41. Eligibility for social security payments may depend on a person’s personal and financial relationships with others. Family violence may have implications for the way in which these relationships are defined.

‘Member of a couple’

42. The eligibility for, and rates of, many social security payments differ depending on whether the recipient is a ‘member of a couple’. For example:

  • some social security payments may be reduced if a person is a member of a couple;

  • asset tests often pool the assets of people who are members of a couple. People who claim a social security payment and who are a member of a couple have their entitlements assessed against their partner’s income; and

  • waiting periods can be affected if a person is deemed to be a member of a couple.

43. This rule is based on the premise that couples can live more cheaply than singles because they share expenses and produce economies of scale.

44. A decision that a person is a member of a couple may result in the refusal, cancellation or reduction in social security payments. It may also lead to a debt being raised against a person and may be pursued through court proceedings.

45. Section 4 of the Social Security Act provides that in deciding whether a person is a member of couple—that is, in a de facto relationship—the decision maker is to have regard to ‘all the relevant circumstances of the relationship’. In particular, regard must be had to a detailed range of criteria which are similar to the criteria contained in s 4AA of the Family Law Act and s 22C of the Acts Interpretation Act 1901 (Cth) for defining a ‘de facto relationship’.[15] These include:

  • financial aspects of the relationship;

  • the nature of the household;

  • social aspects of the relationship (including whether the persons hold themselves out as married to each other);

  • any sexual relationship between the persons; and

  • the nature of the commitment to each other.

46. The Guide to Social Security Law states that important indicators to consider in relation to the nature of the commitment to each other include evidence of domestic violence, such as ‘court documentation, which may indicate the absence of commitment and/or emotional support’.[16] Despite this, it is reportedly not unusual for the decision maker’s own experiences and values to weigh into the decision-making process.[17]

47. Concerns have been expressed that underlying assumptions in the ‘de facto relationship’ test may disregard family violence and its potential impact on a victim’s decision. There are also concerns that insufficient weight may be placed on the nature of people’s commitment to each other, when this—in the view of some—is considered to be the ‘essence’ of a relationship.[18]

48. Reform may be needed to ensure that the effects of family violence can disqualify a person being considered to be a member of a couple, for example:

  • economic abuse may obviate consent to the ‘significant pooling of financial resources’;

  • patterns of violence and lack of alternative accommodation may mean that a person has no choice but to remain in the same house;

  • secrecy associated with family violence may mean that a person continues to hold themselves out as a member of a couple;

  • violence in a relationship may negate consent for ‘any sexual relationship between the people’; and

  • there may be a correlation between the length of the relationship and the degree of violence.[19]

Question 12 Should the criteria in s 4 of Social Security Act 1991 (Cth) for determining whether a person is a ‘member of a couple’ be amended clearly to take into account the existence and effect of family violence?

Question 13 Should further guidance be provided in the Guide to Social Security Law about the implications of family violence under the criteria in s 4 of the Social Security Act 1991 (Cth)?

Determining separation under one roof

49. A person is considered not to be a member of a couple where he or she is living separately and apart from the other person on a permanent or indefinite basis.[20]

50. Neither the Social Security Act nor the Guide to Social Security Law provides family violence as an example of where people may be living separately and apart under one roof. Hence, decision makers are not prompted to consider family violence when making a determination about separation under one roof.

51. There may be situations where victims of family violence have no choice but to remain under the same roof as a person using family violence. For example, in Aboriginal and Torres Strait Islander communities there are often cultural, kinship and social reasons to remain under the same ‘roof’ but a person may not consider himself or herself to be a member of a couple. In addition, a lack of transitory and crisis accommodation may mean that a victim of family violence has no choice but to remain under the same roof as the person using family violence.

52. The Guide to Social Security Law provides that where a claim is made on the basis of living separately and apart yet remaining under the one roof, an assessment must be made by Centrelink. This involves receiving evidence from both parties.[21]

53. The Guide to Social Security Law states that when deciding to interview a partner for additional information, discretion must be exercised to ensure that contact is appropriate. It provides ‘domestic violence’ as an example of where it is not appropriate to interview a partner at all.[22]

54. Independent referees may also be called upon to verify the basis of the claim. The Guide to Social Security Law provides that in circumstances where an independent referee is unable to verify a situation, a departmental social worker’s report may be required to assist the decision maker—such as in a situation of ‘domestic violence’ where the separation is not public knowledge.[23]

Question 14 In practice, is family violence adequately considered in determining separation under one roof? If not, how should family violence be taken into consideration?

