QTMY and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 1057

QTMY and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1057 (21 July 2025)

Applicant/s:  QTMY

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/1701

Tribunal:Senior Member M Kennedy

Place:Adelaide

Date:21 July 2025

Decision:The decision under review is affirmed.

Statement made on 21 July 2025 at 4:59pm

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 – rejection of claim – 2011 Impairment Tables – respiratory conditions fully diagnosed treated and stabilised  – mental health conditions not diagnosed for purpose of the Impairment Tables – Table 1 appropriate Impairment Table for respiratory conditions – insufficient impairment points for qualification – decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Statement of Reasons

1. Ms QTMY applied for a grant of disability support pension (DSP) on 12 September 2022.  Her claim was rejected by Centrelink on 29 September 2022.  An authorised review officer affirmed that decision on 15 December 2023, following a request for internal review made by Ms QTMY over 12 months earlier.

2. Ms QTMY applied to the Administrative Appeals Tribunal (AAT) for review on 22 January 2024.  On 20 February 2024 the AAT also affirmed the decision to reject her claim.

3. In affirming the decision, the AAT found that Ms QTMY’s mental health conditions of anxiety disorder and major depression had not been fully diagnosed, treated and stabilised, and that as the condition of irritable bowel syndrome was an aggravation of her mental health conditions, it similarly was not fully diagnosed, treated and stabilised.  The AAT also considered Ms QTMY’s osteoporosis was not fully treated.  The AAT did not therefore assign any impairment rating to these conditions.

4. In relation to Ms QTMY’s respiratory conditions, the AAT accepted that Ms QTMY had a number of respiratory conditions which were amenable to attracting impairment points.  The AAT assigned 10 points, which was insufficient to qualify for DSP.

5. Ms QTMY applied to the AAT for second review on 20 March 2024.  On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.

   CONSIDERATION

6. Medical qualification for DSP is provided for in section 94 of the Social Security Act 1991 (the Act).  It requires, among other matters, that a person have a physical, intellectual or psychiatric impairment, and that the person’s impairment is of 20 points or more under the impairment tables: paragraphs 94(1)(a) and (b) of the Act.

7. It is settled that it is in the 13-week period from the date of claim that medical evidence must establish the entitlement to DSP: Gallacher v SDSS [2015] FCA 1123 and sections 41 and 42 and Schedule 2 to the Social Security (Administration) Act 1999.  Evidence of subsequent changes to health and functional capacity is irrelevant. Later medical evidence that comes into existence outside that period may still be relevant if it casts light on the condition during the 13-week qualification period.

8. This notion is significant in this matter because the application for DSP with which this review is concerned was lodged nearly three years ago.  Another consequence of the application for DSP being lodged three years ago is that the legislative framework against which the application must be assessed is slightly but materially different to that which would apply to an application lodged today.  This is because any allocation of impairment points for the functional incapacity caused by Ms QTMY’s conditions must be undertaken by reference to an earlier iteration of the applicable impairment tables. 

   Do Ms QTMY’s impairments rate at least 20 points under the Impairment Tables?

9. As mentioned, functional incapacity caused by impairment is to be rated against the Impairment Tables.  Relevantly, for an application for DSP lodged on 12 September 2022, the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 are applicable.  Any reference to the Impairment Tables in these reasons is a reference to that legislative instrument.

10. The Impairment Tables include directions as to how they are to be applied.  Relevantly, and amongst other requirements and definitions:   

    ·subsection 6(3) of the Impairment Tables provides that a rating can only be applied if the condition is ‘permanent’ and the impairment that results from the condition is more likely than not to persist for more than 2 years;

    ·subsection 6(4) provides that a condition will be ‘permanent’ if it has been fully diagnosed, fully treated and fully stabilised, and is more likely than not to persist for more than 2 years;

    ·subsection 6(5) provides that in deciding whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and fully treated, a decision maker must consider corroborating evidence for the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned in the next 2 years; and

    ·subsection 6(6) provides that a condition is fully stabilised if the person has undertaken reasonable treatment 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.

