Social Security (Requirements and Guidelines for Disability Support Pension Active Participation) Determination 2026

The instrument centres on the concept of active participation in a program of support, as required for certain disability support pension claimants under the Social Security Act 1991. Section 8(1) provides that for subsection 94(3C) of the Act, a person has actively participated in a program of support if the person satisfies three main requirements: the person has complied with the requirements of the program of support and participated in a program of support during the relevant period; one of subsections (2), (3), (4) or (5) is satisfied in relation to the person and the program of support; and subsection (6) is satisfied in relation to the person and the program of support. Subsection 8(2) requires participation in the program of support for at least 18 months during the relevant period, with a note that a period during which a person does not participate is not to be counted, as further detailed in section 9. Subsection 8(3) applies where the duration of the program of support was less than 18 months and the person completed the entire program during the relevant period. Subsection 8(4) applies where the program of support was terminated before the end of the relevant period because the person was unable, solely because of their impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the program. Subsection 8(5) applies where, at the end of the relevant period, the person is participating in the program of support and is prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program. Subsection 8(6) requires the person to provide the Secretary with specific information including the details of the designated provider, the dates when the person started and if applicable ceased to participate, the reason for ceasing, any period of non participation including as a result of exemption relief or suspension, the reason for any such period, the terms of the program that were specifically tailored to address the person's level of impairment individual needs barriers to employment and capacity to work, the terms with which the person had to comply and the level of compliance, the vocational rehabilitation or employment activities participated in, and the frequency of contact with the designated provider. Section 9 states that for subsection 94(3C) of the Act, to avoid doubt, any period during which a person who has started a program of support does not participate for any reason, including as a result of any exemption relief or suspension, is not to be counted in determining the length of the period of participation for the purposes of section 8. Section 10 requires the Secretary, for subsection 94(3D) of the Act, to consider whether the program of support was provided by a designated provider, was specifically tailored to address the person's level of impairment individual needs and barriers to employment, provided vocational rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person's capacity to prepare for find or maintain work including self employed work, and includes at least one of the listed activities such as job search, job preparation, education and training, work experience, employment, return to work, vocational or occupational rehabilitation, injury management, or an activity designed to assist the person to prepare for find or maintain work. Section 11 requires the Secretary, for subsection 94(3D) of the Act, to take into account any relevant material or document that relates to the person's participation in a program of support and relates to a program of support participated in during the relevant period. The relevant period is defined in section 7 as 36 months ending immediately before the day on which the claim for disability support pension is made or taken to have been made, for a person other than a reviewed 2008-2011 DSP starter whose impairment is not a severe impairment. For a reviewed 2008-2011 DSP starter who is or was participating in a program of support at the relevant time, it is the period of 36 months starting on the day the person begins the program of support. For any other reviewed 2008-2011 DSP starter, it is the period of 36 months starting on the day the person is notified in writing that the person has become a reviewed 2008-2011 DSP starter. Designated providers include a Workforce Australia provider, an Inclusive Employment Australia provider, an Australian Disability Enterprise, or any other person who provides a program of support that is funded wholly or partly by the Commonwealth.

This instrument affects persons making claims for disability support pension under the Social Security Act 1991 where the person's impairment is not a severe impairment within the meaning of subsection 94(3B) of the Act, as such persons are required to have actively participated in a program of support within the meaning of subsection 94(3C) pursuant to paragraph 94(2)(aa) of the Act. It also affects reviewed 2008-2011 DSP starters, as defined in subsection 94(5) of the Act, who may have different relevant periods depending on their participation in a program of support at the time they become a reviewed 2008-2011 DSP starter or in the preceding 6 months. The Secretary is directly affected as the decision maker who must apply the requirements in section 8 and take into account the matters in sections 10 and 11 when determining whether a person has actively participated in a program of support. Designated providers, including Workforce Australia providers, Inclusive Employment Australia providers, Australian Disability Enterprises and other Commonwealth funded providers of programs of support, are affected because the program must be provided by such a provider under section 10(a) and the person must provide details of the designated provider under section 8(6)(a). Compliance professionals, accountants and lawyers advising on social security entitlements are affected when assisting clients with disability support pension claims, as they must ensure the detailed information requirements in section 8(6) are met and that participation satisfies one of the duration conditions in subsections 8(2) to (5). Journalists and researchers examining social security qualification criteria are affected through the public nature of the instrument and its role in the broader disability support pension framework under the Social Security Act 1991.

