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That the system of averaging ATO reported annual income across 26 fortnights immediately ceases.
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However, while Robodebt system continues to operate, we recommend the following: a. individuals who receive Centrelink debt notices are given more information about the basis of the debt, including copies of their debt schedule setting out their alleged overpayments across each fortnightly payment period; b. if there is insufficient evidence to prove the debt, that the Department refrains from raising a debt or taking any debt recovery action until such evidence is obtained by the Department using its power to request information directly from financial institutions; c. The recovery of old debts should not be pursued especially where these debts allegedly accrued more than 6 years ago, particularly in cases where it is obvious that the person is of old age, suffering from ill health, living with disabilities or in an obvious state of hardship; d. The Robodebt system should not be used for people Centrelink has flagged as vulnerability indicated; and e. Compliance officers and external debt collection agencies chasing recovery of social security debts, should be trained in communicating with vulnerable people so they can demonstrate greater understanding and compassion when pursuing debts from vulnerable people.
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55 NATIONAL SOCIAL SECURITY RIGHTS NETWORK AND CANBERRA COMMUNITY LAWInquiry into homelessness in AustraliaSubmission 135 - Attachment 1 8.
Waiting Periods There are a range of waiting periods which apply to different Centrelink payments, and different social security recipients depending on their circumstances.
Prospective social security recipients will often have no other source of income during the waiting period.
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It has been CCL’s experience that there is a low level of understanding about waiting periods and when they apply.
This results in clients being unable to manage their finances and falling into financial hardship.
In turn, this can lead to rental arrears, housing insecurity and homelessness.
Waiting periods which were experienced by clients during the project period included income maintenance periods, newly arrived residents waiting periods and unemployment non-payment periods.
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8.1 INCOME MAINTENANCE PERIODS AND COMPENSATION PRECLUSION PERIODS If an individual takes a redundancy or is paid out their unused leave when they leave a job, this often attracts what Centrelink calls an ‘Income Maintenance Period’.
An Income Maintenance Period is a period of time when the social security recipient’s Centrelink payments may be reduced (often to zero) for a period of time when they are expected to rely on their redundancy or other payment to support themselves.
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Once the Income Maintenance Period has been served, usually the social security recipient will again be eligible for Centrelink payments.
The client experiences examined in this research found that a lack of understanding about how redundancy payments are assessed had led to people falling into rental arrears and in the case example below the consequences were catastrophic, ending in homelessness for the client and his family.
Michael was made redundant and received a payment.
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Michael was made redundant and received a payment.
He had care of his three children as a single parent.
One of his children had a significant intellectual disability.
He used a significant proportion of the redundancy payment to pay back debts.
After Michael used up his redundancy payment he applied for Newstart Allowance and was told that an Income Maintenance Period applied.
Michael was not aware that the redundancy payment would restrict his ability to access Centrelink payments.
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Michael contacted CCL after becoming homeless due to not being able to pay the rent.
He told CCL that he could sleep in his car, but his three children needed somewhere safe to live.
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56 HOMEWARD BOUND – SOCIAL SECURITY AND HOMELESSNESS Inquiry into homelessness in AustraliaSubmission 135 - Attachment 1 This is consistent with prior research conducted by the NSSRN which found that a lack of understanding about the role of redundancy payments and that they attract an Income Maintenance Period contributed to recipients falling into financial hardship after using their redundancy payments to pay off debts and other pressing expenses, and subsequently finding themselves ineligible for Centrelink payments.42 Similarly, if a social security recipient receives a compensation payment (for example, as a result of a workplace injury) they may be subjected to a Compensation Preclusion Period.
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Compensation Preclusion Periods apply to almost all social security payments.
Most of the time a Compensation Preclusion Period is applied after a lump sum compensation payment is made.
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The length of the Compensation Preclusion Period for settlements reached is calculated by taking half of the total lump sum quantum and dividing it by a number called the “income cut-out amount”, which changes over time.43 As with the Income Maintenance Period, substantial difficulties arise for people when they run out of compensation before the Compensation Preclusion Period expires.
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They are then effectively left with no income and sometimes ongoing complications, and costs, associated with the injury that formed the basis of their compensation payment.
This is further complicated in cases where, as was the experience of some CCL clients, Centrelink makes errors with respect to the length of the Compensation Preclusion Period and clients are left without income for protracted periods of time.
Douglas is a 64-year-old man who was awarded compensation after a workplace injury.
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After his injury he quit his job and applied for the Age Pension as he was unlikely to be able to engage in physically demanding work again.
He was advised that there was a Compensation Preclusion Period in place until October the following year.
Douglas appealed this decision because he believed the Compensation Preclusion Period had been calculated incorrectly, and that he should be eligible to receive the Age Pension in January.
