This Guide is intended to help you work out where you need to look in the Act to find the information you need. The Guide explains how the Act is arranged and how things like the Table of Parts, the definitions and the notes can help you in reading the Act.
1. Use the Tables of Parts and Provisions to find your area of interest.
The Table of Parts (which is to be found straight after this Guide) is a general list of the contents of the Act. The Table of Provisions (which comes after the Table of Parts) is more detailed—it lists every section in the Act.
2. The Act is divided into 8 Chapters.
Chapter 1 is introductory and contains definitions.
Chapter 2 deals with each type of pension, benefit or allowance under the Act.
Chapter 3 deals with general rules explaining e.g. how to work out the rate of pension, benefit or allowance, how the assets test works etc.
Chapter 4 deals with portability of pensions, benefits or allowances and with international agreements.
Chapter 5 deals with overpayments and debt recovery.
Chapter 6 deals with review of decisions made under the Act.
Chapter 7 deals with administrative matters.
Chapter 8 deals with miscellaneous matters, including offences under the Act.
3. There is a separate Part in Chapter 2 for each type of pension, benefit or allowance.
Chapter 2 is divided into Parts. Each Part deals with one type of pension, benefit or allowance. To find out about a particular type of payment (e.g. sole parent pension), look at the Table of Parts at the beginning of the Act. It will direct you to Part 2.6 for the provisions dealing with sole parent pension.
Within each Part dealing with a type of pension, benefit or allowance, the topics are dealt with in this order:
• qualification and payability (who can get the type of payment?)
• claim (how do you go about claiming it?)
• determination of claim (when is it granted from?)
• rate (if it is granted, what will the rate be?)
• payment (how is it paid?)
• protection (how is your payment protected?)
• recipient obligations (if you get it, what are your obligations?)
• continuation, variation and determination (if you get it, when can the rate be increased or decreased and when can the payment be cancelled or suspended?)
• bereavement payments (what happens if you get it and someone who affects your rate dies?)
• fringe benefits (who can get fringe benefits?)
4. The other Chapters deal with general topics.
The other Chapters deal with topics that are relevant to several, or to all, types of pension, benefit or allowance. The main provisions of this kind are:
• rate calculation (Parts 3.1 to 3.8)
• fringe benefits means tests (Part 3.9)
• income and assets test (Parts 3.10, 3.11 and 3.12)
• effect of imprisonment (Part 3.13)
• effect of compensation (Part 3.14)
• indexation (Part 3.15)
• international agreements (Part 4.1)
• overseas portability (Part 4.2)
• overpayments and debt recovery (Chapter 5)
• review of decisions (Chapter 6)
• administration (Chapter 7)
• miscellaneous (Chapter 8)
5. Definitions are generally in Chapter 1.
The definitions of terms used in the Act are generally at the front of the Act, after the Table of Provisions and the formal citation and commencement provisions.
Related definitions have been grouped together to help give a complete picture of the terms relating to a particular topic or concept.
6. The Index of definitions is at section 3.
The Index of defined terms (section 3) has been provided to tell you exactly where a particular term is defined. If you are not sure whether a term is a defined term, or you are not sure where a term is defined, check the Index at section 3.
7. Notes and examples throughout the Act help explain how certain provisions work.
Notes are to be found throughout the text and these are designed to help you find your way through the document. Notes tell you where to find definitions and alert you to other provisions in this Act and in other legislation that are relevant to the text you are reading. Examples are also used to help explain how some provisions work—in particular those involving complex calculations.
Social Security Act 1991
No. 46 of 1991
TABLE OF PARTS
| |
Part 1.1 | - Formal matters |
Part 1.2 | - Definitions |
Part 1.3 | - Determinations having interpretative effect |
Part 1.4 | - Miscellaneous |
| CHAPTER 2—PENSIONS, BENEFITS AND ALLOWANCES |
Part 2.1 | - Introduction |
Part 2.2 | - Age pension |
Part 2.3 | - Invalid pension |
Part 2.4 | - Wife pension |
Part 2.5 | - Carer pension |
Part 2.6 | - Sole parent pension |
Part 2.7 | - Widowed person allowance |
Part 2.8 | - Widow B pension |
Part 2.9 | - Sheltered employment allowance |
Part 2.10 | - Rehabilitation allowance |
Part 2.11 | - Unemployment benefit |
Part 2.12 | - Job search allowance |
Part 2.13 | - Employment Entry Payment |
Part 2.14 | - Sickness benefit |
Part 2.15 | - Special benefit |
Part 2.16 | - Special needs pensions |
Part 2.17 | - Family allowance |
Part 2.18 | - Family allowance supplement |
Part 2.19 | - Child disability allowance |
Part 2.20 | - Double orphan pension |
Part 2.21 | - Mobility allowance |
TABLE OF PARTS—continued
| CHAPTER 3—GENERAL PROVISIONS RELATING TO PAYABILITY AND RATES |
Part 3.1 | - Rate Calculators (General) |
Part 3.2 | - Pension Rate Calculator A |
Part 3.3 | - Pension Rate Calculator B |
Part 3.4 | - Pension Rate Calculator C |
Part 3.5 | - Benefit Rate Calculator A |
Part 3.6 | - Benefit Rate Calculator B |
Part 3.7 | - Family Allowance Rate Calculator |
Part 3.8 | - Family Allowance Supplement Rate Calculator |
Part 3.9 | - Fringe benefits means test calculators |
Part 3.10 | - General provisions relating to the ordinary income test |
Part 3.11 | - General provisions relating to the maintenance income test |
Part 3.12 | - General provisions relating to the assets test |
Part 3.13 | - Imprisonment |
Part 3.14 | - Compensation recovery |
Part 3.15 | - New Enterprise Incentive Scheme |
Part 3.16 | - Indexation |
Part 3.17 | - Miscellaneous |
| CHAPTER 4—INTERNATIONAL AGREEMENTS AND PORTABILITY |
Part 4.1 | - International agreements |
Part 4.2 | - Overseas portability |
| CHAPTER 5—OVERPAYMENTS AND DEBT RECOVERY |
Part 5.1 | - Effect of Chapter |
Part 5.2 | - Amounts recoverable under this Act |
Part 5.3 | - Methods of recovery |
Part 5.4 | - Non-recovery of overpayments and debts |
| CHAPTER 6—REVIEW OF DECISIONS |
Part 6.1 | - Internal review |
Part 6.2 | - Review by the Social Security Appeals Tribunal |
Part 6.3 | - Procedures for review by the SSAT |
Part 6.4 | - Review by Administrative Appeals Tribunal |
| CHAPTER 7—ADMINISTRATION |
Part 7.1 | - General administration |
Part 7.2 | - Information management |
Part 7.3 | - Social Security Appeals Tribunal |
| CHAPTER 8—MISCELLANEOUS |
| SCHEDULES |
Social Security Act 1991
No. 46 of 1991
TABLE OF PROVISIONS
| CHAPTER 1—INTRODUCTORY |
| PART 1.1—FORMAL MATTERS |
Section | |
1. | Short title |
2. | Commencement |
| PART 1.2—DEFINITIONS |
3. | Index of definitions |
4. | Family relationships definitions—couples |
| Member of a couple—general |
| Member of a couple—criteria for marriage-like relationship |
| Member of a couple—special excluding determination |
| Illness separated couple |
| Respite care couple |
| Approved respite care |
| Benefit increase partner |
| Standard family situation categories |
5. | Family relationships definitions—children |
| Dependent child—under 16 |
| Dependent child—16 and over |
| Dependent child—pension and benefit recipients |
| Dependent child—residence requirements |
| Receiving full-time education—education leavers |
| Prescribed student child |
6. | Family payments definitions |
7. | Australian residence definitions |
8. | Income test definitions |
| Earned, derived or received |
| Domestic payments |
TABLE OF PROVISIONS—continued
Section | |
| Excluded amounts—home equity conversion (not member of a couple) |
| Excluded amounts—home equity conversion (member of a couple) |
| Home equity conversion (amount owed) |
| Home equity conversion (principal home) |
| Excluded amounts—general |
9. | Investment income definitions |
10. | Maintenance income definitions |
11. | Assets test definitions |
| Homeowner |
| Principal home |
| Granny flat interest |
| Pension year—disposal of assets |
| Unrealisable asset |
12. | Retirement villages definitions |
13. | Rent definitions |
| Board and lodging |
| Nursing homes |
14. | Remote area definitions |
15. | UB and JSA work test definitions |
16. | UB and JSA industrial action definitions |
| Industrial action |
| Trade unions divided into branches |
17. | Compensation recovery definitions |
| Compensation |
| Compensation part of a lump sum |
| Receives compensation |
| Insurer |
| Payment for a period |
18. | Incentive allowance definitions |
19. | Mobility allowance definitions |
20. | Indexation and rate adjustment definitions |
| Publication of substituted index numbers |
| Change to CPI reference base |
| Publication of substituted AWE amount |
21. | Bereavement definitions |
22. | Review of decisions definitions |
23. | General definitions |
| Transferee to social security benefit |
| PART 1.3—DETERMINATIONS HAVING INTERPRETATIVE EFFECT |
24. | Person may be treated as not being a member of a couple (subsection 4(2)) |
25. | Independent living training (incentive allowance) |
26. | Approval of short term vocational courses (UB and JSA work test) |
27. | Approval of vocational courses (UB work test) |
28. | Approval of voluntary organisations (UB and JSA work test) |
29. | Approval of friendly societies |
30. | Approval of mental hospitals |
31. | Approval of follow-up rehabilitation programs |
32. | Approval of sheltered employment—non-profit organisation |
33. | Approval of sheltered employment—supported employment |
34. | Approval of benevolent homes |
35. | Approval of care organisation |
36. | Major disaster |
37. | Dependent child—inmate of a mental hospital |
38. | Specification of foreign country |
| PART 1.4—MISCELLANEOUS |
39. | Tables, Calculators etc. form part of section |
TABLE OF PROVISIONS—continued
Section | |
| CHAPTER 2—PENSIONS, BENEFITS AND ALLOWANCES |
| PART 2.1—INTRODUCTION |
40. | Order of provisions/structure of Parts |
41. | Qualification for/payability of pension, benefit or allowance |
42. | Payday-based payments and period-based payments |
| PART 2.2—AGE PENSION |
| Division 1—Qualification for and payability of age pension |
| Subdivision A—Qualification |
43. | Qualification for age pension |
| Subdivision B—Payability |
44. | Age pension not payable in some circumstances |
45. | Age pension generally not payable before claim |
46. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for age pension |
| Early claim |
47. | Multiple entitlement exclusion |
| Division 2—Claim for age pension |
48. | Need for a claim |
49. | Form of claim |
50. | Lodgment of claim |
51. | Claimant must be Australian resident and in Australia |
| Division 3—Determination of claim |
52. | Secretary to determine claim |
53. | Grant of claim |
54. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Division 4—Rate of age pension |
55. | How to work out a person’s age pension rate |
| Division 5—Payment of age pension |
56. | Commencement of age pension |
57. | Payment by instalments |
58. | Effect on instalments of backdating claim |
59. | Calculation of amount of instalment |
60. | Inmates of benevolent homes |
61. | Manner of payment |
62. | Nominee payments |
63. | Payment into bank account etc. |
64. | Where pension payday would fall on public holiday etc. |
65. | Payment of pension after death |
| Division 6—Protection of age pension |
66. | Age pension to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
67. | Effect of garnishee or attachment order |
TABLE OF PROVISIONS—continued
Section | |
| Division 7—Recipient obligations |
68. | Secretary may require notice of the happening of an event or a change in circumstances |
69. | Secretary may require recipient to give particular information relevant to payment of age pension |
70. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
71. | Continuing effect of determination |
| Entitlement determination |
| Rate determination |
| Subdivision B—Automatic termination |
72. | Automatic termination—recipient complying with section 68 notification obligations |
73. | Automatic termination—recipient not complying with section 68 notification obligations |
| Subdivision C—Automatic rate reduction |
74. | Automatic rate reduction—recipient not complying with section 68 notification obligations |
75. | Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available |
| Subdivision D—Determinations |
76. | Rate increase determination |
77. | Rate reduction determination |
78. | Cancellation or suspension determination |
79. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
80. | Date of effect of favourable determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Notified change of circumstances |
| Prescribed student child determination |
| Other determinations |
81. | Date of effect of adverse determination |
| General |
| Contravention of Act |
| False statement or misrepresentation—suspension or cancellation |
| False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments |
| Subdivision A—Death of pensioner partner |
82. | Qualification for payments under this Subdivision |
83. | Continued payment of partner’s pension or allowance |
84. | Lump sum payable in some circumstances |
85. | Adjustment of person’s age pension rate |
86. | Effect of death of person entitled to payments under this Subdivision |
87. | Matters affecting payment of benefits under this Subdivision |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision B—Death of dependent child |
88. | Bereavement payments on death of dependent child |
89. | Continued payment of child-related amounts |
90. | Lump sum payable in some circumstances |
| Subdivision C—Death of recipient |
91. | Death of recipient |
| Division 10—Fringe benefits |
92. | Fringe benefits |
93. | Qualification for fringe benefits |
| PART 2.3—INVALID PENSION |
| Division 1—Qualification for and payability of invalid pension |
| Subdivision A—Qualification |
94. | Qualification for invalid pension |
| Permanent incapacity for work |
| Permanent blindness |
| Subdivision B—Payability |
95. | Invalid pension not payable in some circumstances |
96. | Invalid pension generally not payable before claim |
97. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for invalid pension |
| Early claim |
98. | Multiple entitlement exclusion |
99. | Secretary may require person to have medical examination, attend course or undertake work |
| Division 2—Claim for invalid pension |
100. | Need for a claim |
101. | Form of claim |
102. | Lodgment of claim |
103. | Claimant must be Australian resident and in Australia |
| Division 3—Determination of claim |
104. | Secretary to determine claim |
105. | Grant of claim |
106. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Division 4—Medical examination following claim |
107. | Examination by medical practitioner |
| Division 5—Rate of invalid pension |
108. | How to work out a person’s invalid pension rate |
TABLE OF PROVISIONS—continued
Section | |
| Division 6—Payment of invalid pension |
109. | Commencement of invalid pension |
110. | Payment by instalments |
111. | Effect on instalments of backdating claim |
112. | Calculation of amount of instalment |
113. | Inmates of benevolent homes |
114. | Manner of payment |
115. | Nominee payments |
116. | Payment into bank account etc. |
117. | Where pension payday would fall on public holiday etc. |
118. | Payment of pension after death |
| Division 7—Protection of invalid pension |
119. | Invalid pension to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
120. | Effect of garnishee or attachment order |
| Division 8—Recipient obligations |
121. | Secretary may require notice of the happening of an event or a change in circumstances |
122. | Secretary may require recipient to give particular information relevant to payment of invalid pension |
123. | Self incrimination |
| Division 9—Continuation, variation and termination |
| Subdivision A—General |
124. | Continuing effect of determination |
| Entitlement determination |
| Rate determination |
| Subdivision B—Automatic termination |
125. | Automatic termination—recipient complying with section 121 notification obligations |
126. | Automatic termination—recipient not complying with section 121 notification obligations |
| Subdivision C—Automatic rate reduction |
127. | Automatic rate reduction—recipient not complying with section 121 notification obligations |
128. | Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available |
| Subdivision D—Determinations |
129. | Rate increase determination |
130. | Rate reduction determination |
131. | Cancellation or suspension determination |
132. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
133. | Date of effect of favourable determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Notified change of circumstances |
TABLE OF PROVISIONS—continued
Section | Prescribed student child determination |
| Other determinations |
134. | Date of effect of adverse determination |
| General |
| Contravention of Act |
| False statement or misrepresentation—suspension or cancellation |
| False statement or misrepresentation—rate reduction |
| Division 10—Bereavement payments |
| Subdivision A—Death of pensioner partner |
135. | Qualification for payments under this Subdivision |
136. | Continued payment of partner’s pension or allowance |
137. | Lump sum payable in some circumstances |
138. | Adjustment of person’s invalid pension rate |
139. | Effect of death of person entitled to payments under this Subdivision |
140. | Matters affecting payment of benefits under this Subdivision |
| Subdivision B—Death of dependent child |
141. | Bereavement payments on death of dependent child |
142. | Continued payment of child-related amounts |
143. | Lump sum payable in some circumstances |
| Subdivision C—Death of recipient |
144. | Death of recipient |
| Division 11—Fringe benefits |
145. | Fringe benefits |
146. | Qualification for fringe benefits |
| PART 2.4—WIFE PENSION |
| Division 1—Qualification for and payability of wife pension |
| Subdivision A—Qualification |
147. | Qualification for wife pension |
| Subdivision B—Payability |
148. | Wife pension not payable in some circumstances |
149. | Wife pension generally not payable before claim |
150. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for wife pension |
| Early claim |
151. | Multiple entitlement exclusion |
| Division 2—Claim for wife pension |
152. | Need for a claim |
153. | Form of claim |
154. | Lodgment of claim |
155. | Claimant must be Australian resident and in Australia |
TABLE OF PROVISIONS—continued
Section | |
| Division 3—Determination of claim |
156. | Secretary to determine claim |
157. | Grant of claim |
158. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Division 4—Rate of wife pension |
159. | How to work out the rate of wife pension |
| Division 5—Payment of wife pension |
160. | Commencement of wife pension |
161. | Payment by instalments |
162. | Effect on instalments of backdating claim |
163. | Calculation of amount of instalment |
164. | Inmates of benevolent homes |
165. | Manner of payment |
166. | Nominee payments |
167. | Payment into bank account etc. |
168. | Where pension payday would fall on public holiday etc. |
169. | Payment of pension after death |
| Division 6—Protection of wife pension |
170. | Wife pension to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
171. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
172. | Secretary may require notice of the happening of an event or a change in circumstances |
173. | Secretary may require recipient to give particular information relevant to payment of wife pension |
174. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
175. | Continuing effect of determination |
| Entitlement determination |
| Rate determination |
| Subdivision B—Automatic termination |
176. | Automatic termination—recipient complying with section 172 notification obligations |
177. | Automatic termination—recipient not complying with section 172 notification obligations |
| Subdivision C—Automatic rate reduction |
178. | Automatic rate reduction—recipient not complying with section 172 notification obligations |
179. | Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision D—Determinations |
180. | Rate increase determination |
181. | Rate reduction determination |
182. | Cancellation or suspension determination |
183. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
184. | Date of effect of favourable determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Notified change of circumstances |
| Prescribed student child determination |
| Other determinations |
185. | Date of effect of adverse determination |
| General |
| Contravention of Act |
| False statement or misrepresentation—suspension or cancellation |
| False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments |
| Subdivision A—Continuation of wife pension where partner dies |
186. | Continuation of wife pension for bereavement period |
187. | Continued wife pension rate |
| Subdivision B—Death of pensioner partner |
188. | Qualification for payments under this Subdivision |
189. | Continued payment of partner’s pension or allowance |
190. | Lump sum payable in some circumstances |
191. | Effect of death of person entitled to payments under this Subdivision |
192. | Matters affecting payment of benefits under this Subdivision |
| Subdivision C—Death of dependent child |
193. | Bereavement payments on death of dependent child |
194. | Continued payment of child-related amounts |
195. | Lump sum payable in some circumstances |
| Division 10—Fringe benefits |
196. | Fringe benefits |
197. | Qualification for fringe benefits |
| PART 2.5—CARER PENSION |
| Division 1—Qualification for and payability of carer pension |
| Subdivision A—Qualification |
198. | Qualification for carer pension |
| Subdivision B—Payability |
199. | Carer pension not payable in some circumstances |
200. | Carer pension generally not payable before claim |
201. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for carer pension |
| Early claim |
TABLE OF PROVISIONS—continued
Section | |
202. | Multiple entitlement exclusion |
| Division 2—Claim for carer pension |
203. | Need for a claim |
204. | Form of claim |
205. | Lodgment of claim |
206. | Claimant must be Australian resident and in Australia |
| Division 3—Determination of claim |
207. | Secretary to determine claim |
208. | Grant of claim |
209. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Division 4—Rate of carer pension |
210. | How to work out a person’s carer pension rate |
| Division 5—Payment of carer pension |
211. | Commencement of carer pension |
212. | Payment by instalments |
213. | Effect on instalments of backdating claim |
214. | Calculation of amount of instalment |
215. | Manner of payment |
216. | Nominee payments |
217. | Payment into bank account etc. |
218. | Where pension payday would fall on public holiday etc. |
219. | Payment of pension after death |
| Division 6—Protection of carer pension |
220. | Carer pension to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
221. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
222. | Secretary may require notice of the happening of an event or a change in circumstances |
223. | Secretary may require recipient to give particular information relevant to payment of carer pension |
224. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
225. | Continuing effect of determination |
| Entitlement determination |
| Rate determination |
| Subdivision B—Automatic termination |
226. | Automatic termination—recipient complying with section 222 notification obligations |
227. | Automatic termination—recipient not complying with section 222 notification obligations |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision C—Automatic rate reduction |
228. | Automatic rate reduction—recipient not complying with section 222 notification obligations |
| Subdivision D—Determinations |
229. | Rate increase determination |
230. | Rate reduction determination |
231. | Cancellation or suspension determination |
232. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
233. | Date of effect of favourable determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Notified change of circumstances |
| Prescribed student child determination |
| Other determinations |
234. | Date of effect of adverse determination |
| General |
| Contravention of Act |
| False statement or misrepresentation—suspension or cancellation |
| False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments |
| Subdivision A—Continuation of carer pension |
235. | Continuation of carer pension for bereavement period where person cared for dies |
236. | Continued carer pension rate |
| Subdivision B—Death of pensioner partner |
237. | Qualification for payments under this Subdivision |
238. | Continued payment of partner’s pension or allowance |
239. | Lump sum payable in some circumstances |
240. | Adjustment of person’s carer pension rate |
241. | Effect of death of person entitled to payments under this Subdivision |
242. | Matters affecting payment of benefits under this Subdivision |
| Subdivision C—Death of dependent child |
243. | Bereavement payments on death of dependent child |
244. | Continued payment of child-related amounts |
245. | Lump sum payable in some circumstances |
| Subdivision D—Death of recipient |
246. | Death of recipient |
| Division 10—Fringe benefits |
247. | Fringe benefits |
248. | Qualification for fringe benefits |
TABLE OF PROVISIONS—continued
Section | |
| PART 2.6—SOLE PARENT PENSION |
| Division 1—Qualification for and payability of sole parent pension |
| Subdivision A—Qualification |
249. | Qualification for sole parent pension |
250. | SPP (sole parent pension) child |
251. | Young person to be SPP child for only one person |
252. | Effect of maintenance rights on qualification for sole parent pension |
| Subdivision B—Payability |
253. | Sole parent pension not payable in some circumstances |
254. | Sole parent pension generally not payable before claim |
255. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for sole parent pension |
| Early claim |
256. | Backdating—death of partner etc. |
257. | Backdating—birth of child |
258. | Multiple entitlement exclusion |
| Division 2—Claim for sole parent pension |
259. | Need for a claim |
260. | Form of claim |
261. | Lodgment of claim |
262. | Claimant must be Australian resident and in Australia |
263. | Secretary may require some claimants to give information about domestic |
| circumstances |
| De facto relationship |
| Living separately and apart under the one roof |
| Kind of information that can be specified |
| Notice to state effect of failure to comply with notice |
| Offence |
264. | Secretary’s obligations if claimant complies with section 263 notice |
| De facto relationship |
| Favourable subsection (1) determination to be followed by investigation moratorium |
| Living separately and apart under the one roof |
| Favourable subsection (3) determination to be followed by investigation |
| moratorium |
265. | Effect of failure by claimant to comply with section 263 notice |
| Division 3—Determination of claim |
266. | Secretary to determine claim |
267. | Grant of claim |
268. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Division 4—Rate of sole parent pension |
269. | How to work out a person’s sole parent pension rate |
| Division 5—Payment of sole parent pension |
270. | Commencement of sole parent pension |
271. | Payment by instalments |
272. | Effect on instalments of backdating claim |
TABLE OF PROVISIONS—continued
Section | |
273. | Calculation of amount of instalment |
274. | Inmates of benevolent homes |
275. | Manner of payment |
276. | Nominee payments |
277. | Payment into bank account etc. |
278. | Where pension payday would fall on public holiday etc. |
279. | Payment of pension after death |
| Division 6—Protection of sole parent pension |
280. | Sole parent pension to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
281. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
282. | Secretary may require some recipients to give information about domestic circumstances |
| De facto relationship |
| Living separately and apart under the one roof |
| Kind of information that may be specified |
| Notice to state effect of failure to comply with notice |
| Offence |
283. | Secretary’s obligations if recipient complies with section 282 notice |
| De facto relationship |
| Favourable subsection (1) determination to be followed by investigation moratorium |
| Living separately and apart under the one roof |
| Favourable subsection (3) determination to be followed by investigation moratorium |
284. | Secretary may require notice of the happening of an event or a change in circumstances |
285. | Secretary may require recipient to give particular information relevant to payment of sole parent pension |
286. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
287. | Continuing effect of determination |
| Entitlement determination |
| Rate determination |
| Subdivision B—Automatic termination |
288. | Automatic termination—recipient complying with section 284 notification obligations |
289. | Automatic termination—recipient not complying with section 284 notification obligations |
290. | Automatic termination—failure to provide section 285 statement |
| Subdivision C—Automatic rate reduction |
291. | Automatic rate reduction—recipient not complying with section 284 notification obligations |
292. | Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available |
| Subdivision D—Determinations |
293. | Rate increase determination |
294. | Rate reduction determination |
TABLE OF PROVISIONS—continued
Section | |
295. | Cancellation or suspension determination |
296. | Suspension for failure to comply with section 282 notice |
297. | Cancellation for failure to comply with subsection 296 (2) notice |
298. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
299. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
300. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments |
| Subdivision A—Continuation of sole parent pension |
301. | Continuation of sole parent pension for bereavement period where recipient’s only SPP child dies |
302. | Continued sole parent pension rate |
| Subdivision B—Death of pensioner partner |
303. | Qualification for payments under this Subdivision |
304. | Continued payment of partner’s pension or allowance |
305. | Lump sum payable in some circumstances |
306. | Adjustment of person’s sole parent pension rate |
307. | Effect of death of person entitled to payments under this Subdivision |
308. | Matters affecting payment of benefits under this Subdivision |
| Subdivision C—Death of dependent or maintained child |
309. | Bereavement payments on death of dependent or maintained child |
310. | Continued payment of child-related amounts |
311. | Lump sum payable in some circumstances |
| Subdivision D—Death of recipient |
312. | Death of recipient |
| Division 10—Fringe benefits |
313. | Fringe benefits |
314. | Qualification for fringe benefits |
| PART 2.7—WIDOWED PERSON ALLOWANCE |
| Division 1—Qualification for and payability of widowed person allowance |
| Subdivision A—Qualification |
315. | Qualification for widowed person allowance |
| Subdivision B—Payability |
316. | Widowed person allowance not payable in some circumstances |
317. | Widowed person allowance generally not payable before claim |
TABLE OF PROVISIONS—continued
Section | |
318. | Provisional commencement day General rule Initial incorrect claim followed by claim for widowed person allowance Early claim |
319. | Backdating—death of partner etc. |
320. | Backdating—birth of child |
321. | Multiple entitlement exclusion |
| Division 2—Claim for widowed person allowance |
322. | Need for a claim |
323. | Form of claim |
324. | Lodgment of claim |
325. | Claimant must be Australian resident and in Australia |
| Division 3—Determination of claim |
326. | Secretary to determine claim |
327. | Grant of claim |
328. | Date of effect of determination |
| Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 4—Rate of widowed person allowance |
329. | How to work out a person’s widowed person allowance rate |
| Division 5—Payment of widowed person allowance |
330. | Commencement of widowed person allowance |
331. | Payment by instalments |
332. | Effect on instalments of backdating claim |
333. | Calculation of amount of instalment |
334. | Manner of payment |
335. | Nominee payments |
336. | Payment into bank account etc. |
337. | Where allowance payday would fall on public holiday etc. |
338. | Payment of allowance after death |
| Division 6—Protection of widowed person allowance |
339. | Widowed person allowance to be absolutely inalienable |
| Payment to Commissioner of Taxation at recipient’s request |
340. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
341. | Secretary may require notice of the happenning of an event or a change in circumstances |
342. | Secretary may require recipient to give particular information relevant to payment of widowed person allowance |
343. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
344. | Continuing effect of determination |
| Entitlement determination |
| Rate determination |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision B—Automatic termination |
345. | Automatic termination—recipient complying with section 341 notification obligations |
346. | Automatic termination—recipient not complying with section 341 notification obligations |
347. | Automatic termination—failure to provide section 342 statement |
| Subdivision C—Automatic rate reduction |
348. | Automatic rate reduction—recipient not complying with section 341 notification obligations |
349. | Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available |
| Subdivision D—Determinations |
350. | Rate increase determination |
351. | Rate reduction determination |
352. | Cancellation or suspension determination |
353. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
354. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
355. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments |
| Subdivision A—Death of dependent or maintained child |
356. | Bereavement payments on death of dependent child |
357. | Continued payment of child-related amounts |
358. | Lump sum payable in some circumstances |
| Subdivision B—Death of recipient |
359. | Death of recipient |
| Division 10—Fringe benefits |
360. | Fringe benefits |
361. | Qualification for fringe benefits |
| PART 2.8—WIDOW B PENSION |
| Division 1—Qualification for and payability of widow B pension |
| Subdivision A—Qualification |
362. | Qualification for widow B pension |
363. | Effect of maintenance rights on qualification for widow B pension |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision B—Payability |
364. | Widow B pension not payable in some circumstances |
365. | Widow B pension generally not payable before claim |
366. | Provisional commencement day General rule Initial incorrect claim followed by claim for widow B pension Early claim |
367. | Backdating—death of partner etc. |
368. | Multiple entitlement exclusion |
| Division 2—Claim for widow B pension |
369. | Need for a claim |
370. | Form of claim |
371. | Lodgment of claim |
372. | Claimant must be Australian resident and in Australia |
| Division 3—Determination of claim |
373. | Secretary to determine claim |
374. | Grant of claim |
375. | Date of effect of determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 4—Rate of widow B pension |
376. | How to work out the rate of widow B pension |
| Division 5—Payment of widow B pension |
377. | Commencement of widow B pension |
378. | Payment by instalments |
379. | Effect on instalments of backdating claim |
380. | Calculation of amount of instalment |
381. | Inmates of benevolent homes |
382. | Manner of payment |
383. | Nominee payments |
384. | Payment into bank account etc. |
385. | Where pension payday would fall on public holiday etc. |
386. | Payment of pension after death |
| Division 6—Protection of widow B pension |
387. | Widow B pension to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
388. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
389. | Secretary may require notice of the happening of an event or a change in circumstances |
390. | Secretary may require recipient to give particular information relevant to payment of widow B pension |
391. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
392. | Continuing effect of determination |
| Entitlement determination |
| Rate determination |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision B—Automatic termination |
393. | Automatic termination—recipient complying with section 389 notification obligations |
394. | Automatic termination—recipient not complying with section 389 notification obligations |
395. | Automatic termination—failure to provide section 390 statement |
| Subdivision C—Automatic rate reduction |
396. | Automatic rate reduction—recipient not complying with section 389 notification obligations |
397. | Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available |
| Subdivision D—Determinations |
398. | Rate increase determination |
399. | Rate reduction determination |
400. | Cancellation or suspension determination |
401. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
402. | Date of effect of favourable determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
403. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments |
| Subdivision A—Death of dependent or maintained child |
404. | Bereavement payments on death of dependent or maintained child |
405. | Continued payment of child-related amounts |
406. | Lump sum payable in some circumstances |
| Subdivision B—Death of recipient |
407. | Death of recipient |
| Division 10—Fringe benefits |
408. | Fringe benefits |
409. | Qualification for fringe benefits |
| PART 2.9—SHELTERED EMPLOYMENT ALLOWANCE |
| Division 1—Qualification for and payability of sheltered employment allowance |
| Subdivision A—Qualification |
410. | Qualification for sheltered employment allowance Qualified for invalid pension Not qualified for invalid pension |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision B—Payability |
411. | Sheltered employment allowance not payable in some circumstances |
412. | Sheltered employment allowance not payable before day determined by Secretary |
413. | Multiple entitlement exclusion |
414. | Sheltered employment allowance not payable if in person’s interest to receive other pension or benefit |
415. | Secretary may require person to have medical examination, attend course or undertake work |
| Division 2—Claim for sheltered employment allowance |
416. | Secretary may require claim |
417. | Form of claim |
418. | Lodgment of claim |
| Division 3—Determination of claim |
419. | Secretary to determine claim |
420. | Grant of claim |
421. | Date of effect of determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 4—Rate of sheltered employment allowance |
422. | Rate of sheltered employment allowance |
423. | Incentive allowance |
| Division 5—Payment of sheltered employment allowance |
424. | Commencement of sheltered employment allowance |
425. | Payment by instalments |
426. | Effect on instalments of backdated determination |
427. | Calculation of amount of instalment |
428. | Manner of payment |
429. | Nominee payments |
430. | Payment into bank account etc. |
431. | Where allowance payday would fall on public holiday etc. |
432. | Payment of allowance after death |
| Division 6—Protection of sheltered employment allowance |
433. | Sheltered employment allowance to be absolutely inalienable Payments to Commissioner of Taxation at recipient’s request |
434. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
435. | Secretary may require notice of the happening of an event or a change in circumstances |
436. | Secretary may require recipient to give particular information relevant to payment of sheltered employment allowance |
437. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
438. | Continuing effect of determination Entitlement determination Rate determination |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision B—Automatic termination |
439. | Automatic termination—recipient complying with section 435 notification obligations |
440. | Automatic termination—recipient not complying with section 435 notification obligations |
| Subdivision C—Automatic rate reduction |
441. | Automatic rate reduction—recipient not complying with section 435 notification obligations |
442. | Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available |
| Subdivision D—Determinations |
443. | Rate increase determination |
444. | Rate reduction determination |
445. | Cancellation or suspension determination |
446. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
447. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
448. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments |
| Subdivision A—Death of pensioner partner |
449. | Qualification for payments under this Subdivision |
450. | Continued payment of partner’s pension or allowance |
451. | Lump sum payable in some circumstances |
452. | Adjustment of person’s sheltered employment allowance rate |
453. | Effect of death of person entitled to payments under this Subdivision |
454. | Matters affecting payment of benefits under this Subdivision |
| Subdivision B—Death of dependent child |
455. | Bereavement payments on death of dependent child |
456. | Continued payment of child-related amounts |
457. | Lump sum payable in some circumstances |
| Subdivision C—Death of recipient |
458. | Death of recipient |
| Division 10—Fringe benefits |
459. | Fringe benefits |
460. | Qualification for fringe benefits |
TABLE OF PROVISIONS—continued
Section | |
| PART 2.10—REHABILITATION ALLOWANCE |
| Division 1—Qualification for and payability of rehabilitation allowance |
| Subdivision A—Qualification |
461. | Qualification for rehabilitation allowance |
| Subdivision B—Payability |
462. | Rehabilitation allowance not payable in some circumstances |
463. | Rehabilitation allowance not payable before date determined by Secretary |
464. | Multiple entitlement exclusion |
| Division 2—Claim for rehabilitation allowance |
465. | Secretary may require claim |
466. | Form of claim |
467. | Lodgment of claim |
| Division 3—Determination of claim |
468. | Secretary to determine claim |
469. | Grant of claim |
470. | Date of effect of determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 4—Rate of rehabilitation allowance |
471. | How to work out the rate of rehabilitation allowance |
472. | Rate of rehabilitation allowance—person previously receiving invalid pension |
473. | Qualifying payment Person receiving a payment before rehabilitation program Person not receiving a payment before rehabilitation program |
474. | Rate of rehabilitation allowance—person not receiving invalid pension before rehabilitation program |
475. | Amount payable on pension payday—social security benefit |
| Division 5—Payment of rehabilitation allowance |
476. | Commencement of rehabilitation allowance |
477. | Payment by instalments |
478. | Effect on instalments of backdated determination |
479. | Calculation of amount of instalment |
480. | Manner of payment |
481. | Nominee payments |
482. | Payment into bank account etc. |
483. | Where allowance payday would fall on public holiday etc. |
484. | Payment of allowance after death |
| Division 6—Protection of rehabilitation allowance |
485. | Rehabilitation allowance to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
486. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
487. | Secretary may require notice of the happening of an event or a change in circumstances |
488. | Secretary may require recipient to give particular information relevant to payment of rehabilitation allowance |
489. | Self incrimination |
TABLE OF PROVISIONS—continued
Section | |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
490. | Continuing effect of determination Entitlement determination Rate determination |
| Subdivision B—Automatic termination |
491. | Automatic termination—recipient complying with section 487 notification obligations |
492. | Automatic termination—recipient not complying with section 487 notification obligations |
| Subdivision C—Automatic rate reduction |
493. | Automatic rate reduction—recipient not complying with section 487 notification obligations |
494. | Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available |
| Subdivision D—Determinations |
495. | Rate increase determination |
496. | Rate reduction determination |
497. | Cancellation or suspension determination |
498. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
499. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
500. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments |
| Subdivision A—Death of pensioner partner |
501. | Qualification for payments under this Subdivision |
502. | Continued payment of partner’s pension or allowance |
503. | Lump sum payable in some circumstances |
504. | Adjustment of person’s rehabilitation allowance rate |
505. | Effect of death of person entitled to payments under this Subdivision |
506. | Matters affecting payment of benefits under this Subdivision |
| Subdivision B—Death of dependent child |
507. | Bereavement payments on death of dependent child |
508. | Continued payment of child-related amounts |
509. | Lump sum payable in some circumstances |
| Subdivision C—Death of recipient |
510. | Death of recipient |
TABLE OF PROVISIONS—continued
Section | |
| Division 10—Fringe benefits |
511. | Fringe benefits |
512. | Qualification for fringe benefits |
| PART 2.11—UNEMPLOYMENT BENEFIT |
| Division 1—Qualification for and payability of unemployment benefit |
| Subdivision A—Basic qualifications |
513. | Qualification for unemployment benefit |
514. | Unemployment due to industrial action |
515. | Move to area of lower employment |
516. | Some people not required to be registered at the CES |
517. | Prospective determinations for some beneficiaries |
| Subdivision B—Work test |
518. | Work test |
| Persons undertaking paid work may be treated as unemployed |
519. | Relief from work test—certain persons over 55 in employment |
520. | Relief from work test—persons attending training camps |
521. | Relief from work test—certain persons in remote areas |
522. | Relief from work test—long-term beneficiaries under 55 in short-term vocational courses |
523. | Relief from work test—long-term beneficiaries under 55 engaged in voluntary work |
524. | Relief from work test—persons over 55 in short-term vocational courses |
525. | Relief from work test—long-term beneficiaries over 55 in vocational |
| courses |
526. | Relief from work test—persons over 55 engaged in voluntary work |
527. | Relief from work test—long-term beneficiaries over 55 engaged in voluntary work |
| Subdivision C—Situations where benefit not payable (general) |
528. | Unemployment benefit not payable in certain circumstances |
529. | Provision of tax file number |
530. | Assets test—benefit not payable if assets value limit exceeded |
531. | Value of assets of members of couples |
532. | Full-time students |
533. | Multiple entitlement exclusion |
534. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for unemployment benefit |
| Claim within 14 days of CES registration |
| Education leavers who claim within 14 days of CES registration |
| Transferees |
535. | Commencement of unemployment benefit |
| Subdivision D—Situations where benefit not payable (waiting periods) |
536. | Unused annual leave waiting period |
537. | Notional leave period |
538. | Duration of unused annual leave waiting period |
539. | Ordinary waiting period |
540. | Duration of ordinary waiting period |
| No unused annual leave waiting period |
| Unused annual leave waiting period |
541. | Education leavers waiting period |
| Persons subject to waiting period |
| No education leavers waiting period in some cases where already served |
TABLE OF PROVISIONS—continued
Section | |
542. | Duration of education leavers waiting period |
| General rule |
| Change of status in first 6 weeks |
| Change of status after 6 weeks |
| Notification required |
| Reduction of waiting period for periods of special benefit and employment |
| Reduction of education leavers waiting period where already partially served |
| 6 month ceiling |
| Subdivision E—Situations where benefit not payable (recipient non-compliance) |
543. | Secretary may require person to attend course or undertake work |
544. | Unemployment due to voluntary act |
545. | Unemployment due to misconduct |
546. | Refusal of job offer |
547. | Removal from benefit for failure to take reasonable steps to find work |
548. | Removal from benefit for failure to comply with notification requirements |
549. | Removal from benefit for failure to continue CES registration |
550. | Seasonal workers |
551. | Move to area of lower employment |
| Division 2—Claim for unemployment benefit |
552. | Need for a claim |
553. | Form of claim |
554. | Lodgment of claim |
555. | Claimant must be Australian resident and in Australia |
| Division 3—Determination of claim |
556. | Secretary to determine claim |
557. | Grant of claim |
558. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Division 4—Rate of unemployment benefit |
559. | How to work out a person’s unemployment benefit rate |
560. | Double payment—claim as a result of major disaster |
| Division 5—Payment of unemployment benefit |
561. | Commencement of unemployment benefit |
562. | Instalments |
563. | Instalments for period less than a fortnight |
564. | Rounding off instalment |
565. | Manner of payment |
566. | Nominee payments |
567. | Payment into bank account etc. |
568. | Where benefit payday would fall on public holiday etc. |
569. | Payment of benefit after death |
| Division 6—Protection of unemployment benefit |
570. | Unemployment benefit to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
571. | Effect of garnishee or attachment order |
TABLE OF PROVISIONS—continued
Section | |
| Division 7—Recipient obligations |
572. | Secretary may require notice of the happening of an event or a change in circumstances |
573. | Secretary may require recipient to give particular information relevant to payment of unemployment benefit |
574. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
575. | Continuing effect of determination Entitlement determination Rate determination |
| Subdivision B—Automatic termination |
576. | Automatic termination—recipient complying with section 572 notification obligations |
577. | Automatic termination—recipient not complying with section 572 notification obligations |
578. | Automatic termination—failure to provide section 573 statement |
| Subdivision C—Automatic rate reduction |
579. | Automatic rate reduction—recipient not complying with section 572 notification obligations |
| Subdivision D—Determinations |
580. | Rate increase determination |
581. | Rate reduction determination |
582. | Cancellation or suspension determination |
583. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
584. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
585. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments (death of dependent child) |
586. | Bereavement payments on death of dependent child |
587. | Continued payment of child-related amounts |
588. | Lump sum payable in some circumstances |
TABLE OF PROVISIONS—continued
Section | |
| PART 2.12—JOB SEARCH ALLOWANCE |
| Division 1—Qualification for and payability of job search allowance |
| Subdivision A—Basic qualifications |
589. | Qualification for job search allowance |
590. | Unemployment due to industrial action |
591. | Move to area of lower employment |
592. | Certain persons not required to be registered at the CES |
593. | Prospective determinations for some beneficiaries |
| Subdivision B— Work test |
594. | Work test |
| Persons undertaking paid work may be treated as unemployed |
595. | Relief from work test—persons attending training camps |
596. | Relief from work test—certain persons in remote areas |
597. | Relief from work test—long-term beneficiaries in short-term vocational courses |
598. | Relief from work test—long-term beneficiaries engaged in voluntary work |
| Subdivision C—Situations where allowance not payable (general) |
599. | Job search allowance not payable in certain situations |
600. | Provision of tax file number |
601. | Assets test—allowance not payable if assets value limit exceeded |
602. | Value of assets of members of couples |
603. | Full-time students |
604. | Multiple entitlement exclusion |
605. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for job search allowance |
| Claim within 14 days of CES registration |
| Education leavers who claim within 14 days of CES registration |
| Transferees |
606. | Commencement of job search allowance |
| Subdivision D—Situations where allowance not payable (waiting periods) |
607. | Unused annual leave waiting period |
608. | Notional leave period |
609. | Duration of unused annual leave waiting period |
610. | Ordinary waiting period |
611. | Duration of ordinary waiting period |
| No unused annual leave waiting period |
| Unused annual leave waiting period |
612. | Education leavers waiting period |
| Persons subject to waiting period |
| No education leavers waiting period in some cases where already served |
613. | Duration of education leavers waiting period |
| General rule |
| Change of status in first 6 weeks |
| Change of status after 6 weeks |
| Notification required |
| Reduction of waiting period for periods of special benefit and employment |
| Reduction of education leavers waiting period where already partially served |
| 6 month ceiling |
| Subdivision E—Situations where allowance not payable (recipient non-compliance) |
614. | Secretary may require person to attend course, undertake work or attend CES |
615. | Unemployment due to voluntary act |
TABLE OF PROVISIONS—continued
Section | |
616. | Unemployment due to misconduct |
617. | Refusal of job offer |
618. | Removal from allowance for failure to take reasonable steps to find work |
619. | Removal from allowance for failure to comply with notification requirements |
620. | Removal from allowance for failure to continue CES registration |
621. | Seasonal workers |
622. | Move to area of lower employment |
| Division 2—Claim for job search allowance |
623. | Need for a claim |
624. | Form of claim |
625. | Lodgment of claim |
626. | Claimant must be Australian resident and in Australia |
| Division 3—Determination of claim |
627. | Secretary to determine claim |
628. | Grant of claim |
629. | Date of effect of determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 4—Rate of job search allowance |
630. | How to work out a person’s job search allowance rate |
631. | Double payment—claim as a result of major disaster |
632. | JSA recipient may ask Secretary to change appropriate tax year |
| Division 5—Payment of job search allowance |
633. | Commencement of job search allowance |
634. | Instalments |
635. | Instalments for period less than a fortnight |
636. | Rounding off instalment |
637. | Manner of payment |
638. | Nominee payments |
639. | Payment into bank account etc. |
640. | Where allowance payday would fall on public holiday etc. |
641. | Payment of allowance after death |
| Division 6—Protection of job search allowance |
642. | Job search allowance to be absolutely inalienable Payments to Commissioner of Taxation at recipients request |
643. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
644. | Secretary may require notice of the happening of an event or a change in circumstances |
645. | Secretary may require recipient to give particular information relevant to payment of job search allowance |
646. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
647. | Continuing effect of determination Entitlement determination Rate determination |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision B—Automatic termination |
648. | Automatic termination—recipient complying with section 644 notification obligations |
649. | Automatic termination—recipient not complying with section 644 notification obligations |
650. | Automatic termination—failure to provide section 645 statement |
| Subdivision C—Automatic rate reduction |
651. | Automatic rate reduction—recipient not complying with section 644 notification obligations |
| Subdivision D—Determinations |
652. | Rate increase determination |
653. | Rate reduction determination |
654. | Cancellation or suspension determination |
655. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
656. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
657. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments (death of dependent child) |
658. | Bereavement payments on death of dependent child |
659. | Continued payment of child-related amounts |
660. | Lump sum payable in some circumstances |
| PART 2.13—EMPLOYMENT ENTRY PAYMENT |
661. | Unemployment benefit recipients |
662. | Amount of section 661 payment |
663. | Job search allowance recipients |
664. | Amount of section 663 payment |
665. | Claim |
| PART 2.14—SICKNESS BENEFIT |
| Division 1—Qualification for and payability of sickness benefit |
| Subdivision A—Basic qualifications |
666. | Qualification for sickness benefit |
667. | Temporary absence from Australia |
668. | Loss of income |
| Subdivision B—Situations where benefit not payable (general) |
669. | Sickness benefit not payable in certain circumstances |
670. | Provision of tax file number |
TABLE OF PROVISIONS—continued
Section | |
671. | Assets test—benefit not payable if assets value limit exceeded |
672. | Value of assets of members of couples |
673. | Person previously receiving job search allowance |
674. | Full-time students |
675. | Multiple entitlement exclusion |
676. | Provisional commencement day |
677. | Commencement of sickness benefit |
| Claim within 5 weeks of incapacity and no waiting period applying |
| Claim within 5 weeks of incapacity and ordinary waiting period applying |
| Claim within 5 weeks of incapacity and unused annual leave wailing period |
| applying |
| Claim more than 5 weeks after incapacity and delay due to incapacity |
| Claim more than 5 weeks after incapacity and delay not due to incapacity |
678. | Initial incorrect claim followed by a claim for sickness benefit |
| Subdivision C—Situations where benefit not payable (waiting periods) |
679. | Unused annual leave waiting period |
680. | Notional leave period |
681. | Duration of unused annual leave waiting period |
682. | Ordinary waiting period |
683. | Duration of ordinary waiting period |
| No unused annual leave waiting period |
| Unused annual leave waiting period |
684. | Education leavers waiting period |
| Persons subject to waiting period |
| No education leavers waiting period in some cases where already served |
685. | Duration of education leavers waiting period |
| General rule |
| Change of status in first 6 weeks |
| Change of status after 6 weeks |
| Notification required |
| Reduction of waiting period for periods of special benefit and employment |
| Reduction of education leavers waiting period where already partially served |
| 6 month ceiling |
| Subdivision D—Situations where benefit not payable (recipient non-compliance) |
686. | Secretary may require person to have medical examination, attend course |
| or undertake work |
| Division 2—Claim for sickness benefit |
687. | Need for a claim |
688. | Form of claim |
689. | Lodgment of claim |
690. | Claimant must be Australian resident and in Australia |
691. | Temporary absence from Australia |
692. | Medical certificate to accompany claim |
| Division 3—Determination of claim |
693. | Secretary to determine claim |
694. | Grant of claim |
695. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
TABLE OF PROVISIONS—continued
Section | |
| Division 4—Rate of sickness benefit |
696. | How to work out a person’s sickness benefit rate |
697. | Double payment—claim as a result of major disaster |
698. | Limitation on rate—loss of salary, wages or income |
| General rule |
| Loss of salary, wages or income includes NEIS and FAS payments |
| Payment to a substitute |
699. | Limitation on rate—loss of unemployment benefit qualification |
700. | Limitation on rate—transferee |
| Partner getting wife or carer pension |
| Other transferee cases |
701. | Rate of persons receiving sickness benefit with rent assistance since before |
| 1 July 1987 |
| Division 5—Payment of sickness benefit |
702. | Commencement of sickness benefit |
703. | Instalments |
704. | Instalments for period less than a fortnight |
705. | Rounding off instalment |
706. | Manner of payment |
707. | Nominee payments |
708. | Payment into bank account etc. |
709. | Where benefit payday would fall on public holiday etc. |
710. | Payment of benefit after death |
| Division 6—Protection of sickness benefit |
711. | Sickness benefit to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
712. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
713. | Secretary may require notice of the happening of an event or a change in circumstances |
714. | Secretary may require recipient to give particular information relevant to payment of sickness benefit |
715. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
716. | Continuing effect of determination |
| Entitlement determination |
| Rate determination |
| Subdivision B—Automatic termination |
717. | Automatic termination—recipient complying with section 713 notification obligations |
718. | Automatic termination—recipient not complying with section 713 notification obligations |
| Subdivision C—Automatic rate reduction |
719. | Automatic rate reduction—recipient not complying with section 713 notification obligations |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision D—Determinations |
720. | Rate increase determination |
721. | Rate reduction determination |
722. | Cancellation or suspension determination |
723. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
724. | Date of effect of favourable determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Notified change of circumstances |
| Prescribed student child determination |
| Other determinations |
725. | Date of effect of adverse determination |
| General |
| Contravention of Act |
| False statement or misrepresentation—suspension or cancellation |
| False statement or misrepresentation—rate reduction |
| Division 9—Bereavement payments (death of dependent child) |
726. | Bereavement payments on death of dependent child |
727. | Continued payment of child-related amounts |
728. | Lump sum payable in some circumstances |
| PART 2.15—SPECIAL BENEFIT |
| Division 1—Qualification for and payability of special benefit |
| Subdivision A—Qualification |
729. | Qualification for special benefit |
730. | Determination of period |
731. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for special benefit |
| Subdivision B—Payability |
732. | Special benefit not payable in some circumstances |
733. | Assets test—benefit not payable if assets value limit exceeded |
734. | Value of assets of members of couples |
735. | Multiple entitlement exclusion |
736. | Secretary may require person to have medical examination, attend course or undertake work |
737. | Full-time students |
| Period for which benefit not payable |
| Subsection (1) does not apply in certain cases |
738. | Payments under certain education schemes |
739. | SPB homeless person |
| Division 2—Claim for special benefit |
740. | Need for a claim |
741. | Form of claim |
742. | Lodgment of claim |
TABLE OF PROVISIONS—continued
Section | Division 3—Determination of claim |
743. | Secretary to determine claim |
744. | Grant of claim |
745. | Date of effect of determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 4—Rate of special benefit |
746. | Rate of special benefit |
747. | Double payment—claim as a result of major disaster |
| Division 5—Payment of special benefit |
748. | Commencement of special benefit |
749. | Instalments |
750. | Instalments for period less than a fortnight |
751. | Rounding off instalment |
752. | Manner of payment |
753. | Nominee payments |
754. | Payment into bank account etc. |
755. | Where benefit payday would fall on public holiday etc. |
756. | Payment of benefit after death |
| Division 6—Protection of special benefit |
757. | Special benefit to be absolutely inalienable Payments to Commissioner of Taxation at recipient’s request |
758. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
759. | Secretary may require notice of the happening of an event or a change in circumstances |
760. | Secretary may require recipient to give particular information relevant to payment of special benefit |
761. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
762. | Continuing effect of determination Entitlement determination Rate determination |
| Subdivision B—Determinations |
763. | Rate increase determination |
764. | Rate reduction determination |
765. | Cancellation or suspension determination |
766. | Resumption of payment after cancellation or suspension |
| Subdivision C—Date of effect of determinations |
767. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
TABLE OF PROVISIONS—continued
Section | |
768. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation |
| Division 9—Bereavement payments (death of dependent child) |
769. | Bereavement payments on death of dependent child |
770. | Continued payment of child-related amounts |
771. | Lump sum payable in some circumstances |
| PART 2.16—SPECIAL NEEDS PENSIONS |
| Division 1—Qualification for and payability of special needs pension |
| Subdivision A—Qualification |
772. | Qualification for special needs age pension |
773. | Qualification for special needs invalid pension Incapacity for work Permanent blindness |
774. | Qualification for special needs wife pension |
775. | Qualification for special needs sole parent pension |
776. | SPP (sole parent pension) child |
777. | Young person to be SPP child for only one person |
778. | Qualification for special needs widow B pension |
| Subdivision B—Payability |
779. | Special needs pension not payable in some circumstances |
780. | Some special needs pensions not payable before claim |
781. | Special needs sole parent pension generally not payable before claim |
782. | Special needs widow B pension generally not payable before claim |
783. | Second special needs pension generally not payable after cancellation of initial pension |
784. | Provisional commencement day General rule Initial incorrect claim followed by claim for special needs pension Early claim |
785. | Backdating—death of partner etc. |
786. | Backdating—birth of child |
787. | Multiple entitlement exclusion |
788. | Secretary may require person to have medical examination |
| Division 2—Claim for special needs pension |
789. | Need for a claim |
790. | Form of claim |
791. | Lodgment of claim |
| Division 3—Determination of claim |
792. | Secretary to determine claim |
793. | Grant of claim |
794. | Date of effect of determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 4—Medical examination following claim |
795. | Examination by medical practitioner |
TABLE OF PROVISIONS—continued
Section | |
| Division 5—Rate of special needs pension |
796. | How to work out a person’s special needs pension rate |
SPECIAL NEEDS PROPORTIONAL RATE CALCULATOR |
Module A—Overall rate calculation process |
Module B—Australian working life residence |
Module C—Residence factor |
| Division 6—Payment of special needs pension |
797. | Commencement of special needs pension |
798. | Payment by instalments |
799. | Effect on instalments of backdating claim |
800. | Calculation of amount of instalment |
801. | Manner of payment |
802. | Nominee payments |
803. | Payment into bank account etc. |
804. | Where pension payday would fall on public holiday etc. |
805. | Payment of pension after death |
| Division 7—Protection of special needs pension |
806. | Special needs pension to be absolutely inalienable Payments to Commissioner of Taxation at recipient’s request |
807. | Effect of garnishee or attachment order |
| Division 8—Recipient obligations |
808. | Secretary may require notice of the happening of an event or a change in circumstances |
809. | Secretary may require recipient to give particular information relevant to payment of special needs pension |
810. | Self incrimination |
| Division 9—Continuation, variation and termination |
| Subdivision A—General |
811. | Continuing effect of determination Entitlement determination Rate determination |
| Subdivision B—Automatic termination |
812. | Automatic termination—recipient complying with section 808 notification obligations |
813. | Automatic termination—recipient not complying with section 808 notification obligations |
814. | Automatic termination—failure to provide section 809 statement |
| Subdivision C—Automatic rate reduction |
815. | Automatic rate reduction—recipient not complying with section 808 notification obligations |
| Subdivision D—Determinations |
816. | Rate increase determination |
817. | Rate reduction determination |
TABLE OF PROVISIONS—continued
Section | |
818. | Cancellation or suspension determination |
819. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
820. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Other determinations |
821. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 10—Bereavement payments |
| Subdivision A—Death of pensioner partner |
822. | Qualification for payments under this Subdivision |
823. | Continued payment of partner’s pension or allowance |
824. | Lump sum payable in some circumstances |
825. | Adjustment of rate of person’s special needs pension |
826. | Effect of death of person entitled to payments under this Subdivision |
827. | Matters affecting payment of benefits under this Subdivision |
| Subdivision B—Death of dependent or maintained child |
828. | Bereavement payments on death of dependent or maintained child |
829. | Continued payment of child-related amounts |
| Subdivision C—Death of recipient |
830. | Death of recipient |
| PART 2.17—FAMILY ALLOWANCE |
| Division 1—Family allowance child status |
831. | Family allowance child |
832. | FA child—prescribed student child not included |
833. | FA child—child over 18 |
834. | FA child—child in approved care organisation care |
835. | FA child—residence requirements |
836. | FA child—child absent from Australia for more than 3 years |
837. | FA child—receipt of foreign “family allowance” in respect of child outside Australia |
| Division 2—Qualification for and payability of family allowance |
| Subdivision A—Qualification |
838. | Qualification for individual family allowance |
839. | Qualification for approved care organisation family allowance |
840. | Qualification for family allowance ceases after 3 year absence of recipient from Australia |
| Subdivision B—Payability |
841. | Family allowance not payable in some circumstances |
842. | Family allowance generally not payable before claim |
TABLE OF PROVISIONS—continued
Section | |
843. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for family allowance |
844. | Backdating—birth of child |
845. | Backdating—new client |
846. | Family allowance not payable to 2 people for the same child |
| Division 3—Claim for family allowance |
847. | Need for a claim |
848. | Form of claim |
849. | Lodgment of claim |
850. | Claimant must be Australian resident and in Australia |
| Division 4—Determination of claim |
851. | Secretary to determine claim |
852. | Grant of claim |
853. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Division 5—Rate of family allowance |
854. | Rate struck for allowance period |
855. | How to work out a person’s family allowance rate |
| Individuals |
| Approved care organisations |
856. | Special determinations |
857. | Secretary may determine that an event is an assumed notifiable event |
858. | Secretary may specify in a subsection 873 (1) notice that an event is a notifiable event |
859. | FA recipient may ask Secretary to change appropriate tax year |
| Division 6—Payment of family allowance |
860. | Commencement of family allowance |
861. | Payments by instalments |
862. | Effect on instalments of backdating claim |
863. | Manner of payment |
864. | Nominee payments |
865. | Payment into bank account etc. |
866. | Where family payment payday would fall on public holiday etc. |
867. | Payment of allowance after death |
868. | Secretary may make declaration where 2 people qualified for family allowance for the same child |
| Division 7—Protection of family allowance |
869. | Family allowance to be absolutely inalienable |
| Payments to Commissioner of Taxation at recipient’s request |
870. | Effect of garnishee or attachment order |
| Division 8—Recipient obligations |
871. | References to recipient |
872. | Application of family allowance |
873. | Secretary may require notice of the happening of an event or a change in circumstances |
874. | Secretary may require recipient to give particular information relevant to payment of family allowance |
875. | Self incrimination |
TABLE OF PROVISIONS—continued
Section | Division 9—Continuation, variation and termination |
| Subdivision A—General |
876. | Continuing effect of determination Entitlement determination Rate determination |
| Subdivision B—Automatic termination |
877. | Automatic termination—recipient complying with section 873 notification obligations |
878. | Automatic termination—recipient not complying with section 873 notification obligations |
| Subdivision C—Automatic rate reduction |
879. | Automatic rate reduction—recipient not complying with section 873 notification obligations |
| Subdivision D—Determinations |
880. | Rate increase determination |
881. | Rate reduction determination |
882. | Cancellation or suspension determination |
883. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
884. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
885. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 10—Bereavement payments (death of dependent child) |
886. | Continuation of qualification for family allowance for bereavement continuation period where recipient’s only FA child dies |
887. | Bereavement payments on death of dependent child |
888. | Continued payment of family allowance |
889. | Lump sum payable in some circumstances |
890. | Additional lump sum payable in some circumstances |
| PART 2.16—FAMILY ALLOWANCE SUPPLEMENT |
| Division 1—Family allowance supplement child status |
891. | Family allowance supplement child |
892. | FAS child—prescribed student child not included |
893. | FAS child—receipt of other periodic payments for child |
894. | FAS child—taxation of “unearned” income |
| Division 2—Qualification for and payability of family allowance supplement |
| Subdivision A—Qualification |
895. | Qualification for family allowance supplement |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision B—Payability |
896. | Family allowance supplement not payable in some circumstances |
897. | Family allowance supplement generally not payable before claim |
898. | Provisional commencement day |
| General rule |
| Initial incorrect claim followed by claim for family allowance sup/dement |
899. | Claim within 4 weeks of birth |
900. | Claim within 6 weeks of ceasing other payments |
901. | Family allowance supplement not payable to 2 people in respect of the same child |
| Division 3—Claim for family allowance supplement |
902. | Need for a claim |
903. | Form of claim |
904. | Lodgment of claim |
905. | Claimant must be Australian resident and in Australia |
906. | Date of lodgment of claim |
| Division 4—Determination of claim |
907. | Secretary to determine claim |
908. | Grant of claim |
909. | Date of effect of determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Division 5—Rate of family allowance supplement |
910. | How to work out the rate of a person’s family allowance supplement |
911. | Rate struck for allowance period |
912. | Notice estimating taxable income |
913. | Effect of amendment of assessed taxable income |
914. | Recalculation if taxable income underestimated by 25% or more |
915. | Recalculation if failure to notify FAS notifiable event |
916. | Secretary may determine that an event is an FAS assumed notifiable event |
917. | Secretary may specify in a subsection 930 (1) notice that an event is an FAS notifiable event |
918. | FAS recipient may ask Secretary to change appropriate tax year |
| Division 6—Payment of family allowance supplement |
919. | Commencement of family allowance supplement |
920. | Payment by instalments |
921. | Effect on instalments of backdating claim |
922. | Manner of payment |
923. | Nominee payments |
924. | Payment into bank account etc. |
925. | Where family payment payday would fall on public holiday etc. |
926. | Payment of family allowance supplement after death |
927. | Secretary may make declaration where 2 people qualify for family allowance supplement for the same child |
| Division 7—Protection of family allowance supplement |
928. | Family allowance supplement to be absolutely inalienable Payments to Commissioner of Taxation at recipient’s request |
929. | Effect of garnishee or attachment order |
TABLE OF PROVISIONS—continued
Section | Division 8—Recipient obligations |
930. | Secretary may require notice of the happening of an event or a change in circumstances |
931. | Secretary may require recipient to give particular information relevant to payment of family allowance supplement |
932. | Self incrimination |
| Division 9—Continuation, variation and termination |
| Subdivision A—General |
933. | Continuing effect of determination Entitlement determination Rate determination |
| Subdivision B—Automatic termination |
934. | Automatic termination—recipient complying with section 930 notification obligations |
935. | Automatic termination—recipient not complying with section 930 notification obligations |
| Subdivision C—Automatic rate reduction |
936. | Automatic rate reduction—recipient not complying with section 930 notification obligations |
| Subdivision D—Determinations |
937. | Rate increase determination |
938. | Rate reduction determination |
939. | Cancellation or suspension determination |
940. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
941. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Prescribed student child determination Other determinations |
942. | Amendment of assessment of taxable income |
943. | Determination following recipient’s request under section 918 |
944. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
945. | Date of effect of variation of rate of family allowance supplement because of amendment of assessed taxable income |
946. | Underestimate of taxable income—date of effect of section 914 determination |
947. | Failure to notify FAS notifiable event—date of effect of section 915 determination |
| Division 10—Bereavement payments (death of dependent child) |
948. | Continuation of qualification for family allowance supplement for bereavement rate continuation period where recipient’s only FAS child dies |
949. | Bereavement payments on death of dependent child |
TABLE OF PROVISIONS—continued
Section | |
950. | Continued payment of family allowance supplement |
951. | Lump sum payable in some circumstances |
| PART 2.19—CHILD DISABILITY ALLOWANCE |
| Division 1—CDA child status |
952. | Disabled child |
953. | CDA child status—family allowance requirement |
| Division 2—Qualification for and payability of child disability allowance |
| Subdivision A—Qualification |
954. | Qualification for child disability allowance |
955. | Qualification while person not providing care 28 days or less CDA child receiving education, training or treatment More than 28 days |
| Subdivision B—Payability |
956. | Child disability allowance not payable in some circumstances |
957. | Child disability allowance generally not payable before claim |
958. | Provisional commencement day Initial incorrect claim followed by claim for child disability allowance |
959. | Backdating—claim within 12 months of becoming qualified |
960. | Backdating—claim after 12 months of becoming qualified |
| Division 3—Claim for child disability allowance |
961. | Need for a claim |
962. | Form of claim |
963. | Lodgment of claim |
| Division 4—Determination of claim |
964. | Secretary to determine claim |
965. | Grant of claim |
966. | Date of effect of determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 5—Rate of child disability allowance |
967. | Rate of child disability allowance General rule Child inmate of institution Child receiving education, training or treatment Factors affecting reduction under subsection (3) |
| Division 6—Payment of child disability allowance |
968. | Commencement of child disability allowance |
969. | Payment by instalments |
970. | Effect on instalments of backdating claim |
971. | Manner of payment |
972. | Nominee payments |
973. | Payment into bank account etc. |
974. | Where allowance payday would fall on public holiday etc. |
975. | Payment of allowance after death |
TABLE OF PROVISIONS—continued
Section | |
| Division 7—Protection of child disability allowance |
976. | Child disability allowance to be absolutely inalienable Payment to Commissioner of Taxation at recipient’s request |
977. | Effect of garnishee or attachment order |
| Division 8—Recipient obligations |
978. | Secretary may require notice of the happening of an event or a change in circumstances |
979. | Secretary may require recipient to give particular information relevant to payment of child disability allowance |
980. | Self incrimination |
| Division 9—Continuation, variation and termination |
| Subdivision A—General |
981. | Continuing effect of determination Entitlement determination Rate determination |
| Subdivision B—Automatic termination |
982. | Automatic termination—recipient complying with section 978 notification obligations |
983. | Automatic termination—recipient not complying with section 978 notification obligations |
| Subdivision C—Automatic rate reduction |
984. | Automatic rate reduction—recipient not complying with section 978 notification obligations |
| Subdivision D—Determinations |
985. | Rate increase determination |
986. | Rate reduction determination |
987. | Cancellation or suspension determination |
988. | Resumption of payment after cancellation or suspension |
| Subdivision E—Date of effect of determinations |
989. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Notified change of circumstances Other determinations |
990. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation False statement or misrepresentation—rate reduction |
| Division 10—Bereavement payments (death of CDA child) |
991. | Continued child disability allowance during continuation period where CDA child dies |
992. | Lump sum payable in some circumstances |
TABLE OF PROVISIONS—continued
Section | |
| PART 2.20—DOUBLE ORPHAN PENSION |
| Division 1—DOP child status |
993. | Double orphan—not refugee |
994. | Double orphan—refugee |
995. | Refugee child |
996. | Long-term prisoner |
997. | Patient on a long-term basis Mental hospital patient Nursing home patient |
998. | Person uncontactable |
| Division 2—Qualification for and payability of double orphan pension |
| Subdivision A—Qualification |
999. | Qualification for double orphan pension Persons other than approved care organisations Approved care organisations |
| Subdivision B—Payability |
1000. | Double orphan pension not payable in some circumstances |
1001. | Double orphan pension generally not payable before claim |
1002. | Provisional commencement day General rule Initial incorrect claim followed by claim for double orphan pension |
1003. | Double orphan pension not payable for child receiving a pension under the VEA |
| Division 3—Claim for double orphan pension |
1004. | Need for a claim |
1005. | Form of claim |
1006. | Lodgment of claim |
| Division 4—Determination of claim |
1007. | Secretary to determine claim |
1008. | Grant of claim |
1009. | Date of effect of determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 5—Rate of double orphan pension |
1010. | Rate of double orphan pension |
| Division 6—Payment of double orphan pension |
1011. | Commencement of double orphan pension |
1012. | Payment by instalments |
1013. | Effect on instalments of backdating claim |
1014. | Manner of payment |
1015. | Nominee payments |
1016. | Payment into bank account etc. |
1017. | Where pension payday would fall on public holiday etc. |
1018. | Payment of pension after death |
TABLE OF PROVISIONS—continued
Section | |
| Division 7—Protection of double orphan pension |
1019. | Double orphan pension to be absolutely inalienable Payments to Commissioner of Taxation at recipient’s request |
1020. | Effect of garnishee or attachment order |
| Division 8—Recipient obligations |
1021. | Recipient |
1022. | Double orphan pension to be applied for benefit of child |
1023. | Secretary may require notice of the happening of an event or a change in circumstances |
1024. | Secretary may require recipient to give particular information relevant to payment of double orphan pension |
1025. | Self incrimination |
| Division 9—Continuation, variation and termination |
| Subdivision A—General |
1026. | Continuing effect of determination Entitlement determination |
| Subdivision B—Automatic termination |
1027. | Automatic termination—recipient complying with section 1023 notification obligations |
1028. | Automatic termination—recipient not complying with section 1023 notification obligations |
| Subdivision C—Determinations |
1029. | Cancellation or suspension determination |
1030. | Resumption of payment after cancellation or suspension |
| Subdivision D—Date of effect of determinations |
1031. | Date of effect of favourable determination Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified Other determinations |
1032. | Date of effect of adverse determination General Contravention of Act False statement or misrepresentation—suspension or cancellation |
| Division 10—Bereavement payments (death of DOP child) |
1033. | Continued double orphan pension during bereavement rate continuation period where DOP child dies |
1034. | Lump sum payable in some circumstances |
| PART 2.21—MOBILITY ALLOWANCE |
| Division 1—Qualification for and payability of mobility allowance |
| Subdivision A—Qualification |
1035. | Qualification for mobility allowance |
TABLE OF PROVISIONS—continued
Section | Subdivision B—Payability |
1036. | Mobility allowance not payable in some circumstances |
1037. | Mobility allowance not payable where person receiving motor vehicle assistance |
1038. | Mobility allowance generally not payable before claim |
1039. | Provisional commencement day General rule Initial incorrect claim followed by claim for mobility allowance |
| Division 2—Claim for mobility allowance |
1040. | Need for a claim |
1041. | Form of claim |
1042. | Lodgment of claim |
| Division 3—Determination of claim |
1043. | Determination granting claim Notified decision—review sought within 3 months Notified decision—review sought after 3 months Decision not notified |
| Division 4—Rate of mobility allowance |
1044. | Rate of mobility allowance |
| Division 5—Payment of mobility allowance |
1045. | Commencement of mobility allowance |
1046. | Payment by instalments |
1047. | Effect on instalments of backdating claim |
1048. | Manner of payment |
1049. | Nominee payments |
1050. | Payment into bank account etc. |
1051. | Where allowance payday would fall on public holiday etc. |
| Division 6—Protection of mobility allowance |
1052. | Mobility allowance to be absolutely inalienable Payments to Commissioner of Taxation at recipient’s request |
1053. | Effect of garnishee or attachment order |
| Division 7—Recipient obligations |
1054. | Secretary may require notice of the happening of an event or a change in circumstances |
1055. | Secretary may require recipient to give particular information relevant to payment of mobility allowance |
1056. | Self incrimination |
| Division 8—Continuation, variation and termination |
| Subdivision A—General |
1057. | Continuing effect of determination |
| Subdivision B—Automatic termination |
1058. | Effect on mobility allowance when person ceases to be qualified |
| Subdivision C—Determinations |
1059. | Cancellation or suspension determination and resumption of payment after incorrect cancellation or suspension |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision D—Date of effect of determinations |
1060. | Date of effect of favourable determination |
| Notified decision—review sought within 3 months |
| Notified decision—review sought after 3 months |
| Decision not notified |
| Other determinations |
1061. | Date of effect of adverse determination |
| General |
| Contravention of Act |
| False statement or misrepresentation—suspension or cancellation |
CHAPTER 3—GENERAL PAYABILITY AND RATES PROVISIONS
PART 3.1—RATE CALCULATORS (GENERAL)
1062. | Steps in rate calculation |
1063. | Standard categories of family situations |
| PART 3.2—PENSION RATE CALCULATOR A |
1064. | Rate of age, invalid, wife and carer pensions (people who are not blind) |
PENSION RATE CALCULATOR A |
Module A—Overall rate calculation process (1064-A1 to 1064-A5) |
Module B—Maximum basic rate (1064-B1) |
Module C—Additional amounts for dependent children (1064-C1 to 1064-C10) |
Module D—Rent assistance (1064-D1 to 1064-D8) |
Module E—Ordinary income test (1064-E1 to 1064-E12) |
Module F—Maintenance income test (1064-F1 to 1064-F13) |
Module G—Assets test (1064-G1 to 1064-G7) |
Module H—Remote area allowance (1064-H1 to 1064-H5) |
Module J—Incentive allowance (1064-J1 to 1064-J3) |
TABLE OF PROVISIONS—continued
Section | |
| PART 3.3—PENSION RATE CALCULATOR B |
1065. | Rate of age and invalid pension (blind people) |
PENSION RATE CALCULATOR B |
Module A—Overall rate calculation process (1065-A1 to 1065-A2) |
Module B—Maximum basic rate (1065-B1) |
Module C—Additional amounts for dependent children (1065-C1 to 1065-C7) |
Module D—Rent assistance (1065-D1 to 1065-D3) |
Module E—Remote area allowance (1065-E1 to 1065-E4) |
Module F—Incentive allowance (1065-F1 to 1065-F3) |
| PART 3.4—PENSION RATE CALCULATOR C |
1066. | Rate of sole parent pension, widowed person allowance and widow B pension |
PENSION RATE CALCULATOR C |
Module A—Overall rate calculation process (1066-A1 to 1066-A2) |
Module B—Maximum basic rate (1066-B1) |
Module C—Additional amounts for dependent or maintained children (1066-C1 to 1066-C5) |
Module D—Rent assistance (1066-D1 to 1066-D5) |
Module E—Ordinary income test (1066-E1 to 1066-E9) |
Module F—Maintenance income test (1066-F1 to 1066-F11) |
Module G—Assets test (1066-G1 to 1066-G6) |
Module H—Remote area allowance (1066-H1 to 1066-H4) |
TABLE OF PROVISIONS—continued
Section | |
| PART 3.5—BENEFIT RATE CALCULATOR A |
1067. | Rate of job search allowance and sickness benefit (under 18) |
BENEFIT RATE CALCULATOR A |
Module A—Overall rate calculation process (1067-A1 to 1067-A4) |
Module B—Maximum basic rate (1067-B1) |
Module C—Additional payment for partner (1067-C1 to 1067-C6) |
Module D—Supplementary amount for member of couple in some circumstances (1067-D1 to 1067-D4) |
Module E—Additional amount for children (1067-E1 to 1067-E8) |
Module F—Rent assistance (1067-F1 to 1067-F16) |
Module G—Parental means test (1067-G1 to 1067-G22) |
Module H—Ordinary income test (1067-H1 to 1067-H13) |
Module J—Maintenance income test (1067-J1 to 1067-J14) |
Module K—Remote area allowance (1067-K1 to 1067-K8) |
| PART 3.6—BENEFIT RATE CALCULATOR B |
1068. | Rate of unemployment and sickness benefit (18 or over) |
BENEFIT RATE CALCULATOR B |
Module A—Overall rate calculation process (1068-A1 to 1068-A4) |
Module B—Maximum basic rate (1068-B1) |
Module C—Additional payment for partner (1068-C1 to 1068-C7) |
Module D—Supplementary amount for member of couple in some circumstances (1068-D1 to 1068-D4) |
Module E—Additional amount for children (1068-E1 to 1068-E9) |
Module F—Rent assistance (1068-F1 to 1068-F18) |
Module G—Ordinary income test (1068-G1 to 1068-G13) |
Module H—Maintenance income test (1068-H1 to 1068-H13) |
Module J—Remote area allowance (1068-J1 to 1068-J8) |
TABLE OF PROVISIONS—continued
Section | |
| PART 3.7-FAMILY ALLOWANCE RATE CALCULATOR |
1069. | Rate of family allowance |
FAMILY ALLOWANCE RATE CALCULATOR |
Module A—Overall rate calculation process (1069-A1) |
Module B—Maximum basic rate (1069-B1 to 1069-B4) |
Module C—Multiple birth allowance (1069-C1 to 1069-C4) |
Module D—Taxable income test (1069-D1 to 1069-D11) |
| PART 3.8—FAMILY ALLOWANCE SUPPLEMENT RATE CALCULATOR |
1070. | Rate of family allowance supplement |
FAMILY ALLOWANCE SUPPLEMENT RATE CALCULATOR |
Module A—Overall rate calculation process (1070-A1) |
Module B—Maximum basic rate (1070-B1 to 1070-B4) |
Module C—Rent assistance (1070-C1 to 1070-C4) |
Module D—Taxable income test (1070-D1 to 1070-D16) |
| PART 3.9—FRINGE BENEFITS MEANS TEST CALCULATORS |
1071. | Fringe Benefits Ordinary Income Test Calculator |
| FRINGE BENEFITS ORDINARY INCOME TEST CALCULATOR |
1072. | Fringe Benefits Assets Test Calculator |
| FRINGE BENEFITS ASSETS TEST CALCULATOR |
| PART 3.10—GENERAL PROVISIONS RELATING TO THE ORDINARY INCOME TEST |
| Division 1—Investment income |
| Subdivision A—Introduction |
1073. | Structure of Division |
1074. | Certain capital amounts not covered by other Subdivisions taken to be received over 12 months |
| Subdivision B—Accruing return investments |
1075. | Investments made before 1 January 1988 with friendly societies or where no immediate return |
1076. | Investments made before 1 January 1988 not with friendly societies or where return is not deferred |
1077. | Investments made after 1 January 1988 |
1078. | Actual return not to be treated as income |
1079. | Rate of return where it can only be approximated |
1080. | Reduction of rate of return for investment costs |
1081. | Conversion of investment to accruing return investment |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision C—Market-linked investments |
1082. | Investments made before 9 September 1988 |
1083. | Special provisions about certain investments made before 9 September 1988 |
1084. | Investments made after 9 September 1988 |
1085. | Actual return not to be treated as income |
1086. | Product rate of return |
1087. | Statutory rate of return |
1088. | Current rate of return may apply instead of statutory rate of return in some cases |
1089. | Application for determination under section 1088 |
1090. | Secretary not to be required to consider applications in certain circumstances |
1091. | Duration of determination under section 1088 |
1092. | Revocation of determination under section 1088 |
1093. | Notices in relation to exercise of powers under sections 1088 to 1092 |
1094. | Determination of entitlement of person holding market-linked investment |
1095. | Reduction of rate of return for investment costs |
1096. | Conversion of investments to market-linked investments |
| Subdivision D—Compulsorily preserved superannuation |
1097. | Superannuation benefits received before pensionable age |
| Subdivision E—Immediate annuities and superannuation pensions |
1098. | Immediate annuities |
1099. | Superannuation pensions |
| Division 2—Conversion of foreign currency amounts |
1100. | Application of Division |
1101. | Conversion of foreign currency amounts |
1102. | Base exchange rate |
1103. | Re-assessed exchange rate |
1104. | Applicability of re-assessed exchange rate |
1105. | Rounding off exchange rates |
| Division 3—Disposal of ordinary income |
1106. | Disposal of ordinary income |
1107. | Amount of disposition |
1108. | Disposal of ordinary income—individuals |
1109. | Disposal of ordinary income—members of couples |
1110. | Treatment of transactions that constitute both a disposal of ordinary income and a disposal of assets |
1111. | Dispositions more than 5 years old to be disregarded |
1112. | Modified operation of Division in relation to benefits and family allowance supplement |
| Division 4—Earnings credit |
1113. | Earnings credit account balance may be set-off against ordinary income from remunerative work |
1114. | Earnings credit account |
1115. | Earnings credit account balance |
TABLE OF PROVISIONS—continued
Section
EARNINGS CREDIT ACCOUNT BALANCE CALCULATOR |
Module A—Overall account balance calculation (1115-A1 to 1115-A4) |
Module B—Opening balance (1115-B1 to 1115-B3) |
Module C—Earnings credits (1115-C1 to 1115-C2) |
Module D—Drawing on account (1115-D1 to 1115-D2) |
| PART 3.11—GENERAL PROVISIONS RELATING TO THE MAINTENANCE INCOME TEST |
1116. | Apportionment of capitalised maintenance income |
| Capitalisation period—court order or registered or approved maintenance agreement |
| Capitalisation period—dependent child under 18 |
| Capitalisation period—partner under 65 |
| Capitalisation period—other cases |
1117. | Non-cash housing maintenance—value of substitute for family home |
| PART 3.12—GENERAL PROVISIONS RELATING TO THE ASSETS TEST |
| Division 1—Value of person’s assets |
1118. | Certain assets to be disregarded in calculating the value of a person’s assets |
1119. | Value of annuities |
| Value of certain annuities to be disregarded |
| Disposable or deferrable annuity |
| Value of certain post-15 August 1989 annuities |
1120. | Value of annuity—change of relevant number |
1121. | Effect of charge or encumbrance on value of assets |
1122. | Loans |
| Division 2—Disposal of assets |
1123. | Disposal of assets |
1124. | Amount of disposition |
1125. | Disposal of assets—individuals |
1126. | Disposal of assets—members of couples |
1127. | Dispositions more than 5 years old to be disregarded |
1128. | Modified operation of Division in relation to benefits and family allowance supplement |
| Division 3—Financial hardship |
1129. | Access to financial hardship rules—pensions |
1130. | Application of financial hardship rules—pensions |
| Value of unrealisable asset to be disregarded |
| Deduction from social security pension maximum payment rate |
| Adjusted annual rate of ordinary income |
| Assets tested asset |
| Notional annual rate of ordinary income from unrealisable assets |
| Family farms |
1131. | Access to financial hardship rules—benefits |
1132. | Application of financial hardship rules—benefits |
| Value of unrealisable asset to be disregarded |
| Deduction from social security benefit maximum payment rate |
| Adjusted fortnightly rate of ordinary income |
| Assets tested asset |
| Notional fortnightly rate of ordinary income from unrealisable assets |
TABLE OF PROVISIONS—continued
Section | |
| Division 4—Pension loans scheme |
1133. | Qualification for participation in pension loans scheme |
| Person not member of a couple |
| Person member of a couple |
1134. | Effect of participation in pension loans scheme—pension or allowance rate |
1135. | Effect of participation in pension loans scheme—creation of debt |
1136. | Need for a request to participate |
1137. | Additional requirement where person’s assets valued at less than $100,000 |
| Person not member of a couple |
| Person member of a couple |
| Election to be signed |
1138. | Existence of debt results in charge over assets |
| Person not member of a couple |
| Person member of a couple |
1139. | Debt not to be recovered until after death |
1140. | Enforcement of charge |
1141. | Person ceases to participate in pension loans scheme if value of assets |
| falls below $100,000 |
1142. | Automatic termination of participation in pension loans scheme |
1143. | Registration of charge |
1144. | Manner of enforcement of charge |
| Division 5—Special provisions relating to residents of retirement villages |
| |
1145. | Retirement village resident |
1146. | Basis for different treatment |
1147. | Entry contribution |
1148. | Extra allowable amount |
| Residence taken up before 13 June 1989 |
| Residence taken up on or after 13 June 1989 |
1149. | Renegotiation of retirement village agreement |
| Subdivision B—Residents who are not members of a couple |
1150. | People who are not members of a couple |
| Entry contribution above extra allowable amount |
| Entry contribution equal to or below extra allowable amount |
| Subdivision C—Residents who are members of a couple and share principal home |
1151. | Members of couples |
| Entry contribution above extra allowable amount |
| Entry contribution equal to or below extra allowable amount |
| Subdivision D—Residents who are members of illness separated couple |
1152. | Members of illness separated couples (both in retirement village or villages) |
| Both entry contributions above extra allowable amount |
| Both entry contributions equal to or below extra allowable amount |
| Person’s entry contribution above extra allowable amount/partner’s entry |
| contribution equal to or below extra allowable amount |
1153. | Members of illness separated couples (partner not in retirement village and partner homeowner) |
| Entry contribution above extra allowable amount |
| Entry contribution equal to or below extra allowable amount |
1154. | Member of illness separated couple (partner not in retirement village and partner not homeowner) |
| Entry contribution above extra allowable amount |
| Entry contribution equal to or below extra allowable amount |
TABLE OF PROVISIONS—continued
Section | |
| Subdivision E—Residents who are members of ordinary couple with different principal homes |
1155. | Members of ordinary couple with different principal homes (both in retirement villages) |
| Both entry contributions above extra allowable amount |
| Both entry contributions equal to or below extra allowable amount |
1156. | Members of ordinary couple with different principal homes (partner not in a retirement village and partner homeowner) |
1157. | Members of ordinary couple with different principal homes (partner not in a retirement village and partner not homeowner) |
| Entry contribution above extra allowable amount |
| Entry contribution equal to or below extra allowable amount |
| PART 3.13—IMPRISONMENT |
| Division 1—Social security pensions (excluding sheltered employment allowance and rehabilitation allowance) |
1158. | Some social security pensions not payable during period in gaol or in psychiatric confinement following criminal conviction |
1159. | Payment may be redirected to dependent partner or child |
| Division 2—Social security benefits |
1160. | Social security benefit not payable while person in gaol or in psychiatric confinement following criminal conviction |
1161. | Double benefit payment on release from gaol |
| Division 3—Sheltered employment allowance |
1162. | Transfer from sheltered employment allowance to pension during or soon after release from prison |
| PART 3.14—COMPENSATION RECOVERY |
| Division 1—General |
1163. | General effect of Part |
| Division 2—Enforcement of compensation rights |
1164. | Secretary may require person to take action to obtain compensation |
| Division 3—Receipt of compensation |
1165. | Pension, benefit or allowance not payable during lump sum preclusion period |
| Person not member of a couple |
| Person member of a couple |
| Lump sum preclusion period |
1166. | Person may have to repay amount where both lump sum and pension, benefit or allowance payments have been received |
1167. | Lump sum compensation not counted as ordinary income |
1168. | Rate reduction of certain pensions, benefits and allowances where periodic compensation payments received |
1169. | Rate reduction under both income/assets test and this Part |
1170. | Person may have to repay amount where both periodic compensation payments and pension, benefit or allowance payments have been received |
1171. | Periodic compensation payments not counted as ordinary income |
TABLE OF PROVISIONS—continued
Section | |
| Division 4—Compensation payers |
1172. | Secretary may send preliminary notice to potential compensation payer |
1173. | Potential compensation payer must notify Department of liability |
1174. | Secretary may send recovery notice to compensation payer |
1175. | Compensation payer’s payment to Commonwealth discharges liability to compensation recipient |
1176. | Offence to make compensation payment after receiving preliminary notice or recovery notice |
| Liability to pay Commonwealth |
| Division 5—Insurers |
1177. | Secretary may send preliminary notice to insurer |
1178. | Insurer must notify Department of liability |
1179. | Secretary may send recovery notice to insurer |
1180. | Preliminary notice or recovery notice to insurer suspends compensation payer’s liability |
1181. | Insurer’s payment to Commonwealth discharges liability |
1182. | Offence to make compensation payment after receiving preliminary notice or recovery notice |
| Liability to pay Commonwealth |
| Division 6—Miscellaneous |
1183. | Secretary may give recovery notice either to compensation payer or to insurer but not to both |
1184. | Secretary may disregard some payments |
1185. | Part to bind Crown |
| PART 3.15—NEW ENTERPRISE INCENTIVE SCHEME |
1186. | General effect of Part |
1187. | Reduction in rate of payments under this Act if recipient or partner also receiving payments under New Enterprise Incentive Scheme (NEIS) |
1188. | Rate reduction under this Part |
| PART 3.16—INDEXATION |
| Division 1—Preliminary |
1189. | Analysis of Part |
1190. | Indexed and adjusted amounts |
| Division 2—CPI indexation |
1191. | CPI Indexation Table |
| Highest quarter |
1192. | Indexation of amounts |
1193. | Indexation factor |
1194. | Rounding off indexed amounts |
| Division 3—AWE indexation |
1195. | AWE Indexation Table |
1196. | Indexation of amounts |
1197. | Indexation factor |
1198. | Rounding off indexed amounts |
| Division 4—Adjustment of other rates |
1199. | Adjustment of FAS child MBRs |
1200. | Adjustment of pension child add-ons |
1201. | Adjustment of benefit child add-ons |
TABLE OF PROVISIONS—continued
Section | |
1202. | Adjustment of FAS MRA |
1203. | Adjustment of pension “single” non-homeowner AVL |
1204. | Adjustment of benefit AVLs |
1205. | Adjustment of special illness separated retirement village resident AVL |
1206. | Adjustment of fringe benefits AVLs |
| PART 3.17—MISCELLANEOUS |
1207. | Application of income and assets test reductions and of compensation reductions for income tax purposes |
| CHAPTER 4—INTERNATIONAL AGREEMENTS AND PORTABILITY |
| PART 4.1—INTERNATIONAL AGREEMENTS |
1208. | Scheduled international social security agreements override this Act |
1209. | Portability of international agreement pension or allowance |
1210. | Rate of pension or allowance payable under scheduled international social security agreement where rate to be determined under the social security laws of Australia |
INTERNATIONAL AGREEMENT PORTABILITY RATE CALCULATOR |
Module A—Overall rate calculation process (1210-A1) |
Module B—Australian working life residence (1210-B1 to 1210-B9) |
Module C—Residence factor (1210-C1 to 1210-C2) |
PART 4.2—OVERSEAS PORTABILITY
Division 1—General portability of pensions
1211. | Benefits and family payments not portable |
1212. | Grant of pension or allowance when person outside Australia |
| “Transfer” to portable pension or allowance |
1213. | Some pensions generally portable without time limit |
1214. | Sole parent pension generally portable for 12 months only |
1215. | Wife and widow B pension not portable after 12 months unless person is in a specified foreign country |
1216. | Wife and widow B pension may be portable after 12 months where person is in a specified foreign country |
1217. | Effect of disqualified person returning to Australia |
| Division 2—Departure certificates and short residence |
1218. | Qualification for pension ceases after 6 months unless person has a departure certificate |
1219. | Departure certificates |
| Recipients |
| Claimants |
1220. | No portability where claim based on short residence |
| Division 3—Rate of portable pensions |
1221. | Rate of pensions paid outside Australia |
TABLE OF PROVISIONS—continued
Section
PENSION PORTABILITY RATE CALCULATOR |
Module A—Overall rate calculation process (1221-A1) |
Module B—Australian working life residence (1221-B1 to 1221-B9) |
Module C—Residence factor (1221-C1 to 1221-C2) |
| CHAPTER 5—OVERPAYMENTS AND DEBT RECOVERY |
| PART 5.1—EFFECT OF CHAPTER |
1222. | General effect of Chapter |
| PART 5.2—AMOUNTS RECOVERABLE UNDER THIS ACT |
1223. | Overpayments arising under this Act |
1224. | Debts arising from recipients’ contravention of Act |
1225. | Compensation debts |
1226. | Compensation payer and insurer debts |
1227. | Assurance of support debts |
1228. | Overpayments arising under other Acts and Schemes |
1229. | Penalty for late payment of certain debts |
1230. | Debt from failure to comply with garnishee notice |
| PART 5.3—METHODS OF RECOVERY |
1231. | Deductions |
1232. | Legal proceedings |
1233. | Garnishee notice |
1234. | Secretary may allow payment of debt by instalments |
| PART 5.4—NON-RECOVERY OF OVERPAYMENTS AND DEBTS |
1235. | Meaning of “debt” |
1236. | Secretary may write off overpayment or debt |
1237. | Secretary may waive overpayment or debt |
| CHAPTER 6—REVIEW OF DECISIONS |
| PART 6.1—INTERNAL REVIEW |
1238. | Application of Part |
1239. | Secretary may review decisions |
1240. | Application for review |
1241. | Secretary may continue payment pending outcome of application for review |
1242. | Automatic continuation of payment if review of section 282 cancellation decision sought |
1243. | Secretary’s powers where application for review |
1244. | Notification of further rights of review |
| PART 6.2—REVIEW BY THE SOCIAL SECURITY APPEALS TRIBUNAL |
1245. | Application of Part |
1246. | SSAT objectives |
1247. | Application for review by SSAT |
1248. | Application requirement—rate of return decision |
TABLE OF PROVISIONS—continued
Section | |
1249. | Person affected may apply for SSAT review and Secretary’s review |
1250. | Non-reviewable decisions |
1251. | Secretary may continue payment pending outcome of application for review |
1252. | Automatic continuation of payment if review of section 282 cancellation decision sought |
1253. | SSAT review powers—decisions other than a rate of return decision |
1254. | SSAT review powers—rate of return decisions |
1255. | Date of effect of SSAT decision (other than a rate of return decision) |
1256. | Date of effect of SSAT decision—rate of return decisions |
1257. | Application requirements |
1258. | Notification requirements—rate of return decision application |
1259. | Variation of decision before review completed |
1260. | Parties to SSAT review |
| PART 6.3—PROCEDURES FOR REVIEW BY THE SOCIAL SECURITY APPEALS TRIBUNAL |
| Division 1—Preliminary procedures |
1261. | Procedure on receipt of application for review by SSAT |
1262. | Parties to be given a statement about the decision under review |
1263. | Arrangements for hearing of application |
1264. | Notice of application to person affected by decision (other than a rate of return decision) |
| Division 2—How the SSAT informs itself about the decision under review |
1265. | Submissions to SSAT |
1266. | SSAT hearings without oral submissions by applicant |
1267. | Evidence on oath |
1268. | Request for further information from Secretary |
1269. | Request for Secretary to exercise powers under section 1304 |
| Division 3—The hearing |
1270. | Hearing procedure |
1271. | Hearing to be private |
1272. | Restrictions on disclosure of information obtained at hearing |
| Division 4—Other procedural matters |
1273. | Adjournment of SSAT hearings |
1274. | Withdrawal of application for review |
1275. | Power to dismiss application |
1276. | Chairperson for each SSAT hearing |
1277. | Majority decision |
1278. | Procedure where opinion of members equally divided |
1279. | Directions as to procedure for hearings |
1280. | Costs of review |
| Division 5—Notification of decisions |
1281. | Procedure following SSAT decision |
| PART 6.4—REVIEW BY ADMINISTRATIVE APPEALS TRIBUNAL |
| Division 1—Right to review by Administrative Appeals Tribunal |
1282. | Application of Part |
1283. | Review of SSAT decision by AAT |
1284. | Variation of decision before AAT review completed |
1285. | Review of SSAT decision on application by the Secretary |
TABLE OF PROVISIONS—continued
Section | |
| Division 2—Modification of the Administrative Appeals Tribunal Act 1975 |
| Subdivision A—Modification of AAT Act (SSAT rate of return decisions) |
1286. | Operation of Administrative Appeals Tribunal Act—SSAT rate of return decisions |
| Subdivision B—General |
1287. | Modification of the Administrative Appeals Tribunal Act |
1288. | Statement of reasons for decision |
1289. | Notice of application for review |
1290. | Parties to a review by the AAT |
1291. | Lodging documents with the AAT |
1292. | Power of the AAT to obtain additional statements |
1293. | Operation and implementation of the decision under review |
1294. | Power of the AAT where a party fails to appear |
| CHAPTER 7—ADMINISTRATION |
| PART 7.1—GENERAL ADMINISTRATION |
| Division 1—Principles of administration |
1295. | Secretary to have general administration of Act |
1296. | Principles of administration |
1297. | Government policy statements |
1298. | The Secretary and National Convener may agree on administrative arrangements |
1299. | Delegation |
| Division 2—Miscellaneous |
1300. | Telephone service for clients |
1301. | Authorised review officers |
1302. | Decisions to be in writing |
1303. | Annual report |
| PART 7.2—INFORMATION MANAGEMENT |
| Division 1—Information gathering |
1304. | General power to obtain information |
1305. | Power to obtain information from a person who owes a debt to the Commonwealth |
1306. | Power to obtain information about a person who owes a debt to the Commonwealth |
1307. | Power to obtain information to verify claims etc. |
1308. | Power to obtain information about tax file number |
1309. | Self incrimination |
1310. | State/Territory law does not affect obligations to provide information under this Act |
1311. | End-of-employment statement by employer |
| Division 2—Confidentiality |
1312. | Protection of personal information |
1313. | Protection extends to court, tribunal etc. proceedings |
1314. | Secretary’s certificate |
1315. | Guidelines for exercise of Secretary’s certificate power |
1316. | Offence—soliciting disclosure of protected information |
1317. | Offences where protected information disclosed |
1318. | Offences—offering to supply protected information |
1319. | Penalty for offences under this Division |
1320. | Protection for officers |
1321. | Officer’s oath or declaration |
TABLE OF PROVISIONS—continued
Section | |
| PART 7.3—SOCIAL SECURITY APPEALS TRIBUNAL |
| Division 1—Establishment and membership of the Social Security Appeals Tribunal |
1322. | Establishment of the SSAT |
1323. | The National Convener |
1324. | Appointment of members |
1325. | Period of appointment of members |
1326. | Acting appointments |
| Division 2—Organisation of the business of the Social Security Appeals Tribunal |
1327. | Constitution of SSAT for each hearing |
1328. | Number of members to constitute SSAT for each hearing |
1329. | Member unavailable to complete review |
| Division 3—Administrative matters |
1330. | Remuneration and allowances of members |
1331. | Leave of absence |
1332. | Approval to engage in outside employment |
1333. | Resignation |
1334. | Removal from office |
1335. | Disclosure of interests |
1336. | Disclosure of confidential information |
1337. | Delegation by the National Convener |
1338. | Protection of members and witnesses |
1339. | Fees for witnesses |
1340. | Oath or affirmation of office |
1341. | Staff of the SSAT |
1342. | Annual report |
| CHAPTER 8—MISCELLANEOUS |
| PART 8.1—OFFENCES |
| Division 1—Offences |
1343. | Operation of Part |
1344. | False statement in connection with claims and hardship requests |
1345. | False statement—to deceive or affect rates |
1346. | False statement or document |
1347. | Payment knowingly obtained where not payable |
1348. | Payment knowingly obtained through fraud etc. |
1349. | Proceedings against corporations |
| Division 2—Penalties and orders for interest |
1350. | Penalties |
1351. | Conviction of an offence—repayment of pension, benefit or allowance |
1352. | Order for interest by the court |
1353. | Penalty where person convicted of more than one offence |
| Division 3—Procedural matters |
1354. | Joining of charges |
1355. | Particulars of each offence |
1356. | Joined charges may be tried together |
1357. | Secretary’s certificate |
1358. | Court certificate |
TABLE OF PROVISIONS—continued
Section | |
| PART 8.2—MISCELLANEOUS |
1359. | Payment to Commissioner of Taxation—section 218 Income Tax Assessment Act |
1360. | Judicial notice to be taken of certain matters |
1361. | Evidence |
1362. | External Territories |
1363. | Appropriation |
1364. | Regulations |
| SCHEDULES |
Social Security Act 1991
No. 46 of 1991
An Act to provide for the payment of certain pensions, benefits and allowances, and for related purposes
[Assented to 23 April 1991]
The Parliament of Australia enacts:
