12.10 Social security legislation includes the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth). Social security laws and legal frameworks are administered by the Department of Human Services through Centrelink in accordance with policies and processes developed by the Department of Social Services (Cth). The Department of Social Services produces a comprehensive electronic publication for Centrelink decision makers called the Guide to Social Security Law that details the processes for a wide variety of social security payments.
12.11 For some people who receive government benefits, Centrelink processes and practices are a regular feature of their daily lives. As a corollary, social security laws and legal frameworks can intersect with older persons experiencing, or at risk of, abuse. Stakeholders have identified that the risk of this potential intersection is high in relation to:
Carer Payment and Carer Allowance;
Assurance of Support requirements for older migrants on Contributory Parent and Parent Visas;
‘granny flat interests’ and exemptions to the ‘gifting rules’ in the context of the Age Pension; and
the payment nominee scheme.
12.12 The key payment available to unpaid carers is Carer Payment. It is income and asset tested, including the income and assets of the person receiving care. The amount to be paid is equivalent to the Age Pension. To qualify, a carer must personally provide constant and significant care to one or more adults or children with a disability in the home of the carer or the person receiving care.
Carer payments and elder abuse
12.13 The National Commission of Audit reported that 220,000 people were in receipt of Carer Payment in 2013. There is no available data on the composition of the cohort of people receiving care, but, as older people with dementia make up the largest proportion of people under guardianship, it is likely that older persons with intermittent or diminished decision-making ability or limited mobility make up a sizable proportion of people needing full-time carers.
12.14 Stakeholders identified a potential intersection between Carer Payment and elder abuse. UnitingCare Australia, for example, noted that data from Queensland’s Elder Abuse Helpline pointed to increased neglect of older people by recipients of Carer Payment. Stakeholders identified a number of examples of abuse of Carer Payment. The North Australian Aboriginal Legal Service advised that it was aware of
allegations about carers, often family members, who are receiving Centrelink carer payments and not providing proper care to older persons (including not providing proper or full meals and not assisting with the cleaning of households). In these situations, the local community or aged care service (if available or in existence) often fills this gap, despite funds being allocated to the individual carer for this purpose.
12.15 This case study from the National Aboriginal and Torres Strait Islander Legal Services is an illustrative example:
An elderly woman sought advice from a Brisbane civil lawyer on housing issues. The elderly woman resides with her daughter, who has locked her out of her own house. The daughter continued to claim Centrelink carers’ payments, despite her mother no longer residing with her. The elderly woman was effectively homeless and only has the clothes on her back, as all her property is held in the house. She has no way to retrieve the property. A Brisbane civil lawyer referred her to an appropriate legal service.
12.16 However, carer groups cautioned that checks and balances applicable to Carer Payment, which are already onerous for many carers, should not further lengthen or complicate the application process. Carers NSW suggested further scrutiny should only be applied where other risk factors were identified, and that any elder abuse strategy and associated training should not ‘disproportionately focus on carers as perpetrators, but rather include carers as potential victims and encourage staff to consider preventative responses to risk of abuse, including support referrals’.
12.17 There is a strong policy impetus to encourage and maintain full-time carers for older persons who need assistance. Carers provide an important and necessary service, and receive a social security payment in recognition of the fact that their caring duties mean that they are unable to receive regular income through paid employment. The WRC urged that ‘[i]t is important that false community perceptions about the incidence of carer abuse are not created, as this can undermine carers and deter carers from offering this invaluable support’.
Processes relating to Carer Payment
12.18 To show that the adult is a person with a disability or severe medical condition in need of a significant level of care, the needs of the adult requiring care are assessed using the ‘Adult Disability Assessment Tool’ (ADAT). This comprises two questionnaires that together measure the amount of assistance required to undertake ‘basic activities of daily living’, such as mobility, communication, hygiene, eating and management in a range of cognitive and behavioural activities. One questionnaire is to be completed by the potential recipient of the Carer Payment, and the other by a treating health professional, which may be the person’s general practitioner, registered nurse, occupational therapist, physiotherapist, a member of an Aged Care Assessment Team or an Aboriginal health worker.
12.19 A person receiving Carer Payment must notify Centrelink of changes in circumstances that may affect their qualification for the payment, including if they are no longer providing the required level of care to the care recipient.
12.20 The Department of Human Services conducts reviews of a random sample of social security payment recipients including recipients of Carer Payment. The review assesses the circumstances of the payment recipient to establish the accuracy of payment. In 2015–16, the survey indicated that approximately 96% of Carer Payments were accurately paid. It also uses ‘data analytics to improve and refine the detection of fraud and non-compliance’ as part of a broader ‘risk based compliance approach’.
