Percival and Secretary, Department of Social Services (Social security)
[2025] ARTA 189
•14 January 2025
Percival and Secretary, Department of Social Services (Social security) [2025] ARTA 189 (14 January 2025)
Applicant: Mr PERCIVAL
Respondents: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2024/A191598
Tribunal:G Markov, General Member
Place:Melbourne
Decision Date: 14 January 2025
DECISION
The decision under review is set aside and the matter is sent back to the Chief Executive Centrelink for reconsideration in accordance with the direction that Mr Percival’s claim for disability support pension be reassessed on the basis that he satisfied paragraphs (a), (b) and (c) of subsection 94(1) of the Social Security Act 1991 from 9 September 2024.
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – impairment rating – severity of medical condition – completing a program of support – decision under review set aside and remitted
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.
REASONS FOR DECISION
BACKGROUND
This review is about whether Mr Percival met the qualification requirements for payment of disability support pension on the date of his first claim, 27 August 2024.
Mr Percival made a claim for disability support pension to Services Australia (Centrelink) on 27 August 2024. In support of his claim he provided medical reports from [a number of doctors and specialists]; [Hospital 1] and various radiology and pathology reports.
On 2 September 2024 an employee of Services Australia (Centrelink) decided that Mr Percival was not qualified for payment of disability support pension (the “original decision”). On 11 September 2024 Mr Percival requested a review of the original decision. On 17 September 2024 the authorised review officer affirmed the decision to reject Mr Percival’s claim for disability support pension.
On 18 October 2024 Mr Percival applied to the Administrative Review Tribunal (the Tribunal) for an independent review of Centrelink’s decision.
On 7 January 2025 the Tribunal conducted a hearing at which Mr Percival’s wife, Mrs Percival, gave evidence by telephone. Mrs Percival had previously been authorised by Mr Percival as his representative. Mrs Percival informed the Tribunal that on [a day in] December 2024 Mr Percival died from [cancer].
The Tribunal had before it the relevant documents provided by Centrelink (162 pages) which had been copied to Mr and Mrs Percival.
Section 84 of the Administrative Review Tribunal Act 2024 provides for specified persons to apply to continue the matter despite the death of the applicant. One such category of persons is an executor, and Mrs Percival informed the Tribunal that she is the executor of her husband’s estate and she wished to proceed with the hearing and give evidence. Subsection (4) of section 84 does not require the application to be dismissed but merely provides a discretion for the Tribunal to dismiss the application on the death of the applicant.
In all of the circumstances of this case the Tribunal declined to exercise that discretion and proceeded to review Centrelink’s decision.
ISSUES
The issues for the Tribunal to determine in this review application are:
Did Mr Percival have a physical, intellectual or psychiatric impairment?
Did he have a diagnosed condition that had been diagnosed, reasonably treated and stabilised, and likely to continue for more than two years? If yes, did his impairment rate at least 20 points on the Impairment Tables? and
(iii)If so, did he have a continuing inability to work?
INFORMATION PROVIDED AT THE HEARING
Mrs Percival told the Tribunal that her late husband had made two claims, about two weeks apart; the first was on 27 August 2024, less than three weeks after he was found to have a [cancer]. She was his carer and he needed assistance with many basic tasks including mobilising. Prior to his being granted disability support pension, he was in receipt of jobseeker payment. Mr and Mrs Percival have [number] adult children, and prior to his death they resided with one child aged [age] and an [age]-year‑old grandchild whom they care for. Mrs Percival said she is the sole executor of her husband’s will; he died at [age] years of age. She then described her husband’s last illness.
11. Mrs Percival said that her husband had been well until 6 August 2024; on that day he came home from work feeling nauseated and had headaches. He went to bed early, and the following morning (7 August 2024) he had difficulty walking and speaking, and the left side of his face was drooping. Mrs Percival contradicted the hospital summary where it described a gradual three‑month period of cognitive and memory impairment; the illness was abrupt in onset, she said. They initially attended their GP (Mr Percival had to be assisted to get into and out of the car) and then attended the local hospital Emergency Department where a CT scan revealed a [tumour]. Mr Percival was then transferred by ambulance to [Hospital 1] for further investigation.
