Special Disability Trusts – Part 2: Eligibility Requirements

Welcome to the second article in our series on Special Disability Trusts (SDTs), where we hope to demystify particular aspects of these trusts, and highlight the benefits, eligibility requirements and restrictions to look out for.

As discussed in our previous article in this series, the two main benefits of establishing a SDT for a vulnerable person are:

  1. Protecting the person from poor decision making and exploitation from others; and
  2. Preserving the person’s receipt of the Disability Support Pension (DSP).

However, it is important to note that being in receipt of the DSP does not automatically qualify a person to be the principal beneficiary of a SDT.

To be eligible for a SDT, the principal beneficiary must meet the definition set out in s1209M of the Social Security Act 1991 (Cth).  There is one definition for a person 16 years of age or older and another definition for a person who is under 16 years of age. 

Principal Beneficiary is 16 years of age or older

If the principal beneficiary has reached 16 years of age, they must:

  1. qualify for the DSP; or
  2. be receiving an invalidity service pension under Part III of the Veterans’ Entitlements Act; or
  3. be receiving income support supplement under the Veterans’ Entitlements Act on the grounds of permanent incapacity;

AND

  1. have a disability that would (if they had a sole carer) qualify the carer for carer payment or carer allowance (whether or not the carer actually applies for this); or
  2. be living in an institution, hostel or group home in which care is provided for people with disabilities, which is partly or wholly funded under an agreement between the Commonwealth and the States and the Territories;

AND

  1. because of the disability, are not working or they are unlikely to work more than 7 hours per week at or above the minimum wage; or
  2. because of the disability, be working for wages under the Commonwealth “supported wage system”.

Principal Beneficiary is under 16 years of age

If the principal beneficiary is under 16 years of age, they must:

  1. have a severe disability or a severe medical condition;

AND

  1. a carer has been given a qualifying rating of intense under the Disability Care Load Assessment (child) Determination for caring for the principal beneficiary;

AND

  1. a treating health professional has certified in writing that because of the disability or condition:
    • the principal beneficiary will need personal care for 6 months or more; and
    • the personal care is required to be provided by a specified number of persons:

AND

  1. the carer has certified in writing that the principal beneficiary will require the same care or an increased level of care in the future.

The Social Security Guide (as at 1 April 2021) defines:

  • “severe disability” as physical, intellectual and/or psychiatric disability or disabilities;
  • “severe medical condition” as an intellectual, psychiatric, behavioural or physical condition;

“that result in the child requiring, permanently or for an extended period, a high level of constant care to maintain comfort, sustain life, or attend to a bodily function that the child cannot manage themselves”.

How we can help

Whilst the eligibility requirements may seem complex, the benefits of establishing a SDT for a vulnerable beneficiary can be significant, including preserving their DSP entitlements and associated benefits such as the Health Care Card.

Before a SDT is established to hold assets for a vulnerable beneficiary, it is imperative to receive confirmation from Centrelink that the intended beneficiary qualifies. Otherwise, assets could be trapped in a SDT with its stringent requirements and restrictions on expenditure and investments, without all of the hoped for benefits.

Look out for the next article in this series, when we discuss the eligibility requirements and other considerations in deciding who to appoint as the trustees of a Special Disability Trust. For more information or expert advice, please do not hesitate to contact us.

Authors