12.21 There may be opportunities to improve Centrelink’s ability to safeguard older people against abuse by recipients of Carer Payment. These are explored as part of the discussion of actions that may be included in Centrelink’s elder abuse strategy.
Assurance of support
12.22 For older migrants experiencing abuse and who are in situations of financial dependence, there may be limited options for exiting the abusive situation. Older persons who enter Australia on a Contributory Parent Visa or Parent Visa (collectively referred to as parent visas) cannot access welfare benefits for determined time periods, and are required to enter under an assurance of support (AoS). The Guide to Social Security Law states that ‘[t]he primary objective of the AoS scheme is to protect social security outlays while allowing the migration of people who might otherwise not normally be permitted to come to Australia’.
12.23 An AoS is a commitment by a person or organisation (the ‘assurer’) to provide financial support to a person applying to migrate (the ‘assuree’) so that they will not have to rely on social security payments. However, during the 10-year disqualification period, if an older person’s circumstances ‘change beyond their control’, they may be eligible for a Special Benefit Payment. A Special Benefit Payment is usually paid at the same rate as the Newstart Allowance. Where an older migrant accesses such a payment during the AoS period, it is recoverable as a debt to be paid by the assurer.
12.24 Stakeholders submitted that older migrants in Australia on parent visas are particularly vulnerable to abuse and that Centrelink benefits should be accessible to older migrants on parent visas experiencing abuse, similar to migrants on spousal visas. Some stakeholders called for a general review of the 10-year waiting period.
12.25 Older migrants on parent visas who apply for a Special Benefit Payment within the 10-year disqualification period, must be contacted by a Department of Human Services officer, before the payment is granted, to ascertain whether the assurer is willing and able to provide support and whether it is reasonable for the assuree to accept that support.
12.26 If the situation is considered as possibly involving domestic or family violence, the policy provides that the assurer should not be contacted, and a social worker should be involved. Specifically:
specialist Centrelink staff should interview the person with an independent interpreter present;
the person should be referred to a social worker if a risk of harm or abuse is identified;
the social worker may refer them to relevant services (eg, accommodation); and
the social worker should advise Centrelink when the situation has stabilised (eg, the person has been settled in alternative accommodation).
12.27 Legal Aid NSW suggested that in AoS arrangements, Centrelink should specifically consider elder abuse before contacting the assurer when an older person applies for a Special Benefit Payment.
12.28 Specific actions under the proposed elder abuse strategy that may address this concern include amending the Guide to Social Security Law to provide specific guidance on elder abuse, including, for example, about when a person should be referred to a social worker.
12.29 Legal Aid NSW identified that the prospect of having a debt raised against their child may be a specific barrier to seeking support and assistance for older migrants on parent visas experiencing elder abuse. They noted that, while the parent can claim a Special Benefit Payment, ‘many are reluctant to do so, as the child will need to repay the amount the aged parent receives under the Special Benefit in that first 10 years’.
12.30 A debt under an AoS scheme may be waived if ‘special circumstances’ apply. In determining whether special circumstances exist, the circumstances of the assuree can be taken into account. The assuree’s circumstances must relate to the appropriateness of recovering the debt. The Guide to Social Security Law states that special circumstances are ‘unusual, uncommon or exceptional’. It does not provide any specific guidance on whether either elder abuse or domestic or family violence may constitute a special circumstance. In the context of family violence, in its 2011 Report the ALRC recommended that the Guide to Social Security Law should refer to family violence as an example of a ‘special circumstance’ for the purposes of waiving a debt. A similar approach could be considered in relation to elder abuse.
12.31 There is scope for Centrelink to increase community awareness of AoS arrangements, and the circumstances in which an older migrant may access Centrelink payments. These are explored as part of the discussion of actions that may be included in Centrelink’s elder abuse strategy.
Payment nominee scheme
Recommendation 12–2 Payments to nominees should be held separately from the nominee’s own funds in a dedicated account nominated and maintained by the nominee.
12.32 A person in receipt of social security payments (the ‘principal’) can appoint another person to assist them to interact with Centrelink or to interact on their behalf. A principal may have a ‘payment nominee’ and a ‘correspondence nominee’. The payment and correspondence nominee may be the same person. A correspondence nominee receives any social security notice on behalf of the principal (including, for example, in relation to an obligation to report changes), and can make enquiries and attend appointments with Centrelink on behalf of the principal. A payment nominee receives payments on behalf of the principal. The payment is made into an account nominated and maintained by the nominee.
