TQCH and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 1211

TQCH and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1211 (14 July 2025)
Applicant/s:  TQCH
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2023/4505

Tribunal:Senior Member T Simon
Place:Sydney
Date:14 July 2025
Decision:The Tribunal affirms the decision of Centrelink, made on 28 January 2023, to refuse the applicants claim for a disability support pension.
Pursuant to section 70 of the Administrative Review Tribunal Act 2024 (Cth), the disclosure of the applicant’s name, the other party’s name and other identifying details are prohibited for the purposes of publication.
Note: The Tribunal is prohibited in certain types of matters from disclosing certain identifiers when publishing reasons for decision. The above order has been made to comply with that requirement.

Statement made on 11 July 2025 at 3:29pm
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 –– decision 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
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Statement of Reasons

This is second review of a decision made by the Secretary, Department of Social Services (Centrelink) in relation to whether the applicant satisfied the qualification criteria for a disability support pension at the date she made her claim on 10 January 2023.
Centrelink decided to reject the claim on 28 January 2023, on the basis that the applicant did not qualify. The applicant subsequently applied for internal review of that decision. And on 18 March 2023 an authorised review officer affirmed the original decision.
On 9 May 2023, the applicant sought review with the then Administrative Appeals Tribunal for review of Centrelink’s decision. On 9 June 2023, the Tribunal affirmed the decision to reject the applicant’s claim for disability support pension on the basis that she did not have requisite points under the impairment table.
On 24 June 2023, the applicant applied to the Tribunal for second review of the decision.
From 14 October 2024, the Administrative Appeals Tribunal (ART) 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.
Pursuant to s 131D of the Administrative Review Tribunal Act 2024 (Cth) (the Act), 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 Act, 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 9 June 2023, is an eligible social services decision and the applicant's interest are affected by the decision. The second review application was made on 24 June 2023. On that basis, the second review application has been made within time.
The parties appeared at the hearing by telephone. The respondent appeared through a representative who is legally qualified. The parties provided the following documents:
(i)An email from the applicant dated 9 August 2024 marked exhibit A1;
(ii)An email from the applicant dated 9 January 2024 and enclosing a Priceline pharmacy invoice marked exhibit A2;
(iii)An email from the applicant dated 7 January 2024 enclosing an ultrasound pelvis report and referral letter marked A3;
(iv)An email from the applicant dated 5 January 2024 marked A4;
(v)The respondent provided a collated bundle of documents totalling 196 pages marked R1;
(vi)4 pages of documents received from the respondent on 6 December 2024 which have been marked R2; and,
(vii)A further 20 pages of documents received form the respondent on 20 February 2025 which have been marked R3.
The respondent also provided a Statement of Facts, Issues and Contentions dated 25 February 2025. The applicant gave evidence at the hearing and was cross examined at the hearing.
The Tribunal has considered the written and oral evidence and submissions made by the parties in coming to its decision.
CONSIDERATION
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;
…
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 her medical conditions as at the date of claim or within 13 weeks of that time. The applicant made her claim for disability support pension on 10 January 2023.[1] Accordingly, the qualification period for assessing the applicant’s eligibility for disability support pension is from 10 January 2023 to 11 April 2023 (qualification period).
[1] Exhibit R1, pp 118 -126.
Does the applicant have a physical, intellectual or psychiatric impairment? ss94(1)(a)
At the time of making her application for disability support pension on 10 January 2023, the applicant was 43 years old. In her application making the claim she listed her medical conditions as anxiety and depression, stoke, malnutrition, memory loss and nervous system and an inability to walk.[2]
[2] Exhibit R1, pp 121 -122.
A discharge summary written by medical officer dated 3 February 2023, stated that the applicant was admitted to hospital on 21 November 2022 under the care of neurologist and received acute care. The applicant was then transferred another hospital for rehabilitation on 20 December 2022, until discharge on 16 January 2023, under the care of rehabilitation consultant doctor.[3]
[3] Exhibit R1, p 128.
A Job Capacity Assessment dated 13 March 2023,[4] notes the following conditions.
