Independent

6.72 Whether a person is ‘independent’ can affect his or her qualification for, or rate of payment of, Youth Allowance, Disability Support Pension, Special Benefit and Pensioner Education Supplement.^[71] It can also affect whether a person is paid a social security payment directly or through a parent.^[72]

6.73 These payments may be assessed on the basis that the person is independent of, or dependent on, his or her parents. If a person is assessed as dependent, the parents’ income and assets are considered in determining eligibility. This is based on the presumption that parents with sufficient resources will provide financial and material support to their children.^[73]

6.74 There are a number of circumstances in which a person may be considered ‘independent’. Of most relevance to victims of family violence is the provision for independence where it is ‘unreasonable to live at home’. To be considered independent in these circumstances, it must be unreasonable for the person to live at home and the person must not be receiving ‘continuous support’. These two criteria are discussed separately below.

Unreasonable to live at home

6.75 The Social Security Act provides that a person is regarded as ‘independent’ if he or she:

(a) cannot live at the home of either or both of his or her parents:

(i) because of extreme family breakdown or other similar exceptional circumstances; or

(ii) because it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well-being due to violence, sexual abuse or other similar [exceptional or unreasonable] circumstances.^[74]

6.76 In addition, for Youth Allowance, Disability Support Pension and Special Benefit, a person is considered ‘independent’ if the person cannot live at the home of his or her parents:

(iii) because the parent or parents are unable to provide the person with a suitable home owing to a lack of stable accommodation.^[75]

6.77 These three circumstances are considered separately below.

Extreme family breakdown

6.78 The Guide to Social Security Law states that family breakdown must be ‘extreme’, and the existence of ongoing conflict alone is insufficient grounds to consider a person independent under this criteria. Factors that may indicate extreme family breakdown are said to include evidence that the emotional or physical wellbeing of the person or another family member would be jeopardised if the person were to live at home.^[76]

6.79 Examples of other ‘similar exceptional circumstances’ include ‘severe neglect’, ‘criminal activity or substance abuse by the parents’, ‘extreme and abnormal demands’ on the young person, and refusal to permit the young person to work or study.^[77] The Guide to Social Security Law also provides that where ‘parents refuse to allow the young person to live at home, this does not constitute “extreme family breakdown” unless there is evidence of extreme and enduring family conflict’.^[78]

Serious risk to physical or mental well-being

6.80 The Guide to Social Security Law provides that indicators of ‘serious risk’ to a young person’s physical or mental wellbeing include ‘sexual, physical or psychological abuse’. The Guide recognises that the claimant need not be the direct victim of abuse and that it would usually be accepted as unreasonable to expect the claimant to live in a home where other household members have been or are being subject to such abuse.^[79]

6.81 In a submission to the 2005 Senate Employment, Workplace Relations and Education References Committee Inquiry into Student Income Support, the University of Queensland Union submitted that ‘it is left up to policy and, in practice, subjective judgement, to define violence’ and that ‘despite the fact that policy makes reference to risk to mental wellbeing, including psychological abuse, in our experience, assessing officers/social workers can be reluctant to consider violence that is not overt and visible as serious enough to warrant qualification for independent YA [Youth Allowance]’. The University of Queensland Union raised further concerns that ‘Centrelink policy in this regard is endorsing an acceptance of “conflict” which is normal in our communities, and that this extends to conflict relating to sexual, political and religious choice. At the same time as accepting a level of conflict as “normal”’.^[80]

Parents unable to provide a home

6.82 The Guide to Social Security Law does not refer to family violence as a circumstance where it may be considered that a person’s parents are unable to provide a home. Rather, the Guide to Social Security Law states that a person may be considered independent where a parent is unable to provide a suitable home because the parent lacks stable accommodation.^[81]

Continuous support

6.83 In addition, to be considered ‘independent’, the person must not be in receipt of ‘continuous support’ from a parent, guardian or income support (other than a social security benefit) from the Commonwealth, or a state or territory.^[82] Continuous support is defined in the Guide to Social Security Law as ‘regular and ongoing assistance to the young person’s upkeep’.^[83] The onus is on the applicant to provide relevant supporting information.

