Pensions, benefits & allowances

31 Aug 2016 - 12:32 | Version 23 |

Contributed by ShelleyEder and current to 1 May 2016

This chapter covers financial assistance payments made to individuals and families by the Federal Government. Payments are made through Centrelink which administers social security policy in conformity with legislation on behalf of several Commonwealth Government departments.

The main Acts relating to social security and family assistance payments are: Because of the complexity of the social security system and legislation, this chapter cannot cover all payments made by Centrelink, or all the matters affecting payments. Unless otherwise stated this chapter explains the rules for social security payments under the SSA and SS(Admin)A. You can access the department's policy guide for detailed information here: http://guides.dss.gov.au/guide-social-security-law

Family assistance payments are not covered under the social security legislation. Family assistance payments are covered by a separate but similar legislative framework which consists of the FAA and FAAdminA. This chapter includes a small section on the main payments under the FAA and FAAdminA. You can access the policy guide for Family Assistance payments here: http://guides.dss.gov.au/family-assistance-guide.

Other information is available from: https://www.humanservices.gov.au/. Forms can be accessed and downloaded here: https://www.humanservices.gov.au/customer/forms/centrelink-forms.

Lodging claims

All social security payments require a claim to be lodged with Centrelink. The start date for most payments will be the date on which the claim is lodged, or a later date if a waiting period applies: http://guides.dss.gov.au/guide-social-security-law/8/3/1. In some very limited circumstances a claim may be backdated: http://guides.dss.gov.au/guide-social-security-law/8/3/3/10.

To obtain their full entitlements, it is essential that people do not delay lodging a claim even if they are still collecting supporting documentation, such as proof of identity or residence or details of employment termination payments. Documentation such as proof of identity, residence or employment separation details can be supplied to Centrelink after the claim is lodged. If a person is having difficulty obtaining information from third parties, like employers, they should inform Centrelink. Centrelink has a very broad power to compel the production of information from third parties: Social Security (Administration) Act s192.

Residence requirements

To be eligible for a pension or allowance, a person must generally be an Australian resident living in Australia at the time of claiming the payment.

Definition

An Australian resident is defined as a person who is one of the following [Social Security Act s7(2)]:
  • an Australian citizen
  • the holder of a permanent visa
  • the holder of a special category visa who is a protected special category visa holder.
Additionally, a person may qualify for Special Benefit if they are the holder of a certain subclass of visa. http://guides.dss.gov.au/guide-social-security-law/3/7/1/10

In addition to the above, the claimant must be 'residing in Australia' at the time they make a claim. The Social Security Act prescribes the factors relevant to deciding whether someone 'resides in Australia' [s.7(3)]. Case law has determined that a person's residence is the place where they live or where they have significant attachments. Generally, a person resides in Australia if they intend making their home here, at least for the foreseeable future. A person who has had their claim for payment rejected on residency grounds should seek advice from their nearest Welfare Rights Centre: http://www.welfarerights.org.au

Payment overseas

Some payments are payable for short periods overseas, and others cease as soon as a person leaves the country- http://guides.dss.gov.au/guide-social-security-law/7/1/2/20. It is important to inform Centrelink of any departures and returns so that information can be received about payability overseas.

Currently, the Disability Support Pension is permanently portable only for people who are severely disabled or terminally ill and leaving Australia indefinitely. A person on Disability Support Pension applying for permanent portability needs to be aware that they need to be medically reassessed as part of that application. If, as part of that assessment Centrelink decides that the person is no longer entitled to a Disability Support Pension, the person's pension will be cancelled. People applying for permanent portability should understand this risk and be fully informed before making any application. http://guides.dss.gov.au/guide-social-security-law/7/1/2/10

Age pension is portable indefinitely, however if the person is a 'returned resident' they need to wait for 24 months before they can be paid their pension overseas.

Some countries have an international agreement with Australia, under which a person can be paid their benefit. They may also allow for the lodgement of claims for overseas social security entitlements while the person is living in Australia. See here for a list of agreement countries: http://guides.dss.gov.au/guide-social-security-law/10

The rules for portability are complicated and constantly changing- a person should seek advice from their Welfare Rights Centre well in advance if they are thinking of going overseas for an extended period. http://www.welfarerights.org.au/

Rate determinants

The amount that can be paid to a person may depend on a variety of factors including:
  • whether the person is single or has a partner
  • whether they have any dependent children
  • whether, in the case of a young person, they live at home or away from home or are independent
  • their income and assets
  • their partner's income and assets
  • for a young person their parents' income and assets (with the exception of those in the 'independent' category- see below).
Most payments are subject to income and assets tests, meaning a person's payment will be reduced if they have assets or income over the threshold amount. Different tests apply to different types of payments. Some income and/or assets may be exempt- see 'income and assets' below.

Rates of payment and thresholds

This chapter does not set out rates of payment or income and assets test thresholds, due to regular changes to both. There are also various add-ons to social security payments, as well as payments designed to supplement other forms of income, which makes precise calculation difficult. For a general guide to payment rates, the department provides a rate estimator on its website: https://www.humanservices.gov.au/customer/enablers/online-estimators.

Brief guide to social security payments

The following is a brief guide only. There are a number of payments and add-ons that have not been included.
  • Age Pension: available to men and women aged 65 years or over.
  • Carer Allowance: this may be paid to someone to someone providing daily care and attention, although not necessarily full time, to a person with a medical condition or disability in their home or in the home of the person receiving the care.
  • Carer Payment: available to a person providing constant care to someone with a physical, intellectual or psychiatric disability.
  • Disability Support Pension: available to a person who is unfit for work on a long-term basis because of permanent illness or disability.
  • Newstart Allowance: available to a person who is unemployed and looking for work and aged between 21 years and the Age Pension age.
  • Parenting Payment (Single): available to a sole parent (including grandparent or foster parent) who is caring for a dependent child or children.
  • Parenting Payment (Partnered): available to a member of a couple (including grandparents or foster parents) who is caring for a dependent child or dependent children.
  • Sickness Allowance: available to a person who is temporarily unfit for work because of illness, and has a job to return to.
  • Special Benefit: available to a person who is unable to earn a living, in financial hardship and not eligible for any other social security payment (no age restriction applies).
  • Youth Allowance: available to a full time student aged between 16 and 24 years and a person who is unemployed and aged under 21 looking for work (in certain situations payment can be made to people aged 15 years).
For more information about eligibility, see the department's policy guide: http://guides.dss.gov.au/guide-social-security-law/3

Rent assistance

Rent assistance may be paid to people who pay private rent over the threshold amount. Rent Assistance is not payable to people renting from the Department of Housing. Rates of payment is determined by:
  • the amount of rent
  • whether the person is single or has a partner
  • the number of dependent children.
  • whether the person is living alone or sharing
  • whether the person is paying full board or accommodation only.
Further information about calculating the rate of rent assistance can be found here: http://guides.dss.gov.au/family-assistance-guide/3/1/4/30

Income and assets

Assets

The Social Security Act defines assets very broadly. Some types of assets are to be disregarded in the assessment of a person's pension or benefit as per Social Security Act s.1118(1), including the following:
  • a person's principal home if they are living in it, including up to two hectares on the same title around it. Note: special rules apply to people living in retirement villages. There are also special rules for some older people who have lived on larger properties for a long time.
  • a 'granny flat' or life interest in the person's principal home (provided certain criteria are satisfied)
  • special aids for people with disabilities
  • pre-paid funeral expenses and cemetery plots
  • investments in a superannuation or approved deposit fund, deferred annuity or Australian Taxation Office small superannuation account (until the person turns Age Pension age or starts to receive a pension or annuity out of the fund)
  • native title rights and interests of the person or of the community of which the person is a member.
NB: When a person sells their principle place of residence and intend to use the proceeds to buy a new one, those proceeds may be exempt from assessment for a period of 12 months. For further information see: http://guides.dss.gov.au/guide-social-security-law/4/6/3/80

Assets tests

Different assets tests apply for different payments.