CHAPTER 1—INTRODUCTORY
PART 1.1—FORMAL MATTERS
Short title
1. This Act may be cited as the Social Security Act 1991.
Commencement
2. This Act commences on 1 July 1991.
s. 3 Definitions
PART 1.2—DEFINITIONS
Index of definitions
3. Each expression listed in the Index below is defined, for the purposes of this Act, in the section or sections listed in the Index opposite that expression.
INDEX
1947 Act | 23 (1) |
AAT | 22 |
AAT Act | 22 |
ABSTUDY | 23 (1) |
ABSTUDY Schooling scheme | 23 (1) |
ABSTUDY Tertiary scheme | 23 (1) |
accruing return investment | 9 (1) |
activity therapy centre | 18 |
actual market exchange rate | 23 (1) |
actual value | 12 (5) |
additional amounts for dependent children | 23 (1) |
adopted child | 5 (1) |
adult training centre | 18 |
allowance payday | 19 |
amount of disposition—assets | 1124 |
amount of disposition—income | 1107 |
amount of rent paid or payable | 13 (6), (7) |
annual rate of return | 9 (3) |
approved activity therapy | 18 |
approved care organisation | 6 (1) |
approved deposit fund | 9 (1) |
approved friendly society | 23 (1) |
approved organisation | 15 (1) |
approved respite care | 4 (9) |
approved short-term vocational course | 15 (1) |
approved training | 18 |
approved vocational course | 15 (1) |
armed services widow | 4 (1) |
assessable growth component | 9 (1) |
assessable period | 9 (1) |
asset | 11 (1) |
assurance of support debt | 23 (1) |
Australia | 23 (1) |
Australian resident | 7 (2) |
AUSTUDY allowance | 23 (1) |
authorised review officer | 23 (1) |
average male full-time weekly earnings | 15 (1) |
average weekly earnings | 17 (1) |
benefit increase child | 5 (16) |
benefit increase partner | 4 (10) |
benevolent home | 23 (1) |
bereavement lump sum period | 21 (e) |
bereavement notification day | 21 (b) |
bereavement period | 21 (a) |
bereavement rate continuation period | 21 (d) |
board | 13 (1) |
Definitions s. 3
building society account | 23 (1) |
capitalised maintenance income | 10 (1) |
care | 198 (3) |
cash maintenance | 10 (1) |
CDA child | 953 |
CES | 23 (1) |
child support | 10 (1) |
compensation | 17 (2) |
compensation debt | 23 (1) |
compensation part | 17 (3) |
compensation payer | 17 (1) |
compulsorily preserved | 9 (7) |
computer | 23 (1) |
CPC rate | 20 (2) |
credit union account | 23 (1) |
current figure | 20 (1) |
decision | 23 (1) |
deductible amount | 9 (1) |
deferred annuity | 9 (1) |
dependent child | 5 (2)-(9) |
dependent child add-on | 23 (1) |
dependent female | 362 (1)(c)(ii) |
determination of entitlement | 9 (1) |
disposes of assets | 1123 |
disposes of income | 1106 |
domestic payment | 8 (3) |
double orphan | 993, 994 |
earned, derived or received | 8 (2) |
education leavers waiting period | 23 (1) |
educational scheme rate | 5 (14) |
eligible investment | 9 (1) |
employment declaration | 23 (1) |
entry contribution | 1147 |
excluded amount | 8 (4), (5), (8) |
exempt assets | 11 (1) |
exempt income | 23 (1) |
exempt FA child | 5 (1) |
external Territory | 23 (1) |
extra allowable amount | 1148 |
FA amount | 20 (3) |
FA assumed notifiable event | 6 (1) |
FA child | 6 (1) |
FA notifiable event | 6 (1) |
family payment payday | 6 (1) |
FAS assumed notifiable event | 6 (1) |
FAS child | 6 (1) |
FAS notifiable event | 6 (1) |
FAS period | 6 (1) |
first available bereavement adjustment payday | 21 (c) |
foreign exchange period | 23 (1) |
friendly society | 9 (1) |
fund manager | 9 (1) |
gainful employment | 19 |
guardian allowance | 23 (1) |
s. 3 Definitions
Government rent | 13 (1) |
granny flat interest | 11 (9) |
handicapped person | 19 |
homeless person | 5 (1) |
home equity conversion agreement | 8 (1) |
homeowner | 11 (4) |
illness separated couple | 4 (7) |
immediate annuity | 9 (1) |
incentive allowance | 23 (1) |
income | 8 (1) |
income amount | 8 (1) |
income from personal exertion | 8 (1) |
Income Tax Assessment Act | 23 (1) |
independent living training | 18 |
independent young person | 5 (1) |
index number | 20 (1) |
industrial action | 16 (1), (2) |
ineligible homeowner | 13 (1) |
in gaol | 23 (5) |
insurer who is liable to indemnify a compensation payer | 17 (6) |
investment | 9 (6) |
investment product | 9 (1), (2) |
joint ownership | 23 (1) |
JSA automatic deferment provision | 23 (1) |
JSA discretionary deferment provision | 23 (1) |
lump sum preclusion period | 1165 (3)-(6) |
maintained child | 5 (1) |
maintenance | 10 (1) |
maintenance agreement | 10 (1) |
maintenance income | 10 (1) |
major disaster | 23 (1) |
market-linked investment | 9 (1) |
medical practitioner | 23 (1) |
member of a couple | 4 (2), (3), (6) |
member of an ordinary couple with different principal homes | 12 (2) |
mental hospital | 23 (1) |
mental hospital patient | 23 (1) |
NEIS payment | 23 (1) |
non-assessable purchase price | 9 (1) |
non-cash housing maintenance | 10 (1) |
non-profit organisation | 23 (1) |
November earnings average | 20 (1) |
nursing home | 23 (1) |
officer | 23 (1) |
ordinary income | 8 (1) |
ordinary waiting period | 23 (1) |
parent | 5 (1) |
participation in pension loans scheme | 23 (11) |
partner | 4 (1) |
partnered | 4 (11)(a) |
partnered (partner getting benefit) | 4 (11)(e) |
partnered (partner getting neither pension nor benefit) | 4 (11)(b) |
partnered (partner getting pension) | 4 (11)(d) |
partnered (partner getting pension or benefit) | 4 (11)(c) |
Definitions s. 3
payday-based payment | 42 |
payment for a period | 17 (7) |
pension age | 23 (1) |
pension increase child | 5 (15) |
pension payday | 23 (1) |
pension period | 23 (1) |
pension year | 11 (10) |
period-based payment | 42 |
periodic payments period | 17 (1) |
physically present in a remote area | 14 (2) |
PLS assets | 11 (1) |
potential compensation payer | 17 (1) |
presently payable | 9 (5) |
prescribed educational scheme | 5 (1) |
prescribed student child | 5 (11) |
principal home | 11 (5)-(7) |
private land | 11 (6) |
product rate of return | 1086 |
protected information | 23 (1) |
psychiatric confinement | 23 (8), (9) |
public unit trust | 9 (1) |
purchase price | 9 (1) |
qualified beneficiary | 15 (2) |
qualifying Australian residence | 7 (5) |
rate of return decision | 9 (1) |
reasonable security of tenure | 11 (8) |
receives compensation | 17 (5) |
receiving | 23 (2)-(4) |
receiving a social security pension | 23 (2) |
receiving full-time education at a school, college or university | 5 (10) |
recipient notification notice | 23 (1) |
recipient statement notice | 23 (1) |
refusing to make a determination | 9 (4) |
rehabilitation program | 23 (1) |
relevant number | 9 (1) |
remote area | 14 (1) |
rent | 13 (2), (3), (4) |
resident of a retirement village | 1145 |
residing in a nursing home | 13 (8) |
residual capital value | 9 (1) |
respite care couple | 4 (8) |
retirement village | 12 (3), (4) |
return | 9 (1) |
rolled-over amount | 9 (1) |
roll-over immediate annuity | 9 (1) |
roll-over purchase price | 9 (1) |
SPP child | 250, 251 |
SSAT | 22 |
SSAT rate of return decision | 22 |
scheduled international agreement | 1208 |
Secretary | 23 (1) |
served the waiting period | 23 (10) |
service pension | 23 (1) |
severely handicapped pensioner | 198 (3) |
s. 3 Definitions
sheltered employment | 19 |
social security benefit | 23 (1) |
social security pension | 23 (1) |
social security rate | 5 (14) |
special maintenance income | 10 (1) |
specified foreign country | 23 (1) |
statutory rate of return | 9 (1) |
student child | 5 (1) |
superannuation benefit | 9 (1) |
superannuation fund | 9 (1) |
superannuation pension | 9 (1) |
tax file number | 23 (1) |
tax year | 23 (1) |
taxable income | 23 (1) |
trade union | 16 (1), (3) |
transfer day | 23 (6), (7) |
transferee to social security benefit | 23 (6), (7) |
UB automatic deferment provision | 23 (1) |
UB discretionary deferment provision | 23 (1) |
unemployment | 16 (1) |
unrealisable asset | 11 (12), (13) |
unused annual leave | 23 (1) |
unused annual leave waiting period | 23 (1) |
value | 11 (2), (3) |
VEA | 23 (1) |
vocational training | 19 |
waiting period | 23 (1) |
widow | 23 (1) |
young person | 5 (1) |
Family relationships definitions—couples
4. (1) In this Act, unless the contrary intention appears:
“approved respite care” has the meaning given by subsection (9);
“armed services widow” means a woman who was the partner of:
(a) a person who was a veteran for the purposes of any provisions of the Veterans’ Entitlements Act; or
(b) a person who was a member of the forces for the purposes of Part IV of that Act; or
(c) a person who was a member of a peacekeeping force for the purposes of Part IV of that Act;
immediately before the death of the person;
“benefit increase partner” has the meaning given by subsection (10);
“illness separated couple” has the meaning given by subsection (7);
“member of a couple” has the meaning given by subsections (2), (3) and (6);
“partner”, in relation to a person who is a member of a couple, means the other member of the couple;
“partnered” has the meaning given by subsection (11);
Definitions s. 4
“partnered (partner getting benefit)” has the meaning given by subsection (11);
“partnered (partner getting neither pension nor benefit)” has the meaning given by subsection (11);
“partnered (partner getting pension)” has the meaning given by subsection (11);
“partnered (partner getting pension or benefit)” has the meaning given by subsection (11);
“respite care couple” has the meaning given by subsection (8).
Member of a couple—general
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or
(b) all of the following conditions are met:
(i) the person is living with a person of the opposite sex (in this paragraph called the “partner”);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsection (3)), a marriage-like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23b of the Marriage Act 1961.
Note: a prohibited relationship for the purposes of section 23b of the Marriage Act 1961 is a relationship between a person and:
• an ancestor of the person; or
• a descendant of the person; or
• a brother or sister of the person (whether of the whole blood or the part-blood).
Member of a couple—criteria for marriage-like relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a) or subparagraph (2) (b) (iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
s. 4 Definitions
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriagelike relationship.
(4) If:
(a) a person claims, or is receiving, sole parent pension; and
(b) a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c) the claimant or recipient is not legally married to the other person; and
(d) at least one of the following paragraphs is satisfied:
(i) a child of both the people also lives in the residence;
(ii) the people have joint ownership of the residence;
(iii) the people are joint lessees of the residence and the original duration of the lease was at least 10 years;
(iv) the people have joint assets with a total value of more than $4,000;
(v) the people have joint liabilities totalling more than $1,000;
(vi) the people have at any time been legally married to each other;
Definitions s. 4
(vii) the people have at any time shared another residence with each other;
the Secretary must not form the opinion that the claimant or recipient is not living with the other person in a marriage-like relationship unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is not living in a marriage-like relationship with the other person.
(5) If:
(a) a person claims, or is receiving, sole parent pension; and
(b) a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c) the claimant or recipient and the other person are legally married to one another; and
(d) the claimant or recipient and the other person:
(i) are living separately and apart on a permanent basis; or
(ii) claim to be living separately and apart on a permanent basis;
the Secretary must not form the opinion that the claimant or recipient is living separately and apart from the other person on a permanent basis unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is living separately and apart from the other person on a permanent basis.
Member of a couple—special excluding determination
(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person.
Note: section 24 allows the Secretary to treat a person who is a member of a couple as not being a member of a couple in special circumstances.
Illness separated couple
(7) Where 2 people are members of a couple, they are members of an illness separated couple if:
(a) they are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them; and
(b) because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and
(c) that inability is likely to continue indefinitely.
s. 4 Definitions
Respite care couple
(8) Where 2 people are members of a couple, they are members of a respite care couple if:
(a) one of the members of the couple has entered approved respite care; and
(b) the member who has entered the approved respite care has remained, or is likely to remain, in that care for at least 14 consecutive days.
Approved respite care
(9) For the purposes of this Act, a person is in approved respite care if:
(a) the person is a benefit respite care patient as defined in the National Health Act 1953 (as modified by the National Health (Nursing Home Respite Care) regulations); or
(b) the person is a leave respite care patient as defined in the National Health Act 1953 (as modified by the National Health (Nursing Home Respite Care) regulations); or
(c) the person is an eligible person as defined in the Aged or Disabled Persons Home Act 1954 and is occupying a respite care place as defined in that Act.
Benefit increase partner
(10) A person’s partner is a benefit increase partner if:
(a) the person’s social security benefit rate is worked out using Benefit Rate Calculator A or Benefit Rate Calculator B; and
(b) the person’s rate includes an amount under Module C of that Rate Calculator for the person’s partner.
Standard family situation categories
(11) For the puposes of this Act:
(a) a person is partnered if the person is a member of a couple; and
(b) a person is partnered (partner getting neither pension nor benefit)
if the person is a member of a couple and the person’s partner:
(i) is not receiving a social security pension; and
(ii) is not receiving a social security benefit; and
(iii) is not receiving a service pension; and
(c) a person is partnered (partner getting pension or benefit) if the person is a member of a couple and the person’s partner is receiving:
(i) a social security pension; or
(ii) a social security benefit; or
(iii) a service pension; and
Definitions s. 4
(d) a person is partnered (partner getting pension) if the person is a member of a couple and the person’s partner is receiving:
(i) a social security pension; or
(ii) a service pension; and
(e) a person is partnered (partner getting benefit) if the person is a member of a couple and the person’s partner is receiving a social security benefit.
Note: “social security pension” includes a sheltered employment or rehabilitation allowance (see subsection 23 (1)).
Family relationships definitions—children
5. (1) In this Act, unless the contrary intention appears:
“adopted child” means a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children;
“dependent child” has the meaning given by subsections (2) to (9);
“exempt FA child” means:
(a) a dependent child under 18 in respect of whom a person is receiving:
(i) a family allowance supplement; or
(ii) a double orphan pension; or
(iii) a child disability allowance; or
(iv) a rate increase in the person’s social security or service pension or benefit which has been calculated by reference to the child; or
(b) a dependent child who has turned 18 in respect of whom a person would, but for the child being 18, receive:
(i) a family allowance supplement; or
(ii) a double orphan pension; or
(iii) a child disability allowance; or
(iv) where the person is receiving a social security or service pension or social security benefit, a rate increase in the person’s pension or benefit by reference to the child; or
(c) a dependent child who has turned 18 where a person or the person’s partner:
(i) is not receiving family allowance supplement and lodges a claim for family allowance supplement; and
(ii) is not precluded by the taxable income test from receiving family allowance supplement;
in respect of the child.
“homeless person” means a person who:
(a) is not a member of a couple; and
s. 5 Definitions
(b) has no dependent children; and
(c) either:
(i) does not live, and for a continuous period of at least 2 weeks has not lived, at a home of the parents, or of a parent, of the person because the parents are not, or neither parent is, prepared to allow the person to live at such a home; or
(ii) does not live at a home of the parents, or of a parent, of the person because domestic violence, incestuous harassment or other exceptional circumstances make it unreasonable to expect the person to live at such a home; and
(d) is not receiving continuous support, whether directly or indirectly and whether pecuniary or otherwise, from a parent of the person or from another person who is acting as the person’s guardian on a long-term basis; and
(e) is not receiving, on a continuous basis, any payment in the nature of income support (other than a social security benefit) from the Commonwealth, a State or a Territory;
‘independent young person” means a person who:
(a) does not live, and for a continuous period of at least 6 months has not lived, at a home of the parents, or of a parent, of the person; and
(b) has, at a time when the person was not living at such a home, been employed on a full-time basis for a period of, or for periods that total, at least 13 weeks; and
(c) does not receive regular financial support from a parent of the person;
“maintained child”, in relation to a person, means a young person who:
(a) is not a dependent child of the person; and
(b) is being wholly or substantially maintained by the person;
(a) in relation to a young person, other than an adopted child—a natural parent of the young person; or
(b) in relation to an adopted child—an adoptive parent of the young person;
Note: for a modification of this definition in the parental income test applied to social security benefits see point 1067-G7 of Benefit Rate Calculator A.
“prescribed educational scheme” means:
(a) the AUSTUDY Scheme; or
(b) the ABSTUDY Schooling Scheme; or
(c) the ABSTUDY Tertiary Scheme; or
(d) the Assistance for Isolated Children Scheme; or
Definitions s. 5
(e) the Veterans’ Children Education Scheme; or
(f) the Post-Graduate Awards Scheme;
“prescribed student child” has the meaning given by subsection (11);
“receiving full-time education at a school, college or university” has the meaning given by subsection (10);
“student child” means a person who:
(a) has turned 16 but who has not turned 25; and
(b) is receiving full-time education at a school, college or university;
Note: see also subsection (10) (receiving full-time education).
“young person” means:
(a) a person who has not turned 16; or
(b) a person who:
(i) has turned 16 but not turned 25; and
(ii) is receiving full-time education at a school, college or university.
Note: see also subsection (10) (receiving full-time education).
Dependent child—under 16
(2) Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the “adult”) if:
(a) the adult has the right (whether alone or jointly with another person):
(i) to have the daily care and control of the young person; and
(ii) to make decision’s about the daily care and control of the young person; and the young person is in the adult’s care and control; or
(b) the young person:
(i) is not a dependent child of someone else under paragraph (a); and
(ii) is wholly or substantially in the adult’s care and control.
(3) A young person who has not turned 16 cannot be a dependent child if:
(a) the young person is not in full-time education; and
(b) the young person is in receipt of income from employment; and
(c) the rate of that income exceeds $100 per week.
Note 1: for a modification of this rule for sole parent pension qualification see subsection 250 (2).
Note 2: this subsection is disregarded for the purposes of the following maintenance income test provisions:
• section 10 (see subsection 10 (2));
• Module F of Pension Rate Calculator A (see point 1064-F1A);
• Module F of Pension Rate Calculator C (see point 1066-F1A);
s. 5 Definitions
• Module J of Benefit Rate Calculator A (see point 1067-J2);
• Module H of Benefit Rate Calculator B (see point 1068-H1A);
• section 1116 (see subsection 1116 (7)).
Note 3: the amount in paragraph (c) is indexed annually in line with CPI increases (see sections 1191 to 1194).
Dependent child—16 and over
(4) Subject to subsections (5) to (8), a young person who has turned 16 is a dependent child of another person (in this subsection called the “adult”) if the young person is wholly or substantially dependent on the adult.
(5) A young person who has turned 16 cannot be a dependent child of another person if the other person is the young person’s partner.
Dependent child—pension and benefit recipients
(6) A young person cannot be a dependent child for the purposes of this Act if:
(a) the young person is receiving a social security pension (other than a sheltered employment allowance); or
(b) the young person is receiving a social security benefit.
Note: “social security pension” includes a rehabilitation allowance and would normally include a sheltered employment allowance as well (see subsection 23 (1)).
Dependent child—residence requirements
(7) For the purposes of this Act (other than the provisions dealing with special benefit), a young person is not to be treated as a dependent child of another person (in this subsection called the “adult”) unless:
(a) if the adult is an Australian resident:
(i) the young person is an Australian resident; or
(ii) the young person is living with the adult; or
(b) if the adult is not an Australian resident:
(i) the young person is an Australian resident; or
(ii) the young person has been an Australian resident and is living with the adult outside Australia; or
(iii) the young person had been living with the adult in Australia and is living with the adult outside Australia.
Note: for “Australian resident” see subsection 7 (2).
(8) For the purposes of determining the maximum rate of special benefit under subsection 746 (2), a young person is not to be treated as a dependent child of another person (in this subsection called the “adult”) unless:
(a) if the adult is an Australian resident:
(i) the young person is an Australian resident or a resident of Australia; or
(ii) the young person is living with the adult; or
Definitions s. 5
(b) if the adult is not an Australian resident:
(i) the young person is an Australian resident or a resident of Australia; or
(ii) the young person has been an Australian resident and is living with the adult outside Australia; or
(iii) the young person had been living with the adult in Australia and is living with the adult outside Australia.
Note: “Australian resident” is defined by subsection 7 (2) but “resident of Australia” has its ordinary meaning and is not given any special definition by this Act. Subsection 7 (3) is relevant to the question of whether a person is “residing in Australia”.
(9) For the purposes of Part 2.17, a young person who is an inmate of a mental hospital is a dependent child of another person if a determination under subsection 37 (1) in respect of the young person and the other person is in force.
Receiving full-time education—education leavers
(10) If:
(a) a person is under the age of 25 years; and
(b) the person ceases to receive full-time education at a school, college or university; and
(c) an unemployment benefit job search allowance or sickness benefit is not payable to the person because of an education leavers waiting period;
the person is to be taken to be receiving full-time education at a school, college or university during the period for the purposes of this Act (other than sections 541, 542, 612, 613, 684 and 685).
Note: for “education leavers waiting period” see subsection 23 (1).
Prescribed student child
(11) A person is a prescribed student child if:
(a) the person is a young person who has turned 16; and
(b) the young person is qualified to receive payments under a prescribed educational scheme.
(12) For the purposes of subsection (11), a young person is, subject to subsection (13), qualified to receive a payment under a prescribed educational scheme if:
(a) the young person is receiving a payment under a prescribed educational scheme; or
(b) someone else is receiving, in respect of the young person, a payment under a prescribed educational scheme; or
(c) the Secretary has not formed the opinion that:
(i) the young person will not, or would not if an application were duly made, receive a payment under a prescribed educational scheme; and
s. 5 Definitions
(ii) no other person will, or would if an application were duly made, receive, in respect of the young person, a payment under a prescribed educational scheme.
(13) For the purposes of subsection (11), a young person is not qualified to receive a payment under a prescribed educational scheme if:
(a) the young person is not receiving a payment under a prescribed educational scheme; and
(b) no other person is receiving, in respect of the young person, a payment under a prescribed educational scheme; and
(c) the Secretary is satisfied that the educational scheme rate would be less than the social security rate.
(14) For the purposes of subsection (13):
(a) the educational scheme rate is the total of the amounts that would be payable to or in respect of the young person under the prescribed educational scheme; and
(b) the social security rate is the total of the amounts that would, if the young person were not a prescribed student child, be payable in respect of the young person by way of:
(i) dependent child add-on;
(ii) guardian allowance;
(iii) family allowance;
(iv) family allowance supplement.
(15) A child is a pension increase child of a person if:
(a) the person’s pension rate includes a dependent child add-on for the child; or
(b) the person’s partner’s social security or service pension rate includes a dependent child add-on for the child.
(16) A child is a benefit increase child of a person if:
(a) a person’s benefit rate includes a dependent child add-on for the child; or
(b) the person’s partner’s social security benefit rate includes a dependent child add-on for the child.
Family payments definitions
6. (1) In this Act, unless the contrary intention appears:
“approved care organisation” means an organisation approved by the Secretary under subsection 35 (1);
“double orphan” means a young person who is a double orphan in accordance with section 993 or 994;
“FA assumed notifiable event” means an event specified in a determination in force under section 857;
Definitions s. 6
“FA child”, in relation to a person, means a dependent child of the person who is a family allowance child of the person in accordance with sections 831 to 837;
“FA notifiable event”, in relation to a person, means an event that is specified as a notifiable event, under section 858, in a notice that is given to the person under section 873;
“family payment payday” means:
(a) the Thursday that falls on 11 July 1991 ; and
(b) each succeeding alternate Thursday;
“FAS assumed notifiable event” means an event specified in a determination in force under section 916;
“FAS child”, in relation to a person, means a dependent child of the person who is a family allowance supplement child of the person in accordance with sections 891 to 894;
“FAS notifiable event”, in relation to a person, means an event that is specified as a notifiable event, under section 917, in a notice that is given to the person under section 930;
“FAS period”, in relation to family allowance supplement, means the period that:
(a) starts on the day on which the claim for the allowance is lodged; and
(b) ends on the next 31 December.
(2) For the purposes of this Act, a person is to be taken to receive family allowance for a dependent child of the person if, in calculating the rate at which family allowance is paid to the person, an FA child rate in respect of the child is included in the person’s maximum basic rate under point 1069-B1 of the Family Allowance Rate Calculator at the end of section 1069 in Part 3.7.
(3) For the purposes of this Act, a person is to be taken to receive family allowance supplement for a dependent child of the person if, in calculating the rate of family allowance supplement payable to the person, a FAS child rate in respect of the child is included in the person’s maximum basic rate under point 1070-B1 of the Family Allowance Supplement Rate Calculator at the end of section 1070 in Part 3.8.
Australian residence definitions
7. (1) In this Act, unless the contrary intention appears:
“Australian resident” has the meaning given by subsection (2);
“qualifying Australian residence” has the meaning given by subsection (5).
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
s. 7 Definitions
(i) an Australian citizen;
(ii) a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent entry permit;
(iii) a person who has been granted, or who is included in, a return endorsement, or a resident return visa, in force under that Act;
(iv) a person who:
(a) is, for the purposes of that Act, an exempt non-citizen; and
(b) is likely to remain permanently in Australia.
Note: “exempt non-citizen” is defined in section 5 of the Migration Act 1958: it covers non-citizens who are diplomats, members of armed forces, ships’ crew members and others and, under section 7 of the Act, exempt non-citizens do not need an entry permit or entry visa to enter Australia.
(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s property located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
(4) For the purposes of:
(a) Part 2.2 (age pension); and
(b) Part 2.3 (invalid pension); and
(c) Part 2.4 (wife pension); and
(d) Part 2.5 (carer pension); and
(e) Part 2.6 (sole parent pension); and
(f) Part 2.7 (widowed person allowance); and
(g) Part 2.8 (widow B pension);
continuity of residence of a claimant in Australia is not to be taken to have been interrupted by absence of the claimant in an external Territory.
(5) A person has 10 years qualifying Australian residence if and only if:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
Definitions s. 7
(b) the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
(6) In determining whether a person has 10 years qualifying residence for the purposes of:
(a) Division 1 of Part 2.2 (age pension); and
(b) Division 1 of Part 2.3 (invalid pension);
residence in an external Territory (other than Norfolk Island) is to be taken to be residence in Australia.
(7) In section 1220, a reference to a person who was formerly an Australian resident and who again becomes an Australian resident includes a reference to a person who:
(a) formerly resided in an area that was, at the time of the residence, an external Territory; and
(b) has never resided in Australia; and
(c) has arrived in Australia.
Income test definitions
8. (1) In this Act, unless the contrary intention appears:
“dispose of income” has the meaning given by section 1106;
“domestic payment” has the meaning given by subsection (3);
“earned, derived or received” has the meaning given by subsection (2);
“home equity conversion agreement”, in relation to a person, means an agreement under which the repayment of an amount paid to or on behalf of the person, or the person’s partner, is secured by a mortgage of the principal home of the person or the person’s partner;
Note: see also subsection (7).
“income”, in relation to a person, means:
(a) an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8);
Note 1: see also sections 1073-1099 (investment income).
Note 2: sections 1075 to 1077 provide that a person who has an accruing return investment or market-linked investment is to be taken to receive a particular rate of return on the investment as income.
Note 3: section 1078 provides that any return actually received by a person from an investment to which section 1075 to 1077 applies is to be treated as if it were not income of the person.
s. 8 Definitions
Note 4: where a person or a person’s partner has disposed of income, the person’s income may be taken to include the amount which has been disposed of—see sections 1106-1112.
“income amount” means:
(a) valuable consideration; or
(b) personal earnings; or
(c) moneys; or
(d) profits;
(whether of a capital nature or not);
“income from personal exertion” means an income amount that is earned, derived or received by a person by way of payment for personal exertion by the person but does not include an income amount received as compensation for the person’s inability to earn, derive or receive income through personal exertion;
“ordinary income” means income that is not maintenance income.
Note 1: for “maintenance income” see subsection 10(1).
Note 2: amounts received as a series of periodic compensation payments may result in reduction of the person’s rate of social security pension or benefit under Part 3.14: if this happens the amounts are not counted as ordinary income (see section 1171).
Earned, derived or received
(2) A reference in this Act to an income amount earned, derived or received is a reference to:
(a) an income amount earned, derived or received by any means; and
(b) an income amount earned, derived or received from any source (whether within or outside Australia).
Domestic payments
(3) A payment received by a person is a domestic payment for the purposes of this Act if:
(a) the person receives the payment on the disposal of an asset of the person; and
(b) the asset was used, immediately before the disposal, by the person or the person’s partner for private or domestic purposes; and
(c) the asset was used by the person or the person’s partner for those purposes for:
(i) a period of 12 months before the disposal; or
(ii) if the Secretary considers it appropriate—a period of less than 12 months before the disposal.
Excluded amounts—home equity conversion (not member of a couple)
(4) If a person is not a member of a couple, an amount paid to or on behalf of the person under a home equity conversion agreement is an excluded amount for the person to the extent that the total amount
Definitions s. 8
owed by the person from time to time under home equity conversion agreements does not exceed $40,000.
Excluded amounts—home equity conversion (member of a couple)
(5) If a person is a member of a couple, an amount paid to or on behalf of the person or the person’s partner under a home equity conversion agreement is an excluded amount for the person to the extent that the total amount owed by the person and the person’s partner under home equity conversion agreements from time to time does not exceed $40,000.
Home equity conversion (amount owed)
(6) For the purposes of this Act, the amount owed by a person under a home equity conversion agreement is the principal amount secured by the mortgage concerned and does not include:
(a) any amount representing mortgage fees; or
(b) any amount representing interest; or
(c) any similar liability whose repayment is also secured by the mortgage.
Home equity conversion (principal home)
(7) For the purposes of the definition of “home equity conversion agreement” in subsection (1), an asset cannot be a person’s principal home unless the person or the person’s partner has a beneficial interest (but not necessarily the sole beneficial interest) in the asset.
Excluded amounts—general
(8) The following amounts are not income for the purposes of this Act:
(a) a payment under this Act;
(b) if the person has not reached pensionable age—any return on a compulsorily preserved superannuation benefit of the person;
(c) the value of emergency relief or like assistance;
(d) the value of any assistance that:
(i) is provided by an eligible organisation within the meaning of the Homeless Persons Assistance Act 1974; and
(ii) is assistance that consists of providing:
(a) accommodation or meals; or
(b) a ticket, voucher or token that may be exchanged for accommodation or meals;
(e) a payment under the Handicapped Persons Assistance Act 1974;
(f) a payment under Part III of the Disability Services Act 1986 or the value of any rehabilitation program (including any follow-up program) provided under that Part;
s. 8 Definitions
(g) a payment of domiciliary nursing care benefit under Part Vb of the National Health Act 1953;
(h) a payment under a law of the Commonwealth, being a law having an object of assisting persons to purchase or build their own homes;
(j) a payment made to the person for or in respect of a dependent child of the person;
(k) insurance or compensation payments made by reason of the loss of, or damage to, buildings, plant or personal effects;
(m) money from an investment that is:
(i) an investment of payments of the kind referred to in paragraph (k); and
(ii) an investment for:
(a) a period of not more than 12 months after the person receives the payments; or
(b) if the Secretary thinks it appropriate—of 12 months or more after the person receives those payments;
(n) an amount paid:
(i) by the Federal Republic of Germany under the laws of
that Republic; or (ii) by a State of the Federal Republic of Germany under the laws of that State;
by way of compensation for a victim of National Socialist persecution;
(p) an amount paid by the Republic of Austria under the laws of that Republic by way of compensation to a victim of National Socialist persecution;
(q) in the case of a person who pays or who is liable to pay rent, a payment by way of rent subsidy made by the Commonwealth, by a State or Territory or by an authority of the Commonwealth or of a State or Territory to or on behalf of the person who pays or who is liable to pay rent;
(r) a payment received by a trainee in full-time training under a program included in the programs known as the Labour Force Programs, to the extent that the payment includes one or more of the following amounts:
(i) an amount calculated by reference to a rate of unemployment benefit or job search allowance;
(ii) an amount known as the training component;
(iii) an amount by way of a living away from home allowance;
(s) a payment received by a trainee in part-time training under a program included in the programs known as the Labour Force Program, if the trainee is also receiving:
Definitions s. 8
(i) an age pension; or
(ii) an invalid pension; or
(iii) a wife pension; or
(iv) a carer pension; or
(v) a sole parent pension; or
(vi) a sheltered employment allowance; or
(vii) a rehabilitation allowance;
(t) a payment received by the person under the scheme known as the New Enterprise Incentive Scheme;
(u) a benefit under a law of the Commonwealth that relates to the provision of:
(i) pharmaceutical, sickness or hospital benefits; or
(ii) medical or dental services;
(v) a payment (other than a periodical payment or a payment representing an accumulation of instalments) made for or in respect of expenses incurred by a person for hospital, medical, dental or similar treatment;
(w) in the case of a member of:
(i) the Australian Naval Reserve; or
(ii) the Naval Emergency Reserve Forces; or
(iii) the Australian Army Reserve; or
(iv) the Australian Air Force Reserve; or
(v) the Air Force Emergency Force; or
(vi) the Regular Army Emergency Reserve;
the pay and allowances paid to the person as such a member (other than pay and allowances in respect of continuous full-time service) and, in the case of a member of a Force referred to in subparagraph (ii), (v) or (vi), any gratuity paid to the person by reason of a calling out for continuous service of that Force or of a part of that Force;
(y) a payment by way of:
(i) service pension; or
(ii) attendant allowance under section 98 of the Veterans’ Entitlements Act; or
(iii) recreation allowance under section 104 of that Act; or
(iv) an allowance for the running and maintenance of a motor vehicle under the Vehicle Assistance Scheme referred to in section 105 of that Act; or
(v) decoration allowance under section 102 of that Act; or
(vi) Victoria Cross allowance under section 103 of that Act; or
(vii) clothing allowance under section 97 of that Act; or
s. 8 Definitions
(viii) a bereavement payment under Division 5a of Part III, or section 98a of that Act; or
(ix) a funeral benefit under Part VI of that Act; or
(x) a bereavement payment under section 24b of the Seamen’s War Pensions and Allowances Act 1940; or
(xi) a funeral benefit under the Seamen’s War Pensions and Allowances Regulations;
(z) a periodical payment by way of gift or allowance, or a periodical benefit by way of gift or allowance, from the person’s father, mother, son, daughter, brother or sister;
(za) the value of board or lodging received by the person;
(zb) a domestic payment;
(zc) so much of a payment received by the person as is, in accordance with an agreement between the Commonwealth and a foreign country, applied in reduction of the amount of pension, benefit or allowance that would otherwise be payable to the person under this Act;
(zd) a payment made to the person by the Government of New Zealand, being a payment known as:
(i) accommodation benefit; or
(ii) disability allowance; or
(iii) home help payment; or
(iv) special benefit; or
(v) training incentive allowance;
(ze) a payment made to the person by the Government of the United Kingdom, being a payment known as:
(i) clothing allowance; or
(ii) constant attendance allowance; or
(iii) decoration allowance; or
(iv) mobility supplement;
(zf) a payment of an education supplement to a person who:
(i) is receiving:
(a) a social security or service pension; or
(b) a social security benefit; and
(ii) would, if the person were not receiving that pension or benefit, be eligible to receive payments under:
(a) the AUSTUDY scheme; or
(b) the ABSTUDY Tertiary Scheme.
Note: “social security pension” includes a sheltered employment or rehabilitation allowance.
Definitions s. 9
Investment income definitions
9. (1) In this Act, unless the contrary intention appears:
“accruing return investment” means an arrangement by a person that consists of or includes an investment of money, being an investment:
(a) that produces:
(i) a fixed rate or quantifiable rate of return, whether or not that rate Varies from time to time; or
(ii) a rate of return that may be reasonably approximated; and
(b) the value of which from time to time is unlikely to decrease as a result of market changes;
Note: a superannuation benefit may be taken to be an investment—see subsection (6).
“annual rate of return” has the meaning given by subsection (3);
“approved deposit fund” means a fund that is an approved deposit fund for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;
“assessable growth component”, in relation to an amount of superannuation benefit, means so much (if any) of the return as is attributable to the assessable period;
“assessable period”, in relation to a person, means any period during which the person received:
(a) a social security or service pension; or
(b) a social security benefit;
except any such period that occurs before a continuous period of at least 2 years during which the person did not receive such a pension or benefit;
Note: “social security pension” includes a sheltered employment or rehabilitation allowance.
“deductible amount”, in relation to an immediate annuity or a superannuation pension, is the amount that would be the deductible amount in relation to the annuity or superannuation pension in relation to a year of income under subsection 27h (2) of the Income Tax Assessment Act if “undeducted purchase price” had the same meaning in that subsection as “non-assessable purchase price” has in this Act;
“deferred annuity” means an annuity that is a deferred annuity for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;
“determination of entitlement”, in relation to a person, means a determination:
(a) whether the person is qualified for a pension, benefit or allowance under this Act; or
s. 9 Definitions
(b) whether a pension, benefit or allowance under this Act is payable to the person; or
(c) of the rate at which a pension, benefit or allowance under this Act is payable to the person;
“eligible investment” means an investment that satisfies all of the following conditions:
(a) money or property invested is paid or transferred by the investor directly or indirectly to a body corporate or into a trust fund;
(b) the assets that represent money or property invested (in this definition called the “investment assets”) are held otherwise than in the names of investors;
(c) the investor does not, either alone or jointly with a relative or relatives of the investor, have effective control over the management of the investment assets;
(d) the investor has a legally enforceable right to share in any distribution of the income or profits derived from the investment assets;
“friendly society” means:
(a) a society registered as a friendly society under a law in force in a State or Territory; or
(b) a society that had, before 13 December 1987, been approved for the purpose of the definition of “friendly society” in subsection 115 (1) of the 1947 Act;
and, for the purpose of the definition of “market-linked investment” in this subsection, includes:
(c) a society that has been approved for the purposes of the definition of “friendly society” in subsection 115 (1) of the 1947 Act on or after 13 December 1987; and
(d) a society that is an approved friendly society for the purposes of this Act (see section 29);
“fund manager”, in relation to an investment product, means the person or body specified, in relation to that investment product, in a notice under subsection (2);
“immediate annuity” means an annuity that is presently payable;
Note: for “presently payable” see subsection (5).
“investment product” means a class of market-linked investments specified in a notice under subsection (2);
“market-linked investment” means:
(a) an investment in:
(i) an approved deposit fund; or
(ii) a deferred annuity; or
(iii) a public unit trust; or
(iv) an insurance bond; or
Definitions s. 9
(b) an investment with a friendly society; or
(c) an eligible investment other than an investment referred to in paragraph (a) or (b); or
(d) a superannuation benefit vested in a person and held in a superannuation fund (unless a superannuation pension funded by that benefit is presently payable to the person);
other than an investment that is:
(e) an accruing return investment; or
(0 an investment consisting of the acquisition of real property, stock or shares;
“non-assessable purchase price”:
(a) in relation to an immediate annuity other than a roll-over immediate annuity—has the same meaning as “undeducted purchase price” has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act; or
(b) in relation to a roll-over immediate annuity—means the roll-over purchase price; or
(c) in relation to a superannuation pension—has the same meaning as “undeducted purchase price” has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;
“public unit trust” means a unit trust that:
(a) except where paragraph (b) applies—was, in relation to the unit trust’s last year of income, a public unit trust for the purposes of Division 6b of Part III of the Income Tax Assessment Act; or
(b) where the first year of income of the unit trust has not yet finished—has, at some time since the trust was established, satisfied at least one of the paragraphs of subsection 102g (1) of the Income Tax Assessment Act;
“purchase price”, in relation to an annuity, has the meaning that it has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;
“rate of return decision”, in relation to an investment product, means:
(a) a refusal, on application under subsection 1089 (1), to make a determination under subsection 1088 (1) of a rate of return on market-linked investments included in the investment product; or
(b) a determination under subsection 1088 (1) of a rate of return on market-linked investments included in the investment product; or
(c) the revocation under section 1092 of a determination of
s. 9 Definitions
a rate of return on market-linked investments included in the investment product.
Note: this definition relates to Subdivision C of Part 3.10 (Market-Linked Investments) and Parts 6.2 and 6.4 (Review by the Social Security Appeals Tribunal and the Administrative Appeals Tribunal).
“relevant number”, in relation to an annuity, has the meaning that it has in section 27h of the Income Tax Assessment Act;
“residual capital value”, in relation to an annuity, has the meaning that it has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;
“return”, in relation to an investment (including an investment in the nature of superannuation), means any increase, whether of a capital or income nature and whether or not distributed, in the value or amount of the investment;
“rolled-over amount”, in relation to an annuity, has the meaning that it has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act;
“roll-over immediate annuity”, means an immediate annuity the purchase price of which consists wholly of a rolled-over amount or rolled-over amounts;
“roll-over purchase price”, in relation to a roll-over immediate annuity, means:
(a) except where paragraph (b) applies—either the sum of the following amounts:
(i) the amount that would, under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act, be the undeducted purchase price of the annuity;
(ii) the amount that is the upper limit under section 159sg of the Income Tax Assessment Act for the year of income in which the annuity was purchased;
or the purchase price of the annuity, whichever is less; or
(b) where:
(i) the roll-over immediate annuity, and another rollover immediate annuity, have been purchased using the same rolled-over amount or rolled-over amounts in the name of the same person; and
(ii) the roll-over purchase price of the other roll-over immediate annuity has previously been worked out under paragraph (a) for the purposes of this Act;
the amount that would, under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act, be the undeducted purchase price of the annuity;
Definitions s. 9
“statutory rate of return” means 11% per year or such lower percentage per annum as is specified in a notice in force under subsection 1087 (1);
“superannuation benefit”, in relation to a person, means a benefit arising directly or indirectly from amounts contributed (whether by the person or by any other person) to a superannuation fund in respect of the person;
“superannuation fund” means a superannuation fund as defined for the purposes of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act, other than a fund covered by subparagraph (ia) of the definition of “superannuation fund” in subsection 27a (1) of that Act;
“superannuation pension” has the same meaning as it has in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act.
(2) The Secretary, by notice in writing published in the Gazette:
(a) may specify a class of market-linked investments that constitute an investment product; and
(b) is to specify, in relation to each investment product so identified, a person or body for the purposes of the definition of “fund manager” in subsection (1).
(3) Where the value or amount at a particular time of a market-linked investment included in an investment product is equal to or less than the value or amount of that market-linked investment 12 months previously, the annual rate of return at that first-mentioned time for market-linked investments included in that investment product is to be taken, for the purposes of a determination under this Act, to be 0%.
(4) A reference in this Act to the Secretary refusing, on application under section 1089, to make a determination under subsection 1088 (1) does not include a reference to the Secretary refusing, pursuant to subsection 1090 (2), to consider such an application.
(5) For the purposes of this Act, an annuity or superannuation pension is to be taken to be presently payable at all times after, but not before, the commencement of the first period in respect of which the annuity or superannuation pension is payable.
(6) For the purposes of the definition of ‘accruing return investment’ in subsection (1), a superannuation benefit vested in a person that is held in a superannuation fund is to be taken to be an investment of that person, unless a superannuation pension funded by that benefit is presently payable to the person.
(7) For the purposes of this Act, a person’s superannuation benefit is compulsorily preserved if the person’s access to the benefit is restricted under:
s. 9 Definitions
(a) paragraph 23 (ja) of the Income Tax Assessment Act as in force at any time before 18 December 1987; or
(b) section 23fa of the Income Tax Assessment Act as in force at any time before 18 December 1987; or
(c) regulations made under section 7 or 8 of the Occupational Superannuation Standards Act 1987; or
(d) a provision of the trust deed or contract concerned that imposes restrictions corresponding to the restrictions imposed by a provision of the regulations made under section 7 or 8 of the Occupational Superannuation Standards Act 1987.
Maintenance income definitions
10. (1) In this Act, unless the contrary intention appears:
“capitalised maintenance income”, in relation to a person, means maintenance income of the person:
(a) that is neither a periodic amount nor a benefit provided on a periodic basis; and
(b) the amount or value of which exceeds $1,500;
Note 1 : see also section 1116 (apportionment of capitalised maintenance income).
Note 2: if maintenance income is caught by paragraphs (a) and (b) of the definition, the whole amount or value of the maintenance income is capitalised maintenance income, not just the part of the maintenance income that exceeds the $1,500 limit.
“cash maintenance”, in relation to a person, means maintenance income of the person that consists of the amount of a payment received by the person or by a dependent child of the person;
Note: a “payment” of an “amount” would have to be a payment of money or the equivalent of a payment of money (e.g. a cheque, money order or electronic funds transfer (EFT)).
“child support” means financial support under the Child Support (Assessment) Act 1989 and includes financial support:
(a) by way of lump sum payment; or
(b) by way of transfer or settlement of property;
“maintenance” includes child support;
“maintenance agreement” means a written agreement (whether made within or outside Australia) that provides for the maintenance of a person (whether or not it also makes provision in relation to other matters), and includes such an agreement that varies an earlier maintenance agreement;
“maintenance income”, in relation to a person, means:
(a) child maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the maintenance of a dependent child of the person and is received from:
(i) a parent of the child; or
Definitions s. 10
(ii) the partner or former partner of a parent of the child; or
(b) partner maintenance—that is, the amount of a payment or the value of a benefit that is received by the person for the person’s own maintenance and is received from the person’s partner or former partner; or
(c) direct child maintenance—that is, the amount of a payment or the value of a benefit that is received by a dependent child of the person for the child’s own maintenance and is received from:
(i) a parent of the child; or
(ii) the partner or former partner of a parent of the child;
Note: see also subsection (3) and section 1116 (capitalised maintenance income).
“non-cash housing maintenance”, in relation to a person, means maintenance income of the person that is not cash maintenance and is received in relation to the provision of a residence that is, or is to be, the person’s principal home;
Note: see also subsections (4) and (5) and section 1117.
“special maintenance income”, in relation to a person, means:
(a) non-cash housing maintenance of the person; or
(b) non-cash maintenance of the person (other than noncash housing maintenance or capitalised maintenance income) received from the person’s partner or former partner during the period of 6 months following the person’s separation from the partner or former partner; or
(c) maintenance income of the person provided in relation to expenses arising directly from a physical, intellectual or psychiatric disability, or a learning difficulty, of a dependent child of the person where the disability or difficulty is likely to be permanent or to last for an extended period.
Note: see also subsection 1117 (1) (non-cash housing maintenance—value of substitute for former family home).
(2) In working out whether a young person is a dependent child for the purposes of subsection (1), disregard subsection 5 (3).
(3) For the purposes of the definition of “maintenance income” in subsection (1):
(a) a payment received under subsection 76 (1) of the Child Support (Registration and Collection) Act 1988 in relation to a registered maintenance liability (within the meaning of that Act) is taken to be received from the person who is the payer (within the meaning of that Act) in relation to the liability; and
s. 10 Definitions
(b) a reference to a benefit received by a person includes a reference to a benefit received by the person because of a payment made to, or a benefit conferred on, another person (including a payment made or benefit conferred under a liability owed to the other person); and
(c) a reference to a payment or benefit received from a person includes a reference to a payment or benefit received:
(i) directly or indirectly from the person; and
(ii) out of any assets of, under the control of, or held for the benefit of, the person; and
(iii) from the person under or as a result of a court order, a court registered or approved maintenance agreement or otherwise.
(4) For the purposes of the definition of “non-cash housing maintenance” in subsection (1), maintenance received in relation to the provision of a residence includes maintenance consisting of:
(a) a benefit received because of the transfer or settlement of a right or interest in relation to the residence; and
(b) where there is a secured housing loan on the residence—a benefit received because of:
(i) the payment of interest, charges or other amounts under the loan; or
(ii) the repayment of amounts borrowed under the loan; and
(c) a benefit received because of the payment of rent (including Government rent), or a like payment, in relation to the residence.
(5) For the purposes of paragraph (4) (b), there is a secured housing loan on a residence if:
(a) there is a loan that is secured by a mortgage or other interest in relation to the residence; and
(b) the sole or principal purpose of the loan is to enable the residence, or a right or interest in relation to the residence, to be acquired.
Assets test definitions
11. (1) In this Act, unless the contrary intention appears:
“asset” means property (including property outside Australia);
“disposes of assets”:
(a) has its ordinary meaning in Division 4 of Part 3.12 (pension loans scheme); and
(b) has the meaning given by section 1123 in the rest of the Act;
“exempt assets” means assets described in any of paragraphs 1118 (1) (a) to (r);
Definitions s. 11
“granny flat interest” has the meaning given by subsection (9);
“homeowner” has the meaning given by subsection (4);
“reasonable security of tenure” has the meaning given by subsection (8);
“pension year” has the meaning given by subsection (10);
“PLS assets”, in relation to a person, means all the person’s assets (other than exempt assets):
(a) that cannot readily be sold; or
(b) that:
(i) the person does not wish to sell; and
(ii) are not of a kind that the person could reasonably be expected to sell;
Note: this definition is relevant only to the pension loans scheme (Part 3.12, Division 4).
“principal home” has the meaning given by subsections (5), (6) and (7);
“unrealisable asset” has the meaning given by subsections (12) and (13);
“value” has the meaning given by subsections (2) and (3).
Note: see also sections 1118 (certain assets to be disregarded in calculating the value of a person’s assets), 1121 (effect of charge or encumbrance on value of property) and 1145-1157 (retirement villages).
(2) A reference in this Act to the value of a particular asset of a person is, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of the person’s interest in the asset.
(3) A reference in this Act to the value of a charge or encumbrance on an asset of a person is, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of that charge or encumbrance in so far as it relates to the person’s interest in the asset.
Homeowner
(4) For the purposes of this Act:
(a) a person who is not a member of a couple is a homeowner if:
(i) the person has a right or interest in the person’s principal home; and
(ii) the person’s right or interest in the home:
(a) gives the person reasonable security of tenure in the home; and
(b) is not a granny flat interest; and
(b) a person who is a member of a couple is a homeowner if:
(i) the person, or the person’s partner, has a right or interest in one residence that is:
s. 11 Definitions
(a) the person’s principal home; or
(b) the partner’s principal home; or
(c) the principal home of both of them; and
(ii) the person’s right or interest, or the partner’s right or interest, in the home:
(a) gives the person or the person’s partner reasonable security of tenure in the home; and
(b) is not a granny flat interest; and
(c) a person (whether a member of a couple or not) is a homeowner if:
(i) the person has sold the person’s principal home not more than 12 months previously; and
(ii) the person is likely to apply some or all of the proceeds of the sale in acquiring another residence that is to be the person’s principal home.
Note: see also section 1145-1157 (retirement villages).
Principal home
(5) A reference in this Act to the principal home of a person includes a reference to:
(a) if the principal home is a dwelling-house—the private land adjacent to the dwelling-house to the extent that the private land, together with the area of the ground floor of the dwelling-house, does not exceed 2 hectares; or
(b) if the principal home is a flat or home unit—a garage or storeroom that is used primarily for private or domestic purposes in association with the flat or home unit.
Note: for “private land” see subsection (6).
(6) A reference in subsection (5) to private land adjacent to a dwelling-house is a reference to land that is adjacent to the dwelling-house and that is used primarily for private or domestic purposes in association with that dwelling-house.
(7) A residence of a person is to be taken to continue to be the person’s principal home during:
(a) any period (not exceeding 12 months) during which the person is temporarily absent from the residence; and
(b) any period (not exceeding 2 years) during which the person is:
(i) residing in a benevolent home or in premises at which accommodation is provided exclusively or principally for persons who have a mental disability; or
(ii) residing in a nursing home; or
(iii) a nursing-home type patient, within the meaning of the Health Insurance Act 1973, of a hospital;
Definitions s. 11
Note: for “benevolent home” and “nursing home” see subsection 23 (1).
(8) If a person has a right or interest in the person’s principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home.
Granny flat interest
(9) A person has a granny flat interest in the person’s principal home if:
(a) the residence that is the person’s principal home is a private residence; and
(b) the person has acquired for valuable consideration or has retained:
(i) a right to accommodation for life in the residence; or
(ii) (ii) a life interest in the residence.
Pension year—disposal of assets
(10) A reference in sections 1123 to 1128 (disposal of assets) to a pension year, in relation to a person who is receiving:
(a) a social security or service pension; or
(b) a social security benefit; or
(c) a family allowance supplement;
is a reference to:
(d) if the person is a member of a couple and the person and the person’s partner were, immediately before they became members of that couple, receiving such a pension, benefit or allowance— the period of 12 months commencing on the day on which they became members of that couple; or
(e) in a case (not being a case referred to in paragraph (d)) where the person is a member of a couple and the person’s partner is receiving such a pension, benefit or allowance—the period of 12 months commencing on the day on which such a pension, benefit or allowance first became payable to the person or to the person’s partner, whichever was the earlier; or
(f) in any other case—the period of 12 months commencing on the day on which such a pension, benefit or allowance first became payable;
and to each succeeding and each preceding period of 12 months.
(11) The lending of money after 27 October 1986 is not a disposition of an asset for the purposes of section 1123.
Unrealisable asset
(12) An asset of a person is an unrealisable asset if:
(a) the person cannot sell or realise the asset; and
s. 11 Definitions
(b) the person cannot use the asset as a security for borrowing.
(13) For the purposes of the application of this Act to a social security pension, an asset of a person is also an unrealisable asset if:
(a) the person could not reasonably be expected to sell or realise the asset; and
(b) the person could not reasonably be expected to use the asset as a security for borrowing.
Retirement villages definitions
12. (1) In this Act:
“actual value” has the meaning given by subsection (5);
“retirement village” has the meaning given by subsections (3) and (4).
(2) A person is a member of an ordinary couple with different principal homes if:
(a) the person is a member of a couple; and
(b) the person does not share the person’s principal home with the person’s partner; and
(c) the person is not a member of an illness separated couple.
(3) Premises constitute a retirement village for the purposes of this Act if:
(a) the premises are residential premises; and
(b) accommodation in the premises is primarily intended for persons who are at least 55 years old; and
(c) the premises consist of:
(i) one or more of the following kinds of accommodation:
(b) serviced units;
(c) hostel units; and
(ii) communal facilities for use by occupants of the units referred to in subparagraph (i).
(4) Residential premises are also to be taken to constitute a retirement village for the purposes of this Act if the Secretary is satisfied that the residential premises have similar functions to those referred to in subsection (3).
(5) In Division 5 of Part 3.12 (sections 1145 to 1157), a reference to the actual value of the assets of a member of a couple is a reference to the value of the assets that are actually assets of the person rather than the person’s partner, that is, the value that would be the value of the person’s assets apart from the couple’s assets deeming provisions.