The instrument imposes duties on persons seeking to satisfy the active participation requirement for disability support pension. Under section 8(1)(a), a person must have complied with the requirements of the program of support and participated in a program of support during the relevant period. The person must also satisfy one of the period of participation conditions in subsections 8(2) to (5), such as participating for at least 18 months during the relevant period or completing the entire program if its duration was less than 18 months. Where the program is terminated or the person is prevented from continuing solely because of their impairment, the specific conditions in subsections 8(4) and (5) must be met. A key duty is to provide the Secretary with the comprehensive information listed in section 8(6), covering provider details, participation dates, reasons for ceasing or non participation periods, tailored terms addressing impairment and barriers, compliance levels, activities undertaken and frequency of contact. Section 9 reinforces the duty by excluding periods of non participation from the calculation of participation length. The Secretary has a duty under section 10 to consider specific attributes of the program of support, including whether it was provided by a designated provider, was tailored to the person's impairment needs and barriers, focused on developing work capacity skills including for self employed work, and included at least one of the enumerated activities such as job search or vocational rehabilitation. Under section 11, the Secretary must take into account any relevant material or document relating to the person's participation during the relevant period. Rights under the instrument include the entitlement for a person to have their participation assessed according to these specified requirements and guidelines rather than ad hoc criteria, with the Secretary required to consider the listed matters and materials. The instrument does not create standalone rights to a program of support but supports the qualification pathway in paragraph 94(2)(aa) of the Social Security Act 1991 for those without severe impairment.

This instrument does not itself specify penalties or enforcement mechanisms. Consequences for failing to meet the requirements arise under the Social Security Act 1991, where a person whose impairment is not a severe impairment must satisfy the active participation requirement in paragraph 94(2)(aa) to qualify for disability support pension. If the requirements in section 8 are not met, including the provision of information under subsection 8(6) or the participation duration conditions, the Secretary may determine that the person has not actively participated in a program of support, leading to ineligibility for the pension. Section 9's exclusion of non participation periods from the relevant period calculation supports enforcement of the minimum participation thresholds. The Secretary's obligations under sections 10 and 11 ensure that decisions are based on the prescribed matters and materials, which may be subject to review processes under the Social Security Act 1991 and the Administration Act. Designated providers are not subject to direct penalties under this instrument but must deliver programs that align with the attributes in section 10 for a person's participation to qualify. The repeal provision in section 5 and the replacement of the 2014 determination indicate that enforcement of the framework continues through successor instruments after 1 April 2028.

This instrument operates as a legislative instrument under subsections 94(3C) and (3E) of the Social Security Act 1991, directly implementing the active participation requirement in paragraph 94(2)(aa) for disability support pension qualification where impairment is not severe within the meaning of subsection 94(3B). It cross references the definition of program of support in subsection 94(5) of the Act and the definition of reviewed 2008-2011 DSP starter in the same subsection. The relevant period definitions in section 7 align with claim processes under the Social Security Act 1991, including provisions for claims taken to have been made. Section 27 of the Social Security Act 1991, which requires the Secretary to apply the instrument in force under section 26 on the day a claim for disability support pension is made when determining the claim, connects to this determination by providing the impairment assessment context within which the active participation requirement applies for non severe impairments. The instrument interacts with the Social Security Administration Act through claim and review provisions referenced in notes to section 27 of the Social Security Act 1991. It repeals the Social Security (Active Participation for Disability Support Pension) Determination 2014 in Schedule 1, ensuring continuity of the framework while updating the requirements and guidelines. Connections to other legislation, such as the National Disability Insurance Scheme Act 2013 sections 24 and 25 on disability and early intervention requirements, arise indirectly where programs of support may overlap with NDIS funded supports, but the determination remains focused on employment preparation under the Social Security Act 1991. The Federal Financial Relations Act 2009 section 13 on national specific purpose payments for disability services provides broader funding context but does not alter the qualification rules in this instrument.

The instrument represents a replacement of the Social Security (Active Participation for Disability Support Pension) Determination 2014, as explicitly stated in the simplified outline in section 6 and effected by the repeal in Schedule 1. It was made under subsections 94(3C) and (3E) of the Social Security Act 1991 and commences on the day after registration, with a built in repeal at the start of 1 April 2028 under section 5. The structure maintains the core requirements for active participation while specifying detailed information obligations in section 8(6) and mandatory considerations for the Secretary in sections 10 and 11. The relevant period definitions in section 7 provide tailored rules for reviewed 2008-2011 DSP starters, distinguishing cases where the person is or was participating in a program of support. Section 9 clarifies the treatment of non participation periods to avoid doubt in calculating participation length. These provisions update the previous determination by setting out explicit guidelines on program attributes and material to be considered, ensuring the Secretary's satisfaction under subsection 94(3D) of the Act is based on consistent criteria. The sunset clause in section 5 indicates the framework is intended for a defined period, after which a further instrument would be required to continue the requirements.

