Activity tests, participation requirements and EPPs

8.123 Job seekers receiving Newstart Allowance, Youth Allowance, Special Benefit and Parenting Payment have an activity test or participation requirements to qualify—and remain qualified—for the payment.^[111] The activity test is designed to ensure that unemployed people receiving income support payments are ‘actively looking for work and/or doing everything that they can to become ready for work in the future’.^[112] Similarly, participation requirements ‘aim to ensure that a person looks for, and undertakes, ‘paid work in line with their work capacity’ in order ‘to increase work force participation … and reduce welfare dependency’.^[113]

8.124 Generally, job seekers must be ‘actively seeking and willing to undertake any paid work that is not unsuitable’.^[114] This usually requires job search, paid or voluntary work, study or other activities.^[115] Different requirements may apply for job seekers who have a partial capacity to work, early school leavers, those who are principal carers, and those aged 55 or over.^[116]

8.125 A person who does not meet the activity test or participation requirements may have a ‘failure’ imposed, which may affect their social security payments.

Employment Pathway Plans

8.126 All activities and participation requirements are contained in an EPP.^[117] An EPP is an individual agreement negotiated between a customer and his or her job services provider or Centrelink. Any activity in an EPP must improve the person’s skills and experience and, therefore, prospects of obtaining suitable paid work, assist the person in seeking suitable work, and if the job seeker is an early school leaver, be exclusively education or training.^[118]

8.127 JSA and DES providers and Centrelink have delegated powers to require a job seeker to enter into or vary an EPP; approve the terms of an EPP; and suspend or cancel an EPP.^[119]

Tailoring an EPP

8.128 The ALRC recommends that Centrelink customer service advisers should expressly consider family violence when tailoring an individual job seeker’s EPP.

8.129 The content of an EPP varies for different payments.^[120] An EPP must meet, and be tailored to, the needs of an individual job seeker and not place unreasonable demands on a job seeker, having regard to their personal circumstances.^[121] If a person has a limited capacity to meet an activity test or participation requirement, then a tailored EPP should be prepared taking into account any specific needs of the job seeker, such as family and caring responsibilities and health requirements.^[122]

8.130 The Guide to Social Security Law provides that, in setting the terms of a person’s EPP, Centrelink or a JSA provider must take into consideration:

• the person’s education, experience, skills, age, physical condition and health (including mental health),
• the state of the labour market,
• the availability of places in appropriate courses of education or training,
• transport options available where the person lives,
• the family and caring responsibilities of the person,
• the financial costs of compliance with the terms of the EPP,
• the person’s accommodation situation, and
• any other relevant circumstances that may affect a person’s ability to participate and comply.^[123]

8.131 For job seekers who have been assessed as having a partial capacity to work, the activities recommended by an ESAt or JCA are considered to be the most suitable for inclusion in a person’s EPP.^[124]

8.132 Exemptions are available in certain circumstances—discussed below—however the Guide to Social Security Law states that it is preferable to reduce a person’s activity or participation requirements rather than to apply an exemption from an activity test, participation requirement or EPP.^[125]

8.133 Stakeholders expressed concerns that EPPs are given to victims of family violence ‘off the shelf’, lack genuine negotiation, have limited flexibility, and do not adequately reflect the person’s individual circumstances or the existence of family violence.^[126] This may mean that victims of family violence find it difficult to meet their activity or participation requirements and consequently may be cut off from social security payments.

8.134 The ALRC considers that, in recognition of the theme of self-agency discussed in Chapter 2, a genuine conversation should take place between the job services provider or Centrelink and the customer to ensure that the content of an EPP connects the job seeker with requisite services, training and work opportunities. In particular, the ALRC recommends that the Guide to Social Security Law should expressly direct Centrelink customer service advisers to consider family violence when tailoring a job seeker’s EPP. This was supported by stakeholders.^[127]

8.135 JSA and DES providers may also set the content of a job seeker’s EPP. Recommendations 8–6 and 8–7 should ensure that family violence is better considered when a provider is tailoring a job seeker’s EPP.

Exemptions

8.136 A victim of family violence may be relieved from an activity test, participation requirement, or the requirement to enter into an EPP, or may have their EPP suspended in three circumstances, when:

• a person is a principal carer of one or more children and is subjected to ‘domestic violence’ in the 26 weeks prior to making the exemption determination;^[128]
• a person is a principal carer of one or more children and there are ‘special circumstances’ relating to the person’s family that make it appropriate to make the determination;^[129] or
• there are ‘special circumstances’ beyond the person’s control and it would be unreasonable to expect compliance.^[130]

8.137 The Guide to Social Security Law provides that special circumstances in relation to exemptions from activity tests and participation requirements include when ‘a person has been subjected to domestic violence’, and:

• ‘the domestic violence specifically affects capacity to both look for work and participation in training activities’;^[131] or
• where it is unforeseen (or unavoidable) and causes major disruption and would be unreasonable to expect the person to comply with the relevant activity test or participation requirement.^[132]

8.138 In determining whether a person is eligible for an exemption on these grounds, primary regard is to be given to a Centrelink social worker’s assessment.^[133]

8.139 The maximum length of an exemption available to victims of family violence who are principal carers is 16 weeks. For victims of family violence who are not principal carers, the maximum exemption that can be granted is 13 weeks. While exemptions are limited to a maximum of 13 or 16 weeks, a person who is on an exemption may reapply for another exemption.^[134]

8.140 Stakeholders raised concerns about awareness of exemptions and extensions to exemptions by both Centrelink staff and customers, the accessibility of exemptions, and the adequacy of the length of exemptions.

Accessibility of exemptions

8.141 Stakeholders raised concerns about the lack of knowledge by customers, Centrelink staff and JSA providers in relation to exemptions—and extensions to exemptions—from activity tests, participation requirements and EPPs.^[135] Customers and JSA members are not routinely advised and are poorly informed about exemptions from job seeker participation requirements.^[136] WEAVE, for example, reported that there is a

sceptical attitude amongst Centrelink staff to domestic violence, and a belief that jobseekers routinely try to get out of their obligations any way they can. The lack of information about the existence of a Domestic Violence exemption is the fear that it would provide a ‘perverse incentive’ to jobseekers victims to claim Domestic Violence exemptions to try to avoid their obligations.^[137]

8.142 On the other hand, the WRC Inc (Qld) commented that:

It is our understanding that the legislative exemptions for family violence with respect to activity requirements are quite adequate, but that Centrelink customers needed to be made aware of the availability of exemptions.^[138]

8.143 The National Council of Single Mothers and their Children (NCSMC) and the NWRN noted with concern the low level of exemptions provided to people experiencing family violence in light of the fact that one in three women experience physical violence and about one in five women experience sexual violence in their lifetime.^[139]

8.144 In order to address these concerns, stakeholders recommended training for Centrelink and JSA staff and enhanced information provision to customers about exemptions and extensions.^[140]

8.145 The ALRC therefore recommends that information about exemptions and extensions should be included as part of the information provided to all customers as set out in Recommendation 4–2. This allows individuals to choose whether they wish to apply for an exemption. While some victims of family violence may need an exemption from activity tests and participation requirements, others may want to continue seeking work to increase their chances of returning to, or joining, the workforce. It is important that the social security system does not presume a ‘one-size-fits-all’ response, nor assume that the system knows what is best for an individual’s circumstances.

Length of exemption periods

8.146 The ALRC considers that DEEWR should review the length, and accessibility of exemption periods to ensure that they reflect the nature of family violence experienced by both principal carers and those who are not.

8.147 Stakeholders raised concerns about the length of exemption periods available for victims of family violence. Some suggested that the exemption period be extended to reflect more accurately the demands on people who are experiencing or leaving family violence.^[141] Some stakeholders noted anecdotally that exemptions are rarely granted for the full 16 weeks,^[142] rather,

The normal period of exemptions, when these are granted, is one or two weeks which is not enough for the victim to recover from trauma and to support her children through their recovery and the change in family circumstances when the parents have separated.^[143]

8.148 Similarly, Myjenta Winter submitted that although principal carers can apply for an exemption under ‘special circumstances’,

these exemptions are usually only granted for 2 weeks if granted at all, the principal carer is then expected to go back to Centrelink and repeat the whole traumatic story again to another person to try and attain another 2 week exemption.^[144]

8.149 Winter argued further that the ‘current policy focuses only on the separation point and needs to acknowledge the continuance of post-separation violence’.^[145]

8.150 The ADFVC recommended the exemption be extended to at least six months,^[146] while others recommended a 12 month exemption for principal carers in line with the recommendations of the Participation Review Taskforce.^[147]

8.151 Winter submitted that ‘[m]ostly principal carers are denied exemptions for caring for children who have experienced violence’^[148] and that ‘[t]he current exemptions do not acknowledge violence against children. Principal carers of children who have been abused are only eligible for a maximum 13 week special circumstances exemption’.^[149]

8.152 WEAVE stated that ‘Centrelink social workers advise women that they cannot renew such exemptions and that they have to refer to JCAs. JCAs in turn advise that they can’t recommend ongoing exemptions without medical evidence’.^[150]

8.153 However, DEEWR considered that sufficient flexibility already exists in policy to enable an adequate length of exemption.^[151]

8.154 There are several competing consequences. First, the ‘all-encompassing’ nature of family violence can mean that an appointment to reapply for an exemption may be too overwhelming. Similarly, if a victim of family violence is required to leave home in order to reapply for an exemption, this may subject the person to further risk of violence. On the other hand, however, extending exemptions for too long may have unintended consequences effectively isolating the customer from any connection to services. Winter disagreed, stating that victims are often not referred to other support mechanisms.^[152]

8.155 There are also different exemption periods that are available to principal carers than to other social security recipients. In order to ensure consistency it may be necessary that the length of exemption available to all victims of family violence be the same—that is, 16 weeks.

