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 her claim on 18 February 2024. For the reasons which follow, I have decided that the decision to reject her 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: she has at least one physical or psychiatric impairment; her impairment/s rate at least 20 points under the Impairment Tables; and she have a continuing inability to work as defined. Having regard to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023, before an impairment rating can be assigned to a condition, it must be diagnosed by an appropriately qualified medical practitioner, reasonably treated and the resulting impairment has to be likely to persist for more than two years. The Impairment Tables are function-based and not diagnosis-based. Self-report of symptoms of a condition is not sufficient: there must be corroborating medical evidence. If an impairment is not rated at 20 points or more under a single Impairment Table, the POS requirements under the Social Security (Active Participation for Disability Support) Determination 2014 (Participation Determination) also have to be met.

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. The original rejection decision was based on a finding the Applicant did not achieve an impairment rating of 20 points or more and so was not qualified for DSP. On first review, the Tribunal found the impairment rating criterion was met but the Applicant failed to meet the POS requirement.
3. The Applicant considers her chronic low back pain to be her most significant condition. This is a longstanding condition. Imaging shows marked degenerative changes at L5/S1 in particular. She also has an anterior spondylolisthesis at L4/L5. She gave evidence of having had a nerve block procedure and also a cortisone injection in 2015 to ameliorate the pain. She said neither procedure was of much assistance. There is evidence she has been seeing a pain physician since February 2015 in respect of her back pain. She has also been seeing a chiropractor since at least July 2023. She is not prepared to take the risk of surgical intervention, given there are no guarantees of a positive outcome. She gave evidence that the account of her functional capacities detailed in the Tribunal's reasons for decision on first review was accurate and reflected her position at the time of her DSP claim in February 2024. At hearing, she said she took pain medication and saw a chiropractor for her back pain.
4. She also gave evidence that she visits one of her adult daughters once or twice a week to help out with her two-year-old granddaughter. Since her daughter lives more than an hour's drive away, her husband drives. She said she is a bit stiff after sitting in the car for this length of time. The Applicant and her husband built a new house which they moved into in late 2023. She has to navigate stairs to access the main floor of the house which includes the main bedroom. She said she finds stairs problematic and takes them one at a time. She said she does not experience significant pain every day. She walks without aids of any sort, although her walking tolerance is reduced.
5. To date, the Applicant's spinal condition has been assigned an impairment rating of 10 points under Table 4. I am concerned that there is little or no supporting evidence of the Applicant having undertaken a targeted physiotherapy program or any exercise rehabilitation in respect of her back condition. At hearing, she briefly mentioned having seen a physiotherapist about 15 years ago but there is no report or independent evidence of this. She has not undertaken a pain management program; she remains on a public waitlist. It seems to me it is open to doubt whether the Applicant's spinal condition should be considered to have been reasonably treated at the time of her claim in February 2024 in the circumstances.
6. Nevertheless, with some reservation, I am prepared to proceed on the basis her spinal condition is able to be rated under the Impairment Tables. I agree with the assessment of 10 points under Table 4. The Applicant's evidence was she could sit in a car for 30 minutes or so and had problems when bending forward. I do not consider the descriptors relevant to a rating of 20 points under Table 4 are satisfied.
7. In a report from the Applicant's then general practitioner (GP) in February 2014, in addition to chronic back pain, conditions detailed included longstanding depression and fibromyalgia which had been diagnosed by a rheumatologist. Reports by the Applicant's treating psychiatrist in April and September 2024 confirm that she continues to suffer from an anxiety/depressive disorder which was being optimally treated by way of medication.
8. I consider it is appropriate to rate the Applicant's mental health condition under Table 5. There is limited supporting evidence from her treating practitioners as to functional impacts in this respect. Based mainly on the Applicant's evidence, I consider that there are mild to moderate functional impacts in the areas of concentration, social activities, behaviour and work/training capacity. I assign an impairment rating of 10 points; there is no proper basis for a higher rating under Table 5.