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Douglas continued to appeal the decision until finally the Administrative Appeals Tribunal found that Douglas was right, and he would have been eligible for the Age Pension from January that year.
Douglas experienced a high level of stress and financial hardship as a result of being cut off from any Centrelink payments for over a year.
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This research provides further evidence of the need to implement the recommendations made in NSSRN’s research report, Measures to address poverty traps caused by Income Maintenance Periods and Compensation Preclusion Periods.44 42 Sue Regan and Peter Whiteford, National Social Security Rights Network, ‘Measures to address poverty traps caused by Income Maintenance Periods and Compensation Preclusion Periods’ (December 2016) online < http://www.nssrn.org.au/wp/wp-content/uploads/2017/01/NWRN-waiting-periods- and-poverty-traps-research-Dec-2016.pdf>, 13 43 Ibid.
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44 Sue Regan and Peter Whiteford, National Social Security Rights Network, ‘Measures to address poverty traps caused by Income Maintenance Periods and Compensation Preclusion Periods’ (December 2016) online < http://www.nssrn.org.au/wp/wp-content/uploads/2017/01/NWRN-waiting-periods- and-poverty-traps-research-Dec-2016.pdf>, 13.
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57 NATIONAL SOCIAL SECURITY RIGHTS NETWORK AND CANBERRA COMMUNITY LAWInquiry into homelessness in AustraliaSubmission 135 - Attachment 1 Recommendation 8.1.1 That the following reforms be implemented: i.
Improve awareness of Income Maintenance Periods by requiring employers to report all cases of redundancy to Centrelink (or at least those which might involve a large lump sum and longer than average Income Maintenance Period).
ii.
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ii.
Explore options of flagging high risk Compensation Preclusion Period matters (e.g.
those involving individuals where there is knowledge of pre‑existing gambling or drug/alcohol addiction) and facilitate proactive outreach.
iii.
Re-examine the role of employers and lawyers in intervening early and raising awareness around the purpose and responsibilities of managing a lump sum, and its relationship with the income support system.
iv.
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iv.
Improve information and financial guidance for people with lump sum payments, perhaps through the development of tailored information products (for use by existing outlets of financial information e.g.
the Financial Information Service and MoneySmart).
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the Financial Information Service and MoneySmart).
v. Reconsider the Centrelink communications strategy in relation to Income Maintenance Periods and Compensation Preclusion Periods to include more regular and informative communications, Easy English and using wording and framing that applies behavioural insights.
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Further, given the extreme hardship that many recipients of compensation payments find themselves in, we recommend amending the Social Security Guide to allow for partial or full waivers of preclusion periods to be applied in a wider range of circumstances.
Recommendation 8.1.2.
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Amend the ‘Straitened (sic) financial services’ section 4.13.4.20 of the Social Security Guide to include under ‘general principles’45 that in circumstances where the lump sum payment is used to pay off debts/ rental arrears or immediate, unavoidable bills this should not count against an applicant seeking a full or partial waiver of their Income Maintenance Period or Compensation Preclusion Period as failure to pay off debts/arrears further entrenches poverty and increases the risk of homelessness.
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Recommendation 8.1.3.
Amend the ‘Compensation Part of Lump Sum 50% Rule’ section 4.13.2.30 of the Social Security Guide to exclude any debts/arrears raised against the applicant from the calculation of preclusion periods in order to avoid entrenching the applicant’s hardship.46 Recommendation 8.1.4.
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Insert into section 4.13.2.30 of Social Security Guide that consideration be given to full or partial waivers of the Compensation Preclusion Period in circumstances where the injury attracting compensation is not the sole basis on which the claim for social security is made.47 45 Guides to Social Security Law at 4.13.4.20 Factors to Consider When Determining Special Circumstance <https://guides.dss.gov.au/guide-social- security-law/3/1/13/80> 46 Ibid.
47 Ibid.
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47 Ibid.
58 HOMEWARD BOUND – SOCIAL SECURITY AND HOMELESSNESS Inquiry into homelessness in AustraliaSubmission 135 - Attachment 1 8.2 NEWLY ARRIVED RESIDENTS WAITING PERIOD This research found that the Newly Arrived Residents Waiting Period, which requires newly arrived residents to serve a waiting period before they are eligible to receive various Centrelink payments and concession cards, increased housing insecurity and further entrenched disadvantage and poverty.
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On 1 January 2019 the Newly Arrived Residents Waiting Period was extended from 104 weeks to 208 weeks for various working age payments and concession cards, and new waiting periods were introduced for a range of other payments.
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NSSRN opposed the extension of the Newly Arrived Residents Waiting Period in its submission to Senate inquiry into Social Services Legislation Amendment (Encouraging Self-Sufficiency for Newly Arrived Migrants) Bill 201848 on the basis that the amendments: • Were based on a flawed assumption that the reason migrants need income support is that they choose not to work.
