Part B—Social Security

Chapters

5. Social Security—Overview and Overarching Issues

6. Social Security—Relationships

7. Social Security—Proof of Identity, Residence and Activity Tests

8. Social Security—Payment Types and Methods, and Overpayment

Proposals and Questions in this Part

Proposal 5–1         The Guide to Social Security Law should be amended to include:

(a)      the definition of family violence in Proposal 3–1; and

(b)     the nature, features and dynamics of family violence including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children.

In addition, the Guide to Social Security Law should refer to the particular impact of family violence on: Indigenous peoples; those from a culturally and linguistically diverse background; those from the lesbian, gay, bisexual, trans and intersex communities; older persons; and people with disability.

Proposal 5–2         Centrelink customer service advisers, social workers and members of the Social Security Appeals Tribunal and Administrative Appeals Tribunal should receive consistent and regular training on the definition of family violence, including the nature, features and dynamics of family violence, and responding sensitively to victims of family violence.

Proposal 5–3         The Guide to Social Security Law should be amended to provide that the following forms of information to support a claim of family violence may be used, including but not limited to:

• statements including statutory declarations;
• third party statements such as statutory declarations by witnesses, employers or family violence services;
• social worker’s reports;
• documentary records such as diary entries, or records of visits to services, such as health care providers;
• other agency information (such as held by the Child Support Agency);
• protection orders; and
• police reports and statements.

Proposal 5–4         The Guide to Social Security Law should be amended to include guidance as to the weight to be given to different types of information provided to support a claim of family violence, in the context of a particular entitlement or benefit sought.

Proposal 5–5         Centrelink customer service advisers and social workers should receive consistent and regular training in relation to the types of information that a person may rely on in support of a claim of family violence.

Proposal 5–6         The Guide to Social Security Law should be amended to provide that, where a person claims that they are experiencing family violence by a family member or partner, it is not appropriate to seek verification of family violence from that family member or partner.

Proposal 5–7         Centrelink customer service advisers and social workers should receive consistent and regular training in relation to circumstances when it is not appropriate to seek verification of family violence from a person’s partner or family member.

Proposal 5–8         Centrelink customer service advisers and social workers should be required to screen for family violence when negotiating and revising a person’s Employment Pathway Plan.

Question 5–1         At what other trigger points, if any, should Centrelink customer service advisers and social workers be required to screen for family violence?

Proposal 5–9         A Centrelink Deny Access Facility restricts access to a customer’s information to a limited number of Centrelink staff. The Guide to Social Security Law should be amended to provide that, where a customer discloses family violence, he or she should be referred to a Centrelink social worker to discuss a Deny Access Facility classification.

Question 5–2         Should Centrelink place a customer who has disclosed family violence on the ‘Deny Access Facility’:

(a)      at the customer’s request; or

(b)     only on the recommendation of a Centrelink social worker?

Proposal 6–1         The Guide to Social Security Law should be amended to reflect the way in which family violence may affect the interpretation and application of the criteria in s 4(3) of the Social Security Act 1991 (Cth).

Proposal 6–2         Centrelink customer service advisers and social workers should receive consistent and regular training in relation to the way in which family violence may affect the interpretation and application of the criteria in s 4(3) of the Social Security Act 1991 (Cth).

Proposal 6–3         The Guide to Social Security Law should be amended expressly to include family violence as a circumstance where a person may be living separately and apart under one roof.

Proposal 6–4         The Guide to Social Security Law should be amended to direct decision makers expressly to consider family violence as a circumstance that may amount to a ‘special reason’ under s 24 of the Social Security Act 1991 (Cth).

Question 6–1         With respect to the discretion under s 24 of the Social Security Act 1991 (Cth):

(a)      is the discretion accessible to those experiencing family violence;

(b)     what other ‘reasonable means of support’ would need to be exhausted before a person could access s 24; and

(c)      in what ways, if any, could access to the discretion be improved for those experiencing family violence?

Proposal 6–5         The Guide to Social Security Law should be amended expressly to refer to family violence, child abuse and neglect as a circumstance in which it may be ‘unreasonable to live at home’ under the provisions of ‘extreme family breakdown’—Social Security Act 1991 (Cth)ss 1067A(9)(a)(i), 1061PL(7)(a)(i); and ‘serious risk to physical or mental well-being’—Social Security Act 1991 (Cth)ss 1067A(9)(a)(ii), 1061PL(7)(a)(ii).

