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

[2025] ARTA 1267

ZGNQ and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1267 (6 August 2025)

Applicant:ZGNQ

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/2653

Tribunal:Senior Member J Walsh (second review)

Place:Brisbane

Date:6 August 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 06 August 2025 at 9:21pm

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from these reasons for 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 – claim for disability support pension – time for assessment of qualification considered – qualification at time of claim required to be established – assessment of whether the Applicant’s medical conditions were diagnosed, reasonably treated and stabilised at claim – finding impairment ratings not able to be assigned – decision to reject claim affirmed.

Legislation:

Social Security Act 1991, s 94

Social Security (Administration) Act, s 4(1), Sch 2, cl 4(1)

Cases:

Re Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secondary Materials:

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023

Statement of Reasons

1. The issue in this case is whether the Applicant was qualified for disability support pension (DSP) in respect of her claim for that pension made on 15 August 2023. She has subsequently been granted DSP in respect of a later claim made in August 2024.

2. An in-person hearing was scheduled for 15 July 2025, the applicant having requested this mode of hearing at a Directions Hearing on 27 March 2025. On 14 July 2025, she sent an email to the Tribunal advising she would not be attending the hearing the next day. It was unclear whether she wished to proceed with her application. I directed that the hearing proceed by telephone on 15 July 2025 in order to facilitate the prospect the Applicant might wish to participate in that mode of hearing. On 15 July 2025, she did actively participate in the telephone hearing, giving evidence and capably explaining her position.

3. The Applicant worked as a hairdresser. She had what she called a “weird lump” in the palm of her left hand for several years. Various tests had indicated the mass was not a cause for serious concern. Over time, the lump increasingly impeded the Applicant in her work and was painful. She decided to have it surgically removed. The excision surgery eventually occurred in October 2022. When she went back to the hospital for post-surgical review and a change of dressing for her wound, she was informed a biopsy had been taken and it revealed she had a rare soft tissue cancer, epithelioid sarcoma, which remained present in her left hand. Understandably, this was devastating news since the Applicant had no reason to think she could have cancer in the hand.

4. The Applicant made a claim for DSP in November 2022 which was rejected.

5. On 1 December 2022, the Applicant underwent surgery for her left-hand sarcoma. This involved amputation of the third and fourth fingers. She explained she was in shock and filled with sadness and depression in the period following this surgery. Her personal relationship, which involved domestic violence, was problematic. She also had to contend with caring for her young son. I accept without hesitation that this was an extremely difficult period for the Applicant.

6. The DSP claim I am considering was made on 15 August 2023, in respect of stated conditions of the Applicant’s epithelioid sarcoma and ADHD.  The claim was rejected in November 2023 and, in December 2023, an authorised review officer affirmed the rejection decision. The Applicant then applied to the Administrative Appeals Tribunal (AAT) for review.

7. Shortly after making her claim in August 2023, another lump in the Applicant’s left hand became apparent. Eventually, a biopsy in early November 2023 in Sydney confirmed the return of the sarcoma. On 1 December 2023, the Applicant underwent a below elbow amputation of her left hand; this was necessary to ensure clear margins. She gave evidence, which I accept, to the effect that her mental health suffered significantly in the following period.

8. On 22 March 2024, the Administrative Appeals Tribunal (AAT) affirmed the decision to reject the Applicant’s DSP claim of 15 August 2023. She then applied for second review by the AAT.

9. The Applicant made a further claim for DSP on 15 August 2024. This claim was subsequently granted and she has since been in receipt of DSP each fortnight.

10. On 14 October 2024, the AAT was replaced by the Administrative Review Tribunal (ART). AAT applications for review not finalised before that date transitioned to the ART to be considered and finalised in a manner the ART considered efficient and fair: clause 24, Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024. As far as possible, such applications were to be continued under the ART legislation.

