95-2 Oh 9 — Pt 2.3 — Div 1 — Qualification for and payability of 87,601
PART 2.3 — DISABILITY SUPPORT PENSION
History
Pt 2.3 substituted by No 141 of 1991, 10.
Division 1 —- Qualification for and payability of disability support pension
~ Subdivision A — Qualification
SECTION 94 QUALIFICATION FOR DISABILITY SUPPORT PENSION —
CONTINUING INABILITY TO WORK
94(1) A person is qualified for disability support pension if: pport p (a) the person has a physical, intellectual or sychiatric impairment; and P ip
(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;
(Gi) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and (da) in acase where the following apply:
(i) the person is under 35 years of age;
Gi) 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: Gi) 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
Australian Social Security Guide Sec 94(1)
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(ea) one of the following applies:
Social Security Act
(1) 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.
(f) (Repealed)
Note 1: for “Australian resident’’, ‘‘qualifying Australian residence’’ and “qualifying residence
exemption’ see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
History
S$ 94(1) substituted by No 141 of 1991, s 10; amended by No 229 of 1992, s 153, Sch 3(11), (12); No 161 of 1994, ¢ 4, Sch 2(7); No 104 of 1995, 5 4, Sch 4(1); No 202 of £997, s 3, Sch 15(16}(18), Sch 16(1); No 154 of 2005, s 3, Sch 2(1},
commenced | July 2006; No 34 of 2011, Sch 2(1),
commenced ! July 2011; No 52 of 2011, Sch 3(1) and (2), commenced 3 September 201 1,
S 9411) amended by No 51 of 2012, Sch 2(1) and Sch 3(1)}+(3), applicable for the purposes of working out a person’s qualification for disability support pension in respect of days occurring on or after 1 July 2012.
Note | substituted by No 161 of 1994, s 4, Sch 2(8).
Note 2 inserted by No [41 of 1991, s 10; amended by No 104 of 1995, s 4, Sch 19(30}; substituted by No [45 of 2011, Sch 3(3), effective 1 January 2012.
No 154 of 2005, Sch 2(13), contained the following provision:
“13 Application and transitional provisions
(1) The amendments of the Social Security Act 1991] made by this Part apply in relation to any claim, and any payment of pension as a result of such a claim, by a person for a disability support pension made on or after 1 July 2006.
(2) Subject to subitem (3), the Social Security Act 1991 applies to any claim by a person for a disability support pension made before 1 July 2006, and any payment of
pension as a result of such a claim, as if the amendments referred to in subitem (1) had not been made.
- If (a)on or after | July 2006, a notice under subsection
63(2) or 64(2) of the Administration Act is given to a person who made a claim for a disability support pension on or after 1] May 2005 and before 1 July 2006; and
(b) under the notice, the person is required to undertake a specified activity for the purpose of reviewing his or her capacity to perform work:
then the amendments of the Social Security Act 1991 referred to in subitem (1) apply to the person from the date of the notice.”
No 52 of 2011, Sch 3(£2), contained the following provision: “12 Application and saving
(1) The amendments made by items t to 9 apply in relation to a person who makes a claim, or who is taken to have made a claim, for disability support pension on or after the commencement of those items.
Sections 12, 13 and 15 of the Administration Act and clause 4 of Schedule 2 to that Act deal with claims for
disability support pension that are taken to have been made.’
94(LA}-(1B) (Repealed by No 202 of 1997, s 3, Sch 15(19).)
Continuing inability to work
94(2) A person has a coatinuing 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) — the person has actively participated in a program of support within the meaning of subsection (3C); 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
Sec 94(1A)-(1B)
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(i) 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.
Note: For work see subsection (5).
History
S 94(2) substituted by No 154 of 2005, s 3, Sch 22), For application and transitional provisions relevant to No 52 somuneuced 1 July 2006; amended by No 52 of 2011, Sch of 2011, Sch 3(12), see Note at the end of s 9461), 3(3)-(5), commenced 3 Septentber 201]. :
For application and transitional provisions relevant to No 154 of 2005, Sch 2(13 }, see Note at the end of s 94(1).