6.84 The Social Security Issues Paper referred to a case reviewed by the Commonwealth Ombudsman in which a young person—who had left her home due to family violence—was not found to be independent because she was receiving continuous support from her father, who resided interstate. Her Youth Allowance payment was later cancelled because she was unable to provide details of her father’s income or assets. Consequently, she was left without income support for over two months.^[84]

6.85 The Ombudsman, in this case, found it unreasonable for Centrelink to put the onus solely on a young person to obtain income and asset details from a parent the young person is not residing with, or with whom the young person might have had minimal contact.^[85]

Submissions and consultations

6.86 In the Social Security Issues Paper, the ALRC asked whether the criteria for a person to be considered ‘independent’ adequately took into account the existence of family violence. The ALRC also asked in what ways, if any, the Guide to Social Security Law shouldbe amended in relation to the ‘continuous support’ criteria to improve the safety of victims of family violence.^[86]

Unreasonable to live at home

6.87 Most stakeholders who responded to these questions suggested that family violence needs to be recognised expressly as a circumstance when it may be unreasonable for a person to live at home.^[87] In doing so, stakeholders expressed the need to ensure that the decision maker takes into account other less visible forms of family violence, such as economic abuse.^[88] Women Everywhere Advocating Violence Elimination (WEAVE) and NCSMC considered that child abuse should be expressly considered.^[89] For example, the Homeless Person’s Legal Service considered that:

Unless express reference is made to family violence there is a risk that some of these elements of family violence [economic abuse, emotional abuse, stalking, deprivation of liberty, damage to property and causing a child to be exposed to violent or abusive behaviour] will not be considered by decision-makers as sufficiently extreme to be considered in the determination of whether a person is independent.^[90]

6.88 The Welfare Rights Centre NSW recommended that family violence should be a stand-alone criterion upon which independence may be established:

the existence of family violence should be an express criterion upon which independence may be established.^[91]

6.89 Similarly, the Welfare Rights Centre Inc Queensland noted that, while legislation currently refers to violence, sexual abuse, or other similar [exceptional or unreasonable] circumstances, family violence has specific connotations and therefore should be expressly referred to in this context.^[92]

6.90 In addition, the National Children’s and Youth Law Centre submitted that the ‘test of independence in extreme family breakdown should be reviewed to accommodate situations where the child’s parents refuse to allow the child to live at home’ and that the test in relation to ‘extreme family breakdown’ should not be of such a high threshold’.^[93]

6.91 WEAVE submitted that the response by Centrelink staff is ‘highly variable depending on whether the staff member carries a belief that young people make up family conflict to rort the system or a belief that young people can be victims of violent parents’.^[94]

Continuous support

6.92 In relation to the ‘continuous support’ requirement, stakeholders raised concerns that the bulk of the burden for establishing independence was placed on the young person^[95] and that that the ‘continuous support’ criterion does not look to the adequacy of support.^[96]

6.93 The Welfare Rights Centre Inc Queensland submitted that the continuous support requirement can potentially act as a tool for further control of a victim where a legal guardian claims to be providing support, however according to the client, no such support exists.^[97]

6.94 Similarly, the Welfare Rights Centre NSW and the National Children’s and Youth Law Centre submitted that a family breakdown may mean that a young person is unable to ‘obtain information of parental income and assets to determine eligibility for a claim’^[98] and that ‘it may not be in the best interests of a young person to seek this information from parents when the nature of the domestic environment is openly hostile or violent’.^[99]

6.95 Accordingly, stakeholders who responded to this question agreed that the onus should not be placed on a young person to obtain details of a parent’s income or assets in circumstances of family violence.^[100] As a possible solution, stakeholders recommended that the onus of ‘continuous support’ should be shifted to the parents;^[101] or be disregarded in circumstances of family violence.^[102]

6.96 The Welfare Rights Centre Inc Queensland, who supported removing the requirement of continuous support for victims of family violence, considered that there is scope in the legislation surrounding fraudulent or misleading information as well as a general ability of the Commonwealth to recover monies paid when entitlements are claimed by such methods and that ‘these provisions are strong enough to account for the potential of misuse if this onus were to be removed’.^[103]

6.97 Alternatively, the Welfare Rights Centre NSW suggested that Centrelink use its powers under s 192 of the Social Security (Administration) Act to get financial information from parents in circumstances of family violence. However, the Welfare Rights Centre NSW noted that ‘Centrelink is reluctant to use the extensive powers in this section [192] for the benefit of income support recipients’.^[104]

ALRC’s views

6.98 In order to be considered ‘independent’ because it is unreasonable for the person to live at home, a person must satisfy two criteria: that it is unreasonable to live at home and that the person is not in receipt of continuous support.

Unreasonable to live at home

6.99 The ALRC considers that it may be appropriate for the Guide to Social Security Law to expressly refer to family violence to ensure that all forms of family violence are captured either as a circumstance of ‘extreme family breakdown’ or ‘serious risk to physical or mental well-being’.

