EXPLANATORY STATEMENT
Social Security (Special Circumstances relating to Person’s Family)(DEWR) Determination 2006
Summary
This Determination is made under subsections 502C(2A), 542F(2A) and 602B(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 determining if there are special circumstances in relation to a person’s family that make it appropriate to give the person an exemption from participation requirements or the activity test.
Explanation of the Determination
Under the Act, the Secretary may determine that job seekers who are in receipt of parenting payment, newstart allowance or youth allowance should be exempt from participation requirements or the activity test in specified circumstances. The Act provides for some express circumstances but also sets out that the Secretary may exempt a person for up to 16 weeks where the person is the principal carer of one or more children, and there are special circumstances relating to the person’s family that make it appropriate to make such a determination. This Determination sets out the matters that must be taken into account in making a special circumstances exemption determination. The matters in this Determination are not exhaustive and the Act specifically sets out that the Secretary may take into account other matters in making a special circumstances exemption 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 in the Act under which the Determination is made. Section 3 sets out definitions to be used in this Determination with the note providing that terms appearing in the Determination have the same meaning as in the Act.
Subsection 4(1) lists the provisions in the Act that provide for the special circumstances exemption which are relevant for this Determination. The provisions mentioned in subsection 4(1) are relevant for parenting payment, youth allowance, and newstart allowance.
The matters that need to be taken into account in determining if there are special circumstances that make it appropriate to exempt the person from participation requirements or the activity test are set out in subsection 4(2).
Paragraphs 4(2)(a) and (b) are concerned with the caring responsibilities a person may have for others. Paragraph (a) requires such responsibilities to be taken into account if the person cares for one or more children who have turned 6 but who have not commenced school. This is to support the broader policy intention that principal carers will not have activity requirements until their youngest child is at school. It takes account of the situation where children do not start school immediately upon turning six, but commence their schooling at a later time in that year.
Unless the Secretary considers that the responsibilities could have been avoided, paragraph (b) requires any significant caring responsibilities to be taken into account which:
- require the person to temporarily care for an immediate family member who is incapacitated due to illness or accident; and
- mean the person will be unable or is likely to be unable to both look for work and participate in training activities.
The nature of the caring responsibility must be such that it prevents or would be likely to prevent the person from being able to undertake both job search and other activities. If a person could undertake either or both job search or other activities, the person’s caring responsibilities do not have to be given consideration under this Determination.
Paragraph 4(2)(b) takes account of the role within the family of principal carer parents who may have responsibility in caring for children and other immediate family members. It acknowledges that if, for example, a child falls ill the principal carer parent may need to be available on a full-time capacity to care for the child. However, it is intended that if appropriate alternative arrangements are able to be made for the family member to be cared for, that this alternative be used.
Where a person has been subjected to domestic violence and it specifically impacts on the person’s capacity to both look for work and participate in training activities, then paragraph 4(2)(c) requires that the impact of the domestic violence needs to be taken into account in determining if it is appropriate a person should receive a special circumstances exemption.
While the Act does contain a specific exemption for people who have been subjected to domestic violence, paragraph 4(2)(c) acknowledges there may be occasions where the provision in the Act will not apply. For example, where a person has been subjected to domestic violence more than 26 weeks prior to the proposed determination, but the experience of domestic violence is continuing to have a direct impact on a person’s current capacity to look for work and participate in training. In these circumstances, a person may require a temporary exemption from undertaking these activities.
The final matter that must be taken into account is the person’s emotional or physical wellbeing. Under paragraph 4(2)(d) this needs to be taken into account where, in the past 4 weeks, a person has ceased to be a member of a couple and the break up has had a significant adverse impact on the person and the person would be unable to or likely to be unable to look for work and participate in training activities.
A relationship breakdown can leave people in difficult circumstances or with intense emotional responses. Paragraph 4(2)(d) takes account of the situation where a person is affected by a relationship breakdown in such a way that he or she will be unable to look for work and undertake training activities at that particular time.
Consultation
The Department of Families, Community Services and Indigenous Affairs was consulted to ensure a co-ordinated and consistent approach for all social security payments under the Act in respect of special circumstances exemption determinations.
Consultations were undertaken 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.