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• Ignored the evidence that a lack of coordination between Australia’s migration system and employment policies has made it difficult for some migrants to secure ongoing well-paid employment, even where they have qualifications and experience to match skills shortages.
• Further disadvantaged migrants, increasing the inequality between them and the rest of the community and increasing their vulnerability to exploitation.
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• Did not adequately take into account the effect these measures will have on children, or those who require care and assistance to manage day-to-day living.
• Disadvantaged individuals who have already taken steps to migrate to Australia, or those who have indicated a willingness to provide an Assurance of Support.
• Failed to recognise the lifetime contribution of migrants to Australia’s economy and community.
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The Government claims that extending the Newly Arrived Residents Waiting Period will “encourage self-sufficiency” for newly arrived migrants.
However, it has been reported that migrants who are encouraged to come to Australia under the skilled migration program are frequently overqualified for available jobs and struggle to secure ongoing well-paid employment.49 Far from not wanting to work, migrants are being let down by a lack of coordination between Australia’s migration system and employment policies.
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The experiences of CCL clients studied for this research aligns with this view.
Migrants who are eligible to receive social security payments have already been assessed by the Department of Human Services as needing financial assistance.
This makes it harder for individuals and families to access social security payments with a long waiting period, which only increases financial hardship and the risk of homelessness.
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It also shifts the burden of providing support onto community organisations, charity groups, and homelessness services.
48 Ibid.
49 Massimiliano Tani, ‘Australia is not making the best use of skilled migrants’, UNSW Sydney Newsroom, 8 February 2018, (online) <https://newsroom.
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unsw.edu.au/news/business-law/australia-not-making-best-use-skilled-migrants> 59 NATIONAL SOCIAL SECURITY RIGHTS NETWORK AND CANBERRA COMMUNITY LAWInquiry into homelessness in AustraliaSubmission 135 - Attachment 1 The Newly Arrived Residents Waiting Period leaves new migrants without support or security for a protracted period when they are trying to establish their lives in a new country and are vulnerable to poverty.
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Existing exploitation of migrant workers in Australia is well documented.50 Subjecting migrants to longer periods without income support when they are in financial hardship will only make them more vulnerable to exploitation.
Newly arrived residents experience poverty and homelessness at elevated rates compared to the general population.
A 2018 Australian Bureau of Statistics study found that migrants were disproportionally affected by homelessness.
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While 28.2% of Australians were born overseas, they comprised 46% of the homeless.51 The Newly Arrived Residents Waiting Period leaves new migrants without support or security for a protracted period when they are trying to establish their lives in a new country and are vulnerable to poverty.
Anusha is a young Sri Lankan migrant who first arrived in Australia in 2015.
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Over subsequent years she has spent time in Australia completing her Masters and returned to Sri Lanka several times to visit family and her husband.
As a result, she has not completed the Newly Arrived Residents Waiting Period.
Anusha is also actively looking for work in Australia whilst completing her Masters.
She currently has no employment and is struggling to pay the rent on her public housing property.
Recommendation 8.2.
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Recommendation 8.2.
That the Newly Arrived Residents Waiting Period, especially for Special Benefit which is designed to be the payment of last resort be removed or at least reduced.
8.3 UNEMPLOYMENT NON-PAYMENT PERIODS This research found that unemployment non-payment periods caused financial hardship and resulted in people falling into rental arrears.
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Individuals can be subject to unemployment non-payment period in circumstances where they are considered to be voluntarily unemployed or became unemployed because of misconduct.52 While individuals are able to challenge the basis of a non-payment period, these challenges can take time.
Individuals can also seek review of the unemployment non-payment period if they fit certain criteria – including if they are homeless or at risk of homelessness, or do not have access to safe, secure and adequate housing.
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These are important protections; however, it is CCL’s experience that individuals may nevertheless be subjected to non-payment periods while they await the outcome of an appeal.
In situations where individuals are experiencing domestic violence, like Talia below, non-payment periods can leave them with little choice but to remain in abusive situations as they do not have the financial means to leave.
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50 Senate Education and Employment Reference Committee, ‘A National Disgrace: The Exploitation of Temporary Work Visa Holders’, 17 ibid p23 51 National Social Security Rights Network, Submission 15 to Senate Standing Committee on Community Affairs, Social Services Legislation Amendment (Encouraging Self-sufficiency for Newly Arrived Migrants) Bill 2018, 16 April 2018 (online) <http://www.nssrn.org.au/policy-submission/ nssrn-submission-on-the-proposed-extension-to-the-newly-arrived-residents-waiting-period> 52 Guides to Social Security Law, above n31 at 3.1.13.80 Unemployment Non-payment Periods <https://guides.dss.gov.au/guide-social-security- law/3/1/13/80> 60 HOMEWARD BOUND – SOCIAL SECURITY AND HOMELESSNESS Inquiry into homelessness in AustraliaSubmission 135 - Attachment 1 Talia is a young woman who has experienced several periods of homelessness.
