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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This legislative instrument sets out the rules that decision-makers must
use when assessing a person’s work-related impairment
for the disability
support pension under the Social Security Act 1991
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Portfolio
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Social Services
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the House of Representatives on 6
March 2023 and in the Senate on 7 March 2023). Notice of
motion to disallow must
be given by 22 May 2023 in the House and by 13 June 2023 in the
Senate)[77]
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Rights
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Social security; adequate standard of living; equality and
non-discrimination; rights of persons with disability
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2.59 The committee requested a response from the minister in relation to this instrument in Report 4 of 2023.[78]
2.60 This legislative instrument sets out the rules that must be used when assessing whether a person meets the work-related impairment level for the purposes of assessing eligibility for the Disability Support Pension (DSP) under section 94 of the Social Security Act 1991 (Social Security Act). This legislative instrument replaces, with amendments, the previous such measure.[79]
2.61 The instrument sets out 15 impairment tables, each of which are intended to measure the extent of the person's impairment level with respect to different bodily functions (these include, for example, visual impairment, mental health function, and communication function). The term 'impairment' refers to 'a loss of functional capacity affecting a person’s ability to work that results from the person’s condition'.[80] The tables describe functional activities, abilities, symptoms and limitations against which a person’s impairments are to be assessed in order for an impairment rating (expressed as points) to be assigned.[81] For a person to be eligible for the DSP, the impairment must be rated at 20 points or above according to these tables.[82]
2.62 By setting out rules that must be used when assessing whether a person meets the work-related impairment level for the purposes of assessing eligibility for the DSP, this measure engages several human rights.
2.63 By supporting the provision of a social security payment specifically to support persons with disability, this measure promotes the rights to social security, an adequate standard of living, equality and non-discrimination and the rights of persons with disability for those who are eligible for the DSP.
2.64 The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and plays an important role in realising many other economic, social and cultural rights, in particular the right to an adequate standard of living and the right to health.[83] The right to social security plays an important role in realising many other economic, social and cultural rights, particularly the right to an adequate standard of living.[84] The right to an adequate standard of living requires that Australia take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in its jurisdiction.[85] The United Nations (UN) Convention on the Rights of Persons with Disabilities recognises the equal rights of persons with disability to live in the community with choices equal to others,[86] and to enjoy an adequate standard of living.[87] The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.[88]
2.65 However, in restricting which persons may be eligible for the DSP according to the work-related impairment tables set out in the instrument, the measure also limits these human rights. In this regard the statement of compatibility with human rights states:
Disability support pension is designed to support people with disability if they are unable to work for at least 15 hours per week at or above the relevant minimum wage, due to a physical, intellectual or psychiatric impairment. This means not all people with a condition will be eligible for disability support pension.[89]
2.66 Australia is obliged to take reasonable measures within its available resources to progressively secure broader enjoyment of the right to an adequate standard of living and to social security. It also has immediate obligations to satisfy certain minimum aspects of the rights; not to unjustifiably take any backwards steps that might affect living standards; and to ensure the rights are made available in a non-discriminatory way.[90] In this regard, the UN Committee on Economic, Social and Cultural Rights has identified a 'minimum core' to the right to social security, which includes requiring that States parties ensure the right of access to social security systems or schemes on a non-discriminatory basis, especially for disadvantaged or marginalised individuals or groups.[91] The right to equality and non-discrimination provides that differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[92]
2.67 The UN Committee on the Rights of Persons with Disabilities has stated that states parties should define eligibility criteria and procedures for accessing support services 'in a non-discriminatory way, objectively and focused on the requirements of the person rather than on the impairment, following a human rights-compliant approach'.[93] It has stated that where a state adopts specific measures to help achieve equality for persons with disability, such measures must be consistent with all principles and provisions of the Convention, and must not result in perpetuation of isolation, segregation, stereotyping, stigmatisation or otherwise discrimination against persons with disabilities.[94] The UN Committee on the Rights of Persons with Disabilities has expressed concern about the existence of eligibility restrictions for the DSP, and has recommended that Australia end these eligibility restrictions to ensure that persons with disabilities have access to an adequate standard of living.[95]
2.68 By supporting the provision of a social security payment specifically to support persons with disability, the committee considered this measure promotes the rights to social security, an adequate standard of living, equality and non-discrimination and the rights of persons with disability for those who are eligible for the DSP. However, restricting which persons with disability may be eligible for the DSP also engages and limits these rights. The committee considered further information was required to assess the compatibility of this measure with these rights, and as such sought the minister's advice in relation to:
(a) whether in restricting access to the DSP in the manner set out in the instrument, Australia is fulfilling its minimum core obligations regarding the rights to social security and an adequate standard of living, such that when persons are ineligible for the DSP they are still provided with a minimum essential level of benefits;
(b) whether the measure is necessary and proportionate, in particular, whether a person who does not meet the eligibility criteria can have their individual circumstances considered and so nonetheless be provided access to the DSP; and
(c) whether any of the amendments in this measure are retrogressive (in that they constitute a backwards step) when compared with the previous legislative instrument, and if so whether this is a permissible retrogressive measure.