Time for assessing DSP qualification

1. The Respondent Secretary submitted the question before me was whether the Applicant was qualified at the date of her claim on 15 August 2023 or within 13 weeks thereafter. As foreshadowed during submissions at hearing, I do not consider that approach accords with the “early claim” provisions in the Social Security (Administration) Act 1999 (Administration Act). I was a member of the AAT in Re Al-Janabi and Secretary, Department of Social Services [2017] AATA 1541 where the Tribunal said:

   8. The Secretary submits that the relevant question is whether Mr Al-Janabi was qualified for disability support pension at the time of his claim on 4 April 2016, or within the following 13 weeks. The basis for this submission is said to derive from the terms of clause 4 of schedule 2 to the Social Security (Administration) Act 1999 (the Administration Act). A survey of the Tribunal’s published decisions shows that what might be called “the 13 week window” approach is routinely adopted. Perhaps surprisingly, it does not seem that clause 4 has been the subject of any detailed consideration, either in any published decisions of the Tribunal or the Federal Court.

   9. Before the machinery provisions in the Act were removed to the Administration Act in December 1999, the relevant predecessor provision was subsection 100(3) of the Act:

   (3) Early claim
   
   If:

   (a) a person lodges a claim for a disability support pension; and
   
   (b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
   
   (c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

   the person’s provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.

   The relevant enquiry for a decision-maker was whether the applicant for a disability support pension, if not qualified at claim, became qualified within the following three months. No doubt it has largely been assumed this approach also informs the construction of clause 4. However, it is trite to observe that it is the terms of the current provision, and not its predecessor, which must be considered.

   10. Currently, a social security payment such as disability support pension becomes payable to a person on their start day, worked out in accordance with Schedule 2: sections 41 and 42 of the Administration Act. The relevant provisions of Schedule 2 are:

   3 Start day—general rule
   
   (1) If:

   (a) a person makes a claim for a social security payment; and
   
   (b) the person is qualified for the payment on the day on which the claim is made;

   the person’s start day in relation to the payment is the day on which the claim is made.
   
   ...
   
   4 Start day—early claim
   
   (1) 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.
   
   ...

   11.  The general rule is that, where a person is qualified on the date of claim, their start date for payment is the date the claim is made. In relation to early claims, the enquiry to be made by the decision-maker is (assuming the person does not die) whether the person will, for a stated reason, become qualified within 13 weeks after the date of claim. If the answer is positive, and the person does become so qualified, the claim is taken to be made on the first day they were qualified. The test in paragraph (c) in clause 4 is framed as forward-looking; it must be doubtful that the question whether the person will become qualified within 13 weeks can be answered by asking, in retrospect, if they did in fact become qualified within that period (which responds to the question posed by paragraph (d) in any event). To read paragraph (c) as though it mirrors paragraph 100(3)(c) of the Administration Act prior to 19 March 2000 involves reading down the words “will, because of the passage of time or the occurrence of an event, become qualified” to simply mean “becomes qualified” as appeared in the earlier provision. The words in the current provision should, of course, be given meaning. Their ordinary meaning in the context of the terms of clause 4(1) suggests a decision-maker should be satisfied it is reasonably certain, if not inevitable, the person will become qualified within 13 weeks.

   12. On that approach, clause 4(1) could be met where a person claimed age pension a month before reaching pension age, for example. Provided they survive, the claimant will become qualified on reaching pension age. Once they attain that age, their claim is deemed to have been made on the day they achieve pension age and they can be paid from that day.

   13.  However, ordinarily a person claiming disability support pension has to have, inter alia, fully diagnosed, fully treated and fully stabilised condition/s which result in an impairment rating of at least 20 points under the Impairment Tables. A diagnosis two months after claim of an incurable, untreatable condition, which would thereafter mean the person was qualified for disability support pension would be unlikely to meet the requirement that, at claim, it could be found that they will become qualified within 13 weeks. The fact of subsequent qualification does not answer the question posed by clause 4(1)(c). Nor could an original decision-maker, prior to the diagnosis of an incurable, untreatable condition, be expected to predict such a diagnosis would be made. The appropriate remedy in that situation would be a new claim for disability support pension.

