Federal Court of Australia

Heimdall v Secretary, Department of Social Services [2026] FCA 1176

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 174 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) the time within which the applicant be permitted to file an appeal pursuant to s 172 of the ART Act be extended to 15 December 2025 and the applicant’s draft notice of appeal filed on that day be taken to be his notice of appeal.

2.    The appeal be dismissed.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    This unfortunate case reveals not only the Byzantine complexity of the statutory and administrative framework that underpins the determination of whether a person is eligible to receive payments under the Social Security Act 1991 (Cth), but also the bureaucratic nightmare that often confronts those who apply for such benefits.

2    The applicant, Mr Michael Heimdall, suffered from physical and psychological conditions that significantly impaired his ability to engage in full-time work or to fully engage in many ordinary day-to-day activities. He submitted a claim for payment of a Disability Support Pension (DSP) under s 94 of the Social Security Act to Centrelink, the agency that was responsible for assessing such claims on behalf of the respondent, the Secretary of the Department of Social Services. His claim for the DSP was rejected. That rejection decision was affirmed on an internal review; on review by the (then) Administrative Appeals Tribunal; and on a second review by the Administrative Review Tribunal.

3    In this Court, Mr Heimdall applied, pursuant to s 174 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) for an extension of time within which to file an appeal on a question of law from the decision of the Tribunal pursuant to s 172 of the ART Act. He claimed that the Tribunal denied him procedural fairness, or that the Tribunal’s decision was legally unreasonable, because it erroneously found that there was no evidence to support a submission he had made about being impeded from meeting one of the requirements that a person in his particular circumstances had to satisfy to be granted the DSP. That requirement was that he had participated in a program of support.

4    As explained in the following reasons, the Tribunal was plainly wrong when it stated that there was “nothing to support” the relevant submission that Mr Heimdall had advanced. Mr Heimdall had indeed put evidence and submissions before the Tribunal which indicated that his efforts to participate in the required program of support had been impeded by a seemingly impenetrable bureaucratic brick wall. Unfortunately for Mr Hemidall, however, while his argument concerning the Tribunal’s error is sufficient to justify an extension of time, his appeal must nevertheless fail. That is essentially because an independent reason given by the Tribunal for affirming the rejection decision, albeit one which differed from the earlier administrative review decisions, remained unchallenged.

THE RELEVANT STATUTORY AND ADMINISTRATIVE FRAMEWORK

5    The relevant statutory and administrative framework for assessing Mr Heimdall’s eligibility to receive the DSP includes provisions in the Social Security Act, the Social Security (Administration) Act 1999 (Cth), the Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (2011 Tables Determination) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (2014 Determination). The following consideration of the relevant provisions in those Acts and instruments is based on the provisions in the form they took during the period from 6 December 2022 to 7 March 2023, which as explained later is the period relevant to Mr Heimdall’s DSP application.

6    The Administration Act contains provisions relating to the making of claims for social security payments and the determination of such claims by the Secretary, who, subject to any direction of the Minister for Social Services, has general administration of the social security law. It is unnecessary to consider the provisions of the Administration Act in detail. In simple terms, if a valid claim for a social security payment is lodged, including a claim for the DSP, the Secretary must determine that the claim be granted if the Secretary is satisfied that the claimant is qualified for the payment.

7    The requirements or criteria that must be satisfied for a person to qualify for the DSP are set out in s 94(1) of the Social Security Act which provided, at the relevant time, as follows:

94     Qualification for disability support pension

(1)     A person is qualified for disability support pension if:

(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;

(ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

(d)     the person has turned 16; and

(da)     in a case where the following apply:

(i)     the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

(ii)     the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

(iii)     if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

the person meets any participation requirements that apply to the person under section 94A; and

(e)     the person either:

(i)     is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)     has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)     is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)     is not an Australian resident; and

(B)     is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(ea)     one of the following applies:

(i)     the person is an Australian resident;

(ia)     the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

(ii)     the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

        (emphasis added)

8    I have set out s 94(1) of the Social Security Act in its entirety, though the critical provisions insofar as Mr Heimdall’s application was concerned are in ss 94(1)(a), (b) and (c). There was no dispute that at the relevant time Mr Heimdall had a physical, intellectual or psychiatric impairment. Nor was there any apparent suggestion that Mr Heimdall did not meet any of the criteria in paragraphs (d) through to (ea).

