11. 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:

2. 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.
3. 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:

(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.

1. 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:

(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.

(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.

1. 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.
2. 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.
3. 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.
4. 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.

12. 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.

1. In my view, notwithstanding the views expressed in other Tribunal and Federal Court decisions, the critical question here is whether the Applicant was qualified for DSP as at the date of his claim on 14 April 2023. For the reason which follow, I have decided that the decision to reject his claim for DSP should be affirmed.

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 Social Security Act 1991 (Act) relevantly requires that three main criteria be satisfied: he had at least one physical or psychiatric impairment; his impairment/s rated at least 20 points under the Impairment Tables; and he had a continuing inability to work as defined.

1. There is no dispute that the Applicant meets the first criterion of having a physical or psychiatric impairment. Based on the evidence before me, I accept that to be the case.
2. To date, the impairment rating criterion has been a key hurdle for the Applicant's DSP claim. At the time of his claim in April 2023, the rules concerning impairment ratings relevant here were found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (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. A person's self-report of a condition and symptoms is not sufficient, corroborating medical evidence is required.
3. The Applicant listed several conditions in his DSP claim: left ankle injury; depression; osteoarthritis; scapula muscle injury; and a damaged left thigh muscle. The available medical evidence includes several medical certificates completed by various general practitioners the Applicant attended over time, a report from a physiotherapist dated 13 April 2022 and a report from a psychologist dated 20 December 2023.
4. At hearing, the Applicant said that his back pain was the condition which had the greatest impact on him. He explained he had sustained a fall as a child and had damaged his lower back. In the 1980s, he said a doctor had assessed his back issue to be serious with likely adverse long-term consequences. It was on this basis that he claimed what was likely to have been the invalid pension at that time. That claim ultimately failed, although the Applicant maintains he should have been on the pension since he made that claim. I note he subsequently had a significant work history in commercial fishing and then civil construction over a period of decades.
5. There is no specialist medical evidence relating to the Applicant's back condition and consequent pain. Many of the medical certificates in evidence group his back condition and pain with other problems said to be attributable to osteoarthritis. In a medical certificate dated 4 July 2023, his then GP detailed the primary diagnosis as "right scapula and back and neck pain, left hip and ankle, right shoulder pain, feet and hands, left elbow - degenerative changes due to osteoarthritis". This certificate referred to current treatment as paracetamol. Previous medical certificates had also referred to physiotherapy treatment. A medical certificate in October 2021 also referred to non-specific muscular injuries. In the absence of any evidence of specialist review or rehabilitative treatment, I am not persuaded the pain and symptoms the Applicant experienced relating to his osteoarthritis or soft tissue injuries can be regarded as reasonably treated and stabilised at the time of claim in April 2023. An impairment rating cannot be assigned.
6. The Applicant suffered an injury to his left ankle in a workplace incident in January 1999. He underwent a surgical procedure to stabilise the ankle in February 1999. Workcover Queensland subsequently advised him of a full clearance to return to work from September 1999. Whilst there is no evidence available from the orthopaedic specialist involved, there is a medical certificate by a GP in January 2023 which details that the procedure involved shortening ligaments in the Applicant's left ankle.
7. An Employment Services Assessment report in August 2021 recorded the Applicant as indicating that the left ankle injury had settled but occasionally flared up with excessive standing. A medical certificate in January 2021 indicated both the Applicant's back and ankle problems had been treated with physiotherapy. The physiotherapist report in April 2022 indicated reduced balance due to the left ankle. At hearing, the Applicant's evidence was that his right foot was giving him more problems than the occasional issue with his left ankle.
8. There is scant medical evidence as to the functional impact of the Applicant's left ankle condition at the time of his DSP claim in April 2023. Whilst I am prepared to accept this condition was diagnosed, reasonably treated and stabilised at claim, there is no adequate evidence to indicate other than minimal difficulty caused by the left ankle condition in general. Certainly, there is insufficient evidence to enable a finding that an impairment rating of 5 points or more under Table 3 would be appropriate. In the circumstances, I assign a rating of 0 points.
9. In September 2019, the Applicant was diagnosed by his then GP as experiencing panic attacks and stress. Treatment was stated to be counselling. It was expected his work capacity would be affected for less than three months. In June 2021, another GP diagnosed depression and expected the condition to last for more than two years. Past treatment included psychotherapy and continuing psychotherapy under a mental health care plan was indicated. In May 2023, a different GP also diagnosed depression. It was reported that anti-depressants had not proved effective and, also, that the Applicant had previously seen a psychologist but was not currently, due to unavailability and cost.
10. The available material indicates that the Applicant had not worked full-time since his ankle injury in early 2019. It seems clear the onset of his depression traces back to this period. Since 2019, he has had some part-time handyman work (which didn't work out) and he also volunteered driving a courtesy bus for a local golf club for a period. This ceased about two years ago.
11. In December 2023, a psychologist reported that the Applicant met the criteria for Persistent Depressive Disorder (PDD); he also presented with symptoms of Post-traumatic Stress Disorder (PTSD). She considered the Applicant should be assessed as eligible for DSP due to the severity and chronicity of his mental illness. She also completed a medical certificate dated 20 December 2023 where diagnoses of PTSD and PDD were listed. She indicated the Applicant had been treated by many psychologists in the previous 10 years.
12. I have some concerns about placing undue reliance on this evidence. It seems to me there is an inconsistency between an observation in the psychologist's report that the Applicant had symptoms of PTSD and her listing this condition as the first-numbered diagnosis in the medical certificate she completed on the same day as her report. In my view, noting symptoms of a condition falls short of substantiating a diagnosis. I note there is no diagnosis of PTSD given in her report.
13. Table 5 covers mental health function. The introduction to table 5 makes clear that, unless a psychiatrist provides a diagnosis, there is a requirement that a diagnosis by a medical practitioner such as a GP be accompanied by evidence from a registered psychologist before it can be accepted in this context.
14. The Respondent submits it is open to me to take account of the evidence of the psychologist in December 2023 together with the evidence of GPs before and about the time of the Applicant's DSP claim. I have reservations about that approach. However, even adopting it, there is a dearth of detailed evidence as to treatment undertaken prior to and at the time of claim in April 2023. There is no adequate evidence of the duration or effectiveness of the psychotherapy treatment or whether, at the time of claim, any further treatment was recommended or in contemplation. In addition, the Applicant gave evidence that he had previously been prescribed anti-depressant medication but had not taken it at the dosage recommended by his doctor. In the circumstances, I am not prepared to find the Applicant's depression has been reasonably treated and stabilised at the time of his DSP claim in April 2023. I do not consider that an impairment rating can be assigned.
15. It follows that the Applicant does not have an impairment rating of 20 points or more under the Tables. The decision to reject his DSP claim was therefore correctly made.
16. Whilst not strictly necessary, I should add that the Applicant gave evidence that he was a very good fisherman. He thought he would still be able to work up to five days a week on fishing boats and he expected he could gain such work if he wished to. I see no good reason to reject this evidence. The benchmark for "work" in the DSP content is work of 15 hours or more per week at or above award wages which exists in Australia. In the circumstances, it seems unlikely that the Applicant could be assessed as having a continuing inability to work in any event.

1. The Tribunal affirms the decision under review.

Mr Darben, Litigation Branch, Services Australia