The threshold amounts will be different depending on whether the person is single (or illness separated couple) or a member of a couple, and whether they own (or are paying off) their own home or not. The threshold amount includes the total amount of all assessable assets. In the case of a member of a couple, it include the total of all assessable assets held by each member of the couple.

For allowances and for the parenting payment (single as well as partnered), if the total value of the person's assets exceeds the relevant threshold amounts, no payment can be made. For pensions, except the single parenting payment, every $1000 over the threshold reduces the person's pension by $1.50 per fortnight until the rate payable is nil.
Hardship rules

The rationale for the assets tests is to encourage people to ensure that their assets produce income, minimising reliance on Australian Government support. There are special hardship rules [Social Security Act ss1129-1130 for pensions, s1131-2 for benefits] which provide that certain assets can be disregarded where it is accepted that the application of the assets test would leave the person in severe financial hardship. The rate of payment under the hardship rules is also determined according to special rules.

If the circumstances are such that it would be unreasonable to require a person to sell or borrow against an asset (for example, if a property is held in common with another person who does not agree to the sale) then the asset may be treated as un-realisable, meaning it may be exempt under the hardship rules. A person needs to make an application to Centrelink for any assets which they believe should be treated under the hardship rules. For more information see: http://guides.dss.gov.au/guide-social-security-law/4/6/7/10
Disposal or gifting of assets

There are rules to discourage people from giving away assets to avoid the assets test. The Social Security Act s9(4) provides that where someone claims or receives a pension or benefit and that person has given away, destroyed or otherwise disposed of or diminished the value of an asset without getting any or adequate financial consideration in return, the person is regarded as having disposed of the asset.

The amount of assets that a person may dispose of each financial year without affecting their entitlement is $10,000 per annum for either a single person or a couple. However, over a five financial year period, only $30,000 of assets may be given away, destroyed or otherwise disposed of. Any amount in excess of this will continue to be counted as an asset for Centrelink income and assets test purposes.

Income

The Social Security Act s8(1) defines income very broadly. It includes salary and wages, business and rental income. It may also include assumed or 'deemed' income from financial investments and savings. Where a person has savings in a bank account or term deposit, the department will 'deem' that this income is receiving interest, regardless of the actual rate of interest. For that reason it is usually beneficial for people on Centrelink payments to have their savings in an account that receives a high rate of interest.

The department assesses income at the gross (for wages) or taxable (for business and property income) rate. For pension and benefits, income is usually assessed annually (for business income), or in the fortnight it is earned for income from wages.

Excluded income

Some forms of income are excluded from the definition of 'ordinary income' for pension and allowance payments [Social Security Act s8], and are either assessed under different rules from other forms of income, or in some cases exempt from assessment. Examples of amounts which may be disregarded are:
  • returns on superannuation fund, approved deposit fund or deferred annuity fund until the person reaches Age Pension age or starts to receive a pension or annuity from the fund
  • NDIS payments
  • Emergency Relief payments
  • Compensation and Insurance payments in regards to property
A person receiving a benefit or pension is legally obliged to advise Centrelink if they receive any of the above payments, even if they believe they are exempt from assessment. For further information see: http://guides.dss.gov.au/guide-social-security-law/4/3/2

Compensation

Where a person receives compensation for a workplace or other injury, all or part of this payment may be treated as income for Centrelink purposes. Compensation is defined in the Social Security Act s17(2). Some types of compensation are exempt for Centrelink purposes, including Victims of Crime compensation. For more information see: http://guides.dss.gov.au/guide-social-security-law/1/1/c/240.

A person who is entitled to receive compensation may be compelled by the department to apply for compensation [Social Security Act s1166]. Compensation will affect social security payments differently, depending whether the compensation is paid periodically or in a lump sum.

Periodic payments

If a person receives periodic compensation, these will reduce their Centrelink payments dollar for dollar [Social Security Act s1173(2)]. The exception is if the injury occurred after the Centrelink payment was granted. In that case the periodic compensation will be treated as ordinary income, and the ordinary income test for the pension or allowance applies.

Lump sum payments

Lump sum compensation payments may affect a person's Centrelink benefits in a number of different ways. The department will try to work out what portion of the lump sum compensation was for lost earnings or lost capacity to earn. If compensation has been awarded by a court or tribunal, then the amount specified in the order for lost earnings or lost capacity to earn will be assessed. If the lump sum has been recevied as part of negotiations or settlement, then Centrelink will apply the 50% rule, meaning 50% of the total lump sum amount will be treated as if it were compensation for lost earnings or lost capacity to earn.

The assessed amount is then divided by the Australian Average Weekly earnings amount to give a number of weeks. This number of weeks becomes the 'compensation preclusion period', meaning the period for which the person is not entitled to receive any payments from Centrelink.

Usually, a preclusion period will apply from the date the person was injured, meaning the compensation preclusion period will be backdated to the date of injury- http://guides.dss.gov.au/guide-social-security-law/4/13/2/70. If a person has been in receipt of Centrelink payments in the meantime, it may be the case that they have a debt [Social Security Act s17(4)]. The employer or insurance company will generally deduct any related Centrelink debts prior to the person receiving the compensation. Further information can be found here: https://welfarerightscentre.files.wordpress.com/2015/02/compensation.pdf.

Social Security law regarding compensation is very complex. Before making any decision about how to manage or spend any money you have received or are about to receive from compensation, you should consult with both Centrelink and your lawyer. A welfare rights lawyer may also be able to give specialist advice in this area.

Special circumstances

Compensation payments may be wholly or partially disregarded if the decision maker decides it is appropriate to do so in the 'special circumstances' of the case, as per s1184K of the Social Security Act. Special circumstances are not defined by the act, but a person will need to demonstrate that their circumstances are 'unusual, uncommon or exceptional' before this section will be applied.