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She was subject to an unemployment non-payment period after she was dismissed from her job due to unauthorised absences.
Talia had explained to her employment service provider that she had been absent from work after experiencing a period of depression around the anniversary of the death of a close family member.
Talia’s employment service provider said she was just ‘making up excuses’ and applied an unemployment non-payment period.
Talia appealed the decision and her payment was subsequently reinstated.
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However, Talia still experienced a non-payment period of over three weeks before the reinstatement occurred.
Prior to the non-payment period being applied Talia had been couch surfing with friends and contributing to the cost of household expenses.
However, during the unemployment waiting period, Talia was no longer able to do this.
Talia was forced to live with a family member who was emotionally abusive towards her, refused her food or other assistance.
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As a consequence of the unemployment non-payment period Talia was subjected to 3 weeks of emotional abuse while she waited for her Newstart Allowance payments to commence.
Centrelink can end a person’s unemployment non-payment period if it would cause the person to be in severe financial hardship or if the person is in a class of persons specified by legislative instrument.
These classes of persons include individuals who do not have access to safe and secure accommodation.
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However, this safety is described as housing ‘which damages or is likely to damage the person’s health or threatens of is likely to threaten the person’s safety.’53 This description may not be interpreted to include situations of emotional abuse that can occur in the context of domestic or family violence.
Recommendation 8.3 That the Social Security (Administration) (Ending Unemployment Non-payment Periods — Classes of Persons) (DEEWR) Specification 2009 (No.
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1) be amended to include individuals experiencing domestic and family violence as a specific class of persons for whom unemployment non‑payment periods can be terminated.
53 Social Security (Administration) (Ending Unemployment Non-payment Periods – Classes of Persons) (DEEWR) Specification 2009 (No.1) 61 NATIONAL SOCIAL SECURITY RIGHTS NETWORK AND CANBERRA COMMUNITY LAWInquiry into homelessness in AustraliaSubmission 135 - Attachment 1 9.
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New Zealand Citizens New Zealand citizens generally receive a ‘special category visa’ on arrival in Australia and are not required to take out permanent residence to be able to live, work and pay taxes in Australia.
As a result, many New Zealanders living in Australia do not become permanent residents.
These New Zealand citizens are not eligible for Centrelink payments unless they become permanent residents.
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This means that increasing numbers of New Zealanders who have been living and working in Australia for many years are being denied Centrelink payments in the event of dramatic changes in circumstances such as accident, illness, unemployment or domestic violence.
While there are some safety nets in place for New Zealanders who have not been permanent residents in Australia (i.e.
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the ability to access one-off crisis payments, or up to six months of NSA after ten years of continuous residency) this is often insufficient to protect people suffering serious hardship from falling into poverty.
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For example, we are aware of cases where women fleeing domestic violence have had to leave Australia and return to New Zealand because they were not eligible for Centrelink assistance here.54 In CCL’s experience the absence of a safety net for New Zealanders directly places them at risk of becoming homeless.
Olivia and Greg were public housing tenants.
They had teenage children.
Greg had a significant injury at work and was unable to return to any form of work.
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After his compensation payment ran out, the family fell into signficant rental arrears.
Greg was unable to access a social security payment because he was a New Zealander and not an Australian permanent resident.
Olivia was working in a low paid job in a nursing home.
Housing ACT took eviction proceedings against the family.
CCL represented the family in the Tribunal proceedings.
The matter was hard fought, and the family only just avoided eviction.
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As noted in NSSRN’s domestic violence research report, commentary on the severe treatment of New Zealanders who find themselves in crisis is not new.
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For example, the 2012 AAT decision of Filipovski and Secretary, Department of Family and Community Services notes that it is harsh and hard to understand why New Zealanders are precluded from obtaining Special Benefit even if there has been a ‘substantial change of circumstances beyond their control’ when social security law provides relief to other newly arrived residents in the same circumstances.
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This research report provides further evidence of the need to implement the recommendation made in NSSRN’s domestic violence research report.55 54 Gina Masterton, ‘Fleeing family violence to another country and taking your child is not ‘abduction’, but that’s how the law sees it’ The Conversation (online) 21 January 2019 <https://theconversation.com/fleeing-family-violence-to-another-country-and-taking-your-child-is-not-abduction-but-thats- how-the-law-sees-it-109664> 55 NSSRN Domestic Violence Report, above n2.