6.100 Family violence, child abuse and neglect are not expressly included as a ‘serious risk to a person’s physical or mental well-being’ in the Social Security Act. The provision currently takes into account sexual, physical and psychological abuse of a child through interpretation in the Guide to Social Security Law. While the Guide to Social Security Law states that ‘severe neglect’ may be a ‘similar exceptional circumstance’ of ‘extreme family breakdown’, a similar provision is not made for as a ‘serious risk to a person’s physical or mental well-being’. The Guide to Social Security Law does provide, however, where allegations of child abuse or serious risk of abuse or neglect, referral should be made to a social worker.^[105]

6.101 In the ALRC’s preliminary view, the term ‘violence’ should be replaced by ‘family violence’. Proposal 3–1, which sets out a definition of family violence for social security legislation, complements this approach. ‘Family violence’captures a wider range of conduct than ‘violence’, insofar as that conduct is violent, threatening, controlling, coercive or engenders fear. Examples of conduct contained in the family violence definition which may not be caught by ‘violence’ include psychological or emotional abuse, deprivation of liberty, and exposing a child to family violence.

6.102 In the ALRC’s view, the existing interpretation in the Guide to Social Security Law are too limited, and should be amended to include child abuse and neglect.

Serious risk to physical or mental well-being

6.103 For it to be considered unreasonable for a person to live at home, the decision maker must be satisfied of a ‘serious risk’ to a person’s ‘physical or mental well-being’. This requires judgment as to whether there is a risk of harm to a person’s wellbeing, and whether such a risk is ‘serious’. The ALRC considers that the requirement for such judgment is unsuitable; and implies that family violence, child abuse and neglect may not harm a person’s physical or mental wellbeing in some cases. This is inconsistent with contemporary evidence about the effects of these factors on child developmental and health outcomes.

6.104 In the ALRC’s preliminary consideration, the very fact of family violence, child abuse or neglect should enable a decision that it is unreasonable for a person to live at home, without the need to prove that such conduct had a certain effect on the person.

Continuous support

6.105 The ALRC has identified three main concerns with the ‘continuous support’ requirement from stakeholder comments. First, the requirement may put a victim of family violence at risk of further violence, or the person may decide not to claim the independent rate due to fear of further violence. Secondly, despite reporting receipt of continuous support, a victim of family violence may not be receiving the support due to economic abuse. Thirdly, that the amount of continuous support is not taken into account and therefore may not be adequate.

6.106 Potential solutions provided by stakeholders included waiver or exemptions from the continuous support requirement, shifting the onus onto parents or legal guardians to provide evidence of continuous support or that Centrelink use its powers under the Social Security Act to collect such information.

6.107 In relation to the amount of continuous support, the ALRC considers that this is an overarching concern that would affect not only victims of family violence and therefore does not make a proposal about this matter.

Waiver

6.108 Some stakeholders recommended that the requirement to demonstrate whether or not a person was receiving continuous support should be waived in its entirety for victims of family violence. The ALRC understands that the requirement that a person is not in receipt of continuous support works to ensure that people who are not in need of support do not gain support—reflecting the theme of ‘fairness’ discussed in Chapter 2. In addition, to waive the requirement for victims of family violence only may also raise concerns of a two-tiered system. The ALRC therefore considers that there is still need for the ‘continuous support’ requirement rather than waiving the requirement for victims of family violence.

Parents to provide details

6.109 To require parents to provide their own details of any continuous support would not remedy the issue of whether or not a young person actually receives the support. In addition, a parent may refuse to do so. The ALRC therefore considers that shifting the onus onto a parent to provide information about continuous support would not address stakeholder concerns.

Centrelink powers

6.110 Centrelink’s powers under ss 192–195 of the Social Security (Administration) Act allow Centrelink to collect internal and external evidence about a customer’s circumstances and are primarily used to collect information to establish an individual’s eligibility or correct entitlements.^[106] The ALRC considers that the use of such powers may be the best way to collect information about continuous support in circumstances of family violence. However, DEEWR and Centrelink may be able to determine alternative strategies.

6.111 In the Social Security Issues Paper, the ALRC also raised the issue of receiving payment directly. Payment of Youth Allowance is made to the person unless under 18 years of age and not independent, in which case, the payment is paid to a parent of the young person.^[107] The ALRC considers that if improvements are made to ensure that victims of family violence are considered independent for Youth Allowance and other payments, then a person will be paid directly under the current legislative framework.