Verifying family violence

5.34 Circumstances of family violence may be relevant to a number of social security outcomes—for example, a breakdown of the relationship between a couple so that they may no longer be assessed, in social security terms, on the basis of that status. Family violence may also lead to safety concerns so that a person can no longer live at home or cause distress that may have other social security consequences.

5.35 While ensuring that the claims of people who are experiencing family violence are genuinely met, there is also a need to ensure that unintended outcomes or ‘system perversities’ are not created. Likewise, there is a need for checks and balances to ensure that genuine claims are met and that a claim of family violence is not seen as an easy way to gain a social security entitlement or benefit, thereby creating an incentive for a false or possibly manipulated claim of family violence.

5.36 To ensure the integrity of the social security system, it is necessary, in certain circumstances, for Centrelink to verify claims of family violence where it is relevant to a person’s social security payments and entitlements. Consequently, it is necessary for Centrelink to collect information about family violence when it has been disclosed and it is relevant to a person’s social security payments and entitlements.

5.37 Guidance is provided in the Guide to Social Security Law as to the types of information relevant to different qualification and payability criteria and how it is collected. However, often little or no guidance is provided in relation to the actual collection of information about family violence or safety concerns in different contexts. For example, in relation to exemptions from activity tests and participation requirements on the basis of special family circumstances, the only guidance provided is that exemptions are to be based on a Centrelink social worker’s report.^[33] In other areas, more specific guidance is provided.^[34]

The need for transparency

5.38 The ALRC considers that there is a need for increased transparency in the type of information Centrelink relies on in determining claims of family violence, to ensure fairness in the administration of the social security system.

5.39 In light of the theme of ‘autonomy’ discussed in Chapter 2, it is important that the social security system does not presume a ‘one-size-fits-all’ response. Recognising the individual circumstances of the customer, not every customer will be able to rely on the same type of information. A person who is experiencing family violence should be able to provide a range of information, to be given different weighting. However, it is also important that such an approach does not lead to a ‘tick the box’ approach, nor create administrative barriers to providing information about family violence.

5.40 The Commonwealth Ombudsman highlighted the need for autonomy, recommending that persons experiencing family violence ‘should be able to choose how they want to declare themselves to others’.^[35] Likewise, the Welfare Rights Centre Inc Queensland (WRC Inc (Qld)) submitted that there needed to be ‘a choice of assessment methods, to enable the victim to provide the information’.^[36] Similarly, the ADFVC supported the use of a ‘wide range of evidence to support a claim of experiencing family violence’.^[37]

5.41 The ALRC recommends that any amendments to the type of information relied on by Centrelink to support a claim of family violence should be included in the Guide to Social Security Law as the publicly accessible policy guide. This would ensure that victims of family violence and their advocates know what types of information they need to provide to Centrelink for different payments and claims. The ALRC also recommends that this information be included in the recommendations in Chapter 4 regarding information provision to customers to increase accessibility and transparency—and therefore fairness—of the decision-making process. Including information about the type of information Centrelink relies upon in verifying a claim of family violence may also reduce the need for a victim of family violence to visit a Centrelink office repeatedly and enable him or her to bring all the required information on the first visit.

Forms of information

5.42 In particular, the ALRC considers that the following types of information may be appropriate:

• statements, including statutory declarations;
• third party statements such as statutory declarations by witnesses, employers or family violence services;
• social workers’ 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.

5.43 This was supported by stakeholders.^[38] However, a number of stakeholders emphasised that the word of the victim should suffice in most cases^[39]—in particular, where no independent verification is available^[40]—and that the victim should be given the benefit of the doubt,^[41] as ‘the nature of family and relationship violence is that it is generally hidden from view’.^[42]

5.44 The NWRN considered further that, if additional verification is required, the onus should be on Centrelink to collect that information with the person’s consent—for example, through the use of information-gathering powers under s 192 of the Social Security Act.^[43]

5.45 In addition to these concerns, the ALRC also notes stakeholders’ comments regarding Centrelink staff responses to information about family violence—that staff may be dismissive^[44] or sceptical to claims.^[45] It is important that a person who is experiencing family violence is able to access the services and support needed to ensure his or her safety. The ALRC therefore recommends that Centrelink customer service advisers and social workers receive training on the types of information that a customer can rely on for claims of family violence as part of Recommendation 5–2.

Assessing the weight of information

5.46 The ALRC recognises that verification of family violence is needed in order to maintain the integrity of the system and to ensure a fair distribution of social security according to genuine need. However, not all circumstances should require the same level of verification.

5.47 In this respect, the ALRC considers that the level of verification of family violence should be proportionate to the ‘entitlement’ gained. This was supported by a number of stakeholders.^[46] For example, for Crisis Payment, due to the nature of the payment, the victim’s account should be sufficient, whereas for ‘member of a couple’ determinations and exercise of the ‘special reason’ discretion, the level of verification should be higher. This is because a decision that a person is or is not a ‘member of a couple’ has broader and ongoing consequences than a decision that a person should receive a one-off Crisis Payment.

