Explanatory Statement
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Requirements and Guidelines for Disability Support Pension Active Participation) Determination 2026
Purpose
The Social Security (Requirements and Guidelines for Disability Support Pension Active Participation) Determination 2026 (the Determination) is made by the Minister for Social Services (the Minister) for the purposes of subsections 94(3C) and 94(3E) of the Social Security Act 1991 (the Act).
The Determination sets out the requirements and guidelines the Secretary must take into account in determining whether a person has actively participated in a program of support for the purposes of determining whether the person is qualified for disability support pension (DSP).
The Determination repeals and remakes the Social Security (Active Participation for Disability Support Pension) Determination 2014 (2014 Determination), which is due to sunset on 1 April 2026.
Background
DSP provides income support to people who, because of an ongoing physical, intellectual or psychiatric impairment, are prevented from working or from being re‑trained for work.
Not all people with disability are eligible for DSP as many people with disability are able to work. Many people with disability have skills and capacity to participate in the labour market or are able to build such skills with appropriate assistance.
Qualification for DSP is provided in section 94 of the Act. DSP qualification requires, amongst other things, that a person has a continuing inability to work because of an impairment.
The Family Assistance and Other Legislation Amendment Act 2011 introduced the requirement that people who made a claim (or are taken to have made a claim) for DSP on or after 3 September 2011, and who do not have a severe impairment, must have actively participated in a program of support.
The Social Services and Other Legislation Amendment (2014 Budget Measures No. 6) Act 2014 extended the requirement to actively participate in a program of support to certain DSP recipients who made a claim (or are taken to have made a claim) for DSP before 3 September 2011 and whose pension start date was after 2007. These recipients are required to demonstrate that they have undertaken and actively participated in a program of support.
As such, the Determination sets out the requirements and guidelines the Secretary must consider in determining whether a person has actively participated in a program of support. This includes for the purpose of determining whether the person has a continuing inability to work to be qualified for the DSP.
A DSP claimant has a severe impairment, as defined in subsection 94(3B) of the Act, when the person's impairment is assessed at 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single Impairment Table. Where a person does not have a severe impairment but is assessed as 20 points or more across Tables, the person must actively participate in a program of support for at least 18 months in the 36‑month period prior to their DSP claim.
Subsection 94(3C) of the Act provides that a person has actively participated in a program of support if the person satisfies the requirements specified in a legislative instrument made by the Minister. Subsection 94(3D) of the Act provides that the Secretary must comply with any guidelines, made by the Minister under subsection 94(3E) of the Act, when deciding whether the Secretary is satisfied that the person has actively participated in a program of support. Subsection 94(3E) of the Act provides that any guidelines, made by the Minister for the purposes of subsection 94(3D), are to be made in a legislative instrument.
The current legislative instrument, the 2014 Determination, is due to sunset on 1 April 2026. The Determination repeals and remakes the 2014 Determination. The Determination contains minor wording changes which reflect current drafting practices, and updates relevant terms, but is in substantially the same terms as the 2014 Determination.
Commencement
The Determination commences on the day after it is registered on the Federal Register of Legislation.
Authority
The Determination is made under subsections 94(3C) and 94(3E) of the Act.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. In making the Determination, the Minister is relying on this subsection in conjunction with the instrument-making powers in subsections 94(3C) and 94(3E) of the Act.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to disallowance.
Consultation
The Department of Social Services consulted with Services Australia on the intention to remake the Determination as they are responsible for service delivery. Services Australia were agreeable to the intention to remake the Determination in substantially the same terms as the 2014 Determination.
The Department of Social Services did not consult with income support recipients likely to be affected by the Determination as it has been remade in substantially the same terms as the 2014 Determination and does not impose any new requirements on income support recipients.
Availability of independent review
A decision made under the social security law, as informed by the Determination, is subject to internal and external review under Parts 4 and 4A of the Social Security (Administration) Act 1999.
Explanation of the provisions
Details of the Social Security (Requirements and Guidelines for Disability Support Pension Active Participation) Determination 2026
Part 1 – Preliminary
Section 1 – Name
Section 1 states how the instrument is to be cited, that is, as the Social Security (Requirements and Guidelines for Disability Support Pension Active Participation) Determination 2026 (the Determination).
Section 2 – Commencement
Section 2 sets out a table providing for the commencement of the Determination on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that the Determination is made under subsections 94(3C) and 94(3E) of the Social Security Act 1991 (the Act).
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to the Determination is amended as set out in the applicable items in that Schedule, and any other item in a Schedule to the Determination has effect according to its terms.
Schedule 1 to the Determination repeals the Social Security (Active Participation for Disability Support Pension) Determination 2014 (2014 Determination).
Section 5 – Repeal of this instrument
Section 5 provides that the Determination will self-repeal on 1 April 2028.
The Inclusive Employment Australia program, a new specialist disability employment program that replaced the Disability Employment Services, began servicing from 1 November 2025. The self-repeal provision allows for the evaluation of program of support outcomes against the new Inclusive Employment Australia program, including employment outcomes for people who are participating in a program of support. The self-repeal period also allows time to finalise the review into the medical eligibility settings for DSP concurrently while considering Inclusive Employment Australia outcomes.