12. Mrs Percival said that at [Hospital 1] her husband underwent further tests which included planning for a later admission. He was sent home after one week (he was only able to walk with a walking frame and used a wheelchair), and then re-admitted two weeks later. During the second admission he underwent two operations, [details deleted], which showed a [medical condition 1]. [A medication] was given to control swelling (which temporarily improved some of the symptoms), as well as many other medications.
Mrs Percival said that after consultations and meetings were held between the neurosurgeon, radiotherapist and medical oncologist, it was decided that Mr Percival was unsuitable for surgery (based on the anatomical location of the [cancer]); instead, combined radiotherapy (five days per week for six weeks) and chemotherapy ([specified] tablets daily for six weeks) was commenced. Despite this treatment, Mr Percival deteriorated; in addition to worsening headaches and poor mobility, he developed seizures and headaches which responded poorly to medication. The [medical condition 2] had returned, she was told.
14. After only three weeks of this combined treatment – on about 21 November 2024 – [a named doctor] called Mrs Percival to advise her that the treatment was not beneficial and he discussed abandoning it; after a discussion, Mr Percival decided to do so and a referral to a palliative care team was arranged.
15. Mrs Percival said that as a former nurse who had worked extensively in palliative care in the past she required little practical assistance, but certain pieces of equipment (such as a shower chair, walker, wheelchair and recliner) were provided. He was prescribed [a medication] for the headaches.
16. Mrs Percival said that on 1 December 2024 her husband fell in the bathroom in the middle of the night and suffered a seizure; he was taken by ambulance to the local hospital where intravenous medication was given in an attempt to control the convulsions. Mr Percival remained an inpatient until his death on [the day in] December 2024.
CONSIDERATION OF ISSUES
(i) The legislative framework
17. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act); the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (the Determination), which contains the “Impairment Tables”; and the Social Security Administration Act 1999 (the Administration Act).
18. Any claims for disability support pension made on or after 1 January 2012 are assessed under the qualification criteria set out in the Act as amended from that date. Subsection 94(1) of the Act sets out the qualifications for disability support pension. The Tribunal is required to determine Mr Percival’s qualification for disability support pension on the date he is taken to have lodged his claim, being 27 August 2024. Should the Tribunal conclude that Mr Percival did not meet the qualification at that date but did so within 13 weeks of that date, the Tribunal will consider whether the early start date rule in subclause 4(1) of Schedule 2 to the Administration Act allows the Tribunal to grant disability support pension from that date.
(ii) Did Mr Percival have a physical, intellectual or psychiatric impairment?
19. The first qualification requirement for disability support pension is that the person must have a physical, intellectual or psychiatric impairment (paragraph 94(1)(a) of the Act).
20. Having considered the evidence before it in the medical reports provided by his doctors, the hospital, the radiology and pathology reports, and taking into account Mrs Percival’s oral evidence, the Tribunal finds that he suffered from [cancer], which had an effect on his ability to function.
21. The Tribunal is therefore satisfied that Mr Percival satisfied paragraph 94(1)(a) of the Act.
(iii) Did Mr Percival have an impairment rating of 20 or more points under the Impairment Tables?
22. Mr Percival’s medical condition must also attract an impairment rating of at least 20 points according to the Impairment Tables set out in the Determination (paragraph 94(1)(b) of the Act).
23. To apply the Impairment Tables the condition must have been diagnosed by an appropriately qualified medical practitioner, reasonable treatment must have been undertaken, the condition must have been stabilised and both the condition and any resulting impairment must have been more likely than not to persist for more than two years (subsection 8(3) of the Determination).
