SSAct s94. Qualification for disability support pension-continuing inability to work

SSAct Contents Title Page Reader's Guide Chapter 1 - Introductory Chapter 2 - Pensions, Benefits and Allowances Chapter 2A - Benefits and concessions other than payments Chapter 2B - Student financial supplement scheme Chapter 2C - Assurances of support Chapter 3 - General provisions relating to payability and rates Chapter 4 - International agreements and portability Chapter 5 - Overpayments and debt recovery Schedules NOTES Section Index Definition Index

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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 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 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

(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

(f): the person is not qualified for disability support pension under section 94A.

Note 1: For 'Australian resident', 'qualifying Australian residence' and 'qualifying residence exemption' see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

History

S.94(1)(e)(i) amended by Act No. 229, 1992, by s.153 as set out in Part 1 of Schedule 3;

S.94(1)(e)(iii) amended by Act No. 229, 1992, by s.153 as set out in Part 1 of Schedule 3;

S.94(1)(e)(ii) amended by Act No. 161, 1994, by s.4 as set out in Schedule 2;

S.94(1) (Note 1) amended by Act No. 161, 1994, by s.4 as set out in Schedule 2;

S.94(1)(c) amended by Act No. 104, 1995 by s.4 as set out in Schedule 4;

S.94(1) (Note 2) omitted and substituted by Act No. 104, 1995, by s.4 as set out in Part 7 of Schedule 19;

S.94(1)(c) repealed and substituted by Act No. 202, 1997, s.3, Schedule 15(16);

S.94(1)(c)(ii) amended by Act No. 202, 1997, s.3, Schedule 15(17);

S.94(1)(c)(iii) repealed by Act No. 202, 1997, s.3, Schedule 15(18);

S.94(1)(b) amended by Act No. 202, 1997, s.3, Schedule 16(1);

S.94(1)(f) inserted by Act No. 154, 2005, by s.3, Schedule 2, Part 1(1);

94.(1A) Repealed by Act No. 202, 1997, s.3, Schedule 15(19).

History

S.94(1A) inserted by Act No. 109, 1994, by s.5;

S.94(1A) amended by Act No. 202, 1997, s.3, Schedule 14(1);

S.94(1A) repealed by Act No. 202, 1997, s.3, Schedule 15(19);

94.(1B) Repealed by Act No. 202, 1997, s.3, Schedule 15(19).

History

S.94(1B) inserted by Act No. 109, 1994, by s.5;

S.94(1B)(e) amended by Act No. 104, 1995 by s.4 as set out in Schedule 4;

S.94(1B) repealed by Act No. 202, 1997, s.3, Schedule 15(19);

94.(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a): 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): 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.

Note: For work see subsection (5).

History

S.94(2) repealed and substituted by Act No. 154, 2005, by s.3, Schedule 2, Part 1(2);

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) omitted and substituted by Act No. 104, 1995 by s.4 as set out in Schedule 4;

S.94(3)(a) amended by Act No. 154, 2005, by s.3, Schedule 2, Part 1(3);

S.94(3)(b) amended by Act No. 154, 2005, by s.3, Schedule 2, Part 1(4);

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 that:

(i): is designed to assist the person to prepare for, find or maintain work; and

(ii): is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b): is likely to need such a program of support provided occasionally; or

(c): is likely to need such a program of support that is not ongoing.

History

S.94(4) repealed and substituted by Act No. 154, 2005, by s.3, Schedule 2, Part 1(5);

94.(4A) The Secretary must comply with the guidelines (if any) determined and in force under subsection (4B) in deciding the following:

(a): whether paragraph (1)(b) applies to a person;

(b): whether the Secretary is satisfied as mentioned in subsection (2) or (4).

History

S.94(4A) inserted by Act No. 173, 2007, by s.3, Schedule 1(8);

94.(4B) The Minister may, by legislative instrument, determine guidelines to be complied with by the Secretary in making a decision referred to in subsection (4A).

History

S.94(4B) amended by Act No. 173, 2007, by s.3, Schedule 1(8);

94.(5) In this section:

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).

"work" means work:

(a): that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b): that exists in Australia, even if not within the person's locally accessible labour market.

History

S.94(5) amended by Act No. 104, 1995 by s.4 as set out in Schedule 4;

educational or vocational training repealed by Act No. 154, 2005, by s.3, Schedule 2, Part 1(6);

on‑the‑job training repealed by Act No. 154, 2005, by s.3, Schedule 2, Part 1(7);

training activity inserted by Act No. 154, 2005, by s.3, Schedule 2, Part 1(8);

work (paragraph (a)) repealed and substituted by Select Legislative Instrument 2006 No. 50, by s.3, Schedule 12(2);

work (paragraph (a)) amended by Act No. 154, 2005, by s.3, Schedule 2, Part 1(9);

94.(6) Person not qualified in certain circumstances

94.(6) 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) (Note) inserted by Act No. 81, 1992, by s.116 as set out in Schedule 1;

S.94(6) amended by Act No. 109, 1994, by s.19 as set out in Schedule 1;

S.94(6) amended by Act No. 1, 1996, by s.3(1) as set out in Part 4 of Schedule 2;

S.94(6) amended by Act No. 202, 1997, s.3, Schedule 15(20);

S.94(6) amended by Act No. 45, 1998, by s.3, Schedule 9, Part 24(286);

S.94(6) (Note) repealed by Act No. 173, 2007, by s.3, Schedule 1(9);

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