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

Rules for determining CITW

The following rules apply when determining whether a person who is subject to the 15 hour rule has a CITW:

  • For a person who makes or is taken to have made their claim 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 (1.1.S.127) or has actively participated in a POS (1.1.A.30). If the person has a severe impairment or where the person does not have a severe impairment but meets the POS requirements, they will also be required to meet the other CITW criteria of being unable to work and being unable to be retrained for work in the next 2 years.
  • For a person whose DSP start day is on or after 1 July 2006 but before 3 September 2011 AND the person IS NOT a reviewed 2008-2011 DSP starter, the delegate will only need to establish whether the person is unable to work and is unable to be retrained for work in the next 2 years (1.1.C.330). This is because the POS requirements do not apply to this person.
  • For a person who is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a POS, the delegate will need to establish, among other things, whether the person has actively participated in a POS. If the person meets the POS requirements, they will also be required to meet the other CITW requirements of being unable to work and being unable to be retrained for work in the next 2 years.

Explanation: The DSP recipients who at review (first review) become reviewed 2008-2011 DSP starters continue to receive their DSP but are required to participate in a POS. When these recipients are next reviewed (subsequent review), they will need to demonstrate that they have actively participated in a POS. At his subsequent review, they will also be assessed against the other CITW requirements of being unable to work/being unable to be retrained for work.

Assessing active participation in a POS

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 in a POS during the relevant period applying to the person.

There are different relevant periods applying to different categories of people.

For a person who claims or is taken to have made a DSP claim on or after 3 September 2011 and is assessed as not having a severe impairment, the relevant period is the period of 36 months ending immediately before the date of claim.

For a person who is a reviewed 2008-2011 DSP starter who:

  • is participating in a POS at the time the person becomes a reviewed 2008-2011 DSP starter, or
  • was participating in a POS at any time during 6 months before they become a reviewed 2008-2011 DSP starter,

relevant period means the period of 36 months starting on the day the person commenced that POS.

For all other reviewed 2008-2011 DSP starters, relevant period means the period of 36 months starting on the day the person is notified of becoming a reviewed 2008-2011 DSP starter.

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, e.g. contact requirements with their designated provider (1.1.D.115), a number of minimum activities they should complete, types of activities, etc.

Duration of a program alone will not determine active participation. A job capacity assessor (an assessor) will assess if a person meets ALL the requirements of active participation in a POS.

Generally, a person will be required to have participated in the POS for at least 18 months during the relevant period applying to the person. A person will not be required to have participated for 18 months if:

  • the duration of the POS was less than 18 months and the person completed the entire program during the applicable relevant period, or
  • the POS was terminated before the end of the applicable relevant period because the person was unable, solely because of their impairment, to improve their capacity to prepare for, find or remain in employment through continued participation in the program, or
  • at the end of the relevant period applicable to the person, the person is participating in the program but is prevented, solely because of their impairment, from improving their capacity to prepare for, find or remain in employment through continued participation in the program.

Periods in which the person is disengaged from a program FOR ANY REASON, including but not limited to non-compliance with the program requirements or because they have an exemption, 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 1: 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.

Example 2: Mary is a DSP recipient whose impairment and work capacity qualifications were initially reviewed on 6 January 2015. As a result of this review Mary became a reviewed 2008-2011 DSP starter. At the time of the initial review Mary was not participating in a POS, nor was she participating in a POS at any time during 6 months before she became a reviewed 2008-2011 DSP starter. On 13 January 2015 Mary was given a notice informing her she became a reviewed 2008-2011 DSP starter. The notice also informed her that her DSP would continue but she would need to engage in a POS, and provided her with the information about POS providers appropriate to her circumstances. When Mary is next reviewed, it is determined that she was connected to her DES provider for 22 months during the applicable relevant period but had a number of medical and other exemptions from the program, totalling 4 months. She was also suspended and exited from the program due to non-compliance for another 2 months in total. As these periods do not count towards active participation, it is established that Mary has accumulated 16 months of participation in her POS within the applicable relevant period. Mary has not actively participated in a POS.

Example 3: 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 jobactive (former JSA) provider. He had a tailored Job Plan with his provider. Peter has met all the requirements of his Job Plan, including undertaking all activities and maintaining regular contact with his provider for the full 18 months. Peter has actively participated in a POS.

Example 4: Judith lives in a remote region and has been undertaking employment and participation activities with the CDP (former Remote Jobs and Communities Programme (RJCP)) provider in her area. She lodges a claim for DSP and is assessed as not having a severe impairment. The available evidence shows that Judith has undertaken 18 months of employment and participation activities with her provider. She had a tailored participation plan with her provider, undertook all of the activities that were included in her plan, and attended regular meetings with her provider to discuss her progress and review activities. Judith has actively participated in a POS.

Example 5: 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.

Example 6: Charlie is a DSP recipient whose impairment and work capacity qualifications were initially reviewed on 9 January 2015. The review determined that Charlie met all the conditions for a reviewed 2008-2011 DSP starter. At the time of the initial review Charlie was not participating in a POS. It was also established he was not participating in a POS at any time during 6 months before he became a reviewed 2008-2011 DSP starter. Charlie's DSP was continued and on 14 January 2015 he was issued a notice that he became a reviewed 2008-2011 DSP starter. He was also referred to a DES provider. When Charlie is reviewed next, this subsequent review determines that Charlie has complied with all the requirements of his program and accumulated more than 18 months of participation in the program within the applicable relevant period. Charlie has actively participated in a POS.

Act reference: SSAct section 94(2) A person has a continuing inability to work…

Policy reference: SS Guide 3.6.1.12 Qualification for DSP - 15 Hour Rule, 6.2.5.03 Application of DSP Qualification Rules at Review

Other factors to consider in determining CITW

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 CITW

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…

Allowing DSP recipients to work less than 30 hours

From 1 July 2012 DSP recipients continue to receive DSP if they obtain paid work of at least 15 and less than 30 hours a week. Prior to 1 July 2012 DSP recipients granted on or after 1 July 2006 and transitional DSP recipients (i.e. those granted between 11 May 2006 and 30 June 2006) whose DSP was reviewed between 1 July 2006 and 30 June 2012 had their payments suspended or cancelled when working 15 hours a week or more.

A person who is receiving DSP may continue to be qualified for DSP if they obtain paid work of 15 hours a week and less than 30 hours a week. People who are working are subject to means test rules.

This does not change the definition of 'work' for the purpose of assessing a person's CITW for new claims for DSP, i.e. to qualify for DSP a person must, among other things, be unable to work for at least 15 hours a week.

The 'continuation of DSP while working' rule applies to a person who has qualified for DSP and, subsequently takes up work or increases their hours of work while receiving DSP.

Suspension rules will apply if the recipient works for 30 hours a week or more. In these cases, the recipient may retain their PCC for the first 12 months of the suspension period.

The intent of this rule is to allow people to further test their ability to take on more work while maintaining the safety net of the DSP payments.

Act reference: SSAct section 96 Continuation of DSP

SS(Admin)Act section 96(1) DSP-suspension instead of cancellation under section 93, section 97(1) DSP-suspension taken to have been under section 96

Policy reference: SS Guide 1.1.W.60 Work (any) (DSP), 3.6.1.100 Continuation, Variation or Termination of DSP, 3.9.2.30 PCC due to Employment

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)-'training activity'

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)-'training activity'

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

Last reviewed: 9 November 2015