24. The Tribunal considered Mr Percival’s [cancer] in detail.
25. The Tribunal accepted Mrs Percival’s oral evidence which is corroborated by the medical reports and hospital records. A tumour was suspected from the date of the CT scan of 8 August 2024; this found “[medical condition 2]”
26. The Tribunal, being medically qualified, understands [the specified details of this condition].
27. Mr Percival was admitted directly after the CT scan for further investigations and multidisciplinary coordination; [treatment details] and a biopsy of the suspected tumour was performed. The histopathology report of 9 September 2024 described “[the details of the condition]”.
28. In plain language, this means a [medical condition 1], a malignant primary [cancer] with certain microscopic features suggesting it was particularly aggressive. The [location] is [described]. The [medical condition 1] was complicated by [medical condition 2], which has its own consequences. It is because of the risk of damage to these structures that surgical treatment of the tumour was ruled out.
29. At the team meetings held on 17 September and 15 October 2024 it was decided to proceed with combined chemotherapy and radiotherapy commencing 22 October 2024, noting that Mr Percival had a poor prognosis.
Mrs Percival in her oral evidence said that the treatment was abandoned on or around 21 November 2024 after only three weeks (and with the specialists’ advice) because her husband had deteriorated despite the treatment, meaning it was ineffective. Mr Percival underwent palliative care at home, and then in hospital, until his death.
31. The Tribunal consulted the medical literature about such [cancers].[1] The median overall survival of patients with [medical condition 1] in population-based studies is approximately 10 to 12 months. For [medical condition 1] diagnosed between 2002 through 2010 in the United States and Taiwan, for example, one-year survival rates ranged from 38 to 50 percent and five-year survival ranged from 5 to 10 percent. The Tribunal considers that Mr Percival’s prognosis would likely have been worse than these average survival rates due to the anatomical location of his [tumour] and the fact that he was unsuitable for surgical resection.
[1] [Source deleted].
32. Mr Percival lodged his claim on 27 August 2024, after the midbrain tumour was detected but before the precise histological diagnosis was verified and before treatment had begun. The Tribunal found that the [specific cancer] was not diagnosed, reasonably treated and stabilised at the date of claim. Rather, it found that the [cancer] was diagnosed at the date of the histopathological report confirming that the tumour was a [medical condition 1], specifically 9 September 2024.
33. The Determination also requires that for an impairment rating to be assigned, a condition must be reasonably treated and stabilised.
34. Subsection 8(7) of the Determination defines reasonable treatment as follows:
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.
35. Significant functional improvement is defined by section 5 of the Determination to mean improvement that is likely to enable the person to undertake work in the next 2 years. Once the precise diagnosis of the tumour was confirmed to be a [medical condition 1] on 9 September 2024, it was clear Mr Percival’s prognosis was poor and it was virtually impossible he would recover (even for a short time) to the extent he would be capable of work; rather the treatment was provided hoping to alleviate symptoms and prolong life. The Tribunal found that the treatment proposed could not – in his case – be reliably expected to result in a significant functional improvement or have a high success rate, and therefore the Tribunal found that for the purposes of the Determination the [cancer] could be considered reasonably treated as of 9 September 2024.
36. Subsection 8(6) of the Determination defines stabilised as follows:
Stabilised
For the purposes of paragraph 8(3)(c) 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.
Mr Percival’s treatment began on the day he was first hospitalised (8 August 2024) and included steroids and other drugs, however the radiotherapy and chemotherapy did not commence until 22 October 2024. However, once the pathology report was issued specifying which kind of cancer was present, it became clear that significant functional improvement could not be expected despite reasonable treatment (in this case radiotherapy and chemotherapy). Therefore the Tribunal found that for the purposes of the Determination the [cancer] could be considered stabilised as of 9 September 2024.
38. The Tribunal was satisfied therefore that Mr Percival’s [cancer] was diagnosed, reasonably treated and stabilised as of 9 September 2024.
39. The Tribunal then considered the nature and extent of functional impairment from the [cancer], and the applicable impairment rating.
