Explanatory Statement
Social Security (Payment Pending—SSAT Application for Review) (FaCSIA) Guidelines 2007
Authority
Under section 146 of the Social Security (Administration) Act 1999 (the 1999 Act), the Minister by legislative instrument, is to set guidelines for the exercise of the Secretary’s power to make declarations under subsection 145(1) to continue social security payments (in this case special benefit) to persons who are seeking review of a decision imposing a compliance penalty period.
The Social Security (Payment Pending—SSAT Application for Review) (FaCSIA) Guidelines 2007 (the 2007 Guidelines) are made under section 146 of the 1999 Act.
Purpose
The 2007 Guidelines replace the Social Security (Payment Pending—SSAT Application for Review) Guidelines 2004 (2004 Guidelines). The 2007 Guidelines have been revoked by a separate instrument: the Social Security (Payment Pending – SSAT Application for Review) Guidelines 2004 – Revocation 2007.
The 2007 Guidelines take into account the amendments of the Social Security Act 1991 (the 1991 Act) made by the Employment and Workplace Relations Legislation (Welfare to Work and Other Measures) Act 2005 (the 2005 Act) and the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Consequential Amendments Act 2006.
Explanation
The 2007 Guidelines deal with the continuation of certain social security payments (namely special benefit) to persons who are subject to a compliance penalty period, a period during which payments would otherwise be withheld for breaches of their obligation to seek work or participate in other activities under the 1991 Act. The 2007 Guidelines allow payments of special benefit to continue during a review under Division 3 of Part 4 of the 1999 Act by the Social Security Administration Tribunal (SSAT) of the adverse decision that gave rise to the compliance penalty period.
Section 1 provides that the name of the 2007 Guidelines is the Social Security (Payment Pending – SSAT Application for Review) (FaCSIA) Guidelines 2007.
Section 2 provides that the 2007 Guidelines commence immediately after the commencement of the Social Security (Payment Pending – SSAT Application for Review) Guidelines 2004 – Revocation 2007.
Section 3 sets out various interpretative provisions relevant to the 2007 Guidelines and section 4 sets out the purpose of the 2007 Guidelines.
Subsection 5(1) of the 2007 Guidelines provides, subject to subsections 5(2) and (3), that, in the case of a person in receipt of special benefit, who
- has had an adverse decision made that results in a compliance penalty period of 8 weeks because of repeated or more serious failure, as set out in section 745 of the 1991 Act; and
- makes an application for review to the SSAT under subsection 142(1) or (2) of the 1999 Act;
the Secretary must declare that the person is to continue to receive special benefit pending the determination of the review, as if the adverse decision had not been made.
This ensures that all persons who have had the mandatory compliance penalty period of 8 weeks imposed because of repeated or more serious failure will receive special benefit while seeking a SSAT review of the penalty.
Subsection 5(2) of the 2007 Guidelines provides that if the application for review is withdrawn under section 171 of the 1991 Act then subsection 5(1) of the 2007 Guidelines ceases to apply (that is the compliance penalty period will be reinstated).
Subsection 5(3) of the 2007 Guidelines provides that subsection 5(1) of the 2007 Guidelines will not apply if the compliance penalty period has been completed before the application for review to the SSAT is made.
Section 6 of the 2007 Guidelines is a savings provision that is made necessary by savings provisions in the 2005 Act which preserve certain activity test non-payment periods (non payment periods are now subsumed under the term “compliance penalty period”). Section 6 provides that section 5 or 6 (as applicable) of the 2004 Guidelines continues to apply in relation to the Secretary’s power under section 145 of the 1999 Act as if section 6 of the 2004 Guidelines had not been repealed by these Guidelines.
The 2007 Guidelines are a legislative instrument.
Consultation regarding this instrument was undertaken with the Department of Employment and Workplace Relations and the Department of Education, Science and Training.
Commencement
The 2007 Guidelines come into effect immediately after the registration of the Social Security (Payment Pending – SSAT Application for Review) Guidelines 2004 – Revocation 2007 on the Federal Register of Legislative Instruments.