Factors that may be relevant include financial hardship, incorrect or inadequate advice from Centrelink or a lawyer, extremely high expenses or legal fees, medical conditions, homelessness and other serious crisis situations. There is no prescribed list of factors and it is very difficult to determine whether a situation will be sufficient to be considered under the special circumstances provision. It is strongly suggested you seek advice from your local Welfare Rights Centre: http://www.welfarerights.org.au/.

Decisions of the department may be reviewed by the Administrative Appeals Tribunal [see reviews, below].

Debts and overpayments

What is a 'debt'?

A debt may be raised where Centrelink decide that a person has been paid in excess of their actual entitlements. If Centrelink decide a debt arose from falsely declaring income, they may add a 10% penalty to the debt amount. The existence, amount and recovery of a debt are administrative issues, and are separate to whether a person will be prosecuted under the criminal law. See 'prosecutions' below for more information.

Methods of recovery

Centrelink has a wide range of powers to recover social security debts [Social Security Act Pt. 5.3], including the power to:
  • make deductions from a person's social security payments
  • garnishee (take) money from wages, bank accounts or tax refunds
  • commence legal proceedings.
The Australian Tax Office will send a person's tax refunds to Centrelink if that person has a debt.

Non-recovery of Debts

The Social Security Act s1232 provides that a debt may not be recovered if more than six years has passed since any recovery action has taken place in regards to the debt: http://guides.dss.gov.au/guide-social-security-law/6/7/3/08. Recovery action may include any of the following:
  • a repayment is made (this includes a withholding), or
  • the person acknowledges that they owe the debt, or
  • legal action or garnishee action is taken, or
  • a file review relating to action for the recovery of the debt occurs, or
  • other internal departmental activity relating to action for the recovery of the debt occurs.
If a person becomes bankrupt, Social Security debts are treated in the same way as other debts. If a Social Security debt is incurred before a person becomes bankrupt, then the debt becomes irrecoverable unless it is incurred by fraud or there is a judgment or reparation order in respect of the debt. For more information see http://guides.dss.gov.au/guide-social-security-law/6/7/3/05. A person considering bankruptcy should always seek legal advice prior to becoming bankrupt: http://www.dcls.org.au/

Write-off and waiver

A recoverable debt can be waived or written off [Social Security Act Pt. 5.4].

Write-off

Where Centrelink agrees to write off a debt, action to recover will be suspended, either for an indefinite or a specified period. Debts may be written off where:
  • the debt can't be recovered under the law
  • the person has no capacity to repay the debt
  • the person can't be found
  • the person does not receive a social security payment and it is not cost effective to recover the debt.

Waiver

When a debt is waived it means Centrelink may not recover it. Waiver can only occur in the circumstances described in Part 5.4 of the Social Security Act. The most common waiver categories are as follows:
  • Social Security Act s1237A- Administrative error waiver.
    • Where a debt is 'solely' attributable to administrative error, and the person received the money in 'good faith', and Centrelink has not raised the debt within 6 weeks of the first payment that caused the debt, the debt (or part attributable to the error) must be waived. A debt may sometimes stop being 'solely' attributable to administrative error, if the department send a clear letter to the person, and the person takes no steps to read or correct the information in the letter. A payment is received in 'good faith' if the person was unaware that they were being overpaid.
  • Social Security Act s1237AAD- Special Circumstances waiver.
Unless you are quite sure of the existence and amount of the debt, it may be advisable to seek a review as Centrelink do not commonly consider the waiver provisions when they first raise a debt. Please be aware that asking for a review can in some limited circumstances result in a higher debt. If you are unsure seek advice from your local Welfare Rights Centre: http://www.welfarerights.org.au

Prosecution of Debts

The existence of a debt is a separate issue to whether a person will be prosecuted. A person who is being prosecuted for a debt still has the right to ask for a review under the administrative provisions, and should do so if they feel the debt is incorrect or waiver provisions may apply.

Decisions in regards to prosecution are made first by the Serious Non- Compliance Department of the Department of Human Services. If they decide the debt is serious enough they will send a letter to the debtor inviting them to participate in a recorded interview, which may be used in any prosecution case against the person. The department will then make a decision whether or not to forward the matter to the Commonwealth Department of Public Prosecutions. The Commonwealth Department of Public Prosecutions will then make a decision whether or not to prosecute, based on the evidence before it and their prosecution policy, which can be found here: https://www.cdpp.gov.au/prosecution-process/prosecution-policy.

Marriage and 'marriage-like relationships'

Centrelink must consider whether a person is a 'member of a couple' or not when it decides whether a person qualifies for payments or at what rate a person should be paid. The Social Security Act s4(2) and (3) defines a couple and outlines what the department should consider when making this type of decision.

If Centrelink decide that a person has been a member of a couple and that they have not disclosed this to Centrelink, they will usually raise a debt. As with any debt, a person has the right to request a review of the debt decision. As with any debt, these debts may also be referred to the Department of Public Prosecutions. Anyone with a member of a couple debt should immediately contact their nearest Welfare Rights Centre: http://www.welfarerights.org.au.

Who is 'a member of a couple'?

The Social Security Act s4(2) and (3) defines a member of a couple as:
  • a legally married person who is not living separately and apart from the other person on a permanent or indefinite basis or
  • a person who is having a relationship with a person of the opposite sex or of the same sex which, in the opinion of Centrelink, is a 'marriage-like relationship'.
Both same-sex and mixed sex couples are encompassed by these provisions.

In determining whether a person is a member of a couple, Centrelink must have regard to all aspect of the relationship, including the following circumstances [Social Security Act s.4(3)]:
  • financial arrangements
  • social and sexual aspects of the relationship
  • accommodation and domestic arrangements
  • the nature of the couple's commitment.
If Centrelink decides that a person is living in a marriage-like relationship and the person disagrees, the person can appeal this decision to an authorised review officer. Social security legislation provides that payment may be continued pending the outcome of the appeal. If the review officer confirms the decision, the person may consider lodging an appeal with the Administrative Appeals Tribunal and request that payment be continued pending outcome of the appeal [Social Security Administration Act s145] (see Review, appeals and freedom of information, this section).

Separated under one roof

Sometimes a couple may be separated, but circumstances mean that they need to continue to share the same house. People in these types of situations should make an application to Centrelink for consideration under the 'separated under one roof' provision. This is more likely to be granted where the residences are separate flats or self contained residences on the same property. For more information see: http://guides.dss.gov.au/guide-social-security-law/2/2/5/30

If Centrelink decides that a person is a member of a couple and the person disagrees the person can appeal this decision to an authorised review officer. See reviews below.

Special rules for youth allowance

There are different rules about being a member of couple for the purposes of determining a person's rate of youth allowance. A 'member of a Youth Allowance couple' is only relevant to whether or not a person on Youth Allowance can be regarded as 'independent' and therefore not be subject to the 'parental means test'. A person will be 'a member of a Youth Allowance couple' if all the following apply:
  • the person is in a relationship
  • the person is legally married or has been in a marriage-like relationship for at least 12 months
  • the person is over the age of consent [SSA s1067C(1)], which in the NT is 16 years
For further information see: http://guides.dss.gov.au/guide-social-security-law/3/2/5/20

Marriage, marriage-like relationships and illness

Where a legally married couple are separated indefinitely because of illness or infirmity, special provisions apply so that they can continue to be classified as members of a couple but, in recognition of higher living and accommodation costs, the maximum rate payable to each increases [Social Security Act s4(7)]. For illness separated couples, income and assets continue to be assessed jointly. The separated couple rate also applies to couples separated by imprisonment.