40. Very little clinical information about functional incapacity and response to treatment is provided by the hospital records; the three months of progressive decline involving memory and cognition mentioned in the August 2024 hospital discharge summary was contradicted by Mrs Percival who described a far more abrupt and fulminant onset of symptoms. The medical report issued in support of Mrs Percival’s claim for carer payment (the name and signature of the doctor completing the report are not included in the documents provided by Centrelink) indicates that Mr Percival required help with personal care, toileting, feeding and transferring, as well as mobilising, dressing and bathing. This is consistent with Mrs Percival’s oral evidence at the hearing. She also described speech difficulties.
The Tribunal accepted this medical report and Mrs Percival’s oral evidence and considered that as of 9 September 2024 the functional impact from the [cancer] on activities requiring physical exertion or stamina was severe, and assigned 20 points from Table 1 – Functions requiring Physical Exertion and Stamina in the Determination.
42. The Tribunal is therefore satisfied that Mr Percival satisfied paragraph 94(1)(b) of the Act.
(iv) Did Mr Percival have a continuing ability to work?
43. The third qualification requirement for disability support pension is that the person must have a continuing inability to work (paragraph 94(1)(c) of the Act). This means that 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 or from undertaking a training activity during the next 2 years. The additional requirement to have actively participated in a program of support does not apply where the person’s impairment is found to have been a “severe impairment” (subsection 94(2) of the Act). Subsection 94(3B) of the Act provides that a person’s impairment will be a “severe impairment” if it is of 20 points or more under a single table. Accordingly, Mr Percival’s impairment was a severe impairment and he was not required to have actively participated in a program of support.
44. The Tribunal is therefore satisfied that Mr Percival satisfied paragraph 94(1)(c) of the Act.
(v) Did Mr Percival qualify for disability support pension within 13 weeks of lodging his claim?
45. The Tribunal then considered whether Mr Percival qualified for disability support pension within 13 weeks of the date of claim, having regard to the start date provisions in subclause 4(1) of Schedule 2 to the Administration Act:
If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Summary
Having considered all the evidence before it, the Tribunal finds that as of 9 September 2024 Mr Percival’s [cancer] attracted a total impairment score of 20 points, equal to the 20-point minimum required under the Act. Thus Mr Percival satisfied paragraph 94(1)(b) of the Act.
47. The Tribunal has found that Mr Percival did suffer from a severe impairment because his [cancer] on its own attracted 20 points under Impairment Table 1, and therefore he was not required to have completed a program of support.
48. Having regard to the severity of the [cancer] the Tribunal finds that he would have been incapable of working 15 or more hours per week “independently of a program of support" and also that his [cancer] would have prevented his undertaking a training activity during the next two years.
Mr Percival therefore had a continuing inability to work and satisfied paragraph 94(1)(c) as of 9 September 2024. As the Tribunal has found that Mr Percival satisfied paragraphs 94(1)(a), (b) and (c) of the Act as of 9 September 2024, subject to him meeting any other qualification requirements, his claim is to be taken to have been made on that date.
50. The Tribunal observes that under section 60 of the Administration Act any additional entitlement created as a result of this decision may not be payable to his estate. The Tribunal is aware that there are provisions that allow Centrelink to consider whether amounts are to be paid to another person instead of Mr Percival (such as section 58 of the Administration Act) but that it may require an application for payment to be made within a set timeframe. It would be open to Mrs Percival to contact Centrelink to discuss any wish to seek payment.
DECISION
The decision under review is set aside and the matter is sent back to the Chief Executive Centrelink for reconsideration in accordance with the direction that Mr Percival’s claim for disability support pension be reassessed on the basis that he satisfied paragraphs (a), (b) and (c) of subsection 94(1) of the Social Security Act 1991 from 9 September 2024.