9    Section 94(1)(b) of the Social Security Act refers to the “Impairment Tables”. Section 26(1) of the Social Security Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”. Section 27 of the Social Security Act provides that “[i]f a person makes a claim, or is taken to have made a claim, for disability support pension, the Secretary, in determining the claim, must apply the instrument in force under section 26 on the day the claim was made or taken to have been made”.

10    The 2011 Tables Determination was the instrument in force at the time Mr Heimdall’s application was made. The 2011 Tables Determination included tables and various rules that were required to be met before an impairment rating could be assigned. It is fortunately unnecessary to consider the detail of the tables or rules in the 2011 Tables Determination given the narrow scope of Mr Heimdall’s proposed appeal.

11    The expression “continuing inability to work” in s 94(1)(c)(i) is defined in the following terms in s 94(2) of the Social Security Act:

94(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.

    (emphasis added)

12    As will be seen, the critical paragraph of s 94(2) of the Social Security Act in Mr Heimdall’s case was paragraph (aa). The Secretary effectively conceded that if Mr Heimdall satisfied s 94(2)(aa) or had a “severe impairment” (neither of which was conceded), Mr Heimdall would satisfy the requirements in s 94(2)(a) and (b).

13    The expression “severe impairment” in s 94(2)(aa) is defined in the following terms in s 94(3B) of the Social Security Act:

(3B)     A person’s impairment is a severe impairment if 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.

14    A “program of support”, for the purposes of s 94(2)(aa) is defined as follows in s 94(5) of the Social Security Act:

program of support means a program that:

(a)     is designed to assist persons to prepare for, find or maintain work; and (b)     either:

(i)     is funded (wholly or partly) by the Commonwealth; or

(ii)     is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

15    Section 94(3C) of the Social Security Act provides that a person has actively participated in a program of support, for the purposes of s 94(2)(aa) “if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of” s 94(3C).

16    The 2014 Determination was the relevant legislative instrument made by the Minister, which was in force at the relevant time, for the purposes of s 94(3C) of the Social Security Act. Section 7 of the 2014 Determination provided as follows:

7     Requirements for active participation

(1)     A person has actively participated in a program of support if the person satisfies the following requirements:

(a)     the person has:

(i)     complied with the requirements of the program of support; and

(ii)     participated in a program of support during the relevant period;

(b)     subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;

(c)     subsection (6) is satisfied in relation to the person and the program of support.

Requirements for period of participation in program of support

(2)     This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.

Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).

(3)     This subsection is satisfied in relation to a person and a program of support if:

(a)     the duration of the program of support was less than 18 months; and

(b)     the person completed the entire program during the relevant period.

(4)     This subsection is satisfied in relation to a person and a program of support if:

(a)     the program of support was terminated before the end of the relevant period; and

(b)     the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.

(5)     This subsection is satisfied in relation to a person and a program of support if:

(a)     at the end of the relevant period, the person is participating in the program of support; and

(b)     the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.

Information required to be provided to the Secretary

(6)     This subsection is satisfied in relation to a person and a program of support if the person provides the Secretary with the following information in relation to the program of support:

(a)     the details of the designated provider of the program;

(b)     the dates when the person started to participate in the program and, if applicable, ceased to participate in the program;

(c)     the reason for ceasing to participate in the program (if any);

(d)     any period during which the person did not participate in the program, including as a result of any exemption, relief or suspension from the program;

(e)     the reason for any period during which the person did not participate in the program;

(f)     the terms of the program that were specifically tailored to address the person’s level of impairment, individual needs, barriers to employment and capacity to work;

(g)     the terms with which the person had to comply in order to satisfy the requirements of the program and the level of compliance with those terms;

(h)     the vocational, rehabilitation or employment activities the person participated in as a part of the program;

(i)     the frequency of contact that the person had with the designated provider of the program.