·     Brain injury with diagnosis of Wernicke's Encephalopathy and neuropathic pain
·     Psychol/Psychiatric Disorder with confirmed diagnosis of anxiety and depression
·     Musculo-skeletal Disorder with a diagnosis of confirmed diagnosis of avascular necrosis of right femoral head.
[4] Exhibit R1, pp 153 – 156.
Centrelink accepts that the applicant had physical impairments during the qualification period and therefore satisfies paragraph 94(1)(a) of the Social Security Act.
Having considered the evidence the Tribunal is also satisfied that the applicant has experience impairments arising from her medical conditions, and satisfied paragraph 94(1)(a) of the Social Security Act.
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, determined tables relating to the assessment of work-related impairment for disability support pension.
In that regard, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (the Determination) contains the impairment tables. The impairment tables comprise of tables relating to different kinds of impairments and the rules for their application. The tables are function based and describe functional activities, abilities, symptoms and limitations with impairment ratings assigned based on those descriptions. Subclause 6(3) of the Determination provide that an impairment rating can only be assigned if a condition is ‘permanent’ and likely to persist for more than two years. ‘Permanent’ is defined, at subclause 6(4) of the Determination, and provides that a condition is permanent if:
a)    the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
b)    the condition has been fully treated; and
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.
When determining whether a condition is fully diagnosed and treated for the purposes of subparagraphs 6(4)(a) and (b), subclause 6(5) of the Determination requires a decision maker to consider whether there is corroborating evidence of 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.
Subclause 6(6) of the Determination provides that a condition is fully stabilised for the purposes of paragraph 6(4)(c) and subclause 11(4) 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 and:
c)    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
d)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.
‘Reasonable treatment’ is defined at subclause 6(7) of the Determination to mean treatment that:
a)    is available at a location reasonably accessible to the person; and
b)    is at a reasonable cost; and
c)    can reliably be expected to result in a substantial improvement in functional capacity; and
d)    is regularly undertaken or performed; and
e)    has a high success rate; and
f)     carries a low risk to the person.
Considering the overall evidence and submissions, and the applicant’s conditions, the applicant’s condition can be categorised as falling into brain, lower limb and mental health condition. On that basis, the Tribunal has proceeded to consider whether each of the conditions were fully diagnosed treated and stabilised during the relevant qualification period.
Brain Conditions
Wernicke's Encephalopathy
The hospital discharge report records that the applicant had cognitive decline secondary to Wernicke's encephalopathy.[5] On that basis, the Tribunal accepts that the applicant’s condition of encephalopathy was fully diagnosed in the qualification period.
[5] Exhibit R1, p129.
It is noted in the hospital discharge report that the applicant was improving on just thiamine, and it was planned to monitor rather than commence immunosuppression. The report notes that she can commence immunosuppression if cognition deteriorates or plateaus. The report also notes:
· Immunology happy to follow-up outpatient if planning to proceed with immunosuppression
· But no need for immunology follow-up if returns to her baseline cognition and not considering immunosuppression
The report recommends a follow up with the applicant’s neurologist in 3 months’ time and that the applicant should have a repeat serum NMDA antibody. On that basis, the applicant’s condition was not yet fully treated and stabilised during the qualification period. The applicant required follow up to determine whether to proceed with immunosuppression.
At hearing, the applicant was asked if she had followed up with the neurologist as was suggested in the hospital discharge report. The applicant stated that she had followed up with the neurologist. She believed she had followed up with the neurologist in 2023 and in December 2024, but that the neurologist had cancelled the appointment and hadn't called back to reschedule it. Those statements also do not assist in demonstrating that the conditions were reasonably treated and stabilised in the qualification period.
A job capacity assessment report submitted 13 March 2023,[6] notes the diagnosis of cognitive decline secondary to Wernicke's Encephalopathy. However, it also notes that the applicant advised her memory issues and cognitive trouble had resolved and now she was focusing on her physical rehabilitation. The applicant was asked about that during cross examination and agreed that was her response to the assessor at the time.
