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Social Security Act 1991

  • - C2006C00270
  • In force - Superseded Version
  • View Series
Act No. 46 of 1991 as amended, taking into account amendments up to Act No. 47 of 2006
An Act to provide for the payment of certain pensions, benefits and allowances, and for related purposes
Administered by: DEST; DEWR; FaCSIA
Registered 29 May 2006
Start Date 22 May 2006
End Date 30 Jun 2006

Social Security Act 1991

Act No. 46 of 1991 as amended

This compilation was prepared on 24 May 2006
taking into account amendments up to Act No. 47 of 2006

Volume 2 includes:      Table of Contents
                                   
Sections 146F – 567F

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

 

Chapter 2Pensions, benefits and allowances

Part 2.3Disability support pension

 


Contents

Chapter 2—Pensions, benefits and allowances                                                       i

Part 2.3—Disability support pension                                                                            i

Division 10—Bereavement payments                                                                 1

Subdivision A—Death of partner                                                                              1

146F...... Qualification for payments under this Subdivision............................ 1

146G..... Continued payment of partner’s pension or allowance..................... 3

146H..... Lump sum payable in some circumstances........................................ 3

146J...... Adjustment of person’s disability support pension rate................... 5

146K..... Effect of death of person entitled to payments under this Subdivision  5

146L...... Matters affecting payment of benefits under this Subdivision.......... 7

Subdivision C—Death of recipient                                                                           8

146Q..... Death of recipient............................................................................... 8

Part 2.4—Wife pension                                                                                                        9

Division 1A—Time limit on grant of wife pension                                        9

146V..... Wife pension not to be granted after 30 June 1995............................ 9

Division 1—Qualification for and payability of wife pension                  10

Subdivision A—Qualification                                                                                 10

147........ Qualification for wife pension.......................................................... 10

Subdivision B—Payability                                                                                       10

148........ Wife pension not payable if pension rate nil.................................... 10

151........ Multiple entitlement exclusion......................................................... 10

151A..... Exclusion of certain participants in ABSTUDY Scheme................. 12

Division 4—Rate of wife pension                                                                         14

159........ How to work out the rate of wife pension....................................... 14

Division 9—Bereavement payments                                                                  15

Subdivision A—Continuation of wife pension where partner dies                   15

186........ Continuation of wife pension for bereavement period..................... 15

187........ Continued wife pension rate............................................................. 15

Subdivision B—Death of pensioner partner                                                         16

188........ Qualification for payments under this Subdivision.......................... 16

189........ Continued payment of partner’s pension or allowance................... 16

190........ Lump sum payable in some circumstances...................................... 17

191........ Effect of death of person entitled to payments under this Subdivision  18

192........ Matters affecting payment of benefits under this Subdivision........ 20

Part 2.5—Carer payment                                                                                                  21

Division 1A—Interpretation                                                                                   21

197........ Definitions........................................................................................ 21

Division 1—Qualification for and payability of carer payment              24

Subdivision A—Qualification                                                                                 24

198........ Qualification for carer payment........................................................ 24

198AAA Continuation of qualification when person receiving care admitted to institution  27

198AA.. Qualification for carer payment—hospitalisation............................ 27

198AB.. Care not required to be in private residence during portability period 28

198AC.. Effect of cessation of care etc. on carer payment............................. 28

198A..... Income test [see Appendix for CPI adjusted figures]....................... 30

198B..... Taxable income................................................................................. 30

198C..... Appropriate tax year........................................................................ 32

198D..... Assets test [see Appendix for CPI adjusted figures]....................... 35

198E...... Working out the value of assets........................................................ 37

198F...... Disposal of assets—care receiver assets test................................... 37

198G..... Amount of disposition—care receiver assets test............................ 38

198H..... Disposal of assets in pre-pension years—individual higher ADAT score adults   39

198HA.. Disposal of assets in pre-pension years—profoundly disabled child or disabled children     40

198HB.. Disposal of assets in pre-pension years—lower ADAT score adult and dependent child     41

198J...... Disposal of assets before 1 July 2002—individual higher ADAT score adults      42

198JA... Disposal of assets before 1 July 2002—profoundly disabled children or disabled children   43

198JB.... Disposal of assets before 1 July 2002—lower ADAT score adult and dependent child        44

198JC.... Disposal of assets in income year—individual higher ADAT score adults             46

198JD... Disposal of assets in 5 year period—individual higher ADAT score adults           47

198JE.... Disposal of assets in income year—profoundly disabled children.. 48

198JF.... Disposal of assets in 5 year period—profoundly disabled children 48

198JG... Disposal of assets in income year—lower ADAT score adult and dependent child               49

198JH... Disposal of assets in 5 year period—lower ADAT score adult and dependent child             51

198K..... Disposal of assets in pre-pension years—members of couples including higher ADAT score adults   52

198L...... Disposal of assets before 1 July 2002—members of couples including higher ADAT score adults      54

198LA... Disposal of assets in income year—members of couples including higher ADAT score adults             56

198LB... Disposal of assets in 5 year period—members of couples including higher ADAT score adults           58

198M.... Certain dispositions to be disregarded for care receiver assets test.. 59

198MA. Other dispositions to be disregarded for care receiver assets test.... 60

198N..... Exemption from care receiver assets test [see Appendix for CPI adjusted figures]                60

198P...... Date of effect of favourable decision under section 198N................ 66

198Q..... Date of effect of adverse decision under section 198N.................... 68

Subdivision B—Payability                                                                                       68

199........ Carer payment not payable if payment rate nil............................... 68

201AA.. Newly arrived resident’s waiting period.......................................... 68

201AB.. Duration of newly arrived resident’s waiting period........................ 69

202........ Multiple entitlement exclusion......................................................... 70

202A..... Exclusion of certain participants in ABSTUDY Scheme................. 71

Division 4—Rate of carer payment                                                                     73

210........ How to work out a person’s carer payment rate............................. 73

Division 9—Bereavement payments                                                                  74

Subdivision A—Continuation of carer payment                                                  74

235........ Continuation of carer payment for bereavement period where person cared for dies             74

236........ Continued carer payment rate.......................................................... 75

236A..... Lump sum payable in some circumstances...................................... 75

236B..... Subdivision not to apply in certain cases involving simultaneous death 76

Subdivision B—Death of partner                                                                            76

237........ Qualification for payments under this Subdivision.......................... 76

238........ Continued payment of partner’s pension or allowance................... 78

239........ Lump sum payable in some circumstances...................................... 79

240........ Adjustment of person’s carer payment rate..................................... 81

241........ Effect of death of person entitled to payments under this Subdivision  81

242........ Benefits under this Subdivision........................................................ 83

243........ Subdivision not to apply in certain cases involving simultaneous death 84

Subdivision D—Death of recipient                                                                         84

246........ Death of recipient............................................................................. 84

Part 2.5A—One-off payment to people eligible for carer payment          86

247........ One-off payment to carers (carer payment related)......................... 86

248........ What is the amount of the payment?............................................... 86

Part 2.5B—2005 one-off payment to people eligible for carer payment 87

249........ 2005 one-off payment to carers (carer payment related)................. 87

250........ What is the amount of the payment?............................................... 87

Part 2.5C—2005 one-off payment to people eligible for carer service pension      88

251........ 2005 one-off payment to carers (carer service pension related)....... 88

252........ What is the amount of the payment?............................................... 88

Part 2.5D—2006 one-off payment to carers eligible for carer payment 89

253........ 2006 one-off payment to carers (carer payment related)................. 89

254........ Amount of the one-off payment...................................................... 89

Part 2.5E—2006 one-off payment to carers eligible for wife pension     90

255........ 2006 one-off payment to carers (wife pension related)................... 90

256........ Amount of the one-off payment...................................................... 90

Part 2.5F—2006 one-off payment to carers eligible for partner service pension   91

257........ 2006 one-off payment to carers (partner service pension related)... 91

258........ Amount of the one-off payment...................................................... 91

Part 2.5G—2006 one-off payment to carers eligible for carer service pension       92

259........ 2006 one-off payment to carers (carer service pension related)....... 92

260........ Amount of the one-off payment...................................................... 92

Part 2.7—Bereavement allowance                                                                              93

Division 1—Qualification for and payability of bereavement allowance 93

Subdivision A—Qualification                                                                                 93

315........ Qualification for bereavement allowance.......................................... 93

Subdivision B—Payability                                                                                       94

316........ Bereavement allowance not payable if allowance rate nil................. 94

321........ Multiple entitlement exclusion......................................................... 94

321A..... Exclusion of certain participants in ABSTUDY Scheme................. 95

Division 4—Rate of bereavement allowance                                                 97

329........ How to work out a person’s bereavement allowance rate................ 97

Division 9—Bereavement payments                                                                  98

Subdivision B—Death of recipient                                                                         98

359........ Death of recipient............................................................................. 98

Part 2.8—Widow B pension                                                                                             99

Division 1—Qualification for and payability of widow B pension         99

Subdivision A—Qualification                                                                                 99

362A..... Widow B pension not to be granted in certain cases........................ 99

362........ Qualification for widow B pension.................................................. 99

Subdivision B—Payability                                                                                     102

364........ Widow B pension not payable if pension rate nil.......................... 102

368........ Multiple entitlement exclusion....................................................... 102

368A..... Exclusion of certain participants in ABSTUDY Scheme............... 103

Division 4—Rate of widow B pension                                                              104

376........ How to work out the rate of widow B pension............................. 104

Division 9—Bereavement payments                                                                105

Subdivision B—Death of recipient                                                                       105

407........ Death of recipient........................................................................... 105

Part 2.8A—Widow allowance                                                                                       106

Division 1—Time limit on grants of widow allowance                             106

408AA.. Time limit on grants........................................................................ 106

Division 2—Qualification for and payability of widow allowance        107

Subdivision A—Qualification                                                                               107

408BA.. Qualification for widow allowance................................................. 107

408BB... Assurance of support..................................................................... 108

Subdivision B—Payability                                                                                     108

408CA.. Widow allowance not payable if allowance rate nil........................ 108

408CE... Assets test—allowance not payable if assets value limit exceeded [see Appendix for CPI adjusted figures]        109

408CF... Multiple entitlement exclusion....................................................... 109

408CG.. Maximum basic rate and remote area allowance not payable to CDEP Scheme participant   111

408CH.. Seasonal workers............................................................................ 111

Division 5—Rate of widow allowance                                                               113

408FA... How to work out a woman’s widow allowance rate...................... 113

408GI.... CDEP Scheme participant may accumulate widow allowance....... 113

Part 2.10—Parenting payment                                                                                     114

Division 1—Qualification for and payability of parenting payment   114

Subdivision A—Qualification                                                                               114

500........ Qualification for parenting payment.............................................. 114

500B..... Qualification affecting member of couple—assurance of support. 115

500C..... Qualification affecting member of couple—unemployment due to industrial action              115

500D..... PP child........................................................................................... 116

500E...... Child to be PP child for only one person....................................... 117

500F...... PP child—child absent from Australia for more than 13 weeks..... 117

500G..... PP child—child born outside Australia.......................................... 118

500H..... PP child—child subsequently departs Australia............................ 118

Subdivision B—General principles relating to payability                               119

500I....... Parenting payment not payable if payment rate nil....................... 119

500Q..... Assets test—payment not payable if assets value limit exceeded [see Appendix for CPI adjusted figures]           119

500R..... Parenting payment not payable to more than one member of a couple.. 121

500S...... Multiple entitlement exclusion....................................................... 122

500V..... Educational schemes exclusion—person member of a couple........ 123

500VA.. Exclusion of certain participants in ABSTUDY Scheme............... 123

500W.... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant who is a member of a couple........................................................................................................ 124

500Y..... Non-payment periods and rate reduction periods for newstart allowance, youth allowance and austudy payment—person member of a couple............................................................. 124

500Z..... Seasonal workers—preclusion period............................................ 125

Subdivision C—Payability in circumstances of participation agreement breach               126

500ZA.. Third and subsequent participation agreement breach consequences 126

500ZB... Participation agreement breaches.................................................... 126

500ZC... Length of participation agreement breach non-payment period..... 126

500ZD.. Start of participation agreement breach non-payment period........ 128

500ZE... Interaction with participation agreement breach rate reduction periods  128

Division 2—Parenting Payment Participation Agreements                 130

501........ General requirements relating to participation agreements............. 130

501A..... Parenting payment participation agreements—requirement.......... 132

501B..... Participation agreement—nature and terms.................................... 134

501C..... Participation agreements—failure to negotiate............................... 137

Division 4—Rate of parenting payment                                                          139

Subdivision A—Rate of parenting payment                                                        139

503........ How to work out a person’s parenting payment rate.................... 139

503A..... Approved program of work supplement....................................... 139

503AA.. Approved program of work supplement not payable in certain circumstances      139

Subdivision B—Rate reductions relating to participation agreement breaches 140

503B..... Participation agreement breach rate reduction period..................... 140

503C..... Length of participation agreement breach rate reduction period.... 140

503D..... Start of participation agreement breach rate reduction period........ 141

503E...... Rate of parenting payment where participation agreement breach rate reduction period applies           142

Subdivision C—Accumulation of parenting payments by CDEP Scheme participants      144

504N..... CDEP Scheme participant may accumulate parenting payment.... 144

Division 9—Bereavement payments                                                                145

Subdivision A—Continuation of parenting payment after death of child      145

512........ Death of PP child—continuation of qualification for 14 weeks..... 145

Subdivision B—Death of recipient                                                                       145

513........ Death of recipient—recipient not member of a couple.................. 145

513A..... Death of recipient—recipient member of a couple......................... 146

Subdivision C—Death of partner                                                                          146

514........ Surviving partner and deceased partner.......................................... 146

514A..... Qualification for payments under this Subdivision........................ 146

514B..... Continued payment of deceased partner’s previous entitlement... 147

514C..... Lump sum payable in some circumstances.................................... 148

514D..... Adjustment of person’s parenting payment rate........................... 149

514E...... Effect of death of surviving partner................................................ 150

514F...... Matters affecting payments under this Subdivision....................... 152

Subdivision D—Bereavement payment in respect of a person who was a CDEP Scheme participant              153

514FA... Calculation of bereavement payment in respect of former CDEP Scheme participant           153

Part 2.11—Youth allowance                                                                                          154

Division 1—Qualification for youth allowance                                             154

Subdivision A—Basic qualifications                                                                   154

540........ Qualification for youth allowance—general rule............................ 154

540A..... Qualification for youth allowance—claimants for disability support pension       154

540AA.. Qualification for youth allowance—new apprentices.................... 155

540B..... Qualification for youth allowance—transferee from social security pension          156

540C..... Qualification for youth allowance may continue to end of payment period           156

Subdivision B—Activity test                                                                                  157

541........ Activity test................................................................................... 157

541A..... Failure to satisfy the activity test.................................................. 159

541B..... Undertaking full-time study........................................................... 159

541C..... Requiring a person to apply for job vacancies............................... 162

541D..... Unsuitable paid work..................................................................... 163

541E...... Provisions relating to participation in an approved program of work for income support payment     166

541F...... What are reasonable steps.............................................................. 167

Subdivision C—Exemptions from the activity test                                             167

542........ Situations in which a person is not required to satisfy the activity test 167

542A..... Temporary incapacity exemption.................................................. 168

542B..... Failure to attend interview etc. may result in cessation of temporary incapacity exemption 169

542C..... Time limit for temporary incapacity exemptions........................... 170

542D..... Pre-natal and post-natal exemptions.............................................. 173

542E...... Remote area exemption................................................................... 174

542F...... Unpaid voluntary work exemption................................................ 174

542G..... Training camp exemption............................................................... 175

542H..... Special circumstances exemption.................................................... 176

Subdivision D—Youth allowance age                                                                   177

543........ Youth allowance age....................................................................... 177

543A..... Minimum age for youth allowance [see Note 6]............................ 177

543B..... Maximum age for youth allowance................................................. 180

Subdivision E—Youth Allowance Activity Agreements                                   181

544........ Requirements relating to Youth Allowance Activity Agreements. 181

544A..... Youth Allowance Activity Agreements—requirement.................. 182

544B..... Youth Allowance Activity Agreements—terms............................ 183

544C..... Youth Allowance Activity Agreements—failure to negotiate........ 186

544D..... Youth Allowance Activity Agreements—self-employment.......... 187

544E...... Youth Allowance Activity Agreements—group enterprises and co-operative enterprises    189

Subdivision G—Miscellaneous                                                                             190

546........ Prospective determinations for some allowance recipients............ 190

Division 2—Situations in which youth allowance is not payable        193

Subdivision A—Situations in which allowance not payable (general)           193

547........ Youth allowance not payable if allowance rate nil......................... 193

547AA.. Youth allowance not payable if person fails to attend interview etc. in certain circumstances               193

Subdivision AB—Assets test                                                                                194

547A..... Allowance not payable if assets value limit exceeded.................... 194

547B..... Who is excluded from application of assets test?........................... 195

547C..... Assets value limit [see Appendix for CPI adjusted figures]........... 195

547D..... Value of person’s assets to include value of assets of partner or family members in certain circumstances          196

547E...... Assets of trust in which person benefits........................................ 196

547F...... Exclusion of certain farm assets...................................................... 197

547G..... How business assets are treated..................................................... 197

Subdivision C—Waiting periods                                                                          198

549........ Waiting periods............................................................................... 198

549A..... Liquid assets test waiting period.................................................... 198

549B..... Start of liquid assets test waiting period........................................ 200

549C..... Length of liquid assets test waiting period..................................... 200

549D..... Newly arrived resident’s waiting period........................................ 201

549E...... Length of newly arrived resident’s waiting period [see Note 4].... 202

549F...... Effect of being subject to 2 waiting periods................................... 202

Subdivision D—Activity test non-payment periods                                           203

550........ Third and subsequent activity test breaches: consequences........... 203

550A..... Activity test breaches..................................................................... 203

550B..... Length of activity test non-payment period.................................. 204

550C..... Start of activity test non-payment period...................................... 205

550D..... Application of activity test non-payment period before claims for youth allowance            205

550E...... Interaction with activity test breach rate reduction periods........... 207

550F...... Interaction with waiting periods..................................................... 207

550G..... Effect of sections 550C, 550D, 550E and 550F............................. 208

550H..... Where one event may give rise to both an activity test penalty and an administrative breach rate reduction period........................................................................................................ 208

Subdivision F—Multiple entitlement exclusions                                               208

552........ Multiple entitlement exclusions..................................................... 208

552A..... Person receiving payment under certain schemes........................... 209

552B..... Assurance of support..................................................................... 210

552C..... Maximum basic rate and remote area allowance not payable to CDEP Scheme participant   210

Subdivision G—Employment-related exclusions                                               211

553........ Employment-related exclusions...................................................... 211

553A..... Unemployment due to industrial action......................................... 211

553B..... Move to area of lower employment prospects.............................. 212

553C..... Seasonal workers............................................................................ 214

Division 5—Rate of youth allowance                                                                216

Subdivision A—Rate of youth allowance                                                             216

556........ How to work out a person’s youth allowance rate........................ 216

556A..... Approved program of work supplement....................................... 216

Subdivision B—Activity test breach reductions in the rate of youth allowance   217

557........ Activity test breach rate reduction period...................................... 217

557A..... Length of activity test breach rate reduction period....................... 217

557B..... Start of activity test breach rate reduction period.......................... 220

557C..... Application of activity test breach rate reduction period before claim for youth allowance  221

557D..... Interaction with waiting periods..................................................... 222

557E...... Rate of youth allowance where activity test breach rate reduction period applies 222

Subdivision C—Administrative breach reductions in the rate of youth allowance             223

558........ Administrative breach rate reduction period.................................. 223

558A..... Length of administrative breach rate reduction period................... 224

558B..... Start of administrative breach rate reduction period....................... 226

558C..... Interaction with activity test non-payment periods...................... 227

558D..... Interaction with activity test breach rate reduction periods........... 227

558E...... Interaction with waiting periods..................................................... 228

558F...... Effect of sections 558C, 558D and 558E....................................... 229

558G..... Rate of youth allowance where administrative breach rate reduction applies         229

559J...... CDEP Scheme participant may accumulate youth allowance........ 229

Subdivision EA–sections 565F, 565G [see Note 6]                                            230

Division 10—Bereavement payments on death of partner                  231

567........ Qualification for payments under this Division............................. 231

567A..... Continued payment of partner’s pension or benefit...................... 232

567B..... Lump sum payable in some circumstances.................................... 232

567C..... Adjustment of person’s youth allowance rate............................... 234

567D..... Effect of death of person entitled to payments under this Division 234

567E...... Matters affecting payments under this Division............................ 236

567F...... Calculation of bereavement payment in respect of former CDEP Scheme participant           237


Division 10Bereavement payments

Subdivision ADeath of partner

146F  Qualification for payments under this Subdivision

      146F(1)  If:

                     (a)  a person is receiving disability support 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:

                              (i)  was receiving a social security pension; or

                             (ii)  was receiving a service pension or income support supplement; or

                            (iii)  was a long-term social security recipient; and

                     (e)  on the person’s payday immediately before the first available bereavement adjustment payday, the amount that would be payable to the person if the person were not qualified for payments under this Subdivision is less than the sum of:

                              (i)  the amount that would otherwise be payable to the person under section 146J (person’s continued rate) on that payday; and

                             (ii)  the amount that would otherwise be payable to the person under section 146G (continued payment of partner’s pension or benefit) on the partner’s payday immediately before the first available bereavement adjustment payday;

the person is qualified for payments under this Subdivision to cover the bereavement period.

