126.96.36.199 DSP claimants with less than 10 years residence
Qualifying residence exemption
A person with a QRE (1.1.Q.35) satisfies the residential qualification for DSP. For DSP purposes, this category includes people who reside in Australia and are refugees or former refugees. DSP claimants with a qualifying residence exemption do not require 10 years residence in Australia and it does not matter where their CITW occurred.
Continuing inability to work arose after arrival in Australia
A person with less than 10 years Australian residence may qualify for DSP if the person's CITW (1.1.C.330) arose AFTER their arrival in Australia. If their CITW arose before their arrival in Australia, the person cannot qualify until they have accumulated 10 years of qualifying residence in Australia. A person's CITW generally arises at the time of the incapacitating illness or accident regardless of the age of the person when this occurred. For claimants with severe congenital abnormalities CITW occurred at birth.
Act reference: SSAct section 7(2) Australian resident, section 7(6) Qualifying residence exemption
Factors to consider
The main issue to consider is whether the person had a CITW when they became an Australian resident. The following factors are relevant:
- whether the person had a CITW when they arrived in Australia,
- the nature and severity of the person's impairment at the time of their arrival in Australia,
- whether there has been an improvement or deterioration in the impairment/s since arrival,
- the person's work history before and after arrival,
- whether the type of work performed before arrival, or similar work, exists at award wages in the Australian labour market, AND
- whether the person had the skills or physical ability to perform work, at the time of arrival (see explanation).
Explanation: The fact that a person could undertake work in their country of origin but could not work after arrival in Australia, is not conclusive proof that the CITW arose after arrival.
Claimants under 16 years arriving in Australia
A person cannot be considered to have met the CITW requirements in Australia, merely because the person was not of working age at the time they arrived in Australia.
The delegate must consider:
- the nature of the person's medical condition (1.1.M.90) at the time they became an Australian resident, AND
- whether the person had a CITW at that time.
The person's ability to undertake mainstream schooling in Australia may be an indication of when the CITW occurred. For claimants with severe congenital abnormalities, CITW occurred at birth, regardless of when the disability is diagnosed.
Example: A person who arrived in Australia as a profoundly disabled child either with their parents or as part of an overseas adoption program would not normally qualify for DSP until they had attained 10 years qualifying residence unless the person has a QRE.
Policy reference: SS Guide 188.8.131.52 Qualification for DSP - 30 hour rule, 184.108.40.206 Qualification for DSP - 15 hour rule, 220.127.116.11 DSP assessment of continuing inability to work - 30 hour rule, 18.104.22.168 DSP assessment of continuing inability to work - 15 hour rule, Part 10 Australian Social Security Agreements