Social Security (Administration) (Persistent Non-compliance) (FaHCSIA) Determination 2009 (No. 1) (Cth)

Social Security (Administration) (Persistent Non-compliance) (FaHCSIA) Determination 2009 (No. 1)

Social Security (Administration) Act 1999

I, JENNY MACKLIN, Minister for Families, Housing, Community Services and Indigenous Affairs, make this determination under subsection 42M(4) of the Social Security (Administration) Act 1999.

Dated               16 June   2009

J Macklin

Minister for Families, Housing, Community Services and Indigenous Affairs

1              Name of Determination

This determination is the Social Security (Administration) (Persistent Non‑compliance) (FaHCSIA) Determination 2009 (No. 1).

2              Commencement

This Determination commences on 1 July 2009.

3              Definitions

(1)   In this Determination:

Act means the Social Security (Administration) Act 1999.

comprehensive compliance assessment has the meaning given by section 42NA of the Act.

failure means a failure to comply with an obligation in relation to a participation payment, and includes a no show no pay failure, a connection failure and a reconnection failure.

(2)   A reference in this determination to failures includes a reference to 2 or more failures of different types.

Example

A person who has committed 1 no show no pay failure and 2 connection failures will have committed 3 failures for the purposes of this determination.

4              Matters to be taken into account in determining persistent non-compliance

(1) For subsection 42M(4) of the Act, the following matters are matters that the Secretary must take into account in deciding whether a person persistently failed to comply with his or her obligations in relation to a participation payment:

(a)    the findings of the most recent comprehensive compliance assessment in respect of the person;

(b)    whether, during the 6 months before the start of the comprehensive compliance assessment referred to in paragraph (a), the person has committed 3 or more failures;

(c)    if the person committed 3 or more failures in the 6 months referred to in paragraph (b):

(i)    the number of failures; and

(ii)    whether or not the failures demonstrate a pattern of non‑compliance or should be viewed as a single instance of non‑compliance;

(d)    the extent to which the person has otherwise complied with his or her obligations in relation to a participation payment during the 6 months referred to in paragraph (b).

Note 1 The Secretary must not take into account failures that are outside the person’s control, and may only take into account failures that occurred intentionally, recklessly or negligently: subsection 42M(2) of the Act.

Note 2   The matters in subsection (1) are not exhaustive. The Secretary may take other matters into account in determining whether a person persistently failed to comply with his or her obligations: subsection 42M(6) of the Act.

(2)   However, subsection (1) does not require the Secretary to take into account a matter if, in the particular case, the matter is not relevant to whether a person persistently failed to comply with his or her obligations in relation to a participation payment.