12.33 Stakeholders identified the potential for elder abuse in the payment nominee scheme, and some provided examples of misuse. ADA Australia, for example, advised that it receives many complaints regarding payment nominees taking a person’s pension. It noted that, while the ‘pension is obviously necessary to the older person’, the ‘amount taken is often not sufficient to pursue through other legal means’.
12.34 There are several statutory safeguards against financial abuse by payment nominees, including:
oversight of nominee appointments—‘particular scrutiny’ of the appointment is to be given in certain circumstances;
the requirement for payment nominees to keep and supply records;
the statutory obligations of the nominee to act in the ‘best interests of the principal’;
revocation or suspension of nominee appointments following a written request or where the nominee has not provided records;
processes for allegations of misuse—including referral to a social worker; and
reporting requirements—a nominee is to advise of any matter that affects their ability to act as a nominee.
12.35 There are clear policy reasons why a nominee should not be able to access the principal’s account. The nominee arrangement does not grant the nominee an unconditional power of attorney. They act on behalf of the principal only in relation to the receipt and management of social security payments. The arrangement does not authorise the nominee to deal with other funds the principal may hold. The nominee’s access to the principal’s funds is restricted to the designated social security payments, which they are authorised to receive on behalf of the principal under the nominee arrangement unless other arrangements, such as an enduring power of attorney, are also in place.
12.36 However, the ALRC considers that a payment nominee should be required to keep their own funds separate from social security payments they receive on behalf of the principal. This can be achieved by inserting a default requirement that a payment nominee maintain a separate account on behalf of the principal. This would reiterate and emphasise the payment nominee’s current duty to act in the ‘best interests of the principal’. It may also assist in investigating allegations of misuse by making it easier to track the source of funds for a given expenditure. The ALRC acknowledges that this places an additional burden on the nominee. However, the ALRC considers that a default requirement to hold social security payments received on behalf of the principal separate from the nominee’s own funds strikes an appropriate balance. There is scope for Centrelink to vary the arrangement if the requirement would cause undue hardship to the nominee or the principal.
See ch 6 for a discussion of these issues.
Department of Social Services, Guide to Social Security Law (2014) [22.214.171.124], [126.96.36.199]. A Carer Allowance is also available as a regular extra payment for ‘additional daily care at home’ to a child or adult with a disability. It is not income or assets tested, and is a supplement that may be paid in addition to wages or a social security payment: Department of Human Services (Cth), Payments for Carers <www.humanservices.gov.au>. An annual Carer Supplement is also available: Department of Social Services, Guide to Social Security Law (2014) [3.6.13].
Department of Human Services (Cth), Income and Assets Tests for Carer Payment <www.humanservices.gov.au>; Social Security Act 1991 (Cth) ss 198A(1), 198D.
Social Security Act 1991 (Cth) s 201.
For definitions see case law cited: Law Book Company, Laws of Australia, Vol 22 (at 31 October 2016) 22 Insurance and Income Security, ‘22.3 Social Security’ [22.3.1480].
Social Security Act 1991 (Cth) ss 197–198. There are some exceptions: ss 198AAA, 198AA, 198AB.
National Commission of Audit, ‘Carer Payments’ in The Report of the National Commission of Audit [9.10].
See ch 2.
National Older Persons Legal Services Network, Submission 363; Law Council of Australia, Submission 351; Darwin Community Legal Service Aged and Disability Advocacy Service, Submission 316; Seniors Rights Service, Submission 296; UnitingCare Australia, Submission 216.
UnitingCare Australia, Submission 216.
North Australian Aboriginal Legal Service, Submission 116.
National Aboriginal and Torres Strait Islander Legal Services, Submission 135.
Carers NSW, Submission 321.
Welfare Rights Centre NSW, Submission 184.
Ibid. See also Carers Victoria, Submission 348.
Department of Social Services (Cth), Guide to Social Security Law (2016) [3.6.9].
See forms for Adult Disability Assessment Determination 1999 and Carer Payment and/or Carer Allowance Medical Report for a Person 16 Years or Over: <www.humanservices.gov.au>.
Department of Human Services (Cth), Change of Circumstances While Receiving Carer Payment <www.humanservices.gov.au>.
Department of Social Services (Cth), Department of Social Services Annual Report 2015–2016 (2016) 112 <www.dss.gov.au>.
Ibid Table 3.1.1. This is above the target of 95%: Ibid 112.