(6) In subsection (5):
“couple’s assets deeming provisions” means:
Definitions s. 12
(a) Pension Rate Calculator A (point 1064-G2); and
(b) Pension Rate Calculator C (point 1066-G2); and
(c) section 531; and
(d) section 602; and
(e) section 672; and
(f) subsection 895 (2); and
(g) section 734; and
(h) Fringe Benefits Assets Test Calculator (point 1072-3).
Rent definitions
13. (1) In this Act, unless the contrary intention appears:
“amount of rent paid or payable” has the meaning given by subsections (6) and (7);
“board”, when used in the expression “board and lodging”, means the provision of meals on a regular basis in connection with the provision of lodging;
“Government rent” means rent payable to any of the following authorities:
(a) The Housing Commission of New South Wales;
(b) the Director, within the meaning of the Housing Act 1983 of the State of Victoria;
(c) The Queensland Housing Commission;
(d) The Corporation of the Director of Aboriginal and Islanders Advancement established by a law of Queensland;
(e) the South Australian Housing Trust;
(f) The State Housing Commission established by a law of Western Australia;
(g) the Director-General of Housing and Construction holding office under a law of Tasmania;
(h) the Northern Territory Housing Commission;
(j) The Commissioner for Housing within the meaning of the Housing Assistance Act 1987 of the Australian Capital Territory;
“ineligible homeowner” means a homeowner other than:
(a) a person who is a homeowner by virtue of paragraph 11 (4) (c) (proceeds of sale of principal home disregarded for 12 months); or
(b) a person who:
(i) is a member of a couple; and
(ii) is in approved respite care; and
(iii) has remained, or in the Secretary’s opinion is likely
s. 13 Definitions
to remain, in approved respite care for at least 14 consecutive days; or
(c) a person who is residing in a nursing home but is not residing in a retirement village; or
(d) a person who pays amounts for the use of a site for a caravan or other vehicle, or a structure, that is the person’s principal home; or
(e) a person who pays amounts for the right to moor a vessel that is the person’s principal home;
Note: for “approved respite care” see subsection 4 (9), for “retirement village” see subsections 12 (3) and (4), for “homeowner” see subsection 11 (4) and for “principal home” see subsections 11 (5), (6) and (7).
“rent” has the meaning given by subsections (2) and (4);
“residing in a nursing home” has the meaning given by subsection (8).
(2) Amounts are rent in relation to the person if:
(a) the amounts are payable by the person:
(i) as a condition of occupancy of premises, or of a part of premises, occupied by the person as the person’s principal home; or
(ii) for services provided in a retirement village that is the person’s principal home; or
(iii) if the person is residing in a nursing home that is the person’s principal home—for accommodation in the nursing home; or
(iv) for lodging in premises that are the person’s principal home; or
(v) for the use of a site for:
(a) a caravan or other vehicle; or
(b) a structure;
occupied by the person as the person’s principal home;
or
(vi) for the right to moor a vessel that is occupied by the person as the person’s principal home; and
(b) either:
(i) the amounts are payable every 3 months or more frequently; or
(ii) the amounts are payable at regular intervals (greater than 3 months) and the Secretary is satisfied that the amounts should be treated as rent for the purposes of this Act.
Note: for “retirement village” see subsections 12 (3) and (4) and for “principal home” see subsections 11 (5), (6) and (7).
(3) Subparagraphs (2) (a) (ii) to (vi) (inclusive) do not limit the generality of subparagraph (2) (a) (i).
Definitions s. 13
(4) Amounts are rent in relation to a person if:
(a) the person is a member of a couple; and
(b) the amounts are paid by the person, or the person’s partner, for approved respite care for the person in a nursing home; and
(c) the person has remained, or is in the Secretary’s opinion likely to remain, in the approved respite care for at least 14 consecutive days.
Note: for “approved respite care” see subsection 4 (9).
(5) If a law of a State, the Northern Territory or the Australian Capital Territory alters the name of an authority referred to in the definition of “Government rent” in subsection (1), a reference to that authority in that definition is to be construed as a reference to the authority under the new name.
Board and lodging
(6) Where:
(a) a person pays, or is liable to pay, amounts for board and lodging; and
(b) it is not possible to work out the part of each of those amounts that is paid or payable for lodging;
the amount of rent paid or payable by the person is, for the purposes of this Act, to be taken to be two-thirds of the amounts paid or payable as mentioned in paragraph (a).
Nursing homes
(7) Where:
(a) a person who is residing in a nursing home pays, or is liable to pay, amounts for accommodation and other services in the nursing home; and
(b) it is not possible to work out the part of each of those amounts that is paid or payable in respect of accommodation;
the amount of rent paid or payable by the person is, for the purposes of this Act, to be taken to be two-thirds of the amounts paid or payable as mentioned in paragraph (a).
(8) Unless the contrary intention appears, a reference in this Act to a person residing in a nursing home is a reference to a person who is:
(a) residing in a benevolent home or in premises at which accommodation is provided exclusively or principally for persons who have a mental disability; or
(b) residing in premises that are:
(i) an approved nursing home for the purposes of the National Health Act 1953 or the Nursing Homes Assistance Act 1974; or
s. 13 Definitions
(ii) an approved home for the purposes of the Aged or Disabled Persons Homes Act 1954; or
(iii) an approved hostel for the purposes of the Aged or Disabled Persons Hostels Act 1972; or
(c) a nursing-home type patient, within the meaning of the Health Insurance Act 1973, of a hospital; or
(d) residing in premises made available for the accommodation of the person by an approved organisation providing hostel care services or personal care services to the person for the purposes of Part III of the Aged or Disabled Persons Homes Act 1954.
Note: for “benevolent home” see subsection 23 (1).
Remote area definitions
14. (1) In this Act, unless the contrary intention appears:
“physically present in a remote area” has the meaning given by subsection (2);
“remote area” means:
(a) those parts of Australia referred to in paragraphs 1 and 2 of Part I of Schedule 2 to the Income Tax Assessment Act; and
(b) the Territory of Cocos (Keeling) Islands; and
(c) the Territory of Christmas Island.
(2) If:
(a) a person’s usual place of residence is in the remote area; and
(b) the person is absent from the remote area for a period;
the person is to be taken to be physically present in the remote area during:
(c) if the period does not exceed 8 weeks—the whole of that period; or
(d) if the period exceeds 8 weeks—the first 8 weeks of that period.
(3) Subsection (2) does not apply to a person in respect of a period during which the person is outside Australia.
UB and JSA work test definitions
15. (1) In this Act, unless the contrary intention appears:
“approved organisation” means an organisation approved under section 28;
“approved short-term vocational course” means a course approved under section 26;
“approved vocational course” means a course approved under section 27;
“average male full-time weekly earnings”, in relation to employment undertaken during a calendar year, means the amount set out under the headings “males—full-time adults—average weekly
Definitions s. 15
ordinary time earnings” in the document entitled “Average Weekly Earnings, Australia, Preliminary” published by the Australian Statistician most recently before 1 January in that calendar year;
“qualified beneficiary” has the meaning given by subsection (2).
(2) A person is a qualified beneficiary for a period if one or a combination of the following has been payable to the person for that period:
(a) a social security benefit;
(b) a sole parent’s pension;
(c) a payment as a trainee in full-time training under a program included in the programs known as Labour Force Programs.
Note: a person is required to be a qualified beneficiary under sections 519, 522 to 527 and 597 and 598.
UB and JSA industrial action definitions
16. (1) In this Act, unless the contrary intention appears:
“industrial action” means any of the following that is not authorised by the employer of the person concerned:
(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, a result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work or on acceptance of, or offering for, work;
(c) a failure or refusal by a person to attend for work or a failure or refusal to perform any work at all by a person who attends for work;
Note: see also subsection (2).
“trade union” includes any organisation or association of employees (whether corporate or unincorporate) that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment;
Note: see also subsection (3).
“unemployment”, in relation to a person, includes:
(a) unemployment of the person arising from:
(i) a person or persons being, or having been, engaged in industrial action; and
(ii) the termination of the person’s employment; and
(b) a situation where the person:
s. 16 Definitions
(i) is, or has been, stood down from the person’s employment or work; or
(ii) is, or has been, suspended from the person’s employment or work.
Industrial action
(2) For the purposes of the definition of “industrial action” in subsection (1), conduct that relates to part only of the duties that a person is required to perform in the course of his or her employment is capable of being industrial action.
Trade unions divided into branches
(3) If a trade union is divided into branches (whether or not the branches are themselves trade unions), persons who are members of the respective branches are taken to be members of the trade union.
Compensation recovery definitions
17. (1) In this Act, unless the contrary intention appears:
“average weekly earnings”, in relation to a lump sum preclusion period, means the amount:
(a) estimated as the average total weekly earnings, during a particular month, of all male employees in Australia; and
(b) last published by the Australian Statistician before the lump sum compensation payment became payable;
Note: for “lump sum preclusion period” see subsections 1165 (3) to (6).
“compensation” has the meaning given by subsection (2);
“compensation part”, in relation to a lump sum compensation payment, has the meaning given by subsections (3) and (4);
“compensation payer” means:
(a) a person who is liable to make a compensation payment; or
(b) an authority of a State or Territory that has determined that it will make a payment by way of compensation to another person, whether or not the authority is liable to make the payment;
“payment for a period” has the meaning given by subsection (7);
“periodic payments period”, in relation to a series of periodic payments, means the period in respect of which the payments are, or are to be, made;
“potential compensation payer” means a person who, in the Secretary’s opinion, may become a compensation payer;
“receives compensation” has the meaning given by subsection (5).
Definitions s. 17
Compensation
(2) For the purposes of this Act, compensation means:
(a) a payment of damages; or
(b) a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d) any other compensation or damages payment, other than a payment to which the recipient has contributed;
(whether the payment is in the form of the whole or part of a lump sum or in the form of a series of periodic payments) that is:
(e) made wholly or partly in respect of lost earnings or lost capacity to earn; and
(f) made either within or outside Australia.
Compensation part of a lump sum
(3) For the purposes of this Act, the compensation part of a lump sum compensation payment is:
(a) 50% of the payment if the following circumstances apply:
(i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to disease or injury; and
(ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise, on or after 9 February 1988; or
(b) if those circumstances do not apply—so much of the payment as is, in the Secretary’s opinion, in respect of lost earnings or lost capacity to earn.
(4) Where a person:
(a) has received periodic compensation payments in respect of lost earnings or lost capacity to earn; and
(b) after receiving those payments, receives a lump sum compensation payment in respect of the lost earnings or lost capacity to earn (in this subsection called the “LSP”); and
(c) because of receiving the LSP, becomes liable to repay an amount (in this subsection called the Repaid Periodic Compensation Payment—“RPCP”) equal to the periodic compensation payments received;
then, for the purposes of subsection (3), the amount of the lump sum compensation payment is:
s. 17 Definitions
LSP - RPCP
Receives compensation
(5) A person receives compensation whether he or she receives it directly or whether another person receives it, on behalf of, or at the direction of the first person.
Insurer
(6) A reference in Part 3.14 to an insurer who is, under a contract of insurance, liable to indemnify a compensation payer or a potential compensation payer against a liability arising from a claim for compensation includes a reference to:
(a) an authority of a State or Territory that is liable to indemnify a compensation payer against such a liability, whether the authority is so liable under a contract, a law or otherwise; or
(b) an authority of a State or Territory that determines to make a payment to indemnify a compensation payer against such a liability, whether or not the authority is liable to do so.
Payment for a period
(7) A reference in Part 3.14 to a person receiving a payment for a period is a reference to:
(a) where the payment is a pension payment—a person receiving a payment during the period; or
(b) where the payment is a benefit payment—a person receiving the payment in respect of the period; or
(c) where the payment is a sheltered employment allowance—a person receiving the payment during the period; or
(d) where the payment is a rehabilitation allowance—a person receiving the payment during the period.
Incentive allowance definitions
18. In this Act, unless the contrary intention appears:
“activity therapy centre” means premises at which approved activity therapy is provided;
“adult training centre” means premises at which approved training is provided;
“approved activity therapy” has the same meaning as in the Handicapped Persons Assistance Act 1974 immediately before 5 June 1987;
Note: on 5 June 1987 the Disability Services (Transitional Provisions and Consequential Amendments) Act 1986 repealed the definition in the Handicapped Persons Assistance Act 1974.
“approved training” has the same meaning as in the Handicapped Persons Assistance Act 1974 immediately before 5 June 1987;
Definitions s. 18
Note: on 5 June 1987 the Disability Services (Transitional Provisions and Consequential Amendments) Act 1986 repealed the definition in the Handicapped Persons Assistance Act 1974.
“independent living training” means training to assist persons with disabilities to develop or maintain the personal skills and self-reliance necessary to enhance their independence, and self-reliance, in the community, being training or training included in a class of training approved by the Secretary under section 25.
Mobility allowance definitions
19. In this Act, unless the contrary intention appears:
“allowance payday” means:
(a) the Thursday that falls on 11 July 1991; and
(b) every second Thursday after that;
“gainful employment” means:
(a) paid employment (including sheltered employment); and
(b) self-employment that is intended to result in financial gain;
“handicapped person” means a person who:
(a) has a physical or mental disability; and
(b) has turned 16;
“sheltered employment” means paid employment in respect of which a direction under section 32 or 33 is in force;
“vocational training” includes training for a profession or occupation.
Indexation and rate adjustment definitions
20. (1) In this Act, unless the contrary intention appears:
“CPC rate” (combined pensioner couple rate) has the meaning given by subsection (2);
“current figure”, as at a particular time and in relation to an amount that is to be indexed or adjusted under Part 3.16, means:
(a) if the amount has not yet been indexed or adjusted under Part 3.16 before that time—the amount; and
(b) if the amount has been indexed or adjusted under Part 3.16 before that time—the amount most recently substituted for the amount under Part 3.16 before that time;
“FA amount” (family allowance amount) has the meaning given by subsection (3);
“index number”, in relation to a quarter, means the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities and is published by the Australian Statistician in respect of that quarter;
s. 20 Definitions
“November earnings average”, in relation to a year, means the amount called the “All Employees—Average Weekly Total Earnings—Persons” published by the Australian Statistician in respect of a period ending on or before a particular day in November in that year but does not include a preliminary estimate of that amount.
(2) For the purposes of this Act, the CPC rate (combined pensioner couple rate) at a particular time is twice the amount that is, at that time, the maximum basic rate of age pension payable to a person who has a pensioner partner.
Note: for the maximum basic rate of age pension see point 1064-B1 of Pension Rate Calculator A in section 1064.
(3) For the purposes of this Act, the FA amount (family allowance amount) at a particular time is the amount that is, at that time, payable in respect of a child under item 1 of Table B of the Family Allowance Rate Calculator.
Publication of substituted index numbers
(4) Subject to subsection (5), if at any time (whether before or after the commencement of this section), the Australian Statistician publishes an index number for a quarter in substitution for an index number previously published by the Australian Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
Change to CPI reference base
(5) If at any time (whether before or after the commencement of this section) the Australian Statistician changes the reference base for the Consumer Price Index, regard is to be had, for the purposes of applying this section after the change takes place, only to index numbers published in terms of the new reference base.
Publication of substituted AWE amount
(6) If at any time (whether before or after the commencement of this section) the Australian Statistician publishes an amount in substitution for a November earnings average previously published by the Australian Statistician, for that year, the publication of the later amount is to be disregarded for the purposes of this section.
Bereavement definitions
21. For the purposes of this Act, if a person dies:
(a) the bereavement period in relation to the person’s death is the period of 14 weeks from the day on which the person dies; and
(b) the bereavement notification day in relation to the person’s death is the day on which the Secretary becomes aware of the death; and
Definitions s. 21
(c) the first available bereavement adjustment payday in relation to the person’s death is the first payday after the bereavement notification day for which it is practicable to terminate or adjust payments under this Act to take account of the person’s death; and
(d) the bereavement rate continuation period in relation to the person’s death is the period:
(i) that begins on the day on which the bereavement period begins; and
(ii) that ends:
(a) if the first available bereavement adjustment payday is before the end of the bereavement period—on the day before the first available bereavement adjustment payday; or
(b) if the first available bereavement adjustment payday occurs on or after the day on which the bereavement period ends—the day on which the bereavement period ends; and
(e) there is a bereavement lump sum period in relation to the person’s death if the first available bereavement adjustment payday occurs before the end of the bereavement period and the bereavement lump sum period is the period that begins on the first available bereavement adjustment payday and ends on the day on which the bereavement period ends.
Review of decisions definitions
22. In this Act, unless the contrary intention appears:
“AAT” means the Administrative Appeals Tribunal;
“AAT Act” means the Administrative Appeals Tribunal Act 1975;
“SSAT” means the Social Security Appeals Tribunal;
“SSAT rate of return decision” means a decision of the Social Security Appeals Tribunal on a rate of return decision in relation to an investment product.
Note 1: for “rate of return decision” in relation to an investment product see subsection 9(1).
Note 2: this definition is relevant to Part 6.4 (Review by Social Security Appeals Tribunal) and Part 6.4 (Review by Administrative Appeals Tribunal).
General definitions
23. (1) In this Act, unless the contrary intention appears:
“1947 Act” means the Social Security Act 1947;
“ABSTUDY” means the ABSTUDY scheme to the extent that it provides means-test allowances;
“ABSTUDY Schooling scheme” means the ABSTUDY Schooling part of the ABSTUDY scheme;
s. 23 Definitions
“ABSTUDY Tertiary scheme” means the ABSTUDY Tertiary part of the ABSTUDY scheme;
“actual market exchange rate” in relation to a foreign currency, means the on-demand airmail buying rate in relation to that foreign currency available at the Commonwealth Bank of Australia;
“additional amounts for dependent children” means amounts added to the maximum basic rate of a social security pension by way of dependent child add-on or guardian allowance;
“approved friendly society” means a society person or body in relation to whom or in relation to which a determination under section 29 is in force;
“assurance of support debt” means a debt due and payable by a person to the Commonwealth because of the operation of sub-regulation 165 (1) of the Migration Regulations in respect of the payment to another person of special benefit under Part 2.15 of this Act;
“Australia” includes the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island;
Note: see also subsection 7 (4), (6) and (7) for special residence rules for external Territories.
“AUSTUDY allowance” means a benefit paid under the AUSTUDY scheme;
“authorised review officer” means an officer authorised under section 1301 to perform duties as an authorised review officer for the purposes of this Act;
“benevolent home” means a home approved by the Secretary under section 34;
“building society account” means an account maintained by a person with an organisation registered as a permanent building society under a law of a State or Territory into which moneys received on deposit by the organisation from the person are paid;
“CES” means Commonwealth Employment Service;
“compensation debt” means an amount that a person is liable to pay to the Commonwealth because of a notice by the Secretary under section 1166 or 1170;
“computer” means a device that is used by the Department for storing or processing information;
“credit union account” means an account maintained by a person with an organisation registered as a credit union under the law of a State or Territory into which moneys received on deposit from the person are paid;
“decision” has the same meaning as in the Administrative Appeals Tribunal Act 1975;
Definitions s. 23
Note: subsection 3 (3) of the Administrative Appeals Tribunal Act 1975 defines “decision” as including:
• making, suspending, revoking or refusing to make an order or determination;
• giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
• issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
• imposing a condition or restriction;
• making a declaration, demand or requirement;
• retaining, or refusing to deliver up, an article;
• doing or refusing to do any other act or thing.
“dependent child add-on” means an amount included in a person’s pension or benefit rate under:
(a) point 1064-C3 of Pension Rate Calculator A; or
(b) point 1065-C3 of Pension Rate Calculator B (items 1, 2 and 3 of Table C); or
(c) point 1066-C2 of Pension Rate Calculator C; or
(d) point 1067-E2 of Benefit Rate Calculator A; or
(e) point 1068-E2 of Benefit Rate Calculator B; or
(f) paragraph 47 (3) (a), (b) or (c) of the Veterans’ Entitlements Act;
“education leavers waiting period” means:
(a) an unemployment benefit education leavers waiting period under sections 541 and 542; or
(b) a job search allowance education leavers waiting period under sections 612 and 613; or
(c) a sickness benefit education leavers waiting period under sections 684 and 685;
“employment declaration” has the same meaning as in Part Va of the Income Tax Assessment Act;
“exempt income” means exempt income under subsection 23 (1) of the Income Tax Assessment Act;
“external Territory” does not include the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island;
“foreign exchange period” means:
(a) the period commencing 20 September and ending on the day before the pension payday that falls closest to the middle of the 6 month period commencing 20 September; and
(b) the period starting from the pension payday referred to in paragraph (a) and ending on 19 March; and
(c) the period commencing 20 March and ending on the day before the pension payday that falls closest to the middle of a 6 month period commencing 20 March; and
(d) the period starting from the pension payday referred to in paragraph (c) and ending on 19 September;
s. 23 Definitions
“guardian allowance” means an amount included in a person’s pension or benefit rate under:
(a) point 1064-C7 of Pension Rate Calculator A; or
(b) point 1065-C3 of Pension Rate Calculator B (item 4 of Table C); or
(c) point 1066-C4 of Pension Rate Calculator C; or
(d) point 1067-E5 of Benefit Rate Calculator A; or
(e) point 1068-E5 of Benefit Rate Calculator B; or
(f) paragraph 47 (3) (e) of the Veterans’ Entitlements Act;
“incentive allowance” means an amount under:
(a) Module J of Pension Rate Calculator A; or
(b) Module F of Pension Rate Calculator B;
“Income Tax Assessment Act” means the Income Tax Assessment Act 1936;
“joint ownership” includes ownership as joint tenants or as tenants in common;
“JSA automatic deferment provision” (job search allowance deferment provision) means:
(a) subsection 614(3) (failure to comply with Secretary’s requirements); or
(b) subsection 615 (1) (unemployment due to voluntary act); or
(c) subsection 616 (1) (unemployment due to misconduct); or
(d) subsection 617(1) (refusal of job offer); or
(e) subsection 618 (1) (removal from allowance for failure to take reasonable steps to find work); or
(f) subsection 619 (1) (failure to comply with notification requirements);
“JSA discretionary deferment provision” (job search allowance discretionary deferment provision) means:
(a) subsection 614 (1) (failure to comply with Secretary’s requirements); or
(b) subsection 620 (1) (failure to continue CFS registration); or
(c) subsection 621 (1) (seasonal workers);
“major disaster” means:
(a) the earthquake that caused severe damage to parts of Newcastle on 28 December 1989; or
(b) a disaster in respect of which a declaration is in force under section 36;
Definitions s. 23
“medical practitioner” means a person registered and licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners;
“mental hospital” means premises in relation to which a declaration by the Secretary under section 30 is in force;
“mental hospital patient” means:
(a) a person who:
(i) has been admitted to a mental hospital as a patient of the hospital; and
(ii) is shown on the records of the hospital as a patient (other than an outpatient) of the hospital; or
(b) a person who:
(i) is being transferred to a mental hospital; and (ii) will become a mental hospital patient within the meaning of paragraph (a) at that hospital; and
(iii) immediately before being transferred, was a mental hospital patient within the meaning of paragraph (a) at another mental hospital;
“NEIS payment” means a payment under the scheme known as the New Enterprise Incentive Scheme;
“non-profit organisation” means:
(a) an organisation that is not carried on for the purposes of profit or gain to its individual members and is:
(i) a religious organisation; or
(ii) an organisation the principle objects or purposes of which are charitable or benevolent; or
(iii) an organisation of former members of the Defence Force established in every State or a State branch of such an organisation; or
(iv) an organisation approved by the Minister for the purposes of this Part; and
(b) the trustee under a trust established by an organisation referred to in paragraph (a); and
(c) a corporation established by an organisation referred to in paragraph (a); and
(d) a local governing body established by or under a law of a State or Territory; and
(e) the trustee under a trust established by such a local governing body; and
(f) a corporation established by such a local governing body; and
(g) the trustee under a trust:
(i) established for charitable or benevolent purposes; and
s. 23 Definitions
(ii) approved by the Minister for the purpose of Part 2.9;
“nursing home” means premises that are:
(a) an approved nursing home for the purposes of the National Health Act 1953 or the Nursing Homes Assistance Act 1974; or
(b) an approved home for the purposes of the Aged or Disabled Persons Homes Act 1954; or
(c) an approved hostel for the purposes of the Aged or Disabled Persons Hostels Act 1972; or
(d) made available for the accommodation of the person by an approved organisation providing hostel care services or personal care services to the person for the purposes of Part III of the Aged or Disabled Persons Homes Act 1954;
“officer” means a person performing duties, or exercising powers or functions under or in relation to this Act and, in the case of sections 1312 to 1321, includes:
(a) a person who has been such a person; and
(b) a person who is or has been appointed, or employed by the Commonwealth and who, as a result of that appointment or employment may acquire or has acquired information concerning a person under this Act; and
(c) a person who, although not appointed or employed by the Commonwealth, performs or did perform services for the Commonwealth and who, as a result of performing those services may acquire or has acquired information concerning a person under this Act;
“ordinary waiting period” means:
(a) an unemployment benefit ordinary waiting period under sections 539 and 540; or
(b) a job search allowance ordinary waiting period under sections 610 and 611; or
(c) a sickness benefit ordinary waiting period under sections 682 and 683;
“pension age”, in relation to a person, means:
(a) if the person is a woman—the age of 60 years; or
(b) if the person is a man—the age of 65 years;
“pension payday” means:
(a) the Thursday that falls on 4 July 1991; and
(b) each succeeding alternate Thursday;
“pension period” means a period that:
(a) starts immediately after a pension payday; and
(b) ends at the end of the next pension payday;
Definitions s. 23
“protected information” means information about a person that is held in the records of the Department;
“receive” has the meaning given by subsections (2), (3) and (4);
“recipient notification notice” means a notice given by the Secretary under section 68, 121, 172, 222, 284, 341, 389, 435, 487, 572, 644, 713, 759, 808, 873, 930, 978, 1023 or 1054;
“recipient statement notice” means a notice given by the Secretary under section 69, 122, 173, 223, 285, 342, 390, 436, 488, 573, 645, 714, 760, 809, 874, 931, 979, 1024 or 1055;
“rehabilitation program” means:
(a) a rehabilitation program under Part III of the Disability Services Act 1986; or
(b) a follow-up program in relation to which a determination by the Secretary under section 31 is in force;
“Secretary” means the Secretary to the Department;
“service pension” means:
(a) an age service pension under Part III of the Veterans’ Entitlements Act; or
(b) an invalid service pension; or
(c) a wife service pension under Part III of the Veterans’ Entitlements Act; or
(d) a carer service pension under Part III of the Veterans’ Entitlements Act;
“social security benefit” means:
(a) unemployment benefit; or
(b) job search allowance; or
(c) sickness benefit; or
(d) special benefit;
“social security pension” means:
(a) an age pension; or
(b) an invalid pension; or
(c) a wife pension; or
(d) a carer pension; or
(e) a sole parent pension; or
(f) a widowed person allowance; or
(g) a widow B pension; or
(h) a sheltered employment allowance; or
(j) a rehabilitation allowance; or
(k) a special needs pension;
“specified foreign country” means a country determined by the Minister to be a specified foreign country under subsection 38 (1);
s. 23 Definitions
“tax file number” has the same meaning as in Part Va of the Income Tax Assessment Act;
“tax year” has the same meaning as “year of income” has in the Income Tax Assessment Act;
Note: section 6 of the Income Tax Assessment Act defines “year of income” as the financial year (1 July to 30 June) or, if another accounting period has been adopted under section 18 of that Act instead of the financial year, that accounting period.
“taxable income” has the same meaning as in the Income Tax Assessment Act;
“transfer day”, in relation to a transferee to a social security benefit, has the meaning given by subsections (6) and (7);
“transferee to a social security benefit” has the meaning given by subsections (6) and (7);
“UB automatic deferment provision” (unemployment benefit deferment provision) means:
(a) subsection 543 (3) (failure to comply with Secretary’s requirements); or
(b) subsection 544 (1) (unemployment due to voluntary act); or
(c) subsection 545 (1) (unemployment due to misconduct); or
(d) subsection 546 (1) (refusal of job offer); or
(e) subsection 547 (1) (removal from benefit for failure to take reasonable steps to find work); or
(f) subsection 548 (1) (failure to comply with notification requirements);
“UB discretionary deferment provision” (unemployment benefit discretionary deferment provision) means:
(a) subsection 543 (1) (failure to comply with Secretary’s requirements); or
(b) subsection 549 (1) (failure to continue CES registration); or
(c) subsection 550 (1) (seasonal workers);
“unused annual leave”, in relation to a person, means:
(a) leave described as annual leave, recreation leave or annual holidays; or
(b) leave that is granted for reasons that are the same as, or similar to, the reasons for which annual leave, recreation leave or annual holidays are granted;
that is unused when the person becomes unemployed or when the person’s employment with an employer ends;
“unused annual leave waiting period” means:
Definitions s. 23
(a) an unemployment benefit unused annual leave waiting period under sections 536 to 538; or
(b) a job search allowance unused annual leave waiting period under sections 607 to 609; or
(c) a sickness benefit unused annual leave waiting period under sections 679 to 681;
“Veterans’ Entitlements Act” or “VEA” means the Veterans’ Entitlements Act 1986;
“waiting period” means:
(a) an unemployment benefit unused annual leave waiting period under sections 536 to 538; or
(b) an unemployment benefit ordinary waiting period under sections 539 and 540; or
(c) an unemployment benefit education leavers waiting period under sections 541 and 542; or
(d) a job search allowance unused annual leave waiting period under sections 607 to 609; or
(e) a job search allowance ordinary waiting period under sections 610 and 611; or
(f) a job search allowance education leavers waiting period under sections 612 and 613; or
(g) a sickness benefit unused annual leave waiting period under sections 679 to 681; or
(h) a sickness benefit ordinary waiting period under sections 682 and 683; or
(j) a sickness benefit education leavers waiting period under sections 684 and 685;
“widow” means a woman who was the partner of a man immediately before he died.
(2) For the purposes of this Act (other than section 735), a person is taken to be receiving a social security pension or a social security benefit from the earliest day on which the pension or benefit is payable to the person even if the first instalment of the pension or benefit is not paid until a later day.
(3) For the purposes of this Act, a person is to be taken to be receiving a social security pension until the latest day on which the pension is payable to the person even if the last instalment of the pension is paid before that day.
(4) For the purposes of this Act, a person is to be taken to be receiving a social security benefit until the latest day for which the benefit is payable to the person even if the last instalment of the benefit is not paid until a later day.
(5) For the purposes of this Act, a person is in gaol if the person:
s. 23 Definitions
(a) is imprisoned in connection with the person’s conviction for an offence; or
(b) is being lawfully detained in a place other than a prison, in connection with the person’s conviction for an offence; or
(c) is undergoing a period of custody pending trial or sentencing for an offence.
Transferee to social security benefit
(6) If:
(a) a person becomes qualified for a social security benefit (in this subsection called the “new benefit”); and
(b) immediately before becoming qualified for the new benefit the person is receiving:
(i) a social security or service pension; or
(ii) another social security benefit;
(in this subsection called the “old pension or benefit”); and
(c) the person ceases to receive the old pension or benefit;
the person is a transferee to the new benefit and the person’s transfer day is the day that immediately follows the day on which the person ceases to receive the old pension or benefit.
(7) If:
(a) a person becomes qualified for a social security benefit (in this subsection called the “new benefit”); and
(b) immediately before becoming qualified for the new benefit:
(i) the person is a member of a couple; and
(ii) the person’s partner is receiving:
(a) a social security benefit; or
(b) a sheltered employment allowance; or
(c) a+ rehabilitation allowance; and
(iii) the rate of the partner’s benefit or allowance is increased by reference to the person;
the person is a transferee to the new benefit and the person’s transfer day is the day on which the person becomes qualified for the new benefit.
(8) Subject to subsection (9), “psychiatric confinement” in relation to a person includes confinement in:
(a) a psychiatric section of a hospital; and
(b) any other place where persons with psychiatric disabilities are, from time to time, confined.
(9) The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be psychiatric confinement.
Definitions s. 23
(10) If a person is subject to an unused annual leave waiting period or an ordinary waiting period for a social security benefit under Part 2.11 (unemployment benefit), Part 2.12 (job search allowance) or Part 2.14 (sickness benefit), the person is to be taken to have served the waiting period if, and only if:
(a) the waiting period has ended; and
(b) the person was, throughout the waiting period, qualified for the social security benefit.
Note 1: for “unused annual leave waiting period” see sections 536, 607 and 679.
Note 2: for “ordinary waiting period” see sections 539, 610 and 682.
Participation in pension loans scheme
(11) For the purposes of this Act, a person is participating in the pension loans scheme if:
(a) the person has made a request to participate in the scheme under section 1136; and
(b) because of the request, the value of the person’s assets (or if the person is a member of a couple, the couple’s assets) has been disregarded when determining the rate of pension or allowance payable to the person; and
(c) the person owes a debt to the Commonwealth under section 1135.
s. 24 Determinations having Interpretative Effect
PART 1.3—DETERMINATIONS HAVING INTERPRETATIVE EFFECT
Person may be treated as not being a member of a couple (subsection 4 (2))
24. (1) Where:
(a) a person is legally married to another person; and
(b) the person is not living separately and apart from the other person on a permanent basis; and
(c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
(2) Where:
(a) a person is living with another person as the spouse of that other person on a genuine domestic basis; and
(b) the person is not legally married to the other person; and
(c) the other person is of the opposite sex; and
(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
Independent living training (incentive allowance)
25. The Secretary may determine that training specified in the determination is to be independent living training for the purposes of this Act.
Note: incentive allowance may be available to a person who is receiving an invalid pension, a rehabilitation allowance or a sheltered employment allowance.
Approval of short-term vocational courses (UB and JSA work test)
26. The National Director of the CES may, for the purposes of sections 522, 524 and 597, by writing, approve full-time training courses of up to 4 weeks duration which he or she considers to be vocationally useful.
Approval of vocational courses (UB work test)
27. The National Director of the CES may, for the purposes of section 525, by writing, approve full-time training courses of up to 13 weeks duration which he or she considers to be vocationally useful.
Determinations having Interpretative Effect s. 28
Approval of voluntary organisations (UB and JSA work test)
28. The National Director of the CES may, for the purposes of sections 523, 526, 527 and 598, by writing, approve organisations which he or she considers provide vocationally useful full-time voluntary work.
Approval of friendly societies
29. Where:
(a) a society is registered or incorporated under a law of a State or of a Territory relating to friendly societies; or
(b) in the Secretary’s opinion, a person or body:
(i) is similar in character to a friendly society; and
(ii) provides benefits similar to the benefits provided by a friendly society;
the Secretary may determine that the society, person or body is to be an approved friendly society for the purposes of this Act.
Approval of mental hospitals
30. If the Secretary is satisfied that accommodation for persons with a mental disability is provided at particular premises, he or she may declare the premises to be a mental hospital for the purposes of this Act.
Approval of follow-up rehabilitation programs
31. The Secretary may determine that:
(a) a follow-up program under Part III of the Disability Services Act 1986; or
(b) each of the programs included in a class of follow-up programs under that Part;
are follow-up programs for the purposes of this Act.
Approval of sheltered employment—non-profit organisation
32. (1) Where the Secretary is satisfied that:
(a) a non-profit organisation provides paid employment for disabled persons at certain premises; and
(b) at least 50% of the persons employed at the premises are disabled persons;
the Secretary may determine that the paid employment provided at the premises by the organisation is sheltered employment.
Note: for “non-profit organisation” see subsection 23 (1).
(2) For the purposes of subsection (1), a disabled person is a person: (a) who is:
(i) permanently incapacitated for work; and
s. 32 Determinations having Interpretative Effect
(ii) the degree of the incapacity for work is 85% or more; and
(iii) 50% or more of the incapacity for work is directly caused by a physical or mental impairment; or
(b) who, in the Secretary’s opinion, would satisfy paragraph (a) if the person were no longer engaged in paid employment.
Approval of sheltered employment—supported employment
33. (1) Where:
(a) the Minister administering the Disability Services Act 1986 has approved a grant of financial assistance to a non-profit organisation under subsection 10 (1) of that Act; and
(b) the financial assistance relates to the provision by the organisation of supported employment services within the meaning of section 7 of that Act;
the Secretary may determine that the paid employment to which those supported employment services relates is sheltered employment.
Note: for “non-profit organisation” see subsection 23 (1).
(2) Subject to subsection (3), a determination under subsection (1) may relate to employment provided before or after the day of determination.
(3) A determination under subsection (1) may not relate to employment provided before 5 June 1987.
Approval of benevolent homes
34. Where a home:
(a) is conducted for benevolent purposes; and
(b) is wholly or partly maintained by contributions from:
(i) the Consolidated Revenue Fund of the Commonwealth; or
(ii) the consolidated revenue of a State or of the Australian Capital Territory or the Northern Territory;
the Secretary may approve the home for the purposes of this Act.
Note: benevolent homes may receive pension payments on behalf of inmates in some cases—see section 60, 113, 164, 274 or 381.
Approval of care organisation
35. (1) The Secretary may approve:
(a) a charitable or religious organisation; and
(b) any other organisation;
that co-ordinates or provides residential care services to young people in Australia, as an approved care organisation, for the purposes of this Act.
Determinations having Interpretative Effect s. 35
(2) The Secretary may approve, under subsection (1), a charitable or religious organisation which is wholly or partly funded by contributions from:
(i) the Consolidated Revenue Fund of the Commonwealth; or
(ii) the consolidated revenue of a State or of the Australian Capital Territory or the Northern Territory.
(3) The Secretary is not to approve, under subsection (1), a mental hospital which is either:
(a) maintained by the Commonwealth, a State, the Australian Capital Territory or the Northern Territory; or
(b) mainly dependent upon financial assistance from the Commonwealth, a State, the Australian Capital Territory or the Northern Territory.
Major disaster
36. (1) The Minister may declare that a disaster that:
(a) caused a significant number of deaths, serious illnesses or serious injuries; or
(b) caused significant damage to property;
is a major disaster for the purposes of this Act.
(2) The disaster may be one that occurs naturally or one that is caused by humans.
(3) A declaration under this section is to be made by notice in the Gazette.
Dependent child—inmate of a mental hospital
37. (1) A young person is taken to be a dependent child of another person (in this section called the “adult”) for the purposes of Part 2.17 (family allowance) if:
(a) the young person is an inmate of a mental hospital; and
(b) the mental hospital is either:
(i) maintained by the Commonwealth, a State, the Australian Capital Territory or the Northern Territory; or
(ii) mainly dependent upon financial assistance from the Commonwealth, a State, the Australian Capital Territory or the Northern Territory; and
(c) the adult is making a reasonable contribution towards the expenses of maintaining the young person; and
(d) the Secretary determines that the young person is to be taken to be a dependent child of the adult.
(2) Where the adult is the male member of a couple, the Secretary may determine, under paragraph (1) (d), that the young person is to be taken to be the dependent child of the female member of the couple.
s. 38 Determinations having Interpretative Effect
Specification of foreign country
38. (1) The Minister may determine that a foreign country is to be a specified foreign country for the purposes of this Act by notice in the Gazette.
(2) A notice is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.
Miscellaneous s. 39
PART 1.4—MISCELLANEOUS
Tables, calculators etc. form part of section
39. (1) For the purposes of this Act, a Table and a Key to a Table are to be taken to be part of:
(a) if the Table occurs in a section containing subsections—the subsection immediately preceding the Table; and
(b) if the Table occurs in a section that does not contain subsections—the section.
(2) For the purposes of this Act, a Calculator (whether a Rate Calculator, a Lump Sum Calculator or any other Calculator) is to be taken to be part of the section immediately preceding the Calculator.
(3) Rate Calculators are divided into Modules (for example, Module A).
(4) A Module of a Rate Calculator is divided into points.
(5) The points in a Module are numbered as follows:
(a) the initial number (followed by a dash) identifies the section that immediately precedes the Rate Calculator;
(b) the letter following the dash is the letter allocated to the Module in which the point occurs;
(c) the final number identifies the order of the point within the Module.
Example: point 1068-E8 is the eighth point in Module E of the Rate Calculator at the end of section 1068.
Note: paragraph (5) (a) has been adopted so that if a reader is looking for a particular section of the Act and opens a page that happens to be in the middle of a Rate Calculator, the reader will know whether the section the reader is looking for is before or after that page.
s. 40 Introduction
CHAPTER 2—PENSIONS, BENEFITS AND ALLOWANCES
PART 2.1—INTRODUCTION
Order of provisions/structure of Parts
40. (1) In each Part dealing with a pension, benefit or allowance, this is the order in which the provisions are presented:
(a) qualification and payability provisions (who is entitled to the payment);
(b) claim provisions (how is a claim made);
(c) rates provisions (how much will the payment be);
(d) determination of claim (when it will be granted from);
(e) payment provisions (how will payment be made and when will it commence);
(f) protection (how payments will be protected);
(g) recipient obligations provisions (what does the recipient need to do);
(h) variation and termination provisions (when can payment and rate be reviewed or changed);
(j) bereavement payments (payments available when a person’s partner or child has died);
(k) fringe benefits (concessions available to people receiving that pension, benefit or allowance).
(2) Other relevant provisions are referred to in notes at the bottom of key provisions in the Part.
Qualification for/payability of pension, benefit or allowance
41. Before a pension, benefit or allowance is payable to a person under this Act:
(a) the person must be qualified for the pension, benefit or allowance; and
(b) there must be nothing in this Act that makes the pension, benefit or allowance not payable to the person (for example, a waiting period provision, a multiple entitlement exclusion provision or a compensation preclusion provision).
Note: provisions in the Act relating to paragraph (a) matters refer to the “person” being “qualified”, “disqualified” or “not qualified” for the pension, benefit or allowance and provisions in the Act relating to paragraph (b) matters refer to the “pension, benefit or allowance” being “payable” or “not payable” to the person.
Payday-based payments and period-based payments
42. (1) Some payments under this Act are payday-based and others are period-based.
(2) If a payday-based payment is payable to a person, the person will be paid a full instalment of the payment on each payday during
26725—Cat. No. 91 3518 9
Introduction s. 42
the period during which the payment is payable to the person and will be paid nothing on a payday outside that period.
Note: the payday-based payments are the social security pensions, family allowance and family allowance supplement.
(3) If a period-based payment is payable to a person, the person will be paid only for the particular period (which might be less than a fortnight) in respect of which the payment is payable.
Note 1: the period-based payments are the social security benefits.
Note 2: the qualifications for a period-based payment usually require the qualifying conditions to be met throughout a particular period and the payment is expressed as being “in respect of or “for” that period.
s. 43 Age Pension
PART 2.2—AGE PENSION
Division 1—Qualification for and payability of age pension
Subdivision A—Qualification
Qualification for age pension
43. (1) A person is qualified for an age pension if the person:
(a) has turned:
(i) if the person is a woman—60; or
(ii) if the person is a man—65; and
(b) has 10 years qualifying Australian residence.
Note: for “qualifying Australian residence” see section 7.
(2) Subsection (1) has effect subject to sections 1218 and 1219 (departure certificate requirements for people leaving Australia).
Subdivision B—Payability
Age pension not payable in some circumstances
44. (1) Even though a person is qualified for an age pension, the pension may not be payable to the person because:
(a) the pension has not commenced to be payable (see sections 45 and 56); or
(b) the person is in gaol (see Part 3.13); or
(c) the person is receiving another pension or benefit (see section 47).
(2) An age pension is not payable to a person if the person’s age pension rate would be nil.
Age pension generally not payable before claim
45. An age pension is not payable to a person before the person’s provisional commencement day (identified under section 46).
Provisional commencement day
General rule
46. (1) Subject to subsections (2) and (3), a person’s provisional commencement day is the day on which the person claims the age pension.
Initial incorrect claim followed by claim for age pension
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
Age Pension s. 46
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to an age pension; and
(b) on the day on which the person makes the initial claim, the person is qualified for an age pension; and
(c) the person subsequently makes a claim for an age pension; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Early claim
(3) If:
(a) a person lodges a claim for an age pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for an age pension; and
(c) the person becomes qualified for an age pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person’s provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
Multiple entitlement exclusion
47. An age pension is not payable to a person if the person is receiving:
(a) another social security pension; or
(b) a social security benefit; or
(c) a service pension.
Note: “social security pension” includes sheltered employment and rehabilitation allowances and “social security benefit” includes job search allowance.
Division 2—Claim for age pension
Need for a claim
48. (1) A person who wants to be granted an age pension must make a proper claim for that pension.
Note: for “proper claim”—see section 49 (form), section 50 (manner of lodgment) and section 51 (residence/presence in Australia).
(2) For the purposes of subsection (1), if:
(a) a claim for age pension is made by or on behalf of a person; and
(b) at the time when the claim is made, the claim cannot be granted because the person is not qualified for that pension;
the claim is to be taken to have not been made.
s. 49 Age Pension
Form of claim
49. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
50. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.
(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
Note: for international agreements see 4.1.
Claimant must be Australian resident and in Australia
51. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note 1: for “Australian resident” see subsections 7 (2) and (3).
Note 2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.
Division 3—Determination of claim
Secretary to determine claim
52. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
53. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for an age pension; and
(b) the pension is payable.
Date of effect of determination
54. (1) Subject to subsections (2), (3) and (4), a determination under section 53 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Age Pension s. 54
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for age pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for age pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for age pension; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
s. 55 Age Pension
Division 4—Rate of age pension
How to work out a person’s age pension rate
55. A person’s age pension rate is worked out:
(a) if the person is not permanently blind—using Pension Rate Calculator A at the end of section 1064 (see Part 3.2); or
(b) if the person is permanently blind—using Pension Rate Calculator B at the end of section 1065 (see Part 3.3).
Division 5—Payment of age pension
Commencement of age pension
56. An age pension becomes payable to a person on the first day on which:
(a) the person is qualified for the pension; and
(b) no provision of this Act makes the pension not payable to the person.
Note 1: for qualification see section 43.
Note 2: for the circumstances in which an age pension is not payable see section 44.
Payment by instalments
57. (1) A full instalment of age pension is payable to a person on each pension payday on which:
(a) the person is qualified for the pension; and
(b) the pension is payable to the person.
(2) If the person is outside Australia, the instalments referred to in subsection (1) are to be paid to the person on such pension paydays as the Secretary determines for the purposes of this subsection..
Effect on instalments of backdating claim
58. If:
(a) a person lodges a claim for an age pension on a particular day (in this section called the “claim day”); and
(b) the person’s provisional commencement day is before the claim day;
any instalment of age pension that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Note: for “provisional commencement day” see section 46.
Age Pension s. 59
Calculation of amount of instalment
59. (1) The amount of an instalment of age pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.
(2) If the amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
(4) If, apart from this subsection, the amount of an instalment of age pension would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Inmates of benevolent homes
60. (1) While a person who is receiving an age pension is an inmate of a benevolent home:
(a) so much of the person’s pension as does not exceed the pensioner contribution is to be paid to the person who controls the benevolent home for the maintenance of the person in the benevolent home; and
(b) the balance (if any) is to be paid to the person receiving the pension.
(2) For the purposes of this section, the pensioner contribution is, subject to subsection (3), 364 times the amount in force from time to time for the purposes of subparagraph 47 (2) (b) (iii) of the National Health Act 1953.
(3) If the amount worked out under subsection (2) is not a multiple of $2.60, the pensioner contribution is the next lower amount that is a multiple of $2.60.
Manner of payment
61. A person’s age pension is, subject to section 62, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
62. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s age pension is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the age pension is to be paid in accordance with the direction.
s. 63 Age Pension
Payment into bank account etc.
63. (1) The Secretary may direct that the whole or a part of the amount of a person’s age pension is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the age pension is payable.
(3) The account may be an account that is maintained by a person to whom the age pension is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the age pension is to be payable in accordance with the direction.
Where pension payday would fall on public holiday etc.
64. If the Secretary is satisfied that an amount of age pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of pension after death
65. (1) If:
(a) an age pension is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of age pension payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of age pension under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of age pension.
Division 6—Protection of age pension
Age pension to be absolutely inalienable
66. (1) Subject to subsection (2) and section 1359, age pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Age Pension s. 66
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of age pension payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
67. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of age pension payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of age pension payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
68. (1) The Secretary may give a person to whom an age pension is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
s. 68 Age Pension
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of age pension
69. (1) The Secretary may give a person to whom an age pension is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the pension to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
Age Pension s. 69
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
70. (1) A person is not excused from giving information pursuant to a notice under section 68 or 69 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 68 or 69 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 68 (5) or (6) or 69 (5) or (6).
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
71. (1) A determination that:
(a) a person’s claim for an age pension is granted; or
(b) an age pension is payable to a person;
continues in effect until:
(c) the pension ceases to be payable under section 72 or 73; or
s. 71 Age Pension
(d) a further determination in relation to the pension under section 78 has taken effect.
Note 1: for paragraph (a) see section 53.
Note 2: for paragraph (b) see section 79—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of an age pension continues in effect until:
(a) the pension becomes payable at a lower rate under section 74 or 75; or
(b) a further determination in relation to the pension under section 76 or 77 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 68 notification obligations
72. If:
(a) a person who is receiving an age pension is given a notice under section 68; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension would, but for this section, cease to be payable to the person;
the pension continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s pension, there is no automatic rate reduction and a determination under section 77 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 68 notification obligations
73. If:
(a) a person who is receiving an age pension is given a notice under section 68; and
Age Pension s. 73
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension ceases to be payable to the person;
the pension ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 68 notification obligations
74. If:
(a) a person who is receiving an age pension is given a notice under section 68; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of pension is to be reduced;
the pension becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstance occurs.
Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available
75. If:
(a) a person who is receiving an age pension is given a notice under section 68; and
(b) the notice requires the person to inform the Department of income for remunerative work undertaken by the person; and
(c) the person fails to notify the Department of income of that kind in accordance with the notice; and
s. 75 Age Pension
(d) the person has an earnings credit account balance for the purposes of Division 4 of Part 3.10;
the pension becomes payable to the person at the reduced rate from the first pension payday after the day on which the person’s earnings credit account balance is reduced to nil.
Subdivision D—Determinations
Rate increase determination
76. If the Secretary is satisfied that the rate at which an age pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 80.
Rate reduction determination
77. If the Secretary is satisfied that the rate at which an age pension is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 74 or 75 (see subsection 71 (2)).
Note 2: for the date of effect of a determination under this section see section 81.
Cancellation or suspension determination
78. If the Secretary is satisfied that an age pension is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the pension is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 72 or 73 (see subsection 71 (1)).
Note 2: for the date of effect of a determination under this section see section 81.
Resumption of payment after cancellation or suspension
79. (1) If the Secretary:
(a) cancels or suspends a person’s age pension under section 78; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and (ii) because of the decision to cancel or suspend:
(a) the person did not receive an age pension that was payable to the person; or
(b) the person is not receiving an age pension that is payable to the person;
Age Pension s. 79
the Secretary is to determine that an age pension was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 80.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
80. (1) The day on which a determination under section 76 or 79 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s age pension; and
(b) a notice is given to the person to whom the age pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s age pension; and
(b) a notice is given to the person to whom the age pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
s. 80 Age Pension
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s age pension; and
(b) no notice is given to the person to whom the age pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion, for the purposes of subsections 5 (12) and (13), that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect
Age Pension s. 80
of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
81. (1) The day on which a determination under section 77 or 78 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
s. 81 Age Pension
Contravention of Act
(4) If:
(a) the person whose age pension is affected by the adverse determination has contravened a provision of this Act (other than section 69, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the pension has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the pension was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments
Subdivision A—Death of pensioner partner
Qualification for payments under this Subdivision
82. (1) If:
(a) a person is receiving an age pension; and
(b) the person is a member of a couple; and
(c) the person’s partner dies; and
(d) immediately before the partner died, the partner was receiving:
(i) an age pension; or
(ii) an invalid pension; or
(iii) a wife pension; or
(iv) a carer pension; or
(v) a sole parent pension under subparagraph 249 (1) (a) (iv) (illness separated couple); or
(vi) a sheltered employment allowance instead of an invalid pension; or
Age Pension s. 82
(vii) a rehabilitation allowance instead of a pension referred to in subparagaph (i), (ii) or (iii); or
(viii) a special needs age, invalid, wife or sole parent pension; or
(ix) a service pension;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 83 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.
Note 2: section 84 provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
(2) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.
(3) An election under subsection (2):
(a) must be made by written notice to the Secretary; and
(b) may be made after the person has been paid an amount or amounts under this Subdivision; and
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.
(4) If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which age pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 85.
Continued payment of partner’s pension or allowance
83. If a person is qualified for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.
Lump sum payable in some circumstances
84. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
s. 84 Age Pension
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and |
| (b) the amount that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 85, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Adjustment of person’s age pension rate
(a) a person is qualified for payments under this Subdivision; and
(b) the person does not elect under subsection 82 (2) not to receive payments under this Subdivision;
the rate of the person’s age pension during the bereavement period is worked out as follows:
(c) during the bereavement rate continuation period, the rate of age pension payable to the person is the rate at which the pension would have been payable to the person if the person’s partner had not died;
(d) during the bereavement lump sum period (if any), the rate at which age pension is payable to the person is the rate at which
Age Pension s. 85
the age pension would be payable to the person apart from this Subdivision.
Effect of death of person entitled to payments under this Subdivision
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person’s partner before the person dies;
there is payable, to such person as the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and |
| (b) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 85, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends. |
Step 5. | Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section. |
s. 87 Age Pension
Matters affecting payment of benefits under this Subdivision
87. (1) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s partner, except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;
(e) the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).
(2) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the “financial institution”); and
(c) the financial institution pays to the person, out of the account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.
Subdivision B—Death of dependent child
Bereavement payments on death of dependent child
88. If:
(a) a person is receiving an age pension; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s age pension rate included:
Age Pension s. 88
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 89 provides for age pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 90 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new age pension rate and the rate at which the pension would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
89. If a person is qualified for payments under this Subdivision in relation to the death of a dependent child, the person’s age pension rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
(a) a person is qualified for payments under this Subdivision in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance for the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
s. 90 Age Pension
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Work out the instalment of age pension payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 89 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of age pension that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s age pension rate were not calculated under section 89: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Subdivision C—Death of recipient
Death of recipient
91. (1) If:
(a) a person is receiving age pension; and
(b) either:
(i) the person is not a member of a couple; or
(ii) the person is a member of a couple and the person’s partner:
(a) is not receiving a social security pension; and
(b) is not receiving a social security benefit; and
(c) is not receiving a service pension; and
(c) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
Age Pension s. 91
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note 1: for amounts owing to the recipient before the recipient’s death see section 65.
Note 2: for death of a person qualified for bereavement payments under Subdivision A see section 86.
Division 10—Fringe benefits
Fringe benefits
92. If a person who is receiving an age pension qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
93. (1) A person who is receiving an age pension is qualified for fringe benefits if:
(a) the person is permanently blind; or
(b) the person’s age pension rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving an age pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s age pension rate is income reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving an age pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s age pension rate is assets reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
s. 94 Invalid Pension
PART 2.3—INVALID PENSION
Division 1—Qualification for and payability of invalid pension
Subdivision A—Qualification
Qualification for invalid pension
Permanent incapacity for work
94. (1) A person is qualified for an invalid pension if :
(a) the person is permanently incapacitated for work; and
(b) the degree of the incapacity for work is 85% or more; and
(c) 50% or more of the incapacity for work is directly caused by a physical or mental impairment; and
(d) the person has turned 16 and is under the pension age; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraphs (a), (b) and (c); or
(ii) has 10 years qualifying Australian residence; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraphs (a), (b) and (c) the person:
(a) is not an Australian resident; and
(b) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
Note: for “Australian resident” and “qualifying Australian residence” see section 7.
Permanent blindness
(2) A person is qualified for an invalid pension if:
(a) the person is permanently blind; and
(b) the person has turned 16 and is under the pension age; and
(c) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (a); or
(ii) has 10 years qualifying Australian residence; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (a), the person:
(a) is not an Australian resident; and
(b) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
Note: for “Australian resident” and “qualifying Australian residence” see section 7.
(3) Subsections (1) and (2) have effect subject to sections 1218 and 1219 (departure certificate requirements for people leaving Australia).
Invalid Pension s. 94
(4) A person is not qualified for an invalid pension on the basis of incapacity or blindness if the person brought about the incapacity or blindness with a view to obtaining an invalid pension.
Subdivision B—Payability
Invalid pension not payable in some circumstances
95. (1) Even though a person is qualified for an invalid pension, the pension may not be payable to the person because:
(a) the pension has not commenced to be payable (see sections 96 and 109); or
(b) the person has not taken reasonable steps to claim or obtain compensation (see section 1164); or
(c) the person or the person’s partner has received compensation (see Division 3 of Part 3.14); or
(d) the person is in gaol (see Part 3.13); or
(e) the person is receiving another pension or benefit (see section 98); or
(f) the person fails to comply with a requirement that the person:
(i) attend a medical examination; or
(ii) receive treatment; or
(iii) undertake a training course; or
(iv) do suitable work;
as required by section 99.
(2) An invalid pension is not payable to a person if the person’s invalid pension rate would be nil.
Invalid pension generally not payable before claim
96. An invalid pension is not payable to a person before the person’s provisional commencement day (identified under section 97).
Provisional commencement day
General rule
97. (1) Subject to subsections (2) and (3), a person’s provisional commencement day is the day on which the person claims the invalid pension.
Initial incorrect claim followed by claim for invalid pension
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the
s. 97 Invalid Pension
Commonwealth, that is similar in character to an invalid pension; and
(b) on the day on which the person makes the initial claim, the person is qualified for an invalid pension; and
(c) the person subsequently makes a claim for an invalid pension; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Early claim
(3) If:
(a) a person lodges a claim for an invalid pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for an invalid pension; and
(c) the person becomes qualified for an invalid pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person’s provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
Multiple entitlement exclusion
98. An invalid pension is not payable to a person if the person is receiving:
(a) another social security pension; or
(b) a social security benefit; or
(c) a service pension.
Note: “social security pension” includes sheltered employment and rehabilitation allowances and “social security benefit” includes job search allowance.
Secretary may require person to have medical examination, attend course or undertake work
99. (1) If:
(a) a person is receiving, or has lodged a claim for, an invalid pension; and
(b) the Secretary is of the opinion that the person should:
(i) undergo a medical or psychological examination; or
(ii) receive medical or other treatment; or
(iii) undertake a course of vocational training; or
(iv) do any work suitable to be done by the person; and
(c) the Secretary notifies the person that the person is required to:
(i) undergo that examination; or
Invalid Pension s. 99
(ii) receive that treatment; or
(iii) undertake that course; or
(iv) do that work; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person; and
(e) the person does not take reasonable steps to comply with the Secretary’s requirements;
an invalid pension is not payable to the person for a period determined by the Secretary.
(2) The Secretary may determine that an invalid pension is payable for a period for which he or she had previously determined that it was not payable under subsection (1) if within a reasonable period the person takes reasonable steps to comply with the Secretary’s requirements.
Division 2—Claim for invalid pension
Need for a claim
100. (1) A person who wants to be granted an invalid pension must make a proper claim for that pension.
Note: for “proper claim”—see section 101 (form), section 102 (manner of lodgment) and section 103 (residence/presence in Australia).
(2) For the purposes of subsection (1), where:
(a) a claim for invalid pension is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;
the claim is to be taken to have not been made.
Form of claim
101. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
102. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.
(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
Note: for international agreements see Part 4.1.
s. 103 Invalid Pension
Claimant must be Australian resident and in Australia
103. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note 1: for “Australian resident” see subsections 7 (2) and (3).
Note 2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.
Division 3—Determination of claim
Secretary to determine claim
104. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
105. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for an invalid pension; and
(b) the pension is payable.
Date of effect of determination
106. (1) Subject to subsections (2), (3) and (4), a determination under section 105 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for invalid pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Invalid Pension s. 106
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for invalid pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for invalid pension; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 4—Medical examination following claim
Examination by medical practitioner
107. (1) The Secretary must direct that a claimant for an invalid pension be examined by a medical practitioner unless:
(a) it is manifest that the claimant is permanently incapacitated for work and that:
(i) the degree of the incapacity is 85% or more; and
(ii) 50% or more of the incapacity for work is directly caused by a permanent physical or mental impairment; or
(b) it is manifest that the claimant is permanently blind; or
(c) the claimant resides in a place that is remote from any medical practitioner.
(2) After examining the claimant, the medical practitioner is to give a certificate stating the practitioner’s opinion on the following matters:
(a) whether or not the claimant is permanently incapacitated for work;
s. 107 Invalid Pension
(b) if the claimant is permanently incapacitated for work—whether or not:
(i) the degree of the incapacity is 85% or more; and
(ii) 50% or more of the incapacity for work is directly caused by a permanent physical or mental impairment;
(c) whether or not the claimant is permanently blind.
(3) A certificate under subsection (2) must be in accordance with a form approved by the Secretary.
Division 5—Rate of invalid pension
How to work out a person’s invalid pension rate
108. A person’s invalid pension rate is worked out:
(a) if the person is not permanently blind—using Pension Rate Calculator A at the end of section 1064 (see Part 3.2); or
(b) if the person is permanently blind—using Pension Rate Calculator B at the end of section 1065 (see Part 3.3).
Division 6—Payment of invalid pension
Commencement of invalid pension
109. An invalid pension becomes payable to a person on the first day on which:
(a) the person is qualified for the pension; and
(b) no provision of this Act makes the pension not payable to the person.
Note 1: for qualification see section 94.
Note 2: for the circumstances in which an invalid pension is not payable see section 95.
Payment by instalments
110. (1) A full instalment of invalid pension is payable to a person on each pension payday on which:
(a) the person is qualified for the pension; and
(b) the pension is payable to the person.
(2) If a person who is qualified for an invalid pension is outside Australia, the instalments referred to in subsection (1) are to be paid to the person on such pension paydays as the Secretary determines for the purposes of this subsection.
Effect on instalments of backdating claim
111. If:
(a) a person lodges a claim for an invalid pension on a particular day (in this section called the “claim day”); and
Invalid Pension s. 111
(b) the person’s provisional commencement day is before the claim day;
any instalment of invalid pension that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Note: for “provisional commencement day” see section 97
Calculation of amount of instalment
112. (1) The amount of an instalment of invalid pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.
(2) If an amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
(4) If, apart from this subsection, the amount of an instalment of invalid pension would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Inmates of benevolent homes
113. (1) While a person who is receiving an invalid pension is an inmate of a benevolent home:
(a) so much of the person’s pension as does not exceed the pensioner contribution is to be paid to the person who controls the benevolent home for the maintenance of the person in the benevolent home; and
(b) the balance (if any) is to be paid to the person receiving the pension.
(2) For the purposes of this section, the pensioner contribution is, subject to subsection (3), 364 times the amount in force from time to time for the purposes of subparagraph 47 (2) (b) (iii) of the National Health Act 1953.
(3) If the amount worked out under subsection (2) is not a multiple of $2.60, the pensioner contribution is the next lower amount that is a multiple of $2.60.
Manner of payment
114. A person’s invalid pension is, subject to section 115, is to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
s. 115 Invalid Pension
Nominee payments
115. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s invalid pension is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the invalid pension is to be paid in accordance with the direction.
Payment into bank account etc.
116. (1) The Secretary may direct that the whole or a part of the amount of a person’s invalid pension is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the invalid pension is payable.
(3) The account may be an account that is maintained by a person to whom the invalid pension is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the invalid pension is to be payable in accordance with the direction.
Where pension payday would fall on public holiday etc.
117. If the Secretary is satisfied that an amount of invalid pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of pension after death
118. (1) If:
(a) an invalid pension is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of invalid pension payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of invalid pension under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of invalid pension.
Invalid Pension s. 119
Division 7—Protection of invalid pension
Invalid pension to be absolutely inalienable
119. (1) Subject to subsection (2) and section 1359, invalid pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of invalid pension payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
120. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of invalid pension payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of invalid pension payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
s. 121 Invalid Pension
Division 8—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
121. (1) The Secretary may give a person to whom an invalid pension is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Invalid Pension s. 122
Secretary may require recipient to give particular information relevant to payment of invalid pension
122. (1) The Secretary may give a person to whom an invalid pension is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the pension to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
123. (1) A person is not excused from giving information pursuant to a notice under section 121 or 122 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 121 or 122 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of. subsection 121 (5) or (6) or 122 (5) or (6).
s. 124 Invalid Pension
Division 9—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
124. (1) A determination that:
(a) a person’s claim for an invalid pension is granted; or
(b) an invalid pension is payable to a person;
continues in effect until:
(c) the pension ceases to be payable under section 125 or 126; or
(d) a further determination in relation to the pension under section 131 has taken effect.
Note 1: for paragraph (a) see section 105.
Note 2: for paragraph (b) see section 132—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of an invalid pension continues in effect until:
(a) the pension becomes payable at a lower rate under section 127 or 128; or
(b) a further determination in relation to the pension under section 129 or 130 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 121 notification obligations
125. If:
(a) a person who is receiving an invalid pension is given a notice under section 121; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension would, but for this section, cease to be payable to the person;
Invalid Pension s. 125
the pension continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s pension, there is no automatic rate reduction and a determination under section 130 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 121 notification obligations
126. If:
(a) a person who is receiving an invalid pension is given a notice under section 121; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension ceases to be payable to the person;
the pension ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 121 notification obligations
127. If:
(a) a person who is receiving an invalid pension is given a notice under section 121; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of pension is to be reduced;
s. 127 Invalid Pension
the pension becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstance occurs.
Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available
128. If:
(a) a person who is receiving an invalid pension is given a notice under section 121; and
(b) the notice requires the person to inform the Department of income for remunerative work undertaken by the person; and
(c) the person fails to notify the Department of income of that kind in accordance with the notice; and
(d) the person has an earnings credit account balance for the purposes of Division 4 of Part 3.10;
the pension becomes payable to the person at the reduced rate from the first pension payday after the day on which the person’s earnings credit account balance is reduced to nil.
Subdivision D—Determinations
Rate increase determination
129. If the Secretary is satisfied that the rate at which an invalid pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 133.
Rate reduction determination
130. If the Secretary is satisfied that the rate at which an invalid pension is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 127 or 128 (see subsection 124 (2)).
Note 2: for the date of effect of a determination under this section see section 134.
Cancellation or suspension determination
131. If the Secretary is satisfied that an invalid pension is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the pension is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 125 or 126 (see subsection 124(1)).
Note 2: for the date of effect of a determination under this section see section 134.
Invalid Pension s. 132
Resumption of payment after cancellation or suspension
132. (1) If the Secretary:
(a) cancels or suspends a person’s invalid pension under section 131; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive an invalid pension that was payable to the person; or
(b) the person is not receiving an invalid pension that is payable to the person;
the Secretary is to determine that an invalid pension was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 133.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
133. (1) The day on which a determination under section 129 or 132 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s invalid pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
s. 133 Invalid Pension
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s invalid pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s invalid pension; and
(b) no notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion, for the purposes of subsections 5 (12) and (13), that a young person will not, or would not, receive payments under a prescribed educational scheme; and
Invalid Pension s. 133
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment ceased, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
134. (1) The day on which a determination under section 130 or 131 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
s. 134 Invalid Pension
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose invalid pension is affected by the adverse determination has contravened a provision of this Act (other than section 122, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the pension has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the pension was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 10—Bereavement payments
Subdivision A—Death of pensioner partner
Qualification for payments under this Subdivision 135.
(a) a person is receiving an invalid pension; and
(b) the person is a member of a couple; and
Invalid Pension s. 135
(c) the person’s partner dies; and
(d) immediately before the partner died, the partner was receiving:
(i) an age pension; or
(ii) an invalid pension; or
(iii) a wife pension; or
(iv) a carer pension; or
(v) a sole parent pension under subparagraph 249 (1) (a) (iv) (illness separated couple); or
(vi) a sheltered employment allowance instead of an invalid pension; or
(vii) a rehabilitation allowance instead of a pension referred to in subparagraph (i), (ii) or (iii); or
(viii) a special needs age, invalid, wife or sole parent pension; or
(ix) a service pension;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 136 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.
Note 2: section 137 provides for a lump sum that represents the instalments that would have been paid to the person’s partner,, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
(2) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.
(3) An election under subsection (2):
(a) must be made by written notice to the Secretary; and
(b) may be made after the person has been paid an amount or amounts under this Subdivision; and
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.
(4) If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which age pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 138.
Continued payment of partner’s pension or allowance
136. If a person is qualified for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.
s. 137 Invalid Pension
Lump sum payable in some circumstances
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and |
| (b) the amount that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 138, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Adjustment of person’s invalid pension rate
(a) a person is qualified for payments under this Subdivision; and
Invalid Pension s. 138
(b) the person does not elect under subsection 135 (2) not to receive payments under this Subdivision;
the rate of the person’s invalid pension during the bereavement period is worked out as follows:
(c) during the bereavement rate continuation period, the rate of invalid pension payable to the person is the rate at which the pension would have been payable to the person if the person’s partner had not died;
(d) during the bereavement lump sum period (if any), the rate at which invalid pension is payable to the person is the rate at which the invalid pension would be payable to the person apart from this Subdivision.
Effect of death of person entitled to payments under this Subdivision
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person’s partner before the person dies;
there is payable, to such person as the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
s. 139 Invalid Pension
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and |
| (b) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 138, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends. |
Step 5. | Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section. |
Matters affecting payment of benefits under this Subdivision
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s
Invalid Pension s. 140
partner, except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;
(e) the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).
(2) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the “financial institution”); and
(c) the financial institution pays to the person, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.
Subdivision B—Death of dependent child
Bereavement payments on death of dependent child
141. If:
(a) a person is receiving an invalid pension; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s invalid pension rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 142 provides for invalid pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 143 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new invalid pension rate and the rate at which the pension would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional incentive allowance;
• additional remote area allowance.
s. 142 Invalid Pension
Continued payment of child-related amounts
142. If a person is qualified for payments under this Subdivision in relation to the death of a dependent child, the person’s invalid pension rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
143. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance for the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
Invalid Pension s. 143
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
| Method statement |
Step 1. | Work out the instalment of invalid pension payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 142 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of invalid pension that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s invalid pension rate were not calculated under section 142: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Subdivision C—Death of recipient
Death of recipient
144. (1) If:
(a) a person is receiving invalid pension; and
(b) either:
(i) the person is not a member of a couple; or
(ii) the person is a member of a couple and the person’s partner:
(a) is not receiving a social security pension; and
(b) is not receiving a social security benefit; and
(c) is not receiving a service pension; and
(c) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
s. 144 Invalid Pension
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note 1 : for amounts owing to the recipient before the recipient’s death see section 118.
Note 2: for death of a person qualified for bereavement payments under Subdivision A see section 139.
Division 11—Fringe benefits
Fringe benefits
145. If a person who is receiving an invalid pension qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
146. (1) A person who is receiving an invalid pension is qualified for fringe benefits if:
(a) the person is permanently blind; or
(b) the person’s invalid pension rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving an invalid pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s invalid pension rate is income reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving an invalid pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s invalid pension rate is assets reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
Wife Pension s. 147
PART 2.4—WIFE PENSION
Division 1—Qualification for and payability of wife pension
Subdivision A—Qualification
Qualification for wife pension
147. (1) A person is qualified for a wife pension if the person:
(a) is a woman who is a member of a couple; and
(b) has a partner who:
(i) is receiving an age pension or invalid pension; or
(ii) is receiving a rehabilitation allowance and was, immediately before he became qualified for that allowance, receiving an invalid pension.
Note: for “member of a couple” see section 4.
(2) Subsection (1) has effect subject to:
(a) section 1215 (12 months limit on overseas portability in certain circumstances); and
(b) sections 1218 and 1219 (departure certificate requirements for people leaving Australia).
Subdivision B—Payability
Wife pension not payable in some circumstances
148. (1) Even though a person is qualified for a wife pension, the pension may not be payable to the person because:
(a) the pension has not commenced to be payable (see sections 149 and 160); or
(b) the person or the person’s partner has received compensation (see Part 3.14); or
(c) the person is in gaol (see Part 3.13); or
(d) the person is receiving another pension or benefit (see section 151).
(2) A wife pension is not payable to a person if the person’s wife pension rate would be nil.
Wife pension generally not payable before claim
149. A wife pension is not payable to a person before the person’s provisional commencement day (identified under section 150).
s. 150 Wife Pension
Provisional commencement day
General rule
150. (1) Subject to subsections (2) and (3), a person’s provisional commencement day is the day on which the person claims the wife pension.
Initial incorrect claim followed by claim for wife pension
(2) If:
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a wife pension; and
(b) on the day on which the person makes the initial claim, the person is qualified for a wife pension; and
(c) the person subsequently makes a claim for a wife pension; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Early claim
(3) If:
(a) a person lodges a claim for a wife pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a wife pension; and
(c) the person becomes qualified for a wife pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person’s provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
Multiple entitlement exclusion
151. A wife pension is not payable to a person if the person is receiving:
(a) another social security pension; or
(b) a social security benefit; or
(c) a service pension.
Note: “social security pension” includes sheltered employment and rehabilitation allowances and “social security benefit” includes job search allowance.
Wife Pension s. 152
Division 2—Claim for wife pension
Need for a claim
152. (1) A person who wants to be granted a wife pension must make a proper claim for that pension.
Note: “proper claim”—see section 153 (form), section 154 (manner of lodgment) and section 155 (residence/presence in Australia).
(2) For the purposes of subsection (1), where:
(a) a claim for wife pension is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;
the claim is to be taken to have not been made.
Form of claim
153. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
154. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.
(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
Note: for international agreements see Part 4.1.
Claimant must be Australian resident and in Australia
155. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note 1: for “Australian resident” see subsection 7 (2).
Note 2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.
s. 156 Wife Pension
Division 3—Determination of claim
Secretary to determine claim
156. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
157. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for a wife pension; and
(b) the pension is payable.
Date of effect of determination
158. (1) Subject to subsections (2), (3) and (4), a determination under section 157 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for wife pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for wife pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Wife Pension s. 157
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for wife pension; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 4—Rate of wife pension
How to work out the rate of wife pension
159. A person’s wife pension rate is worked out using Pension Rate Calculator A at the end of section 1064 (see Part 3.2).
Division 5—Payment of wife pension
Commencement of wife pension
160. A wife pension becomes payable to a person on the first day on which:
(a) the person is qualified for the pension; and
(b) no provision of this Act makes the pension not payable to the person.
Note 1: for qualification see section 147.
Note 2: for the circumstances in which a wife pension is not payable see section 148.
Payment by instalments
161. (1) A full instalment of wife pension is payable to a person on each pension payday on which:
(a) the person is qualified for the pension; and
(b) the pension is payable to the person.
(2) If a person who is qualified for a wife pension is outside Australia, the instalments referred to in subsection (1) are to be paid to the person on such pension paydays as the Secretary determines for the purposes of this subsection.
Effect on instalments of backdating claim
162. If:
(a) a person lodges a claim for a wife pension on a particular day (in this section called the “claim day”); and
(b) the person’s provisional commencement day is before the claim day;
s. 162 Wife Pension
any instalment of wife pension that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Note: for “provisional commencement day” see section 150.
Calculation of amount of instalment
163. (1) The amount of an instalment of wife pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.
(2) If an amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
(4) If, apart from this subsection, the amount of an instalment of wife pension would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Inmates of benevolent homes
164. (1) While a person who is receiving a wife pension is an inmate of a benevolent home:
(a) so much of the person’s pension as does not exceed the pensioner contribution is to be paid to the person who controls the benevolent home for the maintenance of the person in the benevolent home; and
(b) the balance (if any) is to be paid to the person receiving the pension.
(2) For the purposes of this section, the pensioner contribution is, subject to subsection (3), 364 times the amount in force from time to time for the purposes of subparagraph 47 (2) (b) (iii) of the National Health Act 1953.
(3) If the amount worked out under subsection (2) is not a multiple of $2.60, the pensioner contribution is the next lower amount that is a multiple of $2.60.
Manner of payment
165. A wife pension that is, subject to section 166, payable to a person is to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Wife Pension s. 166
Nominee payments
166. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s wife pension is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the wife pension is to be paid in accordance with the direction.
Payment into bank account etc.
167. (1) The Secretary may direct that the whole or a part of the amount of a person’s wife pension is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account maintained by the person to whom the wife pension is payable.
(3) The account may be an account that is nominated and maintained by a person to whom the wife pension is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the wife pension is to be payable in accordance with the direction.
Where pension payday would fall on public holiday etc.
168. If the Secretary is satisfied that an amount of wife pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of pension after death
169. (1) If:
(a) a wife pension is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of wife pension payable to her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of wife pension under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of wife pension.
s. 170 Wife Pension
Division 6—Protection of wife pension
Wife pension to be absolutely inalienable
170. (1) Subject to subsection (2) and section 1359, wife pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of wife pension payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
171. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of wife pension payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method Statement |
Step 1. | Work out the total amount of wife pension payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Wife Pension s. 172
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
172. (1) The Secretary may give a person to whom a wife pension is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
s. 173 Wife Pension
Secretary may require recipient to give particular information relevant to payment of wife pension
173. (1) The Secretary may give a person to whom a wife pension is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the pension to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
174. (1) A person is not excused from giving information pursuant to a notice under section 172 or 173 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 172 or 173 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 172 (5) or (6) or 173 (5) or (6).
Wife Pension s. 175
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
175. (1) A determination that:
(a) a person’s claim for a wife pension is to be granted; or
(b) a wife pension is payable to a person;
continues in effect until:
(c) the pension ceases to be payable under section 176 or 177; or
(d) a further determination in relation to the pension under section 182 has taken effect.