2.69 The full initial analysis is set out in Report 4 of 2023.
2.70 The minister advised:
(a) whether in restricting access to the Disability Support Pension (DSP) in the manner set out in the instrument, Australia is fulfilling its minimum core obligations regarding the rights to social security and an adequate standard of living, such that when persons are ineligible for the DSP they are still provided with a minimum essential level of benefit.
The Australian social security system is a non-contributory, means-tested, residence-based system, designed to provide income support to people who, for reasons such as age, unemployment or ill health, are unable to support themselves. All social security payments have eligibility requirements to target support to those most in need. DSP is not a universal basic income for people with disability. It provides targeted assistance to those who are unable to work to fully support themselves because of their disability or medical condition. Not all people with disability are eligible for DSP, as many people with disability are able to and do work.
People who are found ineligible for DSP because they don't meet the eligibility requirements when they are assessed under the Impairment Tables may be eligible for other income support payments, such as JobSeeker Payment, with modified activity requirements.
Where recipients have additional costs, such as those associated with renting in the private market or raising children, supplementary payments such as Commonwealth Rent Assistance and Family Tax Benefit are available. Other supplementary benefits that may be payable include Pharmaceutical Allowance, Carer Allowance, Remote Area Allowance, Telephone Allowance and Mobility Allowance, as well as a concession card. Individuals may also be eligible for support through the National Disability Insurance Scheme.
(b) whether the measure is necessary and proportionate, in particular, whether a person who does not meet the eligibility criteria can have their individual circumstances considered and so nonetheless be provided access to the DSP.
To determine eligibility for the DSP, Services Australia uses the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pensions) Determination 2023 to assess how a person's functional impairment affects their ability to work. Without this instrument in place there is no legal basis to assess and grant DSP to new applicants, as the Social Security Act 1991 (the Act) specifies one of the qualification criteria for DSP is for a person's impairment to be rated at 20 points or more under the Impairment Tables.
The 2011 Determination was due to expire by sunsetting on 1 April 2023 and therefore it was necessary for a new instrument to be in place to ensure there remains a legal basis to assess and grant new DSP claims.
Assessments undertaken for the purposes of determining eligibility for DSP are individual assessments against the criteria, with a level of discretion for assessors to determine eligibility. For example, there is some discretion within the Determination as to what is considered reasonable treatment, taking into account the availability and cost of available treatments.
If Services Australia makes a decision a person disagrees with, they have the right under social security law to ask for a review of the decision by an Authorised Review Officer. The review system is designed to ensure correct decisions are made in accordance with the Act. If, after this, people still have concerns about the correctness of the decision, they can seek review by the Administrative Appeals Tribunal. The Tribunal is a review body that can provide an independent new decision that substitutes for Services Australia decisions. Each of these steps in the appeal process is free of charge.
(c) whether any of the amendments in this measure are retrogressive (in that they constitute a backwards step) when compared with the previous legislative instrument, and if so whether this is a permissible retrogressive measure.
None of the amendments to the Impairment Tables are retrogressive. The increase in the number of descriptors a person is required to meet under Table 7 - Brain Function could be misconstrued as a backward step. This change was a result of adding a social skills descriptor to this Table to address concerns around the representation of difficulties experienced by people with neurodiverse conditions. This addition has increased the number of available descriptors to 10.
Key organisations, including medical professionals have indicated that, while this is an increase in the requirement, it is important for social skills to be reflected and appropriate for the requirement to be raised as the vast majority of people assessed under Table 7 would experience difficulties with social skills and would be able to achieve at least 2 descriptors.