The source text does not name any court challenges or controversies relating to this instrument or its predecessor. The provisions in sections 8, 10 and 11 establish a structured assessment process for active participation, requiring evidence of compliance, tailored program elements and specific activities, which may give rise to disputes in individual cases under the review mechanisms of the Social Security Act 1991. For example, the strict condition in subsections 8(4) and (5) that termination or prevention from continued participation must be solely because of the person's impairment could be contested where multiple factors are present. The requirement in section 8(6) to provide detailed information on tailored terms, compliance levels, activities and contact frequency places an evidentiary burden on claimants, potentially leading to challenges where records are incomplete. Section 9's exclusion of non participation periods, even those resulting from exemptions or suspensions, may be relevant in reviews where a person claims the exclusion is unfair. The Secretary's mandatory considerations under section 10, including whether the program was provided by a designated provider and included at least one listed activity, provide clear benchmarks but could be subject to argument on whether a particular program meets the tailoring or focus requirements. The instrument's connection to the impairment tables under section 27 of the Social Security Act 1991 means that decisions on active participation often occur alongside impairment assessments, which may amplify review activity in the Administrative Review Tribunal as referenced in notes to that section.

A key gotcha is that under section 9, any period of non participation in the program of support, including those due to exemptions, relief or suspensions, is excluded from the calculation of the 18 month participation period required by subsection 8(2), meaning claimants must ensure continuous engagement to meet the threshold during the relevant period. The relevant period of 36 months is strictly defined in section 7 and varies for reviewed 2008-2011 DSP starters, requiring careful identification of the start date based on notification or program commencement to avoid miscalculating the window for participation. Subsection 8(6) imposes a comprehensive information provision duty, and failure to supply all nine categories of details, such as the specific terms tailored to impairment and barriers or the frequency of contact with the provider, means the requirement in subsection 8(1)(c) is not satisfied regardless of actual participation. The conditions in subsections 8(4) and (5) require proof that inability or prevention from improving work capacity is solely because of the impairment, which excludes cases where other factors contribute and demands strong supporting evidence from the designated provider. Section 10 requires the program to be provided by a designated provider and to include at least one of the nine listed activities, so participation in a non qualifying program, even if lengthy, will not satisfy the Secretary's considerations. The instrument's repeal on 1 April 2028 under section 5 means that participation after that date will be assessed under any successor instrument, creating a transition risk for ongoing programs. Claimants who are reviewed 2008-2011 DSP starters must check their specific relevant period rules in section 7 to ensure the 36 month window aligns with their notification or participation start date.

To comply, a person claiming disability support pension whose impairment is not severe must engage with a designated provider as defined in section 7, such as a Workforce Australia provider or Australian Disability Enterprise, and participate in a program of support that meets the attributes in section 10. This includes ensuring the program is tailored to the person's level of impairment, individual needs and barriers to employment, provides services focused on developing skills for work preparation including self employed work, and incorporates at least one activity from the list in section 10(d) such as job search, education and training or vocational rehabilitation. The person must comply with the program's requirements and participate for at least 18 months during the relevant period under subsection 8(2), or satisfy one of the alternative conditions in subsections 8(3) to (5) where the program is shorter, terminated or continuing but limited by impairment. All periods of non participation must be documented with reasons, as they are excluded under section 9. When making or supporting a claim, the person must provide the Secretary with the full set of information in section 8(6), including provider details, exact start and end dates, reasons for any cessation or absences, the tailored program terms, compliance levels, specific activities undertaken and contact frequency. Retain all relevant material and documents relating to participation during the relevant period, as the Secretary must take these into account under section 11. Lawyers and compliance professionals should prepare a comprehensive submission package addressing each element of section 8(6) and section 10, cross referencing the claim date to confirm the relevant period under section 7. Designated providers should design programs to explicitly address the tailoring and activity requirements in section 10 and supply detailed records to support client compliance. For reviewed 2008-2011 DSP starters, verify the applicable relevant period based on participation status at the time of becoming a reviewed starter. Monitor the instrument's sunset on 1 April 2028 to ensure ongoing participation aligns with any replacement determination.