[6] Exhibit 1, p 155.
The applicant has provided a letter from a medical clinic dated 4 January 2024 for referral to a hospital for opinion and management of various conditions including Wernicke’s encephalopathy.[7] This came into existence outside of the qualification period.
[7] Exhibit A1, attachment to email.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[8]the Tribunal stated (at [34]):
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
[8] [2012] AATA 922.
On that basis, medical information that comes into being after the qualification period will only be relevant to the extent that they refer to the applicant’s conditions during the qualification period. The referral, dated 4 January 2024, notes “Thank you for seeing [applicant] for an opinion and management for lacunar infarct Wernicke’s encephalopathy and NMDA encephalitis and admission to […] hospital in Nov 2022.She still having issues with mobility and function. Can you please review her for further assessment and management.”
That referral tends to suggest that as late as January 2024, the encephalitis condition had still not been fully treated or stabilised.
The Tribunal finds that the applicant’s encephalopathy was not fully treated and stabilised during the qualification period. The hospital discharge summary recorded that the that the applicant needed follow up in 3 months’ time. Despite her statement’s otherwise, the Tribunal finds that the applicant did follow up with a neurologist as there is no corroborating medical evidence about the exact date and nature of that follow up or that the follow up resulted in her condition being fully treated and stabilised during that period. On that basis, no impairment points can be assigned under the Impairment Tables for encephalopathy.
Lacunar infarct
The hospital discharge summary also refers to a finding on an MRI of subacute lacunar infarct on the left occipital lobe.[9] On that basis, the Tribunal finds that the applicant's lacunar infarct was fully diagnosed as at the qualification period. The discharge summary note that the applicant had commenced aspirin in relation to treatment for lacunar infarct. However, there is no further information about the condition and no evidence it caused impairment. There is no evidence that the applicant's lacunar infarct was fully treated and stabilised during the qualification period.
[9] Exhibit R1, p130.
The referral, dated 4 January 2024, extracted at [33] above also is a referral for the applicant’s lacunar infarct which suggest that the condition had not been fully treated or stabilised.
As stated above, there is no corroborating evidence that the applicant has had a further review by a neurologist or if she engaged in any other treatment aside from consuming aspirin. There is no evidence the applicant engaged with treatment for this condition. On that basis no impairment points can be assigned under the Impairment Tables for lacunar infarct.
Drug and alcohol disorder
The hospital discharge summary for the period from 20 December 2022 to 16 January 2023 also notes a drug and alcohol community referral.[10] On that basis, the Tribunal accepts that the applicant's drug and alcohol disorder was fully diagnosed as at the qualification period.
[10] Exhibit R1, p 129.
However, despite that referral there is no evidence that the applicant attended treatment for drug and alcohol disorder. On that basis the Tribunal finds that the applicant's drug and alcohol disorder was not fully treated and stabilised during the qualification period.
Lower Limb Conditions
Avascular necrosis of the right hip and Lower limb neuropathy
The hospital discharge summary notes a finding of avascular necrosis of the right hip.[11] On that basis, the Tribunal accepts that the condition was fully diagnosed as at the qualification period. The hospital discharge summary recommended a repeat MRI be undertaken in 6-12 months and the applicant was to be referred to a hip specialist if there were concerns.[12]
[11] Exhibit R1, p 141.
[12] Exhibit R1, p 130.
The hospital discharge summary also notes generalised symmetric bilateral muscle atrophy within the lower limbs.[13] On that basis the Tribunal finds that the applicant's lower limb neuropathy was fully diagnosed as at the qualification period. The discharge summary also noted that the applicant commenced medication for neuropathic pain.[14]
[13] Exhibit R1, p 140.
[14] Exhibit R1, p 129.
The applicant was asked about whether she had seen a specialist in that regard and she stated that she believed she had some nerve testing in 2024.
The applicant has provided ultrasound pelvis report dated 17 July 2023, regarding her endometrial hyperplasia. The report records endometrial thickness measuring 7 mm with cystic spaces, normal vascularity and that appearances could represent endometrial hyperplasia. The date of that ultrasound is outside the qualification period, and it is of no relevance to these conditions of the applicant.