Note 1: for paragraph (a) see section 157.
Note 2: for paragraph (b) see section 183—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a wife pension continues in effect until:
(a) the pension becomes payable at a lower rate under section 178 or 179; or
(b) a further determination in relation to the pension under section 180 or 181 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 172 notification obligations
176. If:
(a) a person who is receiving a wife pension is given a notice under section 172; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension would, but for this section, cease to be payable to the person;
s. 176 Wife Pension
the pension continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s pension, there is no automatic rate reduction and a determination under section 181 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 172 notification obligations
177. If:
(a) a person who is receiving a wife pension is given a notice under section 172; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension ceases to be payable to the person;
the pension ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 172 notification obligations
178. If:
(a) a person who is receiving a wife pension is given a notice under section 172; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of pension is to be reduced;
Wife Pension s. 178
the pension becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available
179. If:
(a) a person who is receiving a wife pension is given a notice under section 172; and
(b) the notice requires the person to inform the Department of income for remunerative work undertaken by the person; and
(c) the person fails to notify the Department of income of that kind in accordance with the notice; and
(d) the person has an earnings credit account balance for the purposes of Division 4 of Part 3.10;
the pension becomes payable to the person at the reduced rate from the first pension payday after the day on which the person’s earnings credit account balance is reduced to nil.
Subdivision D—Determinations
Rate increase determination
180. If the Secretary is satisfied that the rate at which a wife pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 184.
Rate reduction determination
181. If the Secretary is satisfied that the rate at which a wife pension is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 178 or 179 (see subsection 175 (2)).
Note 2: for the date of effect of a determination under this section see section 185.
Cancellation or suspension determination
182. If the Secretary is satisfied that a wife pension is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the pension is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 176 or 177 (see subsection 175 (1)).
Note 2: for the date of effect of a determination under this section see section 185.
s. 183 Wife Pension
Resumption of payment after cancellation or suspension
183. (1) If the Secretary:
(a) cancels or suspends a wife pension of a person under section 182; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive a wife pension that was payable to the person; or
(b) the person is not receiving a wife pension that is payable to the person;
the Secretary is to determine that a wife pension was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 184.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
184. (1) The day on which a determination under section 180 or 183 (in this section called the ‘favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s wife pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Wife Pension s. 184
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a wife pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a wife pension; and
(b) no notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion, for the purposes of subsections 5 (12) and (13), that a young person will not, or would not, receive payments under a prescribed educational scheme; and
s. 184 Wife Pension
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
185. (1) The day on which a determination under section 181 or 182 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the
Wife Pension s. 185
outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose pension is affected by the adverse determination has contravened a provision of this Act (other than section 173, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the pension has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the pension was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments
Subdivision A—Continuation of wife pension where partner dies
Continuation of wife pension for bereavement period 186.
(a) a person is receiving a wife pension; and
(b) the person’s partner dies;
s. 186 Wife Pension
the person is entitled to payments under this Subdivision to cover the bereavement period.
(2) The payments under this Subdivision take the form of the payment on each of the paydays during the bereavement period of the amount that would have been payable to the person if:
(a) the person’s partner had not died; and
(b) the person’s partner had continued to receive age or invalid pension or rehabilitation allowance; and
(c) the person and the person’s partner had continued to be members of a couple.
Continued wife pension rate
187. The rate of payments under this Subdivision is worked out as follows:
(a) during the bereavement rate continuation period, the rate of payments is equal to the rate of wife pension that would have been payable to the person if the person’s partner had not died;
(b) during the bereavement lump sum period (if any), the rate of payments under this Subdivision is the rate at which a widow B pension would have been payable to the person if the person had been qualified for a widow B pension.
Subdivision B—Death of pensioner partner
Qualification for payments under this Subdivision
188. (1) If:
(a) a person is receiving a wife pension; and
(b) the person’s partner dies;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 189 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.
Note 2: section 190 provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
(2) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.
(3) An election under subsection (2):
(a) must be made by written notice to the Secretary; and
(b) may be made after the person has been paid an amount or amounts under this Subdivision; and
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.
Wife Pension s. 189
Continued payment of partner’s pension or allowance
189. If a person is qualified for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.
Lump sum payable in some circumstances
190. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
s. 190 Wife Pension
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and |
| (b) the amount that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount of widow B pension that would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday if a widow B pension had been payable to the person on that payday: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Effect of death of person entitled to payments under this Subdivision 191. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person’s partner before the person dies;
there is payable, to such person as the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
Wife Pension s. 191
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and |
| (b) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for sections 186 and 187, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends. |
Step 5. | Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section. |
Matters affecting payment of benefits under this Subdivision 192.
(1) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s
s. 192 Wife Pension
partner, except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;
(e) the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).
(2) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the “financial institution”); and
(c) the financial institution pays to the person, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.
Subdivision C—Death of dependent child
Bereavement payments on death of dependent child
193. If:
(a) a person is receiving a wife pension; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s wife pension rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 194 provides for wife pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 195 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new wife pension rate and the rate at which the pension would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Wife Pension s. 194
Continued payment of child-related amounts
194. If a person is qualified for payments under this Subdivision in relation to the death of a dependent child, the person’s wife pension rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
195. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance in respect of the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Work out the instalment of wife pension payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 194 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of wife pension that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s wife pension rate were not calculated under section 194: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
s. 196 Wife Pension
Division 10—Fringe benefits
Fringe benefits
196. If a person who is receiving a wife pension qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
197. (1) A person who is receiving a wife pension is qualified for fringe benefits if the person’s wife pension rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving a wife pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s wife pension rate is income reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving a wife pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s wife pension rate is assets reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
Carer Pension s. 198
PART 2.5—CARER PENSION
Division 1—Qualification for and payability of carer pension
Subdivision A—Qualification
Qualification for carer pension
198. (1) A person is qualified for a carer pension if the person:
(a) personally provides constant care for a severely handicapped pensioner; and
(b) provides that care in a home that is the home of both the person and the pensioner; and
(c) is in Australia.
(2) If:
(a) a person is personally providing constant care for a severely handicapped pensioner; and
(b) the person temporarily ceases to provide that care; and
(c) the period, or the aggregate of the periods, for which the person ceases to provide that care is:
(i) not more than 28 days in any calendar year; or
(ii) another period that the Secretary, for any special reason in the particular case, decides to be appropriate;
the person does not cease to be qualified for a carer pension merely because of that cessation.
(3) In this section:
“care” includes attention and supervision;
“severely handicapped pensioner” means a person who:
(a) has a physical, intellectual or psychiatric disability; and
(b) because of that disability:
(i) requires frequent care in connection with the person’s bodily functions; or
(ii) requires constant supervision to prevent injury to the person or to another person;
permanently or for an extended period; and
(c) either:
(i) is receiving an age pension or an invalid pension; or
(ii) is receiving a rehabilitation allowance and was, immediately before becoming qualified for that allowance, receiving an invalid pension.
s. 199 Carer Pension
Subdivision B—Payability
Carer pension not payable in some circumstances
199. (1) Even though a person is qualified for a carer pension, the pension may not be payable to the person because:
(a) the pension has not commenced to be payable (see sections 200 and 211); or
(b) the person or the person’s partner has received compensation (see Part 3.14); or
(c) the person is in gaol (see Part 3.13); or
(d) the person is receiving another pension or benefit (see section 202).
(2) A carer pension is not payable to a person if the person’s carer pension rate would be nil.
Carer pension generally not payable before claim
200. A carer pension is not payable to a person before the person’s provisional commencement day (identified under section 201).
Provisional commencement day
General rule
201. (1) Subject to subsections (2) and (3), a person’s provisional commencement day is the day on which the person claims the carer pension.
Initial incorrect claim followed by claim for carer pension
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a carer pension; and
(b) on the day on which the person makes the initial claim, the person is qualified for a carer pension; and
(c) the person subsequently makes a claim for a carer pension; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Carer Pension s. 201
Early claim
(3) If:
(a) a person lodges a claim for a carer pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a carer pension; and
(c) the person becomes qualified for a carer pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person’s provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
Multiple entitlement exclusion
202. A carer pension is not payable to a person if the person is receiving:
(a) another social security pension; or
(b) a social security benefit; or
(c) a service pension.
Note: “social security pension” includes sheltered employment and rehabilitation allowances and “social security benefit” includes job search allowance.
Division 2—Claim for carer pension
Need for a claim
203. (1) A person who wants to be granted a carer pension must make a proper claim for that pension.
Note: “proper claim”—see section 204 (form), section 205 (manner of lodgment) and section 206 (residence/presence in Australia).
(2) For the purposes of subsection (1), where:
(a) a claim for carer pension is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;
the claim is to be taken to have not been made.
Form of claim
204. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
205. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
s. 205 Carer Pension
(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.
(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
Note: for international agreements see Part 4.1.
Claimant must be Australian resident and in Australia
206. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note 1: for “Australian resident” see subsection 7 (2).
Note 2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.
Division 3—Determination of claim
Secretary to determine claim
207. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
208. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for a carer pension; and
(b) the pension is payable.
Date of effect of determination
209. (1) Subject to subsections (2), (3) and (4), a determination under section 208 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for carer pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
Carer Pension s. 209
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for carer pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for carer pension; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 4—Rate of carer pension
How to work out a person’s carer pension rate
210. A person’s carer pension rate is worked out using Pension Rate Calculator A at the end of section 1064 (see Part 3.2).
Division 5—Payment of carer pension
Commencement of carer pension
211. A carer pension becomes payable to a person on the first day on which:
(a) the person is qualified for the pension; and
(b) no provision of this Act makes the pension not payable to the person.
Note 1: for qualification see section 198.
Note 2: for the circumstances in which a carer pension is not payable see section 199.
s. 212 Carer Pension
Payment by instalments
212. (1) A full instalment of carer pension is payable to a person on each pension payday on which:
(a) the person is qualified for the pension; and
(b) the pension is payable to the person.
(2) If a person who is qualified for a carer pension is outside Australia, the instalments referred to in subsection (1) are to be paid to the person on such pension paydays as the Secretary determines for the purposes of this subsection.
Note: carer pension is not payable outside Australia unless provided for by a scheduled international agreement.
Effect on instalments of backdating claim
213. If:
(a) a person lodges a claim for a carer pension on a particular day (in this section called the “claim day”); and
(b) the person’s provisional commencement day is before the claim day;
any instalment of carer pension that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Note: for “provisional commencement day” see section 201.
Calculation of amount of instalment
214. (1) The amount of an instalment of carer pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.
(2) If an amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
(4) If, apart from this subsection, the amount of an instalment of carer pension would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Manner of payment
215. A carer pension that is payable to a person is, subject to section 216, to be paid:
(a) to that person; and
Carer Pension s. 215
(b) in the manner directed by the Secretary.
Nominee payments
216. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s carer pension is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the carer pension is to be paid in accordance with the direction.
Payment into bank account etc.
217. (1) The Secretary may direct that the whole or a part of the amount of a person’s carer pension is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the carer pension is payable.
(3) The account may be an account that is maintained by a person to whom the carer pension is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the carer pension is to be payable in accordance with the direction.
Where pension payday would fall on public holiday etc.
218. If the Secretary is satisfied that an amount of carer pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of pension after death
219. (1) If:
(a) a carer pension is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of carer pension payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
s. 219 Carer Pension
(2) If the Secretary pays an amount of carer pension under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of carer pension.
Division 6—Protection of carer pension
Carer pension to be absolutely inalienable
220. (1) Subject to subsection (2) and section 1359, carer pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of carer pension payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of taxation—see section 1359.
Effect of garnishee or attachment order
221. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of carer pension payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
|
Step 1. | Work out the total amount of carer pension payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
Carer Pension s. 221
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
222. (1) The Secretary may give a person to whom a carer pension is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
s. 223 Carer Pension
Secretary may require recipient to give particular information relevant to payment of carer pension
223. (1) The Secretary may give a person to whom a carer pension is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the pension to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
224. (1) A person is not excused from giving information pursuant to a notice under section 222 or 223 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 222 or 223 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 222 (5) or (6) or 223 (5) or (6).
Carer Pension s. 225
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
225. (1) A determination that:
(a) a person’s claim for a carer pension is to be granted; or
(b) a carer pension is payable to a person;
continues in effect until:
(c) the pension ceases to be payable under section 226 or 227; or
(d) a further determination in relation to the pension under section 231 has taken effect.
Note 1 : for paragraph (a) see section 208.
Note 2: for paragraph (b) see section 232—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a carer pension continues in effect until:
(a) the pension becomes payable at a lower rate under section 228; or
(b) a further determination in relation to the pension under section 229 or 230 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 222 notification obligations
226. If:
(a) a person who is receiving a carer pension is given a notice under section 222; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the pension; or (ii) the pension would, but for this section, cease to be payable to the person;
s. 226 Carer Pension
the pension continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s pension, there is no automatic rate reduction and a determination under section 230 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 222 notification obligations
227. If:
(a) a person who is receiving a carer pension is given a notice under section 222; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension ceases to be payable to the person;
the pension ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 222 notification obligations
228. If:
(a) a person who is receiving a carer pension is given a notice under section 222; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of pension is to be reduced;
Carer Pension s. 228
the pension becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Subdivision D—Determinations
Rate increase determination
229. If the Secretary is satisfied that the rate at which a carer pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 233.
Rate reduction determination
230. If the Secretary is satisfied that the rate at which a carer pension is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 228 (see subsection 225 (2)).
Note 2: for the date of effect of a determination under this section see section 234.
Cancellation or suspension determination
231. If the Secretary is satisfied that a carer’s pension is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the pension is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 226 or 227 (see subsection 225 (1)).
Note 2: for the date of effect of a determination under this section see section 234.
Resumption of payment after cancellation or suspension
232. (1) If the Secretary:
(a) cancels or suspends a carer pension of a person under section 231; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and (ii) because of the decision to cancel or suspend:
(a) the person did not receive a carer pension that was payable to the person; or
(b) the person is not receiving a carer pension that is payable to the person;
the Secretary is to determine that a carer pension was or is payable to the person.
s. 232 Carer Pension
Note: for the date of effect of a determination under this subsection see section 233.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
233. (1) The day on which a determination under section 229 or 232 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a carer pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a carer pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the person sought the review.
Carer Pension s. 233
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a carer pension; and
(b) no notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion, for the purposes of subsections 5 (12) and (13), that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
s. 233 Carer Pension
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
234. (1) The day on which a determination under section 230 or 231 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose pension is affected by the adverse
Carer Pension s. 234
determination has contravened a provision of this Act (other than section .223, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the pension has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the pension was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments
Subdivision A—Continuation of carer pension
Continuation of carer pension for bereavement period where person cared for dies
235. (1) If:
(a) a person is receiving a carer pension; and
(b) the person is caring for another person who is not the partner of the first person; and
(c) the person being cared for dies;
the first person remains qualified for the carer pension during the bereavement period as if the person being cared for had not died.
(2) A person’s entitlements under this Subdivision are instead of, and not in addition to, any entitlements the person would, but for this section, have to a social security or service pension or a social security benefit.
(3) A person to whom subsection (1) applies may, by written notice to the Secretary, choose not to receive payments under this Subdivision and to receive instead any payments to which the person would be entitled but for subsection (2).
s. 235 Carer Pension
(4) If a person makes an election under subsection (3):
(a) this Act, or Part III of the Veterans’ Entitlements Act, has effect accordingly; and
(b) the person may not withdraw the election after the Department has taken all the action required to give effect to the election.
Continued carer pension rate
236. If a person is qualified for a carer pension solely because of section 235, the rate at which the pension is payable is to be determined having regard to the person’s actual circumstances.
Subdivision B—Death of pensioner partner
Qualification for payments under this Subdivision
237. (1) If:
(a) a person is receiving a carer pension; and
(b) the person is a member of a couple; and
(c) the person’s partner dies; and
(d) immediately before the partner died, the partner was receiving:
(i) an age pension; or
(ii) an invalid pension; or
(iii) a carer pension; or
(iv) a sole parent pension under subparagraph 249 (1) (a) (iv) (illness separated couple); or
(v) a sheltered employment allowance instead of an invalid pension; or
(vi) a rehabilitation allowance instead of a pension referred to in subparagraph (i), (ii) or (iii); or
(vii) a special needs age, invalid, wife or sole parent pension; or
(viii) a service pension;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 238 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.
Note 2: section 239 provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
(2) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.
(3) An election under subsection (2):
(a) must be made by written notice to the Secretary; and
Carer Pension s. 237
(b) may be made after the person has been paid an amount or amounts under this Subdivision; and
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.
(4) If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which carer pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 240.
Continued payment of partner’s pension or allowance
238. If a person is qualified for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.
Lump sum payable in some circumstances
239. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
s. 239 Carer Pension
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and |
| (b) the amount that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 240, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Adjustment of person’s carer pension rate
240. If:
(a) a person is qualified for payments under this Subdivision; and
(b) the person does not elect under subsection 237 (2) not to receive payments under this Subdivision;
the rate of the person’s carer pension during the bereavement period is worked out as follows:
(c) during the bereavement rate continuation period, the rate of carer pension payable to the person is the rate at which the pension would have been payable to the person if the person’s partner had not died;
(d) during the bereavement lump sum period (if any), the rate at which carer pension is payable to the person is the rate at
Carer Pension s. 240
which the carer pension would be payable to the person apart from this Subdivision.
Effect of death of person entitled to payments under this Subdivision
241. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person’s partner before the person dies;
there is payable, to such person as the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and |
| (b) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 240, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends. |
Step 5. | Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section. |
s. 242 Carer Pension
Matters affecting payment of benefits under this Subdivision
242. (1) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s partner, except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;
(e) the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).
(2) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act 1986, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the “financial institution”); and
(c) the financial institution pays to the person, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.
Subdivision C—Death of dependent child
Bereavement payments on death of dependent child
243. If:
(a) a person is receiving a carer pension; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s carer pension rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
Carer Pension s. 243
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 244 provides for carer pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 245 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new carer pension rate and the rate at which the pension would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
244. If a person is qualified for payments under this Subdivision in relation to the death of a dependent child, the person’s carer pension rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
245. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance in respect of the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
s. 245 Carer Pension
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
|
Step 1. | Work out the instalment of carer pension payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 244 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of carer pension that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s carer pension rate were not calculated under section 244: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Subdivision D—Death of recipient
Death of recipient
246. (1) If:
(a) a person is receiving carer pension; and
(b) either:
(i) the person is not a member of a couple; or
(ii) the person is a member of a couple and the person’s partner:
(a) is not receiving a social security pension; and
(b) is not receiving a social security benefit; and
(c) is not receiving a service pension; and
(c) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note 1: for amounts owing to the recipient before the recipient’s death see section 219.
Note 2: for death of a person qualified for bereavement payments under Subdivision B see section 241.
Carer Pension s. 247
Division 10—Fringe benefits
Fringe benefits
247. If a person who is receiving a carer pension qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
248. (1) A person who is receiving a carer pension is qualified for fringe benefits if the person’s carer pension rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving a carer pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s carer pension rate is income reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving a carer pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s carer pension rate is assets reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
s. 249 Sole Parent Pension
PART 2.6—SOLE PARENT PENSION
Division 1—Qualification for and payability of sole parent pension
Subdivision A—Qualification
Qualification for sole parent pension
249. (1) A person is qualified for a sole parent pension if:
(a) the person:
(i) is not a member of a couple; or
(ii) is a member of a couple whose partner has been in gaol for a continuous period of at least 14 days; or
(iii) is a member of a couple who is living separately and apart from his or her partner; or
(iv) is a member of a couple who is unable to live together with his or her partner in a matrimonial home because of the illness or infirmity of the partner where the illness or infirmity:
(a) results in the partner being unable to care for a child; and
(b) is, in the opinion of the Secretary, likely to continue indefinitely; and
(b) the person has at least one SPP child (see sections 250 and 251); and
(c) at least one of the following conditions is satisfied:
(i) if the person has only one SPP child—that child became an SPP child while the person was an Australian resident;
(ii) if the person has 2 or more SPP children—one of those children became an SPP child while the person was an Australian resident;
(iii) if the person has ever been a member of a couple—the person was an Australian resident immediately before the person became a person to whom paragraph (a) applies;
(iv) the person had been an Australian resident for a continuous period of at least 5 years immediately before the day on which the person lodges the claim;
(v) the person has, at any time, been an Australian resident for a continuous period of at least 10 years.
Note: for “Australian resident” see section 7.
(2) A woman does not have to satisfy paragraph (1) (c) in order to be qualified for a sole parent pension if:
(a) the woman became a person to whom paragraph (1) (a) applied because of the death of a man; and
(b) the woman was, immediately before the man died, receiving:
Sole Parent Pension s. 249
(i) a wife pension because the man was receiving:
(a) an age pension; or
(b) an invalid pension; or
(c) a special needs age pension; or
(d) a special needs invalid pension; or
(ii) a wife service pension under Part III of the Veterans’ Entitlements Act because the man was receiving a service pension under that Part; and
(c) the woman was not in Australia at the time when the man died.
(3) Subsection (1) has effect subject to:
(a) section 1214 (12 months limit on overseas portability); and
(b) sections 1218 and 1219 (departure certificate requirements for people leaving Australia).
SPP (sole parent pension) child
250. (1) A young person is an SPP child of another person (in this section called the “adult”) if:
(a) the young person is:
(i) a dependent child of the adult; or
(ii) a maintained child of the adult; and
(b) the young person:
(i) has not turned 16; or
(ii) is a child for whom the adult is qualified for child disability allowance; and
(c) the young person:
(i) is a natural or adopted child of the adult; or (ii) is in the adult’s legal custody; or
(iii) if the adult has ever been a member of a couple—was being maintained by the adult immediately before the adult becomes a person to whom paragraph 249 (1) (a) applies; or
(iv) has been wholly or substantially in the care and control of the adult for a period of at least 12 months before the day on which the adult claims sole parent pension and is, in the Secretary’s opinion, likely to remain wholly or substantially in the adult’s care and control permanently or indefinitely.
(2) For the purposes of subsection (1), a young person who has not turned 16 can be a dependent child of the adult even though:
(a) the young person is not in full-time education; and
(b) the young person is in receipt of income from wages; and
(c) the rate of that income exceeds $100 per week.
s. 250 Sole Parent Pension
Note 1: a young person covered by this subsection would normally not count as a dependent child (see subsection 5 (3)).
Note 2: subsection (2) does no more than allow the young person to be taken into account as a dependent child in working out whether a person is qualified for sole parent pension—it does not allow the young person to be taken into account as a dependent child in calculating the rate of a person’s sole parent pension (see Module C of Pension (Rate Calculator C).
Young person to be SPP child for only one person
251. (1) A young person can be an SPP child of only one person at a time.
(2) If the Secretary is satisfied that, but for this section, a young person would be an SP child of 2 or more persons, the Secretary is to:
(a) make a written determination that the Secretary is satisfied that that is the case; and
(b) specify in the determination the person whose SP child the young person is to be; and
(c) give each person a copy of the determination.
Effect of maintenance rights on qualification for sole parent pension
252. (1) A person is not qualified for a sole parent pension if:
(a) the person is entitled to maintenance; and
(b) the Secretary considers that it is reasonable for the person to take action to obtain maintenance; and
(c) the person does not take such action as the Secretary considers reasonable to obtain maintenance.
(2) In subsection (1):
“maintenance”, in relation to a person, means maintenance for the person or an SPP child of the person.
Subdivision B—Payability
Sole parent pension not payable in some circumstances
253. (1) Even though a person is qualified for a sole parent pension, the pension may not be payable to the person because:
(a) the pension has not commenced to be payable (see sections 254 and 270); or
(b) the person is in gaol (see Part 3.13); or
(c) the person is receiving another pension or benefit (see section 258).
(2) A sole parent pension is not payable to a person if the person’s sole parent pension rate would be nil.
Sole Parent Pension s. 254
Sole parent pension generally not payable before claim
254. Subject to sections 256 and 257, a sole parent pension is not payable to a person before the person’s provisional commencement day (identified under section 255).
Provisional commencement day
General rule
255. (1) Subject to subsections (2) and (3), a person’s provisional commencement day is the day on which the person claims the sole parent pension.
Initial incorrect claim followed by claim for sole parent pension
(2) If:
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a sole parent pension; and
(b) on the day on which the person makes the initial claim, the person is qualified for a sole parent pension; and
(c) the person subsequently makes a claim for a sole parent pension; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Early claim
(3) If:
(a) a person lodges a claim for a sole parent pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a sole parent pension; and
(c) the person becomes qualified for a sole parent pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person’s provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia.
Backdating—death of partner etc.
256. If:
(a) a person’s partner dies; and
s. 256 Sole Parent Pension
(b) the person’s provisional commencement day is within one month after the day on which the partner dies; and
(c) the person is qualified for sole parent pension at some time in the period between the death of the partner and the provisional commencement day;
the sole parent pension can become payable before the provisional commencement day but is not payable to the person before the first day in the period on which the person is qualified.
Note 1: for “provisional commencement day” see section 255.
Note 2: the pension will not necessarily be backdated to the day on which the person becomes qualified—some other factor may make the pension not payable at that time (e.g. compensation preclusion).
Backdating—birth of child
257. If:
(a) a woman gives birth to a child; and
(b) the woman’s provisional commencement day is within one month after the day on which the child is born; and
(c) the woman is qualified for a sole parent pension at some time in the period between the birth of the child and the provisional commencement day;
the sole parent pension can become payable to the person before the provisional commencement day but is not payable to the person before the first day in the period on which the person is qualified.
Note: for “provisional commencement day” see section 255.
Multiple entitlement exclusion
258. A sole parent pension is not payable to a person if:
(a) the person is receiving:
(i) another social security pension; or
(ii) a social security benefit; or
(iii) a service pension; or
(b) the person is a widow who is receiving:
(i) a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act; or
(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (2) of that Act.
Note: “social security pension” includes sheltered employment and rehabilitation allowances and “social security benefit” includes job search allowance.
Sole Parent Pension s. 259
Division 2—Claim for sole parent pension
Need for a claim
259. (1) A person who wants to be granted a sole parent pension must make a proper claim for that pension.
Note: “proper claim”—see section 260 (form), section 261 (manner of lodgment) and section 262 (residence/presence in Australia).
(2) For the purposes of subsection (1), where:
(a) a claim for sole parent pension is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;
the claim is to be taken to have not been made.
Form of claim
260. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
261. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.
(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
Note: for international agreements see Part 4.1.
Claimant must be Australian resident and in Australia
262. (1) A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note 1 : for “Australian resident” see subsection 7 (2).
Note 2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.
(2) Subsection (1) does not apply to a woman if:
(a) the woman became a person to whom paragraph 249 (1) (a) applies because of the death of a man; and
(b) the woman was, immediately before the man died, receiving:
s. 262 Sole Parent Pension
(i) a wife pension because the man was receiving:
(a) an age pension; or
(b) an invalid pension; or
(ii) a wife service pension under Part III of the Veterans’ Entitlements Act because the man was receiving a service pension under that Part; and
(c) the woman was not in Australia at the time when the man died.
Secretary may require some claimants to give information about domestic circumstances
De facto relationship
263. (1) If:
(a) a particular residence has been, for a period of at least 8 weeks, the principal home of both a claimant for sole parent pension and a person of the opposite sex; and
(b) the claimant is not legally married to the other person; and
(c) the claimant and the other person are not within a prohibited relationship for the purposes of section 23b of the Marriage Act 1961; and
(d) at least one of the following subparagraphs are satisfied:
(i) a child of both the people also lives in the residence;
(ii) the people have joint ownership of the residence;
(iii) the people are joint lessees of the residence and the original duration of the lease was at least 10 years;
(iv) the people have joint assets with a total value of more than $4,000;
(v) the people have joint liabilities totalling more than $1,000;
(vi) the people have at any time been legally married to each other;
(vii) the people have at any time shared another residence with each other;
the Secretary may give the claimant a notice that requires the claimant to give the Secretary:
(e) specified information about the claimant’s relationship with the other person; and
(f) any other information that might be relevant to the question whether the other person is the claimant’s partner.
Living separately and apart under the one roof
(2) If:
(a) a particular residence has been, for a period of at least 8 weeks, the principal home of both a claimant for sole parent pension and a person of the opposite sex; and
Sole Parent Pension s. 263
(b) the claimant and the other person are legally married to one another; and
(c) the claimant and the other person:
(i) are living separately and apart on a permanent basis; or (ii) claim to be living separately and apart on a permanent basis;
the Secretary may give the claimant a notice that requires the claimant to give the Secretary:
(d) specified information about the claimant’s relationship with the other person; and
(e) any other information that might be relevant to the question whether the claimant and the other person are living separately and apart on a permanent basis.
Kind of information that can be specified
(3) Information specified under paragraph (1) (e) or (2) (d) is to be information:
(a) that is within the claimant’s own knowledge; or
(b) that the claimant can reasonably be expected to obtain.
Notice to state effect of failure to comply with notice
(4) A notice under subsection (1) or (2) is to state that the claimant’s claim will be taken not to have been made if the claimant does not give the Secretary the required information within 14 days after the notice is given.
Offence
(5) A person must not, in purporting to comply with a notice under subsection (1) or (2), knowingly or recklessly give the Secretary information that is false or misleading in a material particular.
Penalty: $2,000 or imprisonment for 12 months, or both.
Secretary’s obligations if claimant complies with section 263 notice
De facto relationship
264. (1) If:
(a) a person claims sole parent pension; and
(b) the Secretary gives the claimant a notice under subsection 263 (1) about the claimant’s relationship with another person to whom the claimant is not legally married; and
(c) the claimant purports to give the Secretary the information required by the notice; and
(d) the Secretary is satisfied that the claimant has given the Secretary all the relevant information;
the Secretary must form an opinion whether the claimant is living with the other person in a marriage-like relationship.
s. 264 Sole Parent Pension
Note: in forming this opinion, the Secretary must apply the rule laid down in subsection 4 (4).
Favourable subsection (1) determination to be followed by investigation moratorium
(2) If the Secretary forms the opinion, under subsection (1), that the claimant is not living with the other person in a marriage-like relationship, the Secretary must not cause or permit any action to be taken for the purposes of, or in connection with, an investigation of the claimant’s relationship with the other person until:
(a) the Secretary has reason to believe that the claimant’s domestic circumstances have changed so that:
(i) a circumstance set out in subsection 263 (1) that did not previously apply to the claimant now applies to the claimant; or
(ii) a circumstance set out in subsection 263 (1) that previously applied to the claimant now applies to the claimant for a different reason; or
(b) 12 weeks after the Secretary formed the opinion under subsection (1) of this section;
whichever is earlier.
Living separately and apart under the one roof
(3) If:
(a) a person claims sole parent pension; and
(b) the Secretary gives the claimant a notice under subsection 263 (2) about the claimant’s relationship with another person to whom the claimant is legally married; and
(c) the claimant purports to give the Secretary the information required by the notice; and
(d) the Secretary is satisfied that the claimant has given the Secretary all the relevant information;
the Secretary must form an opinion whether the claimant is living separately and apart from the other person on a permanent basis.
Note: in forming this opinion, the Secretary must apply the rule laid down in subsection 4 (5).
Favourable subsection (3) determination to be followed by investigation moratorium
(4) If the Secretary forms the opinion, under subsection (3), that the claimant is living separately and apart from the other person on a permanent basis, the Secretary must not cause or permit any action to be taken for the purposes of, or in connection with, an investigation of the claimant’s relationship with the other person till 12 weeks after the Secretary formed that opinion.
Sole Parent Pension s. 265
Effect of failure by claimant to comply with section 263 notice
265. If:
(a) the Secretary gives a claimant for sole parent pension a notice under subsection 263 (1) or (2); and
(b) the claimant does not give the Secretary the information required by the notice within 14 days after the notice is given;
the claimant’s claim is to be taken not to have been lodged.
Note: if the claimant has to lodge a new claim for sole parent pension, this may well affect the date from which the sole parent pension can be paid.
Division 3—Determination of claim
Secretary to determine claim
266. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
267. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for a sole parent pension; and
(b) the pension is payable.
Date of effect of determination
268. (1) Subject to subsections (2), (3) and (4), a determination under section 267 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for a sole parent pension; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for a sole parent pension; and
s. 268 Sole Parent Pension
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a sole parent pension; and
(b) no notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination under section 267 is made as a result of the application for review;
the determination under section 267 takes effect on the day on which the previous decision took effect.
Division 4—Rate of sole parent pension
How to work out a person’s sole parent pension rate
269. A person’s sole parent pension rate is worked out using:
(a) if the person is qualified for sole parent pension because of subparagraph 249 (1) (a) (iv) (illness separation)—Pension Rate Calculator A at the end of section 1064 (see Part 3.2); or
(b) in any other case—Pension Rate Calculator C at the end of section 1066 (see Part 3.4).
Division 5—Payment of sole parent pension
Commencement of sole parent pension
270. A sole parent pension becomes payable to a person on the first day on which:
(a) the person is qualified for the pension; and
(b) no provision of this Act makes the pension not payable to the person.
Note 1 : for qualification see section 249.
Note 2: for the circumstances in which a sole parent pension is not payable see section 253.
Sole Parent Pension s. 271
Payment by instalments
271. (1) A full instalment of sole parent pension is payable to a person on each pension payday on which:
(a) the person is qualified for the pension; and
(b) the pension is payable to the person.
(2) If person who is qualified for a sole parent pension is outside Australia, the instalments referred to in subsection (1) are to be paid to the person on such pension paydays as the Secretary determines for the purposes of this subsection.
Effect on instalments of backdating claim
272. If:
(a) a person lodges a claim for a sole parent pension on a particular day (in this section called the “claim day”); and
(b) the person’s provisional commencement day is before the claim day;
any instalment of sole parent pension that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Note: for “provisional commencement day” see section 255.
Calculation of amount of instalment
273. (1) The amount of an instalment of sole parent pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.
(2) If an amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
(4) If, apart from this subsection, the amount of an instalment of sole parent pension would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Inmates of benevolent homes
274. (1) While a person who is receiving a sole parent pension is an inmate of a benevolent home:
(a) so much of the person’s pension as does not exceed the pensioner contribution is to be paid to the person who controls the benevolent home for the maintenance of the person in the benevolent home; and
(b) the balance (if any) is to be paid to the person receiving the pension.
s. 274 Sole Parent Pension
(2) For the purposes of this section, the pensioner contribution is, subject to subsection (3), 364 times the amount in force from time to time for the purposes of subparagraph 47 (2) (b) (iii) of the National Health Act 1953.
(3) If the amount worked out under subsection (2) is not a multiple of $2.60, the pensioner contribution is the next lower amount that is a multiple of $2.60.
Manner of payment
275. A person’s sole parent pension is, subject to section 276, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
276. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s sole parent pension is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the sole parent pension is to be paid in accordance with the direction.
Payment into bank account etc.
277. (1) The Secretary may direct that the whole or a part of the amount of a person’s sole parent pension is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the sole parent pension is payable.
(3) The account may be an account that is maintained by a person to whom the sole parent pension is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the sole parent pension is to be payable in accordance with the direction.
Where pension payday would fall on public holiday etc.
278. If the Secretary is satisfied that an amount of sole parent pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of pension after death
279. (1) If:
(a) a sole parent pension is payable to a person; and
Sole Parent Pension s. 279
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of sole parent pension payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of sole parent pension under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of sole parent pension.
Division 6—Protection of sole parent pension
Sole parent pension to be absolutely inalienable
280. (1) Subject to subsection (2) and section 1359, sole parent pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of sole parent pension payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
281. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of sole parent pension payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
s. 281 Sole Parent Pension
|
Step 1. | Work out the total amount of sole parent pension payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require some recipients to give information about domestic circumstances
De facto relationship
282. (1) If:
(a) a person is receiving sole parent pension; and
(b) a particular residence has been, for a period of at least 8 weeks, the principal home of both the recipient and a person of the opposite sex; and
(c) the recipient is not legally married to the other person; and
(d) the recipient and the other person are not within a prohibited relationship for the purposes of section 23b of the Marriage Act 1961; and
(e) at least one of the following subparagraphs is satisfied:
(i) a child of both the people also lives in the residence;
(ii) the people have joint ownership of the residence;
(iii) the people are joint lessees of the residence and the original duration of the lease was at least 10 years;
(iv) the people have joint assets with a total value of more than $4,000;
(v) the people have joint liabilities totalling more than $1,000;
(vi) the people have at any time been legally married to each other;
(vii) the people have at any time shared another residence with each other;
the Secretary may give the recipient a notice that requires the recipient to give the Secretary:
Sole Parent Pension s. 282
(f) specified information about the recipient’s relationship with the other person; and
(g) any other information that might be relevant to the question whether the other person is the recipient’s partner.
Note: for the effect of a failure to comply with the notice see sections 296 and 297.
Living separately and apart under the one roof
(2) If:
(a) a person is receiving sole parent pension; and
(b) a particular residence has been, for a period of at least 8 weeks, the principal home of both the recipient and a person of the opposite sex; and
(c) the recipient and the other person are legally married to one another; and
(d) the recipient and the other person:
(i) are living separately and apart on a permanent basis; or
(ii) claim to be living separately and apart on a permanent basis;
the Secretary may give the recipient a notice that requires the recipient to give the Secretary:
(e) specified information about the recipient’s relationship with the other person; and
(f) any other information that might be relevant to the question whether the recipient and the other person are living separately and apart on a permanent basis.
Note: for the effect of a failure to comply with the notice see sections 296 and 297.
Kind of information that may be specified
(3) Information specified under paragraph (1) (f) or (2) (e) is to be information:
(a) that is within the recipient’s own knowledge; or
(b) that the recipient can reasonably be expected to obtain.
Notice to state effect of failure to comply with notice
(4) A notice under subsection (1) or (2) is to state that the recipient’s sole parent pension will be suspended if the recipient does not give the Secretary the required information within 14 days after the notice is given.
Offence
(5) A person must not, in purporting to comply with a notice under subsection (1) or (2), knowingly or recklessly give the Secretary information that is false or misleading in a material particular.
Penalty: $2,000 or imprisonment for 12 months, or both.
s. 283 Sole Parent Pension
Secretary’s obligations if recipient complies with section 282 notice
De facto relationship
283. (1) If:
(a) a person is receiving a sole parent pension; and
(b) the Secretary gives the recipient a notice under subsection 282 (1) about the recipient’s relationship with another person to whom the recipient is not legally married; and
(c) the recipient purports to give the Secretary the information required by the notice; and
(d) the Secretary is satisfied that the recipient has given the Secretary all the relevant information;
the Secretary must form an opinion whether the recipient is living with the other person in a marriage-like relationship.
Note: in forming this opinion, the Secretary must apply the rule laid down in subsection 4 (4).
Favourable subsection (1) determination to be followed by investigation moratorium
(2) If the Secretary forms the opinion, under subsection (1), that the claimant is not living with the other person in a marriage like relationship, the Secretary must not cause or permit any action to be taken for the purposes of, or in connection with, an investigation of the claimant’s relationship with the other person until:
(a) the Secretary has reason to believe that the claimant’s domestic circumstances have changed so that:
(i) a circumstance set out in subsection 263 (1) that did not previously apply to the claimant now applies to the claimant; or
(ii) a circumstance set out in subsection 263 (1) that previously applied to the claimant now applies to the claimant for a different reason; or
(b) 12 weeks after the Secretary formed the opinion under subsection (1) of this section;
whichever is earlier.
Living separately and apart under the one roof
(3) If:
(a) a person is receiving a sole parent pension; and
(b) the Secretary gives the recipient a notice under subsection 282 (2) about the recipient’s relationship with another person to whom the recipient is legally married; and
(c) the recipient purports to give the Secretary the information required by the notice; and
(d) the Secretary is satisfied that the recipient has given the Secretary all the relevant information;
Sole Parent Pension s. 283
the Secretary must form an opinion whether the recipient is living separately and apart from the other person on a permanent basis.
Note: in forming this opinion, the Secretary must apply the rule laid down in subsection 4 (5).
Favourable subsection (3) determination to be followed by investigation moratorium
(4) If the Secretary forms the opinion, under subsection (3), that the claimant is living separately and apart from the other person on a permanent basis, the Secretary must not cause or permit any action to be taken for the purposes of, or in connection with, an investigation of the claimant’s relationship with the other person until 12 weeks after the Secretary formed that opinion.
Secretary may require notice of the happening of an event or a change in circumstances
284. (1) The Secretary may give a person to whom a sole parent pension is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
s. 284 Sole Parent Pension
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of sole parent pension
285. (1) The Secretary may give a person to whom a sole parent pension is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the pension to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Sole Parent Pension s. 286
Self incrimination
286. (1) A person is not excused from giving information pursuant to a notice under section 284 or 285 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 284 or 285 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 284 (5) or (6) or 285 (5) or (6).
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
287. (1) A determination that:
(a) a person’s claim for a sole parent pension is granted; or
(b) a sole parent pension is payable to a person; continues in effect until:
(c) the pension ceases to be payable under section 288, 289 or 290; or
(d) a further determination in relation to the pension under section 295 or 296 has taken effect.
Note 1: for paragraph (a) see section 267.
Note 2: for paragraph (b) see section 298—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a sole parent pension continues in effect until:
(a) the pension becomes payable at a lower rate under section 291 or 292; or
(b) a further determination in relation to the pension under section 293 or 294 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 284 notification obligations
288. If:
(a) a person who is receiving a sole parent pension is given a notice under section 284; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a
s. 288 Sole Parent Pension
specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension would, but for this section, cease to be payable to the person;
the pension continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s pension, there is no automatic rate reduction and a determination under section 294 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 284 notification obligations
289. If:
(a) a person who is receiving a sole parent pension is given a notice under section 284; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension ceases to be payable to the person; the pension ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Automatic termination—failure to provide section 285 statement
290. (1) If:
(a) a person who is receiving a sole parent pension is given a notice under section 285 requiring the person to give the Department a statement; and
(b) the notice relates to the payment of that pension during a period specified in the notice; and
Sole Parent Pension s. 290
(c) the person does not comply with the notice; the pension, subject to subsection (2), ceases to be payable to the person as from the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 284 notification obligations
291. If:
(a) a person who is receiving a sole parent pension is given a notice under section 284; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence or the event of change in circumstances, the person’s rate of pension is to be reduced;
the pension becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available
292. If:
(a) a person who is receiving a sole parent pension is given a notice under section 284; and
(b) the notice requires the person to inform the Department of income for remunerative work undertaken by the person; and
(c) the person fails to notify the Department of income of that kind in accordance with the notice; and
(d) the person has an earnings credit account balance for the purposes of Division 4 of Part 3.10;
the pension becomes payable to the person at the reduced rate from the first pension payday after the day on which the person’s earnings credit account balance is reduced to nil.
s. 293 Sole Parent Pension
Subdivision D—Determinations
Rate increase determination
293. If the Secretary is satisfied that the rate at which sole parent pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 299.
Rate reduction determination
294. If the Secretary is satisfied that the rate at which a sole parent pension is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 291 or 292 (see subsection 287 (2)).
Note 2: for the date of effect of a determination under this section see section 300.
Cancellation or suspension determination
295. If the Secretary is satisfied that a sole parent pension is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the pension is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 288, 289 or 290 (see subsection 287 (1)).
Note 2: for the date of effect of a determination under this section see section 300. Suspension for failure to comply with section 282 notice
296. (1) If:
(a) a person is receiving a sole parent pension; and
(b) the Secretary gives the recipient a notice under section 282; and
(c) the recipient fails to give the Secretary the information required by the notice within 14 days after the notice is given;
the Secretary is to determine that the pension is to be suspended.
(2) If the Secretary suspends a person’s sole parent pension under subsection (1), the Secretary must give the person a notice that states that the person’s pension will be cancelled if the information required by the notice under section 282 is not given to the Secretary within 14 days after the notice under this subsection is given.
(3) If:
(a) the recipient’s sole parent pension is suspended under subsection (1); and
(b) the recipient gives the Secretary the information required within the 14 days referred to in the notice under subsection (2) of this section; and
Sole Parent Pension s. 296
(c) the Secretary forms the opinion that:
(i) if the notice under section 282 was a notice under subsection 282 (1) about the recipient’s relationship with another person to whom the recipient is not legally married—the recipient is not living with the other person in a marriage-like relationship; or
(ii) if the notice under section 282 was a notice under subsection 282 (2) about the recipient’s relationship with another person to whom the recipient is legally married— the recipient is living separately and apart from the other person on a permanent basis;
the recipient is entitled to be paid any amounts of sole parent pension that the recipient would have been entitled to be paid if the pension had not been suspended under subsection (1).
Cancellation for failure to comply with subsection 296 (2) notice
297. If:
(a) a person’s sole parent pension is suspended under subsection 296 (1); and
(b) the person fails to give the Secretary the information required by the notice under section 282 within the 14 days referred to in the notice under subsection 296 (2);
the Secretary is to determine that the pension is to be cancelled.
Resumption of payment after cancellation or suspension
298. (1) If the Secretary:
(a) cancels or suspends a person’s sole parent pension under section 295; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive a sole parent pension that was payable to the person; or
(b) the person is not receiving a sole parent pension that is payable to the person;
the Secretary is to determine that a sole parent pension was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 299.
s. 299 Sole Parent Pension
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
299. (1) The day on which a determination under section 293 or 298 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a sole parent pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a sole parent pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a sole parent pension; and
(b) no notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
Sole Parent Pension s. 299
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment ceased, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that
s. 299 Sole Parent Pension
young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
300. (1) The day on which a determination under section 294 or 295 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if a person seeks review of a section 297 cancellation decision, payment of the sole parent pension may be continued pending the outcome of the review. If the application for review is made within 14 days of notification of the decision, continued payment will be automatic: see section 1242 (internal review) and section 1252 (review by Social Security Appeals Tribunal). If the application is made after that time, continued payment is at the Secretary’s discretion: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose pension is affected by the adverse determination has contravened a provision of this Act (other than section 285, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Sole Parent Pension s. 300
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the pension has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the pension was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments
Subdivision A—Continuation of sole parent pension
Continuation of sole parent pension for bereavement period where recipient’s only SPP child dies
301. (1) If:
(a) a person is receiving a sole parent pension; and
(b) a dependent or maintained child of the person dies; and
(c) the child was the only SPP child of the person;
the person is qualified for the sole parent pension during the bereavement period as if the child had not died.
(2) Subsection (1) does not apply in respect of any part of the bereavement period after the person stops being a person to whom paragraph 249 (1) (a) applies.
(3) A person’s entitlements under this Subdivision are instead of, and not in addition to, any entitlements the person would, but for this Subdivision, have to a social security or service pension or a social security benefit.
(4) A person to whom subsection (1) applies may, by written notice to the Secretary, choose not to receive payments under this Subdivision and to receive instead any payments to which the person would be entitled but for subsection (3).
(5) Where a person makes an election under subsection (4):
(a) this Act has effect accordingly; and
s. 301 Sole Parent Pension
(b) the person may not withdraw the election after the Department has taken all the action required to give effect to the election.
Continued sole parent pension rate
302. (1) If a person is qualified for a sole parent pension solely because of section 301, the rate at which the pension is payable is to be determined having regard to the person’s actual circumstances.
(2) Without limiting the generality of subsection (1), the rate at which the pension is payable is not to include any amount by way of child related payment within the meaning of section 310.
Subdivision B—Death of pensioner partner
Qualification for payments under this Subdivision
303. (1) If:
(a) a person is receiving a sole parent pension; and
(b) the person is a member of a couple; and
(c) the person’s partner dies; and
(d) immediately before the partner died, the partner was receiving:
(i) an age pension; or
(ii) an invalid pension; or
(iii) a carer pension; or
(iv) a sheltered employment allowance instead of an invalid pension; or
(v) a rehabilitation allowance instead of a pension referred to in subparagraph (i) or (ii); or
(vi) a special needs age or invalid pension; or
(vii) a service pension;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 304 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.
Note 2: section 305 provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
(2) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.
(3) An election under subsection (2):
(a) must be made by written notice to the Secretary; and
(b) may be made after the person has been paid an amount or amounts under this Subdivision; and
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.
Sole Parent Pension s. 303
(4) If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which sole parent pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 306.
Continued payment of partner’s pension or allowance
304. If a person is qualified for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.
Lump sum payable in some circumstances
305. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
s. 305 Sole Parent Pension
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available payday; and |
| (b) the amount that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 306, would have been payable to the person on the pension payday immediately before the first available payday: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the lump sum period. |
Step 5. | Multiply the partner’s instalment component by the number of pension paydays in the instalment period: the result is the amount of the lump sum payable to the person under this section. |
Adjustment of person’s sole parent pension rate
306. If:
(a) a person is qualified for payments under this Subdivision; and
(b) the person does not elect under subsection 303 (2) not to receive payments under this Subdivision;
the rate of the person’s sole parent pension during the bereavement period is worked out as follows:
(c) during the bereavement rate continuation period, the rate of sole parent pension payable to the person is the rate at which the pension would have been payable to the person if the person’s partner had not died;
(d) during the bereavement lump sum period (if any), the rate at which sole parent pension is payable to the person is the rate at which the sole parent pension would be payable to the person apart from this Subdivision.
Sole Parent Pension s. 307
Effect of death of person entitled to payments under this Subdivision
307. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person’s partner before the person dies;
there is payable, to such person as the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and |
| (b) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 306, would have been payable to the. person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends. |
Step 5. | Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section. |
Matters affecting payment of benefits under this Subdivision
308. (1) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
s. 308 Sole Parent Pension
(b) after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part HI of the Veterans’ Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s partner, except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;
(e) the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).
(2) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the “financial institution”); and
(c) the financial institution pays to the person, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.
Subdivision C—Death of dependent or maintained child
Bereavement payments on death of dependent or maintained child
309. If:
(a) a person is receiving a sole parent pension; and
(b) a dependent or maintained child of the person dies; and
(c) immediately before the child died, the person’s sole parent pension rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child; and
(d) the child was not the only SPP child of the person;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 310 provides for sole parent pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid
Sole Parent Pension s. 309
if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 311 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new sole parent pension rate and the rate at which the pension would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
310. If a person is qualified for payments under this Subdivision in relation to the death of a dependent or maintained child, the person’s sole parent pension rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
311. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of a dependent or maintained child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance in respect of the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent or maintained child and somebody else was receiving family allowance in respect of the dependent or maintained child, a corresponding lump sum may be payable to the other person under section 890.
s. 311 Sole Parent Pension
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Work out the instalment of sole parent pension payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 310 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of sole parent pension that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s sole parent pension rate were not calculated under section 310: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Subdivision D—Death of recipient
Death of recipient
312. (1) If:
(a) a person is receiving sole parent pension; and
(b) either:
(i) the person is not a member of a couple; or
(ii) the person is a member of a couple and the person’s partner:
(a) is not receiving a social security pension; and
(b) is not receiving a social security benefit; and
(c) is not receiving a service pension; and
(c) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
Sole Parent Pension s. 312
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note 1: for amounts owing to the recipient before the recipient’s death see section 279.
Note 2: for death of a person qualified for bereavement payments under Subdivision B see section 307.
Division 10—Fringe benefits
Fringe benefits
313. If a person who is receiving a sole parent pension qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
314. (1) A person who is receiving a sole parent pension is qualified for fringe benefits if the person’s sole parent pension rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving a sole parent pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s sole parent pension rate is income reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving a sole parent pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s sole parent pension rate is assets reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
s. 315 Widowed Person Allowance
PART 2.7—WIDOWED PERSON ALLOWANCE
Division 1—Qualification for and payability of widowed person allowance
Subdivision A—Qualification
Qualification for widowed person allowance
315. (1) A person is qualified for a widowed person allowance on a pension payday if:
(a) the person:
(i) was a member of a couple; and
(ii) stopped being a member of a couple because the person’s partner died on or after 17 February 1989; and
(b) the person is not a member of a couple; and
(c) the person is not qualified for a sole parent pension; and
(d) at least one of the following conditions is satisfied:
(i) when the person’s partner died, both the person and the person’s partner were Australian residents;
(ii) the person had been an Australian resident for a continuous period of at least 5 years immediately before the day on which the person lodged the claim;
(iii) the person has, at any time, been an Australian resident
for a continuous period of at least 10 years;
(iv) the person is a woman:
(a) to whom a wife pension, or a wife’s service pension under Part III of the Veterans’ Entitlements Act, was payable immediately before her partner died; and
(b) who was not in Australia when her partner died; and
(e) the pension payday occurs:
(i) if the person is a man, or a woman who was not pregnant when her partner died—in the period of 12 weeks starting on the day of the death of the partner; or
(ii) if the person is a woman who was pregnant when her partner died:
(a) in the period of 12 weeks starting on the day of the death of the partner; or
(b) in the period starting on the day of the death of the partner and ending when the child is born or the woman otherwise stops being pregnant;
whichever ends later.
Note: for “Australian resident” see section 7.
Widowed Person Allowance s. 315
(2) Subsection (1) has effect subject to sections 1218 and 1219 (departure certificate requirements for people leaving Australia).
Subdivision B—Payability
Widowed person allowance not payable in some circumstances
316. (1) Even though a person is qualified for a widowed person allowance on a pension payday the allowance may not be payable to the person because:
(a) the allowance has not commenced to be payable (see sections 317 and 330); or
(b) the person is in gaol (see Part 3.13); or
(c) the person is already receiving pension or benefit (see section 321).
(2) A widowed person allowance is not payable to a person if the person’s widowed person allowance rate would be nil.
Widowed person allowance generally not payable before claim
317. Subject to sections 319 and 320, a widowed person allowance is not payable to a person before the person’s provisional commencement day (identified under section 318).
Provisional commencement day
General rule
318. (1) Subject to subsections (2) and (3), a person’s provisional commencement day is worked out as follows:
(a) if the person claims the allowance within 4 weeks of the death of the person’s partner—the person’s provisional commencement day is the day of the death;
(b) if the person does not claim the allowance within 4 weeks of the death of the person’s partner—the person’s provisional commencement day is the day on which the person claims the allowance.
Note: if the person does not claim the allowance within the period applicable to the person under paragraph 315 (1) (e), no allowance is payable to the person.
Initial incorrect claim followed by claim for widowed person allowance
(2) If:
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the
s. 318 Widowed Person Allowance
Commonwealth, that is similar in character to a widowed person’s allowance;; and
(b) on the day on which the person makes the initial claim, the person is qualified for a widowed person’s allowance; and
(c) the person subsequently makes a claim for a widowed person’s allowance; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is:
(e) if the person’s initial claim is made within 4 weeks of the death of the person’s partner—the day of the death; or
(f) if the person’s initial claim is not made within 4 weeks of the death of the person’s partner—the day on which the person made the initial claim.
Note: if the person does not claim the allowance within the period applicable to the person under paragraph 315 (1) (e), no allowance is payable to the person.
Early claim
(3) If:
(a) a person lodges a claim for widowed person allowance; and
(b) the person is not, on the day on which the claim is lodged, qualified for widowed person allowance; and
(c) the person becomes qualified for widowed person allowance sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person’s provisional commencement day is the first day on which the person is qualified for the allowance and is an Australian resident and in Australia.
Backdating—death of partner etc.
319. If:
(a) a person’s partner dies; and
(b) the person’s provisional commencement day is within one month after the day on which the partner dies; and
(c) the person is qualified for widowed person allowance at some time in the period between the death of the partner and the provisional commencement day;
the widowed person allowance can become payable before the provisional commencement day but cannot become payable to the person before the first day in the period on which the person is qualified.
Note 1: for “provisional commencement day” see section 318.
Note 2: the allowance will not necessarily be backdated to the day on which the person becomes qualified—some other factor may make the allowance not payable at that time.
Widowed Person Allowance s. 320
Backdating—birth of child
320. If:
(a) a woman gives birth to a child; and
(b) the woman’s provisional commencement day is within one month after the day on which the child is born; and
(c) the woman is qualified for a widowed person allowance at some time in the period between the birth of the child and the provisional commencement day;
the widowed person allowance can become payable to the person before the provisional commencement day but cannot become payable to the person before the first day in the period on which the person is qualified.
Note: for “provisional commencement day” see section 318.
Multiple entitlement exclusion
321. A widowed person allowance is not payable to a person if:
(a) the person is receiving:
(i) social security benefit; or
(ii) another social security pension; or
(iii) a service pension; or
(b) the person is a widow who is receiving:
(i) a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act; or
(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (1) of that Act.
Note 1 : “social security pension” includes widowed person, sheltered employment and rehabilitation allowances and “social security benefit” includes job search allowance.
Note 2: “widow” means a woman who was a member of a couple immediately before her partner died—see section 23.
Division 2—Claim for widowed person allowance
Need for a claim
322. (1) A person who wants to be granted a widowed person allowance must make a proper claim for that allowance.
Note: “proper claim”—see section 323 (form), section 324 (manner of lodgment) and section 325 (residence/presence in Australia).
(2) For the purposes of subsection (1), where:
(a) a claim for widowed person allowance is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;
the claim is to be taken to have not been made.
s. 323 Widowed Person Allowance
Form of claim
323. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
324. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.
(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
Note: for international agreements see Part 4.1.
Claimant must be Australian resident and in Australia
325. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note 1 : for “Australian resident” see subsection 7 (2).
Note 2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.
Division 3—Determination of claim
Secretary to determine claim
326. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
327. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for widowed person allowance; and
(b) the allowance is payable.
Date of effect of determination
328. (1) Subject to subsections (2), (3) and (4), a determination under section 327 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Widowed Person Allowance s. 328
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for widowed person allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for widowed person allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting the person’s claim for widowed person allowance; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
s. 329 Widowed Person Allowance
Division 4—Rate of widowed person allowance
How to work out a person’s widowed person allowance rate
329. A person’s rate of widowed person allowance is worked out using Pension Rate Calculator C at the end of section 1066 (see Part 3.4).
Division 5—Payment of widowed person allowance
Commencement of widowed person allowance
330. A widowed person allowance becomes payable to a person on the first day on which:
(a) the person is qualified for the allowance; and
(b) no provision of this Act makes the allowance not payable to the person.
Note 1: for qualification see section 315.
Note 2: for the circumstances in which a widowed person allowance is not payable see section 316.
Payment by instalments
331. (1) An instalment of widowed person allowance is payable to a person on each pension payday on which:
(a) the person is qualified for the allowance; and
(b) the allowance is payable to the person.
(2) If a person who is qualified for a widowed person allowance is outside Australia, the instalments referred to in subsection (1) are to be paid to the person on such pension paydays as the Secretary determines for the purposes of this subsection.
Effect on instalments of backdating claim
332. If:
(a) a person lodges a claim for a widowed person allowance on a particular day (in this section called the “claim day”); and
(b) the person’s provisional commencement day is before the claim day;
any instalment of widowed person allowance that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Note: for “provisional commencement day” see section 318.
Calculation of amount of instalment
333. (1) The amount of an instalment of widowed person allowance is the amount worked out by dividing the amount of the annual rate of the allowance by 26.
Widowed Person Allowance s. 333
(2) If an amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
(4) If, apart from this subsection, the amount of an instalment of allowance would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Manner of payment
334. A person’s widowed person allowance is, subject to section 335, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
335. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s widowed person allowance is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the widowed person allowance is to be paid in accordance with the direction.
Payment into bank account etc.
336. (1) The Secretary may direct that the whole or a part of the amount of a person’s widowed person allowance is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the widowed person allowance is payable.
(3) The account may be an account that is maintained by a person to whom the widowed person allowance is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the widowed person allowance is to be payable in accordance with the direction.
Where allowance payday would fall on public holiday etc.
337. If the Secretary is satisfied that an amount of widowed person allowance that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
s. 338 Widowed Person Allowance
Payment of allowance after death
338. (1) If:
(a) a widowed person allowance is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of widowed person allowance payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of widowed person allowance under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of widowed person allowance.
Division 6—Protection of widowed person allowance
Widowed person allowance to be absolutely inalienable
339. (1) Subject to subsection (2) and section 1359, widowed person allowance is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of widowed person allowance payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
340. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of widowed person allowance payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
Widowed Person Allowance s. 340
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of widowed person allowance payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
341. (1) The Secretary may give a person to whom a widowed person allowance is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the allowance.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
s. 341 Widowed Person Allowance
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of widowed person allowance
342. (1) The Secretary may give a person to whom a widowed person allowance is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the allowance to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end more than 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
Widowed Person Allowance s. 342
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
343. (1) A person is not excused from giving information pursuant to a notice under section 341 or 342 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 341 or 342 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 341 (5) or (6) or 342 (5) or (6).
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
344. (1) A determination that:
(a) a person’s claim for a widowed person allowance is to be granted; or
(b) a widowed person allowance is payable to a person; continues in effect:
(c) until the expiry of the period referred to in paragraph 315 (1) (e) which is relevant to the person; or
(d) before that period ends, until:
(i) the allowance ceases to be payable under section 345, 346 or 347; or
(ii) a further determination in relation to the pension under section 352 has taken effect.
Note 1 : for paragraph (a) see section 327.
Note 2: for paragraph (b) see section 353—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a widowed person allowance continues in effect until:
(a) the allowance becomes payable at a lower rate under section 348 or 349; or
(b) a further determination in relation to the allowance under section 350 or 351 has taken effect.
s. 345 Widowed Person Allowance
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 341 notification obligations
345. If:
(a) a person who is receiving a widowed person allowance is given a notice under section 341; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance would, but for this section, cease to be payable to the person;
the allowance continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person allowance, there is no automatic rate reduction and a determination under section 351 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 341 notification obligations
346. If:
(a) a person who is receiving a widowed person allowance is given a notice under section 341; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the allowance; or (ii) the allowance ceases to be payable to the person; the allowance ceases to be payable to the person immediately after the day on which the event or change in circumstance occurs.
Widowed Person Allowance s. 347
Automatic termination—failure to provide section 342 statement
347. (1) If:
(a) a person who is receiving a widowed person allowance is given a notice under section 342 requiring the person to give the Department a statement; and
(b) the notice relates to the payment of that allowance during a period specified in the notice; and
(c) the person does not comply with the notice;
the allowance, subject to subsection (2), ceases to be payable to the person as from the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 341 notification obligations
348. If:
(a) a person who is receiving a widowed person allowance is given a notice under section 341; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person rate of allowance is to be reduced;
the allowance becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstance occurs.
Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available
349. If:
(a) a person who is receiving a widowed person allowance is given a notice under section 341; and
s. 349 Widowed Person Allowance
(b) the notice requires the person to inform the Department of a payment for remunerative work undertaken by the person; and
(c) the person fails to notify the Department of a payment of that kind in accordance with the notice; and
(d) the person has an earnings credit account balance for the purposes of Division 4 of Part 3.10;
the allowance becomes payable to the person at the reduced rate from the first pension payday after the day on which the person’s earnings credit balance is reduced to nil.
Subdivision D—Determinations
Rate increase determination
350. If the Secretary is satisfied that the rate at which a widowed person allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 354.
Rate reduction determination
351. If the Secretary is satisfied that the rate at which a widowed person allowance is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 348 or 349 (see subsection 344 (2)).
Note 2: for the date of effect of a determination under this section see section 355.
Cancellation or suspension determination
352. If the Secretary is satisfied that a widowed person allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 345, 346 or 347 (see subsection 344 (1)).
Note 2: for the date of effect of a determination under this section see section 355.
Resumption of payment after cancellation or suspension
353. (1) If the Secretary:
(a) cancels or suspends a person’s widowed person allowance under section 352; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
Widowed Person Allowance s. 353
(a) the person did not receive a widowed person allowance that was payable to the person; or
(b) the person is not receiving a widowed person allowance that is payable to the person;
the Secretary is to determine that a widowed person allowance was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 354.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
354. (1) The day on which a determination under section 350 or 353 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a widowed person allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a widowed person allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
s. 354 Widowed Person Allowance
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a widowed person allowance; and
(b) no notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect
Widowed Person Allowance s. 354
of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
355. (1) The day on which a determination under section 351 or 352 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
s. 355 Widowed Person Allowance
Contravention of Act
(4) If:
(a) the person whose allowance is affected by the adverse determination has contravened a provision of this Act (other than sections 342 and 1304 to 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the allowance has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the allowance was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments
Subdivision A—Death of dependent or maintained child
Bereavement payments on death of dependent or maintained child
356. If:
(a) a person is receiving a widowed person allowance; and
(b) a dependent or maintained child of the person dies; and
(c) immediately before the child died, the person’s widowed person allowance rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Subdivision to cover
the bereavement period.
Note 1: section 357 provides for widowed person allowance to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Widowed Person Allowance s. 356
Note 2: section 358 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new widowed person allowance rate and the rate at which the allowance would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
357. If a person is qualified for payments under this Subdivision in relation to the death of a dependent or maintained child, the person’s widowed person allowance rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
358. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of a dependent or maintained child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance in respect of the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
s. 358 Widowed Person Allowance
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
|
Step 1. | Work out the instalment of widowed person allowance payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 357 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of widowed person allowance that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s widowed person allowance rate were not calculated under section 357: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Subdivision B—Death of recipient
Death of recipient
359. (1) If:
(a) a person is receiving widowed person allowance; and
(b) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note: for amounts owing .o the recipient before the recipient’s death see section 338.
Division 10—Fringe benefits
Fringe benefits
360. If a person who is receiving a widowed person allowance qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person
Widowed Person Allowance s. 360
under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
361. (1) A person who is receiving a widowed person allowance is qualified for fringe benefits if the person’s widowed person allowance rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving a widowed person allowance is not qualified for fringe benefits under subsection (1); and
(b) the person’s widowed person allowance rate is income reduced; the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving a widowed person allowance is not qualified for fringe benefits under subsection (1); and
(b) the person’s widowed person allowance rate is assets reduced; the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
s. 362 Widow B Pension
PART 2.8—WIDOW B PENSION
Division 1—Qualification for and payability of widow B pension
Subdivision A—Qualification
Qualification for widow B pension
362. (1) A woman is qualified for a widow B pension if:
(a) the woman:
(i) was, immediately before 1 July 1987, receiving a widow’s pension as a class B widow under the 1947 Act; or
(ii) on 1 July 1987 had turned 45 years old and:
(a) was receiving a supporting parent’s benefit or a widow’s pension as a class A widow on or after that day; or
(b) was receiving a sole parent’s pension after 1 March 1989; or
(iii) on 1 July 1987 had turned 50 years old; and
(b) the woman is not qualified for a sole parent pension; and
(c) the woman:
(i) was legally married and her husband has died; or
(ii) was a dependent female, that is:
(a) she was a member of a couple and her partner has died; and
(b) she was a member of the couple for 3 years immediately before her partner died; and
(c) she was wholly or mainly financially maintained by him; or
(iii) is divorced from her husband; or
(iv) was legally married and her husband has deserted her without just cause for a period of at least 6 months; or
(v) is legally married to a man who is in gaol and has been in gaol continuously for at least 6 months; or
(vi) was:
(a) a party to a purported marriage that is void; and
(b) the man who was the other party to the purported marriage has deserted her without just cause for a period of at least 6 months; and
(c) in the Secretary’s opinion, she believed that the purported marriage was valid when it took place; and
(d) the woman is not a member of another couple; and
(e) either:
(i) the woman had been an Australian resident for a
Widow B Pension s. 362
continuous period of at least 5 years immediately before the day she lodged the claim for the widow B pension; or
(ii) the woman has, at any time, been an Australian resident for a continuous period of at least 10 years; or
(iii) both the woman and her partner were Australian residents at the time:
(a) if she was legally married and her husband has died—when he died; or
(b) if she was a dependent female—when her partner died; or
(c) if she is divorced—when she became divorced; or
(d) if she was legally married and her husband has deserted her—when she was deserted; or
(e) if she was a party to a purported marriage and the man who was the’ other party has deserted her— when she was deserted; or
(f) if she was legally married and her husband has been in gaol for a period of at least 6 months— when that period began.
Note 1: for “sole parent pension qualifications” see section 249.
Note 2: for “Australian resident” see section 7.
(2) A woman does not have to satisfy paragraph (1) (e) in order to be qualified for a widow B pension if:
(a) the woman became a person to whom paragraph (1) (c) applied because of the death of a man; and
(b) the woman was, immediately before the man died, receiving:
(i) a wife pension because the man was receiving:
(a) an age pension; or
(b) an invalid pension; or
(c) a special needs age pension; or
(d) a special needs invalid pension; or
(ii) a wife service pension under Part III of the Veterans’ Entitlements Act because the man was receiving a service pension under that Part; and
(c) the woman was not in Australia at the time when the man died.
(3) Subsection (1) has effect subject to:
(a) section 1215 (12 months limit on overseas portability in certain circumstances);
(b) sections 1218 and 1219 (departure certificate requirements for people leaving Australia).
s. 363 Widow B Pension
Effect of maintenance rights on qualification for widow B pension
363. (1) A person is not qualified for a widow B pension if:
(a) the person is entitled to maintenance; and
(b) the Secretary considers that it is reasonable for the person to take action to obtain maintenance; and
(c) the person does not take such action as the Secretary considers reasonable to obtain maintenance.
(2) In subsection (1):
“maintenance”, in relation to a person, means maintenance for the person or a dependent child of the person.
Subdivision B—Payability
Widow B pension not payable in some circumstances
364. (1) Even though a woman is qualified for a widow B pension, the pension may not be payable to the woman because:
(a) the pension has not commenced to be payable (see sections 365 and 377); or
(b) the woman is in gaol (see Part 3.13); or
(c) the woman is receiving another pension or benefit (see section 368).
(2) A widow B pension is not payable to a woman if the woman’s widow B pension rate would be nil.
Widow B pension generally not payable before claim
365. Subject to section 367, a widow B pension is not payable to a woman before the woman’s provisional commencement day (identified under section 366).
Provisional commencement day
General rule
366. (1) Subject to subsections (2) and (3), a woman’s provisional commencement day is the day on which the woman claims the widow B pension.
Initial incorrect claim followed by claim for widow B pension
(2) If:
(a) a woman makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the
Widow B Pension s. 366
Commonwealth, that is similar in character to a widow B pension; and
(b) on the day on which the woman makes the initial claim, the woman is “qualified for a widow B pension; and
(c) the woman subsequently makes a claim for a widow B pension; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the woman;
the woman’s provisional commencement day is the day on which the woman made the initial claim.
Early claim
(3) If:
(a) a woman lodges a claim for a widow B pension; and
(b) the woman is not, on the day on which the claim is lodged, qualified for a widow B pension; and
(c) the woman becomes qualified for a widow B pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the woman’s provisional commencement day is the first day on which the woman is qualified for the pension and is an Australian resident and in Australia.
Backdating—death of partner etc.
367. If:
(a) a woman’s partner dies; and
(b) the woman’s provisional commencement day is within one month after the day on which the partner dies; and
(c) the woman is qualified for widow B pension at some time in the period between the death of the partner and the provisional commencement day;
the widow B pension can become payable before the provisional commencement day but is not payable to the woman before the first day in the period on which the woman is qualified.
Note 1 : for “provisional commencement day” see section 366.
Note 2: the pension will not necessarily be backdated to the day on which the woman becomes qualified—some other factor may make the pension not payable at that time.
Multiple entitlement exclusion
368. (1) A widow B pension is not payable to a woman if:
(a) the woman is receiving:
(i) another social security benefit; or
(ii) a social security pension; or
(iii) a service pension; or
(b) the woman is a widow who is receiving:
s. 368 Widow B Pension
(i) a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act; or
(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (2) of that Act.
Note 1: “social security pension” includes sheltered employment and rehabilitation allowances and “social security benefit” includes job search allowance.
Note 2: “widow” means a woman who was a member of a couple immediately before her partner died—see section 23.
Division 2—Claim for widow B pension
Need for a claim
369. (1) A woman who wants to be granted a widow B pension must make a proper claim for that pension.
Note: for “proper claim”—see section 370 (form), section 371 (manner of lodgment) and section 372 (residence/presence in Australia).
(2) For the purposes of subsection (1), where:
(a) a claim for widow B pension is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for that pension;
the claim is to be taken to have not been made.
Form of claim
370. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
371. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a woman approved for the purpose by the Secretary.
(2) Subject to subsection (3), a place or woman approved under subsection (1) must be a place or woman in Australia.
(3) The Secretary may approve a place or woman outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
Note: for international agreements see Part 4.1.
Claimant must be Australian resident and in Australia
372. (1) A claim by a woman is not a proper claim unless the woman is:
(a) an Australian resident; and
Widow B Pension s. 372
(b) in Australia;
on the day on which the claim is lodged.
(2) Subsection (1) does not apply to a woman if:
(a) the woman became a person to whom paragraph 362 (c) applies because of the death of a man; and
(b) the woman was, immediately before the man died, receiving:
(i) a wife pension because the man was receiving:
(a) an age pension; or
(b) an invalid pension; or
(ii) a wife service pension under Part III of the Veterans’ Entitlements Act because the man was receiving a service pension under that Part; and
(c) the woman was not in Australia at the time when the man died.
Note 1: for “Australian resident” see subsection 7 (2).
Note 2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.
Division 3—Determination of claim
Secretary to determine claim
373. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
374. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for widow B pension; and
(b) the pension is payable.
Date of effect of determination
375. (1) Subject to subsections (2), (3) and (4), a determination under section 374 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for a widow B pension; and
(b) a notice is given to the woman advising the woman of the making of the previous decision; and
(c) a woman applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
s. 375 Widow B Pension
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for a widow B pension; and
(b) a notice is given to the woman advising the woman of the making of the previous decision; and
(c) a woman applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the woman sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for a widow B pension; and
(b) no notice is given to the woman advising the woman of the making of the previous decision; and
(c) the woman applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 4—Rate of widow B pension
How to work out the rate of widow B pension
376. A woman’s widow B pension rate is worked out using Pension Rate Calculator C at the end of section 1066 (see Part 3.4).
Division 5—Payment of widow B pension
Commencement of widow B pension
377. A widow B pension becomes payable to a woman on the first day on which:
(a) the woman is qualified for the pension; and
(b) no provision of this Act makes the pension not payable to the woman.
Widow B Pension s. 377
Note 1: for qualification see section 362.
Note 2: for the circumstances in which a widow B pension is not payable see section 364.
Payment by instalments
378. (1) An instalment of widow B pension is payable to a woman on each pension payday on which:
(a) the woman is qualified for the pension; and
(b) the pension is payable to the woman.
(2) If a woman who is qualified for a widow B pension is outside Australia, the instalments referred to in subsection (1) are to be paid to the woman on such pension paydays as the Secretary determines for the purposes of this subsection.
Effect on instalments of backdating claim
379. If:
(a) a woman lodges a claim for a widow B pension on a particular day (in this section called the “claim day”); and
(b) the woman’s provisional commencement day is before the claim day;
any instalment of widow B pension that would, but for this section, be payable to the woman, is payable to the woman:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Calculation of amount of instalment
380. (1) The amount of an instalment of widow B pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.
(2) If an amount that is payable to a woman on a pension payday is not a multiple of 10 cents, the amount is subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a woman on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
(4) If, apart from this subsection, the amount of an instalment of widow B pension would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Inmates of benevolent homes
381. (1) While a woman who is receiving a widow B pension is an inmate of a benevolent home:
(a) so much of the woman’s pension as does not exceed the pensioner contribution is to be paid to the person who controls the benevolent home for the maintenance of the woman in the benevolent home; and
s. 381 Widow B Pension
(b) the balance (if any) is to be paid to the woman receiving the pension.
(2) For the purposes of this section, the pensioner contribution is, subject to subsection (3), 364 times the amount in force from time to time for the purposes of subparagraph 47 (2) (b) (iii) of the National Health Act 1953.
(3) If the amount worked out under subsection (2) is not a multiple of $2.60, the pensioner contribution is the next lower amount that is a multiple of $2.60.
Manner of payment
382. A woman’s widow B pension is, subject to section 383, to be paid:
(a) to that woman; and
(b) in the manner directed by the Secretary.
Nominee payments
383. (1) The Secretary may direct that the whole, or a part, of the amount of a woman’s widow B pension is to be paid to someone else on behalf of the woman.
(2) If the Secretary makes a direction under subsection (1), the widow B pension is to be paid in accordance with the direction.
Payment into bank account etc.
384. (1) The Secretary may direct that the whole or a part of the amount of a woman’s widow B pension is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the woman to whom the widow B pension is payable.
(3) The account may be an account that is maintained by a woman to whom the widow B pension is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the widow B pension is to be payable in accordance with the direction.
Where pension payday would fall on public holiday etc.
385. If the Secretary is satisfied that an amount of widow B pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Widow B Pension s. 386
Payment of pension after death
386. (1) If:
(a) a widow B pension is payable to a woman; and
(b) the woman dies; and
(c) at the date of the woman’s death the woman had not received an amount of widow B pension payable to her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of widow B pension under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of widow B pension.
Division 6—Protection of widow B pension
Widow B pension to be absolutely inalienable
387. (1) Subject to subsection (2) and section 1359, widow B pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of widow B pension payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
388. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of widow B pension payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
s. 388 Widow B Pension
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of widow B pension payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
389. (1) The Secretary may give a woman to whom a widow B pension is being paid a notice that requires the woman to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the woman becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the woman is to give the information to the Department; and
(d) must specify the period within which the woman is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the woman becomes aware that the event or change of circumstances is likely to occur.
Widow B Pension s. 389
(5) A woman must not refuse or fail to comply with a notice under subsection (1) to the extent that the woman is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A woman must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of widow B pension
390. (1) The Secretary may give a woman to whom a widow B pension is being paid a notice that requires the woman to give the Department a statement about a matter that might affect the payment of the pension to the woman.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the woman is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A woman must not refuse or fail to comply with a notice under subsection (1) to the extent that the woman is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A woman must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
s. 390 Widow B Pension
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
391. (1) A woman is not excused from giving information pursuant to a notice under section 389 or 390 on the ground that the information may tend to incriminate the woman.