Note 1:       section 146G 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 146H 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.

   146F(1A)  If:

                     (a)  a person is receiving a disability support pension; and

                     (b)  immediately before starting to receive the disability support pension the person was receiving partner bereavement payments; and

                     (c)  the bereavement rate continuation period in relation to the death of the person’s partner has not ended;

the person is qualified for payments under this Subdivision to cover the remainder of the bereavement period.

      146F(2)  A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.

Note:          if a person makes an election, the date of effect of any determination to increase the person’s rate of age pension may, in some circumstances, be the day on which the person’s partner died (see subsection 146D(5A)).

      146F(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.

      146F(4)  If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which disability support pension is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 146J.

      146F(5)  For the purposes of this section, a person is a long-term social security recipient if:

                     (a)  the person is receiving a social security benefit; and

                     (b)  in respect of the previous 12 months, the person:

                              (i)  was receiving a social security pension; or

                             (ii)  was receiving a social security benefit; or

                           (iia)  was receiving a youth training allowance; or

                            (iii)  was receiving a service pension or income support supplement.

      146F(6)  A person is taken to satisfy the requirements of paragraph (5)(b) if:

                     (a)  the person was receiving one or a combination of the payments referred to in that paragraph for a continuous period of 12 months; or

                     (b)  the person was receiving one or a combination of the payments referred to in that paragraph for 46 weeks of the previous 52.

146G  Continued payment of partner’s pension or allowance

     146G(1)  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 partner’s paydays in the bereavement rate continuation period:

                     (a)  where the partner was receiving a social security pension—the amount that would have been payable to the partner on the payday if the partner had not died; or

                     (b)  where the partner was receiving a service pension or income support supplement—the amount that would have been payable to the partner under Part III or IIIA of the Veterans’ Entitlements Act on the service payday that:

                              (i)  where the first Thursday after the partner’s death was a service payday—precedes the partner’s payday; or

                             (ii)  in any other case—follows the partner’s payday;

                            if the partner had not died.

     146G(2)  For the purposes of subsection (1), if the couple were, immediately before the partner’s death, an illness separated couple or a respite care couple, the amounts are to be worked out as if they were not such a couple.

146H  Lump sum payable in some circumstances

                   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.   Work out the amount that would have been payable to the person on the partner’s payday immediately before the first available bereavement adjustment payday if:

               (a)     the person’s partner had not died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 2.   Work out the amount that would have been payable to the person’s partner on the partner’s payday or service payday immediately before the first available bereavement adjustment payday if:

               (a)     the partner had not died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 3.   Add the results of Step 1 and Step 2: the result is called the combined rate.

Step 4.   Work out the amount that, but for section 146J, would have been payable to the person on the person’s payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate.

Step 5.   Take the person’s individual rate away from the combined rate: the result is called the partner’s instalment component.

Step 6.   Work out the number of paydays of the partner in the bereavement lump sum period.

Step 7.   Multiply the partner’s instalment component by the number obtained in Step 6: the result is the amount of the lump sum payable to the person under this section.

146J  Adjustment of person’s disability support pension rate

                   If:

                     (a)  a person is qualified for payments under this Subdivision; and

                     (b)  the person does not elect under subsection 146F(2) not to receive payments under this Subdivision;

the rate of the person’s disability support pension during the bereavement period is worked out as follows:

                     (c)  during the bereavement rate continuation period, the rate of disability support pension payable to the person is the rate at which the pension would have been payable to the person if:

                              (i)  the person’s partner had not died; and

                             (ii)  where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple;

                     (d)  during the bereavement lump sum period (if any), the rate at which disability support pension is payable to the person is the rate at which the disability support pension would be payable to the person apart from this Subdivision.

146K  Effect of death of person entitled to payments under this Subdivision

                   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.   Work out the amount that would have been payable to the person on the person’s payday immediately after the day on which the person died if:

               (a)     neither the person nor the person’s partner had died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 2.   Work out the amount that would have been payable to the partner on the partner’s payday or service payday immediately after the day on which the person died if:

               (a)     neither the person nor the partner had died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 3.   Add the results of Step 1 and Step 2: the result is called the combined rate.

Step 4.   Work out the amount that, but for section 97 of the Administration Act, would have been payable to the person on the person’s 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 5.   Take the person’s individual rate away from the combined rate: the result is called the partner’s instalment component.

Step 6.   Work out the number of paydays of the partner in the period that commences on the day on which the person dies and ends on the day on which the bereavement period ends.

Step 7.   Multiply the partner’s instalment component by the number obtained in Step 6: the result is the amount of the lump sum payable under this section.

146L  Matters affecting payment of benefits under this Subdivision

     146L(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).

     146L(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; and

                     (c)  the bank pays to the person, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);

the bank 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 CDeath of recipient

146Q  Death of recipient

     146Q(1)  If:

                     (a)  a person is receiving disability support 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

                                        (C)  is not receiving a service pension or income support supplement; 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 person’s payday after the person’s death if the person had not died.

     146Q(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 2:       for death of a person qualified for bereavement payments under Subdivision A see section 146K.


 

Part 2.4Wife pension

Division 1ATime limit on grant of wife pension

146V  Wife pension not to be granted after 30 June 1995

     146V(1)  In spite of any other provision of the social security law, other than section 85 of the Administration Act, a woman is not to be granted a wife pension unless:

                     (a)  her claim for the pension was lodged on or before 30 June 1995 and she qualified for the pension on or before that date; or

                     (b)  all the following subparagraphs apply:

                              (i)  she began to receive mature age partner allowance on or before 30 June 1995;

                             (ii)  her partner was receiving a mature age allowance under Part 2.12A but has, after 30 June 1995, become qualified for an age pension and been automatically transferred to the age pension;

                            (iii)  she received mature age partner allowance for a continuous period from the time when she began to receive the allowance until her partner was automatically transferred to the age pension as mentioned in subparagraph (ii).

     146V(2)  For the purposes of paragraph (1)(a), if a provision of section 15 of the Administration Act applies, the woman is taken to have lodged her claim for a wife pension on the day on which she lodged her incorrect claim or her initial claim, as the case may be.

     146V(3)  For the purposes of subsection (2):

incorrect claim or initial claim has the same meaning as in the provision of section 15 of the Administration Act that applies as referred to in subsection (2).


 

Division 1Qualification for and payability of wife pension

Subdivision AQualification

147  Qualification for wife pension

        147(1)  A woman is qualified for a wife pension if the woman:

                     (a)  is a member of a couple; and

                     (b)  has a partner who:

                              (i)  is receiving an age pension, disability support pension or disability wage supplement; 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.

Subdivision BPayability

148  Wife pension not payable if pension rate nil

        148(1)  Subject to subsection (2), a wife pension is not payable to a person if the person’s wife pension rate would be nil.

        148(2)  Subsection (1) does not apply to a person if the person’s rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

                     (a)  the social security law; or

                     (b)  Division 2 of Part VIIA of the Veterans’ Entitlements Act.

151  Multiple entitlement exclusion

        151(1)  A wife pension is not payable to a woman if the woman is already receiving a service pension.

        151(2)  If:

                     (a)  a woman is receiving a wife pension; and

                     (b)  another social security pension or a social security benefit or service pension becomes payable to the woman;

the wife pension is not payable to the woman.

Note 1:       another payment type will generally not become payable to the woman until the woman claims it.

Note 2:       For social security pension and social security benefit see subsection 23(1).

        151(3)  A wife pension is not payable to a person who:

                     (a)  is an armed services widow or an armed services widower; and

                     (b)  is receiving 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; and

                     (c)  is receiving income support supplement under Part IIIA of that Act or would be eligible for income support supplement under that Part if he or she made a claim under section 45I of that Act.

        151(4)  Subsection (3) does not apply if:

                     (a)  the person:

                              (i)  was on 20 March 1995 receiving; and

                             (ii)  has from that day continuously received; and

                            (iii)  is receiving;

                            the wife pension; and

                     (b)  the person elected under subsection 45E(2) of the Veterans’ Entitlements Act, or is taken under subsection 45E(3) of that Act to have elected, to continue to receive the wife pension.

        151(5)  Subsection (3) does not apply if:

                     (a)  before 20 March 1995, the person had made a claim for wife pension; and

                     (b)  the person elected under subsection 45F(2) of the Veterans’ Entitlements Act, or is taken under subsection 45F(3) of that Act to have elected, to receive the pension in the event that it were granted to him or her; and

                     (c)  on or after 20 March 1995, the person was granted wife pension; and

                     (d)  the person has since that time continued to receive, and is receiving, the pension.

        151(6)  Subsection (3) does not apply if:

                     (a)  before 20 March 1995:

                              (i)  the person had made a claim for wife pension; and

                             (ii)  the claim had been rejected; and

                            (iii)  the person had applied, under Chapter 6, for a review of the decision to reject the claim; and

                     (b)  the person elected under subsection 45G(2) of the Veterans’ Entitlements Act, or is taken under subsection 45G(3) of that Act to have elected, to receive the pension in the event that it were granted to him or her after review of the decision; and

                     (c)  on or after 20 March 1995, the decision to reject the claim was set aside and the person was granted wife pension; and

                     (d)  the person has since that time continued to receive, and is receiving, the pension.

        151(7)  A wife pension is not payable to a woman who:

                     (a)  is an armed services widow; and

                     (b)  has received a lump sum, or is receiving weekly amounts, mentioned in paragraph 234(1)(b) of the MRCA; and

                     (c)  is receiving income support supplement or would be eligible for income support supplement if she made a claim under section 45I of the VEA.

Note 1:       For armed services widow see subsection 4(1).

Note 2:       For MRCA and VEA see subsection 23(1).

151A  Exclusion of certain participants in ABSTUDY Scheme

     151A(1)  If:

                     (a)  a payment is made in respect of a person under the ABSTUDY Scheme; and

                     (b)  the payment is made on the basis that the person is a full-time student; and

                     (c)  in the calculation of the payment, an amount identified as living allowance (the basic payment) is included; and

                     (d)  the payment relates to a period;

wife pension is not payable to the person in respect of any part of the period.

     151A(2)  If:

                     (a)  a person is qualified for a payment under the ABSTUDY Scheme; and

                     (b)  the payment for which the person is qualified is a payment that:

                              (i)  is made on the basis that the person is a full-time student; and

                             (ii)  is calculated on the basis that an amount identified as living allowance (the basic payment) is included; and

                            (iii)  relates to a period;

wife pension is not payable to the person in respect of any part of the period.

     151A(3)  If:

                     (a)  a person may enrol in a full-time course of education; and

                     (b)  a payment referred to in subsection (2) may be made in respect of the person;

the Secretary may decide that, in spite of subsection (2), wife pension is payable to the person before the person starts the course.


 

Division 4Rate of wife pension

159  How to work out the rate of wife pension

                   A woman’s wife pension rate is worked out using Pension Rate Calculator A at the end of section 1064 (see Part 3.2).


 

Division 9Bereavement payments

Subdivision AContinuation of wife pension where partner dies

186  Continuation of wife pension for bereavement period

        186(1)  If:

                     (a)  a woman is receiving a wife pension; and

                     (b)  the woman’s partner dies;

the woman remains qualified for the wife pension during the bereavement period as if:

                     (c)  the partner had not died; and

                     (d)  the partner had continued to receive age or disability support pension, disability wage supplement or rehabilitation allowance; and

                     (e)  the woman and the partner had continued to be members of a couple.

Note:          a woman who remains qualified for a wife pension for the bereavement period may, in some circumstances, be automatically transferred to a parenting payment after the end of the bereavement period without making a claim for that payment (see subsection 501(3)).

187  Continued wife pension rate

                   Where a woman is qualified for a wife pension because of section 186, the woman’s wife pension rate is worked out as follows:

                     (a)  during the bereavement rate continuation period, the rate of wife pension is the rate that would have been payable to the woman if:

                              (i)  her partner had not died; and

                             (ii)  where the couple had been an illness separated couple or a respite care couple—they had not been such a couple;

                     (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 woman if she had been qualified for a widow B pension.

Subdivision BDeath of pensioner partner

188  Qualification for payments under this Subdivision

        188(1)  If:

                     (a)  a woman is receiving a wife pension; and

                     (b)  the woman’s partner dies;

the woman is qualified for payments under this Subdivision to cover the bereavement period.

Note 1:       section 189 provides for the payment to the woman, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the woman’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 woman’s partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.

        188(2)  A woman who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.

        188(3)  An election under subsection (2):

                     (a)  must be made by written notice to the Secretary; and

                     (b)  may be made after the woman 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.

189  Continued payment of partner’s pension or allowance

                   If a woman is qualified for payments under this Subdivision in relation to the death of the woman’s partner, there is payable to the woman, on each day that would have been a payday of the partner in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the woman’s partner on that day if the partner had not died.

190  Lump sum payable in some circumstances

                   If:

                     (a)  a woman is qualified for payments under this Subdivision in relation to the death of the woman’s partner; and

                     (b)  the first available bereavement adjustment payday occurs before the end of the bereavement period;

there is payable to the woman 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.   Work out the amount that would have been payable to the woman on the woman’s payday immediately before the first available bereavement adjustment payday if:

               (a)     the woman’s partner had not died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 2.   Work out the amount that would have been payable to the woman’s partner on the first day that would have been a payday of the partner on or after the first available bereavement adjustment payday if:

               (a)     the partner had not died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 3.   Add the results of Step 1 and Step 2: the result is called the combined pensioner couple rate.

Step 4.   Work out the amount of widow B pension that would have been payable to the woman on her payday immediately before the first available bereavement adjustment payday if a widow B pension had been payable to the woman on that payday: the result is called the woman’s individual rate.

Step 5.   Take the woman’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component.

Step 6.   Work out the number of the partner’s paydays in the bereavement lump sum period.

Step 7.   Multiply the partner’s instalment component by the number obtained in Step 6: the result is the amount of the lump sum payable to the woman under this section.

191  Effect of death of person entitled to payments under this Subdivision

                   If:

                     (a)  a woman is qualified for payments under this Subdivision in relation to the death of the woman’s partner; and

                     (b)  the woman dies within the bereavement period; and

                     (c)  the Secretary does not become aware of the death of the woman’s partner before the woman 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.   Work out the amount that would have been payable to the woman on the woman’s payday immediately after the day on which the woman died if:

               (a)     neither the woman nor the woman’s partner had died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 2.   Work out the amount that would have been payable to the partner on the first day that would have been a payday of the partner on or after the woman’s payday referred to in Step 1 if:

               (a)     neither the woman nor the partner had died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 3.   Add the results of Step 1 and Step 2: the result is called the combined pensioner couple rate.

Step 4.   Work out the amount that, but for sections 186 and 187, would have been payable to the woman on the woman’s payday immediately after the day on which the woman died if the woman had not died: the result is called the woman’s individual rate.

Step 5.   Take the woman’s individual rate away from the combined pensioner couple rate: the result is called the partner’s instalment component.

Step 6.   Work out the number of the partner’s paydays in the period that commences on the day on which the woman dies and ends on the day on which the bereavement period ends.

Step 7.   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.

192  Matters affecting payment of benefits under this Subdivision

        192(1)  If:

                     (a)  a woman is qualified for payments under this Subdivision in relation to the death of the woman’s partner; and

                     (b)  after the woman’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 woman 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 woman or from the personal representative of the woman’s partner, except to the extent (if any) that the amount exceeds the amount payable to the woman under this Subdivision;

                     (e)  the amount payable to the woman under this Subdivision is to be reduced by the amount referred to in paragraph (b).

        192(2)  If:

                     (a)  a woman is qualified for payments under this Subdivision in relation to the death of the woman’s partner; and

                     (b)  an amount to which the woman’s partner would have been entitled if the woman’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; and

                     (c)  the bank pays to the woman, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);

the bank 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 woman’s partner or anyone else in respect of the payment of that money to the woman.


 

Part 2.5Carer payment

Division 1AInterpretation

197  Definitions

        197(1)  In this Part, unless the contrary intention appears:

Adult Disability Assessment Tool has the meaning given by subsection 38C(3).

care includes attention and supervision.

care receiver has the meaning given by subsection 198(2).

disabled adult means a person aged 16 or more who:

                     (a)  has a physical, intellectual or psychiatric disability; and

                     (b)  is likely to suffer from that disability permanently or for an extended period.

guardian, in relation to a profoundly disabled child or a disabled child, means a person who has been granted guardianship of the child under a law of the Commonwealth, a State or a Territory.

higher ADAT score adult means a disabled adult who is a care receiver because paragraph 198(2)(a) applies.

lower ADAT score adult means a disabled adult who is a care receiver because paragraph 198(2)(d) applies.

profoundly disabled child has the meaning given by subsection (2) or (2A).

        197(2)  A child is a profoundly disabled child if:

                     (a)  the child has either:

                              (i)  a severe multiple disability; or

                             (ii)  a severe medical condition; and

                     (b)  the child, because of that disability or condition, needs continuous personal care for:

                              (i)  6 months or more; or

                             (ii)  if the child’s condition is terminal and the child’s life expectancy is less than 6 months—the remainder of the child’s life; and

                     (c)  the child’s disability or condition includes 3 or more of the following circumstances:

                              (i)  the child receives all food and fluids by nasogastric or percutaneous enterogastric tube;

                             (ii)  the child has a tracheostomy;

                            (iii)  the child must use a ventilator for at least 8 hours each day;

                            (iv)  the child:

                                        (A)  has faecal incontinence day and night; and

                                        (B)  if under 3 years of age, is expected to have faecal incontinence day and night at the age of 3;

                             (v)  the child:

                                        (A)  cannot stand without support; and

                                        (B)  if under 2 years of age, is expected to be unable to stand without support at the age of 2;

                            (vi)  a medical practitioner has certified in writing that the child has a terminal condition for which palliative care has replaced active treatment;

                           (vii)  the child:

                                        (A)  requires personal care on 2 or more occasions between 10 pm and 6 am each day; and

                                        (B)  if under 6 months of age, is expected to require care as described in sub-subparagraph (A) at the age of 6 months.

     197(2A)  A child is a profoundly disabled child if a medical practitioner has certified in writing that:

                     (a)  the child:

                              (i)  has a terminal condition; and

                             (ii)  is in the advanced phase of that condition; and

                     (b)  either:

                              (i)  the child has a life expectancy measured in weeks or months; or

                             (ii)  it is possible that the child will live for more than 12 months but unlikely that he or she will live for a period substantially greater than 12 months; and

                     (c)  because of the condition referred to in paragraph (a), the child will need continuous personal care for the remainder of his or her life.

        197(3)  A reference in this Part to a parent includes a reference to a guardian.


 

Division 1Qualification for and payability of carer payment

Subdivision AQualification

198  Qualification for carer payment

        198(1)  A person is qualified for a carer payment if the requirements of this section are met.

Note:          Sections 198AA, 198AB and 198AC allow the person to qualify in certain short-term circumstances where the requirements would not be met.

Constant care of disabled etc. persons

        198(2)  The person must personally provide constant care for:

                     (a)  either:

                              (i)  if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or

                             (ii)  if not—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or

                     (b)  a profoundly disabled child (the care receiver) aged under 16; or

                     (c)  2 or more disabled children (the care receivers) aged under 16; or

                     (d)  a disabled adult and a dependent child of the adult (the care receivers), where:

                              (i)  the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; and

                             (ii)  the child is aged under 16; and

                            (iii)  if the child is aged 6 or more—carer allowance is payable for the child.

Note 1:       In a paragraph (c) case, subsection (8) contains an additional requirement about care that must be satisfied.

Note 2:       In a paragraph (d) case, subsection (9) deems certain supervision to constitute care.

Care in home

        198(3)  The care must be provided in a private residence that is the home of the care receiver or care receivers.

