Social Security (Payment Pending — SSAT Application for Review) Guidelines 2004

Administered by Department of Social Services

Legislation au F2007B00123 Not in force Legislative Instrument

Legislation content

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  Section 1251A of the 1991 Act was repealed, with effect from 20 March 2000, following the introduction of the social security law.  Section 146 of the Act replaced the repealed provision.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.

Overview

The Social Security (Payment Pending—SSAT Application for Review) Guidelines 2004 were enacted to provide clear guidelines for the exercise of the Secretary’s power to make declarations regarding the continuation of social security payments during the review process by the Social Security Appeals Tribunal (SSAT). This legislation was introduced under subsection 146(1) of the Social Security (Administration) Act 1999 by the Parliament of Australia. The guidelines address the need for consistent and fair application of payment continuation during review periods, particularly for individuals facing non-payment periods due to participation agreement breaches or activity test non-compliance. The policy objective is to ensure that financial penalties are imposed only as a last resort and to support the engagement of beneficiaries with participation requirements, thereby maintaining their financial stability while their applications for review are being processed. These guidelines aim to clarify the conditions under which social security payments can continue pending the outcome of an SSAT review, ensuring that all eligible individuals receive their payments during the review process. This legislative measure seeks to balance the need for compliance with social security obligations while also protecting the financial well-being of those subject to review, thereby promoting fairness and equity in the administration of social security benefits.

Scope and Application

The Social Security (Payment Pending—SSAT Application for Review) Guidelines 2003, made under section 146(1) of the Social Security (Administration) Act 1999, establish guidelines for the exercise of the Secretary’s power to make declarations that continue social security payments pending the outcome of a review by the Social Security Appeals Tribunal (SSAT). These guidelines apply to individuals who are recipients of social security payments and who have had an adverse decision imposed on them, resulting in a non-payment period due to a participation agreement breach or an activity test non-payment period. The application for review must be made under section 142 of the Act for the guidelines to be applicable. The provisions ensure that the social security payments continue during the review process, providing financial support to the applicants while their review is being processed. The Guidelines do not apply if the application for review is withdrawn or if the non-payment period has already been completed before the application is made. The geographic and jurisdictional reach of the Act is national, applying across all states and territories in Australia.

Key Provisions

The Guidelines establish the framework for the Secretary's authority to make certain declarations under the Social Security (Administration) Act 1999 (the Act). Specifically, Section 5(1) of the Guidelines provides that a person receiving a parenting payment, who has faced a non-payment period due to a breach of a participation agreement and has applied for a review to the Social Security Appeals Tribunal (SSAT), will have their payment continue pending the outcome of the review. This ensures that the individual's usual payment will continue from the start of the non-payment period if the review application is made directly to the SSAT and no decision has been made to halt the payment under Section 131 of the Act. Alternatively, if a decision has been made under Section 135 of the Act, payment will continue from the date the non-payment period was applied. Section 6(1) extends this provision to all social security payments subject to an activity test non-payment period. It mandates that if a person receiving a social security payment has an adverse decision resulting in a non-payment period and applies for a review to the SSAT, their payment will continue pending the review outcome. Similar to Section 5(1), payment will continue from the start of the non-payment period if the review application is made directly to the SSAT without a decision under Section 131 of the Act. If a decision has been made under Section 135 of the Act, payment will continue from the date the non-payment period was applied. These provisions aim to ensure equitable application of the rule and natural justice in the review process. The Guidelines impose several obligations on parties involved. Firstly, for individuals subject to a non-payment period, they must apply for a review to the SSAT if they wish to continue receiving their payments during the review process. Secondly, the Secretary must follow the Guidelines when making decisions about continuing payments pending review, ensuring that all eligible individuals receive their payments during the review process. Thirdly, the SSAT must process review applications efficiently to avoid unnecessary hardship to the applicants. Failure to comply with the Guidelines can lead to legal consequences. If a non-payment period is reinstated because the review application is withdrawn under Section 171 of the Act, the individual will no longer receive their social security payments during the review period. Additionally, if the non-payment period has already been completed before the review application is made, the individual will not be eligible to receive back payments for the period if the original decision to impose the non-payment period is later set aside. While the Guidelines themselves do not specify criminal or civil penalties for non-compliance, breaches of the Act or associated regulations can result in penalties as stipulated in the relevant sections of the Act.

Legal classification tags

Area of Law
Social Security Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Commencement Provisions
Regulatory Standards
Reporting & Disclosure Obligations

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.