Terina HegartySocial security rights review

Sarah Sacher, Economic Justice Australia, Law Reform Officer

Recent proposed changes to DSP assessments in the new draft of the DSP Impairment Tables are an encouraging development.  

Certain cohorts of people with disability face systemic barriers to accessing the Disability Support Pension (DSP). The legislative framework and the processes for assessing eligibility are deeply flawed and burdensome for individuals, and result in many vulnerable people falling through the cracks. 

The Tables previously provided that in order for a condition to be considered ‘permanent’ for the purposes of accessing DSP, the condition must be ‘fully diagnosed’ by an appropriately qualified medical practitioner; it must also have been ‘fully treated’; and fully stabilised’.  

EJA understands that the term ‘fully’ as a qualifier has now been removed in the new draft Tables, which will lead to a clearer and fairer assessment process. 

The term ‘fully’ caused confusion amongst claimants, doctors, Centrelink delegates and AAT members. It was often misapplied by decision makers, with assessors at times re-interpreting medical reports in ways that were unintended by the health professionals writing them, prompting unnecessary appeals and delays. 

The changes in the draft reflect the recommendations made in EJA’s consultation input, as well as in our submission to the DSP Senate inquiry, and our research report, Barriers to Disability Support Pension access for people with psychiatric impairments and their experiences on JobSeeker Payment. 

The current DSP legislative framework and system for assessing DSP eligibility imposes fundamental systemic barriers to accessing DSP for particular cohorts of people with disability. As a result, many vulnerable people with disability in these cohorts who are prima facie eligible for DSP, are effectively consigned to JobSeeker or other activity tested payments indefinitely. They then struggle to comply with onerous mutual obligations due to a lack of capacity to comply. These individuals may face punitive actions such as suspensions of payment for failing to comply with mutual obligations or may not be on any payment at all – destitute.   

DSP framework  

The purpose of DSP is to provide income support for people who are unable to work for more than 15 hours per week for at least the next two years, due to a physical, intellectual or psychiatric impairment.  

The seriousness of a person’s impairment is determined based on a points system.  To be eligible for DSP, applicants must have an impairment that attracts at least 20 points under the ‘Impairment Tables’. This is assessed through medical evidence provided by professionals that must be provided alongside the DSP claim. The legislative instrument ‘Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011’ contains 15 individual Impairment Tables used to assess a person’s impairment. Each Table corresponds with a type of condition. 

Where a person’s impairment is assessed as being worth 20 points or more under one of the Tables, they are considered to have a ‘severe impairment’ for the purposes of the DSP. If a person does not meet the criteria for a ‘severe impairment’ they generally need to have undertaken a ‘program of support’ for at least 18 months before accessing DSP. Even if a person scores higher than 20 points across multiple Tables (indicating that they experience multiple conditions) they will not be considered to have a ‘severe impairment’ in accordance with the DSP criteria.   

Section 94 of the Social Security Act, provides that a person who has scored at 20 points or more under the Tables but has not scored at least 20 under a single Table, may be required to participate in a ‘program of support’ for 18 months.   

There is no actual program named ‘program of support’. The requirement can be met if the DSP claimant: 

  • has participated in a program provided by a government-funded employment services provider, such as a Disability Employment Serviceand ParentsNext, that is designed to assist in finding or preparing for work; and 
  • they have participated in that program for at least 18 months during the three years prior to claiming DSP.  

Ongoing systemic barrier to accessing DSP: Program of support  

The ‘Program of Support’ requirement is inappropriate, and creates an unfair barrier to accessing DSP. In EJA members’ experience, people with significant disability and little or no work capacity are often excluded from DSP as a result of this requirement and serve out their waiting period on JobSeeker. Those affected include older people with numerous chronic health conditions that collectively limit work capacity, rather than any single condition assessed in isolation. There is no justification for this extra gate to accessing DSP for people with very high impairment ratings, and minimal or no capacity to work, just because they fail to score 20 points on a single table.  

Many long-term DSP recipients have impairment levels that preclude participation in a Program of Support and there is no purpose to be served by requiring that they enrol in one, and then go through the difficult process of exiting it. This has led to an expanding pool of people with disability on JobSeeker Payment who are unable to comply with mutual obligation requirements.  

Ideally, section 94 of the Social Security Act should be amended to remove the program of support requirement altogether, or at least to include criteria for exempting a person from having to engage in such a program. 

Case study – Michael  

When he contacted our member centre, Michael had been in receipt of Newstart/JobSeeker Payment for five years. Prior to this he was primary carer for his mother who was terminally ill. Michael suffered from multiple health problems. When he applied for the DSP his conditions were assigned 35 points under four separate impairment Tables. Michael also suffered from other conditions which were not assigned an impairment rating because they had not been fully diagnosed and treated. His application for DSP was rejected because none of his conditions was assigned a 20 point rating under a single Table and he had not fulfilled the Program of Support requirement. A review of Michael’s medical evidence was undertaken by his GP, with assistance from our member centre. On the evidence it appeared that the initial assessment per the Tables was correct given that Michael had three moderate impairments and one mild.  