It may sometimes be the case that a couple living apart because of serious illness cease to become a 'couple' as defined by the social security law. This may occur, for example, where one member of the couple suffers advanced Alzheimer's or brain injury and needs to reside in a care facility. People in this type of situation should keep Centrelink informed and test their eligibility for the single rate of payment.

Discretion to treat a person as not being a member of a couple.

There is also provision in the Social Security Act, s24, for the department to treat a person as single for the purposes of the Act, where there is a 'special reason' to do so. The discretion can be applied where there is not the pooling of resources usually expected in a marriage-like relationship, and the circumstances are unusual, uncommon and exceptional.This discretion may be exercised in situations where a couple is unable to pool their resources. For example if one member of a couple lives overseas, has no income or assets, and is not entitled to Centrelink benefits.

This provision may be accessible to all couples, including those separated by illness or imprisonment, if there is a further 'special reason' to do so in the circumstances. For further information see: http://guides.dss.gov.au/guide-social-security-law/2/2/5/50

Concession cards

Centrelink issues three types of card:
  • the pensioner concession card
  • the Commonwealth seniors health card
  • the health care card.
These cards give their holders a number of concessions for expenses such as prescription medicines, dental and optical treatments, ambulance services, transport and domestic utilities. The eligibility criteria, validity and concessions offered vary for each card.

In the Northern Territory there are some concessions that are only available with the Pensioner and Carer Concession Card, issued by the Northern Territory government. This gives concession rates for Power and Water, rates and some other items. For more information see: http://www.dcm.nt.gov.au/strong_community/seniors/northern_territory_pensioner_and_carer_concession_scheme_ntpccs

Pensions

Age Pension

The qualifying age for Age Pension is generally 65 years. In addition to meeting the age criteria a person needs to meet the residence criteria of ten years qualifying residence to qualify for an Age Pension.

Currently, the ten years qualifying residence will be satisfied if the claimant has:
  • been an Australian resident continuously for at least 10 years at any point in the past, OR
  • been an Australian resident for 2 or more periods that in total exceed 10 years, AND
  • at least one of those periods is of 5 years duration or more.

If a person is a refugee or former refugee, they may be exempt from the residence criteria.

It may also be possible to qualify for Age Pension under an international agreement, without meeting the ten year residence qualification period.

For more information see: http://guides.dss.gov.au/guide-social-security-law/3/4/1/10

Disability Support Pension

To qualify for the Disability Support Pension, a person must meet the following criteria as per Social Security Act s94:
  • be at least 16 years of age
  • meet the residence criteria
  • be permanently blind OR
  • have a permanent impairment that is severe enough to attract 20 points under the impairment tables AND
  • have a 'continuing inability to work'
    • A person will have a continuing inability to work if their condition prevents them from doing any kind of work (not just their usual job) for 15 hours per week or more.
    • A person who does not have a 'serious impairment' (20 points under a single table, as opposed to a cumulative score of 20 points) will need to meet the Program of Support requirements in order to demonstrate that they have a continuing inability to work. http://guides.dss.gov.au/guide-social-security-law/1/1/c/330
    • For this reason it is often not advisable for people to lodge medical certificates while they are on Newstart Allowance, if they think they may have to claim DSP in the future. A medical certificate will generally exempt a person from being referred to a program of support.
A person may be required to undertake participation requirements to continue to receive their disability pension.

Blind pensioners

Age and Disability Support Pension entitlements for people classified as blind for the purposes of the Social Security Act are not subject to the pension income or assets tests, except for any rent assistance component. Partners of blind pensioners are subject to the ordinary pension income and assets tests [Social Security Act s1065].

Carer Payment

A Carer Payment can be paid in respect of both adults and children. Qualification criteria varies depending on whether the caree is a child or an adult. http://guides.dss.gov.au/guide-social-security-law/3/6/4/10
Adult Caree

To qualify for the adult stream of Carer Payment someone must personally provide 'constant care' for a 'disabled adult'. The care must be provided in the private home of the disabled adult being cared for. Centrelink must accept that the person receiving the care has a physical, intellectual or psychiatric disability, and that they will have the disability permanently or for an extended period. Eligibility for the adult stream of Carer Payment is assessed by assigning scores using a set of tables called the adult disability assessment tool [Social Security Act s38C(3)]. The adult disability assessment tool is also used for determining eligibility for the adult stream of Carer Allowance.
Child Caree

Eligibility for Carer Payment (Child) is assessed using the Child Disability Assessment Tool. To qualify, someone must personally provide constant care for [Social Security Act s198(2)]:
  • a 'profoundly disabled child'
  • two or more 'disabled children'
  • a 'disabled adult' and supervises the care of the disabled adult's dependent child.
For both streams, the care must be provided in the home of the person receiving it [Social Security Act s198(3)]. A person may undertake work or training outside the home for up to 25 hours per week (including travel time) and still maintain their eligibility, subject to the income test.

The carer can, without losing payment, in any calendar year [Social Security Act s198(AC)] temporarily stop providing care for up to 63 days in total (or such other period as the Secretary may determine) either in continuous or broken periods subject to all other conditions continuing to be met.

In addition, Carer Payment can continue to be paid for up to 63 days in any calendar year (or such other period as the Secretary may determine) while the person receiving care is in hospital. If the person receiving care remains in hospital for longer than 63 days in one calendar year, a carer may use the balance of their 63 day temporary cessation of care allowance to remain eligible for Carer Payment. Where the person receiving care is admitted permanently to institutional care, Carer Payment continues to be payable to the carer for 14 weeks after admission [Social Security Act s198AAA].

Carer Allowance

Carer Allowance is a small add-on payment for people caring for people with medical conditions or other disabilities. It is non-taxable and is not subject to an income or assets tests. The relevant applicable provisions are Social Security Act s952-957.

The child disability assessment tool uses a set of questionnaires to assess the child's functional ability, emotional state, behaviour and special care needs. Where a child has a recognised disability, they can qualify for the allowance without having the assessment tool completed.

For a person to qualify for the Carer Allowance for the care of an adult, the person receiving care must [Social Security Act s954]:
  • be a family member of the carer or another approved person
  • have a physical, intellectual or psychiatric disability
  • be likely to suffer from the disability permanently or for an extended period
  • receive care on a daily basis in a private home which is their residence and is also the residence of the carer
  • have had their functional ability, emotional state, behaviour and special needs tested under the adult disability assessment tool.
Carer Allowance can be paid to carers who do not reside with the person if they are providing care on a daily basis for a total of 20 hours a week which relates to the adult's bodily functions or to sustaining their life.

