The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

1.1.I.95 Independently of a program of support

What is a program of support, in determining whether a person is working independently of it?

For the purpose of determining whether a person meets the CITW (1.1.C.330) requirements for DSP in SSAct section 94(2)(a) and (b) it needs to be determined whether the person is able to work independently of a program of support. For the purpose of this determination, program of support means a program that meets the definition in SSAct section 94(5) that is:

  • the program is designed to help people to prepare for, find or maintain work, and either
    • the program is wholly or partly funded by the Commonwealth Government which is designed to assist people to prepare for, find or maintain work, or
    • the program is considered by the (delegate of the) Secretary to be similar to a program that is wholly or partly funded by the Commonwealth Government.

Explanation: The definition of a POS for the purpose of determining whether a person whose program started on or after 5 January 2015 has actively participated in a POS is narrower than the above definition. For such determinations, only programs wholly or partly funded by the Commonwealth are considered to be programs of support. For these determinations, a program that is similar to a POS that is funded (wholly or partly) by the Commonwealth is NOT considered to be a POS.

When is a person working independently of a program of support?

Working independently of a program of support means a person is able to work reliably for 15 or more hours per week in the open labour market on wages that are at or above the relevant minimum wage without requiring regular and ongoing assistance that is significant, either in hours or intensity, to maintain the employment.

A person is treated as doing work independently of a program of support if the person:

  • is unlikely to need a program of support to do the work
  • is likely to need a program of support occasionally to address support needs that are sporadic, episodic or irregular in nature, or
  • is likely to need a program of support but the provision of the support is not ongoing.

Example: A person working 15 or more hours per week in the open labour market while receiving moderate or high level ongoing support from an ESS provider is not considered to be working independently of a program of support because the person requires significant and regular assistance over the long-term to maintain their employment.

Example: A person working 15 hours or more per week in the open labour market while receiving flexible ongoing support from a DES provider is considered to be working independently of a program of support because the person requires occasional support provided intermittently on an as needs basis to maintain their employment.

Act reference: SSAct section 94(4) A person is treated as doing work independently of a program of support …

Policy reference: SS Guide 3.6.2.112 Assessment of continuing inability to work - 15 hour rule

What is occasional support?

Occasional support is support provided intermittently to a person with a disability on an as needs basis. Support is generally considered occasional if it is provided less than fortnightly, a maximum of 6 times in any 26-week period.

Example: Flexible ongoing support provided by a DES is support which is occasional, as it is provided on a sporadic, episodic or irregular basis.

What is ongoing support?

Ongoing support is support provided to a person with a disability which is expected to be required by the person long-term. Support is generally considered to be ongoing if it is required beyond an initial 26-week period of post placement support provided to a person after commencement in employment.

Example: Moderate or high ongoing support provided by a DES is support that is ongoing.

What is support that is not ongoing?

Support is not ongoing if it is expected to be required by a person with a disability only in the short-term. Support is generally considered to be non-ongoing if it is provided for a maximum of 26 weeks after a person commences employment.

Example: Six months post placement support provided by a DES is support that is not ongoing.

DES

DES provides support and assistance to people with disability, injury or health conditions to help them prepare for, find and keep a job.

DES provides 2 support services:

  • Disability Management Service, and
  • Employment Support Service.

DMS provides services to people with temporary or permanent disability, injury or health conditions who are expected to require support that is occasional or not ongoing to maintain employment in the open labour market.

ESS provides services to people with a permanent disability who are expected to require ongoing support to maintain employment in the open labour market. Support under the ESS is provided at 3 levels:

  • High - regular and ongoing support which is significant in hours and/or intensity, provided on average on a weekly basis.
  • Moderate - regular and ongoing support which is relatively significant in hours and/or intensity, provided on average on a fortnightly basis.
  • Flexible - sporadic or episodic support as required, up to 6 instances within a 26-week period.

A DSP recipient will continue to demonstrate a CITW while requiring and receiving high or moderate support from an ESS. Recipients receiving flexible support from either a DMS or an ESS will be considered to be working independently of a program of support and subject to the work test.

Recipients who require work based personal assistance in employment are considered to have support requirements and they will continue to demonstrate a CITW for as long as this assistance is being purchased or provided. In some instances this may be provided after a DES program has ceased.

Supported wage system

A recipient who participates in SWS does not have to demonstrate a CITW. SWS is an Australian Government program designed to address barriers to employment in the open workforce faced by people with disability whose productivity and employment competitiveness are reduced because of their disability. Employees under SWS are paid a proportion of a full wage based on their productivity.

Supported wages are employment income (1.1.E.102) and any available working credits will be used to offset this employment income under the income test.

Australian Disability Enterprises (ADE)

DSP recipients working in an ADE are generally accepted as being unable to work independently of a program of support while they remain in an ADE. There is no time limit on the duration of their involvement in an ADE.

Recipients working with assistance from an ADE are not paid at or above the relevant minimum wage, so the hours worked are not subject to the work test.

CDP

A recipient's participation in CDP (former RJCP) activities is usually on a part-time basis. In considering whether a recipient continues to qualify for DSP it is necessary to determine how closely the activities performed by the recipient resemble open employment conditions, and therefore whether the recipient is capable of work in open employment for at least 15 hours (or 30 hours for grandfathered recipients) each week.

Delegates need to:

  • obtain information about the activities being undertaken, AND
  • take account of any modification to the activities made in order to accommodate the recipient's disability, AND
  • consider the recipient's level and type of participation in the program, not just the number of hours involved each week.

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