(2) Information given by a woman pursuant to a notice under section 389 or 390 is not admissible in evidence against the woman in a criminal proceeding other than a proceeding under, or arising out of, subsection 389 (5) or (6) or 390 (5) or (6).
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
392. (1) A determination that:
(a) a woman’s claim for a widow B pension is granted; or
(b) a widow B pension is payable to a woman;
continues in effect until:
(c) the pension ceases to be payable under section 393, 394 or 395;
or
(d) a further determination in relation to the pension under section 400 has taken effect.
Note 1: for paragraph (a) see section 374.
Note 2: for paragraph (b) see section 401—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a widow B pension continues in effect until:
(a) the pension becomes payable at a lower rate under section 396 or 397; or
(b) a further determination in relation to the pension under section 398 or 399 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 389 notification obligations
393. If:
(a) a woman who is receiving a widow B pension is given a notice under section 389; and
Widow B Pension s. 393
(b) the notice requires the woman to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the woman informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the woman ceases to be qualified for the pension; or
(ii) the pension would, but for this section, cease to be payable to the woman;
the pension continues to be payable to the woman until the end of the notification period and then ceases to be payable to the woman.
Note: if the woman informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the woman’s pension, there is no automatic rate reduction and a determination under section 399 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 389 notification obligations
394. If:
(a) a woman who is receiving a widow B pension is given a notice under section 389; and
(b) the notice requires the woman to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the woman does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the woman ceases to be qualified for the pension; or (ii) the pension ceases to be payable to the woman; the pension ceases to be payable to the woman immediately after the day on which the event or change in circumstances occurs.
Automatic termination—failure to provide section 390 statement
395. (1) If:
(a) a woman who is receiving a widow B pension is given a notice under section 390 requiring the woman to give the Department a statement; and
s. 395 Widow B Pension
(b) the notice relates to the payment of that pension during a period specified in the notice; and
(c) the woman does not comply with the notice;
the pension, subject to subsection (2), ceases to be payable to the woman as from the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the woman from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 389 notification obligations
396. If:
(a) a woman who is receiving a widow B pension is given a notice under section 389; and
(b) the notice requires the woman to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the woman does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the woman’s rate of pension is to be reduced;
the pension becomes payable to the woman at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available
397. If:
(a) a woman who is receiving a widow B pension is given a notice under section 389; and
(b) the notice requires the woman to inform the Department of income for remunerative work undertaken by the woman; and
(c) the woman fails to notify the Department of income of that kind in accordance with the notice; and
(d) the woman has an earnings credit account balance for the purposes of Division 4 of Part 3.10;
Widow B Pension s. 397
the pension becomes payable to the woman at the reduced rate from the first pension payday after the day on which the woman’s earnings credit account balance is reduced to nil.
Subdivision D—Determinations
Rate increase determination
398. If the Secretary is satisfied that the rate at which a widow B pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 402.
Rate reduction determination
399. If the Secretary is satisfied that the rate at which a widow B pension is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 396 or 397 (see subsection 392 (2)).
Note 2: for the date of effect of a determination under this section see section 403.
Cancellation or suspension determination
400. If the Secretary is satisfied that a widow B pension is being, or has been, paid to a woman to whom it is not, or was not, payable under this Act, the Secretary is to determine that the pension is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 393, 394 or 395 (see subsection 392 (1)).
Note 2: for the date of effect of a determination under this section see section 403.
Resumption of payment after cancellation or suspension
401. (1) If the Secretary:
(a) cancels or suspends a woman’s widow B pension under section 400; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and (ii) because of the decision to cancel or suspend:
(a) the woman did not receive a widow B pension that was payable to the woman; or
(b) the woman is not receiving a widow B pension that is payable to the woman;
the Secretary is to determine that a widow B pension was or is payable to the woman.
s. 401 Widow B Pension
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 402.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
402. (1) The day on which a determination under section 398 or 401 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a widow B pension; and
(b) a notice is given to the woman to whom the pension is payable advising the woman of the making of the previous decision; and
(c) the woman applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a widow B pension; and
(b) a notice is given to the woman to whom the pension is payable advising the woman of the making of the previous decision; and
(c) the woman applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the woman sought the review.
Widow B Pension s. 402
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a widow B pension; and
(b) no notice is given to the woman to whom the pension is payable advising the woman of the making of the previous decision; and
(c) the woman applies to the Secretary under section 1240, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a woman having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the woman’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
s. 402 Widow B Pension
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
403. (1) The day on which a determination under section 399 or 400 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the woman whose pension is affected by the adverse
Widow B Pension s. 403
determination has contravened a provision of this Act (other than sections 390, 1304, 1305, 1306 and 1307); and
(b) the contravention causes a delay in making the determination;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the pension has been paid to a woman when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the pension was paid to a woman was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments
Subdivision A—Death of dependent or maintained child
Bereavement payments on death of dependent or maintained child
404. If:
(a) a woman is receiving a widow B pension; and
(b) a dependent or maintained child of the woman dies; and
(c) immediately before the child died, the woman’s widow B pension rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child; the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 405 provides for widow B pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 406 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new widow B pension rate
s. 404 Widow B Pension
and the rate at which the pension would have been paid if the child had not died but were disregarded for the purposes of working out the the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
405. If a woman is qualified for payments under this Subdivision in relation to the death of a dependent or maintained child, the woman’s widow B pension rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
406. If:
(a) a woman is qualified for payments under this Subdivision in relation to the death of a dependent or maintained child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the woman was, immediately before the child died, receiving family allowance in respect of the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the woman qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
Widow B Pension s. 406
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
|
Step 1. | Work out the instalment of widow B pension payable to the woman on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 405 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of widow B pension that would have been payable to the woman on the payday immediately before the first available bereavement adjustment payday if the woman’s widow B pension rate were not calculated under section 405: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the woman under this section. |
Subdivision B—Death of recipient
Death of recipient
407. (1) If:
(a) a person is receiving widow B pension; and
(b) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note: for amounts owing to the recipient before the recipient’s death see section 386.
s. 408 Widow B Pension
Division 10—Fringe benefits
Fringe benefits
408. If a woman who is receiving a widow B pension qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
409. (1) A woman who is receiving a widow B pension is qualified for fringe benefits if the woman’s widow B pension rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving a widow B pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s widow B pension rate is income reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving a widow B pension is not qualified for fringe benefits under subsection (1); and
(b) the person’s widow B pension rate is assets reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
Sheltered Employment Allowance s. 410
PART 2.9—SHELTERED EMPLOYMENT ALLOWANCE
Division 1—Qualification for and payability of sheltered employment allowance
Subdivision A—Qualification
Qualification for sheltered employment allowance
Qualified for invalid pension
410. (1) A person is qualified for a sheltered employment allowance if:
(a) the person is engaged in sheltered employment; and
(b) the person is qualified for invalid pension.
Note 1: for “sheltered employment” see sections 32 and 33.
Note 2: for the qualifications for invalid pension see section 94.
Not qualified for invalid pension
(2) A person is qualified for a sheltered employment allowance if:
(a) the person is engaged in sheltered employment; and
(b) the person is incapacitated for work; and
(c) subsection (1) does not apply to the person; and
(d) the Secretary is of the opinion that if the person was no longer provided with sheltered employment:
(i) the person would be permanently incapacitated for work; and
(ii) the degree of the permanent incapacity for work would be 85% or more; and
(iii) 50% or more of the incapacity for work would be directly caused by a physical or mental impairment; and
(e) the person has turned 16 and is under the pension age; and
(f) the Secretary is satisfied that, having regard to:
(i) whether the person was an Australian resident when the person became incapacitated for work; and
(ii) if the person was not an Australian resident when the person became incapacitated for work—the degree of the person’s incapacity when the person became an Australian resident;
it is reasonable for this subsection to apply to the person.
Note 1: for “sheltered employment” see sections 32 and 33.
Note 2: for “pension age” see section 23.
Note 3: for “Australian resident” see section 7.
s. 411 Sheltered Employment Allowance
Subdivision B—Payability
Sheltered employment allowance not payable in some circumstances
411. (1) Even though a person is qualified for a sheltered employment allowance, the allowance may not be payable to the person because:
(a) the allowance has not commenced to be payable (see sections 412 and 424); or
(b) the person or the person’s partner has received compensation (see Part 3.14); or
(c) the person is in gaol (see Part 3.13); or
(d) the person is already receiving pension or benefit (see section 413); or
(e) the Secretary has determined that it is in the person’s interest to receive another pension or benefit (see section 414); or
(f) the person fails to comply with a requirement that the person:
(i) attend a medical examination; or
(ii) receive treatment; or
(iii) undertake a training course; or
(iv) do suitable work;
as required by section 415.
(2) A sheltered employment allowance is not payable to a person if the person’s sheltered employment allowance rate would be nil.
Sheltered employment allowance not payable before day determined by Secretary
412. (1) A sheltered employment allowance is not payable to a person before the day determined by the Secretary.
(2) The day determined by the Secretary can be a day before the determination is made.
Multiple entitlement exclusion
413. A sheltered employment allowance is not payable to a person if the person is receiving:
(a) another social security pension; or
(b) a social security benefit; or
(c) a service pension.
Note: “social security pension” includes rehabilitation allowance and “social security benefit” includes job search allowance.
Sheltered employment allowance not payable if in person’s interest to receive other pension or benefit
414. If:
(a) a person is qualified for a sheltered employment allowance; and
Sheltered Employment Allowance s. 414
(b) another social security pension or benefit is also payable to the person; and
(c) the Secretary is satisfied that it is in the person’s interests to receive the other pension or benefit instead of sheltered employment allowance;
the Secretary may determine that:
(d) sheltered employment allowance is not payable to the person; and
(e) the other pension or benefit is to be paid to the person.
Secretary may require person to have medical examination, attend course or undertake work
415. (1) If:
(a) a person is receiving, or has lodged a claim for, a sheltered employment allowance; and
(b) the Secretary is of the opinion that the person should:
(i) undergo a medical or psychological examination; or (ii) receive medical or other treatment; or (iii) undertake a course of vocational training; or (iv) undertake a course:
(a) which the person could reasonably undertake; and
(b) to which the person has been referred by the CES; or
(v) do any work suitable to be done by the person; and
(c) the Secretary notifies the person that the person is required to:
(i) undergo that examination; or
(ii) receive that treatment; or
(iii) undertake that course; or
(iv) do that work; and
(d) the person does not take reasonable steps to comply with the Secretary’s requirements;
a sheltered employment allowance is not payable to the person for a period determined by the Secretary.
(2) The Secretary may determine that a sheltered employment allowance is payable for a period for which he or she had previously determined that it was not payable under subsection (1) if within a reasonable period the person takes reasonable steps to comply with the Secretary’s requirements.
s. 416 Sheltered Employment Allowance
Division 2—Claim for sheltered employment allowance
Secretary may require claim
416. (1) The Secretary may require a person who wants to be granted a sheltered employment allowance to make a proper claim for that allowance.
Note: for “proper claim”—see section 417 (form) and section 418 (manner of lodgment).
(2) For the purposes of subsection (1), if:
(a) a claim for sheltered employment allowance is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for that allowance;
the claim is to be taken to have not been made.
Form of claim
417. To be a proper claim, a claim must be made in writing and must be in accordance with the form approved by the Secretary.
Lodgment of claim
418. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) A place or person approved under subsection (1) must be a place or person in Australia.
Division 3—Determination of claim
Secretary to determine claim
419. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
420. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for sheltered employment allowance; and
(b) the allowance is payable.
Date of effect of determination
421. (1) Subject to subsection (2), a determination under section 420 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Sheltered Employment Allowance s. 421
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for sheltered employment allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for sheltered employment allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for sheltered employment allowance; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
s. 422 Sheltered Employment Allowance
Division 4—Rate of sheltered employment allowance
Rate of sheltered employment allowance
422. (1) A person’s sheltered employment allowance rate is an annual rate equal to the sum of:
(a) the rate of invalid pension that would, in the Secretary’s opinion, be payable to the person if the person were receiving an invalid pension; and
(b) the rate of wife or carer pension that would, in the Secretary’s opinion, be payable to the person’s partner (if applicable) if the person were receiving an invalid pension.
(2) No amount is to be added under paragraph (1) (b) if the person’s partner is receiving:
(a) a social security or service pension; or
(b) a social security benefit.
Note: “social security pension” includes sheltered employment and rehabilitation allowance and “social security benefit” includes job search allowance.
Incentive allowance
423. For the purposes of subsection 422, in calculating the rate of invalid pension that would be payable to a person if the person were receiving an invalid pension, the person is taken to satisfy the requirements of point 1064-J1 of Pension Rate Calculator A (qualifications for incentive allowance—not blind) and point 1065-F1 of Pension Rate Calculator B (qualifications for incentive allowance— blind).
Division 5—Payment of sheltered employment allowance
Commencement of sheltered employment allowance
424. A sheltered employment allowance becomes payable to a person on the first day on which:
(a) the person is qualified for the allowance; and
(b) no provision of this Act makes the allowance not payable to the person.
Note 1: for qualification see section 410.
Note 2: for circumstances in which a sheltered employment allowance is not payable see section 411.
Payment by instalments
425. A full instalment of sheltered employment allowance is payable to a person on each pension payday on which:
(a) the person is qualified for the allowance; and
(b) the allowance is payable to the person.
Sheltered Employment Allowance s. 426
Effect on instalments of backdated determination
426. If the date determined by the Secretary under section 412 is a date before the day on which the determination was made (in this section called the “determination day”), any instalment of sheltered employment allowance, that would, but for this section, be payable, is payable to the person:
(a) if the determination day was a pension payday—on that day; or
(b) the first pension payday after the determination day.
Calculation of amount of instalment
427. (1) The amount of an instalment of sheltered employment allowance is the amount worked out by dividing the amount of the annual rate of the allowance by 26.
(2) If an amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
(4) If, apart from this subsection, the amount of an instalment of sheltered employment allowance would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Manner of payment
428. A person’s sheltered employment allowance is, subject to section 429, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
429. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s sheltered employment allowance is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the sheltered employment allowance is to be paid in accordance with the direction.
Payment into bank account etc.
430. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s sheltered employment allowance is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
s. 430 Sheltered Employment Allowance
(2) The account must be an account nominated and maintained by the person to whom the sheltered employment allowance is payable.
(3) The account may be an account that is maintained by a person to whom the sheltered employment allowance is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the sheltered employment allowance is to be payable in accordance with the direction.
Where allowance payday would fall on public holiday etc.
431. If the Secretary is satisfied that an amount of sheltered employment allowance that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of allowance after death
432. (1) If:
(a) a sheltered employment allowance is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of sheltered employment allowance payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of sheltered employment allowance under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of sheltered employment allowance.
Division 6—Protection of sheltered employment allowance
Sheltered employment allowance to be absolutely inalienable
433. (1) Subject to subsection (2) and section 1359, sheltered employment allowance is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Sheltered Employment Allowance s. 433
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of sheltered employment allowance payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
434. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of sheltered employment allowance payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of sheltered employment allowance payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
435. (1) The Secretary may give a person to whom a sheltered employment allowance is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
s. 435 Sheltered Employment Allowance
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the allowance.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of sheltered employment allowance
436. (1) The Secretary may give a person to whom a sheltered employment allowance is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the allowance to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
Sheltered Employment Allowance s. 436
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
437. (1) A person is not excused from giving information pursuant to a notice under section 435 or 436 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 435 or 436 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 435 (5) or (6) or 436 (5) or (6).
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
438. (1) A determination that:
(a) a sheltered employment allowance is to be granted to a person; or
(b) a sheltered employment allowance is to be paid to a person; continues in effect until:
(c) the allowance ceases to be payable under section 439 or 440; or
(d) a further determination in relation to the allowance under section 445 has taken effect.
Note 1: for paragraph (a) see section 420.
s. 438 Sheltered Employment Allowance
Note 2: for paragraph (b) see section 446—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a sheltered employment allowance continues in effect until:
(a) the allowance becomes payable at a lower rate under section 441 or 442; or
(b) a further determination in relation to the allowance under section 443 or 444 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 435 notification obligations
439. If:
(a) a person who is receiving a sheltered employment allowance is given a notice under section 435; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance would, but for this section, cease to be payable to the person;
the allowance continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s allowance, there is no automatic rate reduction and a determination under section 444 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 435 notification obligations
440. If:
(a) a person who is receiving a sheltered employment allowance is given a notice under section 435; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
Sheltered Employment Allowance s. 440
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance ceases to be payable to the person;
the allowance ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 435 notification obligations
441. If:
(a) a person who is receiving a sheltered employment allowance is given a notice under section 435; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of allowance is to be reduced;
the allowance becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available
442. If:
(a) a person who is receiving a sheltered employment allowance is given a notice under section 435; and
(b) the notice requires the person to inform the Department of income for remunerative work undertaken by the person; and
(c) the person fails to notify the Department of income of that kind in accordance with the notice; and
(d) the person has an earnings credit account balance for the purposes of Division 4 of Part 3.10;
s. 442 Sheltered Employment Allowance
the allowance becomes payable to the person at the reduced rate from the first pension payday after the day on which the person’s earnings credit account balance is reduced to nil.
Subdivision D—Determinations
Rate increase determination
443. If the Secretary is satisfied that the rate at which a sheltered employment allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 447.
Rate reduction determination
444. If the Secretary is satisfied that the rate at which a sheltered employment allowance is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 441 or 442 (see subsection 438 (2)).
Note 2: for the date of effect of a determination under this section see section 448.
Cancellation or suspension determination
445. If the Secretary is satisfied that a sheltered employment allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 439 or 440 (see subsection 438 (1)).
Note 2: for the date of effect of a determination under this section see section 448.
Resumption of payment after cancellation or suspension
446. (1) If the Secretary:
(a) cancels or suspends a person’s sheltered employment allowance under section 445; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive sheltered employment allowance that was payable to the person; or
(b) the person is not receiving sheltered employment allowance that is payable to the person;
the Secretary is to determine that a sheltered employment allowance was or is payable to the person.
Sheltered Employment Allowance s. 446
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 447.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
447. (1) The day on which a determination under section 443 or 446 (in this subsection called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s sheltered employment allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s sheltered employment allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the person sought the review.
s. 447 Sheltered Employment Allowance
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s sheltered employment allowance; and
(b) no notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
Sheltered Employment Allowance s. 447
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received; the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
448. (1) The day on which a determination under section 444 or 445 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose sheltered employment allowance is affected by the adverse determination has contravened a provision of
s. 448 Sheltered Employment Allowance
this Act (other than section 436, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the allowance has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the allowance was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments
Subdivision A—Death of pensioner partner
Qualification for payments under this Subdivision
449. (1) If:
(a) a person is receiving a sheltered employment allowance instead of an invalid pension; and
(b) the person is a member of a couple; and
(c) the person’s partner dies; and
(d) immediately before the partner died, the partner was receiving:
(i) an age pension; or
(ii) an invalid pension; or
(iii) a carer pension; or
(iv) a sheltered employment allowance instead of an invalid pension; or
(v) a rehabilitation allowance instead of a pension referred to in subparagraph (i) or (ii); or
(vi) a service pension;
Sheltered Employment Allowance s. 449
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 450 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.
Note 2: section 451 provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
(2) If:
(a) a person is receiving a sheltered employment allowance instead of an invalid pension; and
(b) the person is a member of a couple; and
(c) the person’s partner dies; and
(d) immediately before the partner died, the person’s sheltered employment allowance rate included an amount under paragraph 422 (1) (b) in respect of the partner;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note: for the consequences of this subsection on a person’s sheltered employment allowance rate see section 452.
(3) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.
(4) An election under subsection (3):
(a) must be made by written notice to the Secretary; and
(b) may be made after the person has been paid an amount or amounts under this Subdivision; and
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.
(5) If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which sheltered employment allowance is payable to the person during the bereavement period is, unless the person has made an election under subsection (3), governed by section 452.
Continued payment of partner’s pension or allowance
450. If a person qualifies under subsection 449 (1) for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.
Note: a person who qualifies under subsection 449 (2) receives a similar benefit through the operation of paragraph 452 (c).
s. 451 Sheltered Employment Allowance
Lump sum payable in some circumstances
451. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and |
| (b) the amount (if any) that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday: |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 452, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Adjustment of person’s sheltered employment allowance rate
452. If:
(a) a person is qualified for payments under this Subdivision; and
(b) the person does not elect under subsection 449 (3) not to receive payments under this Subdivision;
Sheltered Employment Allowance s. 452
the person’s sheltered employment allowance rate during the bereavement period is worked out as follows:
(c) during the bereavement rate continuation period, the person’s sheltered employment allowance rate is the rate at which the allowance would have been payable to the person if the person’s partner had not died;
(d) during the bereavement lump sum period (if any), the person’s sheltered employment allowance rate is the rate at which the allowance would be payable to the person apart from this Subdivision.
Effect of death of person entitled to payments under this Subdivision
453. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person’s partner before the person dies;
there is payable, to such person as the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
s. 453 Sheltered Employment Allowance
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and |
| (b) the amount (if any) that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 452, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends. |
Step 5. | Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section. |
Matters affecting payment of benefits under this Subdivision
454. (1) If:
(a) a person is qualified for payments under this Subdivision and in relation to the death of the person’s partner; and
(b) after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s partner except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;
Sheltered Employment Allowance s. 454
(e) the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).
(2) If:
(a) a person is qualified for payments under this Subdivision and in relation to the death of the person’s partner; and
(b) an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the “financial institution”); and
(c) the financial institution pays to the person, out of the account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, in spite of anything in any other law not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.
Subdivision B—Death of dependent child
Bereavement payments on death of dependent child
(a) a person is receiving a sheltered employment allowance instead of an age or invalid pension; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s sheltered employment allowance rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 456 provides for sheltered employment allowance to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 457 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new sheltered employment allowance rate and the rate at which the allowance would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional incentive allowance;
• additional remote area allowance.
s. 456 Sheltered Employment Allowance
Continued payment of child-related amounts
456. If the person is qualified for payments under this Subdivision in relation to the death of a dependent child, the person’s sheltered employment allowance rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
457. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance in respect of the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
Sheltered Employment Allowance s. 457
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Work out the instalment of sheltered employment allowance payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 456 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of sheltered employment allowance that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s sheltered employment allowance rate were not calculated under section 456: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Subdivision C—Death of recipient
Death of recipient
458. (1) If:
(a) a person is receiving sheltered employment allowance; and
(b) either:
(i) the person is not a member of a couple; or
(ii) the person is a member of a couple and the person’s partner:
(a) is not receiving a social security pension; and
(b) is not receiving a social security benefit; and
(c) is not receiving a service pension; and
(c) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
s. 458 Sheltered Employment Allowance
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note 1: for amounts owing to the recipient before the recipient’s death see section 432.
Note 2: for death of a person qualified for bereavement payments under Subdivision A see section 453.
Division 10—Fringe benefits
Fringe benefits
459. If a person who is receiving sheltered employment allowance qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
460. (1) A person who is receiving a sheltered employment allowance is qualified for fringe benefits if the person’s sheltered employment allowance rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving a sheltered employment allowance is not qualified for fringe benefits under subsection (1); and
(b) the person’s sheltered employment allowance rate is income reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving a sheltered employment allowance is not qualified for fringe benefits under subsection (1); and
(b) the person’s sheltered employment allowance rate is assets reduced;
the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
Rehabilitation Allowance s. 461
PART 2.10—REHABILITATION ALLOWANCE
Division 1—Qualification for and payability of rehabilitation allowance
Subdivision A—Qualification
Qualification for rehabilitation allowance
461. A person is qualified for a rehabilitation allowance if:
(a) the person is undertaking a rehabilitation program; and
(b) immediately before starting the rehabilitation program, the person was qualified for:
(i) an invalid pension; or
(ii) a sole parent pension; or
(iii) a widowed person allowance; or
(iv) a widow B pension; or
(v) a sheltered employment allowance; or
(vi) a social security benefit; and
(c) where the person is not a member of a couple—the person has turned 16; and
(d) the person has not turned 65.
Note 1: for “rehabilitation program” see section 23.
Note 2: “social security benefit” includes job search allowance.
Note 3: for “member of a couple” see section 4.
Note 4: a person does not stop being qualified for a rehabilitation allowance merely because the person stops being qualified for a payment referred to in paragraph (b). In many cases, enrolment in the program may disqualify the person from a pension or benefit for which the person was previously qualified. For example, a person who was receiving unemployment benefit before starting the program may no longer be qualified for unemployment benefit because the person is not available for work. If the person does remain qualified for another pension or benefit, the person may choose to receive the other pension or benefit instead of rehabilitation allowance.
Subdivision B—Payability
Rehabilitation allowance not payable in some circumstances
462. (1) Even though a person is qualified for a rehabilitation allowance, the allowance may not be payable to the person because:
(a) the allowance has not commenced to be payable (see sections 463 and 476); or
(b) the person or the person’s partner has received compensation (see Part 3.14); or
(c) the person is in gaol (see Part 3.13); or
(d) the person is already receiving pension or benefit (see section 464).
(2) A rehabilitation allowance is not payable to a person if the person’s rehabilitation allowance rate would be nil.
s. 463 Rehabilitation Allowance
Rehabilitation allowance not payable before date determined by Secretary
463. (1) A rehabilitation allowance is not payable to a person before the day determined by the Secretary.
(2) The day determined by the Secretary can be a day before the determination is made.
Multiple entitlement exclusion
464. A rehabilitation allowance is not payable to a person if the person is receiving:
(a) another social security pension; or
(b) a social security benefit; or
(c) a service pension.
Note: “social security pension” includes sheltered employment allowance and “social security benefit” includes job search allowance.
Division 2—Claim for rehabilitation allowance
Secretary may require claim
465. (1) The Secretary may require a person who wants to be granted a rehabilitation allowance to make a proper claim for that allowance.
Note: for “proper claim”—see section 466 (form) and section 467 (manner of lodgment).
(2) For the purposes of subsection (1), if:
(a) a claim for rehabilitation allowance is made by or on behalf of a person; and
(b) at the time when the claim is made the claim cannot be granted because the person is not qualified for that allowance;
the claim is to be taken to have not been made.
Form of claim
466. To be a proper claim, a claim must be made in writing and must be in accordance with the form approved by the Secretary.
Lodgment of claim
467. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) A place or person approved under subsection (1) must be a place or person in Australia.
Rehabilitation Allowance s. 468
Division 3—Determination of claim
Secretary to determine claim
468. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
469. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for rehabilitation allowance; and
(b) the allowance is payable.
Date of effect of determination
470. (1) Subject to subsections (2), (3) and (4), a determination under section 469 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for rehabilitation allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for rehabilitation allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
s. 470 Rehabilitation Allowance
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for rehabilitation allowance; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 4—Rate of rehabilitation allowance
How to work out the rate of rehabilitation allowance
471. The rate of rehabilitation allowance is a fortnightly rate worked out as follows:
Method statement |
Step 1. | Work out whether the person was receiving an invalid pension immediately before starting the rehabilitation program. |
Step 2. | If the person was receiving an invalid pension immediately before the person started the rehabilitation program, the person’s rate of rehabilitation allowance is worked out using section 472. |
Step 3. | If the person was not receiving an invalid pension immediately before the person started the rehabilitation program: |
| (a) use section 473 to work out the person’s qualifying payment; and |
| (b) the person’s rate of rehabilitation allowance depends on the person’s qualifying payment and is worked out using sections 474 and 475. |
Note 1: for “rehabilitation program” see section 23.
Note 2: a person’s rate of rehabilitation allowance is based on the invalid pension rate unless a higher rate would be payable if the person were receiving the person’s qualifying payment. Where a person is a member of a couple, it is intended that the income of the couple be the same as if the person were receiving invalid pension. If the person was receiving invalid pension before starting the rehabilitation program, this is achieved by continuing the person’s rate of invalid pension because the person’s partner can remain qualified for a wife or carer pension. Where the person was not receiving invalid pension,
Rehabilitation Allowance s. 471
the person’s partner will not be qualified for a wife or carer pension. The person may therefore receive an amount for the person’s partner (see section 474).
Rate of rehabilitation allowance—person previously receiving invalid pension
472. If, immediately before a person started a rehabilitation program, the person was receiving an invalid pension, the person’s rate of rehabilitation allowance on a pension payday is the amount of invalid pension that would be payable to the person on that payday if the person were receiving an invalid pension.
Qualifying payment
Person receiving a payment before rehabilitation program
473. (1) If, immediately before a rehabilitation program started, a person was receiving:
(a) an invalid pension; or
(b) a sole parent pension; or
(c) a widowed person allowance; or
(d) a widow B pension; or
(e) a social security benefit;
the person’s qualifying payment is that pension, benefit or allowance.
Note: “social security benefit” includes job search allowance.
Person not receiving a payment before rehabilitation program
(2) If, immediately before a rehabilitation program started:
(a) a person was qualified for one or more of the following:
(i) an invalid pension;
(ii) a sole parent pension;
(iii) a widowed person allowance;
(iv) a widow B pension;
(v) a social security benefit; and
(b) subsection (1) does not apply to the person (the person was not actually receiving the payment);
the person’s qualifying payment is:
(c) where the person was qualified for only one pension, benefit or allowance referred to in paragraph (a)—that pension, benefit or allowance; and
(d) where the person was qualified for more than one pension, benefit or allowance referred to in paragraph (a)—the pension, benefit or allowance for which the highest rate would have been payable immediately before the person started the rehabilitation program if the person had then been receiving that pension, benefit or allowance.
s. 474 Rehabilitation Allowance
Rate of rehabilitation allowance—person not receiving invalid pension before rehabilitation program
474. (1) If a person was not receiving an invalid pension immediately before starting a rehabilitation program, the person’s rehabilitation allowance rate on a pension payday is whichever is the greater of:
(a) the amount that would be payable to the person on that payday if the person were receiving the person’s qualifying payment; and
(b) the sum of:
(i) the amount that would be payable to the person on that payday if the person were receiving an invalid pension; and
(ii) subject to subsection (2), the amount (if any) that would be payable to the person’s partner on that payday by way of wife or carer pension if the person were receiving an invalid pension.
Note 1: for “qualifying payment” see section 473.
Note 2: if the person’s qualifying payment is a social security benefit, see section 475 for the amount that person would receive on a pension payday if the person were receiving that benefit.
(2) An amount is not to be included under subparagraph (1) (b) (ii) if the person’s partner is receiving:
(a) a social security or service pension; or
(b) a social security benefit.
Note: “social security pension” includes rehabilitation allowance and sheltered employment allowance and “social security benefit” includes job search allowance.
Amount payable on pension payday—social security benefit
475. For the purposes of paragraph 474 (1) (a), where a person’s qualifying payment is a social security benefit, the amount that the person would receive on a pension payday if the person were receiving that benefit is taken to be the amount of that benefit which the person would receive for the period of 14 days ending on the pension payday.
Note: “social security benefit” includes job search allowance.
Division 5—Payment of rehabilitation allowance
Commencement of rehabilitation allowance
476. A rehabilitation allowance becomes payable to a person on the first day on which:
(a) the person is qualified for the allowance; and
(b) no provision of this Act makes the allowance not payable to the person.
Note 1: for qualification see section 461.
Note 2: for circumstances in which a rehabilitation allowance is not payable see section 462.
Rehabilitation Allowance s. 477
Payment by instalments
477. (1) A full instalment of rehabilitation allowance is payable to a person on each pension payday on which:
(a) the person is qualified for the allowance; and
(b) the allowance is payable to the person.
(2) Where a person who is qualified for a rehabilitation allowance is outside Australia, the instalments referred to in subsection (1) are to be paid to the person on such pension paydays as the Secretary determines for the purposes of this subsection.
Effect on instalments of backdated determination
478. If the date of effect of a determination under section 469 is before the day on which the determination was made (in this section called the “determination day”), any instalment of rehabilitation allowance, that would, but for this section, be payable, is payable to the person:
(a) if the determination day was a pension payday—on that day; or
(b) the first pension payday after the determination day.
Calculation of amount of instalment
479. The amount of an instalment of rehabilitation allowance is the fortnightly rate of rehabilitation allowance.
Note: for calculation of the fortnightly rate see sections 471 to 475.
Manner of payment
480. A person’s rehabilitation allowance is, subject to section 481, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
481. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s rehabilitation allowance is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the rehabilitation allowance is to be paid in accordance with the direction.
Payment into bank account etc.
482. (1) The Secretary may direct that the whole or a part of the amount of a person’s rehabilitation allowance is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
s. 482 Rehabilitation Allowance
(2) The account must be an account maintained by the person to whom the rehabilitation allowance is payable.
(3) The account may be an account that is maintained by a person to whom the rehabilitation allowance is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the rehabilitation allowance is to be payable in accordance with the direction.
Where allowance payday would fall on public holiday etc.
483. If the Secretary is satisfied that an amount of rehabilitation allowance that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of allowance after death
484. (1) If:
(a) a rehabilitation allowance is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of rehabilitation allowance payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) Where the Secretary pays an amount of rehabilitation allowance under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of rehabilitation allowance.
Division 6—Protection of rehabilitation allowance
Rehabilitation allowance to be absolutely inalienable
485. (1) Subject to subsection (2) and section 1359, rehabilitation allowance is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of rehabilitation allowance payable to a person where the recipient asks the Secretary:
Rehabilitation Allowance s. 485
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
486. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of rehabilitation allowance payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of rehabilitation allowance payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
487. (1) The Secretary may give a person to whom a rehabilitation allowance is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
s. 487 Rehabilitation Allowance
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the allowance.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of rehabilitation allowance
488. (1) The Secretary may give a person to whom a rehabilitation allowance is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the allowance to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
Rehabilitation Allowance s. 488
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
489. (1) A person is not excused from giving information pursuant to a notice under section 487 or 488 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 487 or 488 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 487 (5) or (6) or 488 (5) or (6).
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
490. (1) A determination that:
(a) a rehabilitation allowance is to be granted to a person; or
(b) a rehabilitation allowance is to be paid to a person; continues in effect until:
(c) the allowance ceases to be payable under section 491 or 492; or
s. 490 Rehabilitation Allowance
(d) a further determination in relation to the allowance under section 497 has taken effect.
Note 1: for paragraph (a) see section 469.
Note 2: for paragraph (b) see section 498—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a rehabilitation allowance continues in effect until:
(a) the allowance becomes payable at a lower rate under section 493 or 494; or
(b) a further determination in relation to the allowance under section 495 or 496 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 487 notification obligations
491. If:
(a) a person who is receiving a rehabilitation allowance is given a notice under section 487; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance would, but for this section, cease to be payable to the person;
the allowance continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s allowance, there is no automatic rate reduction and a determination under section 496 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 487 notification obligations
492. If:
(a) a person who is receiving a rehabilitation allowance is given a notice under section 487; and
Rehabilitation Allowance s. 492
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance ceases to be payable to the person;
the allowance ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 487 notification obligations
493. If:
(a) a person who is receiving a rehabilitation allowance is given a notice under section 487; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of allowance is to be reduced;
the allowance becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available
494. If:
(a) a person who is receiving a rehabilitation allowance is given a notice under section 487; and
(b) the notice requires the person to inform the Department of income for remunerative work undertaken by the person; and
(c) the person fails to notify the Department of income of that kind in accordance with the notice; and
s. 494 Rehabilitation Allowance
(d) the person has an earnings credit account balance for the purposes of Division 4 of Part 3.10;
the allowance becomes payable to the person at the reduced rate from the first pension payday after the day on which the person’s earnings credit account balance is reduced to nil.
Subdivision D—Determinations
Rate increase determination
495. If the Secretary is satisfied that the rate at which a rehabilitation allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 499.
Rate reduction determination
496. If the Secretary is satisfied that the rate at which a rehabilitation allowance is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 493 or 494 (see subsection 490 (2)).
Note 2: for the date of effect of a determination under this section see section 500.
Cancellation or suspension determination
497. If the Secretary is satisfied that a rehabilitation allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 491 or 492 (see subsection 490 (1)).
Note 2: for the date of effect of a determination under this section see section 500.
Resumption of payment after cancellation or suspension
498. (1) If the Secretary:
(a) cancels or suspends a person’s rehabilitation allowance under section 497; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive rehabilitation allowance that was payable to the person; or
(b) the person is not receiving rehabilitation allowance that is payable to the person;
Rehabilitation Allowance s. 498
the Secretary is to determine that a rehabilitation allowance is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 499.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
499. (1) The day on which a determination under section 495 or 498 (in this subsection called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s rehabilitation allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s rehabilitation allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the person sought the review.
s. 499 Rehabilitation Allowance
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s rehabilitation allowance; and
(b) no notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
Rehabilitation Allowance s. 499
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
500. (1) The day on which a determination under section 496 or 497 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose rehabilitation allowance is affected by the
s. 500 Rehabilitation Allowance
adverse determination has contravened a provision of this Act (other than sections 488 and 1304 to 1307); and
(b) the contravention causes a delay in making the determination;
the day specified under paragraph (2) (b) may be earlier than the day
on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the allowance has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the allowance was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments
Subdivision A—Death of pensioner partner
Qualification for payments under this Subdivision
501.(1) If:
(a) a person is receiving a rehabilitation allowance instead of an age or invalid pension; and
(b) the person is a member of a couple; and
(c) the person’s partner dies; and
(d) immediately before the partner died, the partner was receiving:
(i) an age pension; or
(ii) an invalid pension; or
(iii) a wife pension; or
(iv) a carer pension; or
(v) a sheltered employment allowance instead of an invalid pension; or
(vi) a rehabilitation allowance instead of a pension referred to in subparagaph (i) or (ii); or
(vii) a service pension;
Rehabilitation Allowance s. 501
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1 : section 502 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.
Note 2: section 503 provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
(2) If:
(a) a person is receiving a rehabilitation allowance instead of an age or invalid pension; and
(b) the person is a member of a couple; and
(c) the person’s partner dies; and
(d) immediately before the partner died, the person’s rehabilitation allowance rate included an amount under subparagraph 474 (1) (b) (ii) in respect of the partner;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note: for the consequences of this subsection on a person’s rehabilitation allowance rate see section 504.
(3) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.
(4) An election under subsection (3):
(a) must be made by written notice to the Secretary; and
(b) may be made after the person has been paid an amount or amounts under this Subdivision; and
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.
(5) If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which rehabilitation allowance is payable to the person during the bereavement period is, unless the person has made an election under subsection (3), governed by section 504.
Continued payment of partner’s pension or allowance
502. If a person qualifies under subsection 501 (1) for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.
Note: a person who qualifies under subsection 501 (2) receives a similar benefit through the operation of paragraph 504 (c).
s. 503 Rehabilitation Allowance
Lump sum payable in some circumstances
503. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and |
| (b) the amount (if any) that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday: |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 504, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable |
Adjustment of person’s rehabilitation allowance rate
504. If:
(a) a person is qualified for payments under this Subdivision; and
(b) the person does not elect under subsection 501 (3) not to receive payments under this Subdivision;
Rehabilitation Allowance s. 504
the rate of the person’s rehabilitation allowance during the bereavement payment period is worked out as follows:
(c) during the bereavement rate continuation period, the person’s rehabilitation allowance rate is the rate at which the allowance would have been payable to the person if the person’s partner had not died;
(d) during the bereavement rate lump sum period (if any), the person’s rehabilitation allowance rate is the rate at which the allowance would be payable to the person apart from this Subdivision.
Effect of death of person entitled to payments under this Subdivision
505. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person’s partner before the person dies;
there is payable, to such person as the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
s. 505 Rehabilitation Allowance
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Add up: |
| (a) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and |
| (b) the amount (if any) that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday; |
| the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 504, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the period that commences on the day after the person dies and ends on the day on which the bereavement period ends. |
Step 5. | Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section. |
Matters affecting payment of benefits under this Subdivision
506. (1) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s partner except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;
Rehabilitation Allowance s. 506
(e) the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).
(2) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the “financial institution”); and
(c) the financial institution pays to the person, out of the account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, in spite of anything in any other law not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.
Subdivision B—Death of dependent child
Bereavement payments on death of dependent child
507. If:
(a) a person is receiving a rehabilitation allowance instead of an age or invalid pension; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s rehabilitation allowance rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 508 provides for rehabilitation allowance to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 509 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new rehabilitation allowance rate and the rate at which the allowance would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Subdivision are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional incentive allowance;
• additional remote area allowance.
s. 508 Rehabilitation Allowance
Continued payment of child-related amounts
508. If a person is qualified for payments under this Subdivision in relation to the death of a dependent child, the person’s rehabilitation allowance rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
509. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance for the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Subdivision was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
Rehabilitation Allowance s. 509
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Work out the instalment of rehabilitation allowance payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. |
| Note: section 508 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the instalment of rehabilitation allowance that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s rehabilitation allowance rate were not calculated under section 508: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Subdivision C—Death of recipient
Death of recipient
510. (1) If:
(a) a person is receiving rehabilitation allowance; and
(b) either:
(i) the person is not a member of a couple; or
(ii) the person is a member of a couple and the person’s partner:
(a) is not receiving a social security pension; and
(b) is not receiving a social security benefit; and
(c) is not receiving a service pension; and
(c) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
s. 510 Rehabilitation Allowance
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note 1 : for amounts owing to the recipient before the recipient’s death see section 484.
Note 2: for death of a person qualified for bereavement payments under Subdivision A see section 505.
Division 10—Fringe benefits
Fringe benefits
511. If a person who is receiving rehabilitation allowance qualifies for fringe benefits in accordance with this Division, benefits and concessions of various kinds may be made available to the person under other Commonwealth legislation (for example, the National Health Act 1953).
Qualification for fringe benefits
512. (1) A person who is receiving a rehabilitation allowance is qualified for fringe benefits if the person’s rehabilitation allowance rate is neither income reduced nor assets reduced.
(2) If:
(a) a person who is receiving a rehabilitation allowance is not qualified for fringe benefits under subsection (1); and
(b) the person’s rehabilitation allowance rate is income reduced; the person is qualified for fringe benefits only if the person satisfies the fringe benefits ordinary income test.
Note: the Fringe Benefits Ordinary Income Test Calculator at the end of section 1071 is to be used in working out whether a person satisfies the fringe benefits ordinary income test.
(3) If:
(a) a person who is receiving a rehabilitation allowance is not qualified for fringe benefits under subsection (1); and
(b) the person’s rehabilitation allowance rate is assets reduced; the person is qualified for fringe benefits only if the person satisfies the fringe benefits assets test.
Note: the Fringe Benefits Assets Test Calculator at the end of section 1072 is to be used in working out whether a person satisfies the fringe benefits assets test.
Unemployment Benefit s. 513
PART 2.11—UNEMPLOYMENT BENEFIT
Division 1—Qualification for and payability of unemployment benefit Subdivision A—Basic qualifications
Qualification for unemployment benefit
513. A person is qualified for an unemployment benefit in respect of a period if:
(a) throughout the period, or for each period within that period, the person either:
(i) satisfies the work test; or
(ii) is not required to satisfy the work test; and
(b) throughout the period the person:
(i) is at least 18 and has not reached the pension age; and
(ii) is an Australian resident; and
(iii) is in Australia; and
(iv) is registered as being unemployed by the CES.
Note 1: the work test is set out in section 518.
Note 2: “CES” means Commonwealth Employment Service—see section 23.
Note 3: for “pension age” see section 23.
Note 4: for “Australian resident” see section 7.
Note 5: a person may not be qualified if the person’s unemployment is due to industrial action (see section 514).
Note 6: a person may not be qualified if the person has reduced employment prospects by moving to an area of lower employment (see section 515).
Note 7: where circumstances beyond a person’s control prevent the person from being registered at the CES, this requirement may be waived—see section 516.
Note 8: an unemployment benefit is not payable in certain situations even if the person is qualified—see Subdivision C.
Unemployment due to industrial action
514. (1) A person is not qualified for an unemployment benefit for a period unless the person satisfies the Secretary that the person’s unemployment during the period was not due to the person being, or having been, engaged in industrial action or in a series of industrial actions.
(2) A person is not qualified for unemployment benefit for a period unless the Secretary is satisfied:
(a) that the person’s unemployment during the period was due to other people being, or having been, engaged in industrial action or in a series of industrial actions; and
(b) the people, or some of the people, were members of a trade union which was involved in the industrial action; and
s. 514 Unemployment Benefit
(c) the person was not a member of the trade union during the period.
(3) Subsections (1) and (2) do not prevent a person from being qualified for an unemployment benefit for a period that occurs after the relevant industrial action or series of industrial actions has stopped.
Note: for “industrial action”, “trade union” and “unemployment” see section 16.
Move to area of lower employment
515. (1) A person is not qualified for an unemployment benefit on a day on which the person reduces his or her employment prospects by moving to a new place of residence without sufficient reason.
(2) For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person moves to live:
(a) with a family member who has already established his or her residence in that place of residence; or
(b) near a family member who has already established residence in the same area; or
(c) the person satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by,a family member.
Some people not required to be registered at the CES
516. The Secretary may decide that a person does not have to satisfy subparagraph 513 (b) (iv) (CES registration) for a period if:
(a) the person was not registered as unemployed by the CES during the period; and
(b) the Secretary is satisfied that there are circumstances beyond the person’s control relating to the person’s failure to be registered; and
(c) having regard to those circumstances, the Secretary is satisfied that the person’s failure to be registered should be disregarded in respect of the period.
Note: “CES” means Commonwealth Employment Service (see section 23).
Prospective determinations for some beneficiaries
517. (1) A person is qualified for unemployment benefit for a period, if the person:
(a) has turned 55 and:
(i) in the case of a woman—has not turned 59 and 6 months; and
(ii) in the case of a man—has not turned 64 and 6 months; and
(b) is in receipt of an unemployment benefit; and
Unemployment Benefit s. 517
(c) has in the previous 12 months been in continuous receipt of one or a combination of the following:
(i) an unemployment benefit;
(ii) a sickness benefit;
(iii) a special benefit; and
(d) is not indebted to the Commonwealth under or as a result of this Act;
(e) is not, in the Secretary’s opinion, likely to be employed; and
(f) will, in the Secretary’s opinion, comply with the requirements of this Act; and
(g) may, in the Secretary’s opinion, reasonably be expected to satisfy the qualification requirements for unemployment benefit (see sections 513 to 516) during the period.
(2) A person is qualified for unemployment benefit for a period if:
(a) the person is in receipt of an unemployment benefit; and
(b) the unemployment benefit was granted before 1 November 1977; and
(c) the person may, in the Secretary’s opinion, reasonably be expected to satisfy the qualification requirements for unemployment benefit (see sections 513 to 516) during the period.
(3) A person is qualified for unemployment benefit for a period if:
(a) the person was, immediately before starting to receive unemployment benefit, receiving:
(i) a social security benefit; or
(ii) a sheltered employment allowance; or
(iii) a rehabilitation allowance; and
(b) the last payment of that benefit or allowance was made in respect of a period that ended after the day on which the payment was made; and
(c) the person may, in the Secretary’s opinion, reasonably be expected to satisfy the qualification requirements for unemployment benefit (see sections 513 to 516) during the period.
Subdivision B—Work test
Work test
518. (1) A person satisfies the work test for a period if the person satisfies the Secretary that:
(a) throughout the period:
(i) the person is unemployed; and
(ii) the person is:
s. 518 Unemployment Benefit
(a) capable of undertaking; and
(b) willing to undertake;
paid work that in the opinion of the Secretary is suitable to be undertaken by the person; and
(b) during the period, the person takes reasonable steps to obtain paid work that in the opinion of the Secretary is suitable to be undertaken by the person.
Persons undertaking paid work may be treated as unemployed
(2) If:
(a) a person undertakes paid work during a period; and
(b) the Secretary is of the opinion that, taking into account:
(i) the nature of the work; and
(ii) the duration of the work; and
(iii) any other matters relating to the work that the Secretary considers relevant;
the work should be disregarded;
the Secretary may treat the person as being unemployed throughout the period.
Note: for situations where a person is not required to satisfy the work test see:
(a) section 519 (certain persons over 55 in employment);
(b) section 520 (persons attending training camps);
(c) section 521 (certain persons in remote areas);
(d) section 522 (long-term beneficiaries under 55 in short-term vocational courses);
(e) section 523 (long-term beneficiaries under 55 engaged in voluntary work);
(f) section 524 (persons over 55 in short-term vocational courses);
(g) section 525 (long-term beneficiaries over 55 in vocational courses);
(h) section 526 (persons over 55 engaged in voluntary work);
(j) section 527 (long-term beneficiaries over 55 engaged in voluntary work).
Relief from work test—certain persons over 55 in employment
519. A person is taken to satisfy the work test in respect of a period if:
(a) throughout the period:
(i) the person is at least 55; and
(ii) the person is in employment that commences on or after 1 January 1990; and
(iii) the person earns at least 35% of average male full-time weekly earnings from that employment; and
(b) the person has been a qualified beneficiary for at least 12 months immediately before commencing that employment.
Note 1: for “average male full-time weekly earnings” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 518.
Unemployment Benefit s. 520
Relief from work test—persons attending training camps
520. A person is not required to satisfy the work test in respect of a period when the person is attending a training camp as a member of:
(a) the Australian Naval Reserve; or
(b) the Naval Emergency Reserve Forces; or
(c) the Australian Army Reserve; or
(d) the Australian Airforce Reserve; or
(e) the Airforce Emergency Force; or
(f) the Regular Army Emergency Reserve.
Note: for “work test” see section 518.
Relief from work test—certain persons in remote areas
521. Where the Secretary considers that:
(a) it would be reasonable to assume that:
(i) at the end of a period a person is present in a remote area; and
(ii) the person is throughout the period:
(a) unemployed; and
(b) capable of undertaking paid work that in the Secretary’s opinion is suitable to be undertaken by the person; and
(c) willing to undertake paid work that in the Secretary’s opinion is suitable to be undertaken by the person; and
(iii) during the period, the person takes reasonable steps to obtain paid work that in the Secretary’s opinion is suitable to be undertaken by the person; and
(b) having regard to all the relevant factors, including:
(i) the location of offices of the Department; and
(ii) difficulties with transport and communication; and
(iii) the educational and cultural background of the person; it would be unreasonable to expect the person to comply with the work test in order to be qualified for unemployment benefit for that period;
the person is not required to satisfy the work test during that period.
Note 1: for “remote area” see section 14.
Note 2: for “work test” see section 518.
Relief from work test—long-term beneficiaries under 55 in short-term vocational courses
522. (1) Subject to subsection (2), a person is not required to satisfy the work test in respect of a period if:
(a) on each day in the period:
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(i) the person has not turned 55; and
(ii) the person is engaged in an approved short-term vocational course; and
(b) the person has been a qualified beneficiary for at least 12 months immediately before the person starts the course.
Note 1: for “approved short-term vocational course” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 518.
(2) Subsection (1) does not apply to a day if:
(a) there are already 40 days in the same calendar year on which the person is not required to satisfy the work test because of one or a combination of the following:
(i) subsection (1);
(ii) subsection 523 (1) (long-term beneficiaries under 55 engaged in voluntary work);
(iii) subsection 597 (1) (long-term beneficiaries in short term vocational courses—JSA);
(iv) subsection 598(1) (long-term beneficiaries engaged in voluntary work—JSA); or
(b) having regard to the opportunities, or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that subsection (1) should not apply in relation to that day.
Relief from work test—long-term beneficiaries under 55 engaged in voluntary work
523. (1) Subject to subsection (2), a person is not required to satisfy the work test in respect of a period if:
(a) on each day in the period:
(i) the person has not turned 55; and
(ii) the person is engaged in full-time voluntary work with an approved organisation; and
(b) the person has been a qualified beneficiary for at least 12 months immediately before the person starts working for the organisation.
Note 1: for “approved organisation” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 518.
(2) Subsection (1) does not apply to a day if:
(a) there are already 20 days in the same calendar year on which the person is not required to satisfy the work test because of subsection (1) or subsection 598 (1); or
(b) there are already 40 days in the same calendar year on which the person is not required to satisfy the work test because of one or a combination of the following:
Unemployment Benefit s. 523
(ii) subsection 522 (1) (long-term beneficiaries under 55 in short-term vocational courses);
(iii) subsection 597 (1) (long-term beneficiaries in short-term vocational courses—JSA);
(iv) subsection 598(1) (long-term beneficiaries engaged in voluntary work—JSA); or
(c) having regard to the opportunities, or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that subsection (1) should not apply in relation to that day.
Relief from work test—persons over 55 in short-term vocational courses
524. (1) Subject to subsection (2), a person is not required to satisfy the work test in respect of a period if:
(a) on each day in the period:
(i) the person is at least 55; and
(ii) the person is engaged in an approved short-term vocational course; and
(b) the person has been a qualified beneficiary for less than 12 months immediately before the person starts the course.
Note 1: for “approved short-term vocational course” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 518.
(2) Subsection (1) does not apply to a day if:
(a) there are already 40 days in the same calendar year on which the person is not required to satisfy the work test because of one or a combination of the following:
(i) subsection (1);
(ii) subsection 522 (1) (long-term beneficiaries under 55 in short-term vocational courses);
(iii) subsection 523 (1) (long-term beneficiaries under 55 engaged in voluntary work);
(iv) subsection 526 (1) (persons over 55 engaged in voluntary work); or
(b) having regard to the opportunities, or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that subsection (1) should not apply in relation to that day.
Relief from work test—long-term beneficiaries over 55 in vocational courses
525. (1) Subject to subsection (2), a person is not required to satisfy the work test in respect of a period if:
(a) on each day in the period:
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(i) the person is at least 55; and
(ii) the person is engaged in an approved vocational course; and
(b) the person has been a qualified beneficiary for at least 12 months immediately before the person starts the course.
Note 1: for “approved vocational course” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 518.
(2) Subsection (1) does not apply to a day if:
(a) there are already 130 days in the same calendar year on which the person is not required to satisfy the work test because of one or a combination of the following:
(i) subsection (1);
(ii) subsection 527 (1) (long-term beneficiaries over 55 engaged in voluntary work); or
(b) having regard to the opportunities, or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that subsection (1) should not apply in relation to that day.
Relief from work test—persons over 55 engaged in voluntary work
526. (1) Subject to subsection (2), a person is not required to satisfy the work test in respect of a period if:
(a) on each day in the period:
(i) the person is at least 55; and
(ii) the person is engaged in full-time voluntary work with an approved organisation; and
(b) the person has been a qualified beneficiary for less than 12 months immediately before the person starts working for the organisation.
Note 1: for “approved organisation” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 518.
(2) Subsection (1) does not apply to a day if:
(a) there are already 20 days in the same calendar year on which the person is not required to satisfy the work test because of subsection (1) or subsection 523 (1) (long-term beneficiaries under 55 engaged in voluntary work); or
(b) there are already 40 days in the same calendar year on which the person is not required to satisfy the work test because of one or a combination of the following:
(ii) subsection 522 (1) (long-term beneficiaries under 55 in short-term vocational courses);
(iii) subsection 523 (1) (long-term beneficiaries under 55 engaged in voluntary work);
Unemployment Benefit s. 526
(iv) subsection 524 (1) (persons over 55 in short-term vocational courses); or
(c) having regard to the opportunities, or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that subsection (1) should not apply in relation to that day.
Relief from work test—long-term beneficiaries over 55 engaged in voluntary work
527. (1) Subject to subsection (2), a person is not required to satisfy the work test in respect of a period if:
(a) on each day in the period:
(i) the person is at least 55; and
(ii) the person is engaged in full-time voluntary work within an approved organisation; and
(b) the person has been a qualified beneficiary for at least 12 months immediately before the person starts working for the organisation.
Note 1: for “approved organisation” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 518.
(2) Subsection (1) does not apply to a day if:
(a) there are already 65 consecutive days in the same calendar year on which the person is not required to satisfy the work test because the person is working for that organisation; or
(b) there are already 130 days in the same calendar year on which the person is not required to satisfy the work test because of one or a combination of the following:
(i) subsection (1);
(ii) subsection 525 (1) (long-term beneficiaries over 55 in vocational courses); or
(c) having regard to the opportunities, or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that subsection (1) should not apply in relation to that day.
Subdivision C—Situations where benefit not payable (general)
Unemployment benefit not payable in certain circumstances
528. (1) An unemployment benefit is not payable to a person for a period during which the person is qualified for unemployment benefit (see section 513) if during that period:
(a) the person has not provided a tax file number (see section 529); or
(b) the value of the person’s assets exceeds the person’s assets value limit (see sections 530 and 531); or
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(c) the person is a full-time student (see section 532); or
(d) another income support payment is being paid to the person (see section 533); or
(e) the unemployment benefit has not commenced to be payable (see sections 535 and 561); or
(f) the person is subject to an unused annual leave waiting period and has not served that waiting period (see sections 536 to 538); or
(g) the person is subject to an ordinary waiting period and has not served that waiting period (see sections 539 and 540); or
(h) the person is subject to an education leavers waiting period and that period has not ended (see sections 541 and 542); or
(j) the person fails to comply with a requirement that the person:
(i) undertake a training course; or
(ii) do suitable work; or
(iii) attend an office of the CES;
as required by section 543; or
(k) a period of non-payment is being imposed because:
(i) the person’s unemployment is due to a voluntary act of the person (see section 544); or
(ii) the person’s unemployment is due to misconduct by the person (see section 545); or
(iii) the person has refused an offer of employment (see section 546); or
(iv) the person had previously ceased to be qualified for unemployment benefit because the person was not taking reasonable steps to find work (see section 547); or
(v) the person failed to comply with notification requirements (see section 548); or
(vi) the person had previously ceased to be qualified for unemployment benefit because the person was not registered with the CES (see section 549); or
(vii) the person is a seasonal worker (see section 550); or
(viii) the person moved to an area of lower employment (see section 551); or
(m) the person is in gaol (see Part 3.13); or
(n) the person is subject to a compensation preclusion period (see Part 3.14).
Note 1: for “serving a waiting period” see subsection 23 (10).
Note 2: “CES” means Commonwealth Employment Service (see section 23).
(2) An unemployment benefit is not payable to a person if the person’s unemployment benefit rate would be nil.
Unemployment Benefit s. 529
Provision of tax file number
529. (1) Unemployment benefit is not payable unless:
(a) a person has given the Secretary a written statement of the person’s tax file number; or
(b) a person has given the Secretary an employment declaration and satisfies either subsection (2) or (3).
Note: the Secretary can require a person to quote their tax file number under section 1308.
(2) A person satisfies this subsection if:
(a) the employment declaration states that the person:
(i) has a tax file number but does not know what it is; and
(ii) has asked the Commissioner of Taxation to inform him or her of the number; and
(b) the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) whether the person has a tax file number; and
(ii) if the person has a tax file number—the tax file number; and
(c) the Commissioner of Taxation has not told the Secretary that the person has no tax file number.
(3) A person satisfies this subsection if:
(a) the employment declaration states that an application by the person for a tax file number is pending; and
(b) the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the person—the tax file number; or
(ii) if the application is refused—that the application has been refused; or
(iii) if the application is withdrawn—that the application has been withdrawn; and
(c) the Commissioner of Taxation has not told the Secretary that an application by the person for a tax file number has been refused; and
(d) the application for a tax file number has not been withdrawn.
Assets test—benefit not payable if assets value limit exceeded
530. (1) An unemployment benefit is not payable to a person if the value of the person’s assets exceeds the person’s assets value limit.
(2) A person’s assets value limit is worked out using the following table: work out which family situation applies to the person; the assets value limit is the corresponding amount in column 3.
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ASSETS VALUE LIMIT TABLE |
column 1 | column 2 | column 3 |
| | assets value limit |
item | person’s family situation | column 3a either person or partner homeowner | column 3b neither person nor partner homeowner |
1. | Not member of couple | $103,500 | $177,500 |
2. | Partnered (partner getting neither pension nor benefit) | $147,500 | $221,500 |
3. | Partnered (partner getting pension or benefit) | $73,750 | $110,750 |
Note 1: for “member of a couple”, “partnered (partner getting neither pension nor benefit)” and “partnered (partner getting pension or benefit)” see section 4.
Note 2: for “homeowner” see section 11.
Note 3: if item 2 applies to a person, the value of all the assets of the person’s partner are to be taken as being included in the value of the person’s assets (see subsection 531 (1))—this is why the assets value limit is so high. If, on the other hand, item 3 applies to a person, the value of the person’s assets is only half the combined value of the person’s assets and the assets of the person’s partner—see subsection 531 (2).
Note 4: if an unemployment benefit is not payable to a person because of the value of the person’s assets, the person may be able to take advantage of provisions dealing with financial hardship (sections 1131 and 1132).
Note 5: the assets value limits of items 1 and 3 in column 3a and item 3 in column 3b are indexed annually in line with CPI increases (see sections 1191 to 1194).
Note 6: the assets value limit of item 1 in column 3b is adjusted annually (see subsection 1204 (1)).
Note 7: the item 2 assets value limits are adjusted annually so that the item 2 limits are twice the corresponding item 3 limits (see subsections 1204 (2) and (3)).
Value of assets of members of couples
531. (1) If:
(a) the person is a member of a couple; and
(b) the person’s partner:
(i) is not in receipt of a social security or service pension; and
(ii) is not in receipt of a social security benefit;
the value of the person’s assets, or of assets of a particular kind of the person, includes the value of the partner’s assets or of assets of that kind of the partner.
Note: “social security pension” includes a sheltered employment or rehabilitation allowance.
(2) If:
(a) the person is a member of a couple; and
(b) the person’s partner is in receipt of:
Unemployment Benefit s. 531
(i) a social security or service pension; or
(ii) a social security benefit;
the value of:
(c) the person’s assets is taken to be 50% of the sum of the value of the property of the person and the value of the assets of the person’s partner; and
(d) the person’s assets of a particular kind is taken to be 50% of the sum of the value of the assets of that kind of the person and the value of assets of that kind of the person’s partner.
Full-time students
532. (1) Subject to subsection (2), an unemployment benefit is not payable to a person engaged in a course of education on a full-time basis for the period:
(a) starting when the person starts the course; and
(b) finishing when the person finishes or abandons the course; and
(c) including periods of vacation.
(2) Subsection (1) does not prevent an unemployment benefit from being payable for any period during which:
(a) a person is engaged in a course that the Secretary has required the person to undertake under section 543; or
(b) the person is not required to satisfy the work test because of:
(i) section 522 (long-term beneficiaries under 55 in short-term vocational courses); or
(ii) section 524 (persons over 55 in short-term vocational courses); or
(iii) section 525 (long-term beneficiaries over 55 in vocational courses); or
(c) the person has deferred a course of education.
Multiple entitlement exclusion
533. (1) An unemployment benefit is not payable to a person for a period if:
(a) the person is receiving:
(i) another social security benefit; or
(ii) a social security pension; or
(iii) a service pension; or
(b) the person is a widow who is receiving:
(i) a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act; or
(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (2) of that Act;
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unless:
(iii) the widow has been in receipt of a payment referred to in subparagraph (i) or (ii) continuously since before 1 November 1986; and
(iv) before 1 November 1986 the widow was also receiving a social security benefit; or
(c) a payment has been or may be made in respect of the person for the same period under:
(i) a prescribed educational scheme other than the ABSTUDY Tertiary Scheme to the extent that it applies to part-time students; or
(ii) the scheme to provide an allowance known as the Adult Migrant Education Program Living Allowance; or
(iii) the scheme to provide an allowance known as the Maintenance Allowance for Refugees; or
(iv) the scheme to provide an allowance known as the English as a Second Language Allowance to the extent that the scheme applies to full-time students.
Note 1 : “social security pension” includes sheltered employment and rehabilitation allowance.
Note 2: a widow receiving a payment under the Veterans’ Entitlements Act who is not covered by paragraph (b) may be paid at a lower rate—see subsection 1068 (3).
Note 3: for “prescribed educational scheme” see section 5.
(2) If:
(a) a person may start a course of education on a full-time basis; and
(b) a payment under a scheme referred to in paragraph (1) (c) may be made in respect of the person;
the Secretary may decide that, notwithstanding subsection (1), an unemployment benefit is payable to the person for a period before the person starts the course.
Provisional commencement day
General rule
534. (1) Subject to subsections (2), (3), (4) and (5), a person’s provisional commencement day is the day on which the person claims an unemployment benefit.
Initial incorrect claim followed by claim for unemployment benefit
(2) If:
(a) the person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the
Unemployment Benefit s. 534
Commonwealth, that is similar in character to an unemployment benefit; and
(b) on the day on which the person makes the initial claim, the person is qualified for unemployment benefit; and
(c) the person subsequently makes a claim for unemployment benefit; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is, subject to subsections (3), (4) and (5), the day on which the person made the initial claim.
Claim within 14 days of CES registration
(3) If:
(a) a person is not a transferee to unemployment benefit; and
(b) the person is not subject to an education leavers waiting period (see section 541); and
(c) the person becomes registered as unemployed by the CES; and
(d) the day that would be the person’s provisional commencement day under subsections (1) and (2) occurs:
(i) within 14 days after becoming registered by the CES; or
(ii) within such further period after becoming registered by the CES as the Secretary considers reasonable;
the person’s provisional commencement day is the day on which the person became registered by the CES.
Note: for “transferee” see subsections 23 (6) and (7).
Education leavers who claim within 14 days of CES registration
(4) If:
(a) a person becomes registered as unemployed by the CES; and
(b) the person is subject to an education leavers waiting period (see subsection 541 (1));
the person’s provisional commencement day is:
(c) if the person becomes registered by the CES before stopping the course and the day that would be the person’s provisional commencement day under subsections (1) and (2) occurs:
(i) within 14 days after stopping the course; or
(ii) within such further period after stopping the course as the Secretary considers reasonable;
the day after the last day on which the person was undertaking the course; or
(d) if the person becomes registered by the CES after stopping the course and the day that would be the person’s provisional commencement day under subsections (1) and (2) occurs:
(i) within 14 days after becoming registered by the CES; or
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(ii) within such further period after becoming registered by the CES as the Secretary considers reasonable;
the day on which the person became registered by the CES.
Transferees
(5) If a person is a transferee to unemployment benefit and:
(a) the day that would be the person’s provisional commencement day under subsections (1) and (2) occurs within 14 days after the transfer day; or
(b) both of the following subparagraphs are satisfied:
(i) the person becomes registered as unemployed by the CES within 14 days after the transfer day; and
(ii) the day that would be the person’s provisional commencement day under subsections (1) and (2) occurs:
(a) within 14 days after becoming registered by the CES; or
(b) within such further period after becoming registered by the CES as the Secretary considers reasonable;
the person’s provisional commencement day is the person’s transfer day.
Note: for “transferee” to a benefit and “transfer day” see subsections 23 (6) and (7).
Commencement of unemployment benefit
535. An unemployment benefit is not payable to a person who is qualified for the benefit before:
(a) if the person is not subject to a waiting period—the person’s provisional commencement day; or
(b) if the person is subject to one waiting period only—the first day after the end of that waiting period; or
(c) if the person is subject to more than one waiting period—the first day after all of the waiting periods have ended.
Note 1: for “provisional commencement day” see section 534.
Note 2: a waiting period is:
(a) an unused annual leave waiting period—see sections 536 to 538; or
(b) an ordinary waiting period—see sections 539 and 540; or
(c) an education leavers waiting period—see sections 541 and 542.
If the person has an unused annual leave waiting period and an ordinary waiting period, the ordinary waiting period will follow the unused annual leave waiting period (see subsection 540 (2). If the person has an education leavers waiting period and another waiting period, the education leavers waiting period runs concurrently with the other waiting period and the unemployment benefit will not be payable until the longest waiting period has finished.
Unemployment Benefit s. 536
Subdivision D—Situations where benefit not payable (waiting periods)
Unused annual leave waiting period
536. A person is subject to an unused annual leave waiting period if:
(a) when the person became unemployed, the person became entitled to receive a payment for unused annual leave; and
(b) the person’s provisional commencement day occurs within the notional leave period.
Note 1: for “unused annual leave” see section 23.
Note 2: for “notional leave period” see section 537.
Note 3: for “provisional commencement day” see section 534.
Notional leave period
537. (1) A person’s notional leave period is the period that:
(a) starts on the day after the day on which the person’s employment has ended; and
(b) runs for the number of days for which the person has unused annual leave as calculated under subsections (2) and (3).
(2) Subject to subsection (3), the number of days for which the person has unused annual leave is worked out as follows:
(a) if the period of unused annual leave is expressed in weeks— multiply by 7 the number of weeks (including fractions of weeks) in the period of unused annual leave and disregard any fraction that results;
(b) in any other case—multiply by 7 the number of working weeks (including any fraction of a working week) represented by the period of unused annual leave and disregard any fraction that results.
(3) The number of days for which a person has unused annual leave cannot exceed 28 days.
Duration of unused annual leave waiting period
538. A person’s unused annual leave waiting period starts on the person’s provisional commencement day and finishes on the last day of the notional leave period.
Note 1: for “notional leave period” see section 537.
Note 2: an unused annual leave waiting period may apply to a person whether or not the person is subject to an ordinary waiting period. If the person is subject to an ordinary waiting period, that period will start after the unused annual leave waiting period—see subsection 540 (2).
Note 3: for “provisional commencement day” see section 534.
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Ordinary waiting period
539. A person is subject to an ordinary waiting period unless:
(a) immediately before becoming qualified for the unemployment benefit, the person was receiving a job search allowance; or
(b) the person has served an ordinary waiting period that ended not more than 12 weeks before the person’s provisional commencement day; or
(c) both of the following conditions apply:
(i) the person is a transferee to unemployment benefit; (ii) the person claims the unemployment benefit:
(a) within 14 days of the transfer day; or
(b) where the person becomes registered as unemployed by the CES within 14 days after the transfer day—within 14 days of the person becoming so registered or such further period as the Secretary considers reasonable; or
(d) both of the following conditions apply:
(i) at some time in the 13 weeks immediately before the person’s provisional commencement day, an unemployment benefit stopped being payable to the person;
(ii) immediately before the benefit stopped being payable to the person, one or a combination of the following had been payable to the person for at least 12 months:
(a) a social security benefit;
(b) a payment as a trainee in full-time training under a program included in the programs known as Labour Force Programs.
Note 1: for “transferee” to a benefit and “transfer day” see subsections 23 (6) and (7).
Note 2: for “provisional commencement day” see section 534.
Note 3: for “ordinary waiting period” see subsection 23 (1).
Duration of ordinary waiting period
No unused annual leave waiting period
540. (1) If a person:
(a) is subject to an ordinary waiting period; and
(b) is not subject to an unused annual leave waiting period;
the ordinary waiting period is the period of 7 days that starts on the person’s provisional commencement day.
Note: for “provisional commencement day” see section 534.
Unused annual leave waiting period
(2) If a person is subject to:
(a) an ordinary waiting period; and
Unemployment Benefit s. 540
(b) an unused annual leave waiting period;
the ordinary waiting period is the period of 7 days that starts on the day after the day on which the person’s unused annual leave waiting period ends.
Note 1: for “unused annual leave waiting period” see sections 536 to 538.
Note 2: for “provisional commencement day” see section 534.
Education leavers waiting period
Persons subject to waiting period
541. (1) A person is subject to an education leavers waiting period if the person:
(a) was undertaking a course of education of at least 6 months duration on a full-time basis; and
(b) has stopped the course; and
(c) was, immediately before stopping the course, receiving neither:
(i) a social security or service pension; nor
(ii) a social security benefit; and
(d) has a provisional commencement day within 6 months after stopping the course; and
(e) is not covered by subsection (2) (beneficiaries stopping courses after 4 weeks).
Note: for “provisional commencement day” see section 534.
No education leavers waiting period in some cases where already served
(2) A person who would otherwise be subject to an education leavers waiting period in relation to unemployment benefit is not subject to such a period if:
(a) the person had previously been subject to an education leavers waiting period; and
(b) an unemployment benefit or a job search allowance had been payable to the person continuously from the end of the education leavers waiting period until immediately before the person started the course; and
(c) the person’s provisional commencement day is within 4 weeks after starting the course.
Note 1: for “provisional commencement day” see section 534.
Note 2: for “education leavers waiting period” see subsection 23 (1).
Duration of education leavers waiting period
General rule
542. (1) Subject to this section, the education leavers waiting period starts on the person’s provisional commencement day and lasts for:
(a) 13 weeks if, on the person’s provisional commencement day, the person:
s. 542 Unemployment Benefit
(i) is not a member of a couple; and
(ii) is under 21 ; and
(iii) does not have a dependent child; or
(b) 6 weeks if, on the person’s provisional commencement day, the person:
(i) is a member of a couple; or
(ii) is over 21; or
(iii) has a dependent child.
Note 1: the duration of the education leavers waiting period may be modified by:
(a) subsections (2) and (3) (change of status during waiting period);
(b) subsection (5) (periods of employment or periods on special benefit);
(c) subsection (6) (previous periods of non-payment because of education leavers waiting period);
(d) subsection (7) (6 months ceiling).
Note 2: for “provisional commencement day” see section 534.
Change of status in first 6 weeks .
(2) Subject to subsection (4), where:
(a) a person who is covered by paragraph (1) (a):
(i) becomes a member of a couple; or
(ii) turns 21; or
(b) a young person becomes a dependent child of a person who is covered by paragraph (1) (a);
within 6 weeks from and including the person’s provisional commencement day, the education leavers waiting period starts on the person’s provisional commencement day and lasts for 6 weeks.
Note: for “provisional commencement day” see section 534.
Change of status after 6 weeks
(3) Subject to subsection (4), where:
(a) a person who is covered by paragraph (1) (a):
(i) becomes a member of a couple; or
(ii) turns 21; or
(b) a young person becomes a dependent child of a person who is covered by paragraph (1) (a);
in the period:
(c) starting at the end of 6 weeks from the person’s provisional commencement day; and
(d) lasting for 6 weeks;
the education leavers waiting period starts on the person’s provisional commencement day and ends on the day before the day on which the person is first covered by paragraph (a) or (b).
Note: for “provisional commencement day” see section 534.
Unemployment Benefit s. 542
Notification required
(4) For the purposes of subsections (2) and (3):
(a) a person is not to be taken to have become a member of a couple; and
(b) a young person is not to be taken to have become a dependent child of a person;
until the person notifies the Department that this is the case.
Reduction of waiting period for periods of special benefit and employment
(5) The waiting period imposed by subsection (1) or (2) is to be reduced by a period equivalent to:
(a) if the person is subject to a 13 week education leavers waiting period—any period during which the person was employed on a full-time basis after stopping the course; and
(b) if the person is subject to a 6 week education leavers waiting period—any period during which the person has been employed, at any time, on a full-time basis; and
(c) any period during which the person was paid a special benefit after stopping the course.
Reduction of education leavers waiting period where already partially served
(6) If:
(a) a person is subject to an education leavers waiting period; and
(b) the person started the course concerned at a time when an unemployment benefit, job search allowance or sickness benefit was not payable to the person because of an education leavers waiting period; and
(c) the person’s provisional commencement day is within 4 weeks after the person started the course concerned;
the duration of the education leavers waiting period is reduced by the number of days of the previous education leavers waiting period that the person had served immediately before starting the course.
Note 1: for “provisional commencement day” see section 534.
Note 2: for “education leavers waiting period” see section 23.
6 month ceiling
(7) An education leavers waiting period that applies in respect of a course of study undertaken by a person is not to extend more than 6 months after the person has stopped the course.
s. 543 Unemployment Benefit
Subdivision E—Situations where benefit not payable (recipient non-compliance)
Secretary may require person to attend course or undertake work
543. (1) If:
(a) a person is receiving, or has lodged a claim for, an unemployment benefit; and
(b) the Secretary is of the opinion that the person should:
(i) undertake a course of vocational training; or
(ii) undertake a course:
(a) which the person could reasonably undertake; and
(b) to which the person has been referred by the CES; or
(iii) do any work suitable to be done by the person; or
(iv) attend an office of the CES; and
(c) the Secretary notifies the person that the person is required to:
(i) undertake that course; or
(ii) do that work; or
(iii) attend an office of the CES; and
(d) the requirement is reasonable; and
(e) the person does not take reasonable steps to comply with the Secretary’s requirement;
an unemployment benefit is not payable to the person for a period determined by the Secretary.
(2) The Secretary may determine that an unemployment benefit is payable for a period for which he or she had previously determined that it was not payable under subsection (1) if within a reasonable period the person takes reasonable steps to comply with the Secretary’s requirement.
(3) If:
(a) the Secretary has determined under subsection (1) that an unemployment benefit is not payable for a period; and
(b) within a reasonable period the person has not taken reasonable steps to comply with the Secretary’s requirements; and
(c) at a later time an unemployment benefit would, but for this subsection, be payable to the person;
an unemployment benefit is not payable to the person for the deferment period.
(4) Subject to subsections (5) and (6), the deferment period is 2 weeks.
(5) If:
(a) subsection (1) applies to a person at a particular time; and
Unemployment Benefit s. 543
(b) on one occasion only within the period of 3 years before that time a JSA or UB automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(6) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA or UB automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 3 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(7) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Unemployment due to voluntary act
544. (1) If:
(a) a person’s unemployment is due either directly or indirectly, to a voluntary act of the person; and
(b) the voluntary act was without sufficient reason;
an unemployment benefit is not payable to the person for the deferment period.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 3 years before that time a JSA or UB automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA or UB automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 3 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
s. 544 Unemployment Benefit
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Unemployment due to misconduct
545. (1) If a person’s unemployment is due to the person’s misconduct as a worker, an unemployment benefit is not payable to the person for the deferment period.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 3 years before that time a JSA or UB automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA or UB automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 3 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Refusal of job offer
546. (1) If a person has refused or failed, without sufficient reason, to accept a suitable offer of employment, an unemployment benefit is not payable to the person for the deferment period.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 3 years before that
Unemployment Benefit s. 546
time a UB or JSA automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “UB automatic deferment provision” and “JSA automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a UB or JSA automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 3 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “UB automatic deferment provision” and “JSA automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Removal from benefit for failure to take reasonable steps to find work
547. (1) If:
(a) an unemployment benefit or a job search allowance was payable to a person; and
(b) the person ceased to be qualified for that benefit or allowance because the person was not taking reasonable steps to find employment; and
(c) the person later becomes qualified for unemployment benefit; an unemployment benefit is not payable to the person for the deferment period.
