3.6.2.112 DSP Assessment of Continuing Inability to Work - 15 Hour Rule

Topic applies to

This topic applies to people who are subject to the 15 hour rule for DSP qualification (3.6.1.12).

For information about CITW assessment for people who are subject to the 30 hour rule, see 3.6.2.110.

Policy reference: SS Guide 3.6.1.12 Qualification for DSP - 15 Hour Rule, 3.6.1.10 Qualification for DSP - 30 Hour Rule

Overview

To have a CITW (1.1.C.330) a person must meet the criteria applicable to their individual circumstances.

Impairment rating & CITW

To qualify for DSP a person must have an impairment rating of at least 20 points and have a CITW. Both aspects are of equal importance.

Explanation: People who have an impairment rating of 20 points or more, including those with severe impairments, are not necessarily incapable of working. Their medical impairment(s) may cause difficulties in many work situations, but depending on their individual circumstances, coping mechanisms, training, and reasonable adjustments, they may be able to undertake work of 15 hours or more per week, within the next 2 years.

Act reference: SSAct section 94 Qualification for DSP

Policy reference: SS Guide 3.6.1.12 Qualification for DSP - 15 Hour Rule

Severe impairment & active participation in a program of support (POS) (1.1.P.440)

When determining whether a person has a CITW for new claims made, or taken to have been made, on or after 3 September 2011, the delegate (of the Secretary) will need to establish, among other things, whether the person has a severe impairment or has actively participated in a POS (1.1.A.30).

In deciding whether a person has actively participated in a POS, the delegate (of the Secretary) will use a range of evidence (3.6.2.10) to determine whether the person:

• complied with the program requirements, and
• participated for at least 18 months in the last 3 years (exceptions are outlined below).

Generally, a person who has actively participated in a POS will have had a plan developed which details requirements with which a person had to comply, for example, contact requirements with their designated provider (1.1.D.115), a number of minimum activities they should complete, types of activities, etc.

Duration alone will not determine active participation. A job capacity assessor (an assessor) will determine if a person has complied with the requirements of their POS.

Generally, a person will be required to have participated for 18 months within the 36 months immediately prior to claiming DSP. Periods in which the person is disengaged from a program due to non-compliance with the program requirements, exemption or relief are not regarded as, and do not count towards, active participation. Any such periods will reduce the time counted as active participation for any POS the person has undertaken, however, this does not mean the whole program is to be disregarded.

Example: George lodges a claim for DSP and is assessed as not having a severe impairment. He is therefore required to demonstrate he has actively participated in a POS. The available material shows George has received 18 months of employment assistance from his DES provider in the last 3 years. However, while in the program he was exempted from participating for a period of 3 months and suspended from the program for another 4 months. George's total active participation period in that program does not include periods of inactivity such as exemptions or suspensions and he is assessed as having actively participated in a POS for a total of 11 months.

A person will not be required to have participated for 18 months if they:

• completed a program that was less than 18 months duration, or
• participated in a program that was terminated because they were unable, solely because of their impairment, to improve their capacity to find, gain or remain in employment through continued participation in the program, or
• are participating in the program but are prevented, solely because of their impairment, from improving their capacity to find, gain or remain in employment through continued participation in the program.

Example 1: Peter applies for DSP and is assessed as not having a severe impairment. The available material shows that he has completed 18 months of employment assistance with a JSA provider. He had a tailored EPP with his provider. Peter has met all the requirements of his EPP, including undertaking all activities and maintaining regular contact with his provider for the full 18 months. Peter has actively participated in a POS.

Example 2: Charlie had completed a return to work program as part of a workers compensation claim and applied for DSP 2 years after completing the program. The program duration was for 12 months in total. He does not have a severe impairment. Charlie lodged with his claim a copy of his rehabilitation plan and other documents which provided details of his participation, confirmed he complied with the program requirements and completed the program. Charlie has actively participated in a POS.

Example 3: Sarah was referred to a DES and has been attempting to meet all the requirements of the program for the past 6 months; however she has recently been diagnosed with a degenerative condition. Sarah provides new medical evidence that demonstrates she will be unable to improve her work capacity through continued participation in the program. She also provides material which confirms her participation to date. Sarah has actively participated in a POS.

Act reference: SSAct section 94(2) Qualification for DSP-continuing inability to work

Policy reference: SS Guide 3.6.1.12 Qualification for DSP - 15 Hour Rule

Other factors to consider in determining inability to work

The following factors are also considered when determining whether a person has a CITW:

• physical and intellectual characteristics which would be required to perform any work,
• the impact of a person's impairment(s) on their ability to demonstrate those characteristics, currently and within the next 2 years,
• the impact of a person's impairment(s) on their ability to:
  • regularly report to work,
  • persist at work tasks,
  • understand and follow work instructions,
  • communicate with others in the workplace,
  • travel to/from work,
  • move around at work,
  • attend to their personal care needs in the workplace,
  • manipulate objects at work,
  • exhibit appropriate behaviour at work,
  • undertake a variety of tasks and to alternate between tasks,
  • lift, carry and move objects at work,
• whether a person requires a moderate to high level of ongoing assistance to maintain the employment,
• the impact of a person's impairment(s) on their ability to undertake training activities (including mainstream training programs and programs designed specifically for people with physical, intellectual or psychiatric impairments),
• whether such training is likely to enable the person to do any work within the next 2 years.