For further information see the Guide to Social Security: http://guides.dss.gov.au/guide-social-security-law/3/6/7/30

Benefits

Newstart Allowance

To receive Newstart Allowance a person must:
  • be between 22 and Age Pension age
  • be an Australian resident
  • be unemployed
  • satisfy the activity test or have an activity test exemption
  • be prepared to enter into an activity agreement, be an Australian resident and in Australia, though payment may be made for up to 13 weeks of a temporary absence (see Residence requirements, above) if not required to look for work, in very limited circumstances.
For more information see: http://guides.dss.gov.au/guide-social-security-law/3/2/1/10

The activity test

To satisfy the activity test, a person must demonstrate to Centrelink that they are actively seeking and willing to undertake paid work [Social Security Act s601(1)]. They must also undertake any suitable paid work offered to them or participate in activities outlines in their Job Plan. http://guides.dss.gov.au/guide-social-security-law/1/1/j/25

If a person does not meet their activity test obligations, a participation failure may be applied. A participation failure may result in a person losing part or all of their payment for a period: http://guides.dss.gov.au/guide-social-security-law/3/1/13/30. A decision to apply a participation failure may be reviewed (see reviews below).

Exemptions from the activity test

A recipient of Newstart Allowance can be exempted from the activity test for certain reasons [Social Security Act ss602-603C)], including illness, major personal crisis, homelessness (in limited situations), temporary carer duties, jury duty, refugee or humanitarian entrant status, late stages of pregnancy, indigenous cultural business or a community service order of more than 20 hours per week.

The Job Network

The Department of Education, Employment and Workplace Relations has contracted a range of private and community agencies, and one government-owned organisation (Employment National), to provide services to people seeking work, particularly people receiving Newstart Allowance. These organisations make up the Job Network, which provides much of the assistance available to people looking for work. The network provides three levels of assistance to job seekers:
  • job matching
  • job search training
  • intensive employment assistance.
Although Job Network members cannot impose a participation failure or a non-payment period on a person, they can recommend to Centrelink that one be imposed. This can happen if, for example, a person fails to respond to a letter advising them to contact their Job Network member, or fails to comply with the terms of preparing for work agreement that include attending the Job Network member's office every week. A penalty imposed in such situations can be appealed.

Sickness Allowance

A person is eligible for Sickness Allowance if all of the following applies [Social Security Act s666]:
  • they are unable to work or study due to illness or injury
  • their inability to work or study is temporary
  • they have employment or study to return to when the incapacity ends
  • they are an Australian resident
  • they are aged between 22 years and Age Pension age.
Sickness Allowance is usually reviewed every 13 weeks, and can be extended if a new medical certificate is provided.

Youth Allowance

To qualify for youth allowance a person must meet all of the following criteria:
  • be of Youth Allowance age
  • be a resident of Australia or a SCV holder and residing in Australia and
  • meet activity test requirements.
Unemployed people aged 15 to 20 years may qualify for Youth Allowance. Full-time students aged 16 to 24 years (in some cases a full-time student aged 25 or over may receive Youth Allowance) also may qualify. For further information see: http://guides.dss.gov.au/guide-social-security-law/3/2/3/10

Unemployed people aged 22 years or over may receive Newstart Allowance. Newly commencing full-time students aged 25 years or over should apply for Austudy (see below) rather than Youth Allowance.

For the purposes of Youth Allowance, a full-time student is defined as someone who is undertaking full-time study as per the Social Security Act s541B. The definition applies to tertiary students whether they study in a university, a college or other approved institution.

A person aged under 18 years who did not complete secondary school education will not be regarded as having reached the minimum age for youth allowance unless:
  • they are in full-time education or training
  • they are a full time apprentice
  • they are exempt from the full time study requirements OR
  • they have entered into a Job Plan that includes training or other activities
For further information see: http://guides.dss.gov.au/guide-social-security-law/3/2/3/10

Activity test obligations

People aged over 18 receiving Youth Allowance who are not full-time students are subject to the same activity test requirements as people receiving the Newstart Allowance (see Newstart allowance, this section). Youth Allowance recipients may be required to comply with a youth allowance activity test. Youth Allowance recipients may also be exempted from the activity test [Social Security Act s542].

Parental income and assets test and independence criteria

People applying for youth allowance are subject to a parental income and assets test, unless they are classified as independent. Section 1067A of the Social Security Act provides that someone is independent if they meet one of the following criteria:
  • they are a member of a Youth Allowance couple (see Marriage and marriage-like relationships, this section)
  • they have or have had a dependent child
  • they are aged 22 or over
  • they are an orphan
  • their parents cannot exercise their responsibilities because they are imprisoned, mentally incapacitated, living in a nursing home or missing
  • they are a refugee without a parent living in Australia and not substantially dependent on another person on a long-term basis
  • they are a young person in state care
  • it is unreasonable for them to live at home
  • they are or have been self supporting through employment
  • they are aged 18 or over, and have a work history but experience education or employment disadvantage
  • they are job seekers aged 16 or over who are assessed as having a partial capacity to work.
For further information see the Guide to Social Security Law: http://guides.dss.gov.au/guide-social-security-law/3/2/5/10

Austudy

Austudy is a payment for students aged 25 years and over. A person can receive Austudy if all of the following apply [See Social Security Act s568-568A]: Austudy can also be paid to students who are studying less than full time if they qualify for a concessional study load. There are two types, a 66% study load and a 25% study load: Social Security Act s569D. A full-time student aged 25 years or more who received Youth Allowance before turning 25 during their course, remains on Youth Allowance.

66% study load

A person may qualify for a concessional study load of at least 66% of the normal workload if:
  • it is the institution's normal requirements for the course; or
  • a deputy principal, academic registrar or equivalent officer provides a specific written direction; or
  • a deputy principal, academic registrar or equivalent officer provides a written recommendation for academic or vocational reasons.

25% study load

Students with a disability, injury or illness can receive Austudy if they take on at least 25% of the normal full-time workload for the course. Medical documents are required as proof. For more information see: http://guides.dss.gov.au/guide-social-security-law/3/3/4/40

Allowable Time Rules

Students undertaking a tertiary level course are required to finish their course within the minimum amount of time it normally takes to complete that course. Different rules can apply to concessional study load students. The allowable time depends on the course, for example:
  • for a course that would normally take one year or less, the allowable time is the length of the course
  • for a course that normally takes more than one year to finish, and the subjects are semester based, the allowable time is the length of the course plus six months
  • for a course that normally takes more than one year to finish, and one of the subjects is year-based (for example, a research project that starts midway through one year and ends midway through the next), the allowable time of the length of the course plus one year.
Students who exceed the allowable time may have their Austudy cancelled: see http://guides.dss.gov.au/guide-social-security-law/3/8/3/60 and http://guides.dss.gov.au/guide-social-security-law/3/3/4/70

ABSTUDY

ABSTUDY is a payment for secondary and tertiary indigenous students. ABSTUDY is a complex payment. The main component is the 'Living Allowance'. There are additional components including allowances, supplements and assistance payments that can also be paid. Indigenous people may qualify for ABSTUDY if one of the following apply:
  • they are 14 years or more on 1 January and are studying at primary school
  • they are doing secondary school studies
  • they are studying full time or part time at a university, tertiary or other approved institution
  • they are doing a distance education or correspondence course
  • they are studying for a Masters or Doctorate.
The amount of ABSTUDY paid by Centrelink depends on:
  • whether a person is studying full time or part time
  • what course they are studying
  • their age
  • whether they need to live away from home
  • whether they are dependent on parents/guardians
  • how much a partner or parents/guardians earn.
An income and assets test applies to ABSTUDY applications. Further details about ABSTUDY can be obtained from the ABSTUDY policy manual, which can be accessed here: http://guides.dss.gov.au/abstudy-policy-manual.