2.71 In relation to whether, in restricting access to the DSP in the manner set out in the instrument, Australia is fulfilling its minimum core obligations regarding the rights to social security and an adequate standard of living, the minister stated that all social security payments have eligibility requirements to target support to those most in need, and that DSP is not a universal basic income for people with disability. The minister stated that DSP provides targeted assistance to those who are unable to work to fully support themselves because of their disability or medical condition, meaning that not all people with disability are eligible for DSP, as many people with disability are able to, and do, work. The minister stated that people who are found ineligible for DSP may be eligible for other income support payments, such as JobSeeker Payment, with modified activity requirements, and associated supplementary payments, a concession card, and potentially support through the National Disability Insurance Scheme.
2.72 As noted above, the Impairment Tables are used to determine whether a person meets an impairment threshold such that they may qualify for DSP. Each table, which corresponds with a type of condition, provides that a person may receive between zero and 30 points with respect to a condition, depending on whether the functional impact on them ranges from minimal to extreme. The threshold to be eligible for DSP is an impairment rating of 20 or more points under the Impairment Tables. A person may meet this threshold under one single table,[97] meaning that their impairment will be classified as 'severe', and they will be regarded as having satisfied the requirement that they have a continuing inability to work.[98] A person may also satisfy this threshold through accruing points in relation to impairments assessed across multiple tables (for example, they may receive two sets of 'moderate' impairment ratings).[99] However, in these cases although they reach the requisite 20 points, their impairment will not be regarded as severe,[100] and so to satisfy the requirement that they have a continuing inability to work, they must also have participated in a program of support for at least 18 months (which may have occurred during the three years prior to their claim).[101] As such, a person with complex co-morbidities who does not accrue 20 points within a single impairment table, would need to meet this additional requirement before qualifying for DSP. This means that people with different types of disability, and intersecting types of disability, may be treated differently according to this DSP eligibility criteria. As such, the assessment criteria would appear to limit the right to equality and non-discrimination on the basis of the type of disability a person is experiencing.
2.73 Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[102] The minister stated that the objective behind limiting eligibility for DSP is to provide targeted assistance to those who are unable to work to fully support themselves because of their disability or medical condition. Protecting the resources of a social security system by targeting assistance to people who cannot work to support themselves likely constitutes a legitimate objective.[103] However, it is not clear that this measure is rationally connected to (that is, effective to achieve) the stated objective of targeting assistance towards those who cannot fully support themselves. This is because people with complex co-morbidities which attract 20 points through multiple impairment tables, and who are unable to support themselves through work, are also required to meet the significant additional requirement of completing a program of support for 18 months, during which time they would not be eligible for DSP. Persons in this cohort would not receive targeted assistance intended for people who cannot work to support themselves.
2.74 Further information was sought as to whether the measure is necessary and proportionate, which is relevant to an assessment of whether the differential treatment of people with different disabilities is permissible. The minister stated that assessments undertaken for the purposes of determining eligibility for DSP are individual assessments against the criteria. They stated that there is a level of discretion for assessors to determine eligibility, for example, discretion as to what is considered reasonable treatment, taking into account the availability and cost of available treatments.[104] However, there would not appear to be flexibility to provide someone with immediate access to DSP where they have demonstrated complex co-morbidities across a range of impairment tables even though they have not accrued 20 points within one single table. The minister stated that a person can seek internal review of a decision, and if they still have concerns about the correctness of the decision, they can seek review by the Administrative Appeals Tribunal free of charge. While the availability of review is often an important safeguard, it is noted that if a decision were made correctly in accordance with the eligibility criteria, and only limited discretion is provided to assessors in determining that eligibility, it is not clear that the availability of review would provide significant safeguard value. Noting the requirement for persons with co-morbidities to undergo an 18 month program of support before they are eligible for DSP, the points in the impairment tables in this determination may not constitute a permissible limitation on the right to equality and non-discrimination on the basis of disability.