Michael was engaged with a Disability Employment Service job network provider for the entire period in which he was in receipt of Newstart/JobSeeker payments, and was granted ongoing exemptions from mutual obligations because of his chronic health problems. This was reasonable because the medical evidence made it clear that Michael was unable to work. However, it also served as a barrier to Michael ever being granted DSP. 

Michael obtained a referral to another Disability Employment Services provider. The new provider was supportive of his application for the DSP. At the member centre’s suggestion, the new provider organised for Michael to be exited from the Program of Support after he had been engaged as a participant in it for a month. Michael was fortunate that his provider facilitated his exit from the Program of Support. Michael now receives DSP. If his caseworker had not been cooperative he would have been stuck in a program which could not be of benefit to him, and unable to access DSP because of his inability to engage in the Program of Support.  

People falling through the cracks  

Over the years, DSP qualification criteria has been tightened, particularly through changes to assessment processes implemented from 2016. This has led to a reduction in new grants of DSP – and has had the effect of leaving vulnerable groups sidelined. The current legislative and policy framework is unduly complex and cannot be administered equitably. It has also led to high demand for legal help, increasing the strain on our member centres.  

Those affected include the following cohorts. 

People with intellectual disability. People with intellectual disability can face challenges understanding DSP claim requirements and/or completing the tasks needed to obtain medical evidence. Given that intellectual disability is not a medical condition, it can be difficult for applicants and treating doctors to provide evidence to support a claim for DSP. People with intellectual disability who enjoy good health may rarely see a GP and may have had no tests to assess intellectual capacity since childhood. 

Case study—Paul  

Paul has an intellectual disability and cannot read or write. He lives independently. He received DSP before the 2015 changes but his DSP was cancelled, and when he contacted our member centre he was unable to explain why. He had been on Newstart for the past two years and was not able to understand letters he was being sent by Centrelink, or the form he was given to make a new DSP claim. Our member assisted Paul to claim DSP, wrote to Centrelink asking for the records for previous DSP claims, and arranged for Paul to see specialists in clinical psychology and cognitive  impairment. Paul had great difficulty attending appointments and the service’s social worker supported him to do this. After five months, Paul faced a final obstacle: he could not afford to see the specialist. Three weeks later Centrelink decided to schedule an appointment with their own doctor, for an assessment. Our member then wrote to Centrelink summarising all Paul’s evidence, and submitted that he was eligible for DSP. After eight months, Paul was finally regranted DSP 

People with acquired brain injury. People with acquired brain injury are also often unable to complete the tasks needed to obtain medical evidence, and may struggle to comply with mutual obligations. 

Case study—Mario  

Mario was 48 when he approached our member for assistance. He had suffered extensive injuries when he was run over by a car at high speed, including a brain injury. Despite six months in hospital followed by intensive rehabilitative treatment, Mario was left with significant disability due to brain function deficit, with memory loss and inability to concentrate. He was in need of the ongoing support of his family and support worker. Mario claimed DSP but was rejected on the grounds of insufficient recent specialist opinion. Mario sought our member centre’s assistance, and the advocate devised questions based on the Impairment Tables for his neurologist to provide an updated opinion in support of his appeal. The neurologist was ‘too busy’, however, and unable to provide any written information or a report. With the help of Mario’s support worker, our member centre was able to identify older reports, already provided to Centrelink, which detailed the extent of Mario’s impairment. This was brought to the attention of Centrelink and nine months after Mario claimed DSP, the Centrelink Authorised Review Officer decided that Mario was qualified. 

People with psycho-social disability. The DSP claim and assessment process can be extremely onerous for clients with psycho-social disability and can exacerbate distress associated with a mental health condition. Clinical depression, anxiety, PTSD, bipolar disorder, schizophrenia or alcohol/other drug dependency can severely affect capacity to plan and organise, and deal with frustration. The task of seeking out reports from treating doctors is often beyond the capacity of claimants with psycho-social disability, and our members report that many clients are unable to follow through with claims or appeals. For further information about the barriers faced by this cohort, see our research report, Barriers to Disability Support Pension access for people with psychiatric impairments and their experiences on JobSeeker Payment. 

Case study—Harriet  

Harriet is a trained registered nurse with intermittent work history due to crippling and increasingly frequent bouts of depression. When she was referred to the member centre by her support worker, Harriet clearly satisfied the ‘severe impairment’ rating for Impairment Table 5 (the Table for assessing psychiatric impairment), as she was unable to complete daily tasks such as meal preparation, washing and cleaning without support from mental health workers.  