Completing a program of support is a current pathway for some claimants to be granted DSP. The Determination is still practically necessary to facilitate access to DSP for some claimants while Inclusive Employment Australia outcomes are considered.
Section 6 – Simplified outline of this instrument
Section 6 provides a simplified outline of the Determination. While simplified outlines are included to assist readers to understand the substantive provisions, the simplified outline is not intended to be comprehensive. Readers should rely on the substantive provisions in the Determination.
Section 7 – Definitions
Section 7 contains definitions of certain terms used in the Determination.
The definition of designated provider in subsection 7(1) has been updated to reflect the current names of relevant employment services programs. Job Services Australia, which was used in the 2014 Determination, has been replaced by Workforce Australia. Disability Employment Services, used in the 2014 Determination, has been replaced by Inclusive Employment Australia in the Determination.
Part 2 – Requirements for active participation
Section 8 – Requirements for active participation
Section 8 sets out the requirements a person must meet in order for the Secretary to be satisfied that the person has actively participated in a program of support for the purpose of subsection 94(3C) of the Act.
Subsection 8(1) states that a person has actively participated in a program of support if the person has, while undertaking the program of support, complied with the requirements of the program of support, participated in the program of support during the relevant period, satisfied the requirements set out in subsections (2), (3), (4) or (5), and satisfied the requirements of subsection (6).
Section 7 defines the relevant period in relation to a person. The relevant period in relation to a person (other than a reviewed 2008-2011 DSP starter as defined under subsection 94(5) of the Act), whose impairment is not a severe impairment, is the period of 36 months prior to the person’s claim for disability support pension (DSP) (see paragraph (a) of the definition of relevant period in subsection 7(1)).
The relevant period in relation to a person who is a reviewed 2008-2011 DSP starter who:
- is participating in a program of support at the time they become a reviewed 2008‑2011 DSP starter; or
- has participated in a program of support at any time during the 6 months prior to becoming a reviewed 2008-2011 DSP starter,
is the period of 36 months from the date the person began that program of support (see paragraph (b) of the definition of relevant period in subsection 7(1), and subsection 7(2)).
The relevant period for any other reviewed 2008-2011 DSP starter is the period of 36 months from the day the person is notified in writing they have become a reviewed 2008-2011 DSP starter (see paragraph (c) of the definition of relevant period in subsection 7(1)).
Subsection 7(2) clarifies that a person may be participating in a program of support for the purposes of paragraph (b) of the definition of relevant period in subsection 7(1), whether or not the person is at that time actively participating in the program in accordance with section 8 of the instrument and even if the person is not participating at that time as a result of an exemption, relief or suspension from the program.
Generally, a person must participate in the program of support for at least 18 months during the relevant period in order to satisfy the requirement in paragraph 8(1)(b) (subsection 8(2)). A period during which a person does not participate in the program of support for any reason (including as a result of any exemption, relief or suspension from the program) does not count towards the requirement to participate for at least 18 months (section 9).
For example, if a person has been actively participating in a program of support for 12 months and suffers a temporary injury, and is provided with a 2 month period of exemption to recover from the temporary injury, the person will need to actively participate for a further 6 months following the expiration of the period of exemption to meet the 18 month requirement.
A person may participate in more than one program of support with more than one designated provider, and all periods of active participation will be counted, provided that while participating in each program the person complied with the requirements of the program. The period of a person’s participation will be determined by adding all periods of active participation the person has undertaken in the relevant period with any designated provider.
For example, a person who has been participating with a Workforce Australia provider for 9 months, who is reassessed and found to require assistance from an Inclusive Employment Australia provider, will only have to participate in an Inclusive Employment Australia program for a further 9 months to satisfy the requirement.
Subsections 8(3), (4) and (5) address situations where a person can participate in a program of support for less than 18 months and satisfy the requirement in paragraph 8(1)(b).
Subsection 8(3) sets out that a person can satisfy the requirement in paragraph 8(1)(b) if the duration of the program of support is less than 18 months and the person completed the entire program within the relevant period (as defined in section 7).
Subsection 8(4) sets out that a person can satisfy the requirement in paragraph 8(1)(b) if the program of support was terminated before the end of the relevant period (as defined in section 7) and the program was terminated because the person was unable, solely because of the person’s impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the program.
For example, a person with Multiple Sclerosis (MS) has been participating in a program of support for 6 months and during this time the person’s MS deteriorates significantly. The person will have actively participated in the program of support if the person complied with the requirements of the program and the program was terminated because the person was unable, solely due to the deterioration of their MS, to improve their capacity to prepare for, find or maintain work through continued participation in the program. The decision to exit a person from a program of support is made by a Services Australia assessor.
Subsection 8(5) sets out that a person can satisfy the requirement in paragraph 8(1)(b) if at the end of the relevant period (as defined in section 7) the person is participating in a program of support and is prevented, solely because of the impairments from which the person suffers, from improving their capacity to prepare for, find or maintain work through continued participation in the program.