Note: where a person has been paid unemployment benefit or a job search allowance while the person was not qualified because he or she was not taking reasonable steps to find work, an overpayment may arise (see Chapter 5). Subsection (1) does not prevent the Secretary from taking action to recover the overpayment.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 3 years before that time a JSA or UB automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
s. 547 Unemployment Benefit
(b) a JSA or UB automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 3 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Removal from benefit for failure to comply with notification requirements
548. (1) If a person refuses or fails, without sufficient reason, to comply with a requirement made of the person under section 572, 573 or 1304, an unemployment benefit is not payable to the person for the deferment period.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 3 years before that time a JSA or UB automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA or UB automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 3 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” and “UB automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Removal from benefit for failure to continue CES registration
549. (1) If:
(a) an unemployment benefit or a job search allowance was payable to a person; and
Unemployment Benefit s. 549
(b) the person ceased to be qualified for that benefit or allowance because the person:
(i) was not registered at the CES (see subparagraph 513 (b) (iv) and subparagraph 589 (1) (b) (iv)); and
(ii) the Secretary has not excused the person from being registered at the CES under section 516 or 592; and
(c) the person later becomes qualified for unemployment benefit; an unemployment benefit is not payable to the person for a period determined, in writing, by the Secretary.
Note: where a person has been paid unemployment benefit or a job search allowance while the person was not qualified because he or she was not registered at the CES, an overpayment may arise (see Chapter 5). Subsection (1) does not prevent the Secretary from taking action to recover the overpayment.
(2) The Secretary may determine in writing the day on which the period of non-payment imposed by subsection (1) commences and that day may be before the day of the determination.
Seasonal workers
550. (1) If:
(a) a person is a seasonal or intermittent worker; and
(b) the person’s income is sufficient to maintain:
(i) the person; and
(ii) any other persons who are ordinarily maintained by the person;
notwithstanding that the person is temporarily unemployed; an unemployment benefit is not payable to the person for a period determined, in writing, by the Secretary.
(2) The Secretary may determine in writing the day on which the period of non-payment imposed by subsection (1) commences and that day may be before the day of the determination.
Move to area of lower employment
551. (1) If a person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason, an unemployment benefit is not payable to the person for 12 weeks.
(2) For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person moves to live:
(a) with a family member who has already established his or her residence in that place of residence; or
(b) near a family member who has already established residence in the same area; or
(c) the person satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member.
s. 551 Unemployment Benefit
(3) The Secretary may determine in writing the day on which the period of non-payment imposed by subsection (1) commences and that day may be before the day of the determination.
Division 2—Claim for unemployment benefit
Need for a claim
552. (1) A person who wants to be granted an unemployment benefit must make a proper claim for that benefit.
Note 1: “proper claim”—see section 553 (form), section 554 (manner of lodgment) and section 555 (residence/presence in Australia).
Note 2: because the payability of unemployment benefit may be affected by, for example, the provisions dealing with the circumstances in which a person’s former employment ended (see sections 544 and 545), the person may be asked to support his or her claim for unemployment benefit with an end of employment statement by the former employer (see section 1311).
(2) Subsection (1) does not apply to a person who, immediately before becoming qualified for the unemployment benefit, is receiving job search allowance.
(3) For the purposes of subsection (1), where:
(a) a claim for unemployment benefit is made by or on behalf of a person; and
(b) at, the time the claim is made, the claim cannot be granted because the person is not qualified for unemployment benefit;
the claim is to be taken to have not been made.
Form of claim
553. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
554. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) A place or person approved under subsection (1) must be a place or person in Australia.
Claimant must be Australian resident and in Australia
555. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note: for “Australian resident” see subsection 7 (2).
Unemployment Benefit s. 556
Division 3—Determination of claim
Secretary to determine claim
556. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
557. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for an unemployment benefit; and
(b) the benefit is payable.
Date of effect of determination
558. (1) Subject to subsections (2), (3) and (4), a determination under section 557 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for unemployment benefit; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for unemployment benefit; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
s. 558 Unemployment Benefit
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for unemployment benefit; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 4—Rate of unemployment benefit
How to work out a person’s unemployment benefit rate
559. A person’s unemployment benefit rate is worked out using Benefit Rate Calculator B at the end of section 1068.
Note 1: for double payments on release from gaol see section 1161.
Note 2: for double payments in case of major disaster see section 560.
Double payment—claim as a result of major disaster
560. If:
(a) a person makes a claim for unemployment benefit; and
(b) unemployment benefit is payable to the person on the person’s provisional commencement day; and
(c) the claim is made because of a major disaster;
the amount of unemployment benefit payable to the person for the period of 7 days starting on the person’s provisional commencement day is 2 times the amount that would, apart from this section, be payable to the person for that period.
Note: for “provisional commencement day” see section 534.
Division 5—Payment of unemployment benefit
Commencement of unemployment benefit
561. Unemployment benefit becomes payable to a person on the first day on which:
(a) the person is qualified for the benefit; and
(b) no provision of this Act makes the benefit not payable to the person.
Note 1: for qualification see section 513.
Note 2: for the circumstances in which unemployment benefit is not payable see section 528.
Unemployment Benefit s. 562
Instalments
562. (1) Unemployment benefit is to be paid by instalments for periods determined by the Secretary.
(2) Instalments of unemployment benefit are to be paid at the times determined by the Secretary.
Instalments for period less than a fortnight
563. (1) If:
(a) an instalment of unemployment benefit is for a period; and
(b) the period is less than a fortnight;
the instalment for the period is:
unemployment benefit rate × | week days in period |
10 |
(2) If:
(a) an instalment of unemployment benefit is for a period; and
(b) the period consists of:
(i) a number of whole fortnights; and
(ii) a period that is less than a fortnight;
the instalment, insofar as it relates to the period that is less than a fortnight, is:
unemployment benefit rate × | week days in period |
10 |
Rounding off instalment
564. (1) If the amount of an instalment is:
(a) a number of whole dollars and a part of a cent; or
(b) a number of whole dollars and cents and a part of a cent;
the amount is, subject to subsection (2), to be increased or decreased to the nearest whole cent.
(2) If the amount of an instalment is:
(a) a number of whole dollars and 0.5 cent; or
(b) a number of whole dollars and cents and 0.5 cent; the amount is to be increased by 0.5 cent.
(3) If, apart from this section, the amount of an instalment would be less than $1.00, the amount is to be increased to $1.00.
Manner of payment
565. A person’s unemployment benefit is, subject to section 566, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
s. 566 Unemployment Benefit
Nominee payments
566. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s unemployment benefit is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the unemployment benefit is to be paid in accordance with the direction.
Payment into bank account etc.
567. (1) The Secretary may direct that the whole or a part of the amount of a person’s unemployment benefit is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the unemployment benefit is payable.
(3) The account may be an account that is maintained by a person to whom the unemployment benefit is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the unemployment benefit is to be payable in accordance with the direction.
Where benefit payday would fall on public holiday etc.
568. If the Secretary is satisfied that an amount of unemployment benefit that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of benefit after death
569. (1) If:
(a) an unemployment benefit is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of unemployment benefit payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of unemployment benefit under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of unemployment benefit.
Unemployment Benefit s. 570
Division 6—Protection of unemployment benefit
Unemployment benefit to be absolutely inalienable
570. (1) Subject to subsection (2) and section 1359, unemployment benefit is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of unemployment benefit payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
571. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of unemployment benefit payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of unemployment benefit payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
s. 572 Unemployment Benefit
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
572. (1) The Secretary may give a person to whom an unemployment benefit is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the benefit.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; arid
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 7 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Unemployment Benefit s. 573
Secretary may require recipient to give particular information relevant to payment of unemployment benefit
573. (1) The Secretary may give a person to whom an unemployment benefit is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the benefit to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 7 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
574. (1) A person is not excused from giving information pursuant to a notice under section 572 or 573 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 572 or 573 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 572 (5) or (6) or 573 (5) or (6).
s. 575 Unemployment Benefit
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
575. (1) A determination that:
(a) a person’s claim for unemployment benefit is granted; or
(b) an unemployment benefit is payable to a person; continues in effect until:
(c) the benefit ceases to be payable under section 576, 577 or 578; or
(d) a further determination in relation to the benefit under section 582 has taken effect.
Note 1: for paragraph (a) see section 557.
Note 2: for paragraph (b) see section 583—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of an unemployment benefit continues in effect until:
(a) the benefit becomes payable at a lower rate under section 579; or
(b) a further determination in relation to the benefit under section 580 or 581 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 572 notification obligations
576. If:
(a) a person who is receiving an unemployment benefit is given a notice under section 572; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the benefit; or
Unemployment Benefit s. 576
(ii) the benefit would, but for this section, cease to be payable to the person;
the benefit continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s benefit, there is no automatic rate reduction and a determination under section 581 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 572 notification obligations
577. If:
(a) a person who is receiving an unemployment benefit is given a notice under section 572; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the benefit; or (ii) the benefit ceases to be payable to the person; the benefit ceases to be payable to the person immediately after the day on which the event or change in circumstance occurs.
Automatic termination—failure to provide section 573 statement
578. (1) If:
(a) a person who is receiving an unemployment benefit is given a notice under section 573 requiring the person to give the Department a statement; and
(b) the notice relates to the payment of that benefit in respect of a period specified in the notice; and
(c) the person does not comply with the notice;
the benefit, subject to subsection (2), ceases to be payable to the person as from the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.
s. 579 Unemployment Benefit
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 572 notification obligations
579. If:
(a) a person who is receiving an unemployment benefit is given a notice under section 572; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of benefit is to be reduced;
the benefit becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Subdivision D—Determinations
Rate increase determination
580. If the Secretary is satisfied that the rate at which an unemployment benefit is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 584.
Rate reduction determination
581. If the Secretary is satisfied that the rate at which an unemployment benefit is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 579 (see subsection 575 (2)).
Note 2: for the date of effect of a determination under this section see section 585.
Cancellation or suspension determination
582. If the Secretary is satisfied that an unemployment benefit is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the benefit is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 576, 577 or 578 (see subsection 575 (1)).
Note 2: for the date of effect of a determination under this section see section 585.
Unemployment Benefit s. 583
Resumption of payment after cancellation or suspension
583. (1) If the Secretary:
(a) cancels or suspends a person’s unemployment benefit under section 582; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive unemployment benefit that was payable to the person; or
(b) the person is not receiving unemployment benefit that is payable to the person;
the Secretary is to determine that unemployment benefit was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 584.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
584. (1) The day on which a determination under section 580 or 583 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to an unemployment benefit; and
(b) a notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
s. 584 Unemployment Benefit
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to an unemployment benefit; and
(b) a notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to an unemployment benefit; and
(b) no notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
Unemployment Benefit s. 584
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment ceased, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
585. (1) The day on which a determination under section 581 or 582 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the
s. 585 Unemployment Benefit
outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose benefit is affected by the adverse determination has contravened a provision of this Act (other than section 573, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the benefit has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the benefit was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments (death of dependent child)
Bereavement payments on death of dependent child
(a) a person is receiving unemployment benefit; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s unemployment benefit rate included:
(i) a dependent child add-on in respect of the child; or
Unemployment Benefit s. 586
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Division to cover the bereavement period.
Note 1: section 587 provides for unemployment benefit to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 588 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new unemployment benefit rate and the rate at which the benefit would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Division are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
587. If a person is qualified for payments under this Division in relation to the death of a dependent child, the person’s unemployment benefit rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
588. If:
(a) a person is qualified for payments under this Division in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance for the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Division was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
s. 588 Unemployment Benefit
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
| Method statement |
Step 1. | Work out the amount of unemployment benefit payable to the person on the payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. Note: section 587 applies in working out this amount because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the amount of unemployment benefit that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s unemployment benefit rate were not calculated under section 587: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Job Search Allowance s. 589
PART 2.12—JOB SEARCH ALLOWANCE
Division 1—Qualification for and payability of job search allowance
Subdivision A—Basic qualifications
Qualification for job search allowance
589. (1) Subject to subsection (2), a person is qualified for a job search allowance in respect of a period if:
(a) throughout the period, or for each period within that period, the person either:
(i) satisfies the work test; or
(ii) is not required to satisfy the work test; and
(b) throughout the period the person:
(i) is at least 16 and had not turned 18; and
(ii) is an Australian resident; and
(iii) is in Australia; and
(iv) is registered as being unemployed by the CES.
Note 1: the work test is set out in section 594.
Note 2: “CES” means Commonwealth Employment Service—see section 23.
Note 3: for “Australian resident” see section 7.
Note 4: a person may not be qualified if the person’s unemployment is due to industrial action (see section 590).
Note 5: a person may not be qualified if the person has reduced the person’s employment prospects by moving to an area of lower employment (see section 591).
Note 6: where circumstances beyond a person’s control prevent the person from being registered at the CES, this requirement may be waived—see section 592.
Note 7: a job search allowance is not payable in certain situations even if the person is qualified—see Subdivision C.
(2) If:
(a) a person is receiving a job search allowance; and
(b) the person would, but for subsection 666 (3), become qualified for a sickness benefit;
the person continues to be qualified for a job search allowance for the period during which the person would have been qualified for sickness benefit.
Unemployment due to industrial action
590. (1) A person is not qualified for unemployment benefit for a period unless the person satisfies the Secretary that the person’s unemployment during the period was not due to the person being, or having been, engaged in industrial action or in a series of industrial actions.
(2) A person is not qualified for unemployment benefit for a period unless the Secretary is satisfied:
(a) that the person’s unemployment during the period was due to
s. 590 Job Search Allowance
other people being, or having been, engaged in industrial action or in a series of industrial actions; and
(b) the people, or some of the people, were members of a trade union which was involved in the industrial action; and
(c) the person was not a member of the trade union during the period.
(3) Subsections (1) and (2) do not prevent a person from being qualified for a job search allowance for a period that occurs after the relevant industrial action or series of industrial actions has stopped.
Note: for “industrial action”, “trade union” and “unemployment” see section 16.
Move to area of lower employment
591. (1) A person is not qualified for a job search allowance on a day on which the person reduces his or her employment prospects by moving to a new place of residence without sufficient reason.
(2) For the purposes of subsection (1) a person has a sufficient reason for moving to a new place of residence if and only if the person moves to live:
(a) with a family member who has already established his or her residence in that place of residence; or
(b) near a family member who has already established residence in the same area; or
(c) the person satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member.
Some people not required to be registered at the CES
592. The Secretary may decide that a person does not have to satisfy subparagraph 589 (1) (b) (iv) (CES registration) for a period if:
(a) the person was not registered as unemployed by the CES during the period; and
(b) the Secretary is satisfied that there are circumstances beyond the person’s control relating to the person’s failure to be registered; and
(c) having regard to those circumstances, the Secretary is satisfied that the person’s failure to be registered should be disregarded in respect of the period.
Note: “CES” means Commonwealth Employment Service (see section 23).
Prospective determinations for some beneficiaries
593. A person is qualified for job search allowance in respect of a period, if:
(a) the person was, immediately before starting to receive job search allowance, receiving:
Job Search Allowance s. 593
(i) a social security benefit; or
(ii) a sheltered employment allowance; or
(iii) a rehabilitation allowance; and
(b) the last payment of that benefit or allowance was made in respect of a period that ended after the day on which the payment was made; and
(c) the person may, in the Secretary’s opinion, reasonably be expected to satisfy the qualification requirements for job search allowance (see sections 589 to 592) during the period.
Subdivision B—Work test
Work test
594. (1) A person satisfies the work test in respect of a period if the person satisfies the Secretary that:
(a) throughout the period:
(i) the person is unemployed; and
(ii) the person is:
(a) capable of undertaking; and
(b) willing to undertake;
paid work that in the opinion of the Secretary is suitable to be undertaken by the person; and
(b) during the period, the person takes reasonable steps to obtain paid work that in the opinion of the Secretary is suitable to be undertaken by the person.
Persons undertaking paid work may be treated as unemployed
(2) If:
(a) a person undertakes paid work during a period; and
(b) the Secretary is of the opinion that, taking into account:
(i) the nature of the work; and
(ii) the duration of the work; and
(iii) any other matters relating to the work that the Secretary considers relevant;
the work should be disregarded;
the Secretary may treat the person as being unemployed throughout the period.
Note: for situations where a person is not required to satisfy the work test see:
(a) section 595 (persons attending training camps);
(b) section 596 (certain persons in remote areas);
(c) section 597 (long-term beneficiaries in short-term vocational courses);
(d) section 598 (long-term beneficiaries engaged in voluntary work).
s. 595 Job Search Allowance
Relief from work test—persons attending training camps
595. A person is not required to satisfy the work test in respect of a period when the person is attending a training camp as a member of:
(a) the Australian Naval Reserve; or
(b) the Naval Emergency Reserve Forces; or
(c) the Australian Army Reserve; or
(d) the Australian Airforce Reserve; or
(e) the Airforce Emergency Force; or
(f) the Regular Army Emergency Reserve.
Note: for “work test” see section 594.
Relief from work test—certain persons in remote areas
596. Where the Secretary considers that:
(a) it would be reasonable to assume that:
(i) at the end of a period a person is present in a remote area; and
(ii) the person is throughout the period:
(a) unemployed; and
(b) capable of undertaking paid work that in the Secretary’s opinion is suitable to be undertaken by the person; and
(c) willing to undertake paid work that in the Secretary’s opinion is suitable to be undertaken by the person; and
(iii) during the period, the person takes reasonable steps to obtain paid work that in the Secretary’s opinion is suitable to be undertaken by the person; and
(b) having regard to all the relevant factors, including:
(i) the location of offices of the Department; and
(ii) difficulties with transport and communication; and
(iii) the educational and cultural background of the person;
it would be unreasonable to expect the person to comply with the work test in order to be qualified for job search allowance for that period;
the person is not required to satisfy the work test during that period.
Note 1: for “remote area” see section 14.
Note 2: for “work test” see section 594.
Relief from work test—long-term beneficiaries in short-term vocational courses
597. (1) Subject to subsection (2), a person is not required to satisfy the work test in respect of a period if:
(a) on each day in the period the person is engaged in an approved short-term vocational course; and
Job Search Allowance s. 597
(b) the person has been a qualified beneficiary for at least 3 months immediately before the person starts the course.
Note 1: for “approved short-term vocational course” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 594.
(2) Subsection (1) does not apply to a day if:
(a) there are already 40 days in the same calendar year on which the person is not required to satisfy the work test because of one or a combination of the following:
(i) subsection (1);
(ii) subsection 598 (1) (long-term beneficiaries engaged in voluntary work); or
(b) having regard to the opportunities, or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that subsection (1) should not apply in relation to that day.
Relief from work test—long-term beneficiaries engaged in voluntary work
598. (1) Subject to subsection (2), a person is not required to satisfy the work test in respect of a period if:
(a) on each day in the period the person is engaged in full-time voluntary work with an approved organisation; and
(b) the person has been a qualified beneficiary for at least 3 months immediately before the person starts working for the organisation.
Note 1: for “approved organisation” and “qualified beneficiary” see section 15.
Note 2: for “work test” see section 594.
(2) Subsection (1) does not apply to a day if:
(a) there are already 20 days in the same calendar year on which the person is not required to satisfy the work test because of subsection (1); or
(b) there are already 40 days in the same calendar year on which the person is not required to satisfy the work test because of one or a combination of the following:
(i) subsection (1);
(ii) subsection 597 (1) (long-term beneficiaries in short-term vocational courses); or
(c) having regard to the opportunities or possible opportunities, for employment that become available to the person on or before the day, the Secretary considers that subsection (1) should not apply in relation to that day.
s. 599 Job Search Allowance
Subdivision C—Situations where allowance not payable (general)
Job search allowance not payable in certain situations
599. (1) A job search allowance is not payable to a person for a period during which the person is qualified for job search allowance (see section 589) if during that period:
(a) the person has not provided a tax file number (see section 600); or
(b) the value of the person’s assets exceeds the person’s assets value limit (see sections 601 and 602); or
(c) the person is a full-time student (see section 603); or
(d) another income support payment is being paid to the person (see section 604); or
(e) the job search allowance has not commenced to be payable (see sections 606 and 633); or
(f) the person is subject to an unused annual leave waiting period and has not served that waiting period (see sections 607 to 609); or
(g) the person is subject to an ordinary waiting period and has not served that waiting period (see sections 610 and 611); or
(h) the person is subject to an education leavers waiting period and that period has not ended (see sections 612 and 613); or
(j) the person fails to comply with a requirement that the person:
(i) undertake a training course; or
(ii) do suitable work; or
(iii) attend an office of the CES;
as required by section 614; or
(k) a period of non-payment has been imposed because:
(i) the person’s unemployment is due to a voluntary act of the person (see section 615); or
(ii) the person’s unemployment is due to misconduct by the person (see section 616); or
(iii) the person has refused an offer of employment (see section 617); or
(iv) the person had previously ceased to be qualified for unemployment benefit because the person was not taking reasonable steps to find work (see section 618); or
(v) the person failed to comply with notification requirements (see section 619); or
(vi) the person had previously ceased to be qualified for unemployment benefit because the person was not registered with the CES (see section 620); or
(vii) the person is a seasonal worker (see section 621); or
Job Search Allowance s. 599
(viii) the person moved to an area of lower employment (see section 622); or
(m) the person is in gaol (see Part 3.13); or
(n) the person is subject to a compensation preclusion period (see Part 3.14).
Note 1: for “serving a waiting period” see subsection 23 (10).
Note 2: “CES” means Commonwealth Employment Service (see section 23).
(2) A job search allowance is not payable to a person if the person’s job search allowance rate would be nil.
Provision of tax file number
600. (1) Job search allowance benefit is not payable unless:
(a) a person has given the Secretary a written statement of the person’s tax file number; or
(b) a person has given the Secretary an employment declaration and satisfies either subsection (2) or (3).
Note: the Secretary can require a person to quote their tax file number under section 1308.
(2) A person satisfies this subsection if:
(a) the employment declaration states that the person:
(i) has a tax file number but does not know what it is; and
(ii) has asked the Commissioner of Taxation to inform him or her of the number; and
(b) the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) whether the person has a tax file number; and
(ii) if the person has a tax file number—the tax file number; and
(c) the Commissioner of Taxation has not told the Secretary that the person has no tax file number.
(3) A person satisfies this subsection if:
(a) the employment declaration states that an application by the person for a tax file number is pending; and
(b) the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the person—the tax file number; or
(ii) if the application is refused—that the application has been refused; or
(iii) if the application is withdrawn—that the application has been withdrawn; and
(c) the Commissioner of Taxation has not told the Secretary that an application by the person for a tax file number has been refused; and
s. 600 Job Search Allowance
(d) the application for a tax file number has not been withdrawn.
Assets test—allowance not payable if assets value limit exceeded
601. (1) A job search allowance is not payable to a person if:
(a) the person is not excluded from the job search allowance assets test; and
(b) the value of the person’s assets exceeds the person’s assets value limit.
(2) A person is excluded from the job search allowance assets test if the person:
(a) has not turned 18; and
(b) is not a member of a couple; and
(c) does not have a dependent child; and
(d) is not an independent young person; and
(e) is not a homeless person.
(3) A person’s assets value limit is worked out using the following table: work out which family situation applies to the person; the assets value limit is the corresponding amount in the “assets value limit” column.
ASSETS VALUE LIMIT TABLE |
column 1 | column 2 | column 3 |
| | assets value limit |
item | person’s family situation | column 3a either person or partner homeowner | column 3b neither person nor partner homeowner |
1. | Not member of couple | $103,500 | $177,500 |
2. | Partnered (partner getting neither pension nor benefit) | $147,500 | $221,500 |
3. | Partnered (partner getting pension or benefit) | $73,750 | $110,750 |
Note 1: for “member of a couple”, “partnered (partner getting neither pension nor benefit)” and “partnered (partner getting pension or benefit)” see section 4.
Note 2: for “homeowner” see section 11.
Note 3: if item 2 applies to a person, the value of all the assets of the person’s partner are to be taken as being included in the value of the person’s assets (see subsection 602 (1))—this is why the assets value limit is so high. If, on the other hand, item 3 applies to a person, the value of the person’s assets is only half the combined value of the person’s assets and the assets of the person’s partner—see subsection 602 (2).
Note 4: if an unemployment benefit is not payable to a person because of the value of the person’s assets, the person may be able to take advantage of provisions dealing with financial hardship (see sections 1131 and 1132).
Note 5: the assets value limits of items 1 and 3 in column 3a and item 3 in column 3b are indexed annually in line with CPI increases (see sections 1191 to 1194).
Job Search Allowance s. 601
Note 6: the assets value limit of item 1 in column 3B is adjusted annually (see subsection 1204 (1)).
Note 7: the item 2 assets value limits are adjusted annually so that they are twice the corresponding item 3 limits (see subsections 1204 (2) and (3)).
Value of assets of members of couples
602. (1) If:
(a) the person is a member of a couple; and
(b) the person’s partner:
(i) is not in receipt of a social security or service pension; and
(ii) is not in receipt of a social security benefit;
the value of the person’s assets, or of assets of a particular kind of the person, includes the value of the partner’s assets or of assets of that kind of the partner.
Note: “social security pension” includes a sheltered employment or rehabilitation allowance.
(2) If:
(a) the person is a member of a couple; and
(b) the person’s partner is in receipt of:
(i) a social security or service pension; or
(ii) a social security benefit;
the value of:
(c) the person’s assets is taken to be 50% of the sum of the value of the assets of the person and the value of the assets of the person’s partner; and
(d) the person’s assets of a particular kind is taken to be 50% of the sum of the value of the assets of that kind of the person and the value of assets of that kind of the person’s partner.
Full-time students
603. (1) Subject to subsection (2), a job search allowance is not payable to a person engaged in a course of education on a full-time basis for the period:
(a) starting when the person starts the course; and
(b) finishing when the person finishes or abandons the course; and
(c) including periods of vacation.
(2) Subsection (1) does not prevent a job search allowance from being payable for any period during which:
(a) a person is engaged in a course that the Secretary has required the person to undertake under section 614; or
(b) the person is not required to satisfy the work test because of section 597 (long-term beneficiaries engaged in short-term vocational courses); or
(c) the person has deferred a course of education.
s. 604 Job Search Allowance
Multiple entitlement exclusion
604. (1) A job search allowance is not payable to a person for a period if:
(a) the person is receiving:
(i) another social security benefit; or
(ii) a social security pension; or
(iii) a service pension; or
(b) a payment has been or may be made in respect of the person for the same period under:
(i) a prescribed educational scheme other than the ABSTUDY Tertiary Scheme to the extent that it applies to part-time students; or
(ii) the scheme to provide an allowance known as the Adult Migrant Education Program Living Allowance; or
(iii) the scheme to provide an allowance known as the Maintenance Allowance for Refugees; or
(iv) the scheme to provide an allowance known as the English as a Second Language Allowance to the extent that the scheme applies to full-time students.
Note 1: “social security pension” includes sheltered employment and rehabilitation allowance.
Note 2: for “prescribed educational scheme” see section 5.
(2) If:
(a) a person is to start a course of education on a full-time basis; and
(b) a payment under a scheme referred to in paragraph (1) (b) may be made in respect of the person;
the Secretary may decide that a job search allowance is payable to the person for a period before the person starts the course.
Provisional commencement day
General rule
605. (1) Subject to subsections (2), (3), (4) and (5), a person’s provisional commencement day is the day on which the person claims a job search allowance.
Initial incorrect claim followed by claim for job search allowance
(2) If:
(a) the person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the
Job Search Allowance s. 605
Commonwealth, that is similar in character to an unemployment benefit; and
(b) on the day on which the person makes the initial claim, the person is qualified for job search allowance; and
(c) the person subsequently makes a claim for job search allowance; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is, subject to subsections (3), (4) and (5), the day on which the person made the initial claim.
Claim within 14 days of CES registration
(3) If:
(a) a person is not a transferee to job search allowance; and
(b) the person is not subject to an education leavers waiting period (see subsection 612 (1)); and
(c) the person becomes registered as unemployed by the CES; and
(d) the day that would be the person’s provisional commencement day under subsections (1) and (2) occurs:
(i) within 14 days after becoming registered by the CES; or
(ii) within such further period after becoming registered by the CES as the Secretary considers reasonable;
the person’s provisional commencement day is the day on which the person became registered by the CES.
Note: for “transferee” see subsections 23 (6) and (7).
Education leavers who claim within 14 days of CES registration
(4) If:
(a) a person becomes registered as unemployed by the CES; and
(b) the person is subject to an education leavers waiting period (see subsection 612 (1));
the person’s provisional commencement day is:
(c) if the person becomes registered by the CES before stopping the course and the day that would be the person’s provisional commencement day under subsections (1) and (2) occurs:
(i) within 14 days after stopping the course; or
(ii) within such further period after stopping the course as the Secretary considers reasonable;
the day after the last day on which the person was undertaking the course; or
(d) if the person becomes registered by the CES after stopping the course and the day that would be the person’s provisional commencement day under subsections (1) and (2) occurs:
(i) within 14 days after becoming registered by the CES; or
s. 605 Job Search Allowance
(ii) within such further period after becoming registered by the CES as the Secretary considers reasonable;
the day on which the person became registered by the CES.
Transferees
(5) If a person is a transferee to job search allowance and:
(a) the person claims the job search allowance within 14 days after the transfer day; or
(b) both of the following subparagraphs are satisfied:
(i) the person becomes registered as unemployed by the CES within 14 days after the transfer day; and
(ii) the day that would be the person’s provisional commencement day under subsection (1) and (2) occurs:
(a) within 14 days after becoming registered by the CES; or
(b) within such further period after becoming registered by the CES as the Secretary considers reasonable;
the person’s provisional commencement day is the person’s transfer day.
Note: for “transferee” to a benefit and “transfer day” see subsections 23 (6) and (7).
Commencement of job search allowance
606. A job search allowance is not payable to a person who is qualified for the allowance before:
(a) where the person is not subject to a waiting period—the person’s provisional commencement day; or
(b) if the person is subject to one waiting period only—the first day after the end of that waiting period; or
(c) if the person is subject to more than one waiting period—the first day after all of the waiting periods have ended.
Note 1: for “provisional commencement day” see section 605.
Note 2: a waiting period is:
(a) an unused annual leave waiting period—see sections 607 to 609; or
(b) an ordinary waiting period—see sections 610 and 611; or
(c) an education leavers waiting period—see sections 612 and 613.
If the person has an unused annual leave waiting period and an ordinary waiting period, the ordinary waiting period will follow the unused annual leave waiting period (see subsection 611 (2)). If the person has an education leavers waiting period and another waiting period, the education leavers waiting period runs concurrently with the other waiting period and the job search allowance will not be payable until the longest waiting period has finished.
Job Search Allowance s. 607
Subdivision D—Situations where allowance not payable (waiting periods)
Unused annual leave waiting period
607. A person is subject to an unused annual leave waiting period if:
(a) when the person became unemployed, the person became entitled to receive a payment for unused annual leave; and
(b) the person’s provisional commencement day occurs within the notional leave period.
Note 1: for “unused annual leave” see section 23.
Note 2: for “notional leave period” see section 608.
Note 3: for “provisional commencement day” see section 605.
Notional leave period
608. (1) A person’s notional leave period is the period that:
(a) starts on the day after the day on which the person’s employment has ended; and
(b) runs for the number of days for which the person has unused annual leave as calculated under subsections (2) and (3).
(2) Subject to subsection (3), the number of days for which the person has unused annual leave’ is worked out as follows:
(a) if the period of unused annual leave is expressed in weeks—multiply by 7 the number of weeks (including fractions of weeks) in the period of unused annual leave and disregard any fraction that results;
(b) in any other case—multiply by 7 the number of working weeks (including any fraction of a working week represented by the period of unused annual leave and disregard any fraction that results.
(3) The number of days for which a person has unused annual leave cannot exceed 28 days.
Duration of unused annual leave waiting period
609. A person’s unused annual leave waiting period starts on the person’s provisional commencement day and finishes on the last day of the notional leave period.
Note 1: for “notional leave period” see section 608.
Note 2: an unused annual leave waiting period may apply to a person whether or not the person is subject to an ordinary waiting period. If the person is subject to an ordinary waiting period, that period will start after the unused annual leave waiting period—see subsection 611 (2).
Note 3: for “provisional commencement day” see section 605.
s. 610 Job Search Allowance
Ordinary waiting period
610. A person is subject to an ordinary waiting period unless:
(a) the person has served an ordinary waiting period that ended not more than 12 weeks before the person’s provisional commencement day; or
(b) both of the following conditions apply:
(i) the person is a transferee to job search allowance;
(ii) the person claims the job search allowance:
(a) within 14 days of the transfer day; or
(b) where the person becomes registered as unemployed by the CES within 14 days after the transfer day—within 14 days of the person becoming so registered or such further period as the Secretary considers reasonable;
(c) both of the following conditions apply:
(i) at some time in the 13 weeks immediately before the person’s provisional commencement day, a job search allowance stopped being payable to the person;
(ii) immediately before the allowance stopped being payable to the person, one or a combination of the following had been payable to the person for at least 9 months:
(a) a social security benefit;
(b) a payment as a trainee in full-time training under a program included in the programs known as Labour Force Programs.
Note 1: for “transferee” to a benefit and “transfer day” see subsections 23 (6) and (7).
Note 2: for “provisional commencement day” see section 605.
Note 3: for “ordinary waiting period” see subsection 23 (1).
Duration of ordinary waiting period
No unused annual leave waiting period
611. (1) If a person:
(a) is subject to an ordinary waiting period; and
(b) is not subject to an unused annual leave waiting period;
the ordinary waiting period is the period of 7 days that starts on the person’s provisional commencement day.
Note: for “provisional commencement day” see section 605.
Unused annual leave waiting period
(2) If a person is subject to:
(a) an ordinary waiting period; and
(b) an unused annual leave waiting period;
Job Search Allowance s. 611
the ordinary waiting period is the period of 7 days that starts on the day after the day on which the person’s unused annual leave waiting period ends.
Note 1: for “unused annual leave waiting period” see sections 607 to 609.
Note 2: for “provisional commencement day” see section 605.
Education leavers waiting period
Persons subject to waiting period
612. (1) A person is subject to an education leavers waiting period if the person:
(a) was undertaking a course of education of at least 6 months duration on a full-time basis; and
(b) has stopped the course; and
(c) was, immediately before stopping the course, receiving neither:
(i) a social security or service pension; nor
(ii) a social security benefit; and
(d) has a provisional commencement day within 6 months after stopping the course; and
(e) is not covered by subsection (2) (beneficiaries stopping courses after 4 weeks).
Note: for “provisional commencement day” see section 605.
No education leavers waiting period in some cases where already served
(2) A person who would otherwise be subject to an education leavers waiting period in relation to job search allowance is not subject to such a period if:
(a) the person had previously been subject to an education leavers waiting period; and
(b) a job search allowance had been payable to the person continuously from the end of the education leavers waiting period until immediately before the person started the course; and
(c) the person’s provisional commencement day is within 4 weeks after starting the course.
Note 1: for “provisional commencement day” see section 605.
Note 2: for “education leavers waiting period” see subsection 23 (1).
Duration of education leavers waiting period
General rule
613. (1) Subject to this section, the education leavers waiting period starts on the person’s provisional commencement day and lasts for:
(a) 13 weeks if, on the person’s provisional commencement day, the person:
(i) is not a member of a couple; and
s. 613 Job Search Allowance
(ii) does not have a dependent child; or
(b) 6 weeks if, on the person’s provisional commencement day, the person:
(i) is a member of a couple; or
(ii) has a dependent child.
Note 1: the duration of the education leavers waiting period may be modified by:
(a) subsections (2) and (3) (change of status during waiting period);
(b) subsection (5) (periods of employment or periods on special benefit);
(c) subsection (6) (previous periods of non-payment because of education leavers waiting period);
(d) subsection (7) (6 months ceiling).
Note 2: for “provisional commencement day” see section 605.
Change of status in first 6 weeks
(2) Subject to subsection (4), where:
(a) a person who is covered by paragraph (1) (a) becomes a member of a couple; or
(b) a young person becomes a dependent child of a person who is covered by paragraph (1) (a);
within 6 weeks from and including the person’s provisional commencement day, the education leavers waiting period starts on the person’s provisional commencement day and lasts for 6 weeks.
Note: for “provisional commencement day” see section 605.
Change of status after 6 weeks
(3) Subject to subsection (4), where:
(a) a person who is covered by paragraph (1) (a) becomes a member of a couple; or
(b) a young person becomes a dependent child of a person who is covered by paragraph (1) (a);
in the period:
(c) starting at the end of 6 weeks from the person’s provisional commencement day; and
(d) lasting for 6 weeks;
the education leavers waiting period starts on the person’s provisional commencement day and ends on the day before the day on which the person is first covered by paragraph (a) or (b).
Note: for “provisional commencement day” see section 605.
Notification required
(4) For the purposes of subsections (2) and (3):
(a) a person is not to be taken to have become a member of a couple; and
(b) a young person is not to be taken to have become a dependent child of a person;
Job Search Allowance s. 613
until the person notifies the Department that this is the case.
Reduction of waiting period for periods of special benefit and employment
(5) The waiting period imposed by subsection (1) or (2) is to be reduced by a period equivalent to:
(a) if the person is subject to a 13 week education leavers waiting period—any period during which the person was employed on a full-time basis after stopping the course; and
(b) if the person is subject to a 6 week education leavers waiting period—any period during which the person has been employed, at any time, on a full-time basis; and
(c) any period during which the person was paid special benefit.
Reduction of education leavers waiting period where already partially served
(6) If:
(a) a person is subject to an education leavers waiting period; and
(b) the person started the course concerned at a time when an unemployment benefit, job search allowance or sickness benefit was not payable to the person because of an education leavers waiting period; and
(c) the person’s provisional commencement day is within 4 weeks after the person started the course concerned;
the duration of the education leavers waiting period is reduced by the number of days of the previous education leavers waiting period that the person had served immediately before starting the course.
Note 1: for “provisional commencement day” see section 605.
Note 2: for “education leavers waiting period” see section 23.
6 month ceiling
(7) An education leavers waiting period that applies in respect of a course of study undertaken by a person is not to extend more than 6 months after the person has stopped the course.
Subdivision E—Situations where allowance not payable (recipient non-compliance)
Secretary may require person to attend course, undertake work or attend CES
614. (1) Where:
(a) a person is receiving, or has lodged a claim for, a job search allowance; and
(b) the Secretary is of the opinion that the person should:
(i) undertake a course of vocational training; or
(ii) undertake a course:
s. 614 Job Search Allowance
(a) which the person could reasonably undertake; and
(b) to which the person has been referred by the CES; or
(iii) do any work suitable to be done by the person; or
(iv) attend an office of the CES; and
(c) the Secretary notifies the person that the person is required to:
(i) undertake that course; or
(ii) do that work; or
(iii) attend that office of the CES; and
(d) the requirement is reasonable; and
(e) the person:
(i) does not take reasonable steps to comply with the Secretary’s requirements; and
(ii) where the Secretary notifies the person under subparagraph (c) (iii)—does not have a reasonable excuse for failing to comply with the Secretary’s requirements;
a job search allowance is not payable to the person for a period determined by the Secretary.
(2) The Secretary may determine that a job search allowance is payable for a period for which he or she had previously determined that it was not payable under subsection (1) if, within a reasonable period, the person takes reasonable steps to comply with the Secretary’s requirements.
(3) If:
(a) the Secretary has determined under subsection (1) that a job search allowance is not payable for a period; and
(b) the person:
(i) has not taken reasonable steps to comply with the Secretary’s requirements within a reasonable period; or
(ii) where the Secretary had notified the person under subparagraph (1) (c) (iii)—does not have a reasonable excuse for failing to comply with the Secretary’s requirements; and
(c) at a later time a job search allowance would but for this subsection be payable to the person;
a job search allowance is not payable to the person for the period.
(4) Subject to subsections (5) and (6), the deferment period is 2 weeks.
(5) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 2 years before that time a JSA automatic deferment provision applied to the person;
Job Search Allowance s. 614
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(6) If:
(a) subsection (1) applies to a person at a particular time; and
(b) a JSA automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 2 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(7) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Unemployment due to voluntary act
615. (1) If:
(a) a person’s unemployment is due either directly or indirectly, to a voluntary act of the person; and
(b) the voluntary act was without sufficient reason;
a job search allowance is not payable to the person for the deferment period.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 2 years before that time a JSA automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 2 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
s. 616 Job Search Allowance
Unemployment due to misconduct
616. (1) If a person’s unemployment is due to the person’s misconduct as a worker, a job search allowance is not payable to the person for the deferment period.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 2 years before that time a JSA automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 2 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Refusal of job offer
617. (1) If a person has refused or failed, without sufficient reason, to accept a suitable offer of employment, a job search allowance is not payable to the person for the deferment period.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 2 years before that time a JSA automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 2 years before that time;
Job Search Allowance s. 617
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Removal from allowance for failure to take reasonable steps to find work
618. (1) If:
(a) a job search allowance was payable to a person; and
(b) the person ceased to be qualified for unemployment benefit because the person was not taking reasonable steps to find employment; and
(c) the person later becomes qualified for a job search allowance;
a job search allowance is not payable to the person for the deferment period.
Note: where a person has been paid job search allowance while the person was not qualified because he or she was not taking reasonable steps to find work, an overpayment may arise (see Chapter 5). Subsection (1) does not prevent the Secretary from taking action to recover the overpayment.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 2 years before that time a JSA automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 2 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
s. 619 Job Search Allowance
Removal from allowance for failure to comply with notification requirements
619. (1) If a person refuses or fails, without sufficient reason, to comply with a requirement made of the person under section 644, 645 or 1304, a job search allowance is not payable to the person for the deferment period.
(2) Subject to subsections (3) and (4), the deferment period is 2 weeks.
(3) If:
(a) subsection (1) applies to a person at a particular time; and
(b) on one occasion only within the period of 2 years before that time a JSA automatic deferment provision applied to the person;
the deferment period is 6 weeks.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(4) If:
(a) subsection (1) applies to the person at a particular time; and
(b) a JSA automatic deferment provision or provisions applied to the person on 2 or more occasions within the period of 2 years before that time;
the deferment period is 6 weeks plus 6 weeks for each occasion referred to in paragraph (b) after the first.
Note: for “JSA automatic deferment provision” see subsection 23 (1).
(5) The Secretary may determine in writing the day on which the deferment period commences and that day may be before the day of the determination.
Removal from allowance for failure to continue CES registration
620. (1) If:
(a) a job search allowance was payable to a person; and
(b) the person ceased to be qualified for job search allowance because the person:
(i) was not registered at the CES (see subparagraph 589(1) (b) (iv)); and
(ii) the Secretary has not excused the person from being registered at the CES under section 592; and
(c) the person later becomes qualified for job search allowance again;
a job search allowance is not payable to the person for a period determined, in writing, by the Secretary.
Note: where a person has been paid job search allowance while the person was not qualified because he or she was not registered at the CES, an overpayment may arise (see Chapter 5). Subsection (1) does not prevent the Secretary from taking action to recover the overpayment.
Job Search Allowance s. 620
(2) The Secretary may determine in writing the day on which the period of non-payment imposed by subsection (1) commences and that day may be before the day of the determination.
Seasonal workers
621. (1) Where:
(a) a person is a seasonal or intermittent worker; and
(b) the person’s income is sufficient to maintain:
(i) the person; and
(ii) any other persons who are ordinarily maintained by the person;
notwithstanding that the person is temporarily unemployed;
a job search allowance is not payable to the person for a period determined, in writing, by the Secretary.
(2) The Secretary may determine in writing the day on which the period of non-payment imposed by subsection (1) commences and that day may be before the day of the determination.
Move to area of lower employment
622. (1) Where a person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason, a job search allowance is not payable to the person for 12 weeks.
(2) For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person moves to live:
(a) with a family member who has already established his or her residence in that place of residence; or
(b) near a family member who has already established residence in the same area; or
(c) the person satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member.
(3) The Secretary may determine in writing the day on which the period of non-payment imposed by subsection (1) commences and that day may be before the day of the determination.
Division 2—Claim for job search allowance
Need for a claim
623. (1) A person who wants to be granted a job search allowance must make a proper claim for that allowance.
Note 1: “proper claim”—see section 624 (form), section 625 (manner of lodgment) and section 626 (residence/presence in Australia).
s. 623 Job Search Allowance
Note 2: because the payability of job search allowance may be affected by, for example, the provisions dealing with the circumstances in which a person’s former employment ended (see sections 615 and 616), the person may be asked to support his or her claim for job search allowance with an end of employment statement by the former employer (see section 1311).
(2) For the purposes of subsection (1), where:
(a) a claim for job search allowance is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for job search allowance;
the claim is to be taken to have not been made.
Form of claim
624. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
625. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) A place or person approved under subsection (1) must be a place or person in Australia.
Claimant must be Australian resident and in Australia
626. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note: for “Australian resident” see subsection 7 (2).
Division 3—Determination of claim
Secretary to determine claim
627. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
628. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for a job search allowance; and
(b) the allowance is payable.
Job Search Allowance s. 629
Date of effect of determination
629. (1) Subject to subsections (2), (3) and (4), a determination under section 628 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for job search allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for job search allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for job search allowance; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
s. 629 Job Search Allowance
the determination takes effect on the day on which the previous decision took effect.
Division 4—Rate of job search allowance
How to work out a person’s job search allowance rate
630. A person’s job search allowance rate is worked out using the Benefit Rate Calculator A at the end of section 1067.
Note 1: for double payments on release from gaol see section 1161.
Note 2: for double payments in case of major disaster see section 631.
Double payment—claim as a result of major disaster
631. If:
(a) a person makes a claim for job search allowance; and
(b) job search allowance is payable to the person on the person’s provisional commencement day; and
(c) the claim is made because of a major disaster;
the amount of job search allowance payable to the person for the period of 7 days starting on the person’s provisional commencement day is 2 times the amount that would, apart from this section, be payable to the person for that period.
Note: for “provisional commencement day” see section 605.
JSA recipient may ask Secretary to change appropriate tax year
632. (1) If:
(a) the maximum basic rate of a person’s job search allowance has been reduced because of the parental income test provided in Module G of Benefit Rate Calculator A (see section 1067); and
(b) the person asks the Secretary to make a determination under this section; and
(c) the taxable income of the person’s income test parent or parents for the tax year in which the request is made is less than 75% of the taxable income of the income test parent or parents for the tax year that is the appropriate tax year immediately before the request is made;
the Secretary must determine that the appropriate tax year, for the purposes of applying that Module to the person for the period:
(d) starting on the day on which the request is made; and
(e) finishing on the first anniversary of that day;
is the tax year in which the request is made.
(2) A request under paragraph (1) (b) must be made in writing, in accordance with a form approved by the Secretary.
(3) Terms used in subsection (1) have the same meaning as they have in Module G of Benefit Rate Calculator A.
Job Search Allowance s. 633
Division 5—Payment of job search allowance
Commencement of job search allowance
633. Job search allowance becomes payable to a person on the first day on which:
(a) the person is qualified for the allowance; and
(b) no provision of this Act makes the allowance not payable to the person.
Note 1: for qualification see section 58a.
Note 2: for the circumstances in which a job search allowance is not payable see section 599.
Instalments
634. (1) Job search allowance is to be paid by instalments for periods determined by the Secretary.
(2) Instalments of job search allowance are to be paid at the times determined by the Secretary.
Instalments for period less than a fortnight
635. (1) If:
(a) an instalment of job search allowance is for a period; and
(b) the period is less than a fortnight;
the instalment for the period is:
job search allowance rate × | week days in period |
| 10 |
(2) If:
(a) an instalment of job search allowance is for a period; and
(b) the period consists of:
(i) a number of whole fortnights; and
(ii) a period that is less than a fortnight;
the instalment, insofar as it relates to the period that is less than a fortnight, is:
job search allowance rate × | week days in period |
| 10 |
Rounding off instalment
636. (1) If the amount of an instalment is:
(a) a number of whole dollars and a part of a cent; or
(b) a number of whole dollars and cents and a part of a cent;
the amount is, subject to subsection (2), to be increased or decreased to the nearest whole cent.
(2) If the amount of an instalment is:
(a) a number of whole dollars and 0.5 cent; or
(b) a number of whole dollars and cents and 0.5 cent;
s. 636 Job Search Allowance
the amount is to be increased by 0.5 cent.
(3) If, apart from this section, the amount of an instalment would be less than $1.00, the amount is to be increased to $1.00.
Manner of payment
637. A person’s job search allowance is, subject to section 638, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
638. (1) The Secretary may direct that the whole, or a part, of the amount of a person’s job search allowance is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the job search allowance is to be paid in accordance with the direction.
Payment into bank account etc.
639. (1) The Secretary may direct that the whole or a part of the amount of a person’s job search allowance is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the job search allowance is payable.
(3) The account may be an account that is maintained by a person to whom the job search allowance is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the job search allowance is to be payable in accordance with the direction.
Where allowance payday would fall on public holiday etc.
640. If the Secretary is satisfied that an amount of job search allowance that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of allowance after death
641. (1) If:
(a) a job search allowance is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of job search allowance payable to him or her; and
(d) another person applies to receive that amount; and
Job Search Allowance s. 641
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) Where the Secretary pays an amount of job search allowance under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of job search allowance.
Division 6—Protection of job search allowance
Job search allowance to be absolutely inalienable
642. (1) Subject to subsection (2) and section 1359, job search allowance is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of job search allowance payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
643. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of job search allowance payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
s. 643 Job Search Allowance
(2) The saved amount is worked out as follows:
| Method statement |
Step 1. | Work out the total amount of job search allowance payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
644. (1) The Secretary may give a person to whom a job search allowance is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the allowance.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 7 days after:
(a) the day on which the event or change of circumstances occurs; or
Job Search Allowance s. 644
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of job search allowance
645. (1) The Secretary may give a person to whom a job search allowance is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the allowance to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 7 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
s. 645 Job Search Allowance
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
646. (1) A person is not excused from giving information pursuant to a notice under section 644 or 645 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 644 or 645 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 644 (5) or (6) or 645 (5) or (6).
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
647. (1) A determination that:
(a) a person’s claim for a job search allowance is to be granted; or
(b) a job search allowance is payable to a person;
continues in effect until:
(c) the allowance ceases to be payable under section 648, 649 or 650; or
(d) a further determination in relation to the allowance under section 654 has taken effect.
Note 1: for paragraph (a) see section 628.
Note 2: for paragraph (b) see section 655—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a job search allowance continues in effect until:
(a) the allowance becomes payable at a lower rate under section 651; or
(b) a further determination in relation to the allowance under section 652 or 653 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 644 notification obligations
648. If:
(a) a person who is receiving a job search allowance is given a notice under section 644; and
Job Search Allowance s. 648
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance would, but for this section, cease to be payable to the person;
the allowance continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s allowance there is no automatic rate reduction and a determination under section 653 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 644 notification obligations
649. If:
(a) a person who is receiving a job search allowance is given a notice under section 644; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance ceases to be payable to the person;
the allowance ceases to be payable to the person immediately after the day on which the event or change in circumstance occurs.
Automatic termination—failure to provide section 645 statement
650. (1) If:
(a) a person who is receiving a job search allowance is given a notice under section 645 requiring the person to give the Department a statement; and
s. 650 Job Search Allowance
(b) the notice relates to the payment of that allowance in respect of a period specified in the notice; and
(c) the person does not comply with the notice;
the allowance, subject to subsection (2), ceases to be payable to the person as from the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 644 notification obligations
651. If:
(a) a person who is receiving a job search allowance is given a notice under section 644; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of allowance is to be reduced;
the allowance becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Subdivision D—Determinations
Rate increase determination
652. If the Secretary is satisfied that the rate at which a job search allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 656.
Job Search Allowance s. 653
Rate reduction determination
653. If the Secretary is satisfied that the rate at which a job search allowance is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 651 (see subsection 647(2)).
Note 2: for the date of effect of a determination under this section see section 657.
Cancellation or suspension determination
654. If the Secretary is satisfied that a job search allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 648, 649 or 650 (see subsection 647 (1)).
Note 2: for the date of effect of a determination under this section see section 657.
Resumption of payment after cancellation or suspension
655. (1) If the Secretary:
(a) cancels or suspends a person’s job search allowance under section 654; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive job search allowance that was payable to the person; or
(b) the person is not receiving job search allowance that is payable to the person;
the Secretary is to determine that job search allowance was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 656.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
656. (1) The day on which a determination under section 652 or 655 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
s. 656 Job Search Allowance
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a job search allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a job search allowance; and
(b) a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a job search allowance; and
(b) no notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Job Search Allowance s. 656
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to received that payment; and
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because
s. 656 Job Search Allowance
of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
657. (1) The day on which a determination under section 653 or 654 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose allowance is affected by the adverse determination has contravened a provision of this Act (other than section 645, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the allowance has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Job Search Allowance s. 657
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the allowance was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments (death of dependent child)
Bereavement payments on death of dependent child
658. If:
(a) a person is receiving a job search allowance; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s job search allowance rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Division to cover the bereavement period.
Note 1: section 659 provides for job search allowance to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 660 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new job search allowance rate and the rate at which the allowance would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Division are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
659. If a person is qualified for payments under this Division in relation to the death of a dependent child, the person’s job search allowance rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
s. 660 Job Search Allowance
Lump sum payable in some circumstances
660. If:
(a) a person is qualified for payments under this Division in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance for the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Division was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Step 1. | Work out the amount of job search allowance payable to the person on the payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. Note: section 659 applies in working out this amount because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the amount of job search allowance that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s job search allowance rate were not calculated under section 659: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Employment Entry Payment s. 661
PART 2.13—EMPLOYMENT ENTRY PAYMENT
Unemployment benefit recipients
661. (1) A person is qualified for an employment entry payment under this section if:
(a) the person has turned 18; and
(b) the person commences employment; and
(c) immediately before the person commences the employment:
(i) the person was receiving an unemployment benefit; and
(ii) the person had been a qualified beneficiary for a continuous period of at least 12 months; and
(d) because the person commences the employment, the person ceases to be qualified for unemployment benefit; and
(e) the employment is, in the Secretary’s opinion, likely to continue for more than 4 weeks; and
(f) the person has not, within the last 12 months, received a payment under this Part.
(2) A person is qualified for an employment entry payment under this section if:
(a) the person is a member of a couple; and
(b) the person has turned 18; and
(c) the person commences employment; and
(d) immediately before the person commenced the employment:
(i) the person’s partner was receiving unemployment benefit or job search allowance and either:
(a) the partner’s unemployment benefit rate was worked out taking into account an amount under Module C of Benefit Rate Calculator B for the person; or
(b) the partner’s job search allowance rate was worked out taking into account an amount under Module C of Benefit Rate Calculator A for the person; or
(c) the person was receiving special benefit or sickness benefit; and
(ii) the person’s partner had been a qualified beneficiary for a continuous period of at least 12 months; and
(e) the income earned by the person from the employment results in unemployment benefit or job search allowance ceasing to be payable to the person’s partner; and
(f) the employment is, in the Secretary’s opinion, likely to continue for more than 4 weeks; and
(g) the person has not, within the last 12 months, received a payment under this Part.
s. 661 Employment Entry Payment
(3) If the Secretary is satisfied that:
(a) a person has entered an agreement under which the person is to be employed; and
(b) on the start of that employment, the person would, but for receiving a payment under this subsection, be qualified for a payment under subsection (1) or (2);
the following provisions have effect:
(c) subject to paragraph (d), the person is qualified for an employment entry payment, which is payable to the person at such time as the Secretary determines;
(d) the person is not qualified for the employment entry payment unless the Secretary is still satisfied as mentioned in paragraphs (a) and (b) at the time at which the payment is payable to the person.
(4) The time determined under paragraph (3) (c) is not to be more than 14 days before the person is to commence the employment.
(5) In this section:
“qualified beneficiary” means a person who is receiving:
(a) unemployment benefit; or
(b) sickness benefit; or
(c) job search allowance; or
(d) payments as a trainee in full-time training under a program included in the programs known as Labour Force Programs.
Amount of section 661 payment
662. The amount of an employment entry payment under section 661 is $100.
Job search allowance recipients
663. (1) A person is qualified for an employment entry payment under this section if:
(a) the person has not turned 18; and
(b) the person commences employment; and
(c) immediately before the person commences the employment:
(i) the person was receiving job search allowance; and
(ii) the person had been a qualified beneficiary for a continuous period of at least 9 months; and
(d) because the person commences the employment, the person stops being qualified for job search allowance; and
(e) the employment is, in the Secretary’s opinion, likely to continue for more than 4 weeks; and
(f) the person has not, within the last 12 months, received a payment under this section.
Employment Entry Payment s. 663
(2) A person is qualified for an employment entry payment under this section if:
(a) the person is a member of a couple; and
(b) the person commences employment; and
(c) immediately before the person commenced the employment:
(i) the person’s partner was receiving unemployment benefit or job search allowance and either:
(a) the partner’s unemployment benefit rate was worked out taking into account an amount under Module C of Benefit Rate Calculator B for the person; or
(b) the partner’s job search allowance rate was worked out taking into account an amount under Module C of Benefit Rate Calculator A; or
(c) the person was receiving special benefit or sickness benefit; and
(ii) the person’s partner had been a qualified beneficiary for a continuous period of at least 9 months; and
(d) the income earned by the person from the employment results in unemployment benefit or job search allowance ceasing to be payable to the person’s partner; and
(e) the employment is, in the Secretary’s opinion, likely to continue for more than 4 weeks; and
(f) the person has not, within the last 12 months, received a payment under this Part.
(3) If the Secretary is satisfied that:
(a) a person has entered an agreement under which the person is to be employed; and
(b) on the start of that employment, the person would, but for receiving a payment under this subsection, be qualified for a payment under subsection (1) or (2);
the following provisions have effect:
(c) subject to paragraph (d), the person is qualified for an employment entry payment under this section, which is payable to the person at such time as the Secretary determines;
(d) the person is not qualified for the employment entry payment unless the Secretary is still satisfied as mentioned in paragraphs (a) and (b) at the time at which the payment is payable to the person.
(4) The time determined under paragraph (3) (c) is not to be more than 14 days before the person is to start the employment.
(5) In this section:
“qualified beneficiary” means a person who is receiving:
s. 663 Employment Entry Payment
(a) unemployment benefit; or
(b) sickness benefit; or
(c) job search allowance; or
(d) special benefit; or
(e) payments as a trainee in full-time training under a program included in the programs known as Labour Force Programs.
Amount of section 663 payment
664. The amount of an employment entry payment under section 663 is $50.00.
Claim
665. (1) A person is not qualified for an employment entry payment under section 661 or 663 unless the person makes a claim for payment.
(2) A person is not qualified for an employment entry payment under section 661 or 663 if the claim for payment is made more than 28 days after the start of the employment in respect of which the claim is made.
Sickness Benefit s. 666
PART 2.14—SICKNESS BENEFIT
Division 1—Qualification for and payability of sickness benefit
Subdivision A—Basic qualifications
Qualification for sickness benefit
666. (1) A person is qualified for a sickness benefit in respect of a period if:
(a) the person satisfies the Secretary that the person was, or is likely to be, incapacitated for work throughout the period because of sickness or an accident; and
(b) the incapacity for work is, or is likely to be, of a temporary nature; and
(c) either:
(i) the person satisfies the Secretary that the person has suffered, or is likely to suffer, a loss of salary, wages or other income of a similar nature because of the incapacity for work; or
(ii) the person satisfies the Secretary that, if the person were not incapacitated for work, the person would have been, or would be likely to be, qualified for unemployment benefit or job search allowance in respect of the period; or
(iii) the person was receiving, or is likely to be receiving, an invalid pension, a sheltered employment allowance or a transferred rehabilitation allowance, immediately before the beginning of the period; and
(d) before the period began or begins the person has turned, or is likely to turn, 16; and
(e) before the period ended or ends the person has not turned, or is not likely to turn pension age; and
(f) the person was, or is likely to be, an Australian resident throughout the period; and
(g) the person was, or is likely to be, in Australia throughout the period.
Note 1: see section 669 for the circumstances in which sickness benefit is not payable to a person even though the person is qualified for the benefit.
Note 2: for “loss of income” see section 668.
Note 3: for “pension age” see section 23.
(2) A person is not qualified for a sickness benefit in respect of an incapacity if the Secretary is satisfied that the incapacity is brought about with the purpose of obtaining a sickness benefit.
s. 666 Sickness Benefit
(3) A person is not qualified for a sickness benefit if immediately before the person became incapacitated for work, the person was receiving a job search allowance.
Note: subsection 589 (2) provides that a person who becomes qualified for a sickness benefit while the person is receiving a job search allowance continues to be qualified for the job search allowance notwithstanding that the person is incapacitated for work.
Temporary absence from Australia
667. (1) For the purposes of subsection 666 (1), a person who is temporarily absent from Australia for a period is to be taken to be in Australia during:
(a) if the period does not exceed 3 months—the whole of that period; or
(b) if the period exceeds 3 months—the first 3 months of that period.
(2) For the purposes of subsection (1), in determining if an absence is temporary, regard must be had to the following factors:
(a) the purpose of any such absence;
(b) the intended duration of any such absence;
(c) the frequency of any such absences.
Loss of income
668. (1) For the purposes of section 666, a person’s income of a similar nature to salary or wages includes:
(a) a payment received by the person under the New Enterprise Incentive Scheme (see Part 3.15); and
(b) any amount payable to the person or to the person’s partner under Part 2.18 (family allowance supplement).
(2) If:
(a) a person makes a payment to someone else who acts as the person’s substitute during a period of incapacity; and
(b) the Secretary is satisfied that the payment is made justifiably and genuinely;
the Secretary may, for the purposes of section 666, regard the person as having suffered a loss of income of a similar nature to salary or wages (equal to the amount of the payment).
Subdivision B—Situations where benefit not payable (general)
Sickness benefit not payable in certain circumstances
669. (1) A sickness benefit is not payable to a person for a period during which the person is qualified for sickness benefit (see section 666) if during that period:
(a) the person has not provided a tax file number (see section 670); or
Sickness Benefit s. 669
(b) the value of the person’s assets exceeds the person’s assets value limit (see sections 671 and 672); or
(c) the person was receiving job search allowance when the person became qualified for sickness benefit (see section 673); or
(d) the person is a full-time student (see section 674); or
(e) another income support payment is being paid to the person (see section 675); or
(f) the sickness benefit has not commenced to be payable (see sections 677 and 702); or
(g) the person is subject to an unused annual leave waiting period and has not served that waiting period (see sections 679 to 681); or
(h) (h) the person is subject to an ordinary waiting period and has not served that waiting period (see sections 682 and 683); or
(j) the person is subject to an education leavers waiting period and that period had not ended (see sections 684 and 685); or
(k) the person fails to comply with a requirement that the person:
(i) attend a medical examination; or
(ii) receive treatment; or
(iii) undertake a training course; or
(iv) do suitable work;
as required by section 686; or
(m) the person is in gaol (see Part 3.13); or
(n) the person is subject to a compensation preclusion period (see Part 3.14).
(2) A sickness benefit is not payable to a person if the person’s sickness benefit rate would be nil.
Provision of tax file number
670. (1) Sickness benefit is not payable unless:
(a) a person has given the Secretary a written statement of the person’s tax file number; or
(b) a person has given the Secretary an employment declaration and satisfies either subsection (2) or (3).
Note: the Secretary can require a person to quote their tax file number under section 1308.
(2) A person satisfies this subsection if:
(a) the employment declaration states that the person:
(i) has a tax file number but does not know what it is; and
(ii) has asked the Commissioner of Taxation to inform him or her of the number; and
(b) the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
s. 670 Sickness Benefit
(i) whether the person has a tax file number; and
(ii) if the person has a tax file number—the tax file number; and
(c) the Commissioner of Taxation has not told the Secretary that the person has no tax file number.
(3) A person satisfies this subsection if:
(a) the employment declaration states that an application by the person for a tax file number is pending; and
(b) the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the person—the tax file number; or
(ii) if the application is refused—that the application has been refused; or
(c) the Commissioner of Taxation has not told the Secretary that an application by the person for a tax file number has been refused; and
(d) the application for a tax file number has not been withdrawn.
Assets test—benefit not payable if assets value limit exceeded
671. (1) A sickness benefit is not payable to a person if:
(a) the person is not excluded from the sickness benefit assets test; and
(b) the value of the person’s assets exceeds the person’s assets value limit.
(2) A person is excluded from the sickness benefit assets test if the person:
(a) has not turned 18; and
(b) is not a member of a couple; and
(c) does not have a dependent child; and
(d) is not an independent young person; and
(e) is not a homeless person.
(3) A person’s assets value limit is worked out using the following table: work out which family situation applies to the person; the assets value limit is the corresponding amount in column 3.
Sickness Benefit s. 671
ASSETS VALUE LIMIT TABLE |
column 1 | column 2 | column 3 |
| | assets value limit |
item | person’s family situation | column 3a either person or partner homeowner | column 3b neither person nor partner homeowner |
1. | Not member of couple | $103,500 | $177,500 |
2. | Partnered (partner getting neither pension nor benefit) | $147,500 | $221,500 |
3. | Partnered (partner getting pension or benefit) | $73,750 | $110,750 |
Note 1: for “member of a couple”, “partnered (partner getting neither pension nor benefit)” and “partnered (partner getting pension or benefit)” see section 4.
Note 2: for “homeowner” see section 11.
Note 3: if item 2 applies to a person, the value of all the assets of the person’s partner is to be taken as being included in the value of the person’s assets (see subsection 672 (1)—this is why the assets value limit is so high. If, on the other hand, item 3 applies to a person, the value of the person’s assets is only half the combined value of the person’s assets and the assets of the person’s partner (see subsection 672 (2)).
Note 4: if an unemployment benefit is not payable to a person because of the value of the person’s assets, the person may be able to take advantage of provisions dealing with financial hardship (sections 1131 and 1132).
Note 5: the assets value limits of items 1 and 3 in column 3a and item 3 in column 3b are indexed annually in line with CPI increases (see sections 1191 to 1194).
Note 6: the assets value limit of item 1 in column 3b is adjusted annually (see subsection 1204(1)).
Note 7: the item 2 assets value limits are adjusted annually so that they are twice the corresponding item 3 limits (see subsections 1204 (2) and (3)).
Value of assets of members of couples
672. (1) If:
(a) the person is a member of a couple; and
(b) the person’s partner:
(i) is not in receipt of a social security or service pension; and
(ii) is not in receipt of a social security benefit;
the value of the person’s assets, or of assets of a particular kind of the person, includes the value of the partner’s assets or of assets of that kind of the partner.
Note: “social security pension” includes a sheltered employment or rehabilitation allowance.
(2) If:
(a) the person is a member of a couple; and
s. 672 Sickness Benefit
(b) the person’s partner is in receipt of:
(i) a social security or service pension; or
(ii) a social security benefit;
the value of:
(c) the person’s assets is taken to be 50% of the sum of the value of the person’s assets and the value of the partner’s assets; and
(d) the person’s assets of a particular kind is taken to be 50% of the sum of the value of the assets of that kind of the person and the value of assets of that kind of the person’s partner.
Person previously receiving job search allowance
673. A sickness benefit is not payable to a person if:
(a) the person has not turned 18; and
(b) the person was receiving a job search allowance immediately before the person became qualified for a sickness benefit.
Note: where a person who is receiving a job search allowance becomes qualified for sickness benefit, the person remains qualified for a job search allowance—see subsection 589 (2).
Full-time students
674. (1) Subject to subsection (2), a sickness benefit is not payable to a person engaged in a course of education on a full-time basis for the period:
(a) starting when the person starts the course; and
(b) finishing when the person finishes or abandons the course; and
(c) including periods of vacation.
(2) Subsection (1) does not prevent a sickness benefit from being payable for any period during which:
(a) a person is engaged in a course that the Secretary has required the person to undertake under section 686; or
(b) the person has deferred a course of education.
Multiple entitlement exclusion
675. (1) A sickness benefit is not payable to a person if:
(a) the person is receiving:
(i) another social security benefit; or
(ii) a social security pension; or
(iii) a service pension; or
(b) the person is a widow who is receiving:
(i) a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act; or
(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (2) of that Act;
Sickness Benefit s. 675
unless:
(iii) the widow has been in receipt of a payment referred to in subparagraph (i) or (ii) continuously since before 1 November 1986; and
(iv) before 1 November 1986 the widow was also receiving a social security benefit; or
(c) a payment has been or may be made in respect of the person for the same period under:
(i) a prescribed educational scheme other than the ABSTUDY Tertiary scheme to the extent that it applies to part-time students; or
(ii) the scheme to provide an allowance known as the Adult Migrant Education Program Living Allowance; or
(iii) the scheme to provide an allowance known as the Maintenance Allowance for Refugees; or
(iv) the scheme to provide an allowance known as the English as a Second Language Allowance to the extent that the scheme applies to full-time students.
Note 1: “social security pension” includes sheltered employment and rehabilitation allowance.
Note 2: a widow receiving a payment under the VEA who is not covered by paragraph (b) may be paid at a lower rate—see subsection 1068 (3).
Note 3: for “prescribed educational scheme” see section 5.
(2) If:
(a) a person may start a course of education on a full-time basis; and
(b) a payment under a scheme referred to in paragraph (1) (c) may be made in respect of the person;
the Secretary may decide that, notwithstanding subsection (1), a sickness benefit is payable to the person for a period before the person starts the course.
Provisional commencement day
676. (1) A person’s provisional commencement day is, subject to subsection (2), the day on which the person becomes incapacitated for work.
(2) If:
(a) the person is a transferee to the sickness benefit; and
(b) the person claims the sickness benefit within 4 weeks after the person’s transfer day;
the person’s provisional commencement day is the person’s transfer day.
Note: for “transferee” to a benefit and “transfer day” see subsections 23 (6) and (7).
s. 677 Sickness Benefit
Commencement of sickness benefit
677. (1) If a person is qualified for a sickness benefit, the benefit is not payable to the person before the day worked out in accordance with subsections (2) to (7) and section 678.
Claim within 5 weeks of incapacity and no waiting period applying
(2) If the person:
(a) claims the benefit within 5 weeks after the day on which the person becomes incapacitated for work; and
(b) the person is not subject to an ordinary waiting period; and
(c) the person is not subject to an unused annual leave waiting period;
the benefit is not payable to the person before the person’s provisional commencement day.
Note 1: for “ordinary waiting period” see sections 682 and 683 and for “unused annual leave waiting period” see sections 679 to 681.
Note 2: for “provisional commencement day” see section 676.
Claim within 5 weeks of incapacity and ordinary waiting period applying
(3) If the person:
(a) claims the benefit within 5 weeks after the day on which the person becomes incapacitated for work; and
(b) the person is subject to an ordinary waiting period;
the benefit is not payable to the person before the first day after the end of the ordinary waiting period.
Note 1: for “ordinary waiting period” see sections 682 and 683.
Note 2: a person who is a transferee to the sickness benefit and claims within 4 weeks of the person’s transfer day will not be subject to an ordinary waiting period.
Note 3: the ordinary waiting period will follow an unused annual leave waiting period if there is one (see subsection 683 (2)).
Claim within 5 weeks of incapacity and unused annual leave waiting period applying
(4) If the person:
(a) claims the benefit within 5 weeks after the day on which the person becomes incapacitated; and
(b) the person is subject to an unused annual leave waiting period but not subject to an ordinary waiting period;
the benefit is not payable to the person before the first day after the end of the unused annual leave waiting period.
Note 1: for “unused annual leave waiting period” see sections 679 to 681 and for “ordinary waiting period” see sections 682 and 683.
Note 2: if a person is subject to both an ordinary waiting period and an unused annual leave waiting period, the ordinary waiting period will follow the unused annual leave waiting period (see subsection 683 (2)) and subsection (3) of this section will apply.
Sickness Benefit s. 677
Claim more than 5 weeks after incapacity and delay due to incapacity
(5) If:
(a) the person claims the benefit more than 5 weeks after the day on which the person becomes incapacitated for work; and
(b) the Secretary is satisfied that the incapacity is the sole or dominant cause for the failure to claim the benefit within 5 weeks after that day;
the benefit is not payable to the person before the day determined by the Secretary.
(6) The day determined under subsection (5):
(a) must not be more than 4 weeks before the day on which the person lodges the claim for the benefit; and
(b) must not, if the person is subject to an ordinary waiting period, be earlier than the first day after the end of the ordinary waiting period; and
(c) must not, if the person is subject to an unused annual leave waiting period and not subject to an ordinary waiting period, be earlier than the first day after the end of the unused annual leave waiting period.
Claim more than 5 weeks after incapacity and delay not due to incapacity
(7) If:
(a) the person claims the benefit more than 5 weeks after the day on which the person becomes incapacitated for work; and
(b) the Secretary is not satisfied that the incapacity is the sole or dominant cause for the failure to claim the benefit within 5 weeks after that day;
the benefit is not payable to the person before the day on which the claim is lodged.
Initial incorrect claim followed by claim for sickness benefit
678. If:
(a) a person makes a claim (in this section called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to sickness benefit; and
(b) on the day on which the person makes the initial claim, the person is qualified for sickness benefit; and
(c) the person subsequently makes a claim for sickness benefit; and
s. 678 Sickness Benefit
(d) the Secretary is satisfied that it is reasonable for this section to apply to the person;
section 677 applies to the person as if the person had made the claim for sickness benefit on the day on which the person made the initial claim.
Subdivision C—Situations where benefit not payable (waiting periods)
Unused annual leave waiting period
679. A person is subject to an unused annual leave waiting period if:
(a) the person’s employment with an employer has ended; and
(b) when that employment ended, the person became entitled to receive a payment for unused annual leave; and
(c) the person’s provisional commencement day occurs within the notional leave period.
Note 1: for “unused annual leave” see subsection 23 (1).
Note 2: for “notional leave period” see section 680.
Note 3: for “provisional commencement day” see section 676.
Notional leave period
680. (1) A person’s notional leave period is the period that:
(a) starts on the day after the day on which the person’s employment has ended; and
(b) runs for the number of days for which the person has unused annual leave as calculated under subsections (2) and (3).
(2) Subject to subsection (3), the number of days for which the person has unused annual leave is worked out as follows:
(a) if the period of unused annual leave is expressed in weeks—multiply by 7 the number of weeks (including fractions of weeks) in the period of unused annual leave and disregard any fraction that results;
(b) in any other case—multiply by 7 the number of working weeks (including any fraction of a working week) represented by the period of unused annual leave and disregard any fraction that results.
(3) The number of days for which a person has unused annual leave cannot exceed 28 days.
Duration of unused annual leave waiting period
681. A person’s unused annual leave waiting period starts on the person’s provisional commencement day and finishes on the last day of the notional leave period.
Note 1: for “notional leave period” see section 680.
Sickness Benefit s. 681
Note 2: an unused leave waiting period may apply to a person whether or not the person is subject to an ordinary waiting period. If the person is subject to an ordinary waiting period, that period will start after the unused leave waiting period—see subsection 683 (2).
Note 3: for “provisional commencement day” see section 676.
Ordinary waiting period
682. A person is subject to an ordinary waiting period unless:
(a) immediately before becoming qualified for the sickness benefit, the person was receiving a job search allowance; or
(b) the person has served an ordinary waiting period that ended not more than 12 weeks before the person’s provisional commencement day; or
(c) the person is a transferee to the sickness benefit and claims the sickness benefit within 4 weeks after the person’s transfer day.
Note 1: for “transferee” and “transfer day” to a benefit see subsections 23 (6) and (7).
Note 2: for “provisional commencement day” see section 676.
Duration of ordinary waiting period
No unused annual leave waiting period
683. (1) If a person:
(a) is subject to an ordinary waiting period; and
(b) is not subject to an unused annual leave waiting period;
the ordinary waiting period is the period of 7 days that starts on the person’s provisional commencement day.
Unused annual leave waiting period
(2) If a person is subject to:
(a) an ordinary waiting period; and
(b) an unused annual leave waiting period;
the ordinary waiting period is the period of 7 days that starts on the day after the day on which the person’s unused annual leave waiting period ends.
Note 1: for “unused annual leave waiting period” see sections 679 to 681.
Note 2: for “provisional commencement day” see section 676.
Education leavers waiting period
Persons subject to waiting period
684. (1) A person is subject to an education leavers waiting period if the person:
(a) was undertaking a course of education of at least 6 months duration on a full-time basis; and
(b) has stopped the course; and
(c) was, immediately before stopping the course, receiving neither:
(i) a social security or service pension; nor
s. 684 Sickness Benefit
(ii) a social security benefit; and
(d) has a provisional commencement day within 6 months after stopping the course; and
(e) is not covered by subsection (2) (beneficiaries stopping courses after 4 weeks).
Note: for “provisional commencement day” see section 676.