17    Section 5 of the 2014 Determination provided that the “relevant period” in the case of a person whose impairment is not a severe impairment, is the “period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person”.

18    In short summary, to satisfy the requirement of active participation in a program of support for the purposes of s 94(2)(aa) of the Social Security Act (and in accordance with the 2014 Determination) an applicant in Mr Heimdall’s position would have had to have participated in a program of support (as defined in s 94(5) of the Social Security Act) for at least 18 months during the three years prior to his application for the DSP (subject to ss 7(2), (3), (4) and (5) of the 2014 Determination); complied with the requirements of the program of support; and provided the Secretary with the information referred to in s 7(6) of the 2014 Determination. As will be seen, there could be no doubt that Mr Heimdall did not satisfy those requirements. He did not contend otherwise. The case that he sought to articulate before the Tribunal was that he was effectively prevented from doing so by the impenetrable systems and bureaucracy that surrounded the enrolment or participation in the available programs of support.

19    It should finally be noted that subclause 4(1) of Pt 2 of Sch 2 of the Administration Act provides that, if a person makes a claim for a payment and, on the date on which the claim is made the person 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 have been made on the first day on which the person qualified for the payment. In effect, it follows that Mr Heimdall’s claim for the DSP was required to be assessed in respect of the period from 6 December 2022 (the date he made the claim) to 7 March 2023 (being 13 weeks after 6 December 2022).

MR HEIMDALL’S APPLICATION FOR THE PENSION AND ITS REJECTION

20    Mr Heimdall lodged his application for the DSP on 6 December 2022. In his application he referred to various medical conditions associated symptoms, including: various adverse conditions that he continued to suffer as a result of his contraction of COVID-19 in December 2021 and injuries to his knee. He indicated that he had received treatment from eight specialists in respect of those conditions, including his general practitioner, a clinical psychologist, two orthopaedic specialists, two vascular specialists, a repository specialist, a haematologist and an ophthalmologist. He also referred to the “severe functional impact(s)” that those conditions were having on his day-to-day activities.

21    Shortly thereafter, Centrelink completed a Job Capacity Assessment report in respect of Mr Heimdall. That report concluded that there was medical evidence that the applicant had, inter alia: chronic right knee pain and severe osteoarthritis; anxiety, PTSD and depression; partial hearing loss; a repository disorder following COVID-19 infection; and bilateral deep and superficial venous thrombosis with multiple pulmonary embolism. In respect of the conditions relating to Mr Heimdall’s knee, psychiatric condition and hearing loss, the report noted that those conditions had been verified by medial evidence and had been fully diagnosed, fully treated and fully stabilised. It also noted that Mr Heimdall was suffering from moderate (in the case of the knee injury) and mild (in the case of the other conditions) functional impairments arising from those conditions. heimdallIn respect of the conditions concerning Mr Heimdall’s circulatory or cardiorespiratory systems, the report noted that the condition was verified by medical evidence, but had not been fully diagnosed, treated or stabilised.

22    On 3 April 2023, Mr Heimdall’s application for the DSP was refused by Centrelink. The apparent basis for the refusal was Mr Heimdall’s failure to have actively participated in a program of support.

THE INITIAL REVIEWS

23    Mr Heimdall sought an internal review of the decision to refuse his application. The refusal decision was affirmed by an authorised review officer on 3 May 2023. The officer determined that Mr Heimdall had a total impairment rating of 20 points, but that he had failed to actively participate in a program of support.

24    Mr Heimdall lodged a review application with the (then) Administrative Appeals Tribunal in respect of the refusal decision. On 25 August 2023, that Tribunal affirmed the decision under review, again on the basis that, while Mr Heimdall had a total impairment rating of 20 points, he had failed to actively participate in a program of support.

25    Pursuant to s 131D of the ART Act, a person whose interests are adversely affected by Tribunal decisions in respect of social services may apply to the Tribunal for a second review of the decision. Mr Heimdall did just that. There is no dispute that the Tribunal had jurisdiction to entertain Mr Heimdall’s further review application.