Overview
The Social Security (Payment Pending—SSAT Application for Review) (FaCSIA) Guidelines 2007 were enacted to address the need for continued social security payments for individuals facing compliance penalty periods due to breaches of their obligations to seek work or participate in activities under the Social Security Act 1991. These guidelines were introduced under section 146 of the Social Security (Administration) Act 1999 and are a legislative instrument developed by the Minister. They aim to ensure that special benefit payments continue for those who have had an adverse decision imposing an 8-week compliance penalty period and who are seeking a review of this decision by the Social Security Administration Tribunal (SSAT). The guidelines were formulated to align with amendments made by the Employment and Workplace Relations Legislation (Welfare to Work and Other Measures) Act 2005 and the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Consequential Amendments Act 2006. The primary purpose of these guidelines is to provide clarity on the continuation of payments during the review process, ensuring that the review process does not unduly disadvantage those affected by the penalty.
Scope and Application
The Social Security (Payment Pending—SSAT Application for Review) (FaCSIA) Guidelines 2007 apply to individuals who are receiving special benefit and who are subject to a compliance penalty period, which is a suspension of payments for breaching obligations under the Social Security Act 1991. These Guidelines, established under section 146 of the Social Security (Administration) Act 1999, ensure that individuals subject to an 8-week compliance penalty period due to repeated or serious failures can continue to receive special benefit while their case is reviewed by the Social Security Administration Tribunal (SSAT). The Guidelines provide for the continuation of special benefit payments during the review process unless the application for review is withdrawn or the compliance penalty period is completed before the review application is made. These Guidelines apply nationally, reflecting the Commonwealth's role in administering social security across Australia. Any exclusions or exemptions from the application of these Guidelines are specified within the Guidelines themselves or through the relevant legislative instruments. The Guidelines also incorporate interpretative provisions and savings provisions to ensure consistency with previous Guidelines and related legislative amendments.
Key Provisions
The primary sections of the Social Security (Payment Pending—SSAT Application for Review) (FaCSIA) Guidelines 2007 (the 2007 Guidelines) are outlined in section 5, which provides the main operative provisions. Specifically, section 5(1) mandates that the Secretary must declare that a person in receipt of special benefit, who has faced an adverse decision resulting in an 8-week compliance penalty period due to repeated or serious failure, will continue to receive the benefit during the review process. This is subject to the conditions that the individual has applied for a review to the Social Security Administration Tribunal (SSAT) under the Social Security (Administration) Act 1999 (the 1999 Act) and that the compliance penalty period has not been completed before the review application is made. If the review application is withdrawn under the Social Security Act 1991 (the 1991 Act), then section 5(2) of the 2007 Guidelines ceases to apply, reinstating the compliance penalty period. The 2007 Guidelines also include a savings provision in section 6 to ensure continuity with the repealed 2004 Guidelines.
The obligations imposed by the 2007 Guidelines are primarily on the Secretary, who is required to make a declaration under section 5(1) to continue social security payments to eligible individuals during a review by the SSAT. This obligation ensures that the Secretary's power to make such declarations is exercised in accordance with the provisions of the 2007 Guidelines. Moreover, the guidelines require that the Secretary adhere to the conditions set out in section 5(2) and (3), which stipulate the cessation of the payment continuation in the event of a withdrawn review application or the completion of the compliance penalty period prior to the review application.
The 2007 Guidelines do not explicitly detail specific offences, penalties, or civil/criminal consequences for breaches of their provisions. However, breaches of the Social Security (Administration) Act 1999 and the Social Security Act 1991, which the guidelines are designed to facilitate, may result in penalties. For instance, under the 1991 Act, individuals who fail to comply with activity requirements may face a compliance penalty period during which their payments are withheld. Failure to adhere to the provisions of the 2007 Guidelines by the Secretary could potentially lead to legal challenges or administrative consequences, although these are not specifically delineated within the guidelines themselves.