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62 HOMEWARD BOUND – SOCIAL SECURITY AND HOMELESSNESS Inquiry into homelessness in AustraliaSubmission 135 - Attachment 1 Recommendation 9.
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That the Federal Government review the particularly harsh treatment of New Zealand permanent residents living in Australia who experience a substantial change of circumstances and find themselves in extreme financial hardship, enabling them to access Special Benefit where there has been a ‘substantial change of circumstances beyond their control’ so they are treated equitably with newly arrived migrants.
10.
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10.
Conclusion Key policy decisions at both a Federal and a Territory level have resulted in vulnerable members of our community becoming homeless, experiencing prolonged homelessness or finding themselves at risk of homelessness.
This research found that key demographics were at particular risk of homelessness – women, single mothers, victims of domestic violence, people who had been incarcerated, Aboriginal and Torres Strait Islander people and newly arrived migrants and refugees.
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Preventing and reducing homelessness is essential for an inclusive, prosperous and productive society.
There is extensive research which shows homelessness is a key driver of criminal behaviour, unemployment, poor mental health and drug and alcohol issues and increases the risk of families coming into contact with child protection services.
Our whole community benefits when everyone has somewhere safe and secure to live and sufficient funds to meet their day to day needs.
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Implementing the recommendations of this research report will assist in contributing to a fairer and more inclusive community.
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63 NATIONAL SOCIAL SECURITY RIGHTS NETWORK AND CANBERRA COMMUNITY LAWInquiry into homelessness in AustraliaSubmission 135 - Attachment 1 Inquiry into homelessness in AustraliaSubmission 135 - Attachment 1 Inquiry into homelessness in AustraliaSubmission 135 - Attachment 1 66 www.nssrn.org.au HOMEWARD BOUND – SOCIAL SECURITY AND HOMELESSNESS Inquiry into homelessness in AustraliaSubmission 135 - Attachment 1
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ANTIGUA AND BARBUDA SOCIAL PROTECTION (AMENDMENT) BILL, 20201 NO.
OF 2021 No.
of 2021 2 Social Protection (Amendment) Bill 2021 Social Protection (Amendment) Bill 2021 3 No.
of 2021 ANTIGUA AND BARBUDA SOCIAL PROTECTION (AMENDMENT) BILL, 2021 ARRANGEMENT OF CLAUSES CLAUSES 1.
2.
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2.
Short title .................................................................................................................................. 4 Interpretation ............................................................................................................................ 4 3.
Amendment of section 5 – Establishment of the Board ........................................................... 4 4.
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Amendment of section 6 – Constitution of the Board .............................................................. 4 5.
Amendment of section 39 – Composition of the Commission ................................................. 4 6.
Amendment of section 44 - Meetings ...................................................................................... 5 7.
Amendment of section 54 – Specific eligibility criteria ........................................................... 5 No.
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of 2021 4 Social Protection (Amendment) Bill 2021 ANTIGUA AND BARBUDA SOCIAL PROTECTION (AMENDMENT) BILL, 2021 NO.
OF 2021 AN ACT to amend the Social Protection Act 2020, No.
22 of 2020 and for other connected purposes.
ENACTED by the Parliament of Antigua and Barbuda as follows: 1.
Short title This Act may be cited as the Social Protection (Amendment) Act 2021.
2.
Interpretation In this Act, “principal Act” means the Social Protection Act 2020, No.
22 of 2020.
3.
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22 of 2020.
3.
Amendment of section 5 – Establishment of the Board Section 5 of the principal Act is amended by repealing the word “seven” and replacing this with the word “ten”.
4.
Amendment of section 6 – Constitution of the Board Section 6 (1) of the principal Act is amended by inserting immediately after paragraph (g) a new paragraph as follows – “(h) three ordinary members appointed by the Minister” 5.
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Amendment of section 39 – Composition of the Commission Section 39 of the principal Act is amended as follows – (a) by repealing subsection (1) and replacing it as follows: “(1) The Commission shall comprise 10 commissioners who shall be appointed on such terms and conditions as the Minister may specify.” (b) by repealing subsection (3) and replacing it as follows: “(3) The Commission consists of: (a) the Director (b) a member from Barbuda; Social Protection (Amendment) Bill 2021 5 No.
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of 2021 (c) a member nominated by the Minister with responsibility for health; (d) a member nominated by the Minister with responsibility for finance; (e) a member nominated by the Minister with responsibility for education; (f) a member nominated by the Minister with responsibility for labour; (g) four members nominated by the Minister” 6.
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Amendment of section 44 - Meetings Section 44 (6) of the principal Act is amended by repealing the words “5 commissioners” and replacing these with the words “7 commissioners”.
7.