Date of hearing: 7 January 2025
Representative: Mrs Percival
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023
The Impairment Tables
Table 1 – Functions requiring Physical Exertion and Stamina
| Introduction to Table 1 |
o a report from the person’s treating doctor; o a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (such as cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, or lung cancer); o a report from a medical specialist confirming the diagnosis of conditions commonly associated with fatigue or exhaustion (such as diabetes mellitus, renal failure, end stage organ failure, widespread/metastatic cancer, chronic pain, myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS), lymphoedema and fibromyalgia), and providing details of treatment, functional impact and prognosis; o results of exercise, cardiac stress, treadmill testing or actimetry linked blood pressure and heart rate monitoring.
|
| Points | Descriptors |
| 0 | There is no or minimal functional impact on activities requiring physical exertion or stamina. (1) The person: (a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and (b) has no or minimal difficulty completing physically active tasks around their home and community; and (c) can undertake personal care activities such as showering or bathing and these activities do not prevent the person from undertaking a full range of activities in the same day. |
| 5 | There is a mild functional impact on activities requiring physical exertion or stamina. (1) The person: (a) experiences occasional symptoms such as mild shortness of breath, fatigue, pain, or mild post-exertional malaise, when performing physically demanding activities and, due to these symptoms, the person has mild difficulty: (i) walking or mobilising in a wheelchair or other equivalent assistive technology to local facilities without stopping to rest; or Example: going to local shops or supermarket, larger workplace, education or training campus. (ii) performing physically active tasks or heavier household activities; and Example 1: climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair. Example 2: vacuuming floors or mowing the lawn. (b) is able to perform most work-related tasks, other than tasks involving heavy manual labour. Example: digging, carrying or moving heavy objects, concreting, bricklaying, or laying pavers. |
| 10 | There is a moderate functional impact on activities requiring physical exertion or stamina. (1) The person: (a) experiences frequent symptoms such as moderate shortness of breath, fatigue, pain, or post-exertional malaise, when performing day-to-day activities around the home and community and, due to these symptoms, the person has moderate difficulty: (i) walking or mobilising in a wheelchair or other equivalent assistive technology far outside the home and needs to drive or get other transport to local facilities; or Example: going to local shops or supermarket, workplace, education or training campus. (ii) performing day-to-day household activities; or Example: changing sheets, washing and putting away dishes or sweeping paths. (iii) performing personal care activities such as showering or bathing and needs to plan and schedule showering or bathing around other activities to ensure they are not doing too much in any one day; and (b) is able to: (i) use public transport and walk or mobilise in a wheelchair around local facilities such as local shops, workplaces, or a supermarket; and (ii) perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion). |
| 20 | There is a severe functional impact on activities requiring physical exertion or stamina. (1) The person: (a) usually experiences symptoms such as severe shortness of breath, fatigue, post-exertional malaise, or pain when performing light physical activities and, due to these symptoms, the person has severe difficulty: (i) walking or mobilising in a wheelchair or other equivalent assistive technology from the carpark, into and around local facilities without assistance; or Example: going to local shops or supermarket, workplace, education or training campus. (ii) using public transport without assistance; or (iii) performing light day-to-day household activities without requiring a long recovery period afterwards; or Example: preparing a simple meal, dusting, folding and putting away laundry or light gardening. (iv) performing personal care activities without assistance; and Example: the activity will cause severe fatigue and the person needs to rest before and after showering/bathing, and can undertake minimal to no other activities for the rest of that day. (b) has or is likely to have severe difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a shift of at least 3 hours. |
| 30 | There is an extreme functional impact on activities requiring physical exertion or stamina. (1) The person: (a) is unable to perform activities requiring physical exertion or stamina; or (b) experiences symptoms such as extreme shortness of breath, extreme fatigue or pain when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance; or (c) is unable to undertake personal care activities and needs assistance to use the bathroom or is reliant on bed baths or using wet wipes. Such activities result in severe fatigue; or (d) is bedbound. Note: this impairment rating level includes people who require Oxygen treatment. Example: requiring the use of an Oxygen concentrator during the day or to move around. |
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Administrative Law
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Judicial Review
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Administrative Decision
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Social Security
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