Carer in Australia

        198(4)  The person must be an Australian resident, unless:

                     (a)  the person is in a country in which carer payment may be granted to the person under a scheduled international social security agreement; and

                     (b)  the scheduled international social security agreement entered into force on or before 24 December 1992.

Income and assets tests etc.

        198(5)  The care receiver or care receivers must:

                     (a)  if the care receiver is a profoundly disabled child or the care receivers are 2 or more disabled children—require constant care; and

                     (b)  subject to subsection (6), be Australian residents; and

Note:       For Australian resident see section 7.

                     (c)  subject to subsection (7), pass the income test under section 198A; and

                     (d)  subject to subsection (7), either:

                              (i)  pass the assets test under section 198D; or

                             (ii)  be the subject of a decision in force under subsection 198N(2), (3) or (4) that subparagraph (i) does not disqualify the person providing the constant care from carer payment.

Alternative to Australian residence test for higher ADAT score adults

        198(6)  Paragraph (5)(b) does not apply if:

                     (a)  the care receiver is the higher ADAT score adult mentioned in paragraph (2)(a); and

                     (b)  the adult is receiving a social security pension; and

                     (c)  carer payment may be granted to another person for the adult under a scheduled international social security agreement.

Alternative to income/assets test for higher ADAT score adults

        198(7)  Paragraphs (5)(c) and (d) do not apply if the care receiver is the higher ADAT score adult mentioned in paragraph (2)(a) and the adult:

                     (a)  is receiving a social security pension or benefit, a service pension or income support supplement; or

                     (b)  would be receiving a social security or service pension or income support supplement if he or she had been an Australian resident for a long enough period.

Level of care requirement for 2 or more disabled children

        198(8)  If the care receivers are the 2 or more disabled children mentioned in paragraph (2)(c), the Secretary must be of the opinion that the children require a level of care that is at least equivalent to the level of care required by a profoundly disabled child.

Deemed personal care of disabled adult and dependent child

        198(9)  For the purposes of paragraph (2)(d) and other references in this Part that relate to that paragraph, if a disabled adult is providing care of a dependent child of the adult at a particular time and another person is supervising the provision of that care at that time, the other person is taken personally to provide care of the adult and child at that time.

198AAA  Continuation of qualification when person receiving care admitted to institution

198AAA(1) This section applies if:

                     (a)  carer payment is payable to a person who has ordinarily been providing constant care for a care receiver or care receivers; and

                     (b)  the person ceases to be qualified for the payment because he or she ceases to provide constant care for the care receiver or any of the care receivers as a result of the care receiver being admitted permanently to an institution where care is provided for the care receiver.

198AAA(2) The carer payment continues to be payable to the person for 14 weeks after the person ceases to be qualified, and then ceases to be payable.

198AA  Qualification for carer payment—hospitalisation

  198AA(1)  If:

                     (a)  a person (the carer) is participating in the care of a disabled adult, a profoundly disabled child, a disabled child, or a dependent child of a disabled adult, (the hospitalised person) in hospital; and

                     (b)  it is reasonable to assume that, if the hospitalised person were not in hospital, the carer would qualify for carer payment for the hospitalised person or for the hospitalised person and another person or persons; and

                     (c)  either:

                              (i)  the hospitalised person is terminally ill; or

                             (ii)  it is reasonable to expect that he or she will reside in his or her private home upon leaving hospital;

then the carer qualifies for carer payment.

Limit on qualification under subsection (1)

  198AA(2)  However, the period, or the sum of the periods, for which the person can be qualified under subsection (1) is 63 days in any calendar year.

198AB  Care not required to be in private residence during portability period

                   During any period of absence from Australia:

                     (a)  throughout which Division 2 of Part 4.2 applies to the person; and

                     (b)  that is before the end of the person’s portability period for carer payment (within the meaning of that Division);

the person does not cease to be qualified for carer payment merely because the constant care of the care receiver or care receivers is not provided in a private residence that is the home of the care receiver or care receivers.

198AC  Effect of cessation of care etc. on carer payment

Continuation of payment where temporary cessation of care

  198AC(1)  Subject to subsection (3), if:

                     (a)  a person is qualified for carer payment because the person is personally providing constant care for a care receiver or care receivers; and

                     (b)  the person temporarily ceases to provide that care for the care receiver or care receivers;

the person does not cease to be qualified for the carer payment merely because of that cessation.

Continuation of payment after hospitalisation—section 198AA ceases to apply

  198AC(2)  Subject to subsection (3), if:

                     (a)  a person is qualified for carer payment under section 198AA because the person is participating in the care of an adult or child in hospital; and

                     (b)  apart from this subsection, the person would later cease to be qualified for carer payment under that section; and

                     (c)  the person would not cease to be qualified for carer payment if the person were providing constant care for the adult or child, or the adult or child and another person;

the person does not cease to be qualified for carer payment merely because of the lack of provision of constant care.

Limit on subsections (1) and (2)

  198AC(3)  However, the period, or the sum of the periods, for which subsection (1) or (2), or a combination of those subsections, can apply is:

                     (a)  63 days in any calendar year; or

                     (b)  another period that the Secretary, for any special reason in the particular case, decides to be appropriate.

Cessation of constant personal care in order to undertake training etc.

  198AC(4)  If:

                     (a)  a person is qualified for carer payment because the person is personally providing constant care for a care receiver or care receivers; and

                     (b)  the person temporarily ceases to provide that care in order to undertake training, education, unpaid voluntary work or paid employment; and

                     (c)  the cessation does not exceed 25 hours per week;

the person does not cease to be qualified for the carer payment merely because of the cessation.

Cessation of participation in hospital care in order to undertake training etc.

  198AC(5)  If:

                     (a)  a person is qualified for carer payment because the person is participating in the care of another person in hospital; and

                     (b)  the person temporarily ceases to participate in the care in order to undertake training, education, unpaid voluntary work or paid employment; and

                     (c)  the cessation does not exceed 25 hours per week;

the person does not cease to be qualified for the carer payment merely because of the cessation.

198A  Income test
[see Appendix for CPI adjusted figures]

Passing the income test

     198A(1)  A care receiver or care receivers pass the income test if the taxable income of the care receiver, or the sum of the taxable incomes of the care receivers, worked out under section 198B for the appropriate tax year determined under section 198C is not more than $66,403 (the income ceiling).

Income test failed where no taxable income for appropriate tax year

     198A(2)  A care receiver or care receivers do not pass the income test if any person (whether or not a care receiver) whose taxable income is required to be taken into account in applying section 198B does not have an assessed taxable income or an accepted estimated taxable income for the appropriate tax year.

198B  Taxable income

Rules that apply for the purposes of this Subdivision

     198B(1)  For the purposes of this Subdivision, the rules set out in subsections (1A), (1B), (1BA), (1C) and (6) apply.

Taxable income of higher ADAT score adult

  198B(1A)  If a care receiver who is a higher ADAT score adult is a member of a couple, the care receiver’s taxable income includes the taxable income of the care receiver’s partner.

Taxable income of profoundly disabled child or disabled child

   198B(1B)  If a care receiver is a profoundly disabled child, or a disabled child, who lives with his or her parent, the taxable income of the care receiver includes the taxable income of the following people:

                     (a)  the parent;

                     (b)  if the parent is a member of a couple—the parent’s partner;

                     (c)  if the parent or the partner has one or more FTB children—the FTB children (other than any who are care receivers).

However, if the care receiver is a disabled child who is one of 2 or more care receivers, the taxable income of the same person is not to be included in the taxable income of any of the other care receivers.

Taxable income of lower ADAT score adult

198B(1BA)  If a care receiver is a lower ADAT score adult, the care receiver’s taxable income includes the taxable income of the following people:

                     (a)  if the adult is a member of a couple—the adult’s partner and any FTB child (except the other care receiver) of the adult or of the partner;

                     (b)  in any other case—any FTB child (except the other care receiver) of the adult.

Taxable income

   198B(1C)  A person’s taxable income for a tax year is:

                     (a)  the person’s assessed taxable income for the tax year; or

                     (b)  if the Commissioner of Taxation has not made an assessment of the person’s taxable income for the tax year—the person’s accepted estimated taxable income for the tax year.

Note:          For accepted estimated taxable income see subsection (5).

Assessed taxable income

     198B(2)  At a particular time, a person’s assessed taxable income for a tax year is the taxable income according to whichever of the following was made most recently:

                     (a)  an assessment of the person’s taxable income for the tax year made by the Commissioner of Taxation;

                     (b)  an amended assessment of the person’s taxable income for the tax year made by the Commissioner of Taxation;

                     (c)  an amendment made by a tribunal of an assessment or amended assessment of the person’s taxable income for the tax year made by the Commissioner of Taxation;

                     (d)  an amendment made by a court of:

                              (i)  an assessment or amended assessment of the person’s taxable income for the tax year made by the Commissioner of Taxation; or

                             (ii)  an amended assessment of the person’s taxable income for the tax year made by a tribunal.

Estimating taxable income

     198B(3)  A person, or, if the person is a child—the child’s parent or carer, may give the Secretary a written estimate of the person’s taxable income for a tax year.

Accepting estimate of taxable income

     198B(4)  The Secretary may accept the estimate only if:

                     (a)  the person does not have an assessed taxable income for the tax year; and

                     (b)  one of the following applies:

                              (i)  the tax year has not ended;

                             (ii)  the Secretary is satisfied that the person is not required to lodge a return of income for the tax year under the Income Tax Assessment Act;

                            (iii)  the Secretary is satisfied that the person has lodged, or proposes to lodge, a return of income for the tax year under the Income Tax Assessment Act; and

                     (c)  the Secretary is satisfied that the estimate is reasonable.

Accepted estimated taxable income

     198B(5)  A person’s accepted estimated taxable income for a tax year is the taxable income according to the estimate that was most recently given to the Secretary under subsection (3) and accepted by the Secretary.

Nil amounts of taxable income

     198B(6)  A person’s assessed taxable income or accepted estimate of taxable income may be a nil amount.

198C  Appropriate tax year

Appropriate tax year in ordinary cases

     198C(1)  Subject to this section, the appropriate tax year for a day is the base tax year for that day.

Note:          For base tax year see subsection (6).

     198C(2)  If:

                     (a)  carer payment would not be payable to a person because the care receiver or care receivers would not pass the income test under subsection 198A(1) apart from this subsection; and

                     (b)  the Secretary is given a written request to treat the care receiver or care receivers as if the tax year in which the request is given were the appropriate tax year; and

                     (c)  the request is given to the Secretary by the person, any care receiver who is 16 or over or a parent of any care receiver who is under 16; and

                     (d)  the taxable income of the care receiver, or the sum of the taxable incomes of the care receivers, for the tax year in which the request is made is likely to be less than the income ceiling;

the appropriate tax year, for the purposes of applying subsection 198A(1) to the care receiver or care receivers on or after the day on which the request is given, is the tax year in which the request is made.

Note 1:       For taxable income see section 198B.

Note 2:       For income ceiling see subsection 198A(1).

     198C(3)  If:

                     (a)  an instalment of carer payment (the first payment) is paid to a person on a day in one calendar year; and

                     (b)  the next instalment of carer payment (the second payment) is paid to a person on a day in the next calendar year; and

                     (c)  the instalment period to which the second payment relates:

                              (i)  commences immediately after the end of the instalment period to which the first payment related; and

                             (ii)  includes the first day of the calendar year referred to in paragraph (b); and

                     (d)  the person’s carer payment is payable in relation to the period referred to in subparagraph (c)(i) because, as a result of a request under paragraph (2)(b), the appropriate tax year is the tax year in which that period occurs (the current tax year); and

                     (e)  the care receiver’s taxable income, or the sum of the taxable incomes of the care receivers, for the current tax year is less than the care receiver’s taxable income, or the sum of the taxable incomes of the care receivers, for the base tax year;

the care recipient’s appropriate tax year, as from the beginning of the later calendar year, is the current tax year and not the base tax year unless the care recipient’s taxable income for the base tax year is less than the income ceiling.

Note 1:       For base tax year see subsection (6).

Note 2:       For income ceiling see subsection 198A(1).

Change to appropriate tax year because of notifiable event

     198C(4)  For the purposes of section 198A, if:

                     (a)  a notifiable event occurs in relation to a care receiver or any of 2 or more care receivers; and

                     (b)  the care receiver’s taxable income, or the sum of the taxable incomes of the care receivers, for the tax year in which the notifiable event occurs exceeds the income ceiling;

the appropriate tax year is the tax year in which the notifiable event occurs.

Note 1:       For notifiable event see subsection (6).

Note 2:       For taxable income see section 198B.

Note 3:       For income ceiling see subsection 198A(1).

Note 4:       The effect of subsection (4) is that the person caring for the care receiver or care receivers will cease to be qualified for carer payment because the care receiver or care receivers will not pass the income test under subsection 198A(1).

Change to appropriate tax year because of effect of notifiable event on taxable income for later tax year

     198C(5)  For the purposes of section 198A, if:

                     (a)  a notifiable event occurs in relation to a care receiver or any of 2 or more care receivers; and

                     (b)  the care receiver’s taxable income, or the sum of the taxable incomes of the care receivers, for the tax year in which the notifiable event occurs (the event tax year) does not exceed the income ceiling; and

                     (c)  the care receiver’s taxable income, or the sum of the taxable incomes of the care receivers, for the tax year that follows the event tax year is likely to exceed the income ceiling;

the appropriate tax year is the year that follows the event tax year.

Note 1:       For notifiable event see subsection (6).

Note 2:       For taxable income see section 198B.

Definitions

     198C(6)  For the purposes of this section:

                     (a)  the base tax year for a day is the tax year that ended on 30 June in the calendar year immediately before the calendar year in which the day falls; and

                     (b)  a notifiable event is an event or change of circumstances that:

                              (i)  is specified in a notice under subsection 222(1A); and

                             (ii)  is described by the notice as a notifiable event.

Example:          Suppose 4 April 1996 is a carer payment payday. It falls in the calendar year 1 January to 31 December 1996, so the base tax year for that payday is the tax year that ended on 30 June 1995 (i.e. the year of income beginning on 1 July 1994).

198D  Assets test
[see Appendix for CPI adjusted figures]

Higher ADAT score adult passing the assets test

     198D(1)  A care receiver who is a higher ADAT score adult passes the assets test if the total value of the following assets is less than $376,750:

                     (a)  the care receiver’s assets;

                     (b)  if the care receiver has a partner—any assets of the partner;

                     (c)  if the care receiver or the care receiver’s partner has one or more FTB children—any assets of the FTB children.

Note:          The amount specified in subsection (1) is indexed on each 1 January (see sections 1190 and 1191).

Profoundly disabled child passing the assets test

  198D(1A)  A care receiver who is a profoundly disabled child passes the assets test if the total value of the following assets is less than $410,000:

                     (a)  the disabled child’s assets;

                     (b)  if the disabled child lives with his or her parent:

                              (i)  the assets of the parent;

                             (ii)  if the parent is a member of a couple—the assets of the parent’s partner;

                            (iii)  if the parent or the partner has one or more FTB children—the assets of those FTB children.

  198D(1B)  For the purposes of this Division (other than subsection (1A)), if the disabled child lives with his or her parent, the disabled child’s assets are taken to include the assets listed in subsection (1A).

Disabled children passing the assets test

  198D(1C)  Care receivers who are 2 or more disabled children pass the assets test if the total value of the following assets is less than $410,000:

                     (a)  the assets of all of the disabled children;

                     (b)  if any of the disabled children lives with his or her parent:

                              (i)  the assets of the parent;

                             (ii)  if the parent is a member of a couple—the assets of the parent’s partner;

                            (iii)  if the parent or the partner has one or more FTB children—the assets of those FTB children.

However, assets of the same person are not to be taken into account more than once.

  198D(1D)  For the purposes of this Division (other than subsection (1C)), if any of the disabled children lives with his or her parent, the disabled child’s assets are taken to include the assets listed in paragraph (1C)(b) in relation to the child. However, assets of the same person are not to be included in the assets of more than one child.

Lower ADAT score adult and dependent child passing the assets test

   198D(1E)  Care receivers who are a lower ADAT score adult and a dependent child pass the assets test if the total value of the assets of the following people is less than $410,000:

                     (a)  the adult;

                     (b)  the dependent child;

                     (c)  if the adult is a member of a couple—the adult’s partner;

                     (d)  if the adult or the partner has one or more FTB children—the FTB children.

198E  Working out the value of assets

                   For the purposes of subsection 198D(1), (1A), (1C) or (1E), the value of assets is to be worked out in accordance with:

                     (a)  Part 3.12, except Divisions 2, 3 and 4 of that Part; and

                     (b)  sections 198F to 198MA (inclusive); and

                     (c)  Part 3.18, except Division 9.

Note:          Sections 198F to 198MA (inclusive) make special provision for the assets test for care receivers in relation to subjects covered more generally by Division 2 of Part 3.12.

198F  Disposal of assets—care receiver assets test

      198F(1)  For the purposes of this Division, a person disposes of assets of the person if:

                     (a)  the person engages in a course of conduct that directly or indirectly:

                              (i)  destroys all or some of the person’s assets; or

                             (ii)  disposes of all or some of the person’s assets; or

                            (iii)  diminishes the value of all or some of the person’s assets; and

                     (b)  one of the following subparagraphs is satisfied:

                              (i)  the person receives no consideration in money or money’s worth for the destruction, disposal or diminution;

                             (ii)  the person receives inadequate consideration in money or money’s worth for the destruction, disposal or diminution;

                            (iii)  the Secretary is satisfied that the person’s purpose, or dominant purpose, in engaging in that course of conduct was to enable another person who provides care for the person to obtain a carer payment.

   198F(1A)  For the purposes of this Division, a person disposes of assets of a profoundly disabled child, a disabled child or a dependent child if:

                     (a)  the person engages in a course of conduct that directly or indirectly:

                              (i)  destroys all or some of the child’s assets; or

                             (ii)  disposes of all or some of the child’s assets; or

                            (iii)  diminishes the value of all or some of the child’s assets; and

                     (b)  one of the following paragraphs is satisfied:

                              (i)  the person receives no consideration in money or money’s worth for the destruction, disposal or diminution;

                             (ii)  the person receives inadequate consideration in money or money’s worth for the destruction, disposal or diminution;

                            (iii)  the Secretary is satisfied that the person’s purpose, or dominant purpose, in engaging in that course of conduct was to enable the person who provides care for the child to obtain a carer payment.

Note:          Subsections 198D(1B) and (1D) provide that if the child lives with a parent, the assets listed in subsection 198D(1A) and paragraph (1C)(b) are taken to be the assets of the child.

      198F(2)  If, under subsection 1147(1A), the value of a granny flat interest is less than the amount paid, or agreed to be paid, for the interest, then, for the purposes of this section, so much of the amount paid, or agreed to be paid, as exceeds the value of the interest is not consideration for the interest.

Note:          For granny flat interest see subsection 12A(2).

198G  Amount of disposition—care receiver assets test

                   If a person disposes of assets, the amount of the disposition is:

                     (a)  if the person receives no consideration for the destruction, disposal or diminution—an amount equal to:

                              (i)  the value of the assets that are destroyed; or

                             (ii)  the value of the assets that are disposed of; or

                            (iii)  the amount of the diminution in the value of the assets whose value is diminished; or

                     (b)  if the person receives consideration for the destruction, disposal or diminution—an amount equal to:

                              (i)  the value of the assets that are destroyed; or

                             (ii)  the value of the assets that are disposed of; or

                            (iii)  the amount of the diminution in the value of the assets whose value is diminished;

                            less the amount of the consideration received by the person in respect of the destruction, disposal or diminution.

198H  Disposal of assets in pre-pension years—individual higher ADAT score adults

     198H(1)  This section applies in determining whether a person (the carer) qualifies for a carer payment when claiming it for caring for a care receiver who:

                     (a)  is a higher ADAT score adult; and

                     (b)  is not a member of a couple when the claim is made.

  198H(1A)  This section applies only to disposals of assets that took place before 1 July 2002.

     198H(2)  If:

                     (a)  the care receiver has disposed of an asset of the care receiver during a pre-pension year of the carer; and

                     (b)  the amount of that disposition, or the sum of that amount and of the amounts (if any) of other dispositions of assets previously made by the care receiver during that pre-pension year, exceeds $10,000;

the lesser of the following amounts is to be included in the value of the care receiver’s assets for the period of 5 years that starts on the day on which the disposition took place:

                     (c)  the amount of the first-mentioned disposition;

                     (d)  the amount by which the sum of the amount of the first-mentioned disposition of assets and of the amounts (if any) of other dispositions of assets previously made by the care receiver during that pre-pension year exceeds $10,000.