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to: (a) the availability to the person of a training activity; or (b) the availability to the person of work in the person’s locally accessible labour market,
History
S 94(3) substituted by No 104 of 1995, s 4, Sch 4(3); For application and transitional provisions relevant to No 154 amended by No 154 of 2005, s 3, Sch 2(3)-(4), commenced 1 of 2005, Sch 2(13), see Note at the end of s 94(f). July 2006.
94(3A) Tf: (a) a person is receiving disability support pension; and (b) the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension; then paragraph (2)(aa) of this section does not apply in relation to that assessment.
History
S 94(3A) inserted by No 52 of 2011, Sch 3(6), commenced 3 For application and transitional provisions relevant to No 52 September 201 [, of 2011, Sch 3(12}, see Note at the end of s 94(1).
ah
Severe impairment
94(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.
Example 1:
A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 poimts under another Impairment Table. The person has a severe impairment.
Example 2:
A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one [mpairment Table and 20 points under another Impairment Table. The person has a severe impairment. i
Example 3:
A person’s impairment is of 26 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
History
S$ 94(3B) inserted by No 52 of 2011, Sch 3(6), commenced 3 For application and transitional provisions relevant to No $2 September 2011, of 2011, Sch 3(12), see Note at the end of s 94(1).
Australian Social Security Guide Sec 94(3B)
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87,604 oe Social Security Act
[Next page is 87,621]
Active participation in a program of support
94(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrament made by the Minister for the purposes of this subsection.
Histary
§ 94(3C) inserted by No 52 of 2011, Sch 3(6), commenced 3 ‘For application and transitional provisions relevant to No 52 September 2011. of 2011, Sch 3(12), see Note at the end of s 94(1).
94(3D) The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
History
S 94(3D) inserted by No $2 of 2011, Sch 3(6), commenced 3 For application and transitional provisions relevant to No 52 September 2011. of 2011, Sch 3(12), see Note at the end of 5 94(1).
94(3E) The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
History
S 94(3£) inserted by No 52 of 2011, Sch 3(6), commenced 3 For application and transitional provisions relevant to No 52 September 2011. of 2011, Sch 3(12), see Note at the end of s 94(1).
Doing work independently of a program of support
94(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or (b) is likely to need a program of support provided occasionally; or
({c) is likely to need a program of support that is not ongoing.
History
S 94(4) substituted by No 154 of 2005, s 3, Sch 2(5), For application and transitional provisions relevant to No 52
commenced 1 July 2006; amended by No 52 St 2011, Sch of 2011, Sch 3(12), see Note at the end of s 94(1). 3(7) and (8), commenced 3 September 2011.
For application and transitional provisions relevant to No 154 of 2005, Sch 2(13), see Note at the end of s 94¢1).
94(4A) (Repealed by No 38 of 2010, s 3, Sch 7(27), commenced 14 April 2010.) 94(4B) (Repealed by No 38 of 2010, s 3, Sch 7(27), commenced 14 April 2010.)
Other definitions
94(5) In this section:
feducational or vocational training] (Omitted by No 154 of 2005, s 3, Sch 2(6),
commenced 1 July 2006. For application and transitional provisions relevant to No 154 of 2005, Sch 2(13), see Note at the end of s 94(1).)
[on-the-job training] (Omitted by No 154 of 2005, s 3, Sch 2(7), commenced 1 July
- For application and transitional provisions relevant to No 154 of 2005, Sch 2(13), see Note at the end of s 94(1).)
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
Sec 94(3C) CCH Australia Limited
°° Ch 2— Pt 2.3 — Div 1 — Qualification for and payability of 87,621
(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.
History
Definition of “‘program of support” inserted by No 52 of For application and transitional provisions relevant to No 52 2011, Sch 3(9), commenced 3 September 2011. of 2011, Sch 3(12), see Note at the end of s 94(1).