Moving to an area of lower employment prospects

8.156 Unemployment payments are designed as a safety net for people who are unemployed and are paid on condition that they do all they can to maximise their chances of finding suitable paid work.^[153] Moving to areas of high unemployment can disadvantage job seekers and limit their opportunities for work.^[154] A 26 week exclusion from payment of Newstart Allowance, Youth Allowance and Special Benefit applies if a person receiving one of these payments moves to an area of lower employment prospects.

8.157 An exemption from this exclusion period applies where the reason for moving is due to an ‘extreme circumstance’, such as ‘domestic or family violence in the original place of residence’.^[155]

8.158 While DEEWR considered that current policy was sufficiently flexible to allow exemptions to be granted to victims of family violence,^[156] stakeholders indicated that customers were generally not aware of the types of exemptions available and that family violence is often not recognised as an ‘extreme circumstance’.^[157] Stakeholders recommended that information about it be provided to victims of family violence.^[158]

8.159 The ALRC considers that the current definition of ‘extreme circumstance’ in the Guide to Social Security Law is sufficiently flexible to allow exemptions to be granted to victims of family violence. However, the ALRC recommends that information about the exemption should be provided as part of the information provided to customers in accordance with Recommendation 4–2. Further, training about the exemption should be provided to relevant staff in accordance with Recommendation 5–2.

Unemployment Non-Payment Period

8.160 The ALRC recommends that DEEWR review the classes of persons who can have an Unemployment Non-Payment Period ended if serving that period would result in financial hardship.^[159]

8.161 An Unemployment Non-Payment Period—a period of an eight-week loss of payment—applies to any job seeker who voluntarily leaves a job without reasonable excuse, or loses a job through misconduct.^[160] An Unemployment Non-Payment Period may be ended if a person is in a class of persons specified by a legislative instrument and serving the non-payment period would cause the person to be in severe financial hardship.^[161] Currently, those who do not have access to safe, secure and adequate housing, or who are using emergency accommodation or a refuge, are considered to be within the ‘class of persons’.^[162] Access to safe, secure and adequate housing also means having a right to remain, or a reasonable expectation to remain, in their accommodation.^[163]

8.162 The NWRN stated that, although the current guidelines may be taken to include victims of family violence, ‘this would be much clearer if the instrument and the Guide to Social Security Law referred to family violence expressly as a circumstance in which an unemployment non-payment period should be ended’.^[164]

Reasonable excuse

8.163 In addition to activity tests and participation requirements, in some cases social security recipients must comply with various administrative requirements. These may include:

• providing certain information;
• attending a particular place;
• completing a questionnaire; or
• undergoing a medical, psychiatric or psychological examination.^[165]

8.164 Failure to comply with such administrative requirements can lead to non-payment, unless the person can demonstrate a ‘reasonable excuse’.^[166] In addition, where a person fails to meet activity or participation test requirements and does not have a ‘reasonable excuse’ or an exemption, this may constitute a ‘failure’ and a penalty may apply. Such penalties may apply to Newstart Allowance, Youth Allowance, Parenting Payment, Austudy and Special Benefit.^[167] Penalties range from a reduction in the person’s payment, to non-payment for eight weeks.^[168]

8.165 In the context of ‘reasonable excuse’, the Guide to Social Security Law currently refers to ‘domestic violence’ as a criminal offence.^[169] The ALRC is concerned that not all family violence amounts to a criminal offence and, therefore, not all family violence may lead a decision maker to conclude that a person has a reasonable excuse. This may mean that a victim of family violence has their payments suspended and cannot access independent financial assistance.

8.166 The ALRC therefore considers that the Guide to Social Security Law should expressly refer to family violence as a ‘reasonable excuse’ to ensure that the full range of violent conduct is included. This was supported by submissions to the Discussion Paper.^[170] DEEWR noted that this already occurs in practice but indicated a willingness to review the description of family violence under the reasonable excuse provisions in the Guide to Social Security Law.^[171]This is complemented by Recommendations 3–1 and 3–2 which propose a broad definition of family violence for the purposes of social security law.

8.167 In addition, the ALRC is concerned about the lack of knowledge about the ‘reasonable excuse’ provisions among victims of family violence,^[172] which may prevent a victim of family violence accessing the exemption and having their payment cut off. The ALRC therefore proposes that information about the reasonable excuse exemption be included in Recommendation 4–8.