Amendment of section 54 – Specific eligibility criteria Section 54(2) of the principal Act is amended by repealing the word “National”.
Passed by the House of Representatives Passed by the Senate this day of 2021 this day of , 2021 Speaker President Clerk to the House of Representatives Clerk to the Senate No.
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of 2021 6 Social Protection (Amendment) Bill 2021 EXPLANATORY MEMORANDUM The objective of this amendment is to allow for an increase in the membership of persons appointed to the Social Protection Board and the Social Protection Commission and for the making of consequential and other minor amendments to the Act.
Clause 1 and 2: Short title and Interpretation: Upon passing, this Bill will be referred to as the Social Protection (Amendment) Act 2021.
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It is an amendment to the Social Protection Act 2020, No.
22/2020 Clause 3: Amendment of section 5 of the principal Act dealing with the Establishment of the Board.
The overall membership of the Board is increased from seven to ten members.
Clause 4: Amendment of section 6 – Constitution of the Board, the law now makes provision for three (3) ordinary members to be added to the Board.
Clause 5: Amendment of section 39- Composition of the Commission.
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Previously, the Commission comprised seven members, this has been increased to ten members.
The additional 3 members are to be appointed by the Minister.
Clause 6: Amendment of section 44 – Meetings.
The Quorum for meetings now set at 5 commissioners has been increased to 7 commissioners as a result of the increased membership.
Clause 7: Amendment of section 54 – Specific eligibility criteria.
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The Act refers to the establishment of a social protection Commission and not a National Social Protection Commission.
Hence the word “National” which appears in the name of the Commission in this section is now deleted.
Minister with responsibility for National Security Hon.
Dean Jonas, Printed for HoR Sitting: 28.01.2021 S4:S1
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Social Security - New ZealandSubmission 1 Social Security - New ZealandSubmission 1
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SOCIAL SECURITY COMMENTARY Social Security Act 1991 PART 2.3 - DISABILITY SUPPORT PENSION: ss 94-146Q Section 94 Qualification for disability support pension .......................................................................... 1 Qualification for disability support pension ......................................................................................... 1 [94.01] Former invalid pension - 1947 Act and 1991 Act ................................................................................. 3 [94.02] "a physical, intellectual or psychiatric impairment" - s 94(1)(a) .......................................................... 4 [94.03] Assessment of the existence and degree of impairments - s 94(1)(b) ................................................... 8 [94.04] "continuing inability to work" - s 94(1)(c)(i), s 94(2) ......................................................................... 10 [94.05] Active participation in a program of support – s 94(2)(aa), (3C) ........................................................ 13 [94.06] "work" – s 94(1)(c)(i), 94(5) ............................................................................................................... 19 [94.07] [94.08] “any work” - s 94(2)(a) ....................................................................................................................... 22 [94.09] Work shy ............................................................................................................................................ 23 "Australian resident at the time when the person first satisfies paragraph (c)" - s 94(1)(e)(i) ............ 25 [94.10] Relevant date for assessment of disability support pension ................................................................ 30 [94.11] "training activity” – s 94(3)(a), s 94(5) ............................................................................................... 35 [94.12] Relationship with the Disability Discrimination Act 1992
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with the Disability Discrimination Act 1992 ................................................................. 35 [94.13] Section 95 Qualification for disability support pension - permanent blindness .................................... 36 Blind pension - general ....................................................................................................................... 36 "permanently blind" – s 95(1)(a) ........................................................................................................ 36 Department Guide to Social Security Law .......................................................................................... 37 "at the time when the person first satisfies paragraph (a)" - s 95(1)(c) ............................................... 38 Section 96 Continuation of disability support pension ......................................................................... 38 Effect of s 96 ...................................................................................................................................... 38 How to work out a person's disability support pension rate ........................................... 39 [117.01] Rate of disability support pension ...................................................................................................... 39 [95.01] [95.02] [95.03] [95.04] [96.01] Section 117 Division 1 - Qualification for and payability of disability support pension Subdivision A - Qualification Section 94 Qualification for disability support pension "a physical, intellectual or psychiatric impairment" - s 94(1)(a) [94.01] Qualification for disability support pension [94.02] Former invalid pension - 1947 Act and 1991 Act [94.03] [94.04] Assessment of the existence and degree of impairments - s 94(1)(b) [94.05] "continuing inability to work" - s 94(1)(c)(i), s 94(2) [94.06] Active participation in a program of support - s 94(2)(aa), (3C) [94.07] [94.08] [94.09] Work shy [94.10] [94.11] Relevant date for assessment of disability support pension