2.75 Further, the UN Committee on the Rights of Persons with Disabilities has cautioned that medicalised models of assessing disability are inappropriate and are not consistent with the Convention on the Rights of Persons with Disability:
Individual or medical models of disability prevent the application of the equality principle to persons with disabilities. Under the medical model of disability, persons with disabilities are not recognized as rights holders but are instead “reduced” to their impairments. Under these models, discriminatory or differential treatment against and the exclusion of persons with disabilities is seen as the norm and is legitimized by a medically driven incapacity approach to disability...The human rights model of disability recognizes that disability is a social construct and impairments must not be taken as a legitimate ground for the denial or restriction of human rights. It acknowledges that disability is one of several layers of identity. Hence, disability laws and policies must take the diversity of persons with disabilities into account.[105]
2.76 The UN Committee on the Rights of Persons with Disabilities has recommended that States parties adopt a human rights-based approach to disability rather than a medical model, and that definitions of disability make explicit reference to the barriers faced by persons with disabilities.[106] It has also recommended that eligibility criteria and assessments for specific social welfare benefits accord with the human rights model of disability,[107] and has made recommendations to Australia regarding eligibility for the NDIS in this respect.[108]
2.77 In relation to the rights to social security and an adequate standard of living, a person who would be required to complete a program of support for 18 months, or a person who is found to be ineligible for DSP on the basis of the assessment tables in this instrument, may be eligible for the Jobseeker income support payment. However, this social welfare payment is significantly lower than DSP.[109] In April 2023, Australia's Interim Economic Inclusion Advisory Committee advised that the JobSeeker payment is not sufficient for a person to meet their basic needs.[110] As such, by restricting access to the DSP in the manner set out in the instrument, it appears there is a risk that Australia is not fulfilling its minimum core obligations regarding the rights to social security and an adequate standard of living, such that when persons are ineligible for the DSP they are still provided with a minimum essential level of benefits.[111]
2.78 Further information was also sought as to whether any of the amendments in this legislative instrument are retrogressive when compared with the previous legislative instrument. The minister advised that none of the amendments are retrogressive. The minister noted that the increase in the number of descriptors a person is required to meet under Table 7 - Brain Function, which could be misconstrued as a backward step, was a result of adding a social skills descriptor to this Table to address concerns around the representation of difficulties experienced by people with neurodiverse conditions. The minister stated that key organisations, including medical professionals have indicated that, while this is an increase in the requirement, it is important for social skills to be reflected and appropriate for the requirement to be raised as the vast majority of people assessed under Table 7 would experience difficulties with social skills and would be able to achieve at least 2 descriptors. Given that the inclusion of additional indicators in Table 7 expands the factors that may contribute to a person's impairment assessment, it appears the instrument is not retrogressive.
2.79 The committee thanks the minister for this response. The committee notes that by supporting the provision of a social security payment specifically to support persons with disability, this instrument (in setting out the rules for assessing eligibility for DSP) promotes the rights to social security, an adequate standard of living, equality and non-discrimination and the rights of persons with disability for those who are eligible. However, restricting which persons with disability may be eligible for the DSP also engages and limits these rights.
2.80 The committee notes the minister's advice that DSP is not a universal basic income for people with disability, but provides targeted assistance to those who are unable to work to fully support themselves because of their disability or medical condition. The committee agrees that protecting the resources of a social security system by targeting assistance to people who cannot work to support themselves is a legitimate objective. However, noting the above advice, there are questions as to whether this assessment instrument is effective to achieve the stated objective of targeting assistance towards those who cannot fully support themselves – noting that those with complex co-morbidities may also need to complete a program of support for 18 months before being eligible for DSP. Therefore, in setting the Impairment Tables this instrument may not constitute a permissible limitation on the right to equality and non-discrimination based on disability. Further, noting that the JobSeeker payment is the available social security benefit for those ineligible for DSP, and noting concerns that have been raised as to whether that payment is sufficient to meet a person's basic needs, it is not clear if restricting access to the DSP in the manner set out in the instrument may result in Australia not fulfilling its minimum core obligations regarding the rights to social security and an adequate standard of living.
2.81 The committee draws these human rights concerns to the attention of the minister and the Parliament.
Mr Josh Burns MP
Chair
[78] Parliamentary Joint Committee on Human Rights, Report 4 of 2023 (29 March 2023), pp. 35-42.
[79] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 [F2011L02716] was due to sunset on 1 April 2022. The Legislation (Deferral of Sunsetting – Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011) Certificate 2022 [F2022L00127] deferred this to 1 April 2023.
[81] Explanatory statement, p. 12.