9. There is no reasonably current medical evidence of specialist review or treatment undertaken in relation to the Applicant's diagnosed condition of fibromyalgia at the time of claim. In 2014, the GP commented that the Applicant would have to undertake ongoing exercise programs to maintain a level of physical function required for day-to-day living. There is no supporting medical evidence in this respect. In the circumstances, I am not prepared to find this condition is reasonably treated and stabilised. An impairment rating cannot be assigned.
10. The Applicant listed insomnia as one of her medical conditions in her DSP claim. At hearing, she said she was diagnosed with sleep apnoea late last year. In September 2024, her psychiatrist suggested she may have sleep apnoea and would benefit from a sleep test. The Applicant's condition of sleep apnoea was not diagnosed at the time of claim in February 2024. An impairment rating cannot be assigned.
11. The Applicant also listed degenerative osteoarthritis in her right knee and hip area in her claim. Imaging in August 2023 confirmed degenerative changes in her right knee as well as a small to moderate popliteal cyst. An ultrasound of her right hip in November 2020 detected gluteus minimus tendinosis and a 13 mm full-thickness tear in the distal tendon, with some minor calcification in the tendon.
12. Table 3 concerns lower limb function. In this context, the Introduction to the Table explains that lower limbs extend from the hips to the toes. As to the Applicant's right lower limb impairment, there is insufficient medical evidence to establish that her right lower limb conditions were reasonably treated and stabilised at the time of claim in February 2024. I do not consider an impairment rating can be assigned in the circumstances.
13. The Applicant also experienced pain in her right shoulder. She told the Tribunal on first review that this had been investigated by her GP. A Patient Health Summary in February 2024 noted a moderate right subacromial bursitis with impingement. However, there is insufficient evidence to establish that this condition was reasonably treated and stabilised at the time of claim. An impairment rating cannot be assigned.
14. In the result, I find that the Applicant has a combined impairment rating of 20 points, comprising 10 points under Table 4 and 10 points under Table 5. She therefore satisfied the requirement of having an impairment of 20 points or more under the Impairment Tables: see paragraph 94(1)(b) of the Act.
15. I turn then to consider whether the Applicant satisfied the requirement that she had a continuing inability to work at the time of her claim on 18 February 2024: see subparagraph 94(1)(c)(i) of the Act. In this context, "work" means work of at least 15 hours per week at or above the relevant minimum wage which is available in Australia, even if not accessible in the person's locally accessible labour market: see subsection 94(5) of the Act.
16. Unless she had a severe impairment as defined, the Applicant has to satisfy the requirement that she had actively participated in a POS funded wholly or partly by the Commonwealth: see paragraph 94(2)(aa) of the Act. Since I have found none of her impairments have a rating of 20 points or more under a single Impairment Table, the Applicant does not have a severe impairment: see subsection 94(3B) of the Act.
17. In practical terms, this means the Applicant had to have met the requirements contained in the Participation Determination. Ordinarily, this requires that a person had participated in a POS for at least 18 months in the 36 months immediately preceding the date of their DSP claim. There are exceptions to this general position, but these cannot assist the Applicant here unless she had at least started to participate in a POS: see subsection 7(4) of the Participation Determination.
18. The available evidence shows that the Applicant had not started or participated in a POS. She confirmed that this was correct in her evidence. She was not receiving Centrelink payments prior to her DSP claim and she says she was therefore unable to participate in a POS prior to her claim.
19. The Act was amended with effect from September 2011 to include the POS requirement for DSP claimants, such as the Applicant, who do not have a severe impairment. There is no flexibility to disregard this mandatory requirement: see Tey and Secretary, Department of Social Services [2013] AATA 753, at [12]. This is so even for those who were unaware of the POS requirement.
20. It follows that the Applicant did not satisfy paragraph 94(2)(aa) of the Act at the time of her DSP claim on 18 February 2024. Accordingly, she did not have a continuing inability to work within subparagraph 94(1)(c)(i) of the Act and did not qualify for DSP. In the circumstances, the decision to reject her claim was correctly made.

1. The Tribunal affirms the decision under review.

Mr Darben, Litigation Branch, Services Australia