In a medical certificate dated 17 March 2023,[15] a doctor reported that the applicant has neuropathic pain in feet, ankles and legs. There is no evidence of engaged upon treatment nor any evidence of rehabilitation.
[15] Exhibit R1, p 163.
Having considered the evidence and the statements of the applicant the Tribunal finds that the applicant's avascular necrosis of the right hip and lower limb neuropathy were not fully treated and stabilised during the qualification period. There is no corroborating evidence that the applicant engaged with the relevant specialists or that the conditions was fully treated and stabilised during the qualification period.
Mental Health Conditions
Anxiety and depression
The introduction to Impairment Table 5 - Mental Health Functions sets out the requirements for a mental health condition to be fully diagnosed for the purposes of disability support pension. The introduction provides “The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).”
There is evidence of earlier referral letters from the applicant’s GP regarding this condition. The hospital discharge summary noted that the applicant has been reviewed by a psychiatry team and there was evidence of current depressive illness. It is noted that depressive symptoms for the months preceding admission were likely alcohol-related mood disturbance. A GP referral for to psychologist was to be provided after discharge and the discharge summary notes that the applicant will consider returning to her previous psychologist.[16]
[16] Exhibit R1, p129.
However, there is no further corroborating evidence that the applicant's condition of anxiety and depression was diagnosed by a psychiatrist or a clinical psychologist.
Moreover, at hearing the applicant stated that it was recommended that she see a psychologist because of her history of anxiety and depression and that she had been previously medicated. She stated she does not want to talk about her problems to a psychologist as she had enough happening in her life, so she just had to deal with it. She stated she calls Lifeline and talks to them because she does not want to be medicated again because it was dangerous. Those statement would indicate that even if she had been diagnosed with depression and anxiety, the applicant has not undertaken steps for treatment.
Alcohol related mood disturbance
As noted at [48] above the hospital discharge summary noted that the applicant’s alcohol related mood disturbance. On that basis the Tribunal notes that the condition was fully diagnosed.
As the Tribunal noted previously the discharge summary recommended a GP referral to a psychologist, and the applicant reported that she will consider returning to her previous psychologist.[17] As noted above, the applicant stated at hearing that she did not want to see a psychologist. There is no corroborating evidence of any psychological intervention.
[17] Exhibit R1, p129
On that basis the tribunal finds alcohol related mood disturbance was not fully treated and stabilised as at the qualification period.
Conclusion on Impairment Table points
The Tribunal finds that the applicant has no points under the Impairment Tables. Even though she was fully diagnosed with some conditions, they have not been fully 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 because none of here impairments would have attracted more than 20 points under a single impairment. On that basis the applicant it would be unnecessary to further consider paragraphs 94(2)(a) and (b) of the Social SecurityAct.
Even if the applicant’s impairment was not a severe impairment, the applicant would have needed to actively participate in a ‘Program of Support’ to be regarded as having a continuing inability to work.
There is no evidence before the Tribunal that the applicant completed any days of a program of support.[18]
[18] Exhibit R1, p 196.
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 decision of Centrelink made on 28 January 2023 to refuse the applicants claim for a disability support pension.

Date(s) of hearing: 24 March 2025

Applicant:

Self-Represented

Solicitors for the Respondent: T Balakisnan, Services Australia

Date(s) of hearing:	24 March 2025
Applicant:	Self-Represented
Solicitors for the Respondent:	T Balakisnan, Services Australia