   14. Accordingly, the Tribunal prefers the view that clause 4(1) has more limited application than is generally assumed. In addition to satisfaction of actual subsequent qualification within 13 weeks, a finding that the person, at claim, will become qualified because of the passage of time or the occurrence of an event within the 13 week period involves an assessment whether becoming qualified is reasonably certain, if not inevitable.

2. I am aware that there are dicta in the Federal Court which support the 13-week qualification approach for DSP: see, for example, Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. However, I am not aware that the issue has ever been fully argued or that the Court has been called upon to substantively engage with competing views as to the construction of clause 4(1)(c). In those circumstances, I do not consider I am bound by what the Federal Court has said on the matter. In my view, the only way the terms of clause 4(1) of Schedule 2 to the Administration Act can be reconciled with the 13-week qualification period approach is to read the word “will” in clause 4(1)(c) as meaning “may”. However, I do not consider that ordinary canons of statutory interpretation permit this approach. I might add, if the 13-week qualification period approach was right, this could seem to require a primary decision-maker to wait for 13 weeks before considering or deciding a new claim for DSP. It must be doubtful this could have been intended. It is perhaps also useful to note that the early claim provision in subsection 100(3) of the Social Security Act 1991 (Act) up to 1999 was specific to DSP, whereas the current provision is relevant to a broad range of social security payments. So, it may be unsurprising that there was some material change in the DSP context from 2000.

3. In my view, the critical question here is whether the Applicant was qualified for DSP as at the date of her claim on 15 August 2023. Agency decision-makers decided this issue against the Applicant on the basis that those of her medical conditions which were supported by medical or other corroborating evidence could not be assessed as reasonably treated or stabilised. This meant her conditions were not able to be assigned impairment ratings, with the result that she did not meet the requirement of having an impairment rating of 20 points or more under the Impairment Tables. For the reasons which follow, I consider those decisions were correctly made.

Assessment of the Applicant’s medical conditions

1. There are various rules governing the assessment of qualification for DSP. In the Applicant’s case, it is sufficient to note that subsection 94(1) of the Act relevantly requires that three main criteria be satisfied: she had at least one physical, intellectual or psychiatric impairment; her impairment/s rated at least 20 points under the relevant Impairment Tables; and she had a continuing inability to work as defined.

2. It is clear the Applicant had a serious condition affecting her left hand at the time of her claim in August 2023; she had undergone amputation of two fingers in December 2022. She also included the medical condition of ADHD in her claim. Paragraph 94(1)(a) of the Act was satisfied.

3. The rules concerning impairment ratings relevant here are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Impairment Tables or Tables). The Tables are function-based rather than diagnosis-based. Before an impairment rating can be assigned to a condition, the condition has to be: diagnosed by an appropriately qualified medical practitioner; reasonably treated; stabilised; and the condition and resulting impairment is more likely than not, in light of the available evidence, to persist for more than two years.

4. As at August 2023, the Applicant had already undergone a two-finger amputation to her left hand. The obvious aim was to remove all the sarcoma which had been picked up by the biopsy in late 2022. Unfortunately, the cancer re-emerged soon after the Applicant’s claim and a more radical below-elbow amputation was performed on 1 December 2023. In those circumstances, I do not consider it to be open to find that the epithelioid sarcoma was reasonably treated and stabilised at the date of claim on 15 August 2023. It follows this very serious condition cannot be assigned an impairment rating under the Tables.

5. The Applicant also included the condition of ADHD in her DSP claim, said to have commenced about 10 October 2022. In October 2022, she underwent ADHD testing by a psychologist on the Gold Coast. The test results suggested she could be “labouring under an ADHD syndrome”. This was not a diagnosis and the opinion provided was not from an appropriately qualified medical practitioner. An impairment rating could not be assigned solely on the basis of the psychologist’s testing and opinion.