Department of Human Services (Cth), above n 3, 119.
Ibid 116, 119.
Most older migrants enter Australia on a Contributory Parent Visa, which requires a 10-year AoS, and aligns with the 10-year waiting period to qualify for the Age Pension.
Department of Social Services, Guide to Social Security Law (2014) [188.8.131.52].
Ibid. The National Social Security Network submitted that the Special Benefit Payment should be paid at the Age Pension rate. This is a broader social policy and budgetary question that is beyond the scope of this Inquiry.
Department of Human Services (Cth), Special Benefit <www.humanservices.gov.au>.
Department of Social Services, Guide to Social Security Law (2014) [184.108.40.206].
Justice Connect Seniors Law, Submission 362; Disabled People’s Organisations Australia, Submission 360; Legal Aid NSW, Submission 352; Seniors Rights Service, Submission 296; FECCA, Submission 292; National Welfare Rights Network, Submission 151; Eastern Community Legal Centre, Submission 177; Seniors Rights Service, Submission 169; People with Disability Australia, Submission 167; National Welfare Rights Network, Submission 151; Legal Aid NSW, Submission 140; ACT Disability, Aged and Carer Advocacy Service, Submission 139; Social Work Department Gold Coast Hospital and Health Service, Queensland Health, Submission 30.
Welfare Rights Centre NSW, Submission 184; Eastern Community Legal Centre, Submission 177; Seniors Rights Service, Submission 169; ARAS, Submission 166; National Welfare Rights Network, Submission 151.
See eg, Disabled People’s Organisations Australia, Submission 360; People with Disability Australia, Submission 167; ARAS, Submission 166.
Department of Social Services, Guide to Social Security Law (2014) [9.4.7].
Ibid [220.127.116.11], [9.4.7].
Department of Human Services (Cth), Social Work Services <www.humanservices.gov.au>.
Department of Social Services, Guide to Social Security Law (2014) [9.4.7].
Legal Aid NSW, Submission 140.
The Guidelines for Social Worker Involvement state that customers ‘who are experiencing or at risk of domestic or family violence’ should be offered a referral to a social worker. There is no specific reference to elder abuse: Department of Social Services, Guide to Social Security Law (2014) [18.104.22.168].
Legal Aid NSW, Submission 140.
Social Security Act 1991 (Cth) s 1237AAD(2).
Department of Social Services, Guide to Social Security Law (2014) [22.214.171.124].
Australian Law Reform Commission, Family Violence and Commonwealth Laws—Improving Legal Frameworks, Report No 117 (2012) rec 9–9.
Social Security (Administration) Act 1999 (Cth) pt 3A.
Ibid s 123F(2).
See, eg, Welfare Rights Centre NSW, Submission 184; Eastern Community Legal Centre, Submission 177; Caxton Legal Centre, Submission 174; Seniors Rights Victoria, Submission 171; National Seniors Australia, Submission 154; Australian Association of Social Workers, Submission 153; Office of the Public Advocate (Qld), Submission 149; Legal Aid NSW, Submission 140; State Trustees Victoria, Submission 138; North Australian Aboriginal Legal Service, Submission 116.
Seniors Rights Victoria, Submission 171; Legal Aid NSW, Submission 140.
ADA Australia, Submission 150.
Department of Social Services (Cth), Guide to Social Security Law (2016) [8.5.3]. ‘Particular scrutiny’ must be given to nominee requests where the proposed nominee runs a boarding or room establishment; where there are multiple voluntary nominee appointments for the same nominee; or where the nominee does not live in the same residence or in close proximity to the principal. A delegate can revoke an appointment where the delegate decides that the appointment is not in the best interest of the principal, and can direct payments to another person.
Social Security (Administration) Act 1999 (Cth) s 123L. Where a review is undertaken, nominees must supply records, otherwise a fine may apply.
Ibid s 123O(1). In the Equality, Capacity and Disability in Commonwealth Laws Report, the ALRC recommended that ‘best interests’ standards should be replaced by a standard of ‘will, preferences and rights’: Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) rec 10–1, [10.10].
Ibid s 123E. The Secretary can suspend or revoke appointments following a written request to the Secretary from the nominee; or where the nominee has not complied with a notice to produce records.
Department of Social Services (Cth), Guide to Social Security Law (2016) [8.5.3]. The delegate may be able to revoke the arrangement under the above powers if a social worker is not immediately available.
Social Security (Administration) Act 1999 (Cth) s 123K.
Ibid s 123O.