Social Security (Special Circumstances relating to a Person's Family) (FaCSIA) Determination 2006

EXPLANATORY STATEMENT

Social Security (Special Circumstances relating to a Person’s Family) (FaCSIADEWR) Determination 2006

Summary

This Determination is made under subsections 502C(2A), 542F(2A) and 602B731DA(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 special benefit participation requirements orf the activity test.

Explanation of the Determination

Under the Act, the Secretary may determine that special benefit claimants or recipients job seekers who are in receipt of parenting payment, newstart allowance or youth allowance are to be exempt from participation requirements ofr 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 such 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 under subsection 731DA(2A). 

Explanation of the provisions

Section 1 sets out the name of the Determination. Section 2 sets out the commencement date of the Determination as 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 a note providing that terms appearing in the Determination have the same meaning as in the Act.

Subsection 4(1) sets outlists  the provisions in the Act that provides for the special circumstances exemption which are relevant for this Dd relevant to special benefitetermination. 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 carer parents 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 whichthat:

• require the person to temporarily care temporarily for an immediate family member who is incapacitated due to illness or accident; and
• mean the person will not be unable, or is likely to be unable, to both look for work and participate in training activities.

[L1]The nature of the caring responsibility must be such that it prevents, or would be likely to prevent, the person from being unable able to undertake both job search and other activities. 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 close relatives.  It acknowledges that if, for example, a child falls ill the principal carer parent may need to be available on a full-time basiscapacity to care for the child.  However, it is intended that if appropriate alternative arrangements are able tocan be made for the family member to be cared for, that this alternative should be used. 

Where a person has been subjected to domestic violence, which 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 for a person toshould be given 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 exampleAn example would be , 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 therefore 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 it appears that he or she will be unable to look for work and undertake training activities at that particular time. 

Consultation

The Department of Family and Community Services and Indigenous Affairs Employment and Workplace Relations and the Department of Education, Science and Training were 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.

[L1]This first sentence was thought to be quite confusing and we weren’t sure if it was needed.