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric Impairments: .
{a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
History
Definition of “‘training activity’ insetted by No 154 of 2005, For application and transitional provisions relevant to No 154 s 3, Sch 2(8), commenced 1 July 2006. of 2005, Sch 2(13), see Note at the end of s 94(1).
work means work: {a) that ts for at least 15 hours per week at award wages or above; and
{b) that exists in Australia, even if not within the person’s locaily accessible labour market.
History . Definition of “‘work’’ amended by No 154 of 2005,s3, Sch § 94{5) inserted by No 141 of 1991, s 10; amended by No 2(9}, commenced 1 July 2006. 104 of 1995, 5 4, Sch 4(5).
For application and transitional provisions relevant to No 154 of 2005, Sch 2(13), see Note at the end of s 94(1).
94(6) Person not qualified in certain circumstances. A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person’s incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment,
History
S 94(6) inserted by No 141 of 1991, s 10; amended by No _ Note inserted by No 81 of 1992, 5 116, Sch 1. 109 of 1994, 5 19, Sch 1(3); No 1 of 1996, s 3(1), Sch 2(75);
No 202 of 1997, s 3, Sch 15(20); No 45 of 1998, s 3 and Sch
9(286); amended by No 173 of 2007, s 9, Sch 1, commenced
1 January 2008.
SECTION 94A PARTICIPATION REQUIREMENTS
94A(1) The participation requirements are as follows:
{a) the person must enter into a participation plan when the person is required by the Secretary under section 94B to do so;
Australian Social Security Guide Sec 94A(1)
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Ch 2 — Pt 2.3 — Div 1 — Qualification for and payability of 87,623
94C(3)_ In deciding whether he or she is satisfied as mentioned in subsection (1), the Secretary may request the person to give the Secretary a certificate from a medical practitioner. ;
94C(4) Subsection (3) does not limit subsection (1).
94C(5) A determination under subsection (2) is not a legislative instrument.
History
S 94C inserted by No 51 of 2012, Sch 2(2), applicable for the Support pension in respect of days occurring on or after | July
purposes of working out a person’s qualification for disability 2012.
SECTION 94D PRE-NATAL AND POST-NATAL RELIEF
94D(i)_ A pregnant woman is covered by a participation exemption for the period that starts 6 weeks before the woman’s expected date of confinement and ends on the day on which the woman gives birth to the child (whether or not the child is born alive).
94D(2) [fa woman gives birth to a child (whether or not the child is born alive), the woman is covered by a participation exemption for the period that starts on the day on which she gives birth to the child and ends 6 weeks after that day.
History
$ 94D inserted by No 51 of 2012, Sch 2(2), applicable for the support pension in respect of days occurring on ot after 1 July
’ purposes of working out a person’s qualification for disability 2012,
SECTION 94K SUPPORTED EMPLOYMENT
94E(1)_ A person is covered by a participation exemption for a period if (a) the person is employed throughout the period; and
(b) the work undertaken by the person in the course of that employment is for wages set in accordance with the program administered by the Commonwealth known as the supported wage system.
94H(2) A person is covered by a participation exemption for a period if the person is, throughout the period, in employment that is supported by supported ernployment services within the meaning of section 7 of the Disability Services Act 1986.
History
S 94E inserted by No 5! of 2012, Sch 2(2), applicable for the Support pension in respect of days occurring on or after 1 July purposes of working out a person’s qualification for disability 2012.
SECTION 94F SPECIAL CIRCUMSTANCES
94F(1) A person is covered by a participation exemption for a period determined by the Secretary if:
(a) the Secretary is satisfied that special circumstances, beyond the person’s control, exist; and (b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to meet the participation requirements for that period. 94K(2) The period determined under subsection (1) must not exceed 13 weeks. 94F(3) A determination under subsection (1) is not a legislative instrument.
History
S 94F inserted by No 51 of 2012, Sch 2(2), applicable for the support pension in respect of days occurring on or after 1 Jul y purposes of working out a person’s qualification for disability 2012.