    Respiratory conditions

11. The Secretary accepts that Ms QTMY has fully diagnosed, treated and stabilised respiratory conditions.  Although I note there is a substantial body of medical evidence pertaining to Ms QTMY’s respiratory conditions, it is sufficient to note the evidence of Ms QTMY’s treating General Practitioner Dr “H” and that of her treating specialist, Thoracic Physician Dr “M” addressing her conditions during or very approximate to the date of claim and the qualification period.

12. On 12 September 2022, Dr “H” issued correspondence confirming that Ms QTMY had five medical conditions: ‘chronic asthma / COPD’, interstitial lung disease / organising pneumonitis / eosinophilic pneumonitis, obstructive sleep apnoea, chronic rhinosinusitis and osteoporosis.

13. On 10 November 2022, Dr “M” wrote to Dr “H” after one of his regular consultations with Ms QTMY and confirmed the existence of four conditions: chronic asthma / COPD, interstitial lung disease likely organising pneumonia or eosinophilic pneumonitis, possible obstructive sleep apnoea and rhinosinusitis.

14. Dr “M” stated in his letter that the diagnosis was not clear (referring from context to interstitial lung disease), but clinical progress was compatible with either organising pneumonitis or eosinophilic pneumonitis.  I do not however interpret Dr “M”’s remarks in this regard to relevantly put in doubt the diagnosis of interstitial lung disease, but rather the correspondence is indicating that one of two underlying disease processes is likely to be responsible.  I am satisfied that during the qualification period, Ms QTMY’s interstitial lung disease was fully diagnosed.

15. I am further satisfied that Ms QTMY’s chronic asthma and a chronic obstructive pulmonary disease is fully diagnosed. 

16. I am also satisfied that the above-mentioned conditions are fully treated and fully stabilised during the qualification period.  Focussing on Dr “M”’s evidence in this regard, Dr “M” described Ms QTMY’s current treatment in his letter of 10 November 2022, describing a tapering dose of prednisolone and a regular dose of breo-ellipta.

17. Other correspondence from Dr “M” demonstrates than in the lead up to and during the qualification period, Ms QTMY was being closely monitored and regularly viewed by him as her specialist.  In this regard, in a letter of 7 July 2022 Dr “M” addressed the impact on Ms QTMY of a Covid infection which required admission into hospital, and regular review and adjustment to her medication regime is addressed in other letters, including 9 May 2022, 7 July 2022, 1 August 2022 and 10 November 2022.  In light of the regular specialist review, and the evidence of medication therapy with adjustment from time to time, I am satisfied that Ms QTMY’s conditions are fully treated and stabilised by reference to this corroborating medical information during the qualification period.  The conditions of chronic asthma, chronic obstructive pulmonary disease and interstitial lung disease are therefore relevantly permanent, and the functional impact of these conditions amenable to attracting points under the impairment tables.  I will refer to these conditions as Ms QTMY’s permanent respiratory conditions.

18. As to obstructive sleep apnoea, Dr “M”’s description of this condition as ‘possible obstructive sleep apnoea’ introduces doubt in this diagnosis, contrary to the list of conditions on Dr “H”’s correspondence.  That doubt is reenforced well after the qualification period when in a subsequent letter to Dr “H”, Dr “M” observes that there was no evidence of sleep apnoea at a diagnostic sleep study on 4 March 2025.

19. I am not satisfied that obstructive sleep apnoea was fully diagnosed during the qualification period given Dr “M” expressing the condition as ‘possible’ at the time, and subsequent medical evidence, probative to the qualification period, further putting in doubt that particular diagnosis.  Little turns on this however as the permanent conditions and obstructive sleep apnoea would be assessed by reference to the same table under the impairment tables in any event.

20. As to chronic rhinosinusitis, I am satisfied the conditions is well documented and medically corroborated.  I am satisfied the condition is fully diagnosed. 