Note 1:       For disposes of assets see section 198F.

Note 2:       For amount of disposition see section 198G.

     198H(3)  In this section:

pre-pension year, in relation to a carer, means:

                     (a)  the 12 months ending on the carer’s start day for carer payment; or

                     (b)  any preceding period of 12 months.

198HA  Disposal of assets in pre-pension years—profoundly disabled child or disabled children

  198HA(1)  This section applies in determining whether a person (the carer) qualifies for a carer payment when claiming it for caring for a care receiver who is a profoundly disabled child or care receivers each of whom is a disabled child.

198HA(1A) This section applies only to disposals of assets that took place before 1 July 2002.

  198HA(2)  If:

                     (a)  a person has disposed of one or more of the child’s assets during a pre-pension year of the carer; and

                     (b)  the amount of that disposition, or the sum of that amount and of the amounts (if any) of other dispositions of the child’s assets previously made during that pre-pension year, exceeds $10,000;

the lesser of the following amounts is to be included in the value of the child’s assets for the period of 5 years that starts on the day on which the disposition took place:

                     (c)  the amount of the first-mentioned disposition;

                     (d)  the amount by which the sum of the amount of the first-mentioned disposition of assets and of the amounts (if any) of other dispositions of assets previously made during that pre-pension year exceeds $10,000.

Note 1:       For disposes of assets see section 198F.

Note 2:       For amount of disposition see section 198G.

Note 3:       Subsections 198D(1B) and (1D) provide that if the child lives with a parent, the assets listed in subsection 198D(1A) and paragraph (1C)(b) are taken to be assets of the child.

  198HA(3)  In this section:

pre-pension year, in relation to a carer, means:

                     (a)  the 12 months ending on the carer’s start day for carer payment; or

                     (b)  any preceding period of 12 months.

198HB  Disposal of assets in pre-pension years—lower ADAT score adult and dependent child

Application

  198HB(1)  This section applies in determining whether a person (the carer) qualifies for a carer payment when claiming it for caring for care receivers who are a lower ADAT score adult and a dependent child.

Disposals before 1 July 2002

198HB(1A)  This section applies only to disposals of assets that took place before 1 July 2002.

Increase in value of assets of lower ADAT score adult

  198HB(2)  Subject to subsection (3), if:

                     (a)  there has been a disposal, during a pre-pension year of the carer, of an asset of any of the following persons (a qualifying person):

                              (i)  the lower ADAT score adult;

                             (ii)  the dependent child;

                            (iii)  if the adult is a member of a couple—the adult’s partner and any FTB child of the adult or of the partner;

                            (iv)  if the adult is not a member of a couple—any FTB child of the adult; and

                     (b)  the amount of that disposition, or the sum of that amount and the amounts (if any) of other dispositions of assets of any of the qualifying persons during the pre-pension year, exceeds $10,000;

the lesser of the following amounts is to be included in the value of the assets of the lower ADAT score adult, for the period of 5 years that starts on the day on which the disposition took place:

                     (c)  the amount of the first-mentioned disposition;

                     (d)  the amount by which the sum of the amount of the first-mentioned disposition and of the amounts (if any) of other dispositions of assets of the qualifying persons during that pre-pension year exceeds $10,000.

Note 1:       For disposition of assets see section 198F.

Note 2:       For amount of disposition see section 198G.

Effect of ceasing to be member of couple or death of FTB child after disposal of assets

  198HB(3)  If:

                     (a)  an amount is included under subsection (2) in the value of the assets of the lower ADAT score adult because of the disposition of an asset of any of the qualifying persons; and

                     (b)  if the lower ADAT score adult is a member of a couple—either:

                              (i)  the adult ceases to be a member of that couple (either because his or her partner dies or for another reason); or

                             (ii)  any of the FTB children dies; and

                     (c)  if the lower ADAT score adult is not a member of a couple—any of the FTB children dies;

then, for the purposes of subsection (2), the following are to be disregarded:

                     (d)  in a subparagraph (b)(i) case—the partner and any FTB child of the partner and any disposition of their assets; or

                     (e)  in a subparagraph (b)(ii) or paragraph (c) case—the FTB child and any disposition of his or her assets.

Pre-pension year

  198HB(4)  In this section:

pre-pension year, in relation to a carer, means:

                     (a)  the 12 months ending on the carer’s provisional commencing day for the carer payment; or

                     (b)  any preceding period of 12 months.

198J  Disposal of assets before 1 July 2002—individual higher ADAT score adults

      198J(1)  This section applies in determining whether a person (the carer) who has been receiving a carer payment for caring for a care receiver who:

                     (a)  is a higher ADAT score adult; and

                     (b)  is not a member of a couple;

continues to qualify for the pension.

   198J(1A)  This section applies only to disposals of assets that took place before 1 July 2002.

      198J(2)  If:

                     (a)  the care receiver has disposed of an asset of the care receiver during a pension year of the carer; and

                     (b)  the amount of that disposition, or the sum of that amount and of the amounts (if any) of other dispositions of assets previously made by the care receiver during that pension year, exceeds $10,000;

the lesser of the following amounts is to be included in the value of the care receiver’s assets for the period of 5 years that starts on the day on which the disposition takes place:

                     (c)  the amount of the first-mentioned disposition;

                     (d)  the amount by which the sum of the amount of the first-mentioned disposition of assets, and of the amounts (if any) of other dispositions of assets previously made by the person during that pension year, exceeds $10,000.

Note 1:       For disposes of assets see section 198F.

Note 2:       For amount of disposition see section 198G.

      198J(3)  In this section:

pension year, in relation to a carer, means:

                     (a)  the 12 months starting on the day the carer payment first became payable to the carer; or

                     (b)  any preceding or following period of 12 months.

198JA  Disposal of assets before 1 July 2002—profoundly disabled children or disabled children

   198JA(1)  This section applies in determining whether a person (the carer) who has been receiving a carer payment for caring for a care receiver who is a profoundly disabled child or care receivers each of whom is a disabled child continues to qualify for the pension.

198JA(1A)  This section applies only to disposals of assets that took place before 1 July 2002.

   198JA(2)  If:

                     (a)  a person has disposed of one or more of the child’s assets during a pension year of the carer; and

                     (b)  the amount of that disposition, or the sum of that amount and of the amounts (if any) of other dispositions of the child’s assets previously made during that pension year, exceeds $10,000;

the lesser of the following amounts is to be included in the value of the child’s assets for the period of 5 years that starts on the day on which the disposition took place:

                     (c)  the amount of the first-mentioned disposition;

                     (d)  the amount by which the sum of the amount of the first-mentioned disposition of assets and of the amounts (if any) of other dispositions of assets previously made during that pension year exceeds $10,000.

Note 1:       For disposes of assets see section 198F.

Note 2:       For amount of disposition see section 198G.

Note 3:       Subsections 198D(1B) and (1D) provide that if the child lives with a parent, the assets listed in subsection 198D(1A) and paragraph (1C)(b) are taken to be assets of the child.

   198JA(3)  In this section:

pension year, in relation to a carer, means:

                     (a)  the 12 months starting on the day the carer payment first became payable to the carer; or

                     (b)  any preceding or following period of 12 months.

198JB  Disposal of assets before 1 July 2002—lower ADAT score adult and dependent child

Application

    198JB(1)  This section applies in determining whether a person (the carer) who has been receiving a carer payment for caring for care receivers who are a lower ADAT score adult and a dependent child continues to qualify for the pension.

198JB(1A)  This section applies only to disposals of assets that took place before 1 July 2002.

Increase in value of assets of lower ADAT score adult

    198JB(2)  Subject to subsection (3), if:

                     (a)  there has been a disposal, during a pension year of the carer, of an asset of any of the following persons (a qualifying person):

                              (i)  the lower ADAT score adult;

                             (ii)  the dependent child;

                            (iii)  if the adult is a member of a couple—the adult’s partner and any FTB child of the adult or of the partner;

                            (iv)  if the adult is not a member of a couple—any FTB child of the adult; and

                     (b)  the amount of that disposition, or the sum of that amount and the amounts (if any) of other dispositions of assets of any of the qualifying persons during the pension year exceeds $10,000;

the lesser of the following amounts is to be included in the value of the assets of the lower ADAT score adult, for the period of 5 years that starts on the day on which the disposition took place:

                     (c)  the amount of the first-mentioned disposition;

                     (d)  the amount by which the sum of the amount of the first-mentioned disposition and of the amounts (if any) of other dispositions of assets of the qualifying persons during that pension year exceeds $10,000.

Note 1:       For disposition of assets see section 198F.

Note 2:       For amount of disposition see section 198G.

Effect of ceasing to be member of couple or death of FTB child after disposal of assets

    198JB(3)  If:

                     (a)  an amount is included under subsection (2) in the value of the assets of the lower ADAT score adult because of the disposition of an asset of any of the qualifying persons; and

                     (b)  if the lower ADAT score adult is a member of a couple—either:

                              (i)  the adult ceases to be a member of that couple (either because his or her partner dies or for another reason); or

                             (ii)  any of the FTB children dies; and

                     (c)  if the lower ADAT score adult is not a member of a couple—any of the FTB children dies;

then, for the purposes of subsection (2), the following are to be disregarded:

                     (d)  in a subparagraph (b)(i) case—the partner and any FTB child of the partner and any disposition of their assets; or

                     (e)  in a subparagraph (b)(ii) or paragraph (c) case—the FTB child and any disposition of his or her assets.

Pension year

    198JB(4)  In this section:

pension year, in relation to a carer, means:

                     (a)  the 12 months starting on the day the carer payment first became payable to the carer; or

                     (b)  any preceding or following period of 12 months.

198JC  Disposal of assets in income year—individual higher ADAT score adults

Application

    198JC(1)  This section has effect in determining whether a person (the carer) who has been receiving a carer payment for caring for a care receiver who:

                     (a)  is a higher ADAT score adult; and

                     (b)  is not a member of a couple;

continues to qualify for the payment.

Disposals to which section applies

    198JC(2)  This section applies to a disposal (the relevant disposal) on or after 1 July 2002 by the care receiver of an asset of the care receiver.

Increase in value of assets of higher ADAT score adult

    198JC(3)  If the amount of the relevant disposal, or the sum of that amount and the amounts (if any) of other disposals of assets previously made by the care receiver during the income year in which the relevant disposal took place, exceeds $10,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the care receiver’s assets for the period of 5 years starting on the day on which the relevant disposal took place:

                     (a)  the amount of the relevant disposal;

                     (b)  the amount by which the sum of the amount of the relevant disposal, and the amounts (if any) of other disposals of assets previously made by the care receiver during the income year in which the relevant disposal took place, exceeds $10,000.

198JD  Disposal of assets in 5 year period—individual higher ADAT score adults

Application

   198JD(1)  This section also has effect in determining whether a person (the carer) who has been receiving a carer payment for caring for a care receiver who:

                     (a)  is a higher ADAT score adult; and

                     (b)  is not a member of a couple;

continues to qualify for the payment.

Disposals to which section applies

   198JD(2)  This section applies to a disposal (the relevant disposal) on or after 1 July 2002 by the care receiver of an asset of the care receiver.

Increase in value of assets of higher ADAT score adult

   198JD(3)  If:

                     (a)  the sum of the amount of the relevant disposal and the amounts of any previous disposals during the rolling period by the care receiver of assets of the care receiver;

less

                     (b)  the sum of any amounts included in the value of the care receiver’s assets during the rolling period under section 198JC or any previous application or applications of this section;

exceeds $30,000, then, for the purposes of this Act, an amount equal to the excess is to be included in the value of the care receiver’s assets for the period of 5 years starting on the day on which the relevant disposal took place.

Rolling period

   198JD(4)  For the purposes of this section, the rolling period is the period comprising the income year in which the relevant disposal took place and such (if any) of the 4 previous income years as occurred after 30 June 2002.

198JE  Disposal of assets in income year—profoundly disabled children

Application

    198JE(1)  This section has effect in determining whether a person who has been receiving a carer payment for caring for a care receiver who is a profoundly disabled child continues to qualify for the payment.

Disposals to which section applies

    198JE(2)  This section applies to a disposal (the relevant disposal) on or after 1 July 2002 by a person of one or more of the disabled child’s assets.

Increase in value of assets of profoundly disabled child

    198JE(3)  If the amount of the relevant disposal, or the sum of that amount and the amounts (if any) of other disposals of the disabled child’s assets previously made by a person during the income year in which the relevant disposal took place, exceeds $10,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the disabled child’s assets for the period of 5 years starting on the day on which the relevant disposal took place:

                     (a)  the amount of the relevant disposal;

                     (b)  the amount by which the sum of the amount of the relevant disposal, and the amounts (if any) of other disposals of the disabled child’s assets previously made during the income year in which the relevant disposal took place, exceeds $10,000.

198JF  Disposal of assets in 5 year period—profoundly disabled children

Application

    198JF(1)  This section also has effect in determining whether a person who has been receiving a carer payment for caring for a care receiver who is a profoundly disabled child continues to qualify for the payment.

Disposals to which section applies

    198JF(2)  This section applies to a disposal (the relevant disposal) on or after 1 July 2002 by a person of one or more of the disabled child’s assets.

Increase in value of assets of profoundly disabled child

    198JF(3)  If:

                     (a)  the sum of the amount of the relevant disposal and the amounts of any previous disposals during the rolling period by a person of any of the disabled child’s assets;

less

                     (b)  the sum of any amounts included in the value of the disabled child’s assets during the rolling period under section 198JE or any previous application or applications of this section;

exceeds $30,000, then, for the purposes of this Act, an amount equal to the excess is to be included in the value of the disabled child’s assets for the period of 5 years starting on the day on which the relevant disposal took place.

Rolling period

    198JF(4)  For the purposes of this section, the rolling period is the period comprising the income year in which the relevant disposal took place and such (if any) of the 4 previous income years as occurred after 30 June 2002.

198JG  Disposal of assets in income year—lower ADAT score adult and dependent child

Application

    198JG(1)  This section has effect in determining whether a person (the carer) who has been receiving a carer payment for caring for care receivers who are a lower ADAT score adult and a dependent child continues to qualify for the payment.

Disposals to which section applies

    198JG(2)  This section applies to a disposal (the relevant disposal) on or after 1 July 2002 of an asset of any of the following persons (each of whom is called a qualifying person):

                     (a)  the lower ADAT score adult;

                     (b)  the dependent child;

                     (c)  if the adult is a member of a couple—the adult’s partner and any FTB child of the adult or of the partner;

                     (d)  if the adult is not a member of a couple—any FTB child of the adult.

Increase in value of assets of lower ADAT score adult

    198JG(3)  Subject to subsection (4), if the amount of the relevant disposal, or the sum of that amount and the amounts (if any) of other disposals of assets of any of the qualifying persons previously made during the income year in which the relevant disposal took place, exceeds $10,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the assets of the lower ADAT score adult for the period of 5 years starting on the day on which the relevant disposal took place:

                     (a)  the amount of the relevant disposal;

                     (b)  the amount by which the sum of the amount of the relevant disposal and the amounts (if any) of other disposals of assets of the qualifying persons previously made during the income year in which the relevant disposal took place, exceeds $10,000.

Effect of ceasing to be member of couple or death of FTB child after disposal of assets

    198JG(4)  If:

                     (a)  an amount is included under subsection (3) in the value of the assets of the lower ADAT score adult because of the relevant disposal; and

                     (b)  if the lower ADAT score adult is a member of a couple—either:

                              (i)  the adult ceases to be a member of that couple (either because his or her partner dies or for another reason); or

                             (ii)  any of the FTB children dies; and

                     (c)  if the lower ADAT score adult is not a member of a couple—any of the FTB children dies;

then, for the purposes of subsection (3), the following are to be disregarded:

                     (d)  in a subparagraph (b)(i) case—the partner and any FTB child of the partner and any disposal of their assets; or

                     (e)  in a subparagraph (b)(ii) or paragraph (c) case—the FTB child and any disposal of his or her assets.

198JH  Disposal of assets in 5 year period—lower ADAT score adult and dependent child

Application

   198JH(1)  This section also has effect in determining whether a person (the carer) who has been receiving a carer payment for caring for care receivers who are a lower ADAT score adult and a dependent child continues to qualify for the payment.

Disposals to which section applies

   198JH(2)  This section applies to a disposal (the relevant disposal) on or after 1 July 2002 of an asset of any of the following persons (each of whom is called a qualifying person):

                     (a)  the lower ADAT score adult;

                     (b)  the dependent child;

                     (c)  if the adult is a member of a couple—the adult’s partner and any FTB child of the adult or of the partner;

                     (d)  if the adult is not a member of a couple—any FTB child of the adult.

Increase in value of assets of lower ADAT score adult

   198JH(3)  Subject to subsection (4), if:

                     (a)  the sum of the amount of the relevant disposal and the amounts of any previous disposals during the rolling period of assets of any of the qualifying persons;

less

                     (b)  the sum of any amounts included in the value of the assets of the lower ADAT score adult during the rolling period under section 198JG or any previous application or applications of this section;

exceeds $30,000, then, for the purposes of this Act, an amount equal to the excess is to be included in the value of the assets of the lower of the ADAT score adult for the period of 5 years starting on the day on which the relevant disposal took place.

Effect of ceasing to be member of couple or death of FTB child after disposal of assets

   198JH(4)  If:

                     (a)  an amount is included under subsection (3) in the value of the assets of the lower ADAT score adult because of the relevant disposal; and

                     (b)  if the lower ADAT score adult is a member of a couple—either:

                              (i)  the adult ceases to be a member of that couple (either because his or her partner dies or for another reason); or

                             (ii)  any of the FTB children dies; and

                     (c)  if the lower ADAT score adult is not a member of a couple—any of the FTB children dies;

then, for the purposes of subsection (3), the following are to be disregarded:

                     (d)  in a subparagraph (b)(i) case—the partner and any FTB child of the partner and any disposal of their assets; or

                     (e)  in a subparagraph (b)(ii) or paragraph (c) case—the FTB child and any disposal of his or her assets.

Rolling period

   198JH(5)  For the purposes of this section, the rolling period is the period comprising the income year in which the relevant disposal took place and such (if any) of the 4 previous income years as occurred after 30 June 2002.

198K  Disposal of assets in pre-pension years—members of couples including higher ADAT score adults

     198K(1)  This section applies in determining whether a person (the carer) qualifies for carer payment when claiming it for caring for a higher ADAT score adult who is a member of a couple when the claim is made.

  198K(1A)  This section applies only to disposals of assets that took place before 1 July 2002.

Increase in value of assets of care receiver and of care receiver’s partner

     198K(2)  Subject to subsections (3) and (4), if:

                     (a)  the care receiver or the care receiver’s partner has disposed of an asset during a pre-pension year of the carer; and

                     (b)  the amount of that disposition, or the sum of that amount and the amounts (if any) of other dispositions of assets previously made by the care receiver or the partner during that pre-pension year, exceeds $10,000;

the lesser of the following amounts is to be included in the value of both the assets of the care receiver and the assets of the partner, for the period of 5 years that starts on the day on which the disposition took place:

                     (c)  50% of the amount of the first-mentioned disposition;

                     (d)  50% of the amount by which the sum of the amount of the first-mentioned disposition and of the amounts (if any) of other dispositions of assets previously made by the care receiver or the care receiver’s partner during that
pre-pension year exceeds $10,000.

Note 1:       For disposes of assets see section 198F.

Note 2:       For amount of disposition see section 198G.

Effect of separation of couple after disposal of care receiver’s asset

     198K(3)  If:

                     (a)  an amount is included under subsection (2) in the value of both the assets of the care receiver and the assets of the care receiver’s partner because of a disposition of an asset by the care receiver; and

                     (b)  the care receiver and the partner cease to be members of the same couple (either because the partner dies or for another reason);

the amount that was included in the value of the partner’s assets because of that disposition is to be included in the assets of the care receiver.

Effect of separation of couple after disposal of partner’s asset

     198K(4)  If:

                     (a)  an amount is included under subsection (2) in the value of both the assets of the care receiver and the assets of the care receiver’s partner because of a disposition of an asset by the partner; and

                     (b)  the care receiver and the partner cease to be members of the same couple (either because the partner dies or for another reason);

the amount that was included in the value of the care receiver’s assets because of that disposition is no longer to be included in the assets of the care receiver.

Pre-pension year

     198K(5)  In this section:

pre-pension year, in relation to a carer, means:

                     (a)  the 12 months ending on the carer’s start day for the carer payment; or

                     (b)  any preceding period of 12 months.