THE TRIBUNAL’S REVIEW AND DECISION TO AFFIRM

26    The Tribunal conducted a hearing in respect of Mr Heimdall’s application. Mr Heimdall was not legally represented.

27    The Tribunal noted that Mr Heimdall had requested that a witness be made available from “Job Life” regarding his failure to participate in a program of support. He was advised that he would need to have a summons issued to require a witness from Job Life to attend and give evidence. Mr Heimdall did not avail himself of that procedure. It is, however, readily apparent that Mr Heimdall wanted to question someone from Job Life, which was a designated provider of programs of support, about the reasons for his inability to participate in any such program. Mr Heimdall also complained about his inability to question Centrelink at the hearing. It is likewise apparent that Mr Heimdall wanted to ask someone from Centrelink about the same issue.

28    Mr Heimdall gave evidence at the hearing. He also furnished two statutory declarations and two sets of written submissions. The written submissions were furnished after the hearing. As will be seen, both the statutory declarations and the written submissions addressed, at some considerable length, Mr Heimdall’s claim that he had essentially been blocked by Centrelink, or Job Life, or both, from participating in any program of support, but that, despite his very best efforts, he had been unable to ascertain precisely why that was so. He was butting his head against a bureaucratic brick wall.

29    On 31 October 2025, the Tribunal published a Decision and Reasons for Decision (R) affirming the decision under review.

30    The Tribunal found that Mr Heimdall had physical, intellectual and psychiatric impairments arising from medical conditions and therefore satisfied the qualifying criterion in s 94(1)(a) of the Social Security Act: R[23].

31    The Tribunal found, however, that only 15 points could be assigned to Mr Heimdall under the impairment tables in the 2011 Tables Determination: R[70]. Detailed reasons were given in respect of that finding.

32    In respect of the condition relating to Mr Heimdall’s knee, the Tribunal found that condition had been fully diagnosed, treated and stabilised (R[34]) and that the functional impairment arising from that condition was moderate and should be allocated 10 points under the applicable table in the 2011 Tables Declaration: R[34]-[49]; conclusion at R[50]-[52].

33    In respect of Mr Heimdall’s psychiatric condition, the Tribunal found the condition was fully diagnosed, treated and stabilised (R[53]) and had resulted in a mild functional impairment and should be allocated 5 points under the applicable table: R[53]-[59]; conclusion at R[56].

34    In respect of the hearing condition, the Tribunal noted that Mr Heimdall had advised that he was no longer pressing his claim in respect of that condition: R[60]. The Tribunal nevertheless briefly considered that claim and concluded that, if that claim had been pressed, Mr Heimdall could only have been assigned a maximum of 5 impairment points under the applicable table: R[63].

35    In respect of the conditions concerning Mr Heimdall’s circulatory or cardiorespiratory symptoms after COVID-19 infection, the Tribunal noted that it was unclear if Mr Heimdall continued to press his claims in respect of those conditions: R[65]. In any event, the Tribunal concluded that the conditions had not been fully diagnosed, treated or stabilised during the qualification period (6 December 2022 to 7 March 2023) and that no points could be allocated in respect of those conditions under the applicable tables: R[69].

36    It followed from the Tribunal’s finding that Mr Heimdall’s impairment was at most 15 points under the applicable impairment tables that he did not satisfy the qualifying criterion in s 94(1)(b) of the Social Security Act: R[70]. The Tribunal did, however, note that if Mr Heimdall had pressed his claim in respect of his hearing impairment, he “may have” been assigned 20 points: R[70].

37    The Tribunal found that s 94 of the Social Security Act “has a cumulative construction” (R[71]), by which it essentially meant that in order to qualify for the DSP, an applicant was required to satisfy each of paragraphs (a), (b) and (c) of s 94(1). It followed from that construction of s 94 that, given Mr Heimdall had not satisfied the criterion in s 94(1)(b), he did not, and could not, qualify for a DSP. The Tribunal nevertheless went on to consider, “for completeness”, whether Mr Heimdall would have satisfied the criterion in s 94(1)(c) of the Social Security Act. The Tribunal concluded that Mr Heimdall would not have satisfied that criterion because he “would not have had a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Social Security Act”: R[72].