Question 15 When contact with a partner is not appropriate due to family violence, how should family violence be assessed?

‘Special reason’

55. The Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary) has a discretion, under s 24 of the Social Security Act, to rule that, for a ‘special reason’ in the particular case, a person should, not be treated as a member of a couple. This discretion may be—and in at least one case has been—exercised to determine that an abusive relationship was not marriage-like (now ‘de facto’).[24] However, in other cases, a person has been held to be a member of a couple despite being in an abusive relationship.[25]

56. The Guide to Social Security Law states that the ‘special reason’ must be unusual, uncommon or exceptional and that the discretionary power must be exercised for the purpose for which it was conferred—that is, to make provision for those who are in genuine need. [26] However, the Guide to Social Security Law does not provide family violence as an example of where a person might be considered not to be a member of a couple.

57. Hence the evaluation of whether there is a ‘special reason’ that a person should not be treated as a member of a couple may overlook family violence and its potential impact on the victim’s decisions. For example, decision makers may not consider that people may hold themselves out to be a member of a couple despite violence due to shame or secrecy.

58. There may be arguments that s 24 of the Social Security Act should be amended to refer expressly to family violence as a consideration in determining whether to exercise the discretion—especially if s 4 of the Social Security Act is not amended.

Question 16 In practice, is family violence adequately taken into consideration in the exercise of the discretion under s 24 of the Social Security Act not to treat a person as a member of a couple?

Question 17 Should the ‘special reason’ discretion in s 24 of the Social Security Act be amended expressly to require the existence and effects of family violence to be taken into account? Would this amendment be required if s 4 is amended in this way?

Question 18 What, if any, further guidance should be provided in the Guide to Social Security Law in relation to exercising the discretion under s 24 to take into account the existence and effect of family violence?

When a person is regarded as ‘independent’

59. Whether a person is ‘independent’ can affect his or her eligibility for, or rates of payment of, Youth Allowance, Disability Support Pension and Pensioner Education Supplement and whether the person is paid the social security payment directly rather than its being paid to a parent.

Unreasonable to live at home

60. One determinant of independence is when it is unreasonable for the person to live at home. 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. [27]

61. In addition, for Youth Allowance and Disability Support Pension, a person is also considered independent if the person cannot live at home of their parents:

(iii) because the parent or parents are unable to provide the person with a suitable home owing to a lack of stable accommodation.[28]

62. The Guide to Social Security Law states that family breakdown must be extreme. The existence of ongoing conflict alone is insufficient grounds to grant independence. 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.[29]

63. Examples of other ‘similar exceptional circumstances’ are stated to include ‘severe neglect’, or where extreme and abnormal demands are placed on the young person.[30]

64. The assessment of whether a person is independent on this ground is generally conducted by a Centrelink social worker.[31] The Guide to Social Security Law provides that, in assessing extreme family breakdown and other similar exceptional circumstances, assessment must include personal contact with the claimant, parental contact, third party verification and—for youth protocol cases—contact with state or territory child protection agencies.[32]

65. For Youth Allowance and Disability Support Pension, the Guide to Social Security Law provides that it is mandatory to contact the parents of a young person, unless the young person refuses permission or if contact with the parent presents a severe risk to the young person or others, or if there has been no parental concern for at least the past two years.[33]

Continuous support

66. 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.[34]

67. In one case reviewed by the Commonwealth Ombudsman, 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.[35] Her Youth Allowance payment was later cancelled because she was unable to provide detail of her father’s income or assets. Consequently, she was left without income support for over two months.

68. The Ombudsman 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. There may be concerns in other situations of family violence where a person is unable, or it is unsafe for a person, to obtain income and asset details from a parent.

Payment

69. 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. The Guide to Social Security Law provides that payment may be made to the dependent Youth Allowance customer if authorised by the parent.[36] The Secretary also has a discretion to direct that payment be made to the young person.[37]

70. In the case considered by the Commonwealth Ombudsman noted above, the Ombudsman considered it unreasonable to expect a young person who had been forced to leave home, because of violence or untenable living arrangements, to be able to obtain parental agreement to get paid directly.[38] This may raise concerns of the safety of a young person who, in a situation of family violence, attempts to obtain parental agreement to be paid directly.