Example 1: Max has an intellectual disability. He is assessed as having a severe impairment. He is capable of working for 15 hours per week, with ongoing weekly support from an ESS provider. He has difficulty understanding new tasks and requires constant supervision. He would not be able to maintain his employment without this support. Max has a CITW.

Example 2: Cherie does not have a severe impairment and has never participated in a POS. She has arthritis and is not able to stand for long periods of time. However, her JCA report states that if she can sit down most of the time and is not required to perform heavy manual tasks, she is otherwise able to understand direction, complete work and exhibit appropriate behaviour. The report concludes that she is able to work about 20 hours per week in a position in an area such as office administration, research or a call centre. Cherie is referred to an employment service for assistance. Cherie does not have a CITW.

Factors to disregard in determining inability to work

The following factors are not considered when determining whether a person has a CITW:

• the availability of the person's usual work in the locally accessible labour market (1.1.L.70),
• the availability of any work the person could do or be trained for, within the locally accessible labour market,
• the availability to the person of a training activity (1.1.T.137) that would assist in developing work skills,
• the availability to the person of any kind of transport (public or private) to travel to and from work,
• the person's motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment, e.g. psychiatric disability,
• difficulties with literacy, numeracy or language which are not directly attributable to a medical condition,
• the person's preferences regarding the type of work or training,
• the person's potential attractiveness to an employer in a particular area of work, and
• employer preferences and discriminatory practices that may exist in the open labour market.

Example 1: Lesley has a leg injury. He is assessed as having a severe impairment and as unable to work in his usual occupation as a labourer and perform any other work that requires heavy manual tasks. His JCA report also indicates that he is able to be retrained for work which does not require heavy manual tasks, such as clerical work, data entry, office administration or telemarketing. However, Lesley is unwilling to try alternative work or undertake training, as he has limited computer skills and no work experience in other industries. Lesley does not have a CITW as he has the ability to undertake training which could equip him with skills to work for 15 hours per week or more.

Example 2: William has a back condition which limits his movement and causes some pain. His JCA report indicates he cannot lift heavy objects or move freely but could undertake work which enables him to sit most of the time, such as administration work. The report also confirms William has actively participated in a POS that strengthened his administrative skills but was unable to find work in this area in his town. This is because the town in which William lives has a large manufacturing industry and vacancies for other jobs which do not require manual handling are rarely available. William does not have a CITW, as there is work that exists elsewhere within Australia which he could do despite it not being available in the town where he lives.

Act reference: SSAct section 94(3) In deciding whether or not a person has a continuing inability to work...

Potential for education or vocational training if the person is unable to work

The assessment of a person's ability to undertake a training activity is part of the assessment of whether they have a CITW. If the delegate determines that a person is unable to do their usual work, or work for which they are currently skilled, the impact of the person's impairment(s) on their ability to undertake a training activity will be considered.

A person may satisfy the CITW criteria for DSP qualification if they are unable to participate in a training activity within the next 2 years because of their impairment(s). A person may also satisfy the CITW criteria if they are able to undertake a training activity, but such an activity is unlikely, because of their impairment(s), to enable them to work within the next 2 years.

Act reference: SSAct section 94(2)(b) In all cases - either: the impairment is of itself insufficient..., section 94(5) In this section: training activity means...

Policy reference: SS Guide 1.1.T.137 Training activity (DSP)

Factors to consider in determining ability to undertake training

The following factors are considered when determining whether a person can undertake or benefit from undertaking training:

• whether the nature of the person's impairment(s) would prohibit them from undertaking training,
• whether the training is likely to equip the person with the necessary skills to undertake work of 15 hours or more per week,
• the length of time it would usually take to complete the training, and
• the nature of the training being dependent on the type of work the claimant is potentially capable of performing.

Example: Morgan has a leg injury which causes pain and affects her mobility. She had previously worked as an electrician but can no longer perform this work due to her injury. She is able to perform work which can be done from a sitting position, such as office administration. Morgan is able to attend training courses which can provide her with computer and payroll skills and enable her to return to work of 15 hours or more per week.

These training courses are generally short, taking less than 2 years to complete and Morgan's leg injury does not prevent her from undertaking them. Morgan does not have a CITW.

Factors to disregard in determining ability to undertake training

The following factors are not considered when determining whether a person can undertake or benefit from undertaking training:

• the availability of suitable training in the local area,
• the availability of suitable work in the locally accessible labour market following completion of the training,
• the person's level of motivation to undertake training, or
• the person's potential attractiveness to an employer.

Act reference: SSAct section 94(2) A person has a continuing inability to work..., section 94(3) In deciding whether or not a person has a continuing inability to work..., section 94(5) In this section: training activity means...

Existing students

If the person has been participating in a mainstream training course and intends to continue their course without modification, this will be considered in determining whether the person has a CITW.

It is unlikely that a person participating in a mainstream, unmodified course for 15 hours or more per week would have a CITW. This is because the activities required for mainstream study are generally equivalent to those required to do work.

If a person is undertaking a modified course of study, the following factors will be considered in determining whether the person has a CITW:

• the person's study-load (including the number of contact hours to attend lectures, practicals and tutorials and the number of hours of private study),
• the method of study (for example, on-campus or via correspondence), and
• whether the person could participate in alternative training activities if their current course of study is unlikely to enable them to work within the next 2 years.

Policy reference: SS Guide 3.6.1.42 Qualification for DSP during Study or Training, 3.6.1.12 Qualification for DSP - 15 Hour Rule

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Last reviewed: 3 January 2012