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date for assessment of disability support pension [94.12] [94.13] Relationship with the Disability Discrimination Act 1992 "work" - s 94(1)(c)(i), (5) "any work” - s 94(2)(a) "training activity” – s 94(3)(a), s 94(5) "at the time when the person first satisfies paragraph (c)" - s 94(1)(e)(i) [94.01] Qualification for disability support pension Section 94 establishes the basic qualifications for DSP (at 28 May 2021): (1) A person is qualified for disability support pension if: (a) the person has a physical, intellectual or psychiatric impairment; and (b) the person’s impairment is of 20 points or more under the Impairment Tables; and Page 1 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 (c) one of the following applies: (i) the person has a continuing inability to work; the Secretary is satisfied that the person is participating in the program administered (ii) by the Commonwealth known as the supported wage system; and (d) the person has turned 16; and (da) … (e) the person either: (i) is an Australian resident at the time when the person first satisfies paragraph (c); or has 10 years qualifying Australian residence, or has a qualifying residence exemption (ii) for a disability support pension; or is born outside Australia and, at the time when the person first satisfies paragraph (c) (iii) the person: (A) is not an Australian resident; and (B) is a dependent child of an Australian resident; and the person becomes an Australian resident while a dependent child of an Australian resident; and (ea) … Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
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Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
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(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and in all cases—the impairment is of itself sufficient to prevent the person from doing any work (a) independently of a program of support within the next 2 years; and (b) in all cases—either: the impairment is of itself sufficient to prevent the person from undertaking a training (i) activity during the next 2 years; or (ii) if the impairment does not prevent the person from undertaking a training activity— such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
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Note: For work see subsection (5).
In deciding whether or not a person has a continuing inability to work because of an (3) impairment, the Secretary is not to have regard to: (a) the availability to the person of a training activity; or (b) the availability to the person of work in the person’s locally accessible labour market.
… In summary, in order to qualify for a DSP under s 94, a person must, inter alia: a.
Suffer from permanent physical or mental condition(s); and b.
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Score a total of 20 points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 for their impairment resulting from the permanent conditions, and have undertaken a program of support (POS); or Page 2 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 c. Score a total of 20 points under a single Impairment Table (a “severe impairment”) without any program of support; and d. Have an impairment sufficient to prevent them from doing any work for the next 2 years independently of a program of support; and e. Be unable to undertake training in the next 2 years that is likely to enable them to do work independently of a program of support; and f. Satisfy certain Australian residency requirements.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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“Work” is defined in s 94(5) to be work which exists in Australia for at least 15 hours a week at or above the minimum wage.
A “severe impairment” is defined in s 94(3B) to exist if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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Former invalid pension - 1947 Act and 1991 Act [94.02] Qualification for the invalid pension under the Social Security Act 1947, and the Social Security Act 1991 until 11 November 1991, depended upon "permanent incapacity for work".
A temporary incapacity for work might give rise to entitlement to sickness benefit.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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The basic principles of invalid pension were laid down in Re Panke and Director-General of Social Services [1981] AATA 65, which was approved by the Full Federal Court in Annas v Director-General of Social Security [1985] FCA 428.
In McDonald v Director-General of Social Security [1984] FCA 57, Woodward J said a person’s skills, training, qualifications and the state of the labour market were all relevant in determining both the degree of incapacity and its likely duration.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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In relation to permanent incapacity, Woodward J noted: The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made.
It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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Unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.
(at 1 FCR 360) Woodward J then stated that the true test of permanent incapacity, as distinct from temporary incapacity, was: whether in the light of available evidence, it is more likely than not that the incapacity will persist in the foreseeable future.
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(at 1 FCR **) Part 2.3 of the 1991 Act, until its repeal and replacement on 12 November 1991 provided for invalid pension on a basis similar to the 1947 Act.
Section 94 was the basic qualification section for "permanent incapacity for work" and s 95 was the qualification section for permanent blindness.
The Social Security (Disability and Sickness Support) Amendment Act 1991 (No 141/1991) introduced disability support pension on 12 November 1991; it did not have retrospective effect.
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Accordingly, any claims for invalid pension made before that day were assessed as a claim for invalid pension and not as a claim for disability support pension: Re Simek and SDSS [1991] AATA 318; Re SDSS and Mifsud [1992] AATA 4; Re Cirkovski and SDSS [1992] AATA 33; SDSS v Cosmano [1998] FCA 1710.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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The Minister's Second Reading Speech when introducing the original Bill for substitution of DSP for invalid pension in 1991 gave the following explanation of the reasons for the introduction of the new pension: For many years now, the basis for, and the operation of, invalid pension and sickness benefit have not been satisfactory.
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With invalid pension, the problems stemmed from the qualification Page 3 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 criteria set out in the legislation, and subsequently elaborated in administrative law.