21. However, more recently Ms QTMY has consulted an ear nose and throat surgeon, Dr “V”.  In a letter to Dr “H” of 2 May 2025, Dr “V” describes Ms QTMY as a reasonable candidate for septoplasty, turbinate reduction surgery and functional endoscopic sinus surgery, and confirmed that Ms QTMY has chosen to proceed.  Ms QTMY confirmed in her evidence that she will have these procedures performed soon.  Ms QTMY also expressed the view that these procedures will not address the underlying allergic cause of her sinusitis however.  While perhaps that is true, I consider that Dr “V”’s opinion that she is a reasonable candidate for the procedures indicates that the procedures are reasonably expected to provide functional improvement in relation to chronic rhinosinusitis.  There is no reason in the medical evidence to presume that the procedures will result in minimal or no functional improvement, and to the contrary it is more likely the functional improvement will be substantial having regard to the nature of the surgical intervention and the assessment of the surgeon that Ms QTMY is a reasonable candidate.

22. I note that on 1 December 2022 Dr “H” stated that all of Ms QTMY’s conditions were stabilised as no further treatment was available, including the chronic rhinosinusitis.  I do not accept that reference insofar as it relates to chronic rhinosinusitis given the planned surgical intervention now apparent.

23. Although the availability and intention to proceed with the procedures is introduced by medical evidence dated well outside the qualification period, the availability of these treatment options now indicate to me that during the qualification period, the condition of chronic rhinosinusitis was not fully treated.  That condition, which I understand from listening to Ms QTMY’s evidence during the hearing is particularly uncomfortable and impactful on her, is not amenable in itself to attracting impairment points where this treatment is likely to significantly improve the functional impact.

24. I turn therefore to Table 1 of the Impairment Tables – Functions requiring physical exertion and stamina, and reproduce for convenience in analysis the descriptors applicable to 10 points and to 20 points.  In this regard, the Secretary contends that 10 points is warranted as a maximum, but 20 points is not warranted.  For reasons that will follow, Ms QTMY’s qualification for DSP turns on the assessment as between 10 points and 20 points under the Impairment Tables.

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)         is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)        has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)        is able to:

(i)         use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)        perform work-related tasks of a clerical, sedentary or stationary nature (that is, 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 (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)         walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)        walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)       use public transport without assistance; or

(iv)       perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)        has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

1. Section 8 of the Impairment tables provides that symptoms reported by a person in relation  to their condition can only be  taken into account where there is corroborating evidence.  In the case of Table 1, the need for corroborating evidence is emphasised again in the introduction to the table, and examples of corroborating evidence are provided, including reports from a person’s treating doctor, specialist and the results of any exercise or cardiac stress or treadmill testing.

2. Dr “M” noted Ms QTMY had responded to treatment in his letter of 10 November 2022.  He mentions normal spirometry and gas transfer at 98% of what was predicted, but identified a new patch of inflammatory change after a CT scan.  Importantly, Dr “M” observed Ms QTMY’s breathing to be comfortable with most light daily activities.

3. Earlier, on 9 May 2022, Dr “M” had remarked that Ms QTMY’s breathing is generally comfortable with most daily activities.  It is clear that between those two visits Ms QTMY had Covid and was hospitalised.  In July 2022 Dr “M” observed Ms QTMY to be short of breath with strenuous exertion although comfortable with lighter activity, and on 1 August 2022 observed her breathing to be comfortable with daily activities and to be no longer troubled by a cough.

4. Dr “H” listed functional incapacities in a letter dated 1 December 2022 as ‘severe tiredness, drowsy, chronic daily headaches, weakness, shortness of breath on exertion’.  To the extent that this list is inconsistent with the description given by Dr “M”, I prefer the description given by Dr “M” as it will be seen that Dr “M”’s description of functional incapacity is consistent with Ms QTMY’s evidence about the impact of her respiratory conditions on her at the time.

5. In her evidence, Ms QTMY described her day-to-day activities during the qualification period, but after she had been admitted to hospital.  She said she would complete her own household chores but slowly.  She felt she had some difficulty making her bed.  She would go shopping for groceries herself but had trouble carrying heavy bags, which she addressed by making a number of trips.  She would travel to the shops by car, and occasionally with her sister.  The effect of the prednisolone treatment she was on at the time (following her Covid infection) meant that she would limit her driving.  I noted that aspects of Ms QTMY’s evidence regarding her activities at this time were describing her condition while recovering from her Covid infection, and improvement in functionality has been documented by Dr “M” over time in this regard.