However, Harriet’s condition would fluctuate and there were periods where she could undertake the kinds of activities that would give her an assessment of 10 points under the same Table. Given these fluctuations, throughout the prior 10 years Harriet was unable to sustain employment due to regular, severe episodes of depression. Harriet’s applications for DSP had been rejected based on assessments of short periods when she was well. 

People with multiple conditions/impairments. The burden on claimants who have multiple conditions, and need to provide updated specialist reports on each of their conditions in the form required by the DSP assessment processes, can be overwhelming and difficult to satisfy. 

Case study – Fatima 

Fatima is a refugee who has suffered long term domestic violence and abuse. She was 56 when she sought the member centre’s assistance. She had been diagnosed with PTSD, associated with being held captive during the Iraq war and later experiences living in a refugee camp. Fatima received psychological counselling by a Specialised Trauma Counselling Service for Refugees which confirmed her attendance at more than 80 counselling sessions. In addition, Fatima had received ongoing support and counselling from refuges and women’s health services. Fatima has never worked in Australia and was being put under pressure to attend appointments with Employment Service Providers, with suspensions of her Newstart Allowance when she was unable to attend. She had applied for DSP twice. Her first claim was rejected as she was assessed as rating less than 20 points on Table 5 – Psychiatric Impairment. She applied again and appealed, without success. Fatima advised that she felt the whole DSP assessment process ignored her plight and serious long-term PTSD, and also her physical limitations. 

People in regional, rural and remote communities. DSP claimants from regional and rural areas face limited access to specialists for treatment, and difficulties obtaining copies of reports to support DSP claims. Pressure on specialists practising in these areas is such that they can be unable or unwilling to provide a report required for DSP purposes, especially if the applicant is not fee paying. Although Services Australia may attempt to locate a specialist within a certain driving distance from the applicant’s home, many applicants are still not able to attend these appointments due to transport issues or mobility restrictions associated with their disability. Services Australia often attempts to accommodate for this by providing alternative phone and/or video appointments with the relevant assessor, but the person needs to have access to the technology and skills to utilise this option. 

Case study—Kylie  

Our member centre was contacted by Kylie who lives in remote NSW. Kylie had recently applied for a medical exemption from JobSeeker mutual obligations, on the grounds of temporary incapacity, but had been rejected due to her conditions being permanent rather than temporary. Following the rejection, Kylie had an Employment Services Assessment, and she was told they could take public transport to get to job seeking appointments. Kylie lived over 200kms from a major town, and 50kms away from the nearest small town. There is no public transport in her local area. An employee from Kylie’s employment service provider only visited the client’s nearest town every six weeks. After some time, Kylie’s medical exemption from mutual obligations was approved, as it was accepted that she was temporarily incapacitated by a permanent condition. The client is considering applying for Disability Support Pension, but has not yet begun the application process due to limited access to appropriate treating specialists to prepare reports. 

First Nations people in remote communities. Navigating DSP assessment processes and the appeals system can be impossible for people in remote First Nations communities. Many claimants who need specialist care are not under the care of a specialist and for those who are, specialists only visit infrequently. Without advocacy, clients who speak English as a second, third or fourth language generally have no understanding of DSP eligibility rules and the nature of evidence requirements 

Case study—Warren 

Warren is an Aboriginal man with a cognitive impairment from a remote community. He has limited English and literacy skills. On contact with our member centre’s outreach service, his previous DSP claims had been rejected due to lack of medical evidence. It was only when our member centre assisted Warren with the claim process that DSP was granted. Centrelink and Warren’s Employment Services Provider had been aware of Warren’s cognitive impairment, and the significant language and cultural barriers he faced in navigating the DSP process, for many years; however, Centrelink did not have medical evidence in their possession to support this and repeatedly placed the onus on Warren to obtain and provide such evidence. Warren struggled to understand what was required of him and failed to provide the requisite evidence. Warren’s inability to provide the medical evidence and navigate the process is related directly to his cognitive impairment, together with his status as an Aboriginal man living in a remote Aboriginal community whose first three languages are not English. 

People with a terminal condition.  The introduction of the ‘Disability Medical Assessment’ whereby a Government contracted Doctor or clinical psychologist conducts certain assessments, appears to have increased delays in processing claims from people with a terminal medical condition. 

Case study – Sandrine 

Sandrine has a rare type of bone cancer. With the help of her husband, she applied for DSP because she was too fragile and weak from intensive chemotherapy and other treatments to satisfy Newstart Allowance job-seeking requirements. Her payments had been stopped many times. The member centre advocate contacted Sandrine’s specialist, who after some time provided a report which stated that her condition would not improve with further treatment, and that the treatment was merely keeping her alive. Sandrine’s claim for DSP was subsequently granted. Sandrine’s husband felt frustrated and distressed that it took so long for Centrelink to understand the severity of his wife’s condition