Question 19 In what ways might access to Youth Allowance, Disability Support Pension and Pensioner Education Supplement be improved for victims who have left their home because of family violence? For example, does the criterion for a person to be considered ‘independent’ adequately take into account the existence of family violence? Should family violence be expressly referred to in this context?

Question 20 In practice, is the possibility of family violence considered by Centrelink staff before deciding to contact a parent?

Question 21 When contact with a young person’s parent is not appropriate, due to the possibility of family violence, how should claims about family violence be assessed?

Question 22 In what ways, if any, should the Guide to Social Security Law be amended in relation to the ‘continuous support’ criteria to improve the safety of victims of family violence? For example, should specific provisions be made for victims of family violence who need to supply asset and income details from a parent?

Question 23 Should the requirement of parental consent for a person under 18 years of age to be paid directly be waived for victims who have left home because of family violence?

[15] The reference to ‘de facto relationship’ replaced a ‘marriage-like relationship’ in November 2008. The test under s 4 remained the same. See Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform Act) 2008 (Cth).

[16] Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law<http://www.fahcsia.gov.au/guides_acts/> at 4 February 2011, [2.2.5.10] (Determining A De Facto Relationship).

[17] Commonwealth Ombudsman, Marriage-Like Relationships: Policy Guidelines for Assessment Under Social Security Law (2007); Re Pelka and Secretary, Department of Family and Community Services [2006] FCA 735.

[18] A Dickey, ‘Two Problems Concerning De Facto Relationship Proceedings’ (2009) 83 Australian Law Journal 588.

[19] P Easteal and D Emerson-Elliot, ‘Domestic Violence and Marriage-Like Relationships’ (2009) 34 (3) Alternative Law Journal 173; T Carney, ‘Women and Social Security/Transfer Payments Law’ in P Easteal (ed), Women and the Law in Australia (2010) 424, 435.

[20]Social Security Act 1991 (Cth) s 4(3A).

[21] Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law<http://www.fahcsia.gov.au/guides_acts/> at 4 February 2011, [2.2.5.30] (Determining Separation Under One Roof).

[22] Ibid, [2.2.5.30] (Determining Separation Under One Roof).

[23] Ibid, [2.2.5.30] (Determining Separation Under One Roof).

[24]Patterson and Department of Families, Community Services and Indigenous Affairs (2006) AATA 689.

[25] See, eg, Re Watson and Secretary, Department of Family and Community Services [2002] AATA 311; Re Secretary, Department of Family and Community Services and Perry [2001] AATA 282.

[26]Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343.

[27]Social Security Act 1991 (Cth) ss 1067A(9), 1061PL.

[28] Ibid s 1067A(9).

[29] Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law<http://www.fahcsia.gov.au/guides_acts/> at 4 February 2011, [3.2.5.40] (Assessment of Extreme Family Breakdown & Other Similar Exceptional Circumstances).

[30] Ibid, [3.2.5.40] (Assessment of Extreme Family Breakdown & Other Similar Exceptional Circumstances).

[31] Ibid, [3.2.5.70] (Assessment & Mandatory Procedures for YA and DSP—Unreasonable to Live At Home).

[32] Ibid, [3.2.5.40] (Assessment of Extreme Family Breakdown & Other Similar Exceptional Circumstances); [3.2.5.70] (Assessment & Mandatory Procedures for YA and DSP—Unreasonable to Live At Home).

[33] Ibid, [3.2.5.70] (Assessment and Mandatory Procedures for YA and DSP—Unreasonable to Live At Home).

[34]Social Security Act 1991 (Cth) ss 1067A(9), 1061PL.

[35] Commonwealth Ombudsman, Centrelink: Payment of Independent Rate of Youth Allowance to a Young Person (2008).

[36] Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law<http://www.fahcsia.gov.au/guides_acts/> at 4 February 2011, [8.4.1.30] (Payments to a Third Party).

[37]Social Security (Administration) Act 1999 (Cth) s 45(2).

[38] Commonwealth Ombudsman, Centrelink: Payment of Independent Rate of Youth Allowance to a Young Person (2008).