5.48 For example, the Commonwealth Ombudsman submitted that, in obtaining information about family violence from third parties, ‘emphasis should be placed on obtaining information from independent and/or professional people or organisations who may have observed the violence or its effects’ and to

provide guidance to staff that this sort of evidence should generally be preferred over other types of evidence, including statements from people who have a personal relationship with either the victim or the perpetrator.^[47]

5.49 The NWRN was however concerned that a ‘high’ threshold will unduly constrain the ability of a person experiencing family violence to satisfy a decision maker of that fact. In addition, concerns were raised that a hierarchy of forms of information could result in unfair outcomes for the victim—that if a person has no third party corroboration, their story would be taken less seriously.^[48]

5.50 Some stakeholders supported the use of third party verification,^[49] but with the qualification that ‘[i]f no independent expert is available or in situations of urgency, a Centrelink social worker professional assessment should be regarded as sufficient to verify the circumstances’.^[50] However, stakeholders also raised concerns about the reliance on certain third party statements, such as:

• engaging with a third party may serve only to provide another source to repeat what the victim has said and disempowering the victim as a potential liar and an inadequate source of information;^[51]
• due to secrecy, non-physical forms of violence and difficulties in expressing what has happened to them, there may be no ‘independent third party’;^[52]
• overreliance on police reports may lead to an assumption that if there is no report, there is no violence;^[53] and
• accessing information from a former employer to establish that a person has not voluntarily left his or her job or caused their dismissal.^[54]

5.51 Concerns such as these should be reflected in the Guide to Social Security Law to ensure that information that a person experiencing family violence is able to provide is considered sufficient.

Collecting information from parents, partners and family members

5.52 A parent, partner or other family member may be one of the best sources to verify certain information relevant to a person’s social security payment or entitlement. However, in circumstances involving family violence, contact with a parent or partner, or indeed another family member, may not be appropriate. Contacting a family member may, in some circumstances, jeopardise the safety of a victim of family violence. In such circumstances, other sources of verification should be used.

5.53 Several references in the Guide to Social Security Law are made to collecting information from a person’s parent or partner for the purposes of social security payments or entitlements. In some circumstances, the Guide to Social Security Law states that it may not be appropriate to contact a person’s parent or partner in circumstances of family violence^[55]—for example, in relation to ‘Independent—Unreasonable To Live At Home’, where contact with the parent presents a ‘severe risk’ to the young person or others.^[56]

5.54 Despite these provisions in the Guide to Social Security Law, some stakeholders found that family violence was not consistently considered by Centrelink before a parent or partner was interviewed^[57] indicating that improvement is needed to ensure that Centrelink customers are aware that Centrelink has discretion not to contact parents or partners if the customer is a victim of family violence.^[58] Specifically, the Welfare Rights Centre NSW (WRC (NSW)) stated that, if customers are not aware of such discretion, it could ‘act to deter people who have experienced violence from raising the issue with authorities because they fear retribution’.^[59]

5.55 Victims of family violence also need to be aware that a parent, partner or other family member may not be contacted in circumstances of family violence; otherwise the person experiencing family violence may be deterred from disclosing family violence for fear of retribution. For example, 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

young people often decide to give permission [to contact a parent] despite the fact that it doesn’t feel appropriate or safe to do so. The requirement that a perpetrator of abuse not be contacted is not helpful here if the definition of abuse is not fully in line with sector standards.^[60]

5.56 In this regard, the ALRC makes recommendations in relation to:

• ensuring consistency throughout the Guide to Social Security Law in relation to when it is not appropriate to contact a family member (including a parent or partner) in circumstances of family violence;
• consistent, regular and targeted training of Centrelink customer service advisers and social workers about the discretion not to contact a parent or partner where family violence has been raised as a concern as part of Recommendation 5–2; and
• information provided to Centrelink customers about the discretion of Centrelink staff not to contact a partner or parent in circumstances of family violence in accordance with Recommendation 4–2.

5.57 These recommendations were supported by stakeholders^[61] who considered that ‘safety considerations should always take precedence in any interaction with young people who are experiencing family violence’.^[62]

5.58 In addition, the ALRC considers it inappropriate that information should only not be collected from a family member where that member presents a ‘severe risk’. The ALRC considers that any risk of family violence should be sufficient.

5.59 The NWRN noted that such a policy should not prevent a person experiencing family violence from seeking to adduce evidence from the person using family violence that would support their claim of family violence. The NWRN also suggested that such verification may be sought by Centrelink in reliance on the information-gathering powers in s 192 of the Social Security Act or by Tribunals through appropriate procedures.^[63] The use of s 192 for similar purposes is discussed in further detail in Chapter 7.

5.60 In implementing these recommendations, care will need to be taken to ensure procedural fairness is afforded to any person who is alleged to have used family violence.^[64] For example, to ensure that where the person alleged to have used family violence is also a recipient of social security payments or entitlements, this allegation does not adversely affect their entitlements without the opportunity to present their case.