Question 6–2         Should the Social Security Act 1991 (Cth)also be amended expressly to refer to family violence, child abuse and neglect as an example of when it is ‘unreasonable to live at home’?

Question 6–3    Should ss 1067A(9)(a)(ii) and 1061PL(7)(a)(ii) of the Social Security Act 1991 (Cth) be amended:

(a)           expressly to take into account circumstances where there has been, or there is a risk of, family violence, child abuse, neglect; and

(b)           remove the requirement for the decision maker to be satisfied of ‘a serious risk to the person’s physical or mental well-being’?

Proposal 6–6         DEEWR and Centrelink should review their policies, practices and training to ensure that, in cases of family violence, Youth Allowance, Disability Support Pension and Pensioner Education Supplement, applicants do not bear sole responsibility for providing specific information about:

(a)      the financial circumstances of their parents; and

(b)     the level of ‘continuous support’ available to them.

Question 7–1         In practice, is the form, ‘Questions for Persons with Insufficient Proof of Identity’, sufficient to enable victims of family violence to provide an alternate means of proving identity?

Proposal 7–1         The Guide to Social Security Law should be amended expressly to include family violence as a reason for an indefinite exemption from the requirement to provide a partner’s tax file number.

Question 7–2         Section 192 of the Social Security (Administration) Act 1999 (Cth) confers certain information-gathering powers on the Secretary of FaHCSIA. In practice, is s 192 of the Social Security (Administration) Act 1999 (Cth) invoked to require the production of tax file numbers or information for the purposes of proof of identity? If not, should s 192 be invoked in this manner in circumstances where a person fears for his or her safety?

Question 7–3         When a person does not have a current residential address, what processes are currently in place for processing social security applications?

Proposal 7–2         Proposal 20–3 proposes that the Migration Regulations 1994 (Cth)be amended to allow holders of Prospective Marriage (Subclass 300) visas to move onto another temporary visa in circumstances of family violence. If such an amendment is made, the Minister of FaHCSIA should make a Determination including this visa as a ‘specified subclass of visa’ that:

• meets the residence requirements for Special Benefit; and
• is exempted from the Newly Arrived Resident’s Waiting Period for Special Benefit.

Question 7–4         Should the Minister of FaHCSIA make a Determination including certain temporary visa holders—such as student, tourist and secondary holders of Subclass 457 visas—as a ‘specified subclass of visa’ that:

• meets the residence requirements for Special Benefit?
• is exempted from the Newly Arrived Resident’s Waiting Period for Special Benefit?

Question 7–5         What alternatives to exemption from the requirement to be an Australian resident could be made to ensure that victims of family violence, who are not Australian residents, have access to income support to protect their safety?

Question 7–6         In what way, if any, should the Social Security Act 1991 (Cth) or the Guide to Social Security Law be amended to ensure that newly arrived residents with disability, who are victims of family violence, are able to access the Disability Support Pension? For example, should the qualifying residence period for Disability Support Pension be reduced to 104 weeks where a person is a victim of family violence?

Proposal 7–3         The Guide to Social Security Law should be amended expressly to include family violence as an example of a ‘substantial change in circumstances’ for the Newly Arrived Resident’s Waiting Period for Special Benefit for both sponsored and non-sponsored newly arrived residents.

Question 7–7         What changes, if any, are needed to improve the safety of victims of family violence who do not meet the Newly Arrived Resident’s Waiting Period for payments other than Special Benefit?

Proposal 7–4         Centrelink customer service advisers should receive consistent and regular training in the administration of the Job Seeker Classification Instrument including training in relation to:

• the potential impact of family violence on a job seeker’s capacity to work and barriers to employment, for the purposes of income support; and
• the availability of support services.

Question 7–8    In practice, to what extent can, or do, recommendations made by ESAt or JCA assessors in relation to activity tests, participation requirements, Employment Pathway Plans and exemptions account for the needs and experiences of job seekers experiencing family violence?

Question 7–9         In practice, is family violence adequately taken into account by a Centrelink specialist officer in conducting a Comprehensive Compliance Assessment?