No education leavers waiting period in some cases where already served
(2) A person who would otherwise be subject to an education leavers waiting period in relation to sickness benefit is not subject to such a period if:
(a) the person had previously been subject to an education leavers waiting period; and
(b) an unemployment benefit, job search allowance or sickness benefit had been payable to the person continuously from the end of the education leavers waiting period until immediately before the person started the course; and
(c) the person’s provisional commencement day is within 4 weeks after starting the course.
Note 1: for “provisional commencement day” see section 676.
Note 2: for “education leavers waiting period” see subsection 23 (1).
Duration of education leavers waiting period
General rule
685. (1) Subject to this section, the education leavers waiting period starts on the person’s provisional commencement day and lasts for:
(a) 13 weeks if, on the person’s provisional commencement day, the person:
(i) is not a member of a couple; and
(ii) is under 21; and
(iii) does not have a dependent child; or
(b) 6 weeks if, on the person’s provisional commencement day, the person:
(i) is a member of a couple; or
(ii) is over 21; or
(iii) has a dependent child.
Note 1: the duration of the education leavers waiting period may be modified by:
(a) subsections (2) and (3) (change of status during waiting period);
(b) subsection (5) (periods of employment or periods on special benefit);
(c) subsection (6) (previous periods of non-payment because of education leavers waiting period);
(d) subsection (7) (6 months ceiling).
Note 2: for “provisional commencement day” see section 676.
Sickness Benefit s. 685
Change of status in first 6 weeks
(2) Subject to subsection (4), where:
(a) a person who is covered by paragraph (1) (a):
(i) becomes a member of a couple; or
(ii) turns 21; or
(b) a young person becomes a dependent child of a person who is covered by paragraph (1) (a);
within 6 weeks from and including the person’s provisional commencement day, the education leavers waiting period starts on the person’s provisional commencement day and lasts for 6 weeks.
Note: for “provisional commencement day” see section 676.
Change of status after 6 weeks
(3) Subject to subsection (4), where:
(a) a person who is covered by paragraph (1) (a):
(i) becomes a member of a couple; or
(ii) turns 21; or
(b) a young person becomes a dependent child of a person who is covered by paragraph (1) (a);
in the period:
(c) starting at the end of 6 weeks from the person’s provisional commencement day; and
(d) lasting for 6 weeks;
the education leavers waiting period starts on the person’s provisional commencement day and ends on the day before the day on which the person is first covered by paragraph (a) or (b).
Note: for “provisional commencement day” see section 676.
Notification required
(4) For the purposes of subsections (2) and (3):
(a) a person is not to be taken to have become a member of a couple; and
(b) a young person is not to be taken to have become a dependent child of a person;
until the person notifies the Department that this is the case.
Reduction of waiting period for periods of special benefit and employment
(5) The waiting period imposed by subsection (1) or (2) is to be reduced by a period equivalent to:
(a) if the person is subject to a 13 week education leavers waiting period—any period during which the person was employed on a full-time basis after stopping the course; and
(b) if the person is subject to a 6 week education leavers waiting
s. 685 Sickness Benefit
period—any period during which the person has been employed, at any time, on a full-time basis; and
(c) any period during which the person was paid special benefit after stopping the course.
Reduction of education leavers waiting period where already partially served
(6) If:
(a) a person is required to serve an education leavers waiting period; and
(b) the person started the course concerned at a time when an unemployment benefit job search allowance or sickness benefit was not payable to the person because of an education leavers waiting period; and
(c) the person’s provisional commencement day is within 4 weeks after the person started the course concerned;
the duration of the education leavers waiting period is reduced by the number of days of the previous education leavers waiting period that the person had served immediately before starting the course.
Note 1 : for “provisional commencement day” see section 676.
Note 2: for “education leavers waiting period” see section 23.
6 month ceiling
(7) An education leavers waiting period that applies in respect of a course of study undertaken by a person is not to extend more than 6 months after the person has stopped the course.
Subdivision D—Situations where benefit not payable (recipient non-compliance)
Secretary may require person to have medical examination, attend course or undertake work
686. (1) If:
(a) a person is receiving, or has lodged a claim for, a sickness benefit; and
(b) the Secretary is of the opinion that the person should:
(i) undergo a medical or psychological examination; or
(ii) receive medical or other treatment; or
(iii) undertake a course of vocational training; or
(iv) undertake a course:
(a) which the person could reasonably undertake; and
(b) to which the person has been referred by the CES; or
(v) do any work suitable to be done by the person; and
(c) the Secretary notifies the person that the person is required to:
Sickness Benefit s. 686
(i) undergo that examination; or
(ii) receive that treatment; or
(iii) undertake that course; or
(iv) do that work; and
(d) the requirement is reasonable; and
(e) the person does not take reasonable steps to comply with the Secretary’s requirements;
a sickness benefit is not payable to the person for a period determined by the Secretary.
(2) The Secretary may determine that a sickness benefit is payable for a period for which he or she had previously determined that it was not payable under subsection (1) if within a reasonable period the person takes reasonable steps to comply with the Secretary’s requirements.
Division 2—Claim for sickness benefit
Need for a claim
687. (1) A person who wants to be granted a sickness benefit must make a proper claim for that benefit.
Note: “proper claim”—see section 688 (form), section 689 (manner of lodgment) and section 690 (residence/presence in Australia).
(2) For the purposes of subsection (1), where:
(a) a claim for sickness benefit is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for sickness benefit;
the claim is to be taken to have not been made.
Form of claim
688. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
689. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) A place or person approved under subsection (1) must be a place or person in Australia.
s. 690 Sickness Benefit
Claimant must be Australian resident and in Australia
690. Subject to section 691, a claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note: for “Australian resident” see subsection 7 (2).
Temporary absence from Australia
691. For the purposes of section 690, a person who is temporarily absent from Australia for a period is to be taken to be in Australia during:
(a) if the period does not exceed 3 months—the whole of that period; or
(b) if the period exceeds 3 months—the first 3 months of that period.
Medical certificate to accompany claim
692. (1) Subject to subsection (2), a claim for a sickness benefit must be supported by the certificate of a medical practitioner which:
(a) certifies such matters; and
(b) contains such information;
as the Secretary requires.
(2) The Secretary may, in special circumstances, direct that subsection (1) does not apply.
Division 3—Determination of claim
Secretary to determine claim
693. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
694. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for a sickness benefit; and
(b) the benefit is payable.
Date of effect of determination
695. (1) Subject to subsections (2), (3) and (4), a determination under section 694 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Sickness Benefit s. 695
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for sickness benefit; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for sickness benefit; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for sickness benefit; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
s. 696 Sickness Benefit
Division 4—Rate of sickness benefit
How to work out a person’s sickness benefit rate
696. Subject to sections 698, 699, 700 and 701, a person’s sickness benefit rate is worked out:
(a) if the person has not turned 18—using Benefit Rate Calculator A at the end of section 1067; or
(b) if the person has turned 18—using Benefit Rate Calculator B at the end of section 1068.
Note 1: for double payments on release from gaol see section 1161.
Note 2: for double payments in the case of a major disaster see section 697.
Double payment—claim as a result of major disaster
697. If:
(a) a person makes a claim for sickness benefit; and
(b) sickness benefit is payable to the person on the person’s provisional commencement day; and
(c) the claim is made because of a major disaster;
the amount of sickness benefit payable to the person for the period of 7 days starting on the person’s provisional commencement day is 2 times the amount that would, apart from this section, be payable to the person for that period.
Note: for “provisional commencement day” see section 676.
Limitation on rate—loss of salary, wages or income
General rule
698. (1) If a person is qualified for sickness benefit through subparagraph 666 (1) (c) (i) (loss of salary, wages or other income of a similar nature), the rate per fortnight of the person’s benefit is not to exceed the rate that, in the Secretary’s opinion, is the rate per fortnight of the salary, wages or other income that the person has lost because of the person’s incapacity for work.
Loss of salary, wages or income includes NEIS and FAS payments
(2) For the purposes of subsection (1), the income that a person has lost because of the person’s incapacity for work includes:
(a) a payment received by the person under the New Enterprise Incentive Scheme; and
(b) any family allowance supplement payable to the person or to the person’s partner.
Payment to a substitute
(3) If:
(a) a person makes a payment to someone else who acts as the person’s substitute during a period of incapacity; and
Sickness Benefit s. 698
(b) the Secretary is satisfied that the payment is made justifiably and genuinely;
the Secretary may, for the purposes of subsection (1), regard the payment as income that the person has lost because of the person’s incapacity for work.
Limitation on rate—loss of unemployment benefit qualification
699. If a person is qualified for sickness benefit through subparagraph 666 (1) (c) (ii) (loss of qualification for unemployment benefit), the rate per fortnight of the person’s benefit is not to exceed the rate per fortnight of the unemployment benefit that would be payable to the person if the person were receiving unemployment benefit.
Limitation on rate—transferee
Partner getting wife or carer pension
700. (1) If:
(a) a person is qualified for sickness benefit through subparagraph 666 (1) (c) (iii) (transfer from another pension or allowance); and
(b) a wife pension or carer pension was, immediately before the person ceased to receive the pension or allowance referred to in that subparagraph, payable to the person’s partner;
the rate per fortnight of the person’s benefit is not to exceed the sum of the rates per fortnight of the pension or allowance referred to in that subparagraph and the wife pension or carer pension that was payable to the person’s partner.
Other transferee cases
(2) If:
(a) a person is qualified for sickness benefit through subparagraph 666 (1) (c) (iii) (transfer from another pension, benefit or allowance); and
(b) subsection (1) does not apply to the person;
the rate per fortnight of the person’s benefit is not to exceed the rate per fortnight of the pension, benefit or allowance referred to in that subparagraph.
Rate of persons receiving sickness benefit with rent assistance since before 1 July 1987
701. If:
(a) immediately before 1 July 1987:
(i) a sickness benefit was payable to a person; and
(ii) an allowance was payable to the person under section 120 of the 1947 Act (supplementary allowance for rent); and
s. 701 Sickness Benefit
(b) a sickness benefit has been payable to the person continuously since 1 July 1987;
the maximum payment rate of the person must not be less than twice the sum of:
(c) the rate of sickness benefit payable to the person immediately before 1 July 1987 without applying section 122 of the 1947 Act (income and assets test); and
(d) the rate of the allowance payable to the person immediately before 1 July 1987 under section 120 of the 1947 Act (supplementary allowance for rent).
Division 5—Payment of sickness benefit
Commencement of sickness benefit
702. A sickness benefit becomes payable to a person on the first day on which:
(a) the person is qualified for the benefit; and
(b) no provision of this Act makes the benefit not payable to the person.
Note 1: for qualification see section 666.
Note 2: for the circumstances in which a sickness benefit is not payable see section 669.
Instalments
703. (1) Sickness benefit is to be paid by instalments for periods determined by the Secretary.
(2) Instalments of sickness benefit are to be paid at the times determined by the Secretary.
Instalments for period less than a fortnight
704. (1) If:
(a) an instalment of sickness benefit is for a period; and
(b) the period is less than a fortnight;
the instalment for the period is:
sickness benefit rate × | week days in period |
| 10 |
(2) If:
(a) an instalment of sickness benefit is for a period; and
(b) the period consists of:
(i) a number of whole fortnights; and
(ii) a period that is less than a fortnight;
the instalment, insofar as it relates to the period that is less than a fortnight, is
sickness benefit rate × | week days in period |
| 10 |
Sickness Benefit s. 705
Rounding off instalment
705. (1) If the amount of an instalment is:
(a) a number of whole dollars and a part of a cent; or
(b) a number of whole dollars and cents and a part of a cent;
the amount is, subject to subsection (2), to be increased or decreased to the nearest whole cent.
(2) If the amount of an instalment is:
(a) a number of whole dollars and 0.5 cent; or
(b) a number of whole dollars and cents and 0.5 cent; the amount is to be increased by 0.5 cent.
(3) If, apart from this section, the amount of an instalment would be less than $1.00, the amount is to be increased to $1.00.
Manner of payment
706. A person’s sickness benefit is, subject to section 707, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
707. (1) The Secretary may direct that the whole, or a part, of the amount of sickness benefit payable to a person is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the sickness benefit is to be paid in accordance with the direction.
Payment into bank account etc.
708. (1) The Secretary may direct that the whole, or a part, of the amount of a sickness benefit payable to a person is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the sickness benefit is payable.
(3) The account may be an account that is maintained by a person to whom the sickness benefit is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the sickness benefit is to be payable in accordance with the direction.
Where benefit payday would fall on public holiday etc.
709. If the Secretary is satisfied that an amount of sickness benefit that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank
s. 709 Sickness Benefit
holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of benefit after death
710. (1) If:
(a) a sickness benefit is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of sickness benefit payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of sickness benefit under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of sickness benefit.
Division 6—Protection of sickness benefit
Sickness benefit to be absolutely inalienable
711. (1) Subject to subsection (2) and section 1359, sickness benefit is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of sickness benefit payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
712. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of sickness benefit payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
Sickness Benefit s. 712
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
| Method statement |
Step 1. | Work out the total amount of sickness benefit payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
713. (1) The Secretary may give a person to whom a sickness benefit is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the benefit.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 7 days after:
s. 713 Sickness Benefit
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of sickness benefit
714. (1) The Secretary may give a person to whom a sickness benefit is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the benefit to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 7 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Sickness Benefit s. 714
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
715. (1) A person is not excused from giving information pursuant to a notice under section 713 or 714 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 713 or 714 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 713 (5) or (6) or 714 (5) or (6).
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
716. (1) A determination that:
(a) a person’s claim for a sickness benefit is granted; or
(b) a sickness benefit is payable to a person;
continues in effect until:
(c) the benefit ceases to be payable under section 717 or 718; or
(d) a further determination in relation to the pension under section 722 has taken effect.
Note 1: for paragraph (a) see section 694.
Note 2: for paragraph (b) see section 723—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a sickness benefit continues in effect until:
(a) the benefit becomes payable at a lower rate under section 719; or
(b) a further determination in relation to the benefit under section 720 or 721 has taken effect.
s. 717 Sickness Benefit
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 713 notification obligations
717. If:
(a) a person who is receiving a sickness benefit is given a notice under section 713; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the benefit; or
(ii) the benefit would, but for this section, cease to be payable to the person;
the benefit continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s benefit, there is no automatic rate reduction and a determination under section 721 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 713 notification obligations
718. If:
(a) a person who is receiving a sickness benefit is given a notice under section 713; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the benefit; or
(ii) the benefit ceases to be payable to the person;
the benefit ceases to be payable to the person immediately after the day on which the event or change in circumstance occurs.
Sickness Benefit s. 719
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 713 notification obligations
719. If:
(a) a person who is receiving a sickness benefit is given a notice under section 713; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of benefit is to be reduced;
the benefit becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Subdivision D—Determinations
Rate increase determination
720. If the Secretary is satisfied that the rate at which a sickness benefit is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 724.
Rate reduction determination
721. If the Secretary is satisfied that the rate at which a sickness benefit is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 719 (see subsection 716(2)).
Note 2: for the date of effect of a determination under this section see section 725.
Cancellation or suspension determination
722. If the Secretary is satisfied that a sickness benefit is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the benefit is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 717 or 718 (see subsection 716(1)).
Note 2: for the date of effect of a determination under this section see section 725.
s. 723 Sickness Benefit
Resumption of payment after cancellation or suspension
723. (1) If the Secretary:
(a) cancels or suspends a person’s sickness benefit under section 722; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive sickness benefit that was payable to the person; or
(b) the person is not receiving sickness benefit that is payable to the person;
the Secretary is to determine that sickness benefit was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 724.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
724. (1) The day on which a determination under section 720 or 723 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a sickness benefit; and
(b) a notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Sickness Benefit s. 724
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a sickness benefit; and
(b) a notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a sickness benefit; and
(b) no notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
s. 724 Sickness Benefit
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
725. (1) The day on which a determination under section 721 or 722 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the
Sickness Benefit s. 725
outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose benefit is affected by the adverse determination has contravened a provision of this Act (other than section 714, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the benefit has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the benefit was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments (death of dependent child)
Bereavement payments on death of dependent child
(a) a person is receiving sickness benefit; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s sickness benefit rate included:
(i) a dependent child add-on in respect of the child; or
s. 726 Sickness Benefit
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Division to cover the bereavement period.
Note 1: section 727 provides for sickness benefit to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 728 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new sickness benefit rate and the rate at which the benefit would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Division are:
• dependent child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
727. If a person is qualified for payments under this Division in relation to the death of a dependent child, the person’s sickness benefit rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Lump sum payable in some circumstances
728. If:
(a) a person is qualified for payments under this Division in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance in respect of the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Division was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
Sickness Benefit s. 728
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Step 1. | Work out the amount of sickness benefit payable to the person on the payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. Note: section 727 applies in working out this amount because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the amount of sickness benefit that would have been payable to the person on the payday immediately before the first available bereavement adjustment payday if the person’s sickness benefit rate were not calculated under section 727: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
s. 729 Special Benefit
PART 2.15—SPECIAL BENEFIT
Division 1—Qualification for and payability of special benefit
Subdivision A—Qualification
Qualification for special benefit
729. (1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.
Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2) (a) and (b) below).
(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
(a) no social security pension is payable to the person during the period; and
(b) no other social security benefit is payable to the person for the period; and
(c) the person is not disqualified for an unemployment benefit or a job search allowance for the period solely because of the operation of one or more of the following:
(i) subparagraph 513 (b) (iv) or 589 (1) (b) (iv) (is not registered as being unemployed by the CES);
(ii) section 514 or 590 (unemployment due to industrial action);
(iii) section 515 or 591 (moving to area of lower employment); and
(d) in a case where the person is qualified for an unemployment benefit or a job search allowance but the benefit or allowance is not payable to the person for the period—that result is not produced solely by the operation of one or more of the following:
(i) subsection 543 (3) or 614 (3) (person failing to comply with Secretary’s requirements);
(ii) section 544 or 615 (unemployment due to voluntary act);
(iii) section 545 or 616 (unemployment due to misconduct);
(iv) section 546 or 617 (refusal of job offer);
(v) section 547 or 618 (person not taking reasonable steps to find work);
(vi) section 549 or 620 (person failing to continue CES registration);
(vii) section 550 or 621 (seasonal workers);
(viii) section 551 or 622 (move to area of lower employment); and
(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person’s dependants
Special Benefit s. 729
(if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and
(f) the person is a resident of Australia and in Australia throughout the period; and
(g) the person is not, at any time during the period, an illegal entrant within the meaning of the Migration Act 1958.
Note: paragraph (2) (f) requires only that the person is a “resident of Australia” and in Australia throughout the period and does not require the person to be an “Australian resident” as defined in subsection 7 (2).
(3) The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period.
(4) For the purposes of paragraph (2) (d), an unemployment benefit or job search allowance is to be taken to be not payable to a person for a period because of the operation of a provision if:
(a) the person has claimed the benefit or allowance for the period and the benefit is not payable to the person because of the operation of the provision; or
(b) were the person to claim the benefit or allowance for the period the benefit would not be payable to the person because of the operation of the provision.
Determination of period
730. The period determined by the Secretary under subsection 729 (2) is not to begin before the person’s provisional commencement day.
Provisional commencement day
General rule
731. (1) Subject to subsection (2), a person’s provisional commencement day is the day on which the person claims special benefit.
Initial incorrect claim followed by claim for special benefit
(2) If:
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to an age pension; and
(b) had the person claimed special benefit on the day on which the
s. 731 Special Benefit
person made the initial claim, the person would have been qualified for speical benefit on that day; and
(c) the person subsequently makes a claim for special benefit; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Subdivision B—Payability
Special benefit not payable in some circumstances
732. (1) Even though a person might otherwise be qualified for a special benefit, the benefit may not be payable to the person because:
(a) the value of the person’s assets exceeds the assets value limit (see sections 733 and 734); or
(b) the person is receiving another income support payment (see section 735); or
(c) the person fails to comply with a requirement that the person:
(i) attend a medical examination; or
(ii) receive treatment; or
(iii) undertake a training course; or
(iv) do suitable work;
as required by section 736; or
(d) the person is a full-time student (see section 737) or is receiving a payment under certain educational schemes (see section 738); or
(e) the person is in gaol (see Part 3.13); or
(f) the person has received a compensation payment (see Part 3.14).
(2) A special benefit is not payable to a person if the person’s special benefit rate would be nil.
Note: see section 746 for the rule that special benefit rate is not to exceed the equivalent unemployment benefit job search allowance rate.
Assets test—benefit not payable if assets value limit exceeded
733. (1) A special benefit is not payable to a person if:
(a) the person is not excluded from the special benefit assets test; and
(b) the value of the person’s assets exceeds the person’s assets value limit.
(2) A person is excluded from the special benefit assets test if the person:
(a) has not turned 18; and
(b) is not a member of a couple; and
Special Benefit s. 733
(c) does not have a dependent child; and
(d) is not an independent young person; and
(e) is not a homeless person.
(3) A person’s assets value limit is worked out using the following table: work out which family situation applies to the person; the assets value limit is the corresponding amount in the “assets value limit” column.
ASSETS VALUE LIMIT TABLE |
column 1 | column 2 | column 3 |
| | assets value limit |
item | person’s family situation | column 3a either person or partner homeowner | column 3b neither person nor partner homeowner |
1. | Not member of couple | $103,500 | $177,500 |
2. | Partnered (partner getting neither pension nor benefit) | $147,500 | $221,500 |
3. | Partnered (partner getting pension or benefit) | $73,750 | $110,750 |
Note 1: for “member of a couple”, “partnered (partner getting neither pension nor benefit)” and “partnered (partner getting pension or benefit)” see section 4.
Note 2: for “homeowner” see section 11.
Note 3: if item 2 applies to a person, the value of all the assets of the person’s partner is to be taken as being included in the value of the person’s assets (see subsection 734 (1)—this is why the assets value limit is so high. If, on the other hand, item 3 applies to a person, the value of the person’s assets is only half the combined value of the person’s assets and the assets of the person’s partner (see subsection 734 (2)).
Note 4: If a special benefit is not payable to a person because of the value of the person’s assets, the person may be able to take advantage of provisions dealing with financial hardship (see sections 1131 and 1132).
Note 5: the assets value limits of items 1 and 3 in column 3a and item 3 in column 3b are indexed annually in line with CPI increases (see sections 1191 to 1194).
Note 6: the assets value limit of item 1 in column 3B is adjusted annually (see subsection 1204 (1)).
Note 7: the item 2 assets value limits are adjusted annually so that they are twice the corresponding item 3 limits (see subsections 1204(2) and (3)).
Value of assets of members of couples
734. (1) If:
(a) the person is a member of a couple; and
(b) the person’s partner:
(i) is not in receipt of a social security or service pension; and
s. 734 Special Benefit
(ii) is not in receipt of a social security benefit;
the value of the person’s assets, or of assets of a particular kind of the person, includes the value of the partner’s assets or of assets of that kind of the partner.
Note: “social security pension” includes a sheltered employment or rehabilitation allowance.
(2) If:
(a) the person is a member of a couple; and
(b) the person’s partner is in receipt of:
(i) a social security or service pension; or
(ii) a social security benefit;
the following provisions have effect:
(c) the value of the person’s assets is taken to be 50% of the sum of the value of the assets of the person and the value of the assets of the person’s partner; and
(d) the value of the person’s assets of a particular kind is taken to be 50% of the sum of the value of the assets of that kind of the person and the value of assets of that kind of the person’s partner.
Multiple entitlement exclusion
735. A special benefit is not payable to a person if:
(a) the person is receiving:
(i) another social security benefit; or
(ii) a social security pension; or
(iii) a service pension; or
(b) the person is a widow who is receiving:
(i) a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act; or
(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (2) of that Act;
unless:
(iii) the widow has been in receipt of a payment referred to in subparagraph (i) or (ii) continuously since before 1 November 1986; and
(iv) before 1 November 1986 the widow was also receiving a social security benefit.
Note 1: “social security pension” includes sheltered employment and rehabilitation allowance.
Note 2: a widow receiving a payment under the VEA who is not covered by paragraph (b) may be paid at a lower rate—see subsection 1068 (3).
Note 3: normally a person is treated as receiving a social security pension, benefit or allowance from the earliest day on which the pension is payable to the person (see subsection 23 (2)): for the purposes of paragraph (a) of this section, however, actual receipt is required before special benefit is not payable.
Special Benefit s. 736
Secretary may require person to have medical examination, attend course or undertake work
736. (1) If:
(a) a person is receiving, or has lodged a claim for, a special benefit; and
(b) the Secretary is of the opinion that the person should:
(i) undergo a medical or psychological examination; or
(ii) receive medical or other treatment; or
(iii) undertake a course of vocational training; or
(iv) undertake a course:
(a) which the person could reasonably undertake; and
(b) to which the person has been referred by the CES; or
(v) do any work suitable to be done by the person; and
(c) the Secretary notifies the person that the person is required to:
(i) undergo that examination; or
(ii) receive that treatment; or
(iii) undertake that course; or
(iv) do that work; and
(d) the person does not take reasonable steps to comply with the Secretary’s requirements;
a special benefit is not payable to the person for a period determined by the Secretary.
(2) The Secretary may determine that a special benefit is payable for a period for which he or she had previously determined that it was not payable under subsection (1), if within a reasonable period, the person takes reasonable steps to comply with the Secretary’s requirements.
Full-time students
737. (1) Subject to subsection (3), a special benefit is not payable to a person:
(a) who has turned 16; or
(b) who satisfies both of the following:
(i) the person has not turned 16; and
(ii) the person is not a SPB homeless person;
if the person is engaged in a course of education on a full-time basis.
Note: for “SPB homeless person” see section 739.
Period for which benefit not payable
(2) The period for which a special benefit is not payable under subsection (1) is the period:
(a) starting when the person starts the course; and
s. 737 Special Benefit
(b) finishing when the person finishes or abandons the course; and
(c) including periods of vacation.
Subsection (1) does not apply in certain cases
(3) Subsection (1) does not prevent a special benefit from being payable for any period during which:
(a) a person is engaged in a course that the Secretary has required the person to undertake under section 736; or
(b) the person has deferred a course of education.
Payments under certain education schemes
738. (1) Subject to subsection (2), a special benefit is not payable to a person:
(a) who has turned 16; or
(b) who satisfies both of the following:
(i) the person has not turned 16;
(ii) the person is not a SPB homeless person;
if a payment has been made or may be made in respect of the person for the same period under:
(iii) a prescribed educational scheme other than the ABSTUDY Tertiary scheme to the extent that it applies to part-time students; or
(iv) the scheme to provide an allowance known as the Adult Migrant Education Program Living Allowance; or
(v) the scheme to provide an allowance known as the Maintenance Allowance for Refugees; or
(vi) the scheme to provide an allowance known as the English as a Second Language Allowance to the extent that the scheme applies to full-time students.
Note 1: for “prescribed educational scheme” see section 5.
Note 2: for “SPB homeless person” see section 739.
(2) If:
(a) a person may start a course of education on a full-time basis; and
(b) a payment under a scheme referred to in subsection (1) may be made in respect of the person;
the Secretary may decide that notwithstanding subsection (1), a special benefit is payable to the person for a period before the person starts the course.
SPB homeless person
739. For the purposes of subparagraphs 737 (1) (b) (ii) and 738 (1) (b) (ii), a person is an SPB homeless person if:
(a) the person is not a member of a couple; and
Special Benefit s. 739
(b) the person does not have a dependent child; and
(c) the person does not live at a home of the parents, or of a parent, of the person because:
(i) the parents are not, or neither parent is, prepared to allow the person to live at such a home; or
(ii) domestic violence, incestuous harassment or other such exceptional circumstances make it unreasonable to expect the person to live at such a home; and
(d) the person is not receiving continuous support, whether directly or indirectly and whether pecuniary or otherwise, from a parent of the person or from another person who is acting as the person’s guardian on a long-term basis; and
(e) the person is not receiving, on a continuous basis, any payment in the nature of income support (other than a social security benefit) from the Commonwealth, a State or a Territory.
Division 2—Claim for special benefit
Need for a claim
740. (1) A person who wants to be granted a special benefit must make a proper claim for that benefit.
Note 1: “proper claim”—see section 741 (form) and section 742 (manner of lodgment).
Note 2: because the payability of special benefit on unemployment grounds may be affected by, for example, the provisions dealing with the circumstances in which a person’s former employment ended (see section 729), the person may be asked to support his or her claim for special benefit with an end of employment statement by the former employer (see section 1311).
(2) For the purposes of subsection (1), where:
(a) a claim for special benefit is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for special benefit;
the claim is to be taken to have not been made.
Form of claim
741. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
742. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) A place or person approved under subsection (1) must be a place or person in Australia.
s. 743 Special Benefit
Division 3—Determination of claim
Secretary to determine claim
743. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
744. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for a special benefit; and
(b) the benefit is payable.
Date of effect of determination
745. (1) Subject to subsections (2), (3) and (4), a determination under section 744 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is rejecting a person’s claim for special benefit; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for special benefit; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Special Benefit s. 745
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for special benefit; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 4—Rate of special benefit
Rate of special benefit
746. (1) The rate of a person’s special benefit is the fortnightly rate determined by the Secretary in his or her discretion.
(2) Subject to sections 747 (major disaster) and 1161 (release from gaol), the rate of a person’s special benefit is not to exceed the rate at which unemployment benefit or job search allowance would be payable to the person if:
(a) the person were qualified for unemployment benefit or job search allowance; and
(b) unemployment benefit or job search allowance were payable to the person.
Note 1: for double payments on release from gaol see section 1161.
Note 2: for double payments in the case of a major disaster see section 747.
Double payment—claim as a result of major disaster
747. If:
(a) a person makes a claim for special benefit; and
(b) the claim is made because of a major disaster;
the amount of special benefit payable to the person for the period of 7 days starting on the first day of the period for which the special benefit is payable is not to exceed 2 times the amount that would, apart from this section, be the maximum rate payable to the person for that period.
Division 5—Payment of special benefit
Commencement of special benefit
748. Special benefit becomes payable to a person on the first day on which:
(a) the person is qualified for the benefit; and
s. 748 Special Benefit
(b) no provision of this Act makes the benefit not payable to the person.
Note 1: for qualification see section 729.
Note 2: for the circumstances in which a special benefit is not payable see section 732.
Instalments
749. (1) Special benefit is to be paid by instalments for periods determined by the Secretary.
(2) Instalments of special benefit are to be paid at the times determined by the Secretary.
Instalments for period less than a fortnight
750. (1) If:
(a) an instalment of special benefit is for a period; and
(b) the period is less than a fortnight;
the instalment for the period is:
special benefit rate × | week days in period |
| 10 |
(2) If:
(a) an instalment of special benefit is for a period; and
(b) the period consists of:
(i) a number of whole fortnights; and
(ii) a period that is less than a fortnight;
the instalment, insofar as it relates to the period that is less than a fortnight, is:
special benefit rate × | week days in period |
| 10 |
Rounding off instalment
751. (1) If the amount of an instalment is:
(a) a number of whole dollars and a part of a cent; or
(b) a number of whole dollars and cents and a part of a cent;
the amount is, subject to subsection (2), to be increased or decreased to the nearest whole cent.
(2) If the amount of an instalment is:
(a) a number of whole dollars and 0.5 cent; or
(b) a number of whole dollars and cents and 0.5 cent;
the amount is to be increased by 0.5 cent.
(3) If, apart from this section, the amount of an instalment would be less than $ 1.00, the amount is to be increased to $ 1.00.
Special Benefit s. 752
Manner of payment
752. A person’s special benefit is, subject to section 753, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
753. (1) The Secretary may direct that the whole, or a part, of the amount of special benefit payable to a person is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the special benefit is to be paid in accordance with the direction.
Payment into bank account etc.
754. (1) The Secretary may direct that the whole or a part of the amount of special benefit payable to a person is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the special benefit is payable.
(3) The account may be an account that is maintained by a person to whom the special benefit is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the special benefit is to be payable in accordance with the direction.
Where benefit payday would fall on public holiday etc.
755. If the Secretary is satisfied that an amount of special benefit that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of benefit after death
756. (1) If:
(a) a special benefit is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of special benefit payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
s. 756 Special Benefit
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of special benefit under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of special benefit.
Division 6—Protection of special benefit
Special benefit to be absolutely inalienable
757. (1) Subject to subsection (2) and section 1359, special benefit is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of special benefit payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
758. (1) If:
(a) a person has an account with a financial institution; arid
(b) instalments of special benefit payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of special benefit payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
Special Benefit s. 758
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 7—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
759. (1) The Secretary may give a person to whom special benefit is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the benefit.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 7 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
s. 759 Special Benefit
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of special benefit
760. (1) The Secretary may give a person to whom special benefit is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the benefit to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 7 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
761. (1) A person is not excused from giving information pursuant to a notice under section 759 or 760 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 759 or 760 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 759 (5) or (6) or 760 (5) or (6).
Special Benefit s. 762
Division 8—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
762. (1) A determination that:
(a) a person’s claim for special benefit is to be granted for a period; or
(b) special benefit is to be paid to a person for a period; continues in effect until:
(c) the period ends; or
(d) a further determination in relation to the benefit under section 765 has taken effect.
Note 1: for paragraph (a) see section 744.
Note 2: for paragraph (b) see section 766—this paragraph may be relevant where, for example, the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of special benefit continues in effect until a further determination in relation to the benefit under section 763 or 764 has taken effect.
Subdivision B—Determinations
Rate increase determination
763. If the Secretary is satisfied that the rate at which special benefit is being, or has been, paid is less than it should be, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 767.
Rate reduction determination
764. If the Secretary is satisfied that the rate at which special benefit is being, or has been, paid is more than it should be, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 768.
Cancellation or suspension determination
765. If the Secretary is satisfied that special benefit is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.
Note: for the date of effect of a determination under this section see section 768.
s. 766 Special Benefit
Resumption of payment after cancellation or suspension
766. (1) If the Secretary:
(a) cancels or suspends a person’s special benefit under section 765; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive special benefit that was payable to the person; or
(b) the person is not receiving special benefit that is payable to the person;
the Secretary is to determine that special benefit was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 767.
Subdivision C—Date of effect of determinations
Date of effect of favourable determination
767. (1) The day on which a determination under section 763 or 766 (in this subsection called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s special benefit; and
(b) a notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Special Benefit s. 767
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s special benefit; and
(b) a notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s special benefit; and
(b) no notice is given to the person to whom the benefit is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
s. 767 Special Benefit
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
768. (1) The day on which a determination under section 764 or 765 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the
Special Benefit s. 768
outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4) and (5), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose special benefit is affected by the adverse determination has contravened a provision of this Act (other than sections 761 and 1304 to 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the benefit has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which special benefit was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 9—Bereavement payments (death of dependent child)
Bereavement payments on death of dependent child
769. If:
(a) a person is receiving special benefit; and
(b) a dependent child of the person dies; and
(c) the person’s benefit rate would, if the person had been receiving unemployment benefit immediately before the child died, have included:
s. 769 Special Benefit
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
the person is qualified for payments under this Division to cover the bereavement period.
Note 1: section 770 provides for maximum special benefit rate payable to the person, up to the first available bereavement adjustment payday, to be the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: section 771 provides for the possibility of a lump sum being paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the maximum for the lump sum is the difference, over the bereavement lump sum period, between the person’s new special benefit rate and the rate at which the benefit would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: the additional payments preserved by this Division are:
• child add-on;
• guardian allowance;
• additional rent assistance;
• additional remote area allowance.
Continued payment of child-related amounts
770. Subsection 746 (2) ties the maximum special benefit rate to the unemployment benefit or job search allowance rate and the unemployment benefit or job search allowance rate is worked out during the bereavement rate continuation period as if the dependent child had not died (see section 587 or 659).
Lump sum payable in some circumstances
771. (1) If:
(a) a person is qualified for payments under this Division in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance for the child;
a lump sum is payable to the person.
(2) The amount of the lump sum is to be determined by the Secretary.
(3) The amount determined under subsection (2) is not to exceed the amount of the lump sum that would be payable to the person under section 588 or 660 if the person were receiving unemployment benefit or job search allowance.
Special Needs Pensions s. 772
PART 2.16—SPECIAL NEEDS PENSIONS
Division 1—Qualifications for and payability of special needs pensions
Subdivision A—Qualification
Qualification for special needs age pension
772. A person is qualified for a special needs age pension if:
(a) the person has not resided in Australia at any time after 7 May 1973; and
(b) the person has turned:
(i) if the person is a woman—60; or
(ii) if the person is a man—65; and
(c) the person ceased to reside in Australia after the person had turned:
(i) if the person is a woman—55; or
(ii) if the person is a man—60; and
(d) the person had resided in Australia for a period that was, or for periods that in the aggregate were, not less than 30 years; and
(e) the person would:
(i) if the person had lodged a claim immediately before the person ceased to reside in Australia—have been qualified under section 25 of the 1947 Act to receive an age pension; or
(ii) if the person had not ceased to reside in Australia, were physically present in Australia and lodged a claim for an age pension—be qualified under section 25 of the 1947 Act to receive an age pension; and
(f) the person is, in the opinion of the Secretary, in special need of financial assistance.
Qualification for special needs invalid pension
Incapacity for work
773. (1) A person is qualified for a special needs invalid pension if:
(a) the person has not resided in Australia at any time after 7 May 1973; and
(b) the person is permanently incapacitated for work; and
(c) the degree of the incapacity for work is 85% or more; and
(d) 50% or more of the incapacity for work is directly caused by a physical or mental impairment; and
(e) the person has turned 16 and is under the pension age; and
(f) at the time when the person first satisfied paragraphs (b), (c) and (d), the person was in Australia or temporarily absent from Australia; and
s. 773 Special Needs Pensions
(g) the person is, in the opinion of the Secretary, in special need of financial assistance.
Permanent blindness
(2) A person is qualified for a special needs invalid pension if:
(a) the person is permanently blind; and
(b) the person has turned 16 and is under the pension age; and
(c) the person has not resided in Australia at any time after 7 May 1973; and
(d) the person became permanently blind while the person was in Australia or temporarily absent from Australia; and
(e) the person is, in the opinion of the Secretary, in special need of financial assistance.
(3) A person is not qualified for a special needs invalid pension on the basis of incapacity or blindness if the person brought about the incapacity or blindness with a view to obtaining an invalid pension or a special needs invalid pension.
Qualification for special needs wife pension
774. A person is qualified for a special needs wife pension if the person:
(a) is a woman who is a member of a couple; and
(b) has a partner who is receiving a special needs age pension or a special needs invalid pension.
Qualification for special needs sole parent pension
775. (1) A woman is qualified for a special needs sole parent pension if:
(a) the woman has not resided in Australia at any time after 7 May 1973; and
(b) is not a member of a couple; and
(c) the woman has at least one SPP child (see section 776); and
(d) either:
(i) a man to whom the woman was legally married has died and both the woman and the man were residing permanently in Australia when the man died; or
(ii) a man who had been the woman’s de facto partner for at least 3 years has died and both the woman and the man were residing permanently in Australia when the man died; and
(e) the woman is, in the Secretary’s opinion, in special need of financial assistance.
Special Needs Pensions s. 775
(2) For the purposes of subsection (1), a man is a woman’s de facto partner if the man and the woman are members of a couple although not legally married to one another.
Note: for “member of a couple” see subsections 4 (2), (3) and (6).
SPP (sole parent pension) child
776. (1) A young person is an SPP child of another person (in this section called the “adult”) if:
(a) the young person is:
(i) a dependent child of the adult; or
(ii) a maintained child of the adult; and
(b) the young person has not turned 16; and
(c) the young person:
(i) is a natural or adopted child of the adult; or
(ii) is in the adult’s legal custody; or
(iii) has been wholly or substantially in the care and control of the adult for at least 12 months before the day on which the adult claims special needs sole parent pension and is, in the Secretary’s opinion, likely to remain wholly or substantially in the adult’s care and control permanently or indefinitely.
(2) For the purposes of subsection (1), a young person who has not turned 16 can be a dependent child of a person even though:
(a) the young person is not in full-time education; and
(b) the young person is in receipt of income from wages; and
(c) the rate of that income exceeds $100 per week.
Note 1: a young person covered by this subsection would normally not count as a dependent child (see subsection 5 (3)).
Note 2: subsection (2) does no more than allow the young person to be taken into account as a dependent child in working out whether a person is qualified for special needs sole parent pension—it does not allow the young person to be taken into account as a dependent child in calculating the rate of a person’s special needs sole parent pension (see Module C of Pension Rate Calculator C).
Young person to be SPP child for only one person
777. (1) A young person can be an SPP child of only one person at a time.
(2) If the Secretary is satisfied that, but for this section, a young person would be an SPP child of 2 or more persons, the Secretary is to:
(a) make a written determination that the Secretary is satisfied that that is the case; and
(b) specify in the determination the person whose SP child the young person is to be; and
(c) give each person a copy of the determination.
s. 778 Special Needs Pensions
Qualification for special needs widow B pension
778. A woman is qualified for a special needs widow B pension if:
(a) the woman has not resided in Australia at any time after 7 May 1973; and
(b) the woman:
(i) was, immediately before 1 July 1987, receiving a widow’s pension as a class B widow under the 1947 Act; or
(ii) on 1 July 1987 had turned 45 years old and:
(a) was receiving a supporting parent’s benefit or a widow’s pension as a class A widow on or after that day; or
(b) was receiving a sole parent pension after 1 March 1989; or
(iii) on 1 July 1987 had turned 50 years old; and
(c) the woman is not qualified for a special needs sole parent pension; and
(d) the woman:
(i) was legally married and her husband has died; or
(ii) was a dependent female, that is:
(a) she was a member of a couple and her partner has died; and
(b) she was a member of the couple for 3 years immediately before her partner died; and
(c) she was wholly or mainly financially maintained by him; and
(e) both the woman and the man were residing permanently in Australia when the man died; and
(f) the woman is not a member of another couple; and
(g) the woman is, in the Secretary’s opinion, in special need of financial assistance.
Note: for “member of a couple” see subsections 4 (2), (3) and (6).
Subdivision B—Payability
Special needs pension not payable in some circumstances
779. (1) Even though a person is qualified for a special needs pension, the pension may not be payable to the person because:
(a) the pension has not commenced to be payable (see sections 780 to 782 and 797); or
(b) of a compensation preclusion period (see Part 3.14); or
(c) the person is in gaol (see Part 3.13); or
(d) the person is receiving another pension or benefit (see section 787); or
Special Needs Pensions s. 779
(e) the person’s failure to comply with a requirement under section 788 to have a medical examination.
(2) A special needs pension is not payable to a person if the person’s special needs pension rate would be nil.
Note: a person whose rate might otherwise be nil under Pension Rate Calculator A or C may not have a nil rate after the application of the financial hardship provisions (sections 1129 and 1130).
Some special needs pensions not payable before claim
780. A special needs age, invalid or wife pension is not payable to a person before the person’s provisional commencement day (identified under section 784).
Special needs sole parent pension generally not payable before claim
781. Subject to sections 785 and 786, a special needs sole parent pension is not payable to a woman before the woman’s provisional commencement day (identified under section 784).
Special needs widow B pension generally not payable before claim
782. Subject to section 785, a special needs widow B pension is not payable to a woman before the woman’s provisional commencement day (identified under section 784).
Second special needs pension generally not payable after cancellation of initial pension
783. If:
(a) a special needs pension is payable to a person; and
(b) the special needs pension is cancelled;
another special needs pension is not payable to the person unless the person is qualified to receive another special needs pension at the time the initial pension is cancelled.
Provisional commencement day
General rule
784. (1) Subject to subsections (2) and (3), a person’s provisional commencement day is the day on which the person claims the special needs pension.
Initial incorrect claim followed by claim for special needs pension
(2) If:
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a social security or service pension or a social security benefit; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the
s. 784 Special Needs Pensions
Commonwealth, that is similar in character to an invalid pension; and
(b) on the day on which the person makes the initial claim, the person is qualified for a special needs pension; and
(c) the person subsequently makes a claim for a special needs pension; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Early claim
(3) If:
(a) a person lodges a claim for a special needs age, invalid or wife pension; and
(b) the person is not, on the day on which the claim is lodged, qualified for a special needs pension; and
(c) the person becomes qualified for the special needs pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person’s provisional commencement day is the first day on which the person is qualified for the pension.
Backdating—death of partner etc.
785. If:
(a) a woman’s partner dies; and
(b) the woman’s provisional commencement day is within one month after the day on which the partner dies; and
(c) the woman is qualified for the special needs sole parent or widow B pension (as the case requires) at some time in the period between the death of the partner and the provisional commencement day;
the special needs sole parent or widow B pension (as the case requires) can become payable before the provisional commencement day but is not payable to the woman before the first day in the period on which the person is qualified.
Note 1: for “provisional commencement day” see section 784.
Note 2: the pension will not necessarily be backdated to the day on which the woman becomes qualified—some other factor may make the pension not payable at that time.
Backdating—birth of child
786. If:
(a) a woman gives birth to a child; and
(b) the woman’s provisional commencement day is within one month after the day on which the child is born; and
Special Needs Pensions s. 786
(c) the woman is qualified for the special needs sole parent pension at some time in the period between the birth of the child and the provisional commencement day;
the special needs sole parent pension (as the case requires) can become payable to the woman before the provisional commencement day but is not payable to the woman before the first day in the period on which the woman is qualified.
Note: for “provisional commencement day” see section 784.
Multiple entitlement exclusion
787. (1) A special needs pension is not payable to a person if:
(a) the person is receiving:
(i) another social security pension; or
(ii) a social security benefit; or
(iii) a service pension; or
(b) the person is a widow who is receiving:
(i) a pension under Part II or IV of the Veterans’ Entitlements Act at a rate determined under or by reference to subsection 30 (1) of that Act; or
(ii) a pension under the Seamen’s War Pensions and Allowances Act 1940 at a rate determined under subsection 18 (2) of that Act.
Secretary may require person to have medical examination
788. (1) If:
(a) a person is receiving, or has lodged a claim for, a special needs invalid pension; and
(b) the Secretary is of the opinion that the person should:
(i) undergo a medical or psychological examination; or
(ii) receive medical or other treatment; and
(c) the Secretary notifies the person that the person is required to:
(i) undergo that examination; or
(ii) receive that treatment; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person; and
(e) the person does not take reasonable steps to comply with the Secretary’s requirements;
a special needs invalid pension is not payable to the person for a period determined by the Secretary.
(2) The Secretary may determine that a special needs invalid pension is payable for a period for which he or she had previously determined that it was not payable under subsection (1) if within a reasonable
s. 788 Special Needs Pensions
period the person takes reasonable steps to comply with the Secretary’s requirements.
Division 2—Claim for special needs pension
Need for a claim
789. (1) A person who wants to be granted a special needs pension must make a proper claim for that pension.
Note: for “proper claim” see section 790 (form) and section 791 (manner of lodgment).
(2) For the purposes of subsection (1), where:
(a) a claim for special needs pension is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for special needs pension;
the claim is to be taken to have not been made.
Form of claim
790. To be a proper claim, a claim must be in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
791. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) A place or person approved under subsection (1) must be a place or person in Australia.
Division 3—Determination of claim
Secretary to determine claim
792. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
793. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for special needs pension; and
(b) the pension is payable.
Date of effect of determination
794. (1) Subject to subsections (2), (3) and (4), a determination under section 793 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Special Needs Pensions s. 794
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a special needs pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a special needs pension; and
(b) a notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a special needs pension; and
(b) no notice is given to the person to whom the pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
s. 795 Special Needs Pensions
Division 4—Medical examination following claim
Examination by medical practitioner
795. (1) The Secretary must direct that a claimant for a special needs invalid pension be examined by a medical practitioner unless:
(a) it is manifest that the claimant is permanently incapacitated for work and that:
(i) the degree of the incapacity is not less than 85%; and
(ii) the incapacity, or at least 50% of that incapacity, is directly caused by a permanent physical or mental impairment; or
(b) it is manifest that the claimant is permanently blind; or
(c) the claimant resides in a place that is remote from any medical practitioner.
(2) After examining the claimant, the medical practitioner is to give a certificate stating the practitioner’s opinion on the following matters:
(a) whether or not the claimant is permanently incapacitated for work;
(b) if the claimant is permanently incapacitated for work—whether or not:
(i) the degree of the incapacity is not less than 85%; and
(ii) the incapacity, or at least 50% of the incapacity, is directly caused by a permanent physical or mental impairment;
(c) whether or not the claimant is permanently blind.
(3) A certificate under subsection (2) must be in accordance with a form approved by the Secretary.
Division 5—Rate of special needs pension
How to work out a person’s special needs pension rate
796. (1) Subject to subsection (2), the rate of a person’s special needs pension is:
(a) if the pension is a special needs age pension—the rate at which an age pension would be payable to the person if the person were qualified for an age pension; or
(b) if the pension is a special needs invalid pension—the rate at which an invalid pension would be payable to the person if the person were qualified for an invalid pension; or
(c) if the pension is a special needs wife pension—the rate at which a wife pension would be payable to the person if the person were qualified for a wife pension; or
(d) if the pension is a special needs sole parent pension—the rate at which a sole parent pension would be payable to the person if the person were qualified for a sole parent pension; or
Special Needs Pensions s. 796
(e) if the pension is a special needs widow B pension—the rate at which a widow B pension would be payable to the person if the person were qualified for a widow B pension.
(2) If:
(a) the person was absent from Australia on 1 July 1986; and
(b) the person commences after 1 July 1986 to receive a special needs pension; and
(c) the person is absent from Australia;
the rate of the person’s special needs pension is, subject to subsections (3) and (4), to be worked out using the Special Needs Proportional Rate Calculator at the end of this section.
(3) Subsection (2) does not apply to a person’s special needs invalid pension if the person became qualified for the pension because the person became permanently incapacitated for work or permanently blind while the person was an Australian resident.
(4) Subsection (2) does not apply to a person’s special needs sole parent or widow B pension if:
(a) the person became qualified for the pension because of the death of the person’s former partner; and
(b) at the time when the former partner died the former partner was an Australian resident; and
(c) the person would, apart from subsections 249 (2) and 362 (2) of this Act, and section 46 of the 1947 Act as in force at any time before 1 March 1989, have become so qualified for that pension.
(5) If:
(a) a woman is absent from Australia on 1 July 1986; and
(b) the woman commences to receive a special needs sole parent pension; and
(c) before commencing to receive the special needs sole parent pension, the woman was receiving a wife pension at a rate worked out in accordance with the Pension Portability Rate Calculator at the end of section 1221;
the woman’s special needs sole parent pension rate is to be worked out using the Special Needs Proportional Rate Calculator at the end of this section.
s. 796 Special Needs Pensions
SPECIAL NEEDS PROPORTIONAL RATE CALCULATOR
MODULE A—OVERALL RATE CALCULATION PROCESS
Overall rate calculation process
796-A1. This is how to calculate a person’s portability rate:
| Method statement |
Step 1. | Work out the period of the person’s Australian working life residence using Module B: the result is called the residence period. |
Step 2. | Use the person’s residence period to work out the person’s residence factor using Module C below. |
Step 3. | Work out the rate that would be the person’s pension or allowance rate if this Rate Calculator did not apply to the person: the result is called the person’s notional domestic rate. |
Step 4. | Multiply the person’s notional domestic rate by the person’s residence factor: the result is the person’s portability rate. |
MODULE B—AUSTRALIAN WORKING LIFE RESIDENCE
Working life
796-B1. For the purposes of this Module, a person’s working life is the period commencing when the person turns 16 and ending:
(a) if the person is a woman—when she turns 60; or
(b) if the person is a man—when he turns 65.
Australian working life residence (general)
796-B2. Subject to points 796-B3 to 796-B9, a person’s period of Australian working life residence as at a particular time is the number of months in the period, or the aggregate of the periods, during the person’s working life during which the person has, up to that time, been an Australian resident.
Calculation of number of months
796-B3. If a person’s period of Australian working life residence would, apart from this subsection, be a number of whole months, the period is to be increased by one month.
796-B4. If a person’s period of Australian working life residence would, apart from this subsection, be a number of whole months and a day or days, the period is to be increased so that it is equal to the number of months plus one month.
Special Needs Pensions s. 796
Australian working life residence (special needs age or invalid pensioner couples)
796-B5. If:
(a) a person is receiving a special needs age pension or a special needs invalid pension; and
(b) the person is a member of a couple; and
(c) the person’s partner is receiving an age or invalid pension or a special needs age or invalid pension; and
(d) the partner’s period of Australian working life residence is longer than the period that would be the person’s period of Australian working life residence under point 796-B2;
the person’s period of Australian working life residence is to be equal to the partner’s period of Australian working life residence.
Australian working life residence (member of former special needs age or invalid pensioner couple)
796-B6. If:
(a) a person is receiving a special needs age pension or a special needs invalid pension; and
(b) the person is a member of a couple; and
(c) the person ceases to be a member of a couple; and
(d) immediately before the person ceases to be a member of a couple:
(i) the person was receiving an age or invalid pension or a special needs age or invalid pension; and
(ii) the partner was receiving an age or invalid pension or a special needs age or invalid pension; and
(e) the partner’s period of Australian working life residence (immediately before the person ceases to be a member of a couple) is longer than the period that would be the person’s period of Australian working life residence under point 796-B2;
the person’s period of Australian working life residence is to be equal to the partner’s period of Australian working life residence (immediately before the person ceases to be a member of a couple).
Australian working life residence (special needs wife pensioner)
796-B7. If a person is receiving a special needs wife pension, the person’s period of Australian working life residence is equal to the period of Australian working life residence of the person’s partner.
Australian working life residence (recipient of special needs sole parent pension or widow B pension)
796-B8. If:
(a) a person is receiving a special needs sole parent pension or a special needs widow B pension; and
s. 796 Special Needs Pensions
(b) the person became qualified for the pension because the person’s former partner died; and
(c) the partner’s period of Australian working life residence (immediately before the partner’s death) is longer than the period that would be the person’s period of Australian working life residence under point 796-B2;
the person’s period of Australian working life residence is to be equal to the partner’s period of Australian working life residence (immediately before the partner’s death).
Australian working life residence—second special needs pension
796-B9. If:
(a) a special needs pension is payable to a person (in this point called the “initial pension”); and
(b) the special needs pension is cancelled or ceases to be payable automatically; and
(c) another special needs pension is payable to the person (in this point called the “second pension”); and
(d) the person’s period of Australian working life residence in respect of the second pension is shorter than the period that was the person’s period of Australian working life residence for the purposes of calculating the person’s initial special needs pension;
the person’s period of Australian working life residence for the second pension is to be equal to the period of Australian working life residence used in calculating the person’s initial pension.
MODULE C—RESIDENCE FACTOR
Residence factor (period of Australian working life residence 25 years or more)
796-C1. If a person’s period of Australian working life residence is 300 months (25 years) or more, the person’s residence factor is 1.
Note: if a person’s residence factor is 1, the person’s overseas pension will be payable overseas at the full domestic rate (less rent assistance and remote area allowance).
Residence factor (period of Australian working life residence under 25 years)
796-C2. If a person’s period of Australian working life residence is less than 300 months (25 years), the person’s residence factor is:
person’s Australian working life residence |
300 |
Special Needs Pensions s. 797
Division 6—Payment of special needs pension
Commencement of special needs pension
797. A special needs pension becomes payable to a person on the first day on which:
(a) the person is qualified for the pension; and
(b) no provision of this Act makes the pension not payable to the person.
Note 1: for qualification see section 772.
Note 2: for the circumstances in which special needs pension is not payable see section 779.
Payment by instalments
798. (1) A full instalment of special needs pension is payable to a person on each pension payday on which:
(a) the person is qualified for the pension; and
(b) the pension is payable to the person.
(2) The instalments referred to in subsection (1) are to be paid to the person on such pension paydays as the Secretary determines for the purposes of this subsection.
Effect on instalments of backdating claim
799. If:
(a) a person lodges a claim for a special needs pension on a particular day (in this section called the “claim day”); and
(b) the person’s provisional commencement day is before the claim day;
any instalment of special needs pension that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a pension payday—on that day; or
(d) the first pension payday after the claim day.
Note: for “provisional commencement day” see section 784.
Calculation of amount of instalment
800. (1) The amount of an instalment of special needs pension is the amount worked out by dividing the amount of the annual rate of the pension by 26.
(2) If an amount that is payable to a person on a pension payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents.
(3) If the amount that is payable to a person on a pension payday is a multiple of 5 cents, the amount is to be increased by 5 cents.
s. 800 Special Needs Pensions
(4) If, apart from this subsection, the amount of an instalment of special needs pension would be less than $1.00, the amount of the instalment is to be increased to $1.00.
Manner of payment
801. A person’s special needs pension is, subject to section 802, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
802. (1) The Secretary may direct that the whole, or a part, of the amount of special needs pension payable to a person is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the special needs pension is to be paid in accordance with the direction.
Payment into bank account etc.
803. (1) The Secretary may direct that the whole or a part of the amount of a special needs pension payable to a person is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the special needs pension is payable.
(3) The account may be an account that is maintained by a person to whom the special needs pension is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the special needs pension is to be payable in accordance with the direction.
Where pension payday would fall on public holiday etc.
804. If the Secretary is satisfied that an amount of special needs pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of pension after death
805. (1) If:
(a) a special needs pension is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of special needs pension payable to him or her; and
(d) another person applies to receive that amount; and
Special Needs Pensions s. 805
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of special needs pension under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of special needs pension.
Division 7—Protection of special needs pension
Special needs pension to be absolutely inalienable
806. (1) Subject to subsection (2) and section 1359, a special needs pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of special needs pension payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
807. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of special needs pension payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
s. 807 Special Needs Pensions
(2) The saved amount is worked out as follows:
| Method statement |
Step 1. | Work out the total amount of special needs pension payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 8—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
808. (1) The Secretary may give a person to whom a special needs pension is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the pension.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
Special Needs Pensions s. 808
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country: and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of special needs pension
809. (1) The Secretary may give a person to whom a special needs sole parent or special needs widow B pension is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the pension to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
s. 809 Special Needs Pensions
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
810. (1) A person is not excused from giving information pursuant to a notice under section 808 or 809 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 808 or 809 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 808 (5) or (6) or (809) (5) or (6).
Division 9—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
811. (1) A determination that:
(a) a person’s claim for a special needs pension is granted; or
(b) a special needs pension is payable to a person;
continues in effect until:
(c) if the pension is a special needs age, invalid or wife pension—the pension ceases to be payable under section 812 or 813; or
(d) if the pension is a special needs sole parent or widow B pension—the pension ceases to be payable under section 812, 813 or 814; or
(e) a further determination in relation to the pension under section 818 has taken effect.
Note 1: for paragraph (a) see section 793.
Note 2: for paragraph (b) sec section 819—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a special needs pension continues in effect until:
(a) the pension becomes payable at a lower rate under section 815; or
(b) a further determination in relation to the pension under section 816 or 817 has taken effect.
Special Needs Pensions s. 812
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 808 notification obligations
812. If:
(a) a person who is receiving a special needs pension is given a notice under section 808; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension would, but for this section, cease to be payable to the person;
the pension continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s pension, there is no automatic rate reduction and a determination under section 817 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 808 notification obligations
813. If:
(a) a person who is receiving a special needs pension is given a notice under section 808; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the pension; or
(ii) the pension ceases to be payable to the person;
the pension ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
s. 814 Special Needs Pensions
Automatic termination—failure to provide section 809 statement
814. (1) If:
(a) a person who is receiving a special needs sole parent or widow B pension is given a notice under section 809 requiring the person to give the Department a statement; and
(b) the notice relates to the payment of that pension during a period specified in the notice; and
(c) the person does not comply with the notice;
the pension, subject to subsection (2), ceases to be payable to the person as from the first day in that period.
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person from a day specified in the determination.
(3) The day specified under subsection (2) may be before or after the making of the determination.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 808 notification obligations
815. If:
(a) a person who is receiving a special needs pension is given a notice under section 808; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of pension is to be reduced;
the pension becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Subdivision D—Determinations
Rate increase determination
816. If the Secretary is satisfied that the rate at which a special needs pension is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 820.
Special Needs Pensions s. 817
Rate reduction determination
817. If the Secretary is satisfied that the rate at which a special needs pension is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 815 (see subsection 811 (2)).
Note 2: for the date of effect of a determination under this section see section 821.
Cancellation or suspension determination
818. If the Secretary is satisfied that a special needs pension is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the pension is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 812, 813 or 814 (see subsection 811 (1)).
Note 2: for the date of effect of a determination under this section see section 821.
Resumption of payment after cancellation or suspension
819. (1) If the Secretary:
(a) cancels or suspends a person’s special needs pension under section 818; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive a special needs pension that was payable to the person; or
(b) the person is not receiving a special needs pension that is payable to the person;
the Secretary is to determine that a special needs pension was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 820.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
820. (1) The day on which a determination under section 816 or 819 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
s. 820 Special Needs Pensions
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s special needs pension; and
(b) a notice is given to the person to whom the special needs pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s special needs pension; and
(b) a notice is given to the person to whom the special needs pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a person’s special needs pension; and
(b) no notice is given to the person to whom the special needs pension is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Special Needs Pensions s. 820
Notified change of circumstances
(5) If:
(a) the favourable determination is made following a person having advised the Department of a change in circumstances; and
(b) the change is not a decrease in the rate of the person’s maintenance income;
the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Other determinations
(6) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
821. (1) The day on which a determination under section 817 or 818 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: sec section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person whose benefit is affected by the adverse determination has contravened a provision of this Act (other than section 809, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the benefit
s. 821 Special Needs Pensions
has been paid to a person when it should have been cancelled or suspended:
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the benefit was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 10—Bereavement payments
Subdivision A—Death of pensioner partner
Qualification for payments under this Subdivision
822. (1) If:
(a) a person is receiving a special needs age, invalid or wife pension; and
(b) the person is a member of a couple; and
(c) the person’s partner dies; and
(d) immediately before the partner died, the partner was receiving:
(i) a special needs age, invalid or wife pension; or
(ii) an age pension; or
(iii) an invalid pension; or
(iv) a service pension;
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 823 provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person’s partner during that period if the partner had not died.
Note 2: section 824 provides for a lump sum that represents the instalments that would have been paid to the person’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
(2) A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.
(3) An election under subsection (2):
(a) must be made by written notice to the Secretary; and
(b) may be made after the person has been paid an amount or amounts under this Subdivision; and
Special Needs Pensions s. 822
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that election.
(4) If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which special needs pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 825.
Continued payment of partner’s pension or allowance
823. If a person is qualified for payments under this Subdivision in relation to the death of the person’s partner, there is payable to the person, on each of the pension paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the person’s partner on that payday if the partner had not died.
Lump sum payable in some circumstances
824. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
s. 824 Special Needs Pensions
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
| Method statement |
Step 1. | Add up: (a) the amount that, if the person’s partner had not died, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday; and (b) the amount that, if the partner had not died, would have been payable to the partner on the pension payday immediately before the first available bereavement adjustment payday; the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for subsection 825, would have been payable to the person on the pension payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the bereavement lump sum period. |
Step 5. | Multiply the partner’s instalment component by the number of pension paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Adjustment of rate of person’s special needs pension
825. If:
(a) a person is qualified for payments under this Subdivision; and
(b) the person does not elect under subsection 822 (2) not to receive payments under this Subdivision;
the rate of the person’s special needs pension during the bereavement period is worked out as follows:
(c) during the bereavement rate continuation period, the rate of special needs pension payable to the person is the rate at which the pension would have been payable to the person if the person’s partner had not died;
(d) during the bereavement lump sum period (if any), the rate at which special needs pension is payable to the person is the rate
Special Needs Pensions s. 825
at which the special needs pension would be payable to the person apart from this Subdivision.
Effect of death of person entitled to payments under this Subdivision
826. If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person’s partner before the person dies;
there is payable, to such person as the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
| Method statement |
Step 1. | Add up: (a) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person on the pension payday immediately after the day on which the person dies; and (b) the amount that, if neither the person nor the person’s partner had died, would have been payable to the person’s partner on that pension payday; the result is called the combined pensioner couple rate. |
Step 2. | Work out the amount that, but for section 825, would have been payable to the person on the pension payday immediately after the day on which the person died if the person had not died: the result is called the person’s individual rate. |
Step 3. | Take the person’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component. |
Step 4. | Work out the number of pension paydays in the period that starts on the day after the person dies and ends on the day on which the bereavement period ends. |
Step 5. | Multiply the partner’s instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section. |
s. 827 Special Needs Pensions
Matters affecting payment of benefits under this Subdivision
827. (1) If:
(a) a person is qualified for payments under this Subdivision and in relation to the death of the person’s partner; and
(b) after the person’s partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person’s partner except to the extent (if any) that the amount exceeds the amount payable to the person under this Subdivision;
(e) the amount payable to the person under this Subdivision is to be reduced by the amount referred to in paragraph (b).
(2) If:
(a) a person is qualified for payments under this Subdivision in relation to the death of the person’s partner; and
(b) an amount to which the person’s partner would have been entitled if the person’s partner had not died has been paid under this Act or under Part III of the Veterans’ Entitlements Act, within the bereavement period, into an account with a bank, credit union or building society (in this subsection called the “financial institution”); and
(c) the financial institution pays to the person, out of the account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, in spite of anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person’s partner or anyone else in respect of the payment of that money to the person.
Subdivision B—Death of dependent or maintained child
Bereavement payments on death of dependent or maintained child
828. If:
(a) a person is receiving a special needs pension; and
(b) a dependent or maintained child of the person dies; and
(c) immediately before the child died, the person’s special needs pension rate included:
(i) a dependent child add-on in respect of the child; or
(ii) guardian allowance in respect of the child;
Special Needs Pensions s. 828
the person is qualified for payments under this Subdivision to cover the bereavement period.
Note 1: section 829 provides for special needs pension to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 2: the additional payments preserved by this Subdivision are:
• dependent child add-on:
• guardian allowance;
• additional rent assistance.
Continued payment of child-related amounts
829. If a person is qualified for payments under this Subdivision in relation to the death of a dependent or maintained child, the person’s special needs pension rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s ordinary income free area and maintenance income free area.
Subdivision C—Death of recipient
Death of recipient
830. (1) If:
(a) a person is receiving a special needs pension; and
(b) either:
(i) the person is not a member of a couple; or
(ii) the person is a member of a couple and the person’s partner:
(a) is not receiving a social security pension; and
(b) is not receiving a social security benefit; and
(c) is not receiving a service pension; and
(c) the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the pension payday after the person’s death if the person had not died.
(2) If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.
Note 1: for amounts owing to the recipient before the recipient’s death see section 805.
Note 2: for death of a person qualified for bereavement payments under Subdivision A see section 826.
s. 831 Family Allowance
PART 2.17—FAMILY ALLOWANCE
Division 1—Family allowance child status
Family allowance child
831. (1) Subject to subsections (2) and (3) and sections 832 to 837, each dependent child of a person is also a family allowance child of that person.
(2) If the male member of a couple has a dependent child, the dependent child is taken to be the dependent child of the female member of the couple.
(3) Subsection (2) does not apply if family allowance is not payable to the female for the child for some reason other than that the child is not her dependent child.
Note: for “dependent child” see subsections 5 (2) to (9).
FA child—prescribed student child not included
832. A dependent child cannot be a family allowance child if the child:
(a) has turned 16; and
(b) is a prescribed student child.
FA child—child over 18
833. (1) Subject to subsections (2), (3) and (4), a dependent child who has turned 18 cannot be a family allowance child.
(2) A dependent child who has turned 18 may be a family allowance child if a person would, but for subsection (1), be qualified for:
(a) family allowance supplement; or
(b) a double orphan pension; or
(c) a child disability allowance;
for the child.
(3) A dependent child who has turned 18 may be a family allowance child if:
(a) a person is receiving a social security or service pension or a social security benefit; and
(b) the rate of the pension or benefit is increased by reference to the child.
(4) A dependent child who has turned 18 may be a family allowance child if a person or the person’s partner:
(a) is not receiving family allowance supplement; and
(b) lodges a claim for family allowance supplement; and
Family Allowance s. 833
(c) is not precluded by the taxable income test from receiving family allowance supplement:
in respect of the child.
FA child—child in approved care organisation care
834. A dependent child cannot be a family allowance child of a person if an approved care organisation is qualified for family allowance for the child.
FA child—residence requirements
835. A dependent child cannot be a family allowance child unless:
(a) the child is an Australian resident; or
(b) the child is a dependent child of an Australian resident and is living with that Australian resident.
FA child—child absent from Australia for more than 3 years
836. (1) If:
(a) a dependent child of a person leaves Australia at any time on or after 18 May 1986; and
(b) before the child leaves Australia, the person is receiving family allowance and the rate of that allowance is calculated by reference to the child; and
(c) the child continues to be absent from Australia for more than 3 years;
the child ceases to be a family allowance child of the person at the end of the period of 3 years commencing on the day on which the child leaves Australia.
(2) Subsection (1) ceases to apply to the dependent child if the child returns to Australia.
(3) If:
(a) a dependent child who has been absent from Australia for less than 3 years returns to Australia; and
(b) the child leaves Australia again within 3 months after returning to Australia;
the following provisions have effect for the purposes of subsections (1) and (2):
(c) the child is to be taken to have continued to be absent from Australia during the period during which the child was in Australia;
(d) the period of the child’s absence from Australia is to be taken to include the period during which the child was in Australia.
(4) If:
(a) a dependent child ceases to be a family allowance child of a person under subsection (1) or this subsection; and
s. 836 Family Allowance
(b) the child returns to Australia; and
(c) the child leaves Australia again within 3 months after returning to Australia;
the child ceases to be a family allowance child of the person when the child leaves Australia as mentioned in paragraph (c).
(5) Subsection (4) ceases to apply to the dependent child if the child returns to Australia.
(6) A dependent child who was outside Australia on 18 May 1986 is to be taken, for the purposes of this section, to have left Australia on 18 May 1986.
FA child—receipt of foreign “family allowance” in respect of child outside Australia
837. A dependent child of a person cannot be a family allowance child of the person during a period if:
(a) the child is outside Australia; and
(b) a payment that is similar to family allowance has been, or is being, made by a foreign country to the person for the child during that period.
Division 2—Qualification for and payability of family allowance
Subdivision A—Qualification
Qualification for individual family allowance
838. A person is qualified for family allowance if:
(a) the person has at least one FA child; and
(b) the person is an Australian resident.
Note: for “Australian resident” see section 7.
Qualification for approved care organisation family allowance
839. (1) An approved care organisation is, subject to subsections (2), (3) and (4), qualified for family allowance for a young person if:
(a) the young person is a client of the organisation; and
(b) the young person is an Australian resident; and
(c) no person is receiving family allowance for the young person.
(2) If the young person has not turned 16, the organisation is not qualified for family allowance for the young person if the young person:
(a) is not a full-time student; and
(b) is in receipt of income from employment; and
(c) the rate of that income exceeds $100 per week.
Note: the amount referred to in paragraph (2) (c) is indexed annually in line with CPI increases (see sections 1191 to 1194).
Family Allowance s. 839
(3) If the young person has turned 16, the organisation is not qualified for family allowance for the young person if the young person is a prescribed student child.
Note: for “approved care organisation” see subsection 6 (1) and section 35.
(4) An approved care organisation is not qualified for family allowance for a young person if the young person is receiving:
(a) a social security pension; or
(b) a social security benefit; or
(c) payment under a program included in the programs known as Labour Force Programs.
Qualification for family allowance ceases after 3 year absence of recipient from Australia
840. (1) If:
(a) a person left, or leaves, Australia on or after 18 May 1986; and
(b) before leaving, the person was in receipt of family allowance; and
(c) the person continues to be absent from Australia for more than 3 years;
the person is not qualified for family allowance at any time after the first 3 years of the absence while the person remains absent from Australia.
(2) If:
(a) a person who has been absent from Australia is not qualified for family allowance because of the application of subsection (1), or a previous application of this subsection, in relation to the person’s absence; and
(b) the person returns to Australia; and
(c) within 3 months after so returning, the person leaves Australia again;
the person is not qualified for family allowance at any time during the person’s absence from Australia that started when the person so left Australia.
(3) This section applies in relation to a person (including a child) who was outside Australia on 18 May 1986 as if the person had left Australia on 18 May 1986.
Subdivision B—Payability
Family allowance not payable in some circumstances
841. (1) Even though a person is qualified for family allowance, the allowance may not be payable to the person because:
(a) the allowance has not commenced to be payable (see sections 842 and 860); or
s. 841 Family Allowance
(b) another person is receiving the full amount of family allowance for the person’s child (see section 846).
(2) Family allowance is not payable to a person if the person’s family allowance rate would be nil.
Family allowance generally not payable before claim
842. Subject to sections 844 and 845, family allowance is not payable to a person or an approved care organisation before the person’s or approved care organisation’s provisional commencement day (identified under section 843).
Provisional commencement day
General rule
843. (1) Subject to subsection (2), a person’s or approved care organisation’s provisional commencement day is the day on which the person or organisation claims family allowance.
Initial incorrect claim followed by claim for family allowance
(2) If:
(a) a person or organisation makes a claim (in this subsection called the “initial claim”) for:
(i) a family allowance supplement, a child disability allowance or a double orphan pension; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a family allowance; and
(b) on the day on which the person or organisation makes the initial claim, the person or organisation is qualified for family allowance; and
(c) the person or organisation subsequently makes a claim for family allowance; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person or organisation;
the person’s or organisation’s provisional commencement day is the day on which the person or organisation made the initial claim.
Backdating—birth of child
844. (1) If:
(a) a person has a dependent child; and
(b) the person’s provisional commencement day is within 1 month after the day on which the child is born; and
(c) the person is qualified for family allowance at some time in the period between the birth of the child and the provisional commencement day;
Family Allowance s. 844
family allowance can become payable to the person before the provisional commencement day but cannot become payable to the person before the first day in the period on which the person is qualified.
(2) If:
(a) a person has 3 or more dependent children born during the same multiple birth; and
(b) the person’s provisional commencement day is within 13 weeks of the birth of the dependent children; and
(c) the person is qualified for family allowance at some time in the period between the birth of the children and the provisional commencement day;
family allowance can become payable to the person before the provisional commencement day but cannot become payable to the person before the first day in the period on which the person is qualified.
Note: for “provisional commencement day” see section 843.
Backdating—new client
845. If:
(a) a young person becomes a client of an approved care organisation; and
(b) the organisation’s provisional commencement day is within 1 month after the day on which the young person becomes a client of the organisation; and
(c) the organisation is qualified for family allowance at some time in the period between the day the young person becomes a client and the provisional commencement day;
family allowance can become payable to the organisation before the provisional commencement day but cannot become payable to the organisation before the first day in the period on which the organisation is qualified.
Note: for “provisional commencement day” see section 843.
Family allowance not payable to 2 people for the same child
846. If:
(a) 2 people are each qualified for family allowance for the same child; and
(b) the Secretary has not made a declaration under subsection 868 (1) in respect of family allowance for the child; and
(c) one of the people is receiving family allowance for the child; and
(d) the child is the only FA child of the other person;
family allowance is not payable to that other person.
s. 847 Family Allowance
Division 3—Claim for family allowance
Need for a claim
847. (1) A person who wants to be granted family allowance must make a proper claim for that allowance.
Note: for “proper claim”—see section 848 (form), section 849 (manner of lodgment) and section 850 (residence/presence in Australia).
(2) An approved care organisation that wants to be granted family allowance must make a proper claim for that allowance.
(3) For the purposes of subsections (1) and (2), where:
(a) a claim for family allowance is made by or on behalf of a person or approved care organisation; and
(b) at the time the claim is made, the claim cannot be granted because the person or approved care organisation is not qualified for family allowance;
the claim is to be taken to have not been made.
Form of claim
848. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
849. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) Subject to subsection (3), a place or person approved under subsection (1) must be a place or person in Australia.
(3) The Secretary may approve a place or person outside Australia under subsection (1) for the purpose of lodgment of claims made under an international agreement.
Note: for international agreements see Part 4.1.
Claimant must be Australian resident and in Australia
850. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note: for “Australian resident” see subsection 7 (2).
Family Allowance s. 851
Division 4—Determination of claim
Secretary to determine claim
851. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
852. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person or approved care organisation is qualified for a family allowance; and
(b) the allowance is payable.
Date of effect of determination
853. (1) Subject to subsections (2), (3) and (4), a determination under section 852 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s or organisation’s claim for family allowance; and
(b) a notice is given to the person or organisation advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting the person’s or organisation’s claim for family allowance; and
(b) a notice is given to the person or organisation advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
s. 853 Family Allowance
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person or organisation sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s or organisation’s claim for family allowance; and
(b) no notice is given to the person or organisation advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240 for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 5—Rate of family allowance
Rate struck for allowance period
854. If the rate of the family allowance payable to a person in a calendar year has been worked out in accordance with the Family Allowance Rate Calculator at the end of section 1069, the rate of family allowance payable to the person only has to be worked out again during that calendar year if:
(a) the person makes a request under section 859 (request to change appropriate tax year); or
(b) the person notifies the Department or an officer that a notifiable event has occurred in relation to the person.
How to work out a person’s family allowance rate
Individuals
855. (1) The rate of family allowance payable to a person (other than an institution) with an FA child or FA children is worked out using the Family Allowance Rate Calculator at the end of section 1069.
Approved care organisations
(2) The rate of family allowance payable to an approved care organisation for a child is $24.80 per fortnight.
Note: the amount referred to in subsection (2) is indexed annually in line with CP1 increases (see sections 1191 to 1194).
Family Allowance s. 856
Special determinations
856. The Secretary may determine that an FA child of a person is an FA child to whom item 3 of Table B in point 1069-B1 of the Family Allowance Rate Calculator applies if:
(a) the Secretary has directed under section 864 that the whole or a part of the family allowance payable to the person is to be paid to a specified person or group of people; and
(b) the Secretary has directed under section 864 that the whole or a part of the family allowance payable to someone else is also to be paid to that specified person or group.