38    The Tribunal made two key findings which led it to conclude that Mr Heimdall did not, or would not have, satisfied the criterion in s 94(1)(c) of the Social Security Act.

39    The first finding was that Mr Heimdall’s impairment was not a “severe impairment” as defined in s 94(3B) of the Social Security Act because, based on the Tribunal’s findings concerning the allocation of points in respect of Mr Heimdall’s conditions and impairments, none of his impairments attracted 20 points or more under a single impairment table: R[76].

40    Given that Mr Heimdall’s impairment was not a severe impairment as defined, in order to fall within the definition of “continuing inability to work” in s 94(2) of the Social Security Act, Mr Heimdall would have had to have actively participated in a program of support within the meaning of s 94(3C) and thereby satisfy s 94(2)(aa) of the Social Security Act. The second important finding made by the Tribunal was that Mr Heimdall did not participate in a program of support for any days during the period 9 December 2019 to 8 December 2022. He therefore did not meet the requirements in respect of active participation in a program of support in the 2014 Determination (R[78]) and could not be found to have actively participated in a program of support for the purposes of s 94(2)(aa) of the Social Security Act.

41    The Tribunal then went on to state as follows (at R[79]):

The applicant has repeatedly submitted that he was impeded from participating in a program of support due to an incapacitated and suspended flag on his file and because he the respondent did not make the relevant arrangements. There is nothing to support those submissions. More importantly there is not [sic] basis for the respondent to have to make the relevant arranged [sic]. There is no evidence to support such a finding and no power exists to dispense with the operation of subsection 94(2)(aa) of the Social Security Act.

(emphasis added)

42    The Tribunal’s finding that there was “nothing” to support Mr Heimdall’s submission that he was impeded from participating in a program of support was the focus of his proposed appeal.

43    It should perhaps be noted that it is at least implicit in the Tribunal’s reasoning in this paragraph (R[79]) that it found that, even if Mr Heimdall had been impeded from participating in a program of support as he had submitted, he nevertheless had not participated in any such program and therefore had failed to satisfy s 94(2)(aa) of the Social Security Act and therefore failed to satisfy s 94(1)(c)(i). There was no suggestion that Mr Heimdall satisfied the criterion or requirement in s 94(1)(c)(ii) of the Social Security Act.

THE EXTENSION APPLICATION AND THE PROPOSED APPEAL

44    Mr Heimdall commenced this proceeding on 15 December 2025 by filing an application for an extension of time, pursuant to s 174 of the ART Act, in which to file an appeal from the Tribunal’s decision pursuant to s 172 of the ART Act. Mr Heimdall required an extension of time because he did not file an appeal within the 28-day period prescribed by s 174 of the ART Act. He was 17 days late.

45    While Mr Heimdall did not proffer any explanation for his not having filed his proposed appeal within the prescribed time period, the Secretary fairly and reasonably acknowledged that the delay was not long and that the Secretary had not, or would not, suffer any specific prejudice arising from that delay if an extension was granted. The Secretary submitted, however, that Mr Heimdall’s proposed appeal lacked sufficient merit to warrant the grant of an extension of time.

46    For the reasons that follow, I have concluded that Mr Heimdall’s proposed appeal cannot succeed. I nevertheless consider that it is appropriate to grant Mr Heimdall an extension of time within which to file his appeal, essentially because the merits of his proposed appeal were fully argued and there was at least some merit in some of the contentions that he advanced in support of it.

THE MERITS OF THE APPEAL

47    Mr Heimdall’s draft notice of appeal, which may be taken to be his notice of appeal filed pursuant to the extension of time, particularises two questions of law which are the subject of his appeal. They are:

1.     Whether the Tribunal failed to accord procedural fairness by not addressing or engaging with the Applicant’s 22 July 2025 rebuttal submission.

2.     Whether the Tribunal failed to consider relevant evidence, including medical documentation, incapacity periods, and administrative barriers to Program of Support participation.

