is yet to commence treatment. He has been recommended ADT although has not started this yet. He has forms to have a PET scan and hopefully will have this done before he comes to see you. He intends to move to Sydney where he will have increased support with his sister and he also hopes to pursue robotic prostate surgery. I would be grateful if you could assist him to access treatment through the public system as a matter of urgency. I will attach his urology letters. Thankyou for your care.
[17] Exhibit 1, p 7.
That letter indicates that even by April 2023, the applicant had yet to commence the treatment recommended by his treating surgeon.
The first applicant stated that he wanted to engage in alternative treatments. In a letter to the Tribunal after the applicant had received his first review decision, he relevantly states[18]:
[18] Exhibit 2, p 6.
I simply cannot fathom that if my condition is severe enough to warrant
a course of ADT, a gadolinium contrast PET scan, a general anesthetic
and complete prostatectomy and probable long term chemotherapy, that I
am still not ill enough to qualify for a Disability pension regardless
of whether or not I choose to undertake the aforementioned treatments
and surgery before pursuing all other medical options that may be
available to me and which I believe should be my within my human rights.
If my disease and other debilitations are not serious and
severe enough for me to qualify for a DSP, then why have I been exempted
from all Centrelink compliance requirements 'due to serious illness'?
The applicant has provided a referral letter to a doctor in Penrith dated 4 April 2023.[19] The referral letter relevantly states:
Thank you for urgently seeing [the applicant], a 63 year old man with biopsy-confirmed extensive high-risk prostate cancer (ISUP 5) for which he has been seeing [a urological surgeon] in Lismore where [the applicant] usually lives. His PSA has escalated from 16 microg/L in March 2019, through 51 in July 2022, to 57 in November 2022 (the most recent set of tests provided to me by [the applicant’s] usual GP in Lismore). For various reasons that I think we may have resolved today,
[the applicant] has been putting off commencing the degarelix recommended by [the urological surgeon], and attending Lismore Base Hospital for a PSMA PET-CT; in his most recent letter [urological surgeon] was reasonably forthcoming in terms of his inability to progress matters without the information provided by the PET.
Since [the applicant] has misplaced [the urological surgeon’s] PET-CT referral form, I have written to [the urological surgeon] today requesting a repeat referral form to be emailed to [the applicant], with copies of the report coming to you, his GP and myself in case [the applicant] returns to see me as well. I also issued [the applicant] a repeat prescription for the degarelix and can administer this should he be able to source it before he returns to Lismore in the near future.
The reason I am referring to you is that [the applicant] has done some research and identified robot-assisted prostatectomy as a preferred treatment (should it be suitable of course); I spoke with the urology registrar at Nepean Hospital today, and was advised that you offer this service - is that correct? I did advise [the applicant] today that the ultimate treatment protocol will depend upon the attending surgeon and any oncologists who may become involved in his care. [the applicant] is aware of some of the more ominous adverse effects from treating prostate cancer, and this may have gravitated him toward alternative therapies such as immunotherapy and dietary manipulation; he explained to me today that he was not aware of the considerable risks associated with not urgently treating his cancer - and it sounds as though some of the public health messages - such as "you die with it, not from it" - have been oversimplified in their delivery which has given him a false sense of security. Today I believe we resolved many of the queries and concerns he had, but anticipate that he would be grateful if you could allocate some consultation time to thoroughly discussing the reasonable options and their associated respective risks and benefits. He would likely be receptive to your recommendations but would also be interested in the reasons for these. This approach, I've found, has been particularly important today for [the applicant] deciding to engage and move forward with the treatment that was previously advised.
[19] Exhibit 1, pp 130-131.
At the hearing, the applicant referred to the consultation with the referring doctor and submitted that it demonstrated that he had made enquiries about alternative therapies and travelled to Sydney attempted to have his condition, stabilized and treated. He stated he went to that extent to investigate the options of the robotic surgery and was still considering it. He stated that there are side effects to androgen deprivation therapy that are well recorded, and he saw a recent report on the ABC about as number of suicides because of it. He stated that he has seriously considered all the options and, was still happy to pursue an alternative to surgery if it was available.
Except for attending the referring doctor, it is clear from the applicant’s submissions at the hearing that he has not taken the steps recommended in the referral, because he is still investigating alternative options. While the applicant continues to speak of his interest in engaging in alternative medicine or follow up on robot-assisted prostatectomy, he has taken not no further steps in the qualification period in that regard. On that basis the applicant had not in fact engaged with reasonable treatment in any of the qualification periods.
At the hearing the applicant indicated that he had limited funds. However, there is no evidence before the Tribunal that any of the the treatment recommendations are either inaccessible or unaffordable. In relation to the robot-assisted prostatectomy, he has previously attended in Sydney to make enquiries.
As noted above, in the Disability Support Pension Medical Eligibility Assessment Recommendation completed on 3 January 2023,[20] noted that an authorised review officer in relation to a previous claim had contacted the applicant’s specialist and the specialist had stated that ‘there was no peritoneal involvement and life expectancy would be much longer than 2 years. The surgeon had also stated that the applicant ‘would have limited functional impact from the condition’.
[20] Exhibit 1, p 124
Applying the 2011 determination to the January claim, the applicant’s prostate cancer was not fully treated and fully stabilised. The medical evidence suggests that the applicant failed to undergo treatment as recommended by his urological surgeon. The applicant failed to undertake reasonable treatment for his condition and the evidence does not suggest that reasonable treatment is unlikely to result in significant functional improvement or that there was a compelling reason not to undertake the treatment. The fact the applicant was looking into alternative treatments is not compelling reason as he has not followed through with those investigations. On that basis, no points can be assigned for the applicant under the 2011 impairment tables.