Question 7–10      What changes, if any, to the Employment Pathway Plan and exemption processes could ensure that Centrelink captures and assesses the circumstances of job seekers experiencing family violence?

Proposal 7–5         The Guide to Social Security Law should expressly direct Centrelink customer service advisers to consider family violence when tailoring a job seeker’s Employment Pathway Plan.

Proposal 7–6         Exemptions from activity tests, participation requirements and Employment Pathway Plans are available for a maximum of 13 or 16 weeks. The ALRC has heard concerns that exemption periods granted to victims of family violence do not always reflect the nature of family violence. DEEWR should review exemption periods to ensure a flexible response for victims of family violence—both principal carers and those who are not principal carers.

Question 7–11      In practice, what degree of flexibility does Centrelink have in its procedures for customers experiencing family violence:

(a)           to engage with Centrelink in negotiating or revising an Employment Pathway Plan; or

(b)           apply for or extending an exemption.

Are these procedures sufficient to ensure the safety of victims of family violence is protected?

Question 7–12      A 26 week exclusion period applies to a person who moves to an area of lower employment prospects. An exemption applies where the reason for moving is due to an ‘extreme circumstance’ such as family violence in the ‘original place of residence’. What changes, if any, are necessary to ensure that victims of family violence are aware of, and are making use of, the exemption available from the 26 week exclusion period? For example, is the term ‘original place of residence’ interpreted in a sufficiently broad manner to encapsulate all forms of family violence whether or not they occur within the ‘home’?

Proposal 7–7         The Guide to Social Security Law should expressly refer to family violence as a ‘reasonable excuse’ for the purposes of activity tests, participation requirements, Employment Pathway Plans and other administrative requirements.

Question 7–13               Centrelink can end a person’s ‘Unemployment Non-Payment Period’ in defined circumstances. In practice, are these sufficiently accessible to victims of family violence?

Proposal 8–1         The Social Security Act 1991 (Cth) establishes a seven day claim period for Crisis Payment. FaHCSIA should review the seven day claim period for Crisis Payment to ensure a flexible response for victims of family violence.

Question 8–1         Crisis Payment is available to social security recipients or to those who have applied, and qualify, for social security payments. However, Special Benefit is available to those who are not receiving, or eligible to receive, social security payments. What reforms, if any, are needed to ensure that Special Benefit is accessible to victims of family violence who are otherwise ineligible for Crisis Payment?

Proposal 8–2         Crisis Payment for family violence currently turns on either the victim of family violence leaving the home or the person using family violence being removed from, or leaving, the home. The Social Security Act 1991 (Cth) should be amended to provide Crisis Payment to any person who is ‘subject to’ or ‘experiencing’ family violence.

Proposal 8–3         The Guide to Social Security Law provides that an urgent payment of a person’s social security payment may be made in ‘exceptional and unforeseen’ circumstances. As urgent payments may not be made because the family violence was ‘foreseeable’, the Guide to Social Security Law should be amended expressly to refer to family violence as a separate category of circumstance when urgent payments may be sought.

Proposal 8–4         The Guide to Social Security Law should be amended to provide that urgent payments and advance payments may be made in circumstances of family violence in addition to Crisis Payment.

Proposal 8–5         The Guide to Social Security Law should be amended to provide that, where a delegate is determining a person’s ‘capability to consent’, the effect of family violence is also considered in relation to the person’s capability.

Question 8–2         When a person cannot afford to repay a social security debt, the amount of repayment may be negotiated with Centrelink. In what way, if any, should flexible arrangements for repayment of a social security debt for victims of family violence be improved? For example, should victims of family violence be able to suspend payment of their debt for a defined period of time?

Proposal 8–6         Section 1237AAD of the Social Security Act 1991 (Cth) provides that the Secretary of FaHCSIA may waive the right to recover a debt where special circumstances exist and the debtor or another person did not ‘knowingly’ make a false statement or ‘knowingly’ omit to comply with the Social Security Act. Section 1237AAD should be amended to provide that the Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that ‘the debt did not result wholly or partly from the debtor or another person acting as an agent for the debtor’.

Proposal 8–7         The Guide to Social Security Law should be amended expressly to refer to family violence as a ‘special circumstance’ for the purposes of s 1237AAD of the Social Security Act 1991 (Cth).