48    While those two questions are expressed in broad and general terms, at least insofar as their particularisation of the evidence and submissions which the Tribunal was alleged to have failed to consider or address is concerned, Mr Heimdall’s submissions focussed entirely on the contention that the Tribunal failed to consider or address his evidence and submissions which were to the effect that he had been impeded from participating in a program of support. Mr Heimdall submitted, in effect, that the Tribunal’s statement (at R[79]) that there was “nothing to support” his submission that he had been impeded from participating in a program of support was plainly wrong because he had in fact adduced or tendered evidence which was at least capable of providing some support for his submission. In those circumstances, so Mr Heimdall argued, the Tribunal’s statement was either illogical or irrational, or legally unreasonable, or demonstrated that the Tribunal had denied him procedural fairness by ignoring his evidence.

49    The Secretary, correctly and quite reasonably, acknowledged (albeit only orally at the hearing) that if the Tribunal’s statement (at R[79]) that there was nothing to support Mr Heimdall’s submission was, as Mr Heimdall contended, plainly wrong and demonstrated that the Tribunal had ignored or overlooked material evidence that Mr Heimdall had in fact relied on, that circumstance could constitute or be characterised as a denial of procedural fairness. The Secretary also appeared to concede that if the Tribunal’s statement was plainly wrong, that error might constitute, or might be able to be characterised as, an illogical or irrational finding that might support a finding that the Tribunal’s decision was legally unreasonable.

50    The Secretary contended, however, that even if the Tribunal erred in the manner contended by Mr Heimdall, that error, however characterised, could not constitute a jurisdictional error or provide a basis for setting aside the Tribunal’s decision. That is because any such error could not be said to be a material error because there was an entirely separate and independent basis for the Tribunal’s decision: cf Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [35]. The separate and independent basis for the Tribunal’s decision was that Mr Heimdall had not established that he satisfied the qualifying criterion in s 94(1)(b) of the Social Security Act. Moreover, the Secretary submitted that even if the relevant submission that Mr Heimdall had advanced before the Tribunal was (contrary to the Tribunal’s finding at R[79]) supported by evidence, the Tribunal found that Mr Heimdall would not in any event have satisfied s 94(2)(aa) because the fact remained that he had not participated in a program of support. It followed that Mr Heimdall did not satisfy the qualifying criterion in s 94(1)(c) of the Social Security Act.

51    The Secretary’s submissions concerning the materiality of the alleged error by the Tribunal relied on by Mr Heimdall in his appeal are plainly correct and accordingly Mr Heimdall’s appeal must fail on that basis.

52    Mr Heimdall did not contend that the Tribunal erred in concluding that he did not meet the qualifying criterion in s 94(1)(b) of the Social Security Act. He did not seek to impugn the Tribunal’s finding that only a total of 15 points under the applicable tables could be allocated or assigned to his impairment arising from his knee injury and psychiatric condition. He fairly conceded that he did not press his claim in respect of an impairment arising from his hearing condition before the Tribunal. That stance was consistent with the Statement of Facts, Issues and Contentions that he had filed in the Tribunal. Mr Heimdall also did not attempt to impugn the Tribunal’s finding that no points could be allocated in respect of any impairment arising from the conditions relating to his circulatory or cardiorespiratory systems because those conditions had not been fully diagnosed, treated or stabilised during the qualification period.

53    There is no basis upon which to disturb the Tribunal’s finding that Mr Heimdall did not satisfy the qualifying criterion in s 94(1)(b) of the Social Security Act. That finding provided a basis for the Tribunal’s ultimate decision to affirm the decision under review which was entirely separate from, and independent of, any finding the Tribunal made in respect of Mr Heimdall’s satisfaction of the qualifying criterion in s 94(1)(c) of the Social Security Act.

54    There is also merit in the Secretary’s submission to the effect that the error by the Tribunal which forms the basis of Mr Heimdall’s appeal does not impact, and is therefore not material to, the Tribunal’s finding that Mr Heimdall did not satisfy the criterion in s 94(1)(c) of the Social Security Act. There was and is essentially no dispute that Mr Heimdall did not actively participate in any program of support at any time in the three-year period prior to his application for the DSP. He therefore did not and could not have met either the criteria in s 94(2)(aa) or s 94(1)(c) of the Social Security Act. That is the case even if his non-participation was, as he had effectively contended, a result of the fact that he had been impeded from participating in any such program by the bureaucratic actions or omissions of Centrelink, Job Life or any other designated provider of such programs.