198L  Disposal of assets before 1 July 2002—members of couples including higher ADAT score adults

     198L(1)  This section applies in determining whether a person (the carer) who has been receiving a carer payment for caring for a higher ADAT score adult who is a member of a couple continues to qualify for the pension.

   198L(1A)  This section applies only to disposals of assets that took place before 1 July 2002.

Increase in value of assets of care receiver and of care receiver’s partner

     198L(2)  Subject to subsections (3) and (4), if:

                     (a)  the care receiver or the care receiver’s partner disposed of an asset during a pension year of the carer; and

                     (b)  the amount of that disposition, or the sum of that amount and the amounts (if any) of other dispositions of assets previously made by the care receiver or the care receiver’s partner during that pension year, exceeds $10,000;

the lesser of the following amounts is to be included in the value of both the assets of the care receiver and the assets of the partner, for the period of 5 years that starts on the day on which the disposition took place:

                     (c)  50% of the amount of the first-mentioned disposition;

                     (d)  50% of the amount by which the sum of the amount of the first-mentioned disposition and of the amounts (if any) of other dispositions of assets previously made by the care receiver or the care receiver’s partner during that pre-pension year exceeds $10,000.

Note 1:       For disposes of assets see section 198F.

Note 2:       For amount of disposition see section 198G.

Effect of separation of couple after disposal of care receiver’s asset

     198L(3)  If:

                     (a)  an amount is included under subsection (2) in the value of both the assets of the care receiver and the assets of the care receiver’s partner because of a disposition of an asset by the care receiver; and

                     (b)  the care receiver and the partner cease to be members of the same couple (either because the partner dies or for another reason);

the amount that was included in the value of the partner’s assets because of that disposition is to be included in the assets of the care receiver.

Effect of separation of couple after disposal of partner’s asset

     198L(4)  If:

                     (a)  an amount is included under subsection (2) in the value of both the assets of the care receiver and the assets of the care receiver’s partner because of a disposition of an asset by the partner; and

                     (b)  the care receiver and the partner cease to be members of the same couple (either because the partner dies or for another reason);

the amount that was included in the value of the care receiver’s assets because of that disposition is no longer to be included in the assets of the care receiver.

Pension year

     198L(5)  In this section:

pension year, in relation to a carer, means:

                     (a)  the 12 months starting on the day the carer payment first became payable to the carer; or

                     (b)  any preceding or following period of 12 months.

198LA  Disposal of assets in income year—members of couples including higher ADAT score adults

Application

   198LA(1)  This section has effect in determining whether a person (the carer) who has been receiving a carer payment for caring for a care receiver who is a higher ADAT score adult and is a member of a couple continues to qualify for the payment.

Disposals to which section applies

   198LA(2)  This section applies to a disposal (the relevant disposal) on or after 1 July 2002 of an asset by the care receiver, the care receiver’s partner, or the care receiver and the care receiver’s partner.

Increase in value of assets

   198LA(3)  If the amount of the relevant disposal, or the sum of that amount and the amounts (if any) of other disposals of assets previously made by the care receiver, the care receiver’s partner, or the care receiver and the care receiver’s partner (whether before or after they became members of the couple), during the income year in which the relevant disposal took place, exceeds $10,000, then, for the purposes of this Act, the lesser of the following amounts is to be included in the value of the assets of the care receiver and in the value of the assets of the partner for the period of 5 years starting on the day on which the relevant disposal took place:

                     (a)  one-half of the amount of the relevant disposal;

                     (b)  one-half of the amount by which the sum of the amount of the relevant disposal and the amounts (if any) of other disposals of assets previously made by the care receiver, the partner, or the care receiver and the partner, during the income year in which the relevant disposal took place, exceeds $10,000.

Effect of ceasing to be a member of couple after disposal by care receiver

   198LA(4)  If:

                     (a)  the relevant disposal is the disposal of an asset by the care receiver; and

                     (b)  after the relevant disposal, the care receiver and the care receiver’s partner cease to be members of the same couple (either because the partner dies or for another reason);

the amount that was included in the value of the assets of the partner because of the relevant disposal is to be included in the value of the assets of the care receiver.

Effect of ceasing to be a member of couple after disposal by care receiver’s partner

   198LA(5)  If:

                     (a)  the relevant disposal is the disposal of an asset by the care receiver’s partner; and

                     (b)  after the relevant disposal, the care receiver and the partner cease to be members of the same couple (either because the partner dies or for another reason);

the amount that was included in the value of the assets of the care receiver because of the relevant disposal is no longer to be included in the value of the assets of the care receiver.

198LB  Disposal of assets in 5 year period—members of couples including higher ADAT score adults

Application

   198LB(1)  This section also has effect in determining whether a person (the carer) who has been receiving a carer payment for caring for a care receiver who is a higher ADAT score adult and is a member of a couple continues to qualify for the payment.

Disposals to which section applies

   198LB(2)  This section applies to a disposal (the relevant disposal) on or after 1 July 2002 of an asset by the care receiver, the care receiver’s partner, or the care receiver and the care receiver’s partner.

Increase in value of assets

   198LB(3)  If:

                     (a)  the sum of the amount of the relevant disposal and the amounts of any previous disposals during the rolling period of assets by the care receiver, the care receiver’s partner, or the care receiver and the care receiver’s partner;

less

                     (b)  the sum of any amounts included in the value of the assets of the care receiver or the partner during the rolling period under a provision of this Subdivision other than this section or under any previous application or applications of this section;

exceeds $30,000, then, for the purposes of this Act, an amount equal to one-half of the excess is to be included in the value of the assets of the care receiver and in the value of the assets of the partner for the period of 5 years starting on the day on which the relevant disposal took place.

Effect of ceasing to be member of couple after disposal by care receiver

   198LB(4)  If:

                     (a)  the relevant disposal is a disposal of an asset by the care receiver; and

                     (b)  after the relevant disposal, the care receiver and the care receiver’s partner cease to be members of the same couple (either because the partner dies or for another reason);

the amount that was included in the value of the assets of the partner because of the relevant disposal is to be included in the value of the assets of the care receiver.

Effect of ceasing to be member of couple after disposal by care receiver’s partner

   198LB(5)  If:

                     (a)  the relevant disposal is a disposal of an asset by the care receiver’s partner; and

                     (b)  after the relevant disposal, the care receiver and the partner cease to be members of the same couple (either because the partner dies or for another reason);

the amount that was included in the value of the assets of the care receiver because of the relevant disposal is no longer to be included in the value of the assets of the care receiver.

Rolling period

   198LB(6)  For the purposes of this section, the rolling period is the period comprising the income year in which the relevant disposal took place and such (if any) of the 4 previous income years as occurred after 30 June 2002.

198M  Certain dispositions to be disregarded for care receiver assets test

                   This Division does not apply to a disposition of an asset by a person (the disposer):

                     (a)  more than 5 years before the time when another person (the carer) became qualified for a carer payment:

                              (i)  because the carer was providing care for the disposer and the disposer was a care receiver or one of 2 or more care receivers; or

                             (ii)  because the carer was providing care for the person who was the disposer’s partner at the time of the disposition and that person was a care receiver or one of 2 or more care receivers; or

                     (b)  less than 5 years before the time referred to in paragraph (a) but before the time when the disposer could, in the Secretary’s opinion, reasonably have expected that the carer would become qualified for carer payment for a reason described in paragraph (a); or

                     (c)  before 9 May 1995.

198MA  Other dispositions to be disregarded for care receiver assets test

                   This Division does not apply to a disposition of an asset of a profoundly disabled child, a disabled child or a dependent child by a person (the disposer):

                     (a)  more than 5 years before the carer became qualified for a carer payment because:

                              (i)  the carer was providing care for the profoundly disabled child, and the child was a care receiver; or

                             (ii)  the carer was providing care for the disabled child, and the child and one or more other disabled children were care receivers; or

                            (iii)  the carer was providing care for the dependent child and a lower ADAT score adult and the dependent child and adult were care receivers; or

                     (b)  less than 5 years before the time referred to in paragraph (a) but before the time when the disposer could, in the Secretary’s opinion, reasonably have expected that the carer would become qualified for carer payment because the carer was providing care to the child.

Note:          Subsections 198D(1B) and (1D) provide that if the profoundly disabled child or the disabled child lives with a parent, the assets listed in subsection 198D(1A) and paragraph (1C)(b) are taken to be the assets of the child.

198N  Exemption from care receiver assets test
[see Appendix for CPI adjusted figures]

Application by higher ADAT score adult

     198N(1)  If:

                     (a)  subparagraph 198(5)(d)(i) would disqualify for carer payment a person caring for a care receiver who is a higher ADAT score adult; and

                     (b)  the higher ADAT score adult lodges with the Department, in a form approved by the Secretary, a request that the adult not be disqualified by that subparagraph; and

                     (c)  the request includes a written estimate of the higher ADAT score adult’s taxable income for the current financial year under subsection 198B(3); and

                     (d)  the Secretary accepts the estimate under subsection 198B(4);

subsections (2), (3), (4), (5) and (6) have effect.

Application by parent or carer of profoundly disabled child or disabled child

  198N(1A)  If:

                     (a)  subparagraph 198(5)(d)(i) would disqualify from carer payment a person caring for a care receiver who is a profoundly disabled child or care receivers each of whom is a disabled child; and

                     (b)  the parent or the carer of the profoundly disabled child or of any of the disabled children lodges with the Department, in a form approved by the Secretary, a request that the carer not be disqualified by that subparagraph; and

                     (c)  the request includes a written estimate of the taxable income of the profoundly disabled child, or written estimates of the taxable incomes of the disabled children, for the current financial year under subsection 198B(3); and

                     (d)  the Secretary accepts the estimate under subsection 198B(4);

subsections (2), (3), (4), (5) and (6) have effect.

Application by lower ADAT score adult

  198N(1B)  If:

                     (a)  subparagraph 198(5)(d)(i) would disqualify from carer payment a person caring for care receivers who are a lower ADAT score adult and a dependent child; and

                     (b)  the lower ADAT score adult lodges with the Department, in a form approved by the Secretary, a request that the carer not be disqualified by that subparagraph; and

                     (c)  the request includes written estimates of the taxable incomes of the lower ADAT score adult and the dependent child under subsection 198B(3); and

                     (d)  the Secretary accepts the estimate under subsection 198B(4);

subsections (2), (3), (4), (5) and (6) have effect.

Failing assets test but passing special income test

     198N(2)  The Secretary may decide that subparagraph 198(5)(d)(i) does not disqualify the person from carer payment if:

                     (a)  the value of the assets of the care receiver or the sum of the values of the assets of the care receivers is more than $410,000 but not more than $608,500; and

                     (b)  the value of the liquid assets of the care receiver, or the sum of the values of the liquid assets of the care receivers, is less than the liquid assets limit; and

                     (c)  the amount of the accepted estimated taxable income of the care receiver, or the sum of the amounts of the accepted estimated taxable incomes of the care receivers, for the current financial year is less than the threshold amount worked out under subsection (6).

Note 1:       The amounts specified in paragraph (2)(a) are indexed each year on 1 January (see sections 1190 and 1191).

Note 2:       For calculating the value of assets and liquid assets, see paragraph (5)(a).

Note 3:       For liquid assets see subsection 19B(1).

Note 4:       For liquid assets limit see paragraph (5)(b).

Note 5:       For accepted estimated taxable income see subsection 198B(5).

Failing assets and special income tests

     198N(3)  The Secretary may decide that subparagraph 198(5)(d)(i) does not disqualify the person from carer payment if the value of the assets of the care receiver, or the sum of the values of the assets of the care receivers, is more than $410,000 and not more than $608,500 and:

                     (a)  the value of the liquid assets of the care receiver, or the sum of the values of the liquid assets of the care receivers, is equal to or greater than the liquid assets limit; or

                     (b)  the amount of the accepted estimated taxable income of the care receiver, or the sum of the amounts of the accepted estimated taxable incomes of the care receivers, for the current financial year is equal to or more than the threshold amount worked out under subsection (6).

Note 1:       The amounts specified in subsection (3) are indexed each year on 1 January (see sections 1190 and 1191).

Note 2:       For calculating the value of assets and liquid assets, see paragraph (5)(a).

Note 3:       For liquid assets see subsection 19B(1).

Note 4:       For liquid assets limit see paragraph (5)(b).

Note 5:       For accepted estimated taxable income see subsection 198B(5).

Failing assets test by large margin but passing special income test

     198N(4)  The Secretary may decide that subparagraph 198(5)(d)(i) does not disqualify the person from carer payment if:

                     (a)  the value of the assets of the care receiver, or the sum of the values of the assets of the care receivers, is more than $608,500; and

                     (b)  the value of the liquid assets of the care receiver, or the sum of the values of the liquid assets of the care receivers, is less than the liquid assets limit; and

                     (c)  the amount of the accepted estimated taxable income of the care receiver, or the sum of the amounts of the accepted estimated taxable incomes of the care receivers, for the current financial year is less than the threshold amount worked out under subsection (6).

Note 1:       The amount specified in paragraph (4)(a) is indexed each year on 1 January (see sections 1190 and 1191).

Note 2:       For calculating the value of assets and liquid assets, see paragraph (5)(a).

Note 3:       For liquid assets see subsection 19B(1).

Note 4:       For liquid assets limit see paragraph (5)(b).

Note 5:       For accepted estimated taxable income see subsection 198B(5).

Definitions—assets and income

     198N(5)  For the purposes of this section:

                     (a)  the value of the assets or liquid assets of a care receiver who is a higher ADAT score adult is the sum of the values of the assets or liquid assets (as the case requires) of the following people:

                              (i)  the care receiver;

                             (ii)  if the care receiver has a partner—the partner;

                            (iii)  if the care receiver or the care receiver’s partner has one or more FTB children—those FTB children; and

                    (aa)  the value of the liquid assets of a care receiver who is a profoundly disabled child or a disabled child is the sum of the values of the liquid assets of the following people:

                              (i)  the care receiver;

                             (ii)  if the care receiver lives with his or her parent—the parent;

                            (iii)  if the parent with whom the care receiver lives is a member of a couple—the parent’s partner;

                            (iv)  if the parent with whom the care receiver lives or the parent’s partner has one or more FTB children—those FTB children.

                            However, if the care receiver is one of 2 or more care receivers each of whom is a disabled child, liquid assets of the same person are not to be taken into account in respect of any of the other care receivers; and

                    (ab)  the value of the liquid assets of a care receiver who is a lower ADAT score adult is the sum of the values of the liquid assets of the following people:

                              (i)  the care receiver;

                             (ii)  if the care receiver is a member of a couple—the care receiver’s partner and any FTB child (except the dependent child who is the other care receiver) of the care receiver or the care receiver’s partner;

                            (iii)  if the care receiver is not a member of a couple—any FTB child (except the dependent child who is the other care receiver); and

Note:       The value of the liquid assets of the dependent child who is the other care receiver is not adjusted by adding any other person’s liquid assets.

                     (b)  the liquid assets limit is $10,000 if the care receiver or any of the care receivers is a member of a couple, or $6,000 if not; and

                     (c)  the taxable income of a care receiver or of any of 2 or more care receivers for a particular financial year is the taxable income of the care receiver for that year as worked out under section 198B.

Note 1:       For liquid assets see subsection 19B(1).

Note 2:       Subsections 198D(1B) and (1D) provide that if a profoundly disabled or a disabled child lives with a parent, the assets listed in subsection 198D(1A) and paragraph (1C)(b) are taken to be assets of the child.

Working out the threshold amount

     198N(6)  For the purposes of paragraphs (2)(c), (3)(b) and (4)(c), the threshold amount is the amount worked out using the following formula:

where:

MBR is the maximum basic rate of age pension payable, as at the last 1 January, to a person who has a partner.

FPC is:

                     (a)  in the case of a care receiver who is a higher ADAT score adult—the number of FTB children of the care receiver or the care receiver’s partner (if the care receiver has a partner); or

                     (b)  in the case of a care receiver who is a profoundly disabled child who lives with his or her parent—the number of FTB children of the parent or the parent’s partner (if the parent has a partner); or

                     (c)  in the case of a care receiver who is a profoundly disabled child who does not live with his or her parent—0; or

                     (d)  in the case of care receivers who are 2 or more disabled children:

                              (i)  if any of the children lives with his or her parent—the sum of the number of FTB children of each such parent or of the partner (if the parent has a partner) of each such parent; or

                             (ii)  in any other case—0; or

                     (e)  in the case of care receivers who are a lower ADAT score adult and a dependent child—the number of FTB children of the care receiver or the care receiver’s partner (if the care receiver has a partner).

Note:          For the maximum basic rate of age pension see point 1064-B1 of Pension Rate Calculator A in section 1064.

198P  Date of effect of favourable decision under section 198N

Date of effect

     198P(1)  If the Secretary decides under subsection 198N(2), (3) or (4) that subparagraph 198(5)(d)(i) does not disqualify a person from carer payment, the day on which the decision takes effect is worked out under this section.

Basic rule

     198P(2)  Subject to subsections (3), (4) and (5), the decision takes effect on the day on which the decision was made or on such later or earlier day (not being a day more than 3 months before the decision was made) as is specified in the decision.

Notified decision—review sought within 3 months

     198P(3)  If:

                     (a)  a decision (the previous decision) is made under subsection 198N(2), (3) or (4) about a care receiver or care receivers; and

                     (b)  notice of the making of the previous decision is given:

                              (i)  in the case of a care receiver who is a higher ADAT score adult—to the adult or the person caring for the adult; or

                             (ii)  in the case of a care receiver who is a profoundly disabled child—to the parent or carer of the disabled child; or

                            (iii)  in the case of care receivers who are 2 or more disabled children—to the carer of the children or to the parent of any of the children; or

                            (iv)  in the case of care receivers who are a lower ADAT score adult and a dependent child—to the lower ADAT score adult or the person caring for that adult; and

                     (c)  within 3 months after the notice is given, a person applies to the Secretary under section 129 of the Administration Act for review of the previous decision; and

                     (d)  a decision favourable to the person caring for the care receiver or care receivers (the favourable decision) is made as a result of the application for review;

the favourable decision takes effect on the day on which the previous decision took effect.

Notified decision—review sought after 3 months

     198P(4)  If:

                     (a)  a decision (the previous decision) is made under subsection 198N(2), (3) or (4) about a care receiver or care receivers; and

                     (b)  notice of the making of the previous decision is given:

                              (i)  in the case of a care receiver who is a higher ADAT score adult—to the adult or the person caring for the adult; or

                             (ii)  in the case of a care receiver who is a profoundly disabled child—to the parent of the disabled child or the person who is caring for the disabled child; or

                            (iii)  in the case of care receivers who are 2 or more disabled children—to the carer of the children or to the parent of any of the children; or

                            (iv)  in the case of care receivers who are a lower ADAT score adult and a dependent child—to the lower ADAT score adult or the person caring for that adult; and

                     (c)  more than 3 months after the notice is given, a person applies to the Secretary under section 1240 for review of the previous decision; and

                     (d)  a decision favourable to the person caring for the care receiver or care receivers (the favourable decision) is made as a result of the application for review;

the favourable decision takes effect on the day on which the person sought the review.

Decision not notified

     198P(5)  If:

                     (a)  a decision (the previous decision) is made under subsection 198N(2), (3) or (4) about a care receiver or care receivers; and

                     (b)  notice of the making of the previous decision is not given to a person specified in paragraph (4)(b) as a person to whom notice is to be given; and

                     (c)  a person applies to the Secretary under section 1240 for review of the previous decision; and

                     (d)  a decision favourable to the person caring for the care receiver or care receivers (the favourable decision) is made as a result of the application for review;

the favourable decision takes effect on the day on which the previous decision took effect.

198Q  Date of effect of adverse decision under section 198N

                   If the Secretary decides under subsection 198N(2), (3) or (4) that subparagraph 198(5)(d)(i) disqualifies a person from carer payment, the decision takes effect:

                     (a)  on the day on which the request under section 198N in respect of the care receiver or care receivers was lodged with the Department; or

                     (b)  if the request was lodged after the Secretary rejected a claim for carer payment by a person caring for the care receiver or care receivers—on the day on which the decision to reject the claim took effect.

Subdivision BPayability

199  Carer payment not payable if payment rate nil

        199(1)  Subject to subsection (2), a carer payment is not payable to a person if the person’s carer payment rate would be nil.

        199(2)  Subsection (1) does not apply to a person if the person’s rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

                     (a)  the social security law; or

                     (b)  Division 2 of Part VIIA of the Veterans’ Entitlements Act.

201AA  Newly arrived resident’s waiting period

  201AA(1)  A person is subject to a newly arrived resident’s waiting period if the person:

                     (a)  enters Australia on or after 4 March 1997; and

                     (b)  has not been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks.

