Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1)

Administered by Department of Social Services

Legislation au F2009L01186 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1)

 

Summary

 

Subsection 1061A (2) of the Social Security Act 1991 (the Act) allows the Secretary of the Department of Education, Employment and Workplace Relations (DEEWR) to determine that paragraph 1061A (1) (b) does not apply to a person who has applied for an advance payment of a social security entitlement for which the Secretary is responsible (including austudy, mature age allowance, youth allowance, and newstart allowance).

 

The Advance Payment of Entitlement (Waiver of Waiting Period) Determination (No. 1) 1998 currently provides an exemption from having to satisfy paragraph 1061A (1) (b) of the Act for austudy recipients and youth allowance recipients who are undertaking or about to undertake an approved course of study. This determination will maintain that exemption as well as extend that exemption to new apprentices.

 

Background

 

Under Part 2.22 of the Act, eligible income support recipients are able to apply for an advance payment of their social security entitlement. An advance payment is a lump sum payment of a future social security entitlement.

 

Paragraph 1061A (1) (b) of the Act provides that in order for a person to qualify for an advance payment of a social security entitlement the person must have been receiving an income support payment for a period of three months immediately before the day on which the person’s application for the advance payment is made.  However, subsection 1061A (2) of the Act permits the Secretary to waive this requirement for people who have applied for advance payments of youth allowance or austudy payment.

 

The acting Secretary of the then Department of Social Security made the Advance Payment of Entitlement (Waiver of Waiting Period) Determination (No. 1) 1998 under subsection 1061A (2) of the Act with effect from 1 July 1998.  That determination had the effect of waiving the three-month receipt requirement for (a) recipients of austudy; and (b) recipients of youth allowance who are undertaking, or are about to undertake, an approved course of education or study.

 

On 1 July 2005 eligibility for austudy payment and youth allowance was extended to new apprentices.  However, the Advance Payment of Entitlement (Waiver of Waiting Period) Determination (No. 1) 1998 was not amended at the time to exempt new apprentices from the requirement to be in receipt of youth allowance for three months before being eligible for advance payments.

 

The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) 2009 (No. 1) rectifies this inadvertent omission by waiving the three-month receipt requirement for new apprentices.  As Centrelink has in fact been granting new apprentices advance payment of youth allowance since 2005 in accordance with the intended policy, the determination is back-dated to 1 July 2005.

 

The determination is beneficial in effect and does not adversely affect the rights of, or impose liabilities on, any person other than the Commonwealth.

 

Explanation of Provisions

 

Section 1 of the determination states the name of the determination.

 

Section 2 states that the determination is taken to have commenced on 1 July 2005. The determination commences on 1 July 2005 as this is the date that new apprentices became eligible for the advance payment under the social security law. The instrument will have retrospective application from 1 July 2005 so that any advance payments made to new apprentices under the social security law will be taken to have been made in accordance with this determination.

 

Section 3 revokes the Advance Payment of Entitlement (Waiver of Waiting Period) Determination (No.1) 1998.

 

Section 4 contains definitions.

 

The term approved course of education or study is defined in section 4 as having the meaning given by subsection 541B (5) of the Act. Subsection 541B (5) of the Act provides that a course is an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.

 

The term new apprentice is defined in section 4 as having the meaning given by subsection 23(1) of the Act. New apprentices are also known as ‘Australian Apprentices’.

 

Subsection 5 (1) provides that paragraph 1061A (1) (b) of the Act does not apply to a person who has applied for an advance payment of austudy payment.

 

Subsection 5 (2) provides that that paragraph 1061A (1) (b) of the Act does not apply to a person who has applied for an advance payment of youth allowance payment where that person:

  • is undertaking, or about to undertake, an approved course of education or study; or
  • is, or is about to become, a new apprentice.

 

Consultation

 

The determination has no impact on business or competition and is beneficial to social security claimants and recipients.  Public consultation was therefore seen as unnecessary.  The Department of Families, Housing, Community Services and Indigenous Affairs was consulted about the determination.

 

Business Cost Calculator Figure

 

The determination does not require a Regulatory Impact Statement (RIS) or a Business Cost Calculator Figure. This exemption is not regulatory in nature, will not impact on business activity and will have no compliance costs or competition impact.

 

Overview

The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1) was enacted to address an oversight in the eligibility criteria for advance payments of social security entitlements. Specifically, it was introduced to rectify the inadvertent omission of new apprentices from the exemption of the three-month receipt requirement for youth allowance. This oversight was identified after the extension of eligibility for austudy payment and youth allowance to new apprentices on 1 July 2005, which was not accompanied by a corresponding amendment to the Advance Payment of Entitlement (Waiver of Waiting Period) Determination (No. 1) 1998. Enacted by the Australian Parliament, the determination aims to align the waiting period exemption with the intended policy, thereby ensuring that new apprentices receive the same benefits as other eligible recipients. The policy objective is to streamline the application process for advance payments of social security entitlements, making it more inclusive and fair for new apprentices.

Scope and Application

The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1) amends the Social Security Act 1991 by waiving the requirement for certain individuals to have received income support payments for three months before being eligible for an advance payment of their social security entitlement. This waiver applies to new apprentices, austudy recipients, and youth allowance recipients who are undertaking or about to undertake an approved course of education or study. The determination rectifies an omission in the 1998 waiver, which did not include new apprentices, and extends the exemption to them, making it applicable from 1 July 2005. This date marks when new apprentices became eligible for advance payments under the social security law. The Secretary of the Department of Education, Employment and Workplace Relations has the authority to waive the waiting period for eligible applicants, thereby facilitating quicker access to financial support for those in specified circumstances. The determination is beneficial in effect and does not impose any liabilities or adversely affect the rights of any person other than the Commonwealth.

Key Provisions

The Social Security (Waiver of Waiting Period for Advance Payment of Entitlement) Determination 2009 (No. 1) operates under subsection 1061A(2) of the Social Security Act 1991 to waive the usual three-month waiting period for individuals applying for an advance payment of a social security entitlement. Specifically, subsection 5(1) waives the waiting period for applicants for austudy payments, while subsection 5(2) waives the period for applicants for youth allowance payments who are either currently enrolled or about to enroll in an approved course of education or study, or who are new apprentices. This waiver extends to new apprentices, who have been eligible for such payments since 1 July 2005, thereby ensuring they are not disadvantaged by the previous omission in the Advance Payment of Entitlement (Waiver of Waiting Period) Determination (No. 1) 1998. The obligations under this determination are primarily on the Secretary of the Department of Education, Employment and Workplace Relations (DEEWR), who must ensure that the waiver is applied correctly to eligible applicants. Recipients of austudy and youth allowance payments who are undertaking or about to undertake an approved course of education or study, as well as new apprentices, must meet the general eligibility criteria for advance payments but are exempt from the three-month waiting period requirement. This streamlined process aims to provide quicker financial support to those in need, facilitating their transition into study or apprenticeship without undue delay. Breach of the provisions of this determination does not explicitly create specific offences or penalties within the text provided. However, any misuse or fraudulent application for advance payments could potentially lead to broader penalties under the Social Security Act 1991. Such penalties might include fines, repayment of the wrongly received amount, and in severe cases, prosecution under criminal law for fraud. The maximum penalties for such offences can vary but are significant, reflecting the seriousness of fraudulent behaviour in the social security system.

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