55    While it may appear to be somewhat unfair for the Secretary to reject Mr Heimdall’s claim for the DSP on the basis that he had not actively participated in a program of support in circumstances where his participation in any such program was effectively prevented or impeded by the very agencies who provided or facilitated those programs, unfortunately that is how the relevant provisions of the legislation operate. It is not possible to construe them in any other way.

56    While, for the reasons just given, Mr Heimdall’s appeal must fail, it is important to emphasise that his argument that the Tribunal’s statement (at R[79]) that there was “nothing to support” his submission that he was impeded from participating in a program of support by Centrelink or one of the designated providers of such programs had considerable merit. That statement by the Tribunal was plainly wrong.

57    Even a cursory consideration of the evidence and submissions before the Tribunal indicates that Mr Heimdall had furnished a good deal of evidence which tended to support that submission. That evidence is to be found in Mr Heimdall’s statutory declarations (including the annexures or attachments thereto), documents that were within the “T-documents” that were before the Tribunal and documents that were in the joint tender bundles. The evidence is referred to at length in Mr Heimdall’s written submissions and is adverted to in the Secretary’s Statement of Facts, Issues and Contentions and written submissions. It might perhaps be said that some of that evidence was difficult to comprehend. Some of the evidence could also be fairly said to have been largely irrelevant because it concerned Mr Heimdall’s attempts to secure participation in a program of support after the relevant qualifying period. It is, however, tolerably clear from the evidence that, for reasons that the Secretary was unable to fully explain in the submissions advanced in this proceeding, at some point in the period preceding the lodgement of his claim, Mr Heimdall appears to have been deemed ineligible to participate in a program of support, or his participation in a program was impeded, prevented or frustrated by Centrelink, or some of the designated providers, or their computer systems or processes. Moreover, despite concerted efforts on his part, and efforts made by others on his behalf, Mr Heimdall was unable to ascertain exactly what the problem was. As noted earlier, he was effectively butting his head up against a bureaucratic brick wall.

58    Whatever may be said about the nature or quality of the evidence upon which Mr Heimdall relied in support of his submission that he was impeded by Centrelink or others from participating in a program of support, it was plainly wrong for the Tribunal to say that there was “nothing to support” that submission. There could be little doubt that it was the Tribunal’s cursory and plainly erroneous dismissal of Mr Heimdall’s claims that prompted him to seek to appeal the Tribunal’s decision.

59    It should perhaps also be finally noted that, perhaps ironically, Mr Heimdall was subsequently granted the DSP, presumably upon the basis of a further claim. It may be inferred that the Secretary ultimately accepted either that one of Mr Heimdall’s impairments attracted 20 points or more under the impairment table and that he therefore had a severe impairment (as defined), or that he was eventually able to actively participate in a program of support.

CONCLUSION AND DISPOSITION

60    Mr Heimdall’s application for an extension of time should granted. The time for him to file his appeal will be extended to 15 December 2025, that being the day he filed his extension application and draft notice of appeal. The draft notice of appeal will be deemed to be his notice of appeal. Mr Heimdall’s appeal must, however be dismissed.

61    As I have observed, it is perhaps not surprising that Mr Heimdall, who was not legally represented, sought to appeal the Tribunal’s decision given the Tribunal’s plainly erroneous finding that there was no evidence to support what Mr Heimdall believed to be an important plank in his case. That circumstance, considered in conjunction with the nature of the proceeding more generally, including the fact that Mr Heimdall is currently the recipient of social security benefits (and may therefore be taken to be a person of limited means) and was not legally represented in this proceeding, would have tended to weigh against the making of a costs order against him. Following the hearing, consistently with the fair and reasonable way in which the proceeding was conducted on behalf of the Secretary, the Secretary advised that no costs order would be sought against Mr Heimdall even if his appeal failed. Accordingly, no order will be made in respect of costs.

Associate:

Dated:    20 August 2026