6. The Applicant started seeing a psychiatrist soon after the psychologist’s testing and conclusions were completed. In a report and form for NDIS purposes completed in February 2023, the psychiatrist listed the Applicant’s primary impairment as “Attention Deficit Disorder” which was being treated by way of daily stimulant medication (15 mg dexamphetamine). He described the assistance required as “Quite scattered in mind and forgetful because of ADHD. Needs laptops and voice recognition technology to assist.”  In a letter dated 4 January 2024, the psychiatrist certified to the Applicant having a diagnosis of “severe ADHD” treated by daily Ritalin LA 60 mg.

7. This material establishes that the Applicant had been appropriately diagnosed with ADD/ADHD (the psychiatrist seems to have used these acronyms interchangeably) by February 2023. However, the limited evidence available as to treatment shows that the Applicant was taking dexamphetamine 15 mg daily in February 2023 and a higher dose of 60 mg Ritalin LA daily in January 2024. Ritalin has a different active ingredient, methylphenidate. The Applicant explained at hearing that she was started on dexamphetamine initially, then was trialled on other medications before changing to the new daily Ritalin LA capsules. There is no reliable evidence of her treatment by way of stimulant medication as at claim on 15 August 2023. Her evidence was that she had also started attending an ADHD group where her psychologist ran sessions to assist with understanding, coping and improved management of this condition. She was only able to complete three of six sessions by the time the cancer re-emerged in her left hand. In these circumstances, I am unable to find the Applicant’s ADHD was reasonably treated or stabilised at the time of her DSP claim in August 2015. It follows this condition cannot be rated under the Impairment Tables.

8. In February 2023, the psychiatrist also listed the two-finger amputation to the Applicant’s left hand which he stated had triggered an Adjustment Disorder with depressive symptoms. In his report, he stated the Adjustment Disorder was “stable and stationary” and “most likely going to be permanent.” I note there was no mention of the Adjustment Disorder in his letter in January 2024. There is no adequate evidence as to treatment or stabilisation of this condition. I find it cannot be rated under the Impairment Tables.

9. In a Verification of Medical Details form dated 3 July 2024, a general practitioner stated the Applicant had persistent depression and a generalised anxiety disorder from 2017, both with unclear prognoses. In a medical certificate in November 2022, another doctor indicated the Applicant had anxiety. The basis for indicating the Applicant had anxiety and depression from 2017 is unclear. I note she did not mention these conditions in her claim form.

10. Table 5 of the Impairment Tables concerns mental health conditions. Before an impairment rating can be assigned under Table 5, the relevant diagnosis must be made either by a psychiatrist or, alternatively, by a GP with evidence from a registered psychologist. It is clear a diagnosis by a GP alone is not sufficient for an impairment rating to be assigned. Here, there is no evidence from a registered psychologist in relation to either the condition of depression or a generalised anxiety disorder. In any event, there is no evidence at the time of claim that would enable appropriate findings about reasonable treatment, stabilisation or the functional impact of these conditions. Again, I find an impairment rating cannot be assigned in respect of these conditions.

Conclusion

1. None of the Applicant’s medical conditions could be rated under the Impairment Tables in respect of her DSP claim made on 15 August 2023. It follows that she did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, she was not qualified for DSP. The decision to reject her claim was correct.

2. This will inevitably be a disappointing outcome for the Applicant. I have considerable sympathy for her very difficult circumstances then and subsequently. However, I am bound to apply the law in an objective fashion, according to the rules in the relevant legislative provisions.

Decision

1. The decision under review is affirmed.

Date of hearing:	15 July 2025
Date final submissions received:	11 July 2025
Applicant:	In person
Solicitors for the Respondent:	Mr David McLaren, Mills Oakley Solicitors