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

Administered by Department of Social Services

Legislation au F2009L02460 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Social Security (Administration) (Persistent Non-compliance) (FaHCSIA)

Determination 2009 (No. 1)

 

Summary

The Social Security (Administration) (Persistent Non-compliance) (FaHCSIA) Determination 2009 (No. 1) (the Determination) is made by the Minister for Families, Housing, Community Services and Indigenous Affairs (the Minister) under subsection 42M(4) of the Social Security (Administration) Act 1999 (the Act).

 

The purpose of this Determination is to specify the matters that the Secretary must take into account in deciding whether a person has persistently failed to comply with his or her obligations in relation to a participation payment, in this case, special benefit.

 

Background

 

Section 42M of the Act sets out the basis upon which the Secretary can determine that a person commits a serious failure.  Under subsection 42M(1) the Secretary may only determine that a person commits a serious failure if the person:

  • has persistently failed to comply with their obligations in relation to a participation payment; and
  • receives an instalment of a participation payment in the instalment period in which the determination is made.

 

Under subsection 42M(4), the Minister is required to make a legislative instrument (this Determination) to assist the Secretary in applying the persistent non-compliance test. The Determination sets out the matters (e.g. the number and frequency of failures that could constitute persistent non-compliance) that the Secretary must take into account.

 

Nevertheless, when deciding whether a person has persistently failed to comply with his or her obligations in relation to their participation payment, the Secretary cannot have regard only to this Determination.  Subsection 42M(2) of the Act states that the Secretary:

  • must not take into account failures that were outside the person’s control; and
  • must only take into account failures that occurred intentionally, recklessly or negligently.

 

Subsection 42M(3) of the Act prevents the Secretary from determining that a person commits a serious failure if the person:

  • is already in a serious failure period determined under subsection (1); or
  • is a new apprentice.

 

Subsection 42M(5) of the Act provides that the Secretary is not limited to considering the matters set out in the Determination.

 

The consequences of the Secretary determining that a person has committed a serious failure are set out in section 42P of the Act.  In short, the person’s participation payment will be suspended for 8 weeks unless one of the exceptions or suspension period reductions in that section apply.

 

Explanation of Provisions

 

Section 1 states the name of the Determination.

 

Section 2 states that the Determination commences on 1 July 2009. This corresponds with the commencement date of the amendments to the Act under which the Specification is made. These amendments are made by the Social Security Legislation Amendment (Employment Services Reform) Act 2009.

 

Section 3 contains interpretation provisions.  In particular, terms failure and failures are defined for the purposes of determining whether a person’s failure to comply with participation-related obligations would be regarded as persistent non-compliance under subsection 42M(1) of the Act.

 

Section 4 sets out matters that the Secretary must take into account in deciding whether a person has persistently failed to comply with his or her obligations in relation to a ‘participation payment’.  The term ‘participation payment’ is defined in Schedule1 to the Act, and includes newstart allowance, youth allowance (except for people undertaking full-time study or new apprentices), parenting payment, and special benefit.

 

Under section 42NA of the Act, the Secretary must conduct a comprehensive compliance assessment (CCA) in relation to a person before the Secretary can determine that the person has committed a serious failure.  As a result, paragraph 4(1)(a) of the Determination requires the Secretary to take into account the findings of the most recent CCA in respect of a person in determining whether the person has persistently failed to comply with their participation-related obligations.

 

Under paragraphs 4(1)(b), (c) and (d) of the Determination, the Secretary is required to look at a person’s recent compliance history to determine whether the person has persistently failed to comply with their participation-related obligations.  The relevant period that the Secretary must look at is the 6 months preceding the start of the most recent CCA for the person.

 

In looking at a person’s recent compliance history, the Secretary is to take into account whether the person has committed three or more failures in that time (paragraph (b)), and if so, the number of failures, and any particular behavioural pattern that may emerge from such failures (paragraph (c)).  Of course, the only failures that the Secretary can take into account for these purposes are those that satisfy subsection 42M(2) of the Act; that is, failures that are not outside the person’s control and that occurred intentionally, recklessly or negligently.

 

 

 

Paragraph (d) provides that the person’s compliance with the general requirements under the social security law is a relevant consideration for the purpose of deciding whether a person has persistently failed to comply with his or her obligations in relation to a participation payment.

 

Under subsection 4(2) the Secretary is only required to consider a matter that is relevant to determining persistent non-compliance in relation to a participation payment.  That is, subsection 4(1) does not require the Secretary to take into account a matter set out in that subsection if it is not relevant to whether a person persistently failed to comply with his or her participation-related obligations.

 

Consultation

 

Consultations were undertaken with the following organisations.