6. Noting that in her submissions and in a medical report from Dr “M” Ms QTMY had mentioned that she had been working part-time, she explained in elaborating on this that she had worked as a cleaner, but not necessarily in the qualification period.  On further clarification, I understood Ms QTMY to confirm that she had undertaken some limited work as a cleaner during the qualification period, but in her assessment it was less than 8 hours per week.  She said that she undertook some light duties in cleaning people’s homes, such as ironing, dishes and very light dusting (on account of her allergy).  Ms QTMY said she would do 2 hours of cleaning here and there.

7. On balance, in relation to the functional impact of Ms QTMY’s permanent respiratory conditions during the qualification period, I consider that the descriptors for assigning 10 points are more applicable than those for assigning 20 points.  In this regard, I do not consider that in circumstances where Dr “M” has described Ms QTMY being comfortable with most light daily activities, Ms QTMY’s evidence regarding undertaking her own household chores slowly and being able to undertake her own grocery shopping without assistance, and also undertaking some light household chores for other people, the descriptors for 20 points can be met. 

8. Specifically, it cannot be said that Ms QTMY usually experiences symptoms when performing light physical activities and, due to these symptoms is unable to walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; use public transport without assistance (although I note Ms QTMY explained she won’t use public transport given the risk of exposure to hazards that might exacerbate her sinus problems) and was to unable perform light day to day household activities (e.g. folding and putting away laundry or light gardening).

9. Indeed, a real question  arises as to whether it can be said that the evidence supports a conclusion that Ms QTMY was unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities,  or had difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths) so as to meet the descriptors for 10 points.  However, having regard to the limitations Ms QTMY in describing the kind of household tasks she undertook and the need to limit her pace in this regard, I am satisfied that assigning 10 points is appropriate.

1. I assign 10 points under Table 1 of the Impairment Tables in respect of Ms QTMY’s permanent respiratory conditions.

2. Ms QTMY developed arguments suggesting that her conditions impact on other areas such that further points should be assigned by reference to other tables.  In this regard, Ms QTMY points to thinning skin and easy bruising due to her medication and argues further points should be assigned under Table 14 – Functions of the Skin.  She argues that headaches and brain fog should result in points being assigned under Table 7 – Brain Function.  She says she has poor vision requiring points to be assigned under Table 12 – Visual function, with further points to be assigned under table 13 - Continence function.  She argues for points to be assigned in respect of headaches under both Table 1 and table 8 (Physical exertion and stamina, and Communication function).

3. Section 10 of the Impairment Tables contains instructions for selecting the appropriate Table.  It says that the first step is to identify the loss of function, refer to the Table related to the function affected and to then identify the correct impairment rating.  It states that the Table specific to the impairment must always be applied unless the instructions to the table specify otherwise.  Table 1 – Functions requiring Physical Exertion and Stamina identifies in its introduction in describing corroborating evidence from medical specialities, that a medical specialist confirming diagnosis of conditions associated with chronic obstructive airway disease and pulmonary disease is applicable. This indicates that the functional impact of Ms QTMY’s respiratory disease is to be assessed under Table 1.

4. Furthermore, section 10 to the Impairment Tables states that when a single condition causes multiple impairments, that each impairment should be assessed under the relevant Table, providing the example of a stroke sufferer who has suffered functional impact across multiple different functions.  However, when using more than one table, impairment ratings for the same impairment must not be assigned across more than one table.

5. In relation to Table 14, Table 7 and Table 12, there is no medical evidence specifically addressing any functional impairments associated with the skin, brain function or visual function.  I understand Ms QTMY identifies Table 7 in relation to her sinusitis which causes headache and discomfort.  However, it is clear that Table 7 is not intended to capture sinus headache, rather impairments such as acquired head injury, dementia and neurodegenerative disorders.  I note that in Ms QTMY’s medical history she suffered an injury as a seven-year-old resulting in treatment by psychiatry (as reported by the AAT in its reasons).  Perhaps this incident involved a brain injury.  However, there is no medical or corroborative evidence before the Tribunal in this regard.  In relation to Table 13 – Continence Function, I understand this reference may be to Irritable Bowel Syndrome, which I will address below.