Other

Widows Allowance, Mature Age Allowance and Partner Allowance are no longer granted to new claimants.

Special Benefit

Special Benefit is a social security safety net payment. To meet the basic qualification for Special Benefit a person will need to demonstrate that they meet ALL of the following criteria [Social Security Act s729]:
  • not qualified for another pension or allowance payment
  • in financial hardship as per the 'allowable funds test' below
  • unable to obtain or earn sufficient livelihood for themselves and their dependants
  • be in Australia and meet the residency or visa criteria.
For further information see: http://guides.dss.gov.au/guide-social-security-law/3/7/1/10 and http://guides.dss.gov.au/guide-social-security-law/3/7/1/30

Newly arrived residents

Newly arrived residents who are subject to the two-year waiting period for social security payments (see Waiting Periods, this section) may be able to receive Special Benefit during this period where they have suffered 'a substantial change in circumstances beyond their control' [SSA s739A(7)]. The Federal Court cases Department of Social Security v Secara (1998) 89 FCR 151; 51 ALD 481 and Zandieh-Nadem v Department of Family and Community Services [2000] FCA 1422; (2000) 104 FCR 138 explain what is meant by this phrase. Essentially what is required is that the person has suffered a change of circumstances that is substantial, in the sense that it affects their capacity to be self-sufficient, and beyond their control, to the extent that there was nothing that they could do about it.

Rate of payment

The rate of payment of Special Benefit is discretionary, but the maximum rate payable usually cannot exceed the rate of Newstart Allowance, Youth Allowance or Austudy that would otherwise be payable to the person if they qualified [Social Security Act s746]. Centrelink policy is to apply a direct dollar for dollar deduction to any income received while a person is receiving Special Benefit. Centrelink may also pay Special Benefit at a rate less than the Newstart Allowance rate where the person is receiving in kind support from another source, such as free board and lodging. For more information see the Guide to Social Security Law: http://guides.dss.gov.au/guide-social-security-law/3/7/1/80

Note that the in kind support and dollar for dollar deduction rules are Centrelink policy only. It may be possible for the Newstart Allowance income test, which is much more generous, to be applied in certain circumstances. If a person is not receiving the maximum rate of Special Benefit they have the right to request a review of the rate by an Authorised Review Officer (see Review, Appeals and Freedom of information, this section).

Waiting periods

A number of different waiting periods may apply to various social security payments. These include:
  • a standard one week waiting period for Newstart and Sickness Allowance
  • a liquid assets test waiting period
  • an income maintenance period
  • a newly arrived residents waiting period
  • a seasonal workers preclusion period.
Generally where there is more than one waiting period they are served at the same time. However, the liquid assets waiting period, the ordinary waiting period and the seasonal workers preclusion period are served one after the other. For a brief overview of waiting periods- see the Guide to Social Security Law: http://guides.dss.gov.au/guide-social-security-law/3/1/2/10. For a detailed discussion of waiting period exemptions, see: http://guides.dss.gov.au/guide-social-security-law/3/1/2/70.

Ordinary waiting period for Newstart and Sickness Allowance

A waiting period of one week usually applies to new claims for Newstart and Sickness Allowances. The waiting period does not apply where a person at some time within 13 weeks immediately prior to claim was receiving a social security benefit or pension.

The waiting period can be waived where a person can demonstrate that they would be in 'severe financial hardship' if it was applied. Severe financial hardship means that a person has less than a fortnight's payment in cash or a bank account at the time of claim.

The liquid assets test waiting period

A waiting period of up to 13 weeks can apply to a person who, at the time of making a claim for Newstart Allowance, Youth Allowance or Sickness Allowance, has liquid assets in excess of specified amounts. Liquid assets means cash and readily realisable assets, and includes [Social Security Act s14A(1)]:
  • shares and debentures
  • deposits with banks and other financial institutions
  • amounts due and able to be paid by a former employer, apart from eligible termination payments.
If a person is claiming Youth Allowance or Austudy payments, reasonable expenses directly related to the course of study in which the person is enrolled in are generally exempted. These exempt expenses can include upfront course fees, HECS payments and text book and equipment costs. The liquid assets waiting period can be waived or reduced where the person is in severe financial hardship because they have incurred unavoidable or reasonable expenditure during the period. A person can also 'self-serve' a liquid assets waiting period, if they have delayed making a claim. For further information see: http://guides.dss.gov.au/guide-social-security-law/3/1/2/70

Income maintenance waiting period

An income maintenance waiting period may apply where a person receives a lump sum leave payment on termination of their employment. Where a person is paid out wage, leave or redundancy payments Centrelink will treat the payments as income and the person will not be eligible to receive any benefit for the equivalent number of weeks.

The length of the income maintenance period depends on the period to which the leave relates. If, for example, a person leaving a job receives one month's full pay of annual leave, the income maintenance period will be one month. Redundancy payments are calculated differently. Centrelink will determine the waiting period by dividing the amount of the redundancy payment by the person's ordinary weekly payment from their employment, prior to the termination. There is no limit on the possible length of the income maintenance waiting period.

The income maintenance waiting period applies to Newstart Allowance, Youth Allowance, Sickness Allowance, Partner Allowance, Parenting Payment, Austudy payment and Disability Support Pension: http://guides.dss.gov.au/guide-social-security-law/4/3/4/10

The waiting period can be reduced or waived where the person is in severe financial hardship because they have incurred unavoidable or reasonable expenditure during the period: http://guides.dss.gov.au/guide-social-security-law/4/3/4/40

The Newly Arrived Residents Waiting Period (NARWP)

People who migrate to Australia may need to serve a two-year NARWP before they become eligible for most payments. Affected payments and concessions are:
  • newstart allowance,
  • youth allowance,
  • austudy payment,
  • partner allowance,
  • carer payment,
  • sickness allowance,
  • mobility allowance,
  • pensioner education supplement,
  • special benefit,
  • health care card (low income), AND
  • Commonwealth seniors health card.