Australian Social Security Guide Sec 94F(3)
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[Next page is 87,641}
SECTION 95 QUALIFICATION FOR DISABILITY SUPPORT PENSION — |
PERMANENT BLINDNESS
93(1) A person is qualified for a disability support pension if: (a) the person is permanently blind; and (b) the person has turned 16; and {c) the person: (i) is an Australian resident at the time when the person first satisfies paragraph (a); or (ii) has 10 years qualifying Australian residence; or (iia) has a qualifying residence exemption for a disability support pension; or (ill) is born outside Australia and, at the time when the person first satisfies paragraph (a), 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
Note: for ‘Australian resident’? and “qualifying Australian residence’? see section 7. (d) 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(I);
(11) the person is absent from Australia and ail the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
History
S 95(1) substituted by No 141 of 1991, s 10; amended by No disability Support pension in respect of days occurring ou or
202 of 1997, 5 3, Sch 12(1)-(2); No 34 of 2011, Sch 2(4), after 1 July 2012.
commenced | July 2011, ~
S$ 95(1) amended by No 51 of 2012, Sch 3(4}-(6), applicable for the purposes of working out a person’s qualification for — Note inserted by No 141 of 1991, s 10.
95(2) Person not qualified in certain circumstances. A person is not qualified for a
History
S 95(2) substituted by No 141 of 1991, s 10; amended by No Note inserted by No 8t of 1992, s 116, Sch 1. 109 of 1994, s 19, Sch (4); No 1 of 1996, 5 3(1), Sch 2(76);
No 202 of 1997, s 3, Sch 15(21); No 45 of 1998, s 3 and Sch
9(286): No 173 of 2007, s 3, Sch 1(12), commenced 1 January 2008.
SECTION 96 CONTINUATION OF DISABILITY SUPPORT PENSION
96(1) This section applies to a person if: (a) the person is receiving disability support pension; and
Sec 95(1) CCH Australia Limited
PS? Ch 2— Pt 2.3 — Div 1 — Qualification for and payability of 87,641 disability support pension {Next page is 87,661]
(b) the person would, apart from this section, cease to be qualified for disability support pension because the person obtains paid work that is for:
(i) at least 15 hours per week; and (ii) not more than 30 hours per week.
96(2) A person to whom this section applies continues to be qualified for disability support pension.
History
§ 96 inserted by No 51 of 2012, Sch 1(1), commenced | July — For a transitional provision relevant to 51 of 2012, Sch 1(1),
2012. see CCH Note 8 at the beginning of this Act.
SECTION 97 DEPARTURE CERTIFICATE REQUIREMENTS APPLY
97 (Repealed by No 94 of 2000, s 3, Sch 1(3).)
SECTION 97A-97B
97A-97B (Repealed by No 141 of 1991, s 10.)
SECTION 97B REPEALED
97B (Repealed by No 141 of 1991, s 10.)
Subdivision B — Payability
SECTION 98 DISABILITY SUPPORT PENSION NOT PAYABLE If
PENSION RATE NIL.
98(1) [Effect of nif pension rate] Subject to subsection (2), a disability support pension is not payable to a person if the person’s disability support pension rate would be nil.
98(2) [Exceptions to subsection (1)] Subsection (1) does not apply to a person if the person’s rate would be nil merely because an election by the person under subsection 1061VA(1) is in force.
History
§ 98(2) substituted by No 60 of 2009, Sch 4(56), commenced —_§_98 substituted by No 192 of 1999, s 3, Sch 1(24). 20 September 2009; No 81 of 2009, Sch 4(82), commenced 20 September 2009.
SECTIONS 99-102
- 99-102 (Repealed by No 192 of 1999, s 3, Sch 1(24).)
‘ SECTION 103 MULTIPLE ENTITLEMENT EXCLUSION
103(1) [Person already receiving service pension] A disability support pension is not payable to a person if the person is already receiving a service pension.
\ Australian Social Security Guide Sec 1 03(1)