[82] Eligibility for DSP is assessed according to several criteria, including relevantly the requirements that the person: has a physical, intellectual or psychiatric impairment; the impairment is of 20 points or more under the Impairment Tables; and either the person has a continuing inability to work, or the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system. Section 94 of the Social Security Act 1991, which also sets out further criteria including that the person has turned 16 and meets residency requirements.
[83] International Covenant on Economic, Social and Cultural Rights, article 9. See also, UN Economic, Social and Cultural Rights Committee, General Comment No. 19: The Right to Social Security (2008).
[84] International Covenant on Economic, Social and Cultural Rights article 9; UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008).
[85] International Covenant on Economic, Social and Cultural Rights, article 11. See also, UN Human Rights Committee, General Comment No. 3: Article 2 (Implementation at a national level). The Committee explains that 'implementation [of the ICESCR] does not depend solely on constitutional or legislative enactments, which in themselves are often not per se sufficient. The Committee considers it necessary to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction'.
[86] Convention on the Rights of Persons with Disabilities, article 19.
[87] Convention on the Rights of Persons with Disabilities, article 28.
[88] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights. See also Convention on the Rights of Persons with Disabilities, article 5.
[89] Statement of compatibility, p. 72.
[90] See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [40].
[91] UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [59].
[92] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[93] UN Committee on the Rights of Persons with Disabilities, General comment No. 5 (2017) on living independently and being included in the community, [71].
[94] UN Committee on the Rights of Persons with Disabilities, General comment No. 6 (2018) on equality and non-discrimination, [29].
[95] UN Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Australia (2019), [51].
[96] The minister's response to the committee's inquiries was received on 18 April 2023. This is an extract of the response. The response is available in full on the committee's website.
[97] For example, there is found to be a severe functional impact resulting from a neurological or cognitive condition (including severe difficulties in relation to at least 2 specified matters, such as memory or comprehension, for example) under Table 7 – Brain Function, attracting 20 points.
[98] Social Security Act 1991. Subsection 94(2) defines a 'continuing inability to work' for the purposes of qualifying for DSP.
[99] For example, there may be found to be a moderate functional impact on activities using lower limbs under Table 3 – Lower Limb Function (an impairment attracting 10 points), and a moderate functional impact on activities involving mental health function (including difficulties with at least four specified matters, including interpersonal relationships, self-care and independent living, or decision-making for example) under Table 5 – Mental Health Function (also attracting 10 points). A person in these circumstances would accrue a total of 20 points.
[100] A 'severe impairment' is defined in subsection 94(3B) of the Social Security Act 1991 as an impairment of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
[101] Section 94 of the Social Security Act 1991 provides that a 'program of support' is designed to assist persons to prepare for, find or maintain work that is either funded (wholly or partly) by the Commonwealth, or is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth. See also, section 12 of the instrument, which specifies how the tables are to be applied where multiple conditions are present. The Services Australia website states that these programs of support currently include ParentsNext and Workforce Australia.
[102] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[103] See, Marcia Cecilia Trujillo Calero v. Ecuador, UN Committee on Economic, Social and Cultural Rights, Communication No. 10/2015, E/C.12/63/D/10/2015 (26 March 2018).
[104] Reasonable treatment is defined in section 8, which sets out how to apply the tables.
[105] UN Committee on the Rights of Persons with Disabilities, General comment No. 6 (2018) on equality and non-discrimination, [8]–[9].
[106] For example: Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Belgium (2014) [8]; Concluding observations on the initial report of the Czech Republic (2015) [8]; and Concluding observations on the initial report of Lithuania (2016) [5].
[107] Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland (2017) [58].
[108] UN Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Australia (2019) [5].
[109] The current maximum basic fortnightly payment rate for a single person on DSP is $971.50. The current maximum fortnightly payment rate for a single person with no children on Jobseeker is $693.10.
[110] Interim Economic Inclusion Advisory Committee, 2023–24 Report to the Australian Government. The Committee described the JobSeeker payment rate as 'seriously inadequate' when compared with pensions and other income poverty measures (p. 3).
[111] There may also be a cohort of persons who are found not to be eligible for DSP because they can work for more than 15 hours a week (but who are unable to work full-time because of their disability), and will not be eligible for JobSeeker because they have part-time employment, and who do not earn sufficient money in order to have an adequate standard of living.
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