The Social Security Act 1991 (Cth) provides the legislative foundation for many of the benefits and services provided by Centrelink and the Department of Human Services.
The Social Security Act 1991 (Cth), defines “disability” generally as:
A person aged 16 or more who:
a) Has a physical, intellectual or psychiatric disability; and
b) Is likely to suffer from that disability permanently or for an extended period (see s.197 SSA).
To be eligible for a Special Disability Trust (SDT), the disability must be assessed as severe.
The criteria for suitability for a SDT is set out in s.1209M of the Social Security Act 1991 (Cth).
If the prospective beneficiary of the SDT is under 16 years, the person must satisfy the following disability conditions (see s.1209M(4)&(4A) SSA):
(4) If the principal beneficiary is under 16 years of age, subsection (4A) must apply to him or her.
(4A) This subsection applies if:
a) the principal beneficiary is a person with severe disability or a severe medical condition; and
b) another person (the carer) has been given a qualifying rating of intense under the Disability Care Load Assessment (Child) Determination for caring for the principal beneficiary; and
c) a treating health professional has certified in writing that, because of the disability or condition:
(i) the principal beneficiary will need person care for 6 months or more; and
(ii) the personal care is required to be provided by a specified number of persons, and
d) the carer has certified in writing that the principal beneficiary will require the same care, or an increased level of care, to be provided to him or her in the future.
If the prospective beneficiary is 16 years and over, that person must satisfy the following disability conditions (see s.1209M(2) SSA):
If the principal beneficiary has reached 16 years of age:
a) the beneficiary must:
(i) have an impairment that would qualify the person for disability support pension; or
(ii) be receiving invalidity service pension under Part III of the Veteran’s Entitlements Act; or
(iii) be receiving income support supplement under the Veteran’s Entitlements Act on the grounds of permanent incapacity; and
b) the beneficiary must:
(i) have a disability that would, if the person had a sole carer, qualify the carer for carer payment or carer allowance; or
(ii) be living in an institution, hostel or group home in which care is provided for people with disabilities, and for which funding is provided (wholly or partly) under an agreement, between the Commonwealth, the States and the Territories, nominated by the Secretary under subsection (3); and
c) the beneficiary must have a disability as a result of which either:
(i) he or she is not working, and has no likelihood of working, for more than 7 hours a week for a wage that is at or above relevant minimum wages; or
(ii) he or she is working for wages set in accordance with the program administered by the Commonwealth known as the supported wage system.
The Disability Services Act 1986 (Cth) describes disability in terms of a “target group” of persons to receive defined services. Section 8(1) of the DSA states:
(1) The target group for the purposes of this Part consists of persons with a disability that:
a) is attributable to an intellectual, psychiatric, sensory or physical impairment or a combination of such impairments;
b) is permanent or likely to be permanent; and
c) results in:
(i) a substantially reduced capacity of the person for communication, learning or mobility;
(ii) the need for ongoing support services.
Superannuation laws pick up this DSA definition of disability in the context of eligible dependants and the forms in which superannuation death benefits can be received, (see Superannuation Industry (Supervision) Act 1993 (Cth).)
This is further elaborated upon in the Superannuation Industry (Supervisions) Regulations 1994 (Cth).
Reg 6.21(2A) of the SIS Regs defines who can be an income stream dependant for superannuation purposes. This includes a child of a member who has a disability of the kind described in s.8(1) of the DSA, see below:
(2A) If a member dies on or after 1 July 2007. subparagraphs (2)(b)(i) and (ii) apply to an entitled recipient only if, at the time of the member’s death, the entitled recipient:
(a) is a dependant of the member; and
(b) in the case of a child of the member:
(i) is less than 18 years of age; or
(ii) being 18 or more years of age:
(A) is financially dependent on the member and less than 25 years of age; or
(B) has a disability of the kind described in subsection 8(1) of the Disability Services Act 1986.
Australian Taxation laws in turn pick up the provisions of the SIS Act & SIS Regs where prescribing tax liability for recipients of superannuation death benefits.
If you have a question or would like to discuss your particular circumstances further, Duncan.Legal offers a personalised and caring service with a special focus on assisting families with disability. We are parents of children with autism which enables us to share our life experiences with you.