For example, at the end of the relevant period, a person with MS has been participating in a program of support for 6 months. During the time the person was participating in the program the person’s MS deteriorated significantly. The person will have actively participated in the program of support if the person complied with the requirements of the program and the person is prevented, solely due to the deterioration of the person’s MS, from improving their capacity to prepare for, find or maintain work through continued participation in the program. The decision to exit a person from a program of support is made by a Services Australia assessor.
Subsection 8(6) sets out that to satisfy the requirement in paragraph 8(1)(c) the person must provide the Secretary with the information set out in subparagraphs 8(6)(a) to (i).
The information the person provides will enable the Secretary to make a fully informed and considered assessment of the person’s participation in a program of support.
Section 9 – Periods of non-participation not to count
Section 9 provides that periods during which a person does not participate in a program of support for any reason are not to be counted in determining the length of the period the person has participated in the program for the purposes of satisfying the requirements for active participation under section 8.
For example, a period during which a person does not participate as a result of an exemption, relief or suspension from the program will not be counted.
Part 3 – Matters to be taken into account in assessing active participation
Section 10 – Matters to be taken into account relating to the program of support
Section 10 sets out the matters in relation to the form and content of the program of support the Secretary must take into account to be satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act.
Section 11 – Material to be taken into account
Section 11 sets out the relevant material and documents the Secretary must take into account to be satisfied a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act.
Schedule 1 – Repeals
Item 1 repeals the 2014 Determination. The Determination remakes the sunsetting 2014 Determination in substantially the same terms. The Determination contains minor wording changes which reflect current drafting practices, and updates relevant terms.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security Act 1991
Social Security (Requirements and Guidelines for Disability Support Pension Active Participation) Determination 2026
The Social Security (Requirements and Guidelines for Disability Support Pension Active Participation) Determination 2026 (the Determination) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The Determination is made by the Minister for Social Services for the purposes of subsections 94(3C) and 94(3E) of the Social Security Act 1991 (the Act).
The Determination sets out the requirements and guidelines the Secretary must take into account in determining whether a person has actively participated in a program of support for the purposes of determining whether the person is qualified for disability support pension (DSP).
The Determination repeals and remakes the Social Security (Active Participation for Disability Support Pension) Determination 2014, which is due to sunset on 1 April 2026.
Human rights implications
The Determination engages the following human rights:
- the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 28(2)(b) of the Convention on the Rights of Persons with Disabilities (CRPD);
- the right to an adequate standard of living under Article 11 of the ICESCR and Article 28(2)(a) of the CRPD;
- the right to equality and non-discrimination in the exercise of these rights under Article 2(2) of the ICESCR and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).
Right to social security
The Determination engages the right to social security under Article 9 of the ICESCR and Article 28(2)(b) of the CRPD.
Article 9 of ICESCR recognises the right to social security and requires a social security scheme to be established under domestic law that provides a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
Article 28(2)(b) of the CRPD provides the recognition of the rights of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and the appropriate steps to safeguard and promote the realisation of that right including access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes. Social security is one example of a social protection programme.
The Determination gives effect to the requirement to have actively participated in a program of support under paragraph 94(2)(aa) of the Act, including as extended by the Social Services and Other Legislation Amendment (2014 Budget Measures No. 6) Act 2014 to certain DSP recipients following a review of their qualification.
The requirement to undertake a program of support helps to ensure that assistance to develop work capacity is provided to those DSP claimants most likely to benefit from employment assistance. Assisting those people, who are able, to participate economically and socially helps ensure that the social security system remains sustainable and that available funds will be targeted to those recipients with the greatest need.
Right to an adequate standard of living
Article 11 of the ICESCR recognises the right of individuals and their families to an adequate standard of living. Article 28(2)(a) of the CRPD recognises the right of persons with disabilities to an adequate standard of living for themselves and families. The right to an adequate standard of living recognises the right of everyone to an adequate standard of living for all individuals and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
The requirement to undertake a program of support allows some DSP claimants the opportunity to increase their employability and actively engage in the labour market rather than rely on the social security system. This provides access to higher levels of income through employment and an adequate standard of living.
Right to equality and non-discrimination
The Determination engages the right to equality and non‑discrimination under Article 2(2) of the ICESCR and more generally under Article 26 of the International Covenant on Civil and Political Rights.
The Determination reinforces the principle that labour market participation of people with disability, including DSP recipients with some work capacity, should be encouraged and supported.
Targeting the requirement to participate in a program of support to DSP recipients who are under 35 years of age at the time of a review of their qualification ensures those at the greatest risk of spending extended periods of time dependent on income support and most likely to benefit from employment assistance, participate in a program of support.
Recipients assessed as having an ability to work at least eight hours a week are provided with the support needed to assist them develop their work capacity while still receiving DSP. This assists people to build their capacity and may increase their chance of gaining employment.
Conclusion
The Determination is compatible with human rights because it advances the protection of the right to social security, the right to an adequate standard of living and the right to equality and non-discrimination. To the extent the Determination limits these rights, this is for a legitimate objective and is reasonable, necessary and proportionate.
The Hon Tanya Plibersek MP, Minister for Social Services