Note:          For Australian resident see subsection 7(2).

  201AA(2)  Subsection (1) does not apply to a person who has a qualifying residence exemption for a carer payment.

  201AA(3)  Subsection (1) does not apply to a person who is:

                     (a)  the holder of a subclass 104 visa—Preferential family; and

                     (b)  either a carer or a special need relative.

  201AA(4)  Subsection (1) does not apply to a person who is:

                     (a)  the holder of a subclass 806 visa—Family; and

                     (b)  either a carer or a special need relative.

  201AA(5)  Subsection (1) does not apply to a person if:

                     (a)  the person is already subject to a newly arrived resident’s waiting period; or

                     (b)  the person has already served a newly arrived resident’s waiting period; or

                     (c)  at the commencement of this subsection, the person has already been an Australian resident for a period of, or periods totalling, 104 weeks; or

                     (d)  the person holds a visa that is in a class of visas determined in writing by the Minister for the purposes of this paragraph.

  201AA(6)  In this section:

carer has the same meaning as in the Migration Regulations.

special need relative has the same meaning as in the Migration Regulations as in force on 30 November 1998.

201AB  Duration of newly arrived resident’s waiting period

                   If a person is subject to a newly arrived resident’s waiting period, the period:

                     (a)  starts on the day the person first became an Australian resident; and

                     (b)  ends when the person has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks.

202  Multiple entitlement exclusion

        202(1)  A carer payment is not payable to a person if the person is already receiving a service pension.

        202(2)  If:

                     (a)  a person is receiving a carer payment; and

                     (b)  another social security pension or a social security benefit or service pension becomes payable to the person;

the carer payment is not payable to the person.

Note 1:       another payment type will generally not become payable to the person until the person claims it.

Note 2:       For social security pension and social security benefit see subsection 23(1).

        202(3)  A carer payment is not payable to a person who:

                     (a)  is an armed services widow or an armed services widower; and

                     (b)  is receiving 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; and

                     (c)  is receiving income support supplement under Part IIIA of that Act or would be eligible for income support supplement under that Part if he or she made a claim under section 45I of that Act.

        202(4)  Subsection (3) does not apply if:

                     (a)  the person:

                              (i)  was on 20 March 1995 receiving; and

                             (ii)  has from that day continuously received; and

                            (iii)  is receiving;

                            the carer payment; and

                     (b)  the person elected under subsection 45E(2) of the Veterans’ Entitlements Act, or is taken under subsection 45E(3) of that Act to have elected, to continue to receive the carer payment.

        202(5)  Subsection (3) does not apply if:

                     (a)  before 20 March 1995, the person had made a claim for carer payment; and

                     (b)  the person elected under subsection 45F(2) of the Veterans’ Entitlements Act, or is taken under subsection 45F(3) of that Act to have elected, to receive the pension in the event that it were granted to him or her; and

                     (c)  on or after 20 March 1995, the person was granted carer payment; and

                     (d)  the person has since that time continued to receive, and is receiving, the pension.

        202(6)  Subsection (3) does not apply if:

                     (a)  before 20 March 1995:

                              (i)  the person had made a claim for wife pension; and

                             (ii)  the claim had been rejected; and

                            (iii)  the person had applied, under Chapter 6, for a review of the decision to reject the claim; and

                     (b)  the person elected under subsection 45G(2) of the Veterans’ Entitlements Act, or is taken under subsection 45G(3) of that Act to have elected, to receive the pension in the event that it were granted to him or her after review of the decision; and

                     (c)  on or after 20 March 1995, the decision to reject the claim was set aside and the person was granted wife pension; and

                     (d)  the person has since that time continued to receive, and is receiving, the pension.

        202(7)  A carer payment is not payable to a person who:

                     (a)  is an armed services widow or an armed services widower; and

                     (b)  has received a lump sum, or is receiving weekly amounts, mentioned in paragraph 234(1)(b) of the MRCA; and

                     (c)  is receiving income support supplement or would be eligible for income support supplement if he or she made a claim under section 45I of the VEA.

Note 1:       For armed services widow and armed services widower see subsection 4(1).

Note 2:       For MRCA and VEA see subsection 23(1).

202A  Exclusion of certain participants in ABSTUDY Scheme

     202A(1)  If:

                     (a)  a payment is made in respect of a person under the ABSTUDY Scheme; and

                     (b)  the payment is made on the basis that the person is a full-time student; and

                     (c)  in the calculation of the payment, an amount identified as living allowance (the basic payment) is included; and

                     (d)  the payment relates to a period;

carer payment is not payable to the person in respect of any part of the period.

     202A(2)  If:

                     (a)  a person is qualified for a payment under the ABSTUDY Scheme; and

                     (b)  the payment for which the person is qualified is a payment that:

                              (i)  is made on the basis that the person is a full-time student; and

                             (ii)  is calculated on the basis that an amount identified as living allowance (the basic payment) is included; and

                            (iii)  relates to a period;

carer payment is not payable to the person in respect of any part of the period.

     202A(3)  If:

                     (a)  a person may enrol in a full-time course of education; and

                     (b)  a payment referred to in subsection (2) may be made in respect of the person;

the Secretary may decide that, in spite of subsection (2), carer payment is payable to the person before the person starts the course.

 


 

Division 4Rate of carer payment

210  How to work out a person’s carer payment rate

                   A person’s carer payment rate is worked out using Pension Rate Calculator A at the end of section 1064 (see Part 3.2).


 

Division 9Bereavement payments

Subdivision AContinuation of carer payment

235  Continuation of carer payment for bereavement period where person cared for dies

        235(1)  If:

                     (a)  a person is receiving carer payment because he or she ordinarily cares for a care receiver or care receivers; and

                     (b)  the person is caring for the care receiver or care receivers or has temporarily ceased to care for the care receiver or care receivers; and

                     (c)  the care receiver or any of the care receivers dies; and

                     (d)  the care receiver who dies is not the person’s partner; and

                     (e)  because of the death, the person would, apart from this subsection, cease to be qualified for the carer payment;

the person remains qualified for the carer payment during the bereavement period as if the death had not occurred.

     235(1A)  If:

                     (a)  a person (the carer) is receiving a carer payment only because section 198AA or subsection 198AC(2) applies; and

                     (b)  the death occurs of:

                              (i)  the person or any of the persons for whom the person would qualify for carer payment as mentioned in paragraph 198AA(1)(b); or

                             (ii)  the person or any of the persons for whom the constant care mentioned in paragraph 198AC(2)(c) is assumed to be provided; and

                     (c)  the person who dies is not the carer’s partner;

the carer remains qualified for carer payment during the bereavement period as if the death had not occurred.

        235(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 otherwise entitled.

        235(4)  If a person makes an election under subsection (3):

                     (a)  this Act, or Part III or IIIA 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.

236  Continued carer payment rate

                   If a person is qualified for a carer payment 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.

236A  Lump sum payable in some circumstances

     236A(1)  A lump sum is payable to a person under this section if:

                     (a)  the person remains qualified for carer payment because subsection 235(1) or (1A) applies; and

                     (b)  immediately before the death of the person mentioned in that subsection, the person who died was not a member of a couple, or was a member of a couple and his or her partner:

                              (i)  was not receiving a social security pension; and

                             (ii)  was not receiving a social security benefit; and

                            (iii)  was not receiving a service pension or income support supplement.

  236A(1A)  However, if subsection (1) would apply where 2 or more persons die at the same time, only one payment is payable under that subsection.

     236A(2)  The amount of the lump sum under this section is the lesser of the amount worked out under subsection (3) and the amount worked out under subsection (4).

     236A(3)  The amount under this subsection is:

where:

partnered MBR is the maximum basic rate applicable, on the day that the person dies, to a person covered by item 2 of the Maximum Basic Rate Table in point 1064-B1 of Pension Rate Calculator A in section 1064.

pension supplement is the person’s pension supplement worked out under point 1064-BA2.

     236A(4)  The amount under this subsection is:

where:

carer’s current instalment is the amount of the last instalment of carer payment paid to the carer before the person died.

236B  Subdivision not to apply in certain cases involving simultaneous death

                   If:

                     (a)  a lower ADAT score adult and a dependent child of the adult die at the same time; and

                     (b)  apart from this subsection and section 243, because of those deaths, a person would continue to qualify for carer payment under section 235 and would be qualified for payments under Subdivision B; and

                     (c)  the sum of the carer payments for which the person would continue to qualify under section 235 and any lump sum payable to the person under section 236A is less than the sum of the amounts payable to the person under Subdivision B;

the person does not continue to qualify for carer payment under section 235 and no lump sum is payable to the person under section 236A.

Subdivision BDeath of partner

237  Qualification for payments under this Subdivision

        237(1)  If:

                     (a)  a person is receiving a carer payment; 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:

                              (i)  was receiving a social security pension; or

                             (ii)  was receiving a service pension or income support supplement; or

                            (iii)  was a long-term social security recipient; and

                     (e)  on the person’s payday immediately before the first available bereavement adjustment payday, the amount that would be payable to the person if the person were not qualified for payments under this Subdivision is less than the sum of:

                              (i)  the amount that would otherwise be payable to the person under section 238 (continued payment of partner’s pension or allowance); and

                             (ii)  the amount that would otherwise be payable to the person under section 240 (person’s continued rate);

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.

Note 3:       a person who is qualified for payments under this Subdivision for the death of the person’s partner may, in some circumstances, be automatically transferred to a parenting payment after the end of the bereavement period without making a claim for that payment (see subsection 501(4)).

     237(1A)  If:

                     (a)  a person is receiving a carer payment; and

                     (b)  immediately before starting to receive the carer payment the person was receiving partner bereavement payments; and

                     (c)  the bereavement rate continuation period in relation to the death of the person’s partner has not ended;

the person is qualified for payments under this Subdivision to cover the remainder of the bereavement period.

     237(1B)  Subsection (1) or (1A) does not apply if:

                     (a)  the person is receiving carer payment under section 235 because of the death of a care receiver who is a dependent child of a lower ADAT score adult; and

                     (b)  the person’s partner is the lower ADAT score adult.

        237(2)  A person who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.

Note:          if a person makes an election, the date of effect of any determination to increase the person’s rate of age pension may, in some circumstances, be the day on which the person’s partner died (see subsection 233(5A)).

        237(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.

        237(4)  If a person is qualified for payments under this Subdivision in relation to the partner’s death, the rate at which carer payment is payable to the person during the bereavement period is, unless the person has made an election under subsection (2), governed by section 240.

        237(5)  For the purposes of this section, a person is a long-term social security recipient if:

                     (a)  the person is receiving a social security benefit; and

                     (b)  in respect of the previous 12 months, the person:

                              (i)  was receiving a social security pension; or

                             (ii)  was receiving a social security benefit; or

                            (iii)  was receiving a youth training allowance; or

                            (iv)  was receiving a service pension or income support supplement.

        237(6)  A person is taken to satisfy the requirements of paragraph (5)(b) if:

                     (a)  the person was receiving one or a combination of the payments referred to in that paragraph for a continuous period of 12 months; or

                     (b)  the person was receiving one or a combination of the payments referred to in that paragraph for 46 weeks of the previous 52.

238  Continued payment of partner’s pension or allowance

        238(1)  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 partner’s paydays in the bereavement rate continuation period:

                     (a)  where the partner was receiving a social security pension or social security benefit—the amount that would have been payable to the partner on the payday if the partner had not died; or

                     (b)  where the partner was receiving a service pension or income support supplement—the amount that would have been payable to the partner under Part III or IIIA (as the case may be) of the Veterans’ Entitlements Act on the service payday that:

                              (i)  where the first Thursday after the partner’s death was a service payday—precedes the pension payday; or

                             (ii)  in any other case—follows the pension payday;

                            if the partner had not died.

Note:          For bereavement rate continuation period see section 21.

        238(2)  For the purposes of subsection (1), if the couple were, immediately before the partner’s death, an illness separated couple or a respite care couple, the amounts are to be worked out as if they were not such a couple.

239  Lump sum payable in some circumstances

                   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.   Work out the amount that would have been payable to the person on the person’s payday immediately before the first available bereavement adjustment payday if:

               (a)     the person’s partner had not died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 2.   Work out the amount that would have been payable to the person’s partner on the partner’s payday or service payday immediately before the first available bereavement adjustment payday if:

               (a)     the partner had not died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 3.   Add the results of Step 1 and Step 2: the result is called the combined rate.

Step 4.   Work out the amount that, but for section 240, would have been payable to the person on the person’s payday immediately before the first available bereavement adjustment payday: the result is called the person’s individual rate.

Step 5.   Take the person’s individual rate away from the combined rate: the result is called the partner’s instalment component.

Step 6.   Work out the number of the partner’s paydays in the bereavement lump sum period.

Step 7.   Multiply the partner’s instalment component by the number obtained in Step 6: the result is the amount of the lump sum payable to the person under this section.

240  Adjustment of person’s carer payment rate

                   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 payment during the bereavement period is worked out as follows:

                     (c)  during the bereavement rate continuation period, the rate of carer payment payable to the person is the rate at which the pension would have been payable to the person if:

                              (i)  the person’s partner had not died; and

                             (ii)  where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple;

                     (d)  during the bereavement lump sum period (if any), the rate at which carer payment is payable to the person is the rate at which the carer payment would be payable to the person apart from this Subdivision.

241  Effect of death of person entitled to payments under this Subdivision

                   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.   Work out the amount that would have been payable to the person on the person’s payday immediately after the day on which the person died if:

               (a)     neither the person nor the person’s partner had died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 2.   Work out the amount that would have been payable to the partner on the partner’s payday or service payday immediately after the day on which the person died if:

               (a)     neither the person nor the partner had died; and

               (b)     where immediately before the partner’s death the couple were an illness separated couple or a respite care couple—they were not such a couple.

Step 3.   Add the results of Step 1 and Step 2: the result is called the combined rate.

Step 4.   Work out the amount that, but for section 240, would have been payable to the person on the person’s 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 5.   Take the person’s individual rate away from the combined rate: the result is called the partner’s instalment component.

Step 6.   Work out the number of partner’s paydays in the period that commences on the day on which the person dies and ends on the day on which the bereavement period ends.

Step 7.   Multiply the partner’s instalment component by the number obtained in Step 6: the result is the amount of the lump sum payable under this section.

242  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 or IIIA 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).

        242(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 or IIIA of the Veterans’ Entitlements Act 1986, within the bereavement period, into an account with a bank; and

                     (c)  the bank pays to the person, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);

the bank 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.

243  Subdivision not to apply in certain cases involving simultaneous death

                   If:

                     (a)  a lower ADAT score adult and a dependent child of the adult die at the same time; and

                     (b)  apart from this subsection and section 236B, because of those deaths a person would be qualified for payments under this Subdivision and would continue to qualify for carer payment under section 235; and

                     (c)  the sum of the amounts payable to the person under this Subdivision is less than or equal to the sum of the carer payments for which the person would continue to qualify under section 235 and any lump sum payable to the person under section 236A;

no amounts are payable to the person under this Subdivision.

Subdivision DDeath of recipient

246  Death of recipient

        246(1)  If:

                     (a)  a person is receiving carer payment; 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

                                        (C)  is not receiving a service pension or income support supplement; 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 person’s payday after the person’s death if the person had not died.

        246(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.


 

Part 2.5AOne-off payment to people eligible for carer payment

  

247  One-off payment to carers (carer payment related)

                   A person (the qualified person) is qualified for a one-off payment to carers (carer payment related) if the person has been paid an instalment of carer payment in respect of a period that includes 11 May 2004.

Note:          The person may also be qualified for a one-off payment to carers (carer allowance related) under Part 2.19A.

248  What is the amount of the payment?

                   The amount of the one-off payment to the qualified person is $1000.

Note:          The amount is $1000, regardless of the number of people for whom the qualified person provides care.


 

Part 2.5B2005 one-off payment to people eligible for carer payment

  

249  2005 one-off payment to carers (carer payment related)

                   A person (the qualified person) is qualified for a 2005 one-off payment to carers (carer payment related) if the person has been paid an instalment of carer payment in respect of a period that includes 10 May 2005.

Note:          The person may also be qualified for a 2005 one-off payment to carers (carer allowance related) under Part 2.19B.

250  What is the amount of the payment?

                   The amount of the one-off payment to the qualified person is $1000.

Note:          The amount is $1000, regardless of the number of people for whom the qualified person provides care.


 

Part 2.5C2005 one-off payment to people eligible for carer service pension

  

251  2005 one-off payment to carers (carer service pension related)

                   A person (the qualified person) is qualified for a 2005 one-off payment to carers (carer service pension related) if the person has been paid an instalment of carer service pension as a result of the operation of subclause 8(2) or (4) of Schedule 5 to the Veterans’ Entitlements Act 1986 in respect of a period that includes 10 May 2005.

252  What is the amount of the payment?

                   The amount of the one-off payment to the qualified person is $1000.

Note:          The amount is $1000, regardless of the number of people for whom the qualified person provides care.


 

Part 2.5D2006 one-off payment to carers eligible for carer payment

  

253  2006 one-off payment to carers (carer payment related)

                   A person (the qualified person) is qualified for a 2006 one-off payment to carers (carer payment related) if:

                     (a)  the person has been paid an instalment of carer payment in respect of a period that includes 9 May 2006; and

                     (b)  the person was paid that instalment because of a claim the person made on or before 9 May 2006.

254  Amount of the one-off payment

                   The amount of the one-off payment to the qualified person is $1000.

Note:          The amount is $1000, regardless of the number of people for whom the qualified person provides care.


 

Part 2.5E2006 one-off payment to carers eligible for wife pension

  

255  2006 one-off payment to carers (wife pension related)

                   A person (the qualified person) is qualified for a 2006 one-off payment to carers (wife pension related) if:

                     (a)  the person:

                              (i)  has been paid an instalment of wife pension in respect of a period that includes 9 May 2006; and

                             (ii)  was paid that instalment because of a claim the person made on or before 9 May 2006; and

                     (b)  the following conditions are satisfied in relation to one or more instalments of carer allowance that have been paid to the person:

                              (i)  the instalment was in respect of a period that includes 9 May 2006;

                             (ii)  the reason why that instalment covered 9 May 2006 was not only because of clause 16 or 17 of Schedule 2 to the Administration Act;

                            (iii)  the person was paid that instalment because of a claim the person made on or before 9 May 2006.

256  Amount of the one-off payment

                   The amount of the one-off payment to the qualified person is $1000.

Note:          The amount is $1000, regardless of the number of people for whom the qualified person provides care.


 

Part 2.5F2006 one-off payment to carers eligible for partner service pension

  

257  2006 one-off payment to carers (partner service pension related)

                   A person (the qualified person) is qualified for a 2006 one-off payment to carers (partner service pension related) if:

                     (a)  the person:

                              (i)  has been paid an instalment of partner service pension under Part III of the Veterans’ Entitlements Act in respect of a period that includes 9 May 2006; and

                             (ii)  was paid that instalment because of a claim the person made on or before 9 May 2006; and

                     (b)  the following conditions are satisfied in relation to one or more instalments of carer allowance that have been paid to the person:

                              (i)  the instalment was in respect of a period that includes 9 May 2006;

                             (ii)  the reason why that instalment covered 9 May 2006 was not only because of clause 16 or 17 of Schedule 2 to the Administration Act;

                            (iii)  the person was paid that instalment because of a claim the person made on or before 9 May 2006.

258  Amount of the one-off payment

                   The amount of the one-off payment to the qualified person is $1000.

Note:          The amount is $1000, regardless of the number of people for whom the qualified person provides care.


 

Part 2.5G2006 one-off payment to carers eligible for carer service pension

  

259  2006 one-off payment to carers (carer service pension related)

                   A person (the qualified person) is qualified for a 2006 one-off payment to carers (carer service pension related) if:

                     (a)  the person has been paid an instalment of carer service pension as a result of the operation of subclause 8(2) or (4) of Schedule 5 to the Veterans’ Entitlements Act in respect of a period that includes 9 May 2006; and

                     (b)  the person was paid that instalment because of a claim the person made on or before 9 May 2006.

260  Amount of the one-off payment

                   The amount of the one-off payment to the qualified person is $1000.

Note:          The amount is $1000, regardless of the number of people for whom the qualified person provides care.


 

Part 2.7Bereavement allowance

Division 1Qualification for and payability of bereavement allowance

Subdivision AQualification

315  Qualification for bereavement allowance

        315(1)  A person is qualified for a bereavement allowance on a day 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; and

                     (b)  the person is not a member of a couple; and

                     (c)  the person is not qualified for a parenting payment; 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 has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks; or

                           (iiia)  the person has a qualifying residence exemption for a bereavement allowance;

                            (iv)  the person is a woman:

                                        (A)  to whom a wife pension, or a partner 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 day occurs:

                              (i)  if the person is a man, or a woman who was not pregnant when her partner died—in the period of 14 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 14 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 and qualifying residence exemption see section 7.