6. I note that Dr “H” does corroborate the impact on Ms QTMY’s skin of prednisolone treatment, rendering her more likely to bruise and for her skin to become thin.  These matters of themselves would not attract any impairment rating under Table 14, having regard to its terms.

7. In relation to Table 8 – Communication function, there is no evidence addressing how Ms QTMY’s communications functions are affected by the permanent conditions, noting that examples of diagnoses that might be relevant to Table 8 include acquired brain injury, cerebral palsy, neurodegenerative conditions and damage to the speech-related structures of the mouth and throat.

8. While I have followed Ms QTMY’s arguments in this regard, I do not think it is appropriate to assign further impairment points in relation to her permanent respiratory conditions under other Tables in addition to Table 1.

   Mental Health

9. Table 5 – Mental health, of the Impairment Tables contains a specific rule in relation to diagnosis that is no longer included in the current iteration of the Impairment Tables (those of 2023).  Under the impairment Tables in force at the date of Ms QTMY’s application, the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

10. There is no evidence of diagnosis of mental health conditions by a clinical psychologist or psychiatrist.  Although Dr “H” mentions mental health conditions in medical correspondence outside the qualification period (for example 28 April 2025) and medical certificates issued outside the qualification period (for example 28 June 2024), and Lexapro is listed as a current medication, I further note that the evidence of treatment and prognosis is very limited indeed.

11. As I am not satisfied that mental health conditions are diagnosed for the purpose of the Impairment Tables, I am unable to assign any points in respect of that condition.

    Irritable Bowel Syndrome

12. In relation to Irritable Bowel Syndrome, I have identified that the condition was not listed as a diagnosis in a medical certificate of 4 December 2023 but was listed in a medical certificate of 11 December 2023, leading to an inference that the condition emerged at that time. It is not listed amongst Ms QTMY’s conditions in Dr “H”’s letters or Dr “M’s letter during the qualification period.  I am not satisfied that Irritable Bowel Syndrome was diagnosed during the qualification period and therefore it cannot be considered for the purposes of this claim for DSP.  Furthermore, and noting that Dr “H” may be suggesting that the Irritable Bowel Syndrome is a feature or is comorbid with Ms QTMY’s mental health conditions, the observations I have made regarding the absence of a diagnosis by a clinical psychologist or psychiatrist and the limited evidence of treatment or of prognosis are further impediments in taking this condition into account.

13. As mentioned above, Ms QTMY has suggested that impairment points should be assigned under Table 13 – Continence function.  To the extent that this submission pertains to Irritable Bowel Syndrome, points cannot be assigned as the condition was not diagnosed during the qualification period.

    Osteoporosis

14. The Secretary accepts that Ms QTMY has diagnosed and fully treated and stabilised osteoporosis.  I also accept that to be so having regard to Dr “H”’s report of 1 December 2022.  However, there is no evidence of any functional impact of this condition.

    Conclusion

15. On balance, having regard to all the medical evidence and corroboration and Ms QTMY’s arguments as advanced to the Tribunal, restricted to the qualification period, I consider that Ms QTMY’s conditions attract a total of 10 points.

16. It is an essential criterion for qualification for DSP that a person’s impairment is of 20 points or more under the Impairment Tables: paragraph 94(1)(b) of the Act.  For the reasons set out above, while I accept Ms QTMY has a number of medical conditions impacting on her health, there are insufficient impairment points to qualify. In these circumstances, it is not necessary to consider whether during the qualification period Ms QTMY had a continuing inability to work within the meaning of paragraph 94(1)(c) of the Act.

    DECISION

    The decision under review is affirmed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Kennedy.

.............................[SGND]......................................

Feng J, Associate

Date of hearing:	8 July 2025
Applicant:	Self-Represented
Solicitor for the Respondent:	S Nguyen (Services Australia)