SOCIAL SECURITY - Disability Support Pension - requested payments backdated to date of injury - previously on jobseeker payment - partially incapacitated for employment for many years - totally incapacitated at times - start date is date of claim - was still able to volunteer - assessed as able to work 15 hours per week - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

1. This is an application by Mr Warburton for review of a decision by Services Australia (Centrelink) that disability support pension (DSP) is payable from 25 April 2025, and not an earlier date.
2. On 25 April 2025, Mr Warburton submitted a claim for DSP. On 12 June 2025, Centrelink granted the claim, with effect from the date of claim. Centrelink concurrently cancelled Mr Warburton's jobseeker payment, which he had been receiving up to that time.
3. On 19 June 2025, Mr Warburton requested review of the decision, as it related to the start date for payments. Mr Warburton sought that DSP be backdated to January 2016, when he had suffered serious injuries in an assault.
4. On 31 July 2025, Centrelink's authorised review officer (ARO) affirmed the decision to grant DSP from 25 April 2025, finding that there was no basis on which payments could start any earlier.
5. On 19 September 2025, Mr Warburton filed an application for review of the decision with the Tribunal.
6. The matter proceeded to hearing on 16 December 2025. I had before me the hearing papers numbered 1 to 310.

1. The issue before me is the date from which DSP may be payable.
2. The provisions relating to qualification and payability of a social security payment are contained in the Social Security Act 1991 (the Act). The provisions relevant to the start day of a social security payment are contained in the Social Security (Administration) Act 1999 (the Administration Act).
3. The start day is largely contingent on the date a claim is made, or deemed to have been made. It may then be possible to backdate the start day to a date before the date of claim. There may also be waiting periods that apply to delay the start day for some payment types, but that does not arise in this case.
4. Accordingly, it is necessary to determine the date of claim, then the start day.

1. In most circumstances, a person who seeks any form of social security payment must make a claim for that payment, in writing and in accordance with a prescribed form (sections 11 and 16 of the Administration Act). The date that occurs is the date a claim is made.
2. As an exception, a person who:
   • is in a relevant 'class of persons' (see the Social Security (Administration) (Class of Persons - Intent to Claim) Determination 2018),
   • makes contact with Centrelink about a claim for a social security payment,
   • is unable to lodge a claim on the contact day, and
   • then claims within 14 days - or within 13 weeks if the person was suffering a medical condition that had a significant adverse effect on the ability to lodge the claim earlier,

will be deemed to have made their claim on the date of contact (subsection 13(2) of the Administration Act).

1. The general rule, under section 42 and Schedule 2 to the Administration Act, is that if a person makes a claim (or is deemed to have made a claim) and is qualified on the day the claim is made, the start day is that day.
2. There can be a start day earlier than the date a claim is made (or deemed to have been made) only in narrow circumstances, limited to those connected to incapacity, childbirth, death of a partner, qualification for a disaster relief payment, or where a person claims within 14 days of a partner claiming or within a period of time of having received another social security payment or benefit (Part 2 of Schedule 2).
3. Relevantly, as to whether the start day is to be backdated because of incapacity, clause 11 of Schedule 2 provides:

(a) a person becomes incapacitated for work as a result of a medical condition; and

(b) the person makes a claim for a benefit or pension within 5 weeks after the day on which the incapacity begins; and

(c) the person continues to suffer the medical condition from the day on which the incapacity begins until the claim is made;

the person's start day in relation to the benefit or pension is the first day on which the person was qualified for the benefit or pension in the period starting on the day on which the incapacity began and ending on the day on which the claim was made.

(a) a person becomes incapacitated for work as a result of a medical condition; and

(b) the person makes a claim for a benefit or pension more than 5 weeks after the day on which the incapacity begins; and

(i) the person has continued to suffer the medical condition from the day on which the incapacity began until the claim was made; and

(ii) the medical condition was the sole or principal cause of the person's failure to make the claim within 5 weeks after the day on which the incapacity began;

the person's start day in relation to the pension or benefit is the first day on which the person was qualified for the benefit or pension in the period of 4 weeks ending immediately before the day on which the claim was made.

1. I make 3 observations about clause 11:
   • First, 'incapacitated for work' is not defined in the legislation, and a question may arise as to what work the claimant must be incapacitated for. The term incapacitated for work means, I think, unable to work at all (because of a medical condition). The context of the provision is that a person may be making a claim for an income support payment, so it cannot be that the term requires that the person was performing work at the point they became incapacitated (that is, the provision does not require that the person is unable to attend their existing employment). The term also does not appear to make much sense if the requisite incapacity includes partial incapacity. The term does not appear to have natural parallels with, say, workers' compensation legislation, where a person may have an incapacity for work despite that they also have a capacity for work (of, perhaps, fewer hours or with modified duties). The point is that the claimant cannot reasonably attend to any sort of work.
   • Second, the provision requires that the medical condition, rather than expressly the resulting incapacity, continue from the day the incapacity begins to the day the claim is made. Taken as a whole, though, the provision seems to require that the incapacity, and not just the medical condition, continue to the point of the claim. To enliven the provision, it is necessary that the medical condition is (and continues to be) a condition that results in incapacity. The point of the provision is about calculating the period of incapacity, starting on the day on which the incapacity began.[1] The alternative construction - that as long as the medical condition continues it does not matter if the claimant remains incapacitated - could produce absurd results.
   • Third, 'incapacity' is inherently a medical concept. A claimant's own view as to whether they were incapacitated at a particular time is of very limited probative value. The Tribunal will generally require medical evidence of incapacity to be positively satisfied that a person was incapacitated for work.