Subdivision BPayability

316  Bereavement allowance not payable if allowance rate nil

        316(1)  Subject to subsection (2), a bereavement allowance is not payable to a person if the person’s bereavement allowance rate would be nil.

        316(2)  Subsection (1) does not apply to a person if the person’s rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

                     (a)  the social security law; or

                     (b)  Division 2 of Part VIIA of the Veterans’ Entitlements Act.

321  Multiple entitlement exclusion

        321(1)  A bereavement allowance is not payable to a person if the person is already receiving a service pension.

        321(2)  If:

                     (a)  a person is receiving a bereavement allowance; and

                     (b)  another social security pension or a social security benefit or service pension becomes payable to the person;

the bereavement allowance is not payable to the person.

Note 1:       another payment type will generally not become payable to the person until the person claims it.

Note 2:       For social security pension and social security benefit see subsection 23(1).

        321(3)  A bereavement allowance is not payable to a woman if:

                     (a)  the woman is an armed services widow; and

                     (b)  the woman is receiving 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.

Note:          for armed services widow see subsection 4(1).

        321(4)  A bereavement allowance is not payable to a man if:

                     (a)  the man is an armed services widower; and

                     (b)  the man is receiving 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.

Note:          for armed services widower see subsection 4(1).

321A  Exclusion of certain participants in ABSTUDY Scheme

     321A(1)  If:

                     (a)  a payment is made in respect of a person under the ABSTUDY Scheme; and

                     (b)  the payment is made on the basis that the person is a full-time student; and

                     (c)  in the calculation of the payment, an amount identified as living allowance (the basic payment) is included; and

                     (d)  the payment relates to a period;

bereavement allowance is not payable to the person in respect of any part of the period.

     321A(2)  If:

                     (a)  a person is qualified for a payment under the ABSTUDY Scheme; and

                     (b)  the payment for which the person is qualified is a payment that:

                              (i)  is made on the basis that the person is a full-time student; and

                             (ii)  is calculated on the basis that an amount identified as living allowance (the basic payment) is included; and

                            (iii)  relates to a period;

bereavement allowance is not payable to the person in respect of any part of the period.

     321A(3)  If:

                     (a)  a person may enrol in a full-time course of education; and

                     (b)  a payment referred to in subsection (2) may be made in respect of the person;

the Secretary may decide that, in spite of subsection (2), bereavement allowance is payable to the person before the person starts the course.


 

Division 4Rate of bereavement allowance

329  How to work out a person’s bereavement allowance rate

                   A person’s rate of bereavement allowance is worked out using Pension Rate Calculator C at the end of section 1066 (see Part 3.4).


 

Division 9Bereavement payments

Subdivision BDeath of recipient

359  Death of recipient

        359(1)  If:

                     (a)  a person is receiving bereavement 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 person’s payday after the person’s death if the person had not died.

        359(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 338.


 

Part 2.8Widow B pension

Division 1Qualification for and payability of widow B pension

Subdivision AQualification

362A  Widow B pension not to be granted in certain cases

     362A(1)  In spite of anything else in this Part, a widow B pension must not be granted to a woman unless:

                     (a)  the woman’s claim for the pension is lodged before 20 March 1997; and

                     (b)  the woman is qualified for the pension before that day.

     362A(2)  For the purposes of subsection (1), if a provision of section 15 of the Administration Act applies, the woman is taken to have lodged her claim for a widow B pension on the day on which she lodged her incorrect claim or her initial claim, as the case may be.

     362A(3)  This section does not apply in relation to a determination by the Secretary under section 85 of the Administration Act.

     362A(4)  For the purposes of subsection (2):

incorrect claim or initial claim has the same meaning as in the provision of section 15 of the Administration Act that applies as referred to in subsection (2).

362  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 parenting payment; 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 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

                           (iia)  the woman has a qualifying residence exemption for a widow B pension; 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:          For Australian resident and qualifying residence exemption see section 7.

        362(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 a disability support pension; or

                                        (C)  a special needs age pension; or

                                        (D)  a special needs invalid pension or a special needs disability support pension; or

                             (ii)  a partner 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.

        362(3)  Subsection (1) has effect subject to:

                     (a)  sections 1215 to 1216B (limits on portability); and

                     (b)  sections 1218, 1218A, 1218B, 1218C and 1219 (departure certificate requirements for people leaving Australia).

Note:          a person who is receiving a widow B pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3)).

Subdivision BPayability

364  Widow B pension not payable if pension rate nil

        364(1)  Subject to subsection (2), a Widow B pension is not payable to a person if the person’s Widow B pension rate would be nil.

        364(2)  Subsection (1) does not apply to a person if the person’s rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

                     (a)  the social security law; or

                     (b)  Division 2 of Part VIIA of the Veterans’ Entitlements Act.

368  Multiple entitlement exclusion

        368(1)  A widow B pension is not payable to a woman if the woman is already receiving a service pension.

        368(2)  If:

                     (a)  a woman is receiving a widow B pension; and

                     (b)  another social security pension or a social security benefit or service pension becomes payable to the woman;

the widow B pension is not payable to the woman.

Note 1:       another payment type will generally not become payable to the woman until the woman claims it.

Note 2:       For social security pension and social security benefit see subsection 23(1).

        368(3)  A widow B pension is not payable to a woman if:

                     (a)  the woman is an armed services widow; and

                     (b)  the woman is receiving 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.

Note:          for armed services widow see subsection 4(1).

368A  Exclusion of certain participants in ABSTUDY Scheme

     368A(1)  If:

                     (a)  a payment is made in respect of a person under the ABSTUDY Scheme; and

                     (b)  the payment is made on the basis that the person is a full-time student; and

                     (c)  in the calculation of the payment, an amount identified as living allowance (the basic payment) is included; and

                     (d)  the payment relates to a period;

widow B pension is not payable to the person in respect of any part of the period.

     368A(2)  If:

                     (a)  a person is qualified for a payment under the ABSTUDY Scheme; and

                     (b)  the payment for which the person is qualified is a payment that:

                              (i)  is made on the basis that the person is a full-time student; and

                             (ii)  is calculated on the basis that an amount identified as living allowance (the basic payment) is included; and

                            (iii)  relates to a period;

widow B pension is not payable to the person in respect of any part of the period.

     368A(3)  If:

                     (a)  a person may enrol in a full-time course of education; and

                     (b)  a payment referred to in subsection (2) may be made in respect of the person;

the Secretary may decide that, in spite of subsection (2), widow B pension is payable to the person before the person starts the course.


 

Division 4Rate of widow B pension

376  How to work out the rate of widow B pension

                   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 9Bereavement payments

Subdivision BDeath of recipient

407  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 person’s payday after the person’s death if the person had not died.

        407(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.


 

Part 2.8AWidow allowance

Division 1Time limit on grants of widow allowance

408AA  Time limit on grants

                   A woman is not to be granted widow allowance on or after 1 July 2005 unless she was born on or before 1 July 1955.


 

Division 2Qualification for and payability of widow allowance

Subdivision AQualification

408BA  Qualification for widow allowance

  408BA(2)  Subject to section 408BB, a woman is qualified for widow allowance in respect of a period if:

                     (a)  she has turned 50; and

                     (b)  she was a member of a couple and since turning 40:

                              (i)  her partner died; or

                             (ii)  she separated from her partner; or

                            (iii)  she divorced from her husband; and

                     (c)  she satisfies the Secretary that she has no recent workforce experience on the day when she makes her claim for the allowance; and

                     (d)  at least one of the following is satisfied:

                              (i)  if the woman entered Australia before 1 April 1996—the woman has been an Australian resident for a continuous period of at least 26 weeks immediately before the day she lodged the claim for the allowance; or

                            (ia)  if the woman entered Australia on or after 1 April 1996 and before the commencement day—the woman has been an Australian resident for a period of, or periods totalling, 104 weeks before the day she lodged the claim for the allowance; or

                            (ib)  if the woman entered Australia on or after the commencement day—the woman has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks before the day she lodged the claim for the allowance; or

                             (ii)  she has 10 years qualifying Australian residence; or

                            (iii)  she has a qualifying residence exemption for widow allowance; or

                            (iv)  both the woman and her partner were Australian residents at the time when the qualifying event under paragraph (b) occurred; and

                     (e)  throughout the period, she:

                              (i)  is not a member of a couple; and

                             (ii)  throughout the period, she is an Australian resident.

Note 1:       For recent workforce experience see subsection (3).

Note 2:       For Australian resident and qualifying residence exemption see section 7.

Note 4:       For member of a couple see section 4.

  408BA(3)  For the purposes of subsection (2), recent workforce experience is employment of 20 hours or more a week for a total of 13 weeks or more at any time during the 12 months immediately before the day the woman lodged the claim for the allowance.

  408BA(6)  In this section:

commencement day means the day on which Schedule 5 to the Further 1998 Budget Measures Legislation Amendment (Social Security) Act 1999 commences.

408BB  Assurance of support

                   A woman is not qualified for widow allowance in respect of a period if the Secretary is satisfied that:

                     (a)  an assurance of support is in force in respect of the woman for that period; and

                     (b)  throughout the period the person who gave the assurance of support is likely to be willing and able to provide an adequate level of support to the woman; and

                     (c)  throughout the period it would be reasonable for the woman to accept that support.

Note:          For assurance of support see subsection 23(1).

Subdivision BPayability

408CA  Widow allowance not payable if allowance rate nil

  408CA(1)  Subject to subsection (2), a widow allowance is not payable to a person if the person’s widow allowance rate would be nil.

  408CA(2)  Subsection (1) does not apply to a person if the person’s rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

                     (a)  the social security law; or

                     (b)  Division 2 of Part VIIA of the Veterans’ Entitlements Act.

408CE  Assets test—allowance not payable if assets value limit exceeded [see Appendix for CPI adjusted figures]

   408CE(1)  Widow allowance is not payable to a woman if the value of her assets exceeds her assets value limit.

   408CE(2)  A woman’s assets value limit is worked out using the following Table:

Assets value limit table

Column 1

Item

Column 2

Woman’s situation

Column 3

Assets value limit

1

Woman is a homeowner

$115,000

2

Woman is not a homeowner

$197,000

Note 1:       For homeowner see section 11.

Note 2:       The assets value limit in column 3 of item 1 is indexed annually in line with CPI increases (see sections 1190 to 1194).

Note 3:       The assets value limit in column 3 of item 2 is adjusted annually (see subsection 1204(1)).

Note 4:       If widow allowance is not payable to a woman because of the value of the her assets, she may be able to take advantage of provisions dealing with financial hardship (see sections 1131 and 1132).

408CF  Multiple entitlement exclusion

   408CF(1)  Widow allowance is not payable to a woman if she is already receiving a service pension or income support supplement.

   408CF(2)  If:

                     (a)  a woman is receiving widow allowance; and

                     (b)  a social security pension, another social security benefit, a service pension or income support supplement becomes payable to her;

widow allowance is not payable to her.

Note 1:       Another payment type will generally not become payable to the woman until the woman claims it.

   408CF(3)  Widow allowance is not payable to a woman if:

                     (a)  she is an armed services widow; and

                     (b)  she is receiving 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;

unless:

                     (c)  she has been receiving a payment referred to in paragraph (b) continuously since before 1 November 1986; and

                     (d)  before 1 November 1986 she was also receiving a social security benefit.

Note 1:       For armed services widow see subsection 4(1).

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).

  408CF (4)  Subject to subsections (5) and (6), widow allowance is not payable to a woman for a period if a payment has been or may be made in respect of the woman for that period under:

                     (a)  a prescribed educational scheme other than the ABSTUDY Scheme to the extent that it applies to part-time students; or

                     (b)  the scheme to provide an allowance known as the Maintenance Allowance for Refugees.

Note 1:       For prescribed educational scheme see section 5.

   408CF(5)  If:

                     (a)  a woman enrols in a full-time course of education; and

                     (b)  a payment under a scheme referred to in subsection (4) may be made in respect of her;

the Secretary may decide that, in spite of subsection (4), widow allowance is payable to her for a period before she starts the course.

   408CF(6)  If:

                     (a)  a woman enrols in a full-time course of education; and

                     (b)  the course is to last for 6 months or more; and

                     (c)  an application is made for a payment in respect of her under:

                             (ii)  the ABSTUDY Schools Scheme; or

                            (iii)  the ABSTUDY Tertiary Scheme; and

                     (d)  she was receiving widow allowance immediately before the start of the course;

the Secretary may decide that, in spite of subsection (4), widow allowance is payable to her until:

                     (e)  the application is determined; or

                      (f)  the end of 3 weeks commencing on the day on which the course starts;

whichever happens first.

408CG  Maximum basic rate and remote area allowance not payable to CDEP Scheme participant

                   The maximum basic rate, and the remote area allowance, of widow allowance for a period are not payable to a woman who is a CDEP Scheme participant in respect of the whole or a part of the period.

Note 1:       For remote area allowance see Module J of Benefit Rate Calculator B.

Note 2:       For CDEP Scheme participant see subsection 23(1).

408CH  Seasonal workers

  408CH(1)  This section applies if, at any time during the 6 months immediately before the day on which a woman lodges a claim for widow allowance, she has been engaged in seasonal work.

Note:          For seasonal work see subsection 16A(1).

  408CH(2)  Widow allowance is not payable to the woman:

                     (a)  if she is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under this Act) and the Secretary has not made a determination under subsection (3) in relation to her—for her seasonal work preclusion period; or

                     (b)  if the Secretary has made a determination under subsection (3) in relation to her—for that part (if any) of her seasonal work preclusion period to which she is subject as a result of the determination.

Note:          For seasonal work preclusion period see subsection 16A(1).

  408CH(3)  If the Secretary is satisfied that a woman is in severe financial hardship because she has incurred unavoidable or reasonable expenditure while she is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under this Act):

                     (a)  the Secretary may determine that she is not subject to the whole, or any part, of the preclusion period; and

                     (b)  the determination has effect accordingly.

Note 1:       For in severe financial hardship see subsection 19C(2) (person who is not a member of a couple).

Note 2:       For unavoidable or reasonable expenditure see subsection 19C(4).


 

Division 5Rate of widow allowance

408FA  How to work out a woman’s widow allowance rate

                   A woman’s widow allowance rate is worked out using the Benefit Rate Calculator B at the end of section 1068.

408GI  CDEP Scheme participant may accumulate widow allowance

    408GI(1)  A person who is a CDEP Scheme participant in respect of the whole or a part of a quarter may, by written notice given to the Secretary, choose to accumulate the amounts of any widow allowance that become payable to the person in respect of that quarter, or any later quarter in respect of the whole or a part of which the person is a CDEP Scheme participant, and have not already been paid.

    408GI(2)  If a person to whom subsection (1) applies makes a choice under that subsection, the sum of the accumulated amounts payable to the person in respect of a quarter is to be paid on, or as soon as practicable after, the first payday after:

                     (a)  unless paragraph (b) applies, the last day of the quarter; or

                     (b)  if the person ceases to be a CDEP Scheme participant before the end of the quarter—the day on which the person so ceases.

    408GI(3)  In this section:

quarter means a CDEP Scheme quarter.

Note 1:       For CDEP Scheme participant see section 1188B.

Note 2:       For CDEP Scheme quarter see subsection 23(1).


 

Part 2.10Parenting payment

Division 1Qualification for and payability of parenting payment

Subdivision AQualification

500  Qualification for parenting payment

        500(1)  A person is qualified for parenting payment if:

                     (a)  the person has at least one PP child (see sections 500D to 500H); and

                     (b)  the person is an Australian resident; and

                     (c)  the person satisfies any requirement to enter into a participation agreement that applies to the person under Division 2; and

                     (d)  at least one of the following conditions is satisfied:

                              (i)  the person is not a member of a couple and the person was not a lone parent at the start of the person’s current period as an Australian resident (see subsections (2) and (3));

                             (ii)  the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;

                            (iii)  the person has a qualifying residence exemption for parenting payment.

Note 1:       For Australian resident and qualifying residence exemption see section 7.

Note 2:       If a person is claiming parenting payment under a scheduled international social security agreement, the requirements of this subsection could be modified by section 1208A.

        500(2)  For the purposes of subparagraph (1)(d)(i), a person’s current period as an Australian resident is a period that satisfies both the following conditions:

                     (a)  the person has been an Australian resident for the entire period;

                     (b)  the person lodged the claim for parenting payment during the period.

        500(3)  For the purposes of subparagraph (1)(d)(i), a person was a lone parent on a particular day if, on that day:

                     (a)  the person was not a member of a couple; and

                     (b)  the person had a dependent child.

        500(4)  If:

                     (a)  a person ceases to be qualified for parenting payment because of a failure to comply with a requirement to enter into a participation agreement; and

                     (b)  the Secretary, under section 80 of the Administration Act, cancels or suspends the person’s parenting payment because of that loss of qualification; and

                     (c)  within 13 weeks after the date of effect of the action taken by the Secretary, the person enters into a participation agreement;

the person’s qualification for parenting payment is taken, for the purposes of paragraph 500(1)(c) of this Act, never to have ceased.

500B  Qualification affecting member of couple—assurance of support

                   A person who is a member of a couple is not qualified for parenting payment if the Secretary is satisfied that:

                     (a)  an assurance of support is in force in respect of the person (the assuree); and

                     (b)  the person who gave the assurance of support is willing and able to provide an adequate level of support to the assuree; and

                     (c)  it would be reasonable for the assuree to accept that support.

Note:          For assurance of support see subsection 23(1).

500C  Qualification affecting member of couple—unemployment due to industrial action

     500C(1)  If:

                     (a)  a person (claimant) who is a member of a couple has claimed but has not yet received parenting payment; and

                     (b)  when the claim was lodged, the claimant was unemployed;

the claimant is not qualified for parenting payment unless the Secretary is satisfied that the claimant’s unemployment is not due to the fact that the claimant is, or has been, engaged in industrial action or a series of industrial actions.

     500C(2)  For the purposes of subsection (1) and without limiting that subsection, a claimant is taken not to be, or not to have been, engaged in industrial action or a series of industrial actions if the Secretary is satisfied that the claimant’s unemployment is due to the fact that other persons are, or have been, engaged in industrial action or in a series of industrial actions, and that:

                     (a)  if industrial action is still being engaged in:

                              (i)  those persons, or some of those persons, are members of a trade union that is involved in the industrial action, or have been such members at any time since industrial action started; and

                             (ii)  the claimant has not been a member of that trade union at any time since industrial action started; or

                     (b)  if industrial action has stopped:

                              (i)  at any time while industrial action was being engaged in, those persons, or some of those persons, were members of a trade union that was involved in the industrial action; and

                             (ii)  the claimant was not a member of that trade union at any time while industrial action was being engaged in.

     500C(3)  Subsection (1) does not prevent a person from being qualified for parenting payment after the relevant industrial action or series of industrial actions has stopped.

Note:          For industrial action, trade union and unemployment see section 16 and for PP (partnered) payday see section 18.

500D  PP child

     500D(1)  A PP child of a person is a child who:

                     (a)  is a dependent child of the person; and

                     (b)  has not turned 16.

Note:          For dependent child see subsections 5(2) to (9).

     500D(2)  For the purpose of determining whether a child is a PP child of a person, the child is taken to remain in the person’s care if:

                     (a)  at the start of a period not exceeding 8 weeks, the child leaves the person’s care; and

                     (b)  throughout the period, the child is the PP child of another person; and

                     (c)  the child returns, or the Secretary is satisfied that the child will return, to the first person’s care at the end of the period.

Note:          The definition of dependent child in subsection 5(2) requires a young person to be in an adult’s care.

     500D(3)  Subsection (2) does not, by implication, affect the determination of whether a child is in the care of a person in cases to which the subsection does not apply (for example, if the period exceeds 8 weeks).

500E  Child to be PP child for only one person

     500E(1)  A child can be a PP child of only one person at a time.

     500E(2)  If the Secretary is satisfied that, but for this section, a child would be a PP child of 2 or more persons (adults), the Secretary must:

                     (a)  make a written determination specifying one of them as the person in relation to whom the child is to be a PP child; and

                     (b)  give each adult who has claimed parenting payment a copy of the determination.

     500E(3)  The Secretary may make the determination even if all the adults have not claimed parenting payment.

