Independent

6.70 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.^[78] It can also affect whether a person is paid a social security payment directly or through a parent.^[79]

6.71 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.^[80]

6.72 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

6.73 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.^[81]

6.74 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.^[82]

6.75 The ALRC considers that family violence should be expressly included in the Social Security Act as one of the grounds upon which it is unreasonable for a person to live at home. The ALRC recognises that family violence may fall under either ‘extreme family breakdown’ or ‘serious risk’. However, examples of conduct contained in the family violence definition recommended in Chapter 3, may not be caught by ‘violence’, such as psychological or emotional abuse, deprivation of liberty, and exposing a child to family violence. ‘Family violence’captures a wider range of conduct than ‘violence’, insofar as that conduct is violent, threatening, controlling, coercive or engenders fear.

6.76 Child abuse and neglect are also not expressly included in the existing interpretation of these provisions in the Guide to Social Security Law. Physical, psychological and sexual abuse are taken into account, however the ALRC considers child abuse and neglect should be expressly considered as a circumstance where it is unreasonable to live at home. This was supported by most stakeholders who responded to the Discussion Paper.^[83] However, DEEWR considered that the current description already encapsulated these situations.^[84]

6.77 While the current description may encapsulate child abuse and neglect, for clarity, the ALRC recommends such an amendment be made.

6.78 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 inappropriate; and implies that family violence, child abuse and neglect may not harm a person’s physical or mental well-being in some cases. This is inconsistent with contemporary evidence about the effects of these factors on child developmental and health outcomes.

6.79 In the ALRC’s view, the very fact of family violence, child abuse or neglect may lead to 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.

6.80 This view was supported by a number of stakeholders.^[85] The NWRN stated its support, ‘because once family violence is established the risk posed by this is well known, the decision maker should not have to turn their mind to satisfaction of an additional requirement such as this’.^[86] DEEWR suggested, however, that such changes to legislation could lead to unsubstantiated allegations of family violence with the sole purpose of obtaining income support.^[87]

6.81 The ALRC considers that appropriate safeguards could be put in place to guard against unsubstantiated claims—such as the level of verification required to support a claim of family violence. This is discussed in further detail in Chapter 5.

Serious risk to physical or mental well-being

6.82 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 Guidestates that ‘severe neglect’ may be a ‘similar exceptional circumstance’ of ‘extreme family breakdown’, a similar provision is not made for a ‘serious risk to a person’s physical or mental well-being’. The Guide to Social Security Law does provide, however, where there are allegations of child abuse or serious risk of abuse or neglect, referral should be made to a social worker.^[88]

6.83 The Guide to Social Security Law provides that indicators of ‘serious risk’ to a young person’s physical or mental well-being 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.^[89]

6.84 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].^[90]

6.85 The University of Queensland Union also raised 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’.^[91]

Extreme family breakdown

6.86 The Guide to Social Security Law states that family breakdown must be ‘extreme’, and the existence of ongoing conflict alone is insufficient to consider a person independent under this criterion. Factors that may indicate extreme family breakdown are said to include evidence that the emotional or physical well-being of the person or another family member would be jeopardised if the person were to live at home.^[92]

6.87 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.^[93] 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’.^[94]

6.88 The NWRN raised concerns that the legislation refers to ‘family breakdown’, which overlooks the fact that families may remain intact, despite the persistence of damaging family violence.^[95] However, the ALRC considers that if an amendment is made expressly to refer to family violence, it should be encapsulated under this limb by virtue of this amendment.

6.89 Stakeholders suggested that family violence needs to be recognised expressly as a circumstance when it may be unreasonable for a person to live at home.^[96] 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.^[97] Women Everywhere Advocating Violence Elimination (WEAVE) and the National Council of Single Mothers and their Children (NCSMC) considered that child abuse should be expressly considered.^[98] For example, the Homeless Persons’ 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.^[99]

6.90 The WRC (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.^[100]

6.91 Similarly, the WRC Inc (Qld) 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.^[101] 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’.^[102]

6.92 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’.^[103]

6.93 In light of these concerns, the ALRC recommends that the Social Security Act and the Guide to Social Security Law should expressly refer to family violence, child abuse or neglect as a circumstance where it may be unreasonable to live at home.

Continuous support

6.94 In addition to its being unreasonable to live at home, 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.^[104]

6.95 Stakeholders have identified three main concerns with the ‘continuous support’ requirement. 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.

6.96 To address these concerns, the ALRC recommends that DEEWR and Centrelink 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 the financial circumstances of their parents and the level of ‘continuous support’ available to them. This was supported by stakeholders.^[105] However, the NWRN cautioned that the applicant should never be required to provide financial information about his or her parents in cases of family violence unless that information is in his or her direct possession or control.^[106]

6.97 Information-gathering powers under ss 192–195 of the Social Security (Administration) Act allow Centrelink, as delegates, 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.^[107] 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.

6.98 The ALRC therefore considers that this review should also include consideration of the powers under s 192 of the Social Security Act—a suggestion made by a number of stakeholders who recommended that Centrelink use its powers under s 192 of the Social Security Act with a view to assisting a customer.^[108] However, care should be taken to ensure that the use of such powers does not put the safety of the victim in further jeopardy.

Concerns with the ‘continuous support’ requirement

6.99 Continuous support is defined in the Guide to Social Security Law as ‘regular and ongoing assistance to the young person’s upkeep’.^[109] The onus is on the applicant to provide relevant supporting information.

6.100 In relation to this requirement, stakeholders raised concerns that the bulk of the burden for establishing independence was placed on the young person;^[110] and that the ‘continuous support’ criterion does not look to the adequacy of support.^[111]

6.101 The WRC Inc (Qld) 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.^[112] Similarly, the WRC (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’^[113] 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’.^[114]

6.102 Accordingly, stakeholders 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.^[115]

6.103 Potential solutions provided by stakeholders included waiver or exemptions from the continuous support requirement,^[116] shifting the onus onto parents or legal guardians to provide evidence of continuous support^[117] or that Centrelink use its powers under the Social Security (Administration) Act to collect such information.^[118]

6.104 The ALRC considers that 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.

6.105 The WRC Inc (Qld), which 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’.^[119]

6.106 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.