Some exemptions may apply, including for family members of Australian citizens and refugees who arrive on a humanitarian visa. For further information on exemptions see: http://guides.dss.gov.au/guide-social-security-law/3/1/2/70

The rules for New Zealanders differ, depending on when the person took up residence in Australia and whether the International Agreement on Social Security applies. Generally New Zealanders who arrived after 26 February 2001 may not be eligible for some payments, if they have not taken up permanent residency: http://guides.dss.gov.au/guide-social-security-law/9/1/2/40. This is a complicated area and advice should be sought from Centrelink or a Welfare Rights Advocate: http://www.welfarerights.org.au/

People serving a NARWP who suffer financial hardship due to a substantial change in their circumstances may be able to apply for Special Benefit (see Special Benefit above). If a claim is rejected, there are rights of appeal. Contact your local Welfare Rights Advocate for advice and assistance: http://www.welfarerights.org.au/

The Seasonal Workers Preclusion Period (SWPP)

The Seasonal Workers Preclusion Period applies to Newstart Allowance, Youth Allowance, Mature Age Allowance, Widow Allowance, Partner Allowance, Parenting Payment (both partnered and single), Disability Support Pension (except permanently blind pensioners), Carer Payment, Austudy Payment and Sickness Allowance.

Seasonal work is considered to be work that is available for a period at approximately the same time each year. The seasonal workers preclusion period may affect workers in fishing and agriculture, or other workers regularly affected by a seasonal (eg weather induced) shut down period. Seasonal workers must earn above average weekly ordinary time earnings before they are affected by the preclusion period.

The seasonal workers preclusion period can be waived where there is severe financial hardship because the worker has incurred unavoidable or reasonable expenditure while serving the waiting period. For further information see the Guide to Social Security Law: http://guides.dss.gov.au/guide-social-security-law/3/1/7/10

Participation failures and penalty periods

People with job search activity tests may be subject to participation payment suspensions, connection failures and other penalties. There are a number of different payment penalties that may apply, and the law changes frequently in this area.

If a person misses a job network appointment, their payment may be suspended until they attend a new one. This may result in a loss of some days of their payment. For further information see the Guide to Social Security Law: http://guides.dss.gov.au/guide-social-security-law/3/1/13/30

Payments for people with children

Parenting payment

There are two types of Parenting Payment:
  • Parenting Payment (Single): paid to single people with dependent children
  • Parenting Payment (Partnered): paid to a person who is a member of a couple with dependent children.

Parenting Payment (Single)

A person may qualify for Parenting Payment (Single) if they:
  • are not a member of a couple
  • has at least one dependent child under the age of 8
  • meets the residency criteria
Parenting Payment (Single) (PPS) is paid at the pension rate but is subject to the benefits assets test. This means that no payment can be made if the person's assets exceed the assets test threshold. Recipients are also entitled to the Pensioner Concession Card.

A recipient of PPS may be required to enter into and Employment Pathway Plan and meet job activity test requirements after their youngest child turns 6: http://guides.dss.gov.au/guide-social-security-law/3/5/1/160

Parenting Payment (Partnered)

Parenting Payment (Partnered) may be paid to a person:
  • who is a member of a couple
  • who has at least one dependent child under the age of 6
  • meets the residency criteria
Parenting Payment (Partnered) (PPP) is subject to both the income and assets tests (see Income and Assets above). Recipients are entitled to the Health Care Card.

Waiting periods may also apply for both PPP and PPS. For further information see the Guide to Social Security Law: http://guides.dss.gov.au/guide-social-security-law/3/5/1/10

Dependent child

To qualify for PPP or PPS, a person must have a 'dependent child' as per the Social Security Act s500D. The PPP and PPS can only be paid to the 'principal carer' of a child, although the principal carer could be a grandparent, adoptive parent or other person with legal responsibility. In a shared care situation, only one parent will be able to claim PPP or PPS in respect of a child. If the child's care is shared, the parent with the highest percentage of care will be the principal carer.

Family Tax Benefit

Family Tax Benefit (FTB) is not technically a benefit or a pension, but a supplement based on taxable income. As such it is not subject to any waiting periods and the normal income and assets test do not apply. The income test for FTB is the annual taxable income figure.

Although a person may receive their FTB payments fortnightly, the payment rate is based on annual taxable income. For people who are being paid fortnightly, their payments are usually based on the estimate they give the department for that financial year. After the person (and partner or ex-partner if applicable) does their tax return the department will do a 'reconciliation' to see if a person has been paid their correct entitlement. If not there will be either a top- up payment or a debt raised to correct the error. To avoid a debt it is essential to keep the department up to date with current estimates of taxable income. Administrative error and special circumstances waiver may apply to FTB debts (see Debts above and http://guides.dss.gov.au/family-assistance-guide/7/3/2 for further information on debt waiver).

Components A and B

There are two main components of Family Tax Benefit - Family Tax Benefit A and Family Tax Benefit B. Although the eligibility criteria for the two components differ slightly, for both payments a person must have an FTB child (see below) and satisfy the residence rules. Family income limits apply.

Eligibility

An individual is generally eligible for FTB if:
  • they have at least one FTB child in their care (for at least 35% of the time), or
  • they are not an absent overseas individual and have at least one regular care child who is also a RA child, and
  • they meet the residency criteria and
  • their rate payable is greater than zero
For further information about FTB eligibility see: http://guides.dss.gov.au/family-assistance-guide/2/2/1

Parents or carers not living together

Family Tax Benefit can be shared with someone else who is not the person's partner [FAA s.59]. The rate payable to each person depends on the percentage of time that the child is in each person's care. If the child is in the persons care for at least 35% of the time, then FTB may be payable to the person. For further information see: http://guides.dss.gov.au/family-assistance-guide/3/1/5/30

The government requires people claiming FTB to take 'reasonable action' to obtain Child Support payments, where they can. If a person does not take reasonable action to claim Child Support (maintenance) payments, their rate of FTB will drop to the 'base rate'. There are exemptions to claiming Child Support in exceptional circumstances, including where there is a history of domestic violence, or where it would cause trauma to the FTB payee to seek Child Support. For further information about exemptions, see: http://guides.dss.gov.au/family-assistance-guide/3/1/5/70

How the benefit is paid

Family Tax Benefit A is paid in respect of each child or dependent student and can consist of up to five parts:
  • a component for each child or student
  • rent assistance
  • a large family supplement
  • a multiple birth allowance
Family Tax Benefit B is designed primarily to give assistance to single income families, including sole parents, especially families with a child under five. Family Tax Benefit is paid per family not per child. The amount payable to the family depends on the age of the youngest child.

Family Tax Benefit can be paid either fortnightly or as a lump sum at the end of the tax year. If a person receives a social security pension or benefit or a Veterans' Affairs service pension, their Family Tax Benefit is not income tested for the period they are in receipt of those payments.

Supplements

A person may also be eligible for the Newborn Supplement, the Newborn Upfront Payment, or the Stillborn Supplement. These supplements are not payable to people who qualify for the Paid Parental Leave payments (see below). For further information see: http://guides.dss.gov.au/family-assistance-guide/2/2/3

Parental Leave Pay (PLP) and Dad and Partner Pay (DAPP)

Parental Leave Pay and Dad and Partner Pay are designed to provide support for parents and adoptees who need to take time off work to care for a newborn or newly adopted child. They are taxable payments that may be paid in conjunction with any maternity or parental leave paid by a person's employer.

