EXPLANATORY STATEMENT
Social Security (Reasonable Excuse) (DEWRFaCSIA) Amendment Determination 2006 (No. 1)
Summary
The Social Security (Reasonable Excuse) (FaCSIA) Amendment Determination 2006 (No. 1) (the Amendmentis Ddetermination) is made under subsections 500ZA740(22A);, 500ZB742(2A) and; 500ZE745(1A); 550(2A); 551(1A); 624(2A) 626 (2A) and 629 (1A) of of the Social Security Act 1991 (the Act).
The purpose of the Amendmentis Ddetermination is to amend the Social Security (Reasonable Excuse) (FaCSIA) Determination 2006 (the Principal Determination) that was made on 6 February 2006.
The Amendment Determination substitutes paragraph 4(2)(g) of the Principal Deterset out matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing a participation failure or for refusing to accept a suitable offer of employment. The Ddetermination is relevant for parenting payment, newstart allowance and youth allowance (except for people undertaking full-time study under section 541B of the Act or new apprentices)special benefit.mination because the original paragraph specified “unforseen family and caring responsibilities” instead of “unforeseen family or caring responsibilities”. This means that this paragraph is not the same as applies to those social security payments affected by similar provisions of the Act in determinations made by the Secretary of the Department of Employment and Workplace Relations (see Social Security (Reasonable Excuse) (DEWR) Determination 2006 (F2006L00340)) and the Secretary of the Department of Education, Science and Training (see Social Security (Reasonable Excuse) (DEST) Determination 2006 (F2006L00397)).
Explanation of the determination
Claimants and rRecipients of parenting payment, youth allowance and newstart allowancespecial benefit may commit a participation failure if they fail to comply with a specified requirement under the Act. Job seekersRecipients of special benefit who are subject to the Special Benefit Activity Test who persist in non-compliance, or who refuse to accept a suitable offer of employment, may have their social security paymentspecial benefit withdrawn until they comply. However, if the Secretary is satisfied that the person has a reasonable excuse for a failure, or for refusing to accept a job, then the person will not have a committed a failure or have their payment stopped, as the case may be. In deciding whether a person had a reasonable excuse the Secretary must take into account matters thatwhich are set out in this Ddetermination.
Explanation of the provisions
Section 1 sets out the name of the Amendment Ddetermination.
Section 2 sets out the commencement date of the Ddetermination as being 1 July 2006 immediately after the commencement of the Principal Determination. This corresponds with the commencement of the provisions of the Act under which both the Principal determination Determination and Amendment Determination is made.
Section 3 states that Schedule 1 amends the Principal Determination.sets out the interpretation definitions to be used in the instrument Determination with terms appearing in the iDetermination nstrument having the same meaning as in the social security lawAct.
Schedule 1 of the Amendment Determination makes one amendment to the Principal Determination by substituting a new paragraph 4(2)(g)ubsection 4(1) lists the provisions in the Act relating to parenting payment, youth allowance and newstart allowancespecial benefit 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 or job refusal, as the case may be.
Subsection 4(2) lists each of the individual matters that need to be taken into account in for determining if a person has a reasonable excuse for non- compliance or failing to take a job. However, the effect of the opening paragraph of subsection 4(23) is that each of the matters only need to be taken into account where the Secretary is satisfied that the matter had a significant impact effect on the person’s capacity to comply with the requirement or provision of the Act to which the failure or refusal of a job relates.
The first matter under paragraph 4(2)(a) the Secretary needs to ttake into account, at paragraph 4(2)(a), of is the fact the person was without conventional accommodation or living oin a non-permanent location on the streets, using emergency accommodation or a refuge homeless at the time the failure or refusal occurred. Homelessness is defined in subsection 4(3) as not including where a person is at risk of homelessness. Theis reason forrecognises that this is to consider whether it due to a person’s instability of accommodation and circumstances, it may be more difficult for athe person to meet theirhis or her activity test obligations if they are living on the streets, or refuge or other emergency accommodatobligations.ion.is that the state of the person’s accommodation has to have a direct impact on the person’s capacity to comply with the activity agreement. A person who is actually homeless or in crisis accommodation may be expected to have reasonable difficulty with complying whereas those who are in temporary accommodation are still likely to be able to do what is required in their activity agreement.
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 in instruction although it is delivered in a form the person is most likely to understand. This assumes is to take into account that a personpeople with very poor literacy skills may have the be faced with a situation arise where they have not read and understood what is required of them and therefore failed fail to do something comply with a requirement, such as, or respond to correspondence, that would lead to awhich as a result, wouldcould 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. This is to take into consideration wherePeople a person who have has an episodic or unpredictable illness and may not be always be able to plan ahead to take into account a flair flare up of their condition. Paragraph 4(2)(c) recognises that this , which could lead to a may lead to the person person failing tobeing unable to attend an appointment, or similar. or interview.
Paragraphs 4(2)(d) and (e) require that any cognitive or, neurological impairment, psychiatric impairment or mental illness of the person needs to be taken into account isare taken into account. It is This appreciates that possible that a person has beenperson may be unable to comply with their his or her activity agreement as a result of one of these conditions. For example, a neurological impairment may make it very difficult for a person to consistently keep attend appointments.
Under paragraph (4)(2)(f) any drug or alcohol dependency of the person needs to be considered. This is acknowledges that, in some cases, to apply in the situation wheresuch a a dependency has anis so significant that it impact oimpacts on the person’sn everyday functioning and a person’s capacity to comply with income support their requirements.s.
Paragraph 4()(2)(g) requires that anyconsideration of any unforseen significant family and caring responsibilities. . This is to allow for the 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 consideration of the death of an immediate family member to be taken into account. This allows for where theacknowledges that the crisis of theassociated with the death of a close family member may inhibit as a person’s capacity to comply with their the Act, which could lead to a participation failure.requirements.
Under paragraph 4(2)(i) if the person has been in gaol gaolprison for a period of more than 14 days, the person’s release from gaol prisongaol must be considered where the person has been released in the past 28 days. This is to allow for arecognises that a person who is recently released from gaol gaolprison may undergopossibly undergoing an a period of adjustment, , which may could impact upon the person’s initial capacity to comply with the Act.
No consultation in relation to the Amendment Determination was undertaken because this legislative instrument is of a minor nature to ensure that it is consistent with the Social Security (Reasonable Excuse) (DEWR) Determination 2006 and the Social Security (Reasonable Excuse) (DEST) Determination 2006.