1. With the benefit of that legislative context, I come to the facts of Mr Warburton's case. Having heard from Mr Warburton, I note the following:
   • Since the assault in 2016, Mr Warburton has had inconsistent employment, mainly in [Sector 1]. He said he had only ever been able to hold a job for 2 or 3 months at a time.
   • Mr Warburton has experienced much the same symptoms from an acquired brain injury since 2016. A job capacity assessment report dated 16 May 2025[2] indicates that those symptoms include cognitive difficulties (with memory, organisation, planning and concentration), emotional dysregulation and mental ill health.
   • He had not engaged in paid work in 2025 but had been volunteering on and off.
   • Mr Warburton started, but did not submit, claims for DSP in 2021 and 2023.[3] He could not recall exactly why he had not finalised those claims, save that he had found the information-gathering required to make a claim too difficult. He had had problems making claims for jobseeker payment in the past too.
   • [In] April 2025,[4] Mr Warburton suffered a knee injury at his volunteer work and attended a hospital emergency department with a suspected medial collateral ligament tear.
   • On 25 April 2025, he claimed DSP by reference to the knee injury. He explained that, unlike his unsubmitted 2021 and 2023 claims, he had people around who could help him including a social worker. He was able to scrape together resources to obtain documents needed to support his claim. Along the way of the claims process, Mr Warburton came to accept that his primary problem was his brain injury rather than his knee (although the knee is still a problem and Mr Warburton anticipates having reconstructive surgery shortly). Centrelink accepted DSP by reference to the brain injury and not the knee condition.[5]
   • Mr Warburton said that the knee injury was not relevant to his claim for DSP, save that it started the process in motion. He does not appear to have been certified as unfit for work as a result of his knee injury. Dr [A], general practitioner, wrote on 22 April 2025 that the knee injury would prevent Mr Warburton working more than 15 hours per week.
2. As I have set out, the first finding to be made is to the date of claim or deemed date of claim.
3. Mr Warburton submits that the claim should be backdated to 2016, or alternatively the date of either his incomplete 2021 or 2023 DSP claim, noting that his medical condition has been essentially unchanged since the 2016 assault.
4. That may well be the case. Unfortunately, there is no provision in the legislation that can enable that to happen. The grant of a claim is contingent on a claim having been made, and Mr Warburton made the relevant DSP claim on 25 April 2025. It is immaterial to the issue of claim date that Mr Warburton may have qualified for DSP much earlier.
5. Mr Warburton did not make contact with Centrelink about making a claim for DSP in the 13 weeks before 25 April 2025. Accordingly, the ordinary principle prevails. The date of claim is 25 April 2025.
6. The next issue is the start day, and specifically the question of whether backdating the start day is possible on the basis that clause 11 of Schedule 2 applies by reference to either the brain injury or knee injury.
7. I accept that Mr Warburton has had longstanding symptoms by reference to his brain injury. It is likely that he has been partially incapacitated for employment for many years, and totally incapacitated at times. Clause 11, though, does not apply. The brain injury did not result in incapacity, in the sense of rendering Mr Warburton unable to work, throughout the period immediately preceding the claim. Mr Warburton was working in a volunteer capacity when he suffered the knee injury on 2 April 2025. There is no medical evidence that refers to Mr Warburton being incapacitated by reference to his brain injury after that date.
8. Mr Warburton was incapacitated when he attended hospital with a serious knee injury on 2 April 2025. But the medical evidence tends to establish that that incapacity - again, in the sense of rendering Mr Warburton unable to work - did not persist to the date of claim. The medical opinion 3 days before the date of claim was that Mr Warburton might be able to work 15 hours per week.
9. None of the other circumstances that permit backdating payments to before the date of claim apply.
10. The result is that the Mr Warburton's DSP can start from 25 April 2025, as Centrelink had determined.

[1] This is consistent with other Tribunal decisions, for example, GXRH and Secretary, Department of Social Services (Social security second review) [2025] ARTA 466 at [14], but I have not identified any other decision that squarely considers the point.

[3] Pages 132 and 133 of the hearing papers.

[5] Centrelink's internal record in respect of the grant of DSP (page 247) refers to the JCA report, which in turn includes an opinion that Mr Warburton has the requisite impairment points for DSP because of a traumatic brain injury (page 99).