Eligibility for PLP

To be eligible for the payment you need to meet the following criteria:
  • be the primary carer of a newborn or recently adopted child.
  • have met the Paid Parental Leave work test
  • meet residence requirements from the date the child enters your care until the end of your Paid Parental Leave period
  • have received an individual adjusted taxable income of $150,000 or less in the financial year either before the date of birth or adoption, or the date you claim, whichever is earlier, and
  • be on leave or not working from when you become the child's primary carer until the end of your Paid Parental Leave period

Eligbility for DAPP

Dad and Partner pay is a two week payment that is payable to fathers and partners of primary carers. In addition to this, the claimant must meet the following criteria:
  • be able to meet residence requirements
  • provide care for a newborn or recently adopted child
  • have an individual adjusted taxable income of $150,000 or less in the financial year either before the date of your claim or the date your Dad and Partner Pay period starts, whichever is earlier
  • meet the work test (see PLP work test above)
  • be on unpaid leave or not working during your Dad and Partner Pay period

Reviews, Freedom of Information and Compensation Claims

Reviews and appeals

Authorised Review Officers (ARO)

Anyone affected by an adverse decision made by Centrelink under the social security or family assistance legislation has the right to have the decision reviewed by an Authorised Review Officer (ARO). An ARO is a senior officer within the department who was not involved in making the original decision. A review by an ARO can be requested verbally or in writing:

Fax 1300 786 102 or

Post:

Centrelink
Reply Paid 7800
Canberra BC ACT 2610

It is very important that a person who does not agree with a decision requests a review promptly. Although there is no time limit for requesting a review, a person should request one within 13 weeks of receiving notification of the original decision. If a review is requested after the 13 weeks has passed, and the decision is changed in their favour, they may only be paid back to the date they requested the review, not the date of the original decision. (Social Security (Administration) Act s109).

If Centrelink has made a decision that reduces a person's rate of payment, that person may, in certain circumstances, be entitled to 'payment pending review' in regards to that decision. That means their payment is reinstated at the higher rate until Centrelink makes a decision about the review. For more information see: http://guides.dss.gov.au/guide-social-security-law/6/8

Administrative Appeals Tribunal (AAT)

If a person has received a review of the decision by an Authorised Review Officer and they still do not agree with the decision, then they may request a review by the Administrative Appeals Tribunal. The Administrative Appeals Tribunal is a body separate and distinct from Centrelink and is divided into first tier and second tier for hearings.
First Tier

A first tier review of a Centrelink decision should go through the Social Services and Child Support division. A person may lodge a request for review over the phone or online here: http://www.aat.gov.au/social-services-child-support-division/applying-for-a-review/apply-online. After the application is made, the AAT will request relevant documents from Centrelink and provide the applicant with a copy. They will then schedule a hearing.

Hearings in Darwin are generally conducted over the telephone, however if the person believes it is important the member can see them (for example, to understand the nature of their disability or if their credibility is in question), then they may request a hearing via videolink. Hearings are fairly informal in structure, however they are recorded and any evidence is given under oath. Centrelink is not represented. A person will be given the opportunity to explain to the member why they think the decision is wrong. If a person has any witnesses that can give evidence on their behalf, they should tell the AAT and bring them to the hearing. Assistance from a Welfare Rights Lawyer would be beneficial throughout this process.

As with ARO reviews, to avoid losing any backpay in the event of a favourable decision, a person should always request a review within 13 weeks of receiving notification of the ARO decision. As with ARO reviews, a person may be entitled to payment pending review if they fit the criteria.
Second Tier

If a person is not happy with the first tier decision, they have a right to request a review by the second tier. Applications in the second tier go through the AAT General Division. Applications to the second tier should generally be made in writing and the forms may be found here: http://www.aat.gov.au/resources/forms

Second tier hearings are more formal than first tier hearings and generally much more time consuming. If a person asks for a review by the second tier, the AAT will again request all documents to be provided by the department and a copy will be provided to the applicant. The AAT will then schedule a conference (or more as required) between the applicant and Centrelink's legal representatives, to see if the matter may be settled. Sometimes (for example with some types of debts), an offer might be made by the department that is acceptable to the applicant. If an agreement cannot be reached, the matter will proceed to hearing. Second tier hearings are more formal than first tier, and more resemble court hearings. The applicant will have the opportunity to call witnesses, adduce evidence and to argue their case before the Tribunal. In second tier hearings Centrelink is legally represented and their lawyer will make opposing arguments. Usually the Tribunal will hand its decision down a number of weeks or months after the hearing.

If the review concerns something that reduces or stops a person's payment, they may request a stay of the decision. The AAT will then consider whether it is desirable or not in the circumstances to grant a stay. If a stay is granted a person's payment will continue as if the unfavourable decision had not been made. If the AAT asffirms the unfavourable decision, however, any amount paid in excess of entitlements under the stay will become a debt [see Social Security Act s1223AB].

Federal Court

A person may only appeal a decision of the AAT to the Federal Court on a point of law. That means the facts are no longer able to be argued. Appeals to the Federal Court concern whether the AAT applied the law correctly or not. If a person is not successful at the Federal Court, they may have to pay Centrelink's legal costs, which would usually be very expensive. Legal advice should always be sought before lodging an appeal in the Federal Court.

Freedom of Information

A person should be able to obtain any personal information about them from the department under the Freedom of Information Act 1982 (Cth) ('FOI') free of charge. In most cases the department needs to respond to any request within 30 days. Some information on a person's record may not be available, for example names or personal information concerning other people or names of specific Centrelink officers etc.

A person requiring information under FOI should be as specific as possible, and address their request to:

Department of Human Services
PO Box 7820
Canberra BC ACT 2610

Email: freedomofinformation@humanservices.gov.au

For further information and forms see: https://www.humanservices.gov.au/corporate/freedom-information

Compensation for Detriment caused by Defective Administration (CDDA)

The CDDA scheme is set up to allow people to reclaim losses that arise from defective administration by governmental agencies. It has no legislative basis: it is a scheme set up under the government's executive power. As such, there is no right of review of a decision to refuse compensation under this scheme.

A CDDA scheme cannot generally be used to bypass the review process. If a person has a means of redress by seeking review of the decision (for example, if a claim was rejected incorrectly), they should take the appropriate review action (see reviews and appeals above).

A person may be granted compensation if they can demonstrate all of the following apply to them:
  • They have suffered a loss or detriment
  • Centrelink's administration was defective in the circumstances
  • The loss was reasonably foreseeable
It is important to remember that this scheme is for compensation, so a person lodging a claim should lodge receipts or other evidence where they are claiming they have suffered a financial loss.

For further information and application forms see: https://www.humanservices.gov.au/customer/contact-us/claiming-compensation-us

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