Similarly, applying the 2023 determination to the July and August claims, the applicant’s prostate cancer was not reasonably treated and stabilised. The applicant had not undertaken reasonable treatment and there is no evidence that significant functional improvement is not expected, even if he undertook the reasonable treatment or that there was a medical or other compelling reason for him not to undertake reasonable treatment. The treatment was reasonably accessible to the applicant and there is not corroborating evidence that the cost would not be reasonable or that it would not result in a significant functional improvement. More than one doctor has suggested the treatment and it there no evidence that it carries risk to the applicant or has a low success rate. Again, no points can be assigned for the applicant’s under the 2023 impairment tables.
Spinal Disc Degeneration
Similarly, an x-ray report dated 16 June 2022[21] notes that the applicant has degenerative disc changes in the cervical and lumbar spine.
[21] Exhibit 1, p 86
The applicant was referred to a physiotherapist 22 July 2022[22]. A GP Management Plan dated 2 August 2022,[23] recommended pain management therapy by various health professionals including a chiropractor. There is evidence he was also referred to a chiropractor on 22 July 2022.[24] There is no evidence that any of those referrals were followed up or no reasons have been provided as to why they were not followed up. Accordingly, no points can be assigned under either the 2011 impairment tables or 2023 impairment tables.
[22] Exhibit 1, p 91
[23] Exhibit 1, pp 92 -95
[24] Exhibit 2, p 7
Other Conditions
As stated above the applicant has also reported conditions such as bladder cancer, tenosynovitis, dyslipidaemia, hypertension and depression. There is very little medical evidence regarding the nature and extent of these conditions to establish they were diagnosed or that they were reasonably treated on stabilised in any of the relevant qualification periods. No points can be assigned flowing from those condition under either of the impairment tables.
Conclusion on Impairment Table points
The Tribunal finds that no points could be assigned under the 2011 impairment tables or 2023 impairment tables during any of the relevant the qualification periods. Even though the applicant was fully diagnosed with some conditions, he had not been fully or reasonably treated or stabilised. The applicant does not satisfy paragraph 94(1)(b) of the Social Security Act as at the qualification period.
Does the applicant have a continuing inability to work? Ss94(1)(C)(i)
Section 94 of the Social Security Act has a cumulative construction. Given the Tribunal has found that the applicant does not satisfy paragraph 94(1)(b) of the Social SecurityAct, it is unnecessary for the Tribunal to consider whether the applicant has a continuing inability to work under paragraph 94(1)(c) of the Social Security Act.
However, for completeness the Tribunal notes that even if the applicant did satisfy the requirements for of s 94(1)(b) the applicant would not have a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Social Security Act.
In relation to ‘continuing inability to work’ subsection 94(2) provides:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support -- the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The term ‘severe impairment’ is defined in subsection 94(3B) of the Social Security Act as follows:
(3B) A person’s impairment is a severe impairment is the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
The applicant would not fall within a category of severe impairment during the relevant qualification periods, because as noted above, none of his impairments would have attracted more than 20 points under a single impairment.
Therefore, in accordance with paragraph 94(2)(aa), the applicant must have actively participated in a program of support in order to have a continued inability to work. A person has actively participated in a program of support if they meet the requirements set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014. Subsection 7(1) of that Determination provides that a person has actively participated in a program of support if the person:
(a) complies with the requirements of, and has participated in, a program of support; and
(b) satisfies subsections 7(2), (3), (4) or (5) of the Determination.
Subsection 7(2) of the Determination requires a person to have participated in a program of support for 18 months in the relevant period, being the 36 months ending immediately before the day on which the person submitted a claim for disability support pension. In this case, the relevant qualification periods are
i.31 December 2019 and 31 December 2022;
ii.16 July 2020 and 16 July 2023; and
iii.16 August 2020 and 16 August 2023.
There is evidence to demonstrate that the applicant participated in a program of support as follows:
i.between the period 31 December 2019 and 31 December 2022 the applicant had 341 days or approximately 11.2 months of active participation.[25]
ii.between the period 16 July 2020 and 16 July 2023 the applicant had 225 days or approximately 7.4 months of active participation.[26] And
iii.between the period 16 August 2020 and 16 August 2023 the applicant had 194 days or approximately 6.37 months of active participation.[27]
[25] Exhibit 1, p 248.
[26] Exhibit 1, p 249.
[27] Exhibit 2, p 16.
The evidence does not establish that the applicant participated in 18 months of a program of support during any of the relevant qualification periods.
Subsections 7(3) – (5) of the Determination contain a number of exceptions to the general requirement that a person must participate for at least 18 months, however there is no evidence to demonstrate that any of those exceptions are relevant in these circumstances.
The Tribunal finds that even if the applicant’s conditions were fully diagnosed, treated and stabilised, she would not have satisfied paragraphs 94(2)(aa), (a) or (b) of the Social Security Act, and would not have demonstrated a continued inability to work as required by paragraph 94(1)(c) of the Social Security Act.
DECISION
The Tribunal affirms the decisions of Centrelink to refuse the applicants claims for a disability support pension.
Date(s) of hearing: 29 July 2025 Applicant:
Self-Represented
Solicitors for the Respondent: W Sharpe, HWL Ebsworth
0
1
0