94Qualification for disability support pension

#### 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. > 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. > Note 3: A person receiving disability support pension, and who receives employment services from a remote engagement program provider, may also qualify for a remote engagement program payment: see Part 2.13. Continuing inability to work (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. > Note: For work see subsection (5). (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. (3A) If: (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; and (c) the person is not a reviewed 2008‑2011 DSP starter; then paragraph (2)(aa) of this section does not apply in relation to that assessment. Severe impairment (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. > Note: 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 points under another Impairment Table. The person has a severe impairment. > Note: Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment. > Note: Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment. Active participation in a program of support (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. (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). (3E) The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D). Doing work independently of a program of support (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. Other definitions (5) In this section: > 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. > reviewed 2008‑2011 DSP starter means a person for whom all the following conditions are met: (a) the person made (or is taken to have made) a claim for disability support pension before 3 September 2011; (b) a determination granting the claim took effect after 2007; (c) on or after 1 July 2014 the person was given a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension; (d) when the notice was given, the person was under 35 years of age; (e) before the notice was given, either: (i) there was a record that the Secretary was satisfied that the person was able to do work that was for at least 8 hours per week on wages at or above the relevant minimum wage and that existed in Australia, even if not within the person’s locally accessible labour market; or (ii) there was no record that the Secretary had considered whether the person was able to do work described in subparagraph (i); (f) after the notice was given, the Secretary decided not to determine under section 80 of the Administration Act that the disability support pension for the person is to be cancelled; (g) as a result of the assessment involving the notice, the Secretary is satisfied that the person: (i) does not have a severe impairment within the meaning of subsection (3B); and (ii) 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; (h) the person does not have a dependent child under 6 years of age. > Note 1: Section 63 of the Administration Act lets the Secretary notify a person that the person must give information to the Secretary or undergo a medical, psychiatric or psychological examination and give the Secretary a report on the examination. > Note 2: Section 80 of the Administration Act lets the Secretary determine that disability support pension paid to a person is to be cancelled if the person is not or was not qualified for the pension, or if the pension is not or was not payable to the person (which may apply because the person did not comply with the notice under section 63 of that Act). > 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. Person not qualified in certain circumstances (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 with a view to obtaining an exemption, because of the person’s incapacity, from: (a) the requirement to satisfy the activity test for the purposes of austudy payment; or (b) undertaking full‑time study (see section 541B); or (c) the requirement to satisfy the employment pathway plan requirements for the purposes of jobseeker payment or youth allowance.