EXPLANATORY STATEMENT
Social Security (Reasonable Excuse) (DEST) Determination 2006
Summary
This Determination is made under subsections 550(2A); 550B(2A); 576(2A) and 576A(2A) of the Social Security Act 1991 (the Act).
The purpose of this Determination is to set out matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing a participation failure. The Determination is relevant for youth allowance (full-time students) and austudy payment.
Explanation of the determination
Recipients of youth allowance and austudy payment may commit a participation failure if they fail to comply with a requirement under the Act. Recipients who persist in non-compliance may have their social security payment withdrawn until they comply. Unless the Secretary is satisfied that the person has a reasonable excuse, recipients who persist in non-compliance may have their social security payment withdrawn until they comply. In deciding whether a person had a reasonable excuse the Secretary must take into account matters which are set out in this Determination.
Explanation of the provisions
Section 1 sets out the name of the Determination. Section 2 sets out the commencement date of the Determination being 1 July 2006. This corresponds with the commencement of the provisions of the Act under which the Determination is made. Section 3 sets out the definitions to be used in the Determination with terms appearing in the Determination having the same meaning as in the Act.
Subsection 4(1) lists the provisions in the Act relating to youth allowance and austudy payment for which the matters in subsection 4(2) need to be taken into account. For the purposes of the listed provisions, subsection 4(1) makes it clear that the matters which are listed in subsection 4(2) are to be taken into account only where the Secretary has reason to believe that one or more of the matters is relevant to whether the person had a reasonable excuse for the participation failure.
Subsection 4(2) lists each of the individual matters that need to be taken into account for determining if a person has a reasonable excuse for non compliance. However, the effect of subsection 4(3) is that each of the matters only need to be taken into account where the Secretary is satisfied that the matter had a significant effect on the person’s capacity to comply with the Act to which the failure relates.
The first matter under paragraph 4(2)(a) that the Secretary needs to take account of is the fact the person was living in a non-permanent location on the streets, or is using emergency accommodation or a refuge at the time the failure occurred. This recognises that due to a person’s instability of accommodation and circumstances it may be more difficult for a person to meet his or her activity test obligations.
Under paragraph 4(2)(b), the person’s language and literacy skills need to be taken into account if the lack of such skills is significant. Such lack of skills is illustrated by an example, being where a person is unable to comprehend an instruction although it is delivered in a form the person is most likely to understand. This is to take into account that people with very poor literacy skills may be faced with a situation where they have not read and understood what is required of them and therefore fail to comply with a requirement, such as respond to correspondence, which as a result, could lead to a participation failure.
Under paragraph 4(2)(c) any illness of the person that requires frequent treatment must be taken into account. Such an illness includes an illness that is episodic or unpredictable. People who have an episodic or unpredictable illness may not always be able to plan ahead to take into account a flare up of their condition. Paragraph 4(2)(c) recognises that this could lead to a person being unable to attend an appointment or interview.
Paragraphs 4(2)(d) and (e) require that any cognitive, neurological impairment, psychiatric impairment or mental illness of the person are taken into account. This appreciates that a person may be unable to comply with his or her obligations as a result of one of these conditions. For example, a neurological impairment may make it very difficult for a person to consistently attend appointments.
Under paragraph (4)(2)(f) any drug or alcohol dependency of the person needs to be considered. This acknowledges that in some cases such a dependency is so significant that it impacts on the person’s everyday functioning and capacity to comply with income support requirements.
Paragraph 4(2)(g) requires consideration of any unforeseen significant family or caring responsibilities. This takes account of situations where a person is unexpectedly required to meet a family responsibility and it is clear that appropriate alternative arrangements were unable to be made.
Paragraph (4)(2)(h) requires the death of an immediate family member to be taken into account. This acknowledges that the crisis associated with the death of an immediate family member may inhibit a person’s capacity to comply with the Act, which could lead to a participation failure.
Under paragraph 4(2)(i) if the person has been in gaol for a period of more than 14 days, the person’s release from gaol must be considered where the person has been released in the past 28 days. This recognises that a person who is recently released from gaol may undergo a period of adjustment which could impact upon the person’s initial capacity to comply with the Act.
Consultation
The Department of Employment and Workplace Relations and the Department of Family, Community Services and Indigenous Affairs were consulted to ensure a co-ordinated and consistent approach for all social security payments under the Act in respect of matters to be taken into account in deciding whether a person has a reasonable excuse for a participation failure.
Consultations were undertaken on behalf of DEST by the Department of Employment and Workplace Relations with the following organisations:
- National Welfare Rights Network;
- the Australian Council of Social Service;
- the National Council of Single Mothers and their Children;;
- the Sole Parents’ Union;
- the Welfare to Work Consultative Forum; and
- the Disability Advisory Group.
The organisations consulted were provided with a draft of the Determination and were invited to provide comments at a forum held on 13 January 2006 and to provide written comments to the Department of Employment and Workplace Relations.