3.11.5.10 Temporary incapacity

Introduction

Social security law provides for a temporary incapacity exemption from mutual obligation requirements for any job seeker who has an inability to work for 8 hours or more per week due to a medical condition, which is supported by medical evidence and who is also unable to undertake another appropriate activity for 8 hours or more a week.

To apply for a temporary incapacity exemption, a job seeker must provide the delegate (generally Services Australia) with an approved medical certificate that is signed by a medical practitioner and states the medical practitioner's diagnosis and prognosis, that the person is incapacitated for work or any other suitable activity for 8 hours or more per week due to a medical condition and the period for which the person is incapacitated.

Many job seekers who are ill, injured or have temporary medical conditions (examples include injuries resulting from accidents, and episodic periods of depression) may still be able to take part in activities to help them prepare for a job, even if they are temporarily unable to work. In addition they may be able to look for work even if they cannot actually work.

Where the delegate is of the view that the temporary incapacity does not prevent the job seeker from undertaking some type of activity, consideration should be given first to adjusting or reducing the job seeker's usual mutual obligation requirements in preference to exempting the job seeker from their mutual obligation requirements.

Where a job seeker submits a medical certificate which indicates that any of the medical conditions will be medium or long term in nature (such as with episodic or chronic conditions) an ESAt or JCA may be required to determine the impact of the medical condition on their requirements. Examples of medical conditions which can be considered episodic or chronic include schizophrenia, psychosis, drug and alcohol addiction, depression and anxiety.

Note: While a medical certificate may indicate drug or alcohol addiction and an ESAt or JCA may be required, exemptions do not apply to circumstances wholly or predominantly attributable to the job seeker's misuse of alcohol or another drug, unless the job seeker is a CDP participant.

Where a medical condition is likely to be short term (i.e. less than 13 weeks - see information on durations below) or is a minor ailment (such as common cold or influenza etc.) there is no need for an assessment to take place.

Assessment of a medical certificate & referral for an assessment of work capacity - job seekers

A job seeker who submits a medical certificate may require an assessment of their work capacity (via the ESAt process) to inform a decision on their ability to participate in a suitable activity or activities.

Taking into account the job seeker's medical condition/s, the job seeker's work capacity will be assessed to determine if the job seeker has a temporary reduced work capacity or a partial capacity to work (1.1.P.65). If the job seeker has a temporary reduced work capacity, the assessor will specify the duration of the reduced work capacity. The assessor will provide recommendations on what, if any, suitable activities the job seeker could undertake, taking into account their capacity for work. Where possible, the assessor will also directly refer the job seeker to that activity.

A new referral to an assessor will not normally be required if the job seeker already has a current assessment of their work capacity, and if there has not been any significant change in their medical condition/s since that assessment. An assessment is current if it was completed in the last 2 years.

Incapacity due to serious illness

Where a job seeker or student who is seriously ill and undergoing treatment has been given an initial exemption of 13 weeks, it may be appropriate for the delegate to grant a subsequent exemption (not exceeding 13 weeks) without requiring the person to provide an additional medical certificate. The delegate may continue to grant subsequent exemptions without additional medical certificates until the person's exemption period reaches the period stated on their medical certificate or until a maximum of 52 weeks from the date that the first exemption was granted.

A delegate may only grant subsequent exemptions without requiring the person to provide an additional medical certificate if the person continues to meet all criteria for a temporary incapacity exemption and:

• they have one of the medical conditions listed below, and
• they are undergoing and/or recovering from intensive medical treatment (such as chemotherapy, radiotherapy) or undertaking rehabilitation for the serious illness, and
• there is little prospect of significant improvement in the person's medical condition over the period stated on the medical certificate, and
• requiring the person to obtain an additional, valid medical certificate at the end of each exemption period would place unreasonable physical and/or mental burden and/or stress on the person.

A person may be considered seriously ill if they have one of the following medical conditions:

• cancer/leukaemia
• severe stroke
• acquired brain injuries
• serious burns
• serious physical injuries requiring long recovery periods
• severe mental health conditions for which the person is receiving treatment in an institutional setting.