Secretary may determine that an event is an FA assumed notifiable event
857. The Secretary may determine that an event that is specified in some or all of the notices given under subsection 873 (1) is to be an FA assumed notifiable event for the purposes of point 1069-D4 of the Family Allowance Rate Calculator at the end of section 1069.
Secretary may specify in a subsection 873 (1) notice that an event is an FA notifiable event
858. If the Secretary gives a person a notice under subsection 873 (1) relating to the payment of family allowance to the person, the Secretary may specify in the notice that an event described in the notice is a notifiable event for the purposes of point 1069-D5 of the Family Allowance Rate Calculator at the end of section 1069.
FA recipient may ask Secretary to change appropriate tax year
859. (1) If:
(a) the rate of a person’s family allowance has been reduced because of the taxable income test provided for in Module D of the Family Allowance Rate Calculator at the end of section 1069; and
(b) the person asks the Secretary to make a determination under this section; and
(c) the person’s taxable income for the tax year in which the request is made is likely to be less than 75% of the person’s taxable income for the tax year that is the appropriate tax year immediately before the request is made;
the Secretary must determine that the appropriate tax year, for the purposes of applying that Module to the person for a payday after the day on which the request is made, is the tax year in which the request is made.
(2) A request under paragraph (1) (b) must be made in writing, in accordance with a form approved by the Secretary.
s. 860 Family Allowance
Division 6—Payment of family allowance
Commencement of family allowance
860. Family allowance becomes payable to a person or an approved care organisation on the first day on which:
(a) the person or organisation is qualified for the pension; and
(b) no provision of this Act makes a pension not payable to the person or organisation.
Note 1: for qualification see sections 838 (person) and 839 (approved care organisation).
Note 2: for the circumstances when family allowance is not payable see section 841.
Payment by instalments
861. (1) A full instalment of family allowance is payable to a person or approved care organisation on each family payment payday on which:
(a) the person or organisation is qualified for family allowance; and
(b) family allowance is payable to a person or organisation.
(2) If the amount that is payable to a person or approved care organisation on a family payment payday is not a multiple of 5 cents, the amount is to be decreased to the nearest multiple of 5 cents.
Effect on instalments of backdating claim
862. If:
(a) a person or approved care organisation lodges a claim for family allowance on a particular day (in this section called the “claim day”); and
(b) the person’s or organisation’s provisional commencement day is before the claim day;
any instalment of family allowance that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a family payment payday—on that day; or
(d) the first family payment payday after the claim.
Note: for “provisional commencement day” see section 843.
Manner of payment
863. A person’s or approved care organisation’s family allowance is, subject to section 864, to be paid:
(a) to that person or organisation; and
(b) in the manner directed by the Secretary.
Nominee payments
864. (1) The Secretary may direct that the whole, or a part, of the amount of family allowance payable to a person or approved care organisation is to be paid to someone else on behalf of the person or organisation.
Family Allowance s. 864
(2) If the Secretary makes a direction under subsection (1), the family allowance is to be paid in accordance with the direction.
Payment into bank account etc.
865. (1) The Secretary may direct that the whole or a part of the amount of family allowance payable to a person or approved care organisation is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person or organisation to whom the family allowance is payable.
(3) The account may be an account that is maintained by a person or organisation to whom the family allowance is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the family allowance is to be payable in accordance with the direction.
Where family payment payday would fall on public holiday etc.
866. If the Secretary is satisfied that an amount of family allowance that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of allowance after death
867. (1) Where:
(a) a family allowance is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of family allowance payable to him or her; and
(d) another person or approved care organisation applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person or organisation as the case may be, who, in the Secretary’s opinion, is best entitled to it.
(2) Where the Secretary pays an amount of family allowance under subsection (1), the Commonwealth has no further liability to any person or organisation in respect of that amount of family allowance.
s. 868 Family Allowance
Secretary may make declaration where 2 people qualified for family allowance for the same child
868. (1) If the Secretary is satisfied that 2 people are each qualified for family allowance for the same child, the Secretary is to make a declaration:
(a) stating that the Secretary is satisfied that the 2 people are each qualified for family allowance for the child; and
(b) specifying the share of the family allowance for the child that each of the 2 people is to receive.
(2) If the child is one of 3 or more children who were born during the same multiple birth, the Secretary is to specify in the declaration under subsection (1) the manner in which multiple birth allowance under point 1069-C1 of the Family Allowance Rate Calculator is to be dealt with.
(3) Without limiting subsection (2), the Secretary may specify that the whole of the multiple birth allowance is to be paid to one of the 2 people involved.
(4) If the Secretary makes a declaration under subsection (1), the Secretary is to give each of the 2 people involved notice of the declaration.
Note 1: until the declaration under this section is made only one of the 2 people involved can receive family allowance for the child—see section 846.
Note 2: for the effect of a determination under this section on the calculation of family allowance rates see points 1069-B3 and 1069-C3 of the Family Allowance Rate Calculator.
Division 7—Protection of family allowance
Family allowance to be absolutely inalienable
869. (1) Subject to subsection (2) and section 1359, family allowance is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of family allowance payable to a person or approved care organisation where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
870. (1) If:
(a) a person or approved care organisation has an account with a financial institution; and
Family Allowance s. 870
(b) instalments of family allowance payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
| Method statement |
Step 1. | Work out the total amount of family allowance payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 8—Recipient obligations
References to recipient
871. In this Division, a reference to a recipient is a reference to:
(a) a person to whom family allowance is being paid; or
(b) an approved care organisation to which family allowance is being paid.
Application of family allowance
872. If family allowance is payable to a person or an approved care organisation for a child, the person or organisation must apply the allowance to the maintenance, training and advancement of the child.
Secretary may require notice of the happening of an event or a change in circumstances
873. (1) The Secretary may give a recipient of family allowance a notice that requires the recipient to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the recipient becomes aware that a specified event or change of circumstances is likely to occur.
s. 873 Family Allowance
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the allowance.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the recipient is to give the information to the Department; and
(d) must specify the period within which the recipient is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the recipient becomes aware that the event or change of circumstances is likely to occur.
(5) A recipient must not refuse or fail to comply with a notice under subsection (1) to the extent that the recipient is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A recipient must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of family allowance
874. (1) The Secretary may give a recipient of family allowance a notice that requires the recipient to give the Department a statement about a matter that might affect the payment of the allowance to the recipient.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
Family Allowance s. 874
(d) must specify the period within which the recipient is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A recipient must not refuse or fail to comply with a notice under subsection (1) to the extent that the recipient is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A recipient must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
875. (1) A recipient is not excused from giving information pursuant to a notice under section 873 or 874 on the ground that the information may tend to incriminate the recipient.
(2) Information given by a recipient pursuant to a notice under section 873 or 874 is not admissible in evidence against the recipient in a criminal proceeding other than a proceeding under, or arising out of, subsection 873 (5) or (6) or 874 (5) or (6).
Division 9—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
876. (1) A determination that:
(a) a person’s or an approved care organisation’s claim for family allowance is granted; or
(b) a family allowance is payable to a person or organisation; continues in effect until:
(c) the allowance ceases to be payable under section 877 or 878; or
s. 876 Family Allowance
(d) a further determination in relation to the allowance under section 882 has taken effect.
Note 1: for paragraph (a) see section 852.
Note 2: for paragraph (b) see section 883—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of family allowance continues in effect until:
(a) the allowance becomes payable at a lower rate under section 879; or
(b) a further determination in relation to the allowance under section 880 or 881 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 873 notification obligations
877. If:
(a) a person or an approved care organisation who is receiving family allowance is given a notice under section 873; and
(b) the notice requires the person or organisation to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person or organisation informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person or organisation ceases to be qualified for the allowance; or
(ii) the allowance would, but for this subsection, cease to be payable to the person or organisation;
the allowance continues to be payable to the person or organisation until the end of the notification period and then ceases to be payable to the person or organisation.
Note: if the person or organisation informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s or organisation’s allowance, there is no automatic rate reduction and a determination under section 881 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 873 notification obligations
878. If:
(a) a person or an approved care organisation who is receiving family allowance is given a notice under section 873; and
Family Allowance s. 878
(b) the notice requires the person or organisation to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person or organisation does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person or organisation ceases to be qualified for the allowance; or
(ii) the allowance ceases to be payable to the person or organisation;
the allowance ceases to be payable to the person or organisation immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 873 notification obligations
879. If:
(a) a person or approved care organisation who is receiving family allowance is given a notice under section 873; and
(b) the notice requires the person or organisation to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person or organisation does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person’s rate of allowance is to be reduced;
the allowance becomes payable to the person or organisation at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Subdivision D—Determinations
Rate increase determination
880. If the Secretary is satisfied that the rate at which family allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 884.
s. 881 Family Allowance
Rate reduction determination
881. If the Secretary is satisfied that the rate at which family allowance is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 879 (see subsection 876 (2)).
Note 2: for the date of effect of a determination under this section see section 885.
Cancellation or suspension determination
882. If the Secretary is satisfied that family allowance is being, or has been, paid to a person or an approved care organisation to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 877 or 878 (see subsection 876 (1)).
Note 2: for the date of effect of a determination under this section see section 885.
Resumption of payment after cancellation or suspension
883. (1) If the Secretary:
(a) cancels or suspends a person’s or an approved care organisation’s family allowance under section 882; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person or organisation did not receive family allowance that was payable to the person or organisation; or
(b) the person or organisation is not receiving family allowance that is payable to the person or organisation;
the Secretary is to determine that family allowance was or is payable to the person or organisation.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 884.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
884. (1) The day on which a determination under section 880 or 883 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section.
Family Allowance s. 884
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a family allowance; and
(b) a notice is given to the person or an approved care organisation to whom the allowance is payable advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a family allowance; and
(b) a notice is given to the person or organisation to whom the allowance is payable advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the person or organisation sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a family allowance; and
(b) no notice is given to the person or organisation to whom the allowance is payable advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240 for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
s. 884 Family Allowance
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If the favourable determination is made following a person or organisation having advised the Department of a change in circumstances, the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person or organisation, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person or organisation has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because
Family Allowance s. 884
of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
885. (1) The day on which a determination under section 881 or 882 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
Contravention of Act
(4) If:
(a) the person or approved care organisation whose allowance is affected by the adverse determination has contravened a provision of this Act (other than section 874, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person or organisation has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the allowance has been paid to a person or organisation when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
s. 885 Family Allowance
False statement or misrepresentation—rate reduction
(6) If:
(a) a person or organisation has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the allowance was paid to a person or organisation was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 10—Bereavement payments (death of dependent child)
Continuation of qualification for family allowance for bereavement rate continuation period where recipient’s only FA child dies
886. If:
(a) a person is receiving family allowance for a dependent child; and
(b) the child dies; and
(c) the child was the only FA child of the person; and
(d) immediately before the child died:
(i) the person was receiving a social security pension or a benefit whose rate included:
(a) a dependent child add-on for the child; or
(b) guardian allowance for the child; or
(ii) the person was receiving family allowance supplement for the child; or
(iii) the person was receiving a service pension whose rate included:
(a) a dependent child add-on for the child; or
(b) guardian allowance in respect of the child;
the person is to be qualified for family allowance during the bereavement rate continuation period as if the child had not died.
Bereavement payments on death of dependent child
887. If:
(a) a person is receiving family allowance; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s family allowance rate included a FAS child rate for the child; and
(d) immediately before the child died:
(i) the person was receiving a social security pension or a benefit whose rate included:
(a) a dependent child add-on for the child; or
(b) guardian allowance for the child; or
Family Allowance s. 887
(ii) the person was receiving family allowance supplement for the child; or
(iii) the person was receiving a service pension whose rate included:
(a) a dependent child add-on for the child; or
(b) guardian allowance in respect of the child;
the person is qualified for payments under this Division to cover the bereavement period.
Note 1: section 888 provides for family allowance to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s taxable income test free areas.
Note 2: section 889 provides for a lump sum to be paid to the person if the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new family allowance rate and the rate at which the allowance would have been paid if the child had not died but were disregarded for the purposes of working out the person’s income test free areas.
Note 3: section 890 provides for an additional lump sum in some circumstances.
Continued payment of family allowance
888. If a person is qualified for payments under this Division in relation to the death of a dependent child, the person’s family allowance rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s taxable income free area.
Lump sum payable in some circumstances
889. If:
(a) a person is qualified for payments under this Division in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
s. 889 Family Allowance
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
| Method statement |
Step 1. | Work out the person’s family allowance rate on the payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. Note: section 888 applies in working out the amount of this instalment because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the rate that would have been the person’s family allowance rate on the payday immediately before the first available bereavement adjustment payday if the person’s family allowance rate were not calculated under section 888: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Additional lump sum payable in some circumstances
890. (1) A lump sum (worked out using the lump sum calculator at the end of this subsection) is payable to a person if:
(a) the person is qualified for payments under this Subdivision in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, the only person receiving family allowance for the child; and
(d) someone else was, immediately before the child died, receiving another child-related amount for the child.
Family Allowance s. 890
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
| Method statement |
Step 1. | Add up all the child-related amounts that were payable to the other person on the payday immediately before the first available bereavement adjustment payday: the result is called the other person’s continued rate. |
Step 2. | Add up all the child related amounts that would have been payable to the other person on the payday immediately before the first available bereavement adjustment payday if the other person’s pension or allowance rate were not calculated under a bereavement rate adjustment provision: the result is called the other person’s new rate. |
Step 3. | Take the other person’s new rate away from the other person’s continued rate: the result is called the other person’s deceased child component. |
Step 4. | Work out the number of paydays in the bereavement lump sum period. |
Step 5. | Multiply the other person’s deceased child component by the number of paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the family allowance recipient under this section. |
(2) The person who is qualified for payments under this Division may be entitled to more than one lump sum under this section if:
(a) there is more than one other person who was, immediately before the child died, receiving some other child-related amount in respect of the child; or
(b) the other person was, immediately before the child died, receiving 2 or more child-related amounts for the child.
(3) For the purposes of applying the Lump Sum Calculator, the reference to a payday is a reference to a payday for the pension or allowance that constitutes or includes the child-related amount concerned.
s. 891 Family Allowance Supplement
PART 2.18—FAMILY ALLOWANCE SUPPLEMENT
Division 1—Family allowance supplement child status
Family allowance supplement child
891. Subject to sections 892, 893 and 894, a dependent child of a person is also a family allowance supplement child of the person if the child is present in Australia and:
(a) the person is receiving family allowance in respect of the child; or
(b) the person is a member of a couple and the person’s partner:
(i) is outside Australia; and
(ii) is receiving family allowance in respect of the child.
Note: for family allowance see Part 2.17.
FAS child—prescribed student child not included
892. A dependent child cannot be a family allowance supplement child if the child:
(a) has turned 16; and
(b) is a prescribed student child.
FAS child—receipt of other periodic payments for child
893. (1) A dependent child of a person cannot be a family allowance supplement child of the person if:
(a) the person or the person’s partner is receiving a periodic payment under a law of the Commonwealth and the law provides for an increase in the rate of payment by reference to the child; or
(b) the person or the person’s partner is receiving a periodic payment under a scheme administered by the Commonwealth and the scheme provides for an increase in the rate of payment by reference to the child; or
(c) the person or the person’s partner is receiving a payment under a law of a foreign country and the payment is similar in character to a payment referred to in paragraph (a) or (b).
(2) Subsection (1) does not apply to a periodic payment that is a compensation payment.
FAS child—taxation of “unearned” income
894. A dependent child cannot be a family allowance supplement child if subsection 13 (1) of the Income Tax Rates Act 1986 applies or applied in relation to the last year of income of the child.
Note: subsection 13 (1) of the Income Tax Rates Act 1986 applies to certain young people whose taxable income from certain sources (what may be loosely referred to as their “unearned” income) exceeds $416 a year.
Family Allowance Supplement s. 895
Division 2—Qualification for and payability of family allowance supplement
Subdivision A—Qualification
Qualification for family allowance supplement
895. (1) A person is qualified for family allowance supplement if:
(a) the person has at least one family allowance supplement child; and
(b) neither the person nor the person’s partner is receiving a social security pension or benefit; and
(c) the person is in Australia; and
(d) the value of the person’s assets does not exceed $322,750.
Note 1: for “Australian resident” see section 7.
Note 2: for the assets that are to be disregarded in valuing a person’s assets see section 1118.
Note 3: for the valuation of an asset that is subject to a charge or encumbrance see section 1121.
Note 4: the amount referred to in paragraph (1) (d) is indexed annually in line with CPI increases (see sections 1191 to 1194).
(2) For the purposes of paragraph (1) (d), the value of the assets of a person who is a member of a couple is to be taken to include the value of the assets of the person’s partner.
(3) A person is not qualified for family allowance supplement if:
(a) the person’s taxable income for the appropriate tax year for the FAS period is unknown; or
(b) the taxable income of the person’s partner for the appropriate tax year for the FAS period is unknown.
Note: for the circumstances in which a person’s taxable income is to be treated as “unknown” see points 1070-D10 and 1070-D11 of the Family Allowance Supplement Rate Calculator.
(4) Subsection (3) does not apply to a person who is receiving payments under:
(a) the AUSTUDY scheme; or
(b) the ABSTUDY scheme; or
(c) the Post-Graduate Awards Scheme.
Note: a person receiving these payments is not subject to the family allowance supplement taxable income test (see point 1070-D1 of the Family Allowance Supplement Rate Calculator).
Subdivision B—Payability
Family allowance supplement not payable in some circumstances
896. (1) Even though a person is qualified for family allowance supplement, the family allowance supplement may not be payable to the person because:
(a) the family allowance supplement has not commenced to be payable (see sections 897 and 919); or
s. 896 Family Allowance Supplement
(b) another person is receiving the full amount of family allowance supplement for the person’s child (see section 901).
(2) Family allowance supplement is not payable to a person if the person’s family allowance rate would be nil.
Family allowance supplement generally not payable before claim
897. Family allowance supplement is not payable to a person before the person’s provisional commencement day (identified under section 898).
Provisional commencement day
General rule
898. (1) Subject to subsection (2) and sections 899 and 900, a person’s provisional commencement day is the day on which the person claims family allowance supplement.
Initial incorrect claim followed by claim for family allowance supplement
(2) If:
(a) a person makes a claim (in this subsection called the “initial claim”) for:
(i) a family allowance, a child disability allowance or a double orphan pension; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to family allowance supplement; and
(b) on the day on which the person makes the initial claim, the person is qualified for family allowance supplement; and
(c) the person subsequently makes a claim for family allowance supplement; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Claim within 4 weeks of birth
899. (1) If:
(a) a person has a dependent child; and
(b) a person lodges a claim for family allowance supplement in respect of the dependent child within 4 weeks of the birth of the dependent child;
the person’s provisional commencement day is the day on which the dependent child is born.
Family Allowance Supplement s. 899
(2) If:
(a) a person has 3 or more dependent children born during the same multiple birth; and
(b) a person lodges a claim for family allowance supplement in respect of one of the dependent children within 13 weeks of the birth of the dependent children;
the person’s provisional commencement day is the day on which the dependent children are born.
Claim within 6 weeks of ceasing other payments
900. (1) If:
(a) either:
(i) a person or the person’s partner ceases receiving a periodic payment under a law of the Commonwealth and the law provides for an increase in the rate of payment by reference to a dependent child of the person; or
(ii) a person or the person’s partner ceases receiving a periodic payment under a scheme administered by the Commonwealth and the scheme provides for an increase in the rate of payment by reference to a dependent child of the person; or
(iii) a person or the person’s partner ceases receiving a payment under a law of a foreign country and the payment is similar in character to a payment referred to in subparagraph (i) or (ii); and
(b) the person makes a claim for family allowance supplement within 6 weeks of ceasing to receive a payment referred to in paragraph (a); and
(c) the person is qualified for family allowance supplement in respect of the dependent child on the day on which the payment referred to in paragraph (a) ceases;
the person’s provisional commencement day is the day on which the payment referred to in paragraph (a) ceased.
(2) Subsection (1) does not apply to a periodic payment that is a compensation payment.
Family allowance supplement not payable to 2 people in respect of the same child
901. If:
(a) 2 people are each qualified for family allowance supplement for the same child; and
(b) the Secretary has not made a declaration under subsection 927 (1) in respect of family allowance supplement for the child; and
(c) one of the people is receiving family allowance supplement for the child; and
s. 901 Family Allowance Supplement
(d) the child is the only FAS child of the other person;
family allowance supplement is not payable to that other person.
Division 3—Claim for family allowance supplement
Need for a claim
902. (1) A person who wants to be granted family allowance supplement must make a proper claim for that allowance.
Note 1: “proper claim”—sec section 903 (form), section 904 (mariner of lodgment) and section 905 (residence/presence in Australia).
Note 2: for people continuing on FAS from one calendar year to the next, a claim made during the first calendar year will be taken to have been lodged on the first day of the next calendar year (see section 906).
(2) For the purposes of subsection (1), where:
(a) a claim for family allowance supplement is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for family allowance supplement;
the claim is to be taken to have not been made.
Form of claim
903. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
904. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
(2) A place or person approved under subsection (1) must be a place or person in Australia.
Claimant must be Australian resident and in Australia
905. A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note: for “Australian resident” see subsection 7 (2).
Date of lodgment of claim
906. (1) If:
(a) a family allowance supplement is payable to a person; and
Family Allowance Supplement s. 906
(b) the person lodges another claim for family allowance supplement during the FAS period;
the claim referred to in paragraph (b) is to be taken to be lodged on the day immediately following the end of the FAS period.
(2) If:
(a) a person has been paid family allowance supplement during the whole or a part of a FAS period; and
(b) the person lodges another claim for family allowance supplement within the period of 4 weeks after the end of the FAS period;
the claim referred to in paragraph (b) is to be taken to have been lodged on the day immediately following the end of the FAS period.
Division 4—Determination of claim
Secretary to determine claim
907. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
908. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for family allowance supplement; and
(b) the allowance is payable.
Date of effect of determination
909. (1) Subject to subsections (2), (3) and (4), a determination under section 908 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for family allowance supplement; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
s. 909 Family Allowance Supplement
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for family allowance supplement; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for family allowance supplement; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 5—Rate of family allowance supplement
How to work out the rate of a person’s family allowance supplement
910. A person’s family allowance supplement rate is worked out using the Family Allowance Supplement Rate Calculator at the end of section 1070.
Rate struck for allowance period
911. If the rate of the family allowance supplement payable to a person in a calendar year has been worked out in accordance with the Family Allowance Supplement Rate Calculator at the end of section 1070, the rate of family allowance supplement payable to the person only has to be worked out again during that calendar year if:
(a) the person makes a request under section 918; or
(b) the person notifies the Department or an officer of the occurrence of a notifiable event in relation to the person; or
Family Allowance Supplement s. 911
(c) the person’s family allowance supplement rate is to be recalculated under section 913 (amendment of tax assessment); or
(d) the person’s family allowance supplement rate is to be recalculated under section 914 (underestimate of taxable income); or
(e) the person’s family allowance supplement rate is to be recalculated under section 915 (failure to notify FAS notifiable event).
Notice estimating taxable income
912. (1) A person may give the Department or an officer a notice setting out the person’s estimate of the person’s taxable income for a tax year.
Note: for the consequences of underestimating taxable income see section 914.
(2) The Secretary is to accept the notice for the purpose of Module D of the Family Allowance Supplement Rate Calculator only if:
(a) the person does not have an assessed taxable income for that tax year; and
(b) either:
(i) that tax year has not ended; or
(ii) the Secretary is satisfied that the person is not required to lodge a return of income for that tax year under the Income Tax Assessment Act; or
(iii) the Secretary is satisfied that the person has lodged, or proposes to lodge, a return of income for that tax year under that Act.
Effect of amendment of assessed taxable income
913. If:
(a) a person’s rate of family allowance supplement has been worked out on the basis of an assessment of the person’s taxable income for a tax year; and
(b) the assessment is subsequently amended by:
(i) the Commissioner of Taxation; or
(ii) a tribunal; or
(iii) a court;
the person’s rate of family allowance supplement is to be recalculated on the basis of the person’s taxable income for that year according to the assessment as amended.
Note: for the date of effect of a determination by the Secretary giving effect to this section see sections 942 and 945.
s. 914 Family Allowance Supplement
Recalculation if taxable income underestimated by 25% or more
914. If:
(a) the Secretary makes a determination of a person’s family allowance supplement rate; and
(b) in making the determination, the Secretary has regard to:
(i) the person’s taxable income for a tax year; or
(ii) the person’s partner’s taxable income for a tax year; and
(c) that taxable income is an amount estimated by the person; and
(d) the Commissioner of Taxation subsequently makes an assessment of that taxable income; and
(e) the estimated amount is less than 75% of the amount assessed by the Commissioner;
the person’s family allowance supplement rate is to be recalculated on the basis of that taxable income as assessed by the Commissioner.
Note: for the date of effect of a determination giving effect to this section see section 946.
Recalculation if failure to notify FAS notifiable event
915. If:
(a) an FAS notifiable event occurs in relation to a person; and
(b) the person fails to notify the FAS notifiable event in accordance with section 930; and
(c) the Commissioner of Taxation subsequently makes an assessment of:
(i) the person’s taxable income for the tax year in which the FAS notifiable event occurs; or
(ii) the person’s partner’s taxable income for that tax year; and
(d) the person’s taxable income for that tax year is more than 125% of the person’s taxable income for the tax year that is, when the event occurs, the person’s base tax year; and
(e) the Secretary is satisfied that more than 25% of the difference between the person’s taxable incomes for the 2 tax years is directly attributable to the FAS notifiable event;
the person’s family allowance supplement rate is to be recalculated on the basis that the person’s appropriate tax year is the tax year in which the FAS notifiable event occurred.
Note 1: if the person notifies the FAS notifiable event, the person’s family allowance supplement rate will be recalculated under paragraph 911 (b).
Note 2: for the date of effect of a determination giving effect to this section see section 947.
Family Allowance Supplement s. 916
Secretary may determine that an event is an FAS assumed notifiable event
916. The Secretary may determine that an event that is specified in some or all of the notices given under subsection 930 (1) is to be an FAS assumed notifiable event for the purposes of point 1070-D6 of the Family Allowance Supplement Rate Calculator at the end of section 1070.
Secretary may specify in a subsection 930 (1) notice that an event is an FAS notifiable event
917. If the Secretary gives a person a notice under subsection 930 (1) relating to the payment of family allowance supplement to the person, the Secretary may specify in the notice that an event described in the notice is an FAS notifiable event for the purposes of point 1070-D7 of the Family Allowance Supplement Rate Calculator at the end of section 1070.
FAS recipient may ask Secretary to change appropriate tax year
918. (1) If:
(a) a person’s family allowance supplement rate has been reduced because of the taxable income test in Module D of the Family Allowance Supplement Rate Calculator; and
(b) the person asks the Secretary to make a determination under this section; and
(c) the person’s taxable income for the tax year in which the request is made is:
(i) less than 75% of the person’s taxable income for the appropriate tax year at the time when the request is made; or
(ii) less than the person’s taxable income free area;
the Secretary must determine that the appropriate tax year, for the purposes of applying that Module to the person from the first applicable FAS payday, is the tax year in which the request is made.
Note: for the date of effect of a determination increasing a person’s FAS rate because of a request under this section, see section 943.
(2) A request under paragraph (1) (b) must be made in writing and in accordance with a form approved by the Secretary.
Division 6—Payment of family allowance supplement
Commencement of family allowance supplement
919. Family allowance supplement becomes payable to a person on the first day on which:
(a) the person is qualified for family allowance supplement; and
(b) no provision of this Act makes family allowance supplement not payable to the person
s. 919 Family Allowance Supplement
Note 1: for qualifications see section 895.
Note 2: for the circumstances in which family allowance is not payable see section 896.
Payment by instalments
920. (1) A full instalment of family allowance supplement is payable to a person on each family payment payday on which:
(a) the person is qualified for the allowance; and
(b) the allowance is payable to the person.
(2) If the amount that is payable to a person on a family payment payday would include 0.5 cent, the amount is to be increased by 0.5 cent.
Effect on instalments of backdating claim
921. If:
(a) a person lodges a claim for family allowance supplement on a particular day (in this section called the “claim day”); and
(b) the person’s provisional commencement day is before the claim day;
any instalment of family allowance supplement that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a family payment payday—on that day; or
(d) the first family payment payday after the claim day.
Note: for “provisional commencement day” see section 898.
Manner of payment
922. A person’s family allowance supplement is, subject to section 923, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
923. (1) The Secretary may direct that the whole, or a part, of the amount of family allowance supplement payable to a person is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the family allowance supplement is to be paid in accordance with the direction.
Payment into bank account etc.
924. (1) The Secretary may direct that the whole or a part of the amount of family allowance supplement payable to a person is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the family allowance supplement is payable.
Family Allowance Supplement s. 924
(3) The account may be an account that is maintained by a person to whom the family allowance supplement is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the family allowance supplement is to be payable in accordance with the direction.
Where family payment payday would fall on public holiday etc.
925. If the Secretary is satisfied that an amount of family allowance supplement that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of family allowance supplement after death
926. (1) If:
(a) a family allowance supplement is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of family allowance supplement payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of family allowance supplement under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of family allowance supplement.
Secretary may make declaration where 2 people qualify for family allowance supplement for the same child
927. (1) If 2 people are each qualified for, and have claimed, family allowance supplement for the same child, the Secretary is to make a declaration:
(a) determining that family allowance supplement is payable to one of those people for the child; or
(b) determining that family allowance supplement for the child is to be shared between those people in the percentages specified in the declaration.
(2) If the Secretary makes a declaration under subsection (1), the Secretary is to give each of the people involved notice of the declaration.
s. 927 Family Allowance Supplement
Note 1: until a declaration is made family allowance supplement is payable to only one of the 2 people who are qualified for the family allowance supplement—see section 901.
Note 2: for the effect of a declaration under subsection (1) on the calculation of family allowance supplement rates, see points 1070-B2 and 1070-B3 of the Family Allowance Supplement Rate Calculator.
Division 7—Protection of family allowance supplement
Family allowance supplement to be absolutely inalienable
928. (1) Subject to subsection (2) and section 1359, family allowance supplement is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of family allowance supplement payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
929. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of family allowance supplement payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
| Method statement |
Step 1. | Work out the total amount of the family allowance supplement payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
Family Allowance Supplement s. 929
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 8—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
930. (1) The Secretary may give a person to whom a family allowance supplement is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the supplement.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
s. 930 Family Allowance Supplement
(a) acts, omissions, matters and things outside Australia whether of not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of family allowance supplement
931. (1) The Secretary may give a person to whom a family allowance supplement is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the supplement to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality of citizenship.
Self incrimination
932. (1) A person is not excused from giving information pursuant to a notice under section 930 or 931 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 930 or 931 is not admissible in evidence against the person in
Family Allowance Supplement s. 932
a criminal proceeding other than a proceeding under, or arising out of, subsection 930 (5) or (6) or 931 (5) or (6).
Division 9—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
933. (1) A determination that:
(a) a person’s claim for family allowance supplement is granted; or
(b) a family allowance supplement is payable to a person;
continues in effect until:
(c) the supplement ceases to be payable under section 934 or 935; or
(d) a further determination in relation to the supplement under section 939 has taken effect.
Note 1: for paragraph (a) see section 908.
Note 2: for paragraph (b) see section 940—this paragraph is relevant where the determination in question reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of family allowance supplement continues in effect until:
(a) the supplement becomes payable at a lower rate under section 936; or
(b) a further determination in relation to the supplement under section 937 or 938 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 930 notification obligations
934. If:
(a) a person who is receiving family allowance supplement is given a notice under section 930; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
s. 934 Family Allowance Supplement
(i) the person ceases to be qualified for the supplement; or
(ii) the supplement would, but for this section, cease to be payable to the person;
the supplement continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s supplement, there is no automatic rate reduction and a determination under section 938 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 930 notification obligations
935. If:
(a) a person who is receiving family allowance supplement is given a notice under section 930; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the supplement; or
(ii) the supplement ceases to be payable to the person;
the supplement ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 930 notification obligations
936. If:
(a) a person who is receiving family allowance supplement is given a notice under section 930; and
(b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
Family Allowance Supplement s. 936
(e) because of the occurrence of the event or change in circumstances, the person’s rate of supplement is to be reduced;
the supplement becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Subdivision D—Determinations
Rate increase determination
937. If the Secretary is satisfied that the rate at which family allowance supplement is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 941.
Rate reduction determination
938. If the Secretary is satisfied that the rate at which a family allowance supplement is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 936 (see subsection 933 (2)).
Note 2: for the date of effect of a determination under this section see section 944.
Cancellation or suspension determination
939. If the Secretary is satisfied that a family allowance supplement is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the supplement is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 934 or 935 (see subsection 933 (1)).
Note 2: for the date of effect of a determination under this section see section 944.
Resumption of payment after cancellation or suspension
940. (1) If the Secretary:
(a) cancels or suspends a person’s family allowance supplement under section 939; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive family allowance supplement that was payable to the person; or
(b) the person is not receiving family allowance supplement that is payable to the person;
s. 940 Family Allowance Supplement
the Secretary is to determine that family allowance supplement was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 941.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
941. (1) The day on which a determination under section 937 or 940 (in this section called the “favourable determination”) takes effect is worked out in accordance with this section and section 942.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a family allowance supplement; and
(b) a notice is given to the person to whom the supplement is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a family allowance supplement; and
(b) a notice is given to the person to whom the supplement is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
Family Allowance Supplement s. 941
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made in relation to a family allowance supplement; and
(b) no notice is given to the person to whom the supplement is payable advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review; and
(e) subsections (6), (7) and (8) do not apply to the determination;
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If the favourable determination is made following a person having advised the Department of a change in circumstances, the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Prescribed student child determination
(6) If:
(a) the favourable determination is made as a result of the Secretary forming the opinion for the purposes of subsections 5 (12) and (13) that a young person will not, or would not, receive payments under a prescribed educational scheme; and
(b) the Secretary is notified that the young person has been refused payment under a prescribed educational scheme within 28 days after the person is notified of that refusal;
the determination takes effect on the day when the determination is made or on such earlier or later day as is specified in the determination.
(7) If:
(a) the favourable determination is made because, under subsection 5 (13), a young person is not qualified to receive a payment under a prescribed educational scheme; and
(b) the young person, or another person, was previously in receipt of a payment under a prescribed educational scheme in respect of that young person, and the young person or other person has since ceased to receive that payment; and
(c) the Secretary was notified, within 28 days after the payment was granted, that it was no longer being received;
s. 941 Family Allowance Supplement
the determination takes effect on the day when the determination is made or such earlier or later day as is specified in the determination.
(8) If:
(a) the favourable determination is made because, under paragraph 5 (12) (c), a young person is not qualified to receive payments under any of the prescribed educational schemes; and
(b) no applications have been made for payments in respect of that young person under any of the prescribed educational schemes; and
(c) the Secretary is satisfied that it is reasonable for such applications not to be made; and
(d) the young person ceased to be a prescribed student child because of the operation of paragraph 5 (12) (c) within 3 months after becoming a prescribed student child;
the determination takes effect on the day on which the young person became a prescribed student child.
Other determinations
(9) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Amendment of assessment of taxable income
942. If:
(a) a determination of a person’s rate of family allowance supplement is made; and
(b) the determination is based on an assessment of the person’s taxable income for a tax year; and
(c) the assessment is subsequently amended by:
(i) the Commissioner of Taxation; or
(ii) a tribunal; or
(iii) a court; and
(d) the person’s taxable income for that year according to the assessment as amended is less than the person’s taxable income for that year according to the assessment that was amended; and
(e) the Secretary makes a determination varying the person’s rate of family allowance supplement to give effect to the recalculation required by section 913;
the later determination takes effect from:
(f) if the amendment of the assessment is made on application by the person—the day on which the earlier determination took effect; or
Family Allowance Supplement s. 942
(g) if the amendment of the assessment was made otherwise than on application by the person—the day on which the person notifies the Department or an officer of the amendment of the assessment.
Note: this subsection results in arrears being payable to the person for the period between the date of effect of the later determination and the day on which later determination is made.
Determination following recipient’s request under section 918
943. If:
(a) a person makes a request under paragraph 918 (1) (b); and
(b) as a result of the request, the Secretary determines that the person’s appropriate tax year is the tax year in which the request is made; and
(c) the Secretary makes a determination of the person’s family allowance supplement rate to give effect to the determination referred to in paragraph (b);
the determination of the new rate takes effect on:
(d) if the request was made within 60 days after the person is notified of the decision to reduce the person’s family allowance supplement rate under the taxable income test—the first family payment payday in the period starting on the day on which the decision was made; or
(e) if the request is made more than 60 days after the person is notified of the decision to reduce the person’s family allowance supplement rate under the taxable income test—the first family payment payday in the period starting on the day on which the request is made.
Date of effect of adverse determination
General
944. (1) The day on which a determination under section 938 or 939 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6) and sections 945 and 946, the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
s. 944 Family Allowance Supplement
Contravention of Act
(4) If:
(a) the person whose supplement is affected by the adverse determination has contravened a provision of this Act (other than section 931, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the family allowance supplement has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which the family allowance supplement was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Date of effect of variation of rate of family allowance supplement because of amendment of assessed taxable income
945. If:
(a) a determination of a person’s rate of family allowance supplement is made; and
(b) the determination is based on an assessment of a taxable income for a tax year; and
(c) the assessment is subsequently amended by:
(i) the Commissioner of Taxation; or
(ii) a tribunal; or
(iii) a court; and
(d) the taxable income for that year according to the assessment as amended is more than 125% of the taxable income for that year according to the assessment that has been amended; and
(e) the Secretary makes a determination varying the person’s rate of family allowance supplement to give effect to the recalculation required by section 913;
Family Allowance Supplement s. 945
the later determination takes effect on the day on which the earlier determination took effect.
Note 1: this subsection results in overpayments for the period between the earlier determination and the later determination and these overpayments may be recovered under Chapter 5 (Overpayments and debt recovery).
Note 2: if the amended assessment is not more than 125% of the original assessment, the date of effect of the determination made to give effect to the amendment is governed by section 944.
Underestimate of taxable income—date of effect of section 914 determination
946. If:
(a) the Secretary makes a determination of a person’s family allowance supplement rate; and
(b) in making the determination, the Secretary has regard to:
(i) the person’s taxable income for a tax year; or
(ii) the person’s partner’s taxable income for a tax year; and
(c) that taxable income is an amount estimated by the person; and
(d) the Commissioner of Taxation subsequently makes an assessment of that taxable income; and
(e) the estimated amount is less than 75% of the amount assessed by the Commissioner; and
(f) the Secretary makes a determination varying the person’s family allowance supplement rate, or cancelling the person’s family allowance supplement, to give effect to the recalculation required by section 914;
the later determination takes effect on the day on which the earlier determination took effect.
Note: this section gives rise to overpayments that may be recovered under Chapter 5.
Failure to notify FAS notifiable event—date of effect of section 915 determination
947. If:
(a) an FAS notifiable event occurs in relation to a person; and
(b) the person fails to notify the FAS notifiable event in accordance with section 930; and
(c) the Commissioner of Taxation subsequently makes an assessment of:
(i) the person’s taxable income for the tax year in which the FAS notifiable event occurs; or
(ii) the person’s partner’s taxable income for that tax year; and
(d) the person’s taxable income for that tax year is more than 125% of the person’s taxable income for the tax year that is, when the FAS event occurs, the person’s base tax year; and
s. 947 Family Allowance Supplement
(e) the Secretary is satisfied that more than 25% of the difference between the person’s taxable incomes for the 2 tax years is directly attributable to the FAS notifiable event; and
(f) the Secretary makes a determination varying the person’s family allowance supplement rate, or cancelling the person’s family allowance supplement, to give effect to the recalculation required by section 915;
the later determination takes effect on the day on which the FAS notifiable event occurs.
Note: this section gives rise to overpayments that may be recovered under Chapter 5.
Division 10—Bereavement payments (death of dependent child)
Continuation of qualification for family allowance supplement for bereavement rate continuation period where recipient’s only FAS child dies
948. If:
(a) a person is receiving family allowance supplement for a dependent child; and
(b) the child dies; and
(c) the child was the only FAS child of the person;
the person is to be qualified for family allowance supplement during the bereavement rate continuation period as if the child had not died.
Bereavement payments on death of dependent child
949. If:
(a) a person is receiving family allowance supplement; and
(b) a dependent child of the person dies; and
(c) immediately before the child died, the person’s family allowance supplement rate included a FAS child rate for the child;
the person is qualified for payments under this Division to cover the bereavement period.
Note 1: section 950 provides for family allowance supplement to be paid to the person, up to the first available bereavement adjustment payday, at the rate at which it would have been paid if the child had not died but were disregarded for the purposes of working out the person’s taxable income free area.
Note 2: section 951 provides for a lump sum to be paid to the person if the person was receiving family allowance for the child and the first available bereavement adjustment payday occurs before the end of the bereavement period: the lump sum represents the difference, over the bereavement lump sum period, between the person’s new family allowance supplement rate and the rate at which the supplement would have been paid if the child had not died but were disregarded for the purposes of working out the person’s taxable income free areas.
Note 3: the additional payments preserved by this Division are:
• FAS child rate;
• additional rent assistance.
Family Allowance Supplement s. 950
Continued payment of family allowance supplement
950. If a person is qualified for payments under this Division in relation to the death of a dependent child, the person’s family allowance supplement rate during the bereavement rate continuation period is to be calculated as if:
(a) the child had not died; and
(b) the child was disregarded in calculating the person’s taxable income free area.
Lump sum payable in some circumstances
951. If:
(a) a person is qualified for payments under this Division in relation to the death of a dependent child; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period; and
(c) the person was, immediately before the child died, receiving family allowance for the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
Note: if the person qualified for payments under this Division was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
s. 951 Family Allowance Supplement
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
| Method statement |
Step 1. | Work out the person’s family allowance supplement rate on the family payment payday immediately before the first available bereavement adjustment payday: the result is called the continued rate. Note: section 950 applies in working out this rate because the payday on which it is payable is within the bereavement rate continuation period. |
Step 2. | Work out the rate that would have been the person’s family allowance supplement rate on the payday immediately before the first available bereavement adjustment payday if the person’s family allowance supplement rate were not calculated under section 950: the result is called the new rate. |
Step 3. | Take the new rate away from the continued rate: the result is called the deceased child component. |
Step 4. | Work out the number of family payment paydays in the bereavement lump sum period. |
Step 5. | Multiply the deceased child component by the number of family payment paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Child Disability Allowance s. 952
PART 2.19—CHILD DISABILITY ALLOWANCE
Division 1—CDA child status
Disabled child
952. Subject to section 953, a young person is a disabled child if:
(a) the young person has a physical, intellectual or pyschiatric disability; and
(b) because of that disability, the young person:
(i) needs care and attention from another person on a daily basis; and
(ii) the care and attention needed by the young person is substantially more than that needed by a young person of the same age who does not have a physical, intellectual or psychiatric disability; and
(c) the young person is likely to need that care and attention permanently or for an extended period.
CDA child status—family allowance requirement
953. A disabled child is a CDA child of a person if:
(a) a family allowance is payable to the person for the disabled child; or
(b) a family allowance would be payable to the person for the disabled child but for:
(i) section 832 (prescribed student child cannot be FA child); or
(ii) section 837 (child is not FA child if payments similar to family allowance are made by a foreign country); or
(iii) Module D of the Family Allowance Rate Calculator (taxable income test—see section 1069); or
(iv) the child receiving income from employment in excess of $100 per week; or
(v) a proper claim not having been made.
Note: for family allowance see Part 2.17.
Division 2—Qualification for and payability of child disability allowance
Subdivision A—Qualification
Qualification for child disability allowance
954. A person is qualified for a child disability allowance for a young person if:
(a) the young person is a CDA child of the person; and
(b) the young person receives care and attention on a daily basis from:
s. 954 Child Disability Allowance
(i) if a person is a member of a couple—the person or the person’s partner; or
(ii) if the person is not a member of a couple—the person; in a private home that is the residence of the person and the young person.
Note 1: for “young person” see section 5.
Note 2: for “CDA child” see sections 952 and 953.
Note 3: a person may continue to be qualified for child disability allowance even if paragraph (b) is not satisfied—see section 955.
Note 4: where the young person is absent during school hours but is otherwise being cared for by the person on school days outside school hours, the person receives the full rate of allowance. Where the person does not provide care to the young person on school days because the young person is away (e.g. boarding), the person may remain qualified for the allowance (see subsection 955 (2)) but the person’s rate may be reduced under section 967.
Qualification while person not providing care
28 days or less
955. (1) If:
(a) for a period, or periods, in a particular calendar year, a person would, but for this subsection, stop being qualified for a child disability allowance for a CDA child because during the period, or periods, the child is not receiving care and attention on a daily basis from:
(i) if the person is a member of a couple—the person or the person’s partner; or
(ii) if the person is not a member of a couple—the person; in a private home that is the residence of the person and the young person; and
(b) the period, or the aggregate of the periods, does not exceed, or is not likely to exceed, 28 days in that calendar year;
the person continues to be qualified for a child disability allowance for the CDA child during the period or periods.
Note: a person who continues to be qualified because of subsection (1) will receive the full rate of child disability allowance.
CDA child receiving education, training or treatment
(2) If:
(a) for a period a person would, but for this subsection, stop being qualified for a child disability allowance for a CDA child because during the period the child is not receiving care and attention on a daily basis from:
(i) if the person is a member of a couple—the person or the person’s partner; or
(ii) if the person is not a member of a couple—the person;
in a private home that is the residence of the person and the child; and
Child Disability Allowance s. 955
(b) subsection (1) does not apply to the period; and
(c) during the period, the child is, or is likely to be receiving education, training or treatment on normal school days;
the person continues to be qualified for a child disability allowance for the CDA child during the period.
Note: a person who is qualified for child disability allowance because of subsection (2) may receive a reduced rate—see subsections 967 (2) and (3).
More than 28 days
(3) If:
(a) for a period a person would, but for this subsection, stop being qualified for a child disability allowance for a CDA child because during the period the child is not receiving care and attention on a daily basis from:
(i) if the person is a member of a couple—the person or the person’s partner; or
(ii) if the person is not a member of a couple—the person;
in a private home that is the residence of the person and the young person; and
(b) neither subsection (1) nor (2) applies to the period; and
(c) the loss of qualification is temporary having regard to:
(i) if the child is absent from his or her home—the purpose of the absence and of any other absences in the calendar year; and
(ii) the duration of the loss of qualification; and
(iii) the frequency of loss of qualification;
the Secretary may decide that the person continues to be qualified for a child disability allowance for the CDA child for a period determined by the Secretary.
Note: a person who is qualified for child disability allowance because of subsection (3) may receive a reduced rate—see subsection 967 (2).
Subdivision B—Payability
Child disability allowance not payable in some circumstances
956. (1) Even though a person is qualified for a child disability allowance for a CDA child, the allowance may not be payable to the person because the allowance has not yet commenced to be payable (see sections 957 and 968).
(2) Child disability allowance is not payable to a person if the person’s child disability allowance rate would be nil.
s. 957 Child Disability Allowance
Child disability allowance generally not payable before claim
957. Subject to sections 959 and 960, child disability allowance is not payable to a person before the person’s provisional commencement day (identified under section 958).
Provisional commencement day
958. (1) Subject to subsection (2) and sections 959 and 960, a person’s provisional commencement day is the day on which the person claims child disability allowance.
Initial incorrect claim followed by claim for child disability allowance.
(2) If:
(a) a person makes a claim (in this subsection called the “initial claim” for:
(i) a family allowance, a family allowance supplement or a double orphan pension; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to child disability allowance; and
(b) on the day on which the person makes the initial claim, the person is qualified for child disability allowance; and
(c) the person subsequently makes a claim for child disability allowance; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person’s provisional commencement day is the day on which the person made the initial claim.
Backdating—claim within 12 months of becoming qualified
959. If:
(a) a person has a CDA child; and
(b) the person’s provisional commencement day is within 12 months after the day on which the person became qualified for child disability allowance;
the allowance can become payable before the provisional commencement day but cannot become payable to the person before the first day in the period on which the person is qualified.
Note 1 : for “provisional commencement day” see section 958.
Note 2: the child disability allowance will not necessarily be backdated to the day on which the person becomes qualified—some other factor may make the allowance not payable at the time.
Backdating—claim after 12 months of becoming qualified
960. If:
(a) a person has a CDA child; and
Child Disability Allowance s. 960
(b) the person’s provisional commencement day is more than 12 months after the person became qualified for child disability allowance;
the allowance can become payable before the provisional commencement day, but cannot become payable before the day occuring 12 months before the person’s provisional commencement day.
Note 1: for “provisional commencement day” see section 958.
Note 2: the child disability allowance will not necessarily be backdated to the day occurring 12 months before the person’s provisional commencement day—some other factor may make the allowance not payable at that time.
Division 3—Claim for child disability allowance
Need for a claim
961. (1) A person who wants to be granted a child disability allowance must make a proper claim for that allowance.
Note: for “proper claim”—see section 962 (form) and section 963 (manner of lodgment).
(2) For the purposes of subsection (1), if:
(a) a claim for child disability allowance is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for child disability allowance;
the claim is to be taken to have not been made.
Form of claim
962. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
963. To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place (whether inside or outside Australia) approved for the purpose by the Secretary; or
(c) with a person (whether inside or outside Australia) approved for the purpose by the Secretary.
Division 4—Determination of claim
Secretary to determine claim
964. The Secretary must, in accordance with this Act, determine the claim.
Grant of claim
965. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for child disability allowance; and
s. 965 Child Disability Allowance
(b) the allowance is payable.
Date of effect of determination
966. (1) Subject to subsections (2), (3) and (4), a determination under section 965 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for child disability allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision” is made rejecting a person’s claim for child disability allowance; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s claim for child disability allowance; and
(b) no notice is given to the person advising the person of the making of the previous decision; and
Child Disability Allowance s. 966
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 5—Rate of child disability allowance
Rate of child disability allowance
General rule
967. (1) Subject to subsections (2) and (3), a person’s rate of child disability allowance for a CDA child is a fortnightly rate of $55.60.
Note: the rate of child disability allowance is indexed annually.
Child inmate of institution
(2) If on one or more days in the period of 14 days ending on a family payment payday:
(a) a person would have stopped being qualified for a child disability allowance for a CDA child but for subsection 955 (2) (child receiving education, training or treatment) or (3) (person not providing care for more than 28 days); and
(b) the CDA child was an inmate of an institution; and
(c) a benefit under:
(i) Part Va of the National Health Act 1953; or
(ii) Part VII of the Handicapped Persons Assistance Act 1974;
was payable to the institution for the CDA child;
the rate of child disability allowance payable to the person on the family payment payday for the CDA child is to be reduced by the following amount for each day in the period to which this subsection applies:
Amount specified in subsection (1) |
14 |
Child receiving education, training or treatment
(3) If on at least one day in the period of 14 days ending on a family payment payday:
(a) a person would have stopped being qualified for a child disability allowance for a CDA child but for subsection 955 (2) (child receiving education, training or treatment); and
(b) if the CDA child was an inmate of an institution on a day covered by paragraph (a)—a benefit under neither:
(i) Part Va of the National Health Act 1953; nor
(ii) Part VII of the Handicapped Persons Assistance Act 1974;
was payable to the institution for the day;
s. 967 Child Disability Allowance
the Secretary may:
(c) if the rate of child disability allowance payable to the person for the CDA child under subsection (1) on the family payment payday has not been reduced under subsection (2)—reduce the rate of child disability allowance payable to the person for the CDA child on the family payment payday; and
(d) if the rate of child disability allowance payable to the person for the CDA child under subsection (1) on the family payment payday has been reduced under subsection (2)—further reduce the rate of child disability allowance payable to the person for the CDA child on the family payment payday;
by an amount determined by the Secretary.
Factors affecting reduction under subsection (3)
(4) In deciding:
(a) whether to reduce a person’s rate of child disability allowance under subsection (3); and
(b) the amount (if any) of the reduction;
the Secretary must have regard to:
(c) if the CDA child is absent from his or her home—the duration of the absence; and
(d) whether the CDA child is in the care of another person or an institution for the purposes of receiving education, training or treatment.
Division 6—Payment of child disability allowance
Commencement of child disability allowance
968. Child disability allowance becomes payable to a person on the first day on which:
(a) the person is qualified for the allowance; and
(b) no provision of this Act makes the allowance not payable to the person.
Note 1: for qualifications see sections 954 (qualification for child disability allowance) and 955 (qualification while person not providing care).
Note 2: for the circumstances in which child disability allowance is not payable see section 956.
Payment by instalments
969. A full instalment of child disability allowance is payable to a person on each family payment payday on which:
(a) the person is qualified for the allowance; and
(b) the allowance is payable to the person.
Child Disability Allowance s. 970
Effect on instalments of backdating claim
970. If:
(a) a person lodges a claim for child disability allowance on a particular day (in this section called the “claim day”); and
(b) the person’s provisional commencement day is before the claim day;
any instalment of child disability allowance that would, but for this section, be payable, is payable to the person:
(c) if the claim day was a family payment payday—on that day; or
(d) the first family payment payday after the claim day.
Note: for provisional commencement day see section 958.
Manner of payment
971. A person’s child disability allowance is, subject to section 972, to be paid:
(a) to that person; and
(b) in the manner directed by the Secretary.
Nominee payments
972. (1) The Secretary may direct that the whole, or a part, of the amount of child disability allowance payable to a person is to be paid to someone else on behalf of the person.
(2) If the Secretary makes a direction under subsection (1), the child disability allowance is to be paid in accordance with the direction.
Payment into bank account etc.
973. (1) The Secretary may direct that the whole or a part of the amount of child disability allowance payable to a person is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person to whom the child disability allowance is payable.
(3) The account may be an account that is maintained by a person to whom the child disability allowance is payable jointly or in common with another person.
(4) If the Secretary gives a direction under subsection (1), the child disability allowance is to be payable in accordance with the direction.
Where family payment payday would fall on public holiday etc.
974. If the Secretary is satisfied that an amount of child disability allowance that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
s. 975 Child Disability Allowance
Payment of allowance after death
975. (1) If:
(a) a child disability allowance is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of child disability allowance payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of child disability allowance under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of child disability allowance.
Division 7—Protection of child disability allowance
Child disability allowance to be absolutely inalienable
976. (1) Subject to subsection (2) and section 1359, child disability allowance is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of child disability allowance payable to a person where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
977. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of child disability allowance payable to the person (whether on the person’s own behalf or not) are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
Child Disability Allowance s. 977
(2) The saved amount is worked out as follows:
| Method statement |
Step 1. | Work out the total amount of child disability allowance payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 8—Recipient obligations
Secretary may require notice of the happening of an event or a change in circumstances
978. (1) The Secretary may give a person to whom a child disability allowance is being paid a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the allowance.
(3) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the Department; and
(d) must specify the period within which the person is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
s. 978 Child Disability Allowance
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of child disability allowance
979. (1) The Secretary may give a person to whom a child disability allowance is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the allowance to the person.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A person must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $ 1,000 or imprisonment for 6 months, or both.
(6) A person must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $ 1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Child Disability Allowance s. 980
Self incrimination
980. (1) A person is not excused from giving information pursuant to a notice under section 978 or 979 on the ground that the information may tend to incriminate the person.
(2) Information given by a person pursuant to a notice under section 978 or 979 is not admissible in evidence against the person in a criminal proceeding other than a proceeding under, or arising out of, subsection 978 (5) or (6) or 979 (5) or (6).
Division 9—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
981. (1) A determination that:
(a) a person’s claim for a child disability allowance is to be granted; or
a child disability allowance is to be paid to a person;
continues in effect until:
the pension ceases to be payable under section 982 or 983; or
(d) a further determination in relation to the allowance under section 987 has taken effect.
Note 1: for paragraph (a) see section 965.
Note 2: for paragraph (b) see section 988—this paragraph is relevant where the determination reverses an earlier cancellation or suspension.
Rate determination
(2) A determination of the rate of a child disability allowance continues in effect until:
the allowance becomes payable at a lower rate under section 984; or
a further determination in relation to the allowance under section 985 or 986 has taken effect.
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 978 notification obligations
982. If:
a person who is receiving a child disability allowance is given a notice under section 978; and
the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a
s. 982 Child Disability Allowance
specified period (in this section called the “notification period”); and
the event or change in circumstances occurs; and
the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance would, but for this section, cease to be payable to the person;
the allowance continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
Note: if the person informs the Department, within the notification period, of an event or change in circumstances that reduces the rate of the person’s pension, there is no automatic rate reduction and a determination under section 986 must be made in order to bring the rate reduction into effect.
Automatic termination—recipient not complying with section 978 notification obligations
983. If:
a person who is receiving a child disability allowance is given a notice under section 978; and
the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
the event or change in circumstances occurs; and
the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the allowance; or
(ii) the allowance ceases to be payable to the person;
the allowance ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs.
Subdivision C—Automatic rate reduction
Automatic rate reduction—recipient not complying with section 978 notification obligations
984. If:
(a) a person who is receiving a child disability allowance is given a notice under section 978; and
Child Disability Allowance s. 984
the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
the event or change in circumstances occurs; and
the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
because of the occurrence of the event or change in circumstances, the person’s rate of allowance is to be reduced;
the allowance becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs.
Subdivision D—Determinations
Rate increase determination
985. If the Secretary is satisfied that the rate at which a child disability allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination.
Note: for the date of effect of a determination under this section see section 989.
Rate reduction determination
986. If the Secretary is satisfied that the rate at which a child disability allowance is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination.
Note 1: a determination under this section is not necessary in a case where an automatic rate reduction is produced by section 984 (see subsection 981 (2)).
Note 2: for the date of effect of a determination under this section see section 990.
Cancellation or suspension determination
987. If the Secretary is satisfied that a child disability allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.
Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 982 or 983 (see subsection 981 (1)).
Note 2: for the date of effect of a determination under this section see section 990.
Resumption of payment after cancellation or suspension
988. (1) If the Secretary:
(a) cancels or suspends a person’s child disability allowance under section 987; and
(b) reconsiders the decision to cancel or suspend; and
s. 988 Child Disability Allowance
(c) becomes satisfied that:
(i) the decision to cancel or suspend was incorrect; and
(ii) because of the decision to cancel or suspend:
(a) the person did not receive a child disability allowance that was payable to the person; or
(b) the person is not receiving a child disability allowance that is payable to the person;
the Secretary is to determine that a child disability allowance was or is payable to the person.
(2) The reconsideration referred to in paragraph (1) (b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary’s own initiative.
Note: for the date of effect of a determination under this section see section 989.
Subdivision E—Date of effect of determinations
Date of effect of favourable determination
989. (1) The day on which a determination under section 985 or 988 (in this subsection called the “favourable determination”) takes effect is worked out in accordance with this section.
Notified decision—review sought within 3 months
(2) If:
a decision (in this subsection called the “previous decision”) is made in relation to a child disability allowance; and
a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
a decision (in this subsection called the “previous decision”) is made in relation to a child disability allowance; and
a notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
Child Disability Allowance s. 989
(d) the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
a decision (in this subsection called the “previous decision”) is made in relation to a child disability allowance; and
no notice is given to the person to whom the allowance is payable advising the person of the making of the previous decision; and
the person applies to the Secretary under section 1240, for review of the previous decision; and
the favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If the favourable determination is made following a person having advised the Department of a change in circumstances the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later.
Other determinations
(6) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 3 months before the determination was made) as is specified in the determination.
Date of effect of adverse determination
General
990. (1) The day on which a determination under section 986 or 987 (in this section called the “adverse determination”) takes effect is worked out in accordance with this section.
Note: if the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review: see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal).
(2) The adverse determination takes effect on:
the day on which the determination is made; or
if another day is specified in the determination—on that day.
(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2) (b) must be later than the day on which the determination is made.
s. 990 Child Disability Allowance
Contravention of Act
(4) If:
(a) the person whose allowance is affected by the adverse determination has contravened a provision of this Act (other than section 979, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—suspension or cancellation
(5) If:
a person has made a false statement or misrepresentation; and
because of the false statement or misrepresentation, the allowance has been paid to a person when it should have been cancelled or suspended;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
False statement or misrepresentation—rate reduction
(6) If:
a person has made a false statement or misrepresentation; and
because of the false statement or misrepresentation, the rate at which the allowance was paid to a person was more than it should have been;
the day specified under paragraph (2) (b) may be earlier than the day on which the determination is made.
Division 10—Bereavement payments (death of CDA child)
Continued child disability allowance during bereavement rate continuation period where CDA child dies
991. (1) If:
(a) a person is receiving child disability allowance for a young person; and
(b) the young person dies; and
(c) immediately before the young person died:
(i) the person was receiving a social security pension or a benefit whose rate included:
(a) a dependent child add-on for the young person; or
(b) guardian allowance for the young person; or
(ii) the person was receiving family allowance supplement for the young person; or
(iii) the person was receiving a service pension whose rate included:
Child Disability Allowance s. 991
(a) a dependent child add-on for the young person; or
(b) guardian allowance in respect of the young person;
the person is to be qualified for child disability allowance for the young person during the bereavement rate continuation period as if:
the young person had not died; and
the young person had received the care and attention referred to in paragraph 954 (b).
(2) The rate at which the child disability allowance is to be paid during the bereavement rate continuation period is the rate at which the allowance was paid to the person on the payday immediately before the day on which the young person died.
Lump sum payable in some circumstances
992. If:
a person is qualified for child disability allowance under section 991 in relation to the death of a CDA child; and
the first available bereavement adjustment payday occurs before the end of the bereavement period; and
the person was, immediately before the child died, receiving family allowance for the child;
a lump sum (worked out using the lump sum calculator at the end of this section) is payable to the person.
LUMP SUM CALCULATOR
This is how to work out the amount of the lump sum:
Method statement |
Step 1. | Work out the rate at which child disability allowance was payable to the person on the family payment payday immediately before the CDA child died. |
Step 2. | Work out the number of family payment paydays in the bereavement lump sum period. |
Step 3. | Multiply the rate obtained in Step 1 by the number of family payment paydays in the bereavement lump sum period: the result is the amount of the lump sum payable to the person under this section. |
Note: if the person qualified for payments under this Division was not receiving family allowance in respect of the dependent child and somebody else was receiving family allowance in respect of the dependent child, a corresponding lump sum may be payable to the other person under section 890.
s. 993 Double Orphan Pension
PART 2.20—DOUBLE ORPHAN PENSION
Division 1—DOP child status
Double orphan—not refugee
993. (1) A young person is a double orphan if:
(a) the young person is not a refugee child; and
(b) each parent of the young person is dead.
Note 1: for “young person” and “parent” see section 5.
Note 2: for “refugee child” see section 995.
(2) A young person is a double orphan if:
(a) the young person is not a refugee child; and
(b) one parent of the young person is dead; and
(c) the other parent of the young person is:
(i) a long-term prisoner; or
(ii) a mental hospital patient on a long-term basis; or
(iii) a nursing home patient on a long-term basis; or
(iv) uncontactable.
Note 1: for “young person” and “parent” see section 5.
Note 2: for “refugee child” see section 995.
Note 3: for “long-term prisoner” see section 996.
Note 4: for “patient on a long-term basis” see section 997.
Note 5: for “uncontactable” see section 998.
Double orphan—refugee
994. A young person is a double orphan if:
(a) the young person is a refugee child; and
(b) one parent of the young person is:
(i) dead; or
(ii) living outside Australia; or
(iii) uncontactable; and
(c) the other parent, if any, is:
(i) dead; or
(ii) living outside Australia; or
(iii) uncontactable; or
(iv) a long-term prisoner; or
(v) a mental hospital patient on a long-term basis; or
(vi) a nursing home patient on a long-term basis.
Note 1: for “young person” and “parent” see section 5.
Note 2: for “refugee child” see section 995.
Note 3: for “uncontactable” see section 998.
Note 4: for “long-term prisoner” see section 996.
Note 5: for “patient on a long-term basis” see section 997.
Double Orphan Pension s. 995
Refugee child
995. (1) A young person is a refugee child if:
(a) the young person is not an adopted child by virtue of an adoption under a law in force in a State or Territory of the Commonwealth; and
(b) the young person has not, at any time, lived in Australia with one or both of his or her parents; and
(c) the young person:
(i) has been granted refugee status by the Australian Government; or
(ii) has, at any time, been admitted into Australia as a refugee by the Australian Government; or
(iii) the young person has been, at any time, admitted into Australia in accordance with the terms of a special humanitarian program of the Australian Government that has been approved by the Minister for the purposes of this definition.
(2) An approval of a special humanitarian program for the purposes of subparagraph (1) (c) (iii) may be expressed to have retrospective effect to the date of the establishment of the program.
Long-term prisoner
996. For the purposes of this Division, a person is a long-term prisoner if the person:
(a) has been convicted of an offence; and
(b) has been sentenced to imprisonment:
(i) for life; or
(ii) for a term of at least 10 years; and
(c) is serving the sentence.
Patient on a long-term basis
Mental hospital patient
997. (1) For the purposes of this Division, a person is a mental hospital patient on a long-term basis if:
(a) the person is a mental hospital patient; and
(b) the Secretary is satisfied that the person will require care and treatment for an indefinite period.
Note: for “mental hospital patient” see section 23.
Nursing home patient
(2) For the purposes of this Division, a person is a nursing home patient on a long-term basis if:
(a) the person is a nursing home patient; and
s. 997 Double Orphan Pension
(b) the Secretary is satisfied that the person will require care or treatment for an indefinite period.
Person uncontactable
998. For the purposes of this Division, a person is uncontactable if the person’s whereabouts are not known to the person or approved care organisation claiming or receiving the double orphan pension concerned.
Division 2—Qualification for and payability of double orphan pension
Subdivision A—Qualification
Qualification for double orphan pension
Persons other than approved care organisations
999. (1) A person is qualified for a double orphan pension for a young person if:
(a) a family allowance is payable to the person for the young person or would be payable to the person for the young person but for:
(i) section 832 (prescribed student child is not FA child); or
(ii) section 837 (child is not FA child if payments similar to family allowance are made by a foreign country); or
(iii) Module D of the Family Allowance Rate Calculator (taxable income test—see section 1069); and
(b) on the day on which the person claims the double orphan pension, the young person is a double orphan; and
(c) either:
(i) the young person continues to be a double orphan; or
(ii) if the young person is no longer a double orphan—the person has not become aware that the young person is no longer a double orphan.
Note 1: for “double orphan” see sections 993 and 994.
Note 2: for family allowance see Part 2.17.
Approved care organisations
(2) An approved care organisation is qualified for a double orphan pension for a young person if:
(a) a family allowance is payable to the organisation for the young person or would be payable to the organisation for the young person but for section 832 (prescribed student child is not FA child); and
(b) on the day on which the organisation claims the double orphan pension, the young person is a double orphan; and
(c) either:
(i) the young person continues to be a double orphan; or
(ii) if the young person is no longer a double orphan—the
Double Orphan Pension s. 999
organisation has not become aware that the young person is no longer a double orphan.
Note 1: for “double orphan” see sections 993 and 994.
Note 2: for “approved care organisation” sec sections 6 and 35.
Note 3: for family allowance see Part 2.17.
Subdivision B—Payability
Double orphan pension not payable in some circumstances
1000. Even though a person or approved care organisation is qualified for double orphan pension, the pension may not be payable to the person because:
(a) the pension has not commenced to be payable (see sections 1001 and 1011); or
(b) the child is receiving a pension under Part II or Part IV of the Veterans’ Entitlements Act (see section 1003).
Double orphan pension generally not payable before claim
1001. A double orphan pension is not payable to a person or approved care organisation before the person’s or organisation’s provisional commencement day (identified under section 1002).
Provisional commencement day
General rule
1002. (1) Subject to subsection (2), a person’s or approved care organisation’s provisional commencement day is the day on which the person or organisation claims the double orphan pension.
Initial incorrect claim followed by claim for double orphan pension
(a) a person or organisation makes a claim (in this subsection called the “initial claim”) for:
(i) family allowance, family allowance supplement or child disability allowance; or
(ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth that is similar in character to a double orphan pension; and
on the day on which the person or organisation makes the initial claim, the person is qualified for double orphan pension; and
the person or organisation subsequently makes a claim for double orphan pension; and
the Secretary is satisfied that it is reasonable for this subsection to apply to the person or organisation;
s. 1002 Double Orphan Pension
the person’s or organisation’s provisional commencement day is the day on which the person or organisation made the initial claim.
Double orphan pension not payable for child receiving a pension under the Veterans’ Entitlements Act
1003. A double orphan pension is not payable for a child on a family payment payday if the child is receiving a pension under Part II or IV of the Veterans’ Entitlements Act.
Division 3—Claim for double orphan pension
Need for a claim
1004. (1) A person who wants to be granted a double orphan pension must make a proper claim for that pension.
(2) An approved care organisation that wants to be granted a double orphan pension must make a proper claim for that pension.
(3) For the purposes of subsection (1), if:
(a) a claim for double orphan pension is made by or on behalf of a person or approved care organisation; and
(b) at the time the claim is made, the claim cannot be granted because the person or organisation is not qualified for double orphan pension;
the claim is to be taken to have not been made.
Note 1: for “proper claim” see section 1005 (form) and section 1006 (manner of lodgment).
Note 2: for “approved care organisation” see sections 6 and 35.
Form of claim
1005. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
Lodgment of claim
1006. To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place (whether inside or outside Australia) approved for the purpose by the Secretary; or
(c) with a person (whether inside or outside Australia) approved for the purpose by the Secretary.
Division 4—Determination of claim
Secretary to determine claim
1007. The Secretary must, in accordance with this Act, determine the claim.
Double Orphan Pension s. 1008
Grant of claim
1008. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person or approved care organisation is qualified for a double orphan pension; and
(b) the pension is payable.
Date of effect of determination
1009. (1) Subject to subsections (2), (3) and (4), a determination under section 1008 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination.
Notified decision—review sought within 3 months
(2) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s or approved care organisation’s claim for double orphan pension; and
(b) a notice is given to the person or organisation advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision—review sought after 3 months
(3) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s or organisation’s claim for double orphan pension; and
(b) a notice is given to the person or organisation advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240, more than three months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person or organisation sought the review.
s. 1009 Double Orphan Pension
Decision not notified
(4) If:
(a) a decision (in this subsection called the “previous decision”) is made rejecting a person’s or organisation’s claim for double orphan pension; and
(b) no notice is given to the person or organisation advising the person or organisation of the making of the previous decision; and
(c) the person or organisation applies to the Secretary under section 1240 for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 5—Rate of double orphan pension
Rate of double orphan pension
1010. The double orphan pension rate is $29.80 per fortnight.
Note: the double orphan pension rate is indexed annually in line with CPI increases (see sections 1191 to 1194).
Division 6—Payment of double orphan pension
Commencement of double orphan pension
1011. Double orphan pension becomes payable to a person or approved care organisation on the first day on which:
(a) the person or organisation is qualified for the pension; and
(b) no provision of this Act makes the pension not payable to the person or organisation.
Note 1: for qualification see section 999.
Note 2: for the circumstances where double orphan pension is not payable see section 1000.
Payment by instalments
1012. A full instalment of double orphan pension is payable to a person or approved care organisation on each family payment payday on which:
(a) the person or organisation is qualified for the pension; and
(b) the pension is payable to the person or organisation.
Effect on instalments of backdating claim
1013. Where:
(a) a person or approved care organisation lodges a claim for double orphan pension on a particular day (in this section called the “claim day”); and
Double Orphan Pension s. 1013
(b) the person’s or organisation’s provisional commencement day is before the claim day;
any instalment of double orphan pension that would, but for this section, be payable, is payable to the person or organisation:
(c) if the claim day was a family payment payday—on that day; or
(d) the first family payment payday after the claim day.
Note: for “provisional commencement day” see section 1002.
Manner of payment
1014. A person’s or approved care organisation’s double orphan pension is, subject to section 1015, to be paid:
(a) to that person or organisation; and
(b) in the manner directed by the Secretary.
Nominee payments
1015. (1) The Secretary may direct that the whole, or a part, of the amount of double orphan pension payable to a person or approved care organisation is to be paid to someone else on behalf of the person or organisation.
(2) If the Secretary makes a direction under subsection (1), the double orphan pension is to be paid in accordance with the direction.
Payment into bank account etc.
1016. (1) The Secretary may direct that the whole or a part of the amount of a double orphan pension payable to a person or approved care organisation is to be paid, at the intervals that the Secretary specifies, to the credit of an account with a bank, credit union or building society.
(2) The account must be an account nominated and maintained by the person or organisation to whom the double orphan pension is payable.
(3) The account may be an account that is maintained by a person or organisation to whom the double orphan pension is payable jointly or in common with another person or organisation.
(4) If the Secretary gives a direction under subsection (1), the double orphan pension is to be payable in accordance with the direction.
Where family payment payday would fall on public holiday etc.
1017. If the Secretary is satisfied that an amount of double orphan pension that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
s. 1018 Double Orphan Pension
Payment of pension after death
1018. (1) If:
(a) a double orphan pension is payable to a person; and
(b) the person dies; and
(c) at the date of the person’s death the person had not received an amount of double orphan pension payable to him or her; and
(d) another person or an approved care organisation applies to receive that amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person or approved care organisation who, in the Secretary’s opinion, is best entitled to it.
(2) If the Secretary pays an amount of double orphan pension under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of double orphan pension.
Division 7—Protection of double orphan pension
Double orphan pension to be absolutely inalienable
1019. (1) Subject to subsection (2) and section 1359, double orphan pension is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient’s request
(2) The Secretary may make deductions from the instalments of double orphan pension payable to a person or approved care organisation where the recipient asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: the Secretary must make deductions from a person’s pension, benefit or allowance if requested by the Commissioner of Taxation—see section 1359.
Effect of garnishee or attachment order
1020. (1) If:
(a) a person or approved care organisation has an account with a financial institution; and
(b) instalments of double orphan pension payable to the person (whether on the person’s own behalf or not) or organisation are being paid to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
Double Orphan Pension s. 1020
the court order does not apply to the saved amount (if any) in the account.
(2) The saved amount is worked out as follows:
Method statement |
Step 1. | Work out the total amount of double orphan pension payable to the person or organisation that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. |
Step 2. | Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. |
(3) This section applies to an account whether it is maintained by a person or organisation:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 8—Recipient obligations
Recipient
1021. A reference in this Division to a recipient is a reference to:
(a) a person to whom a double orphan pension is being paid; or
(b) an approved care organisation to which a double orphan pension is being paid.
Double orphan pension to be applied for benefit of child
1022. If a double orphan pension is payable to a person or an approved care organisation in respect of a young person, the double orphan pension must be applied by the person or the organisation to the maintenance, training and advancement of that young person.
Secretary may require notice of the happening of an event or a change in circumstances
1023. (1) The Secretary may give a recipient a notice that requires the recipient to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the recipient becomes aware that a specified event or change of circumstances is likely to occur.
(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the double orphan pension.
(3) A notice under subsection (1):
(a) must be in writing; and
s. 1023 Double Orphan Pension
(b) may be given personally or by post; and
(c) must specify how the recipient is to give the information to the Department; and
(d) must specify the period within which the recipient is to give the information to the Department; and
(e) must specify that the notice is given under this section.
(4) The period specified under paragraph (3) (d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the recipient becomes aware that the event or change of circumstances is likely to occur.
(5) A recipient must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A recipient must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require recipient to give particular information relevant to payment of double orphan pension
1024. (1) The Secretary may give a recipient a notice that requires the recipient to give the Department a statement about a matter that might affect the payment of the double orphan pension to the recipient.
(2) A notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the recipient is to give the statement to the Department; and
(e) must specify that the notice is given under this section.
(3) The period specified under paragraph (2) (d) must end at least 14 days after the day on which the notice is given.
Double Orphan Pension s. 1024
(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(5) A recipient must not refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: $1,000 or imprisonment for 6 months, or both.
(6) A recipient must not, in purporting to comply with a notice under subsection (1), knowingly or recklessly give information that is false or misleading in a material particular.
Penalty: $1,000 or imprisonment for 6 months, or both.
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Self incrimination
1025. (1) A recipient is not excused from giving information pursuant to a notice under section 1023 or 1024 on the ground that the information may tend to incriminate the recipient.
(2) Information given by a recipient pursuant to a notice under section 1023 or 1024 is not admissible in evidence against the recipient in a criminal proceeding other than a proceeding under, or arising out of, subsection 1023 (5) or (6) or 1024 (5) or (6).
Division 9—Continuation, variation and termination
Subdivision A—General
Continuing effect of determination
Entitlement determination
1026. A determination that:
(a) a person’s or approved care organisation’s claim for a double orphan pension is granted; or
(b) a double orphan pension is payable to a person or organisation; continues in effect until:
(c) the pension ceases to be payable under section 1027, or 1028; or
(d) a further determination in relation to the pension under section 1029 has taken effect.
Note 1: for paragraph (a) see section 1008.
Note 2: for paragraph (b) see section 1030—this paragraph is relevant where the determination reverses an earlier cancellation or suspension.
s. 1027 Double Orphan Pension
Subdivision B—Automatic termination
Automatic termination—recipient complying with section 1023 notification obligations
1027. If:
(a) a person or approved care organisation who is receiving a double orphan pension is given a notice under section 1023; and
(b) the notice requires the person or organisation to inform the Department of the occurrence of an event or change in circumstances within a specified period (in this section called the “notification period”); and
(c) the event or change in circumstances occurs; and
(d) the person or organisation informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