  • Homelessness Australia;
  • Catholic Social Services Australia;
  • Mission Australia;
  • National Employment Services Association;
  • National Welfare Rights Network;
  • Australian Council of Social Service;
  • Commonwealth Ombudsman’s office; and
  • Centrelink

 

The organisations consulted were provided with a draft of the Determination and were invited to provide comments at a forum held on 12 March 2009.

 

This Determination is based on the Social Security (Administration) (Persistent Non-compliance) (DEEWR) Determination 2009 (No. 1) prepared by the Department of Education, Employment and Workplace Relations.

 

Regulatory Impact Analysis

 

This Determination does not require a Regulatory Impact Statement (RIS) nor a Business Cost Calculator Figure.  This Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.

 

Overview

The Social Security (Administration) (Persistent Non-compliance) (FaHCSIA) Determination 2009 (No. 1) was enacted to provide guidance to the Secretary in determining whether a person has persistently failed to comply with their obligations in relation to a participation payment, specifically a special benefit. This Determination was made by the Minister for Families, Housing, Community Services and Indigenous Affairs under the authority of the Social Security (Administration) Act 1999. It aims to clarify the criteria that must be considered when assessing persistent non-compliance, ensuring that the Secretary considers factors such as the number and frequency of failures, any behavioural patterns, and general compliance with social security laws, while excluding failures that were outside the person’s control and those that were unintentional. The Determination was developed in consultation with various welfare and employment service organisations to ensure it effectively addresses the identified gap in the administration of participation payments.

Scope and Application

The Social Security (Administration) (Persistent Non-compliance) (FaHCSIA) Determination 2009 (No. 1) applies to individuals who are recipients of participation payments under the Social Security (Administration) Act 1999, such as the Newstart Allowance, Youth Allowance, Parenting Payment, and Special Benefit. The Determination assists the Secretary in assessing whether a person has persistently failed to comply with their obligations related to these payments, which could result in the suspension of their participation payment for eight weeks unless specific exceptions or reductions apply. The Determination is applicable to individuals who receive participation payments and who have been subject to a comprehensive compliance assessment. It is a national instrument, extending across Australia as it is made under the authority of the Commonwealth. The Determination does not apply to individuals who are already in a serious failure period or who are new apprentices. It also excludes failures that were outside the person’s control and those that were not intentional, reckless, or negligent. Additionally, the Secretary is not limited to the matters specified in the Determination when making a decision about persistent non-compliance, although the Determination provides guidance on relevant factors such as the number and frequency of failures, the person's recent compliance history, and their overall compliance with general social security law requirements. This Determination does not extend or restrict application through subordinate instruments but rather provides a framework for the Secretary to use in their decision-making process.

Key Provisions

The main operative sections of the Social Security (Administration) (Persistent Non-compliance) (FaHCSIA) Determination 2009 (No. 1) are primarily found in section 4, which specifies the matters that the Secretary must consider when determining whether a person has persistently failed to comply with their obligations in relation to a participation payment. This includes taking into account the findings of the most recent comprehensive compliance assessment (CCA) in respect of the person, their recent compliance history over the six months prior to the CCA, and any relevant behavioural patterns (section 4(1)(a) to (d)). The Secretary must also ensure that any failures considered are intentional, reckless or negligent and not beyond the person's control (section 42M(2)). Furthermore, the Secretary must consider the person's compliance with general social security law requirements (section 4(1)(d)). The obligations imposed on the Secretary by this Determination are to conduct a comprehensive and thorough assessment of a person's compliance history, ensuring that only relevant and applicable failures are considered. This includes reviewing the most recent CCA and examining compliance over the preceding six months to identify any patterns of non-compliance. The Secretary must also ensure that any failures taken into account meet the criteria of being intentional, reckless, or negligent and not attributable to circumstances beyond the individual's control. Additionally, the Secretary must consider the individual's overall compliance with social security law requirements, ensuring a holistic view of the person's adherence to their obligations. Breaches of the provisions outlined in this Determination could lead to civil or administrative penalties. Specifically, if the Secretary determines that a person has persistently failed to comply with their obligations, their participation payment may be suspended for a period of eight weeks, as stipulated in section 42P of the Social Security (Administration) Act 1999. This suspension can be reduced or avoided if certain exceptions or conditions apply. The determination of persistent non-compliance and the subsequent suspension of benefits are significant consequences that underscore the importance of accurate and fair assessments by the Secretary.

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Area of Law
Social Security Law
Instrument
Determination
Concepts
Definitions & Interpretation
Offence Provisions
Enforcement Powers
Catchwords
persistent non-compliance

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