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With the Administrative Appeals Tribunal (AAT) gaining jurisdiction to hear invalid pension appeals in 1981, a solid body of principles regarding the key concepts of invalid pension were erected, such as the terms "permanently incapacitated for work" and "85% incapacity".
The AAT went a considerable way in taking account of socioeconomic factors and the labour market in assessing a person's incapacity for work.
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We reached the stage where a person could suffer from a minor medical condition but, because of a combination of age, education, lack of skills in English, work history and worker's compensation, could end up receiving invalid pension.
Subsequent legislative amendments in 1987 went some way to reducing the impact of socioeconomic factors by introducing a requirement that at least half of the permanent incapacity had to be directly caused by a physical or mental impairment.
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At the same time, there were a small but significant percentage of cases where relatively young people, even people in their 20s, who were not manifestly impaired but who were being awarded invalid pension with the expectation that they would continue to receive it on an indefinite bases.
The concept of permanent incapacity for work became self-fulfilling and only some 2 per cent of invalid pensioners went off pension because of their return to employment.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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Overall, there has been minimal movement into the labour market by invalid pensioners.
Another important issue has been the failure of any significant number of invalid pensioners to benefit from rehabilitation.
Very few were referred or, if referred, accepted for rehabilitation.
This was basically due to a lack of motivation which again appears to be linked to the fact that invalid pension was regarded as a permanent payment.
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Social Protection Jobs and Economic inclusion
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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(at 2-3) [94.03] "a physical, intellectual or psychiatric impairment" - s 94(1)(a) “Impairment” Cases on categories 1 and 2 Establishing the existence of category 1 and category 2 is a matter for psychiatric evidence “Impairment” In Re Kubbere and SDSS [2015] AATA 307, the Tribunal distinguished between the use of word "impairment" in s 94(1)(a) and in the Tables for the Assessment of Work Related Impairments for DSP: 8.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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The requirement of s 94(1)(a) is simply that – (a) the person has a physical, intellectual or psychiatric impairment; 9.
The word "impairment" is not defined in the Act.
I see no reason why the ordinary meaning of "impairment" in common usage cannot be adopted - the action of impairing, or fact of being impaired; deterioration; injurious lessening or weakening (Oxford English Dictionary, online edition, 2015).
10.
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10.
The limited definition of "impairment" set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) at cl 3 – "a loss of functional capacity affecting a person’s ability to work that results from the person’s condition" - serves the purposes of s 94(1)(b), but it does not generally restrict the meaning of "impairment" under the Act or under s 94(1)(a).
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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In Re Panke and Director-General of Social Services [1981] AATA 65, the Tribunal referred to the evaluation in purely medical terms of the person’s physical or mental impairment as being the first step required in a composite process and that this first step “is entirely within the competence of a suitably qualified medical practitioner”.
The second step required the ascertainment of the extent to which the impairments affected a person’s capacity to engage in paid work.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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https://www.aph.gov.au/DocumentStore.ashx?id=595de6e0-71e7-46c7-9caf-7323f172e67d&subId=712159
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This same dichotomy was expressed by the Tribunal in Re Baum and SDEEWR [2008] AATA 1066 in which it was noted that the two steps are not only distinct steps in temporal terms but also are conceptually distinct issues.
A person may carry quite severe impairments but may still be fit for a wide range of work, and vice versa.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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There is a distinction to be drawn between the cases where the person has: 1. a genuine albeit objectively unreasonable belief in the nature and/or severity of their physical impairment; Page 4 Purpose, intent and adequacy of the Disability Support PensionSubmission 113 - Attachment 3 2. developed a genuine psychological condition often mediated by constant pain from the physical impairment; or 3. adopted a conscious or deliberate attitude of the “work shy” person, or that they choose only to return to work in the kind of work of their own choosing (see [94.09]).
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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https://www.aph.gov.au/DocumentStore.ashx?id=595de6e0-71e7-46c7-9caf-7323f172e67d&subId=712159
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The first category above is referred to by different names in different contexts, but is often referred to in the cases as “abnormal illness behaviour” and forms part of the person’s total impairment.
The second category is a new impairment in its own right.
In Re Chami and SDSS [1993] AATA 171, the Tribunal said: 31.
...We make a distinction between poor motivation of the work-shy (a social phenomenon), and the motivational problems exhibited by this applicant arising out of his injury.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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We rely on the decision Malcolm v Broadhurst [1970] 3 All ER 508 in concluding that we must take the applicant as we find him, and this applicant has developed abnormal illness behaviour arising out of his injury for reasons intrinsic to him.
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https://docs-lawep.s3.us-east-2.amazonaws.com/1694232518919.pdf
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https://www.aph.gov.au/DocumentStore.ashx?id=595de6e0-71e7-46c7-9caf-7323f172e67d&subId=712159
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