NDIA Accountability Project

Qualification for disability support pension

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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: (a) the person has a physical, intellectual or sychiatric 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 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 d (a) in acase where the following apply: (i) the person is under 35 years of age; (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;

Section 94

Subsection (1)

(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.

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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).

Social Security Act

Active participation in a program of support

Section 94(3C)

A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

History

§ 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).

Section 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).

Section 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

Section 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).

Section 94(4A)

(Repealed by No 38 of 2010, s 3, Sch 7(27), commenced 14 April 2010.)

Section 94(4B)

(Repealed by No 38 of 2010, s 3, Sch 7(27), commenced 14 April 2010.)

Other definitions

Section 94(5)

In this section:

  • [educational 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 2006. 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

Ch 2— Pt 2.3 — Div 1 — Qualification for and payability of

(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 of 2005, 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, s 116, Sch 1. 109 of 1994, s 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;

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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.

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;
  • (b) the person has turned 16;
  • (c) the person:
    • (i) is an Australian resident at the time when the person first satisfies paragraph (a);
    • (ii) has 10 years qualifying Australian residence;
    • (iia) has a qualifying residence exemption for a disability support pension;
    • (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 all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

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(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)