EXPLANATORY STATEMENT
Social Security (Payment Pending—SSAT Application for Review) Guidelines 2004
Summary
The Social Security (Payment Pending—SSAT Application for Review) Guidelines 2003 (the Guidelines) is made under subsection 146(1) of the Social Security (Administration) Act 1999 (the Act).
The purpose of the Guidelines is to set out the guidelines for the exercise of the Secretary’s power to make declarations under subsection 145(1) of the Act in relation to a person whose social security payment is subject to either a participation agreement breach non-payment period or to an activity test non‑payment period. Section 145 of the Act allows the Secretary, in specified circumstances, to continue a persons social security payment pending the outcome of that persons application for review made under section 142 of the Act.
Background
Since the commencement of the Social Security Act 1991 (the 1991 Act) payment pending review declarations have been able to be made by the Secretary. On the 29 September 1995 section 1251A of the 1991 Act was enacted allowing the Minister to determine guidelines for the exercise of the Secretary’s discretion to make such declarations, for certain purposes, enabling a person’s social security payment to continue to be paid throughout the course of the review by the Social Security Appeals Tribunal (SSAT). Section 1251A of the 1991 Act was repealed, with effect from 20 March 2000, following the introduction of the social security law. Section 146 of the Act replaced the repealed provision.
Section 146 of the Act was amended by the Family and Community Services Legislation Amendment (Australians Working Together and other 2001 Budget Measures) Act 2003 with effect from 20 September 2003. These amendments necessitate payment pending review guidelines to be put in place.
Explanation of the provisions
Section 1 of the Guidelines states the name of the determination.
Section 2 states that the Guidelines commence on gazettal.
Section 3 contains interpretative provisions.
Section 4 specifies the purpose of the determination.
Subsection 5(1) provides, subject to subsections 5(2) and (3), that a person in receipt of a parenting payment, the only social security payment subject to a participation agreement breach non-payment period, who has had an adverse decision made that results in a non-payment period and who makes an application for review to the SSAT under subsection 142(1) or (2) of the Act that parenting payment is to continue to be payable to that person. If an application for review has been made direct to the SSAT and no decision to continue the person’s payment has been made under section 131 of the Act then payment is to continue from the date that the non-payment period commenced. If a determination has been made under section 135 of the Act then payment is to continue from the date that the non-payment period was applied. This ensures that all parents who have had a participation agreement breach non-payment period imposed will receive their usual payment while seeking a SSAT review of the penalty. Along with the generous waiver provisions available to parents, this reinforces the understanding that financial penalties are to be applied only as a last resort and as a tool to encourage engagement with participation requirements.
Subsection 5(2) provides that if the application for review is withdrawn under section 171 of the Act that subsection 5(1) ceases to apply (that is the non‑payment period will be reinstated).
Subsection 5(3) provides that subsection 5(1) will not apply if the participation agreement breach non-payment period has been completed before the application for review to the SSAT is made. This provision will not preclude arrears of parenting payment if the original decision to impose the non‑payment period (the subject of the application for review to the SSAT) is set aside.
Subsection 6(1) provides, subject to subsections 6(2) and (3), that a person in receipt of a social security payment who has had an adverse decision made that results in a activity test non-payment period and who makes an application for review to the SSAT under subsection 142(1) or (2) of the Act that the social security payment is to continue to be payable to that person. If an application for review has been made direct to the SSAT and no decision to continue the person’s payment has been made under section 131 of the Act then payment is to continue from the date that the non-payment period commenced. If a determination has been made under section 135 of the Act then payment is to continue from the date that the non-payment period was applied. The rationale for the requirement to develop guidelines concerning the application of payment pending the review of an activity test non-payment period is to introduce an equitable application of the rule. There are certain types of breach reasons which legislatively require mandatory payment pending a review of such a decision and therefore in the interests of natural justice and equitable application of a beneficial rule it has been determined that payment pending review should be mandatory for all situations that result in the application of a non-payment period breach penalty.
Subsection 6(2) provides that if the application for review is withdrawn under section 171 of the Act that subsection 6(1) ceases to apply (that is the non‑payment period will be reinstated).
Subsection 6(3) provides that subsection 6(1) will not apply if the activity test non-payment period has been completed before the application for review to the SSAT is made. This provision will not preclude arrears of the social security payment being made if the original decision to impose the non‑payment period (the subject of the application for review to the SSAT) is set aside.