If the circumstances on which the initial period of exemption were based remain in effect and the person provides an additional, valid medical certificate, the delegate may grant a subsequent exemption from requirements for the period on the medical certificate. If the person's additional medical certificate extends beyond 13 weeks and the person remains seriously ill and is still recovering and/or undergoing treatment, the delegate may grant an additional period of exemption without requiring a further medical certificate. The total of the exemption periods granted on the basis of this additional medical certificate must not exceed 26 weeks.

After the additional 26 week period, all subsequent applications for temporary incapacity exemptions of up to 13 weeks must be supported by an additional, valid medical certificate.

Not eligible for an exemption from mutual obligation requirements

After consideration of all evidence (possibly including an assessment of a job seeker's medical condition/s and work capacity), a delegate may determine that a job seeker has a reduced work capacity due to their temporary medical condition, but is able to work at least 8 hours per week and/or undertake suitable activities. As the job seeker is not eligible for an exemption from their mutual obligation requirements, they will be required to meet appropriate requirements, which take into consideration their individual circumstances and any barriers they may have, particularly their medical condition.

Mutual obligation requirements for job seekers not eligible for an exemption who are able to work 15 or more hours per week may include:

• referral to, or continuation in employment services
• undertaking job search - dependent on their capacity
• another suitable activity that can be undertaken, or
• continuing with existing requirements that have been modified or reduced (varied) in the job seeker's Job Plan.

Where a job seeker has been assessed via the ESAt process, the assessor may recommend to the job seeker a short term intervention that responds specifically to their injury or illness.

Note: Services Australia can determine, depending on individual circumstances and consideration of evidence, that it may be more appropriate to reduce the person's mutual obligation requirements for the duration of the incapacity than to grant an exemption.

Note: Exemptions do not apply to circumstances wholly or predominantly attributable to the job seeker's misuse of alcohol or another drug, unless the job seeker is a CDP participant.

Note: Job seekers' voluntary participation in drug and alcohol treatment may contribute towards their mutual obligation requirements.

Full-time students in receipt of YA (student)

Social security law provides for a temporary incapacity exemption from requirements for a student in receipt of YA (student) who is temporarily unable to continue full-time study due to a medical condition, which is supported by a medical certificate.

To apply for an exemption, a student must provide the delegate with an approved medical certificate from a medical practitioner that states the medical practitioner's diagnosis and prognosis, that the person is incapacitated for full-time study, and the period for which the person is incapacitated for study.

To remain eligible for payment the student must:

• intend to return to full-time study once their temporary incapacity ceases or their medical certificate expires (whichever occurs first), and
• remain enrolled in their course of study or registered for the relevant award regardless of whether they are undertaking any of the course subjects or units during their period of incapacity.

Where the medical evidence indicates that the temporary incapacity prevents the student from undertaking a full-time study load, the student may continue to be eligible for payment as a YA student while undertaking no study or part-time study in their course for the period of incapacity stated in the medical certificate.

Higher education students continuing to undertake part-time study in an approved scholarship course while they are temporarily incapacitated from undertaking full-time study remain eligible for the relocation scholarship and SSL.

DSP claimants - qualification for JSP provisional

If a person makes a claim for DSP they can be paid JSP while their claim for DSP is being determined. This payment of JSP pending DSP is referred to as JSP provisional.

JSP provisional is a payment exempt from mutual obligation requirements. Other than this the qualification requirements for JSP provisional are essentially the same as for JSP with the following additions:

• the person must have an undetermined claim for DSP, AND
• they must meet the following residential requirement
  • they must have been an Australian resident at the time the injury or illness occurred, OR
  • they must have had 10 years qualifying Australian residence, or a QRE for JSP, OR
  • they were born outside Australia, and when the illness or injury first occurred, they were the dependent of an Australian resident, and later they became an Australian resident themselves while still the dependent child of an Australian resident.