500F  PP child—child absent from Australia for more than 13 weeks

      500F(1)  If a dependent child:

                     (a)  leaves Australia temporarily; and

                     (b)  continues to be absent from Australia for more than 13 weeks;

the child cannot be a PP child at any time after the 13 weeks while the child remains absent from Australia unless, at that time:

                     (c)  the child is in the company of a person to whom Division 2 of Part 4.2 applies; and

                     (d)  the person is a person in relation to whom the child is a PP child; and

                     (e)  the person’s portability period for parenting payment (within the meaning of that Division) has not ended.

      500F(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 the absence;

                     (b)  the intended duration of the absence;

                     (c)  the frequency of such absences.

500G  PP child—child born outside Australia

                   If a dependent child:

                     (a)  is born outside Australia; and

                     (b)  continues to be absent from Australia for a period of more than 13 weeks immediately following the child’s birth;

the child cannot be a PP child at any time after the 13 weeks while the child remains absent from Australia unless, at that time:

                     (c)  the child is in the company of a person to whom Division 2 of Part 4.2 applies; and

                     (d)  the person is a person in relation to whom the child is a PP child; and

                     (e)  the person’s portability period for parenting payment (within the meaning of that Division) has not ended.

500H  PP child—child subsequently departs Australia

                   If:

                     (a)  a dependent child is not a PP child because of section 500F (absence from Australia) or 500G (birth outside Australia), or because of a previous application of this section; and

                     (b)  the child comes to Australia; and

                     (c)  the child leaves Australia less than 13 weeks later;

the child cannot be a PP child when the child leaves Australia as mentioned in paragraph (c).

Subdivision BGeneral principles relating to payability

500I  Parenting payment not payable if payment rate nil

      500I(1)  Subject to subsection (2), a parenting payment is not payable to a person if the person’s parenting payment rate would be nil.

      500I(2)  Subsection (1) does not apply to a person if the person’s rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

                     (a)  the social security law; or

                     (b)  Division 2 of Part VIIA of the Veterans’ Entitlements Act.

500Q  Assets test—payment not payable if assets value limit exceeded
[see Appendix for CPI adjusted figures]

     500Q(1)  Parenting payment is not payable to a person if the value of the person’s assets exceeds the person’s assets value limit.

     500Q(2)  The assets value limit of a person who is not a member of a couple is worked out using the following table:

 

Table—Assets value limits for person who is not a member of a couple

Column 1

Item

Column 2

Person’s situation

Column 3

Assets value limit

1

Person is a homeowner

$125,750

2

Person is not a homeowner

$215,750

Note 1:       For homeowner see section 11.

Note 2:       The assets value limit in Column 3 of Item 1 is indexed annually in line with CPI increases (see sections 1190 to 1194).

Note 3:       The assets value limit in Column 3 of Item 2 is adjusted annually (see subsection 1204(1)).

Note 4:       If parenting payment 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 1130B and 1130C).

     500Q(3)  The assets value limit of a person who is a member of a couple is worked out using the following table:

 

Table—Assets value limits for person who is a member of a couple

Column 1

Item

Column 2

Person’s situation

Column 3

Assets value limit

 

 

Column 3A

Either person or partner homeowner

Column 3B

Neither person nor partner homeowner

1

Person is partnered (partner getting neither pension nor benefit)

$178,500

$268,500

2

Person is partnered (partner getting pension or benefit)

$89,250

$134,250

Note 1:       For partnered (partner getting neither pension nor benefit) and partnered (partner getting pension or benefit) see subsection 4(11).

Note 2:       For homeowner see subsection 11(4).

Note 3:       If item 1 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 (4)). If item 2 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 (5)).

Note 4:       If benefit PP (partnered) 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 item 2 are indexed annually in line with CPI increases (see sections 1191 to 1194).

Note 6:       The item 1 assets value limits are adjusted annually so that they are twice the corresponding item 2 limits (see subsections 1204(2) and (3)).

     500Q(4)  For the purposes of subsection (3), if the person is partnered (partner getting neither pension nor benefit):

                     (a)  the value of the person’s assets includes the value of the partner’s assets; and

                     (b)  the value of assets of a particular kind of the person includes the assets of that kind of the partner.

Note:          For partnered (partner getting neither pension nor benefit) see subsection 4(11).

     500Q(5)  For the purposes of subsection (3), if the person is partnered (partner getting pension or benefit):

                     (a)  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

                     (b)  the value of the person’s assets of a particular kind are taken to be 50% of the sum of the value of the assets of that kind of the person and the value of the assets of that kind of the person’s partner.

Note:          For partnered (partner getting pension or benefit) see subsection 4(11).

     500Q(6)  If the Secretary determines in writing a higher amount in substitution for an existing amount in item 1 in the table in subsection (3), the higher amount is taken, on 1 July 2000, to be substituted for the existing amount. A determination under this subsection is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

     500Q(7)  On 1 July 2000, each amount specified in a column in item 2 in the table in subsection (3) is taken to have been replaced with the amount (adjusted in accordance with section 1206GC) that was specified in the equivalent column in item 2 in the table in point 1068B-B3 immediately before that table was repealed by the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 1) 1999.

500R  Parenting payment not payable to more than one member of a couple

     500R(1)  Subject to subsection (2), if one member of a couple is receiving parenting payment, parenting payment is not payable to the other member of the couple.

     500R(2)  If:

                     (a)  both members of a couple are qualified for parenting payment; and

                     (b)  both of them have claimed parenting payment (whether or not one of them is receiving parenting payment);

the Secretary must:

                     (c)  make a written determination specifying one of them as the member of the couple to whom parenting payment is payable; and

                     (d)  give a copy of the determination to both of them.

     500R(3)  Parenting payment is not payable to the member of the couple not specified in the determination.

500S  Multiple entitlement exclusion

      500S(1)  Parenting payment is not payable to a person if the person is already receiving a service pension.

      500S(2)  If:

                     (a)  a person is receiving parenting payment; and

                     (b)  a social security pension other than a pension PP (single) or a social security benefit other than a benefit PP (partnered) or service pension becomes payable to the person;

parenting payment is not payable to the person.

Note 1:       Another payment type will generally not become payable to the person until the person claims it.

Note 2:       For social security pension and social security benefit see subsection 23(1).

      500S(3)  Parenting payment is not payable to a woman if:

                     (a)  the woman is an armed services widow; and

                     (b)  the woman is receiving 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.

Note:          For armed services widower see subsection 4(1).

      500S(4)  Parenting payment is not payable to a man if:

                     (a)  the man is an armed services widower; and

                     (b)  the man is receiving 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.

Note:          For armed services widower see subsection 4(1).

      500S(5)  Parenting payment is not payable to a person if:

                     (a)  the person is an armed services widow or an armed services widower; and

                     (b)  the person has received a lump sum, or is receiving weekly amounts, mentioned in paragraph 234(1)(b) of the MRCA.

Note 1:       For armed services widow and armed services widower see subsection 4(1).

Note 2:       For MRCA see subsection 23(1).

500V  Educational schemes exclusion—person member of a couple

     500V(1)  This section applies to a person who is a member of a couple.

     500V(2)  Parenting payment is not payable to the person if the person is receiving:

                     (b)  payments under the ABSTUDY Scheme (other than payments under the ABSTUDY Scheme as a part-time student); or

                     (c)  payments under a Student Financial Supplement Scheme.

500VA  Exclusion of certain participants in ABSTUDY Scheme

  500VA(1)  If:

                     (a)  a payment is made in respect of a person under the ABSTUDY Scheme; and

                     (b)  the payment is made on the basis that the person is a full-time student; and

                     (c)  in the calculation of the payment, an amount identified as living allowance (the basic payment) is included; and

                     (d)  the payment relates to a period;

pension PP (single) is not payable to the person in respect of any part of the period.

  500VA(2)  If:

                     (a)  a person is qualified for a payment under the ABSTUDY Scheme; and

                     (b)  the payment for which the person is qualified is a payment that:

                              (i)  is made on the basis that the person is a full-time student; and

                             (ii)  is calculated on the basis that an amount identified as living allowance (the basic payment) is included; and

                            (iii)  relates to a period;

pension PP (single) is not payable to the person in respect of any part of the period.

  500VA(3)  If:

                     (a)  a person may enrol in a full-time course of education; and

                     (b)  a payment referred to in subsection (2) may be made in respect of the person;

the Secretary may decide that, in spite of subsection (2), pension PP (single) is payable to the person before the person starts the course.

500W  Maximum basic rate and remote area allowance not payable to CDEP Scheme participant who is a member of a couple

                   The maximum basic rate, and the remote area allowance, of a parenting payment for a period is not payable to a person who is a member of a couple and is a CDEP Scheme participant in respect of the whole or a part of the period.

Note 1:       For CDEP Scheme participant see subsection 23(1).

Note 2:       For remote area allowance see Module G of Benefit PP (partnered) Rate Calculator.

500Y  Non-payment periods and rate reduction periods for newstart allowance, youth allowance and austudy payment—person member of a couple

     500Y(1)  This section applies to a person who is a member of a couple.

     500Y(2)  Parenting payment is not payable to a person if:

                     (a)  a period of non-payment of newstart allowance has been applied to the person under Subdivision F of Division 1 of Part 2.12 or under section 634; or

                     (b)  an activity test breach rate reduction period or an administrative breach rate reduction period for newstart allowance has been applied to the person under section 644AA or 644B; or

                     (c)  a period of non-payment of youth allowance has been applied to the person under Subdivision D of Division 2 of Part 2.11; or

                     (d)  the person is subject to an employment-related exclusion for a period under section 553B or 553C; or

                     (e)  an activity test breach rate reduction period or an administrative breach rate reduction for youth allowance has been applied to the person under Subdivision B or C of Division 5 of Part 2.11; or

                      (f)  a period of non-payment of austudy payment has been applied to the person under Subdivision E of Division 2 of Part 2.11A; or

                     (g)  an activity test breach rate reduction period or an administrative breach rate reduction for austudy payment has been applied to the person under Subdivision B or C of Division 5 of Part 2.11A;

and that period has not ended.

     500Y(3)  Subsection (2) does not apply in relation to a particular period of non-payment or rate reduction if the Secretary is satisfied that it should not so apply.

500Z  Seasonal workers—preclusion period

     500Z(1)  This section applies if:

                     (a)  a person who is a member of a couple has lodged a claim for parenting payment; and

                     (b)  at any time during the 6 months immediately before the day on which the person lodged the claim, the person, or the person’s partner, has been engaged in seasonal work.

Note:          For seasonal work see subsection 16A(1).

     500Z(2)  Parenting payment is not payable to the person:

                     (a)  if the person is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under this Act) and the Secretary has not made a determination under subsection (3) in relation to the person—for the person’s seasonal work preclusion period; or

                     (b)  if the Secretary has made a determination under subsection (3) in relation to the person—for that part (if any) of the person’s seasonal work preclusion period to which the person is subject as a result of the determination.

Note 1:       For seasonal work preclusion period see subsection 16A(1).

     500Z(3)  If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while the person is subject to a seasonal work preclusion period (whether in relation to the claim referred to in subsection (1) or any other claim under this Act):

                     (a)  the Secretary may determine that the person is not subject to the whole, or any part, of the preclusion period; and

                     (b)  the determination has effect accordingly.

Note 1:       For in severe financial hardship see subsection 19C(3) (person who is a member of a couple).

Note 2:       For unavoidable or reasonable expenditure see subsection 19C(4).

Subdivision CPayability in circumstances of participation agreement breach

500ZA  Third and subsequent participation agreement breach consequences

   500ZA(1)  Parenting payment is not payable to a person who is qualified for parenting payment while a participation agreement breach non-payment period applies to the person.

   500ZA(2)  A participation agreement breach non-payment period applies to a person if:

                     (a)  the person commits a participation agreement breach (the latest breach); and

                     (b)  the latest breach is the third or subsequent participation agreement breach within the 2 years immediately before the day after the latest breach.

500ZB  Participation agreement breaches

                   A person has committed a participation agreement breach if the person fails to take reasonable steps to comply with the terms of a participation agreement that is in force in respect of the person.

500ZC  Length of participation agreement breach non-payment period

Basic rule

   500ZC(1)  Subject to subsections (2) and (3), the length of a participation agreement breach non-payment period is 8 weeks.

Pre-existing non-payment period

   500ZC(2)  If, at the time of the commencement of a participation agreement breach non-payment period, the person is already subject to a participation agreement breach non-payment period (pre-existing non-payment period), the pre-existing non-payment period is taken to end immediately before the commencement of the participation agreement breach non-payment period.

Effect on non-payment period of complying with terms of agreement within 13 weeks

   500ZC(3)  If:

                     (a)  a participation agreement breach non-payment period applies to a person (or would apply to a person apart from this subsection); and

                     (b)  not more than 13 weeks after the start of the period, the person takes reasonable steps to comply, or resume compliance, with the terms of:

                              (i)  a participation agreement that is in force in respect of the person; or

                             (ii)  if there is no participation agreement in force in respect of the person—the participation agreement that was in force in respect of the person immediately before the commencement of the non-payment period;

this Subdivision has effect, for the purpose only of determining the payability of parenting payment in relation to the person:

                     (c)  as if the non-payment period had never started; and

                     (d)  if a prior breach penalty period had started not more than 13 weeks before the person took those reasonable steps—as if that prior breach penalty period had also never started.

   500ZC(4)  In subsection (3):

breach penalty period means a participation agreement breach rate reduction period or a participation agreement breach non-payment period.

500ZD  Start of participation agreement breach non-payment period

Notice of start of period

   500ZD(1)  If a participation agreement breach non-payment period applies to a person, the Secretary must give the person a written notice telling the person of the start of the period.

   500ZD(2)  A notice under subsection (1) must contain reasons why the participation agreement breach non-payment period applies to the person.

General rule

   500ZD(3)  Subject to subsection (4), the participation agreement breach non-payment period starts on the 14th day after the day on which the notice is given to the person.

Parenting payment ceasing to be payable

   500ZD(4)  If:

                     (a)  on or before the day on which a person’s participation agreement breach non-payment period would (apart from this subsection) have started, parenting payment ceases to be payable to the person; and

                     (b)  it has not ceased to be payable because of the application of a participation agreement breach non-payment period;

the participation agreement breach non-payment period starts on the day on which parenting payment ceases to be payable to the person.

500ZE  Interaction with participation agreement breach rate reduction periods

Application of section

   500ZE(1)  This section applies if:

                     (a)  a participation agreement breach non-payment period applies to a person; and

                     (b)  during the whole or a part of that period, the whole or a part of a participation payment breach rate reduction period (overlap period) applies to the person.

Overlap period

   500ZE(2)  Subject to subsection (4), the participation agreement breach non-payment period and the participation agreement breach rate reduction period are to run concurrently during the overlap period.

Which restriction is to apply

   500ZE(3)  Only the non-payment restriction relating to the participation agreement breach non-payment period is to apply to the person during the overlap period.

Pre-existing participation agreement breach rate reduction period

   500ZE(4)  If, at the time of the commencement of a participation agreement breach non-payment period under this Act, the person is already subject to a participation agreement breach rate reduction period (pre-existing reduction period), the pre-existing reduction period is taken to end immediately before the commencement of the participation agreement breach non-payment period under this Part.


 

Division 2Parenting Payment Participation Agreements

501  General requirements relating to participation agreements

General

        501(1)  The requirements that apply to a person in respect of parenting payment participation agreements are as follows:

                     (a)  the person must enter into a participation agreement when the person is required by the Secretary under section 501A to do so;

                     (b)  while the agreement is in force the person must take reasonable steps to comply with its terms;

                     (c)  at any time while the agreement is in force the person must be prepared to enter into another such agreement, instead of the existing agreement, if required to do so by the Secretary.

What are reasonable steps?

        501(2)  For the purposes of paragraph (1)(b), a person is to be regarded as taking reasonable steps to comply with the terms of a participation agreement if the Secretary is satisfied:

                     (a)  that the person has attempted in good faith and to the best of his or her ability to comply with those terms; or

                     (b)  that the terms:

                              (i)  have never been appropriate; or

                             (ii)  because of a change in the person’s circumstances since entry into the agreement, have become inappropriate;

                            for compliance by that person.

Appropriate terms

        501(3)  In determining whether the terms of an agreement have always been, or have become, inappropriate for compliance by a person, the Secretary is to have regard to the person’s capacity to comply with the terms and to the person’s needs.

Capacity to comply with agreement, and person’s needs

        501(4)  In having regard to a person’s capacity to comply with the terms of a participation agreement and the person’s needs, the Secretary is to take into account, but is not limited to, the following matters:

                     (a)  the person’s education, experience, skills, age, disability, illness, mental and physical condition; and

                     (b)  the state of the local labour market and the transport options available to the person in accessing that market; and

                     (c)  the participation opportunities available to the person; and

                     (d)  the family and caring responsibilities of the person, (including those arising from any significant adverse effect on a PP child of a person that would result from the person’s compliance with the terms of the agreement); and

                     (e)  current court proceedings in the Family Court or criminal courts or current child welfare concerns, such as drugs or school truanting; and

                      (f)  the length of travel time required for compliance with the agreement; and

                     (g)  the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and

                     (h)  any other matters that the Secretary or the person considers relevant in the circumstances.

Secretary must contact person before determining failure to comply with terms

        501(5)  The Secretary must not determine that a person has failed to take reasonable steps to comply with the terms of a participation agreement unless the Secretary:

                     (a)  is satisfied that the terms of the agreement were intended to assist the person over time in gaining employment or undertaking study or training; and

                     (b)  has made reasonable attempts to contact the person in relation to the requirement to comply with the terms of the agreement (and has documented each attempt to contact); and

                     (c)  if contact was able to be made, has had regard to the reasons, if any, provided by the person for not complying with the terms of the agreement; and

                     (d)  has confirmed the adequacy of the support that the Secretary agreed to provide under the agreement.

501A  Parenting payment participation agreements—requirement

Requirement to enter into agreement

     501A(1)  Subject to this section, if:

                     (a)  a person is claiming or receiving parenting payment; and

                     (b)  the PP child or, if more than one, the youngest PP child, of the person has turned 13 years; and

                     (c)  the person is not an exempt person within the meaning of subsection (2) or (2A);

the Secretary may require the person to enter into a participation agreement.

Exempt persons

     501A(2)  For the purposes of subsection (1), a person is an exempt person if the person has:

                     (a)  a PP child who is a profoundly disabled child within the meaning of section 197; or

                     (b)  two or more PP children;

                              (i)  who are disabled children; and

                             (ii)  who, in the Secretary’s opinion, require a level of care at least equivalent to the level of care required by a profoundly disabled child; or

                     (c)  a PP child who suffers from a physical, intellectual or psychiatric disability that is specified in a determination made under subsection 38D(3) to be a recognised disability for the purposes of section 953.

Exempt persons-periodic exemptions

  501A(2A)  For the purposes of subsection (1), a person is an exempt person for a particular period determined by the Secretary under this subsection if:

                     (a)  the person has one or more PP children:

                              (i)  who suffer from a physical, intellectual or psychiatric disability or illness; and

                             (ii)  whose care needs are such that the person could not be reasonably expected at that time to comply with the terms of a participation agreement; or

                     (b)  a critical event occurs that was not within the person’s control (eg family or personal crisis, the Secretary is satisfied the person has separated from his or her partner on a permanent or indefinite basis in the past 26 weeks, person’s house burning down, evidence of domestic violence, serious illness of PP children or an accumulation of stressful personal circumstances which the Secretary is satisfied would, in combination, require full-time effort to address) and, as a result, the person is temporarily unable to comply with the terms of a participation agreement.

  501A(2B)  At any one time the maximum period for which the Secretary may determine that a person is an exempt person under subsection (2A) is:

                     (a)  if paragraph (2A)(a) applies to the person—12 months;

                     (b)  if paragraph (2A)(b) applies to the person—26 weeks.

  501A(2C)  The Secretary may make more than one determination under subsection (2A) in respect of a person.

Requirement to enter into another agreement

     501A(3)  The Secretary may require a person who is a party to a participation agreement that is in force to enter into another such agreement instead of the existing one.

Reasons for revocation or revocation and replacement

     501A(4)  Without limiting the generality of the grounds on which the Secretary may take action under subsection (3), those grounds include:

                     (a)  the Secretary’s satisfaction that the person has breached the requirements of the agreement that is in force; or

                     (b)  the Secretary’s satisfaction that a term or terms of the agreement that is in force are inappropriate, having regard to the person’s circumstances and needs at the time it was entered into; or

                     (c)  the Secretary’s satisfaction that the person’s circumstances or needs have so changed that the agreement that is in force should no longer continue in force.

Notice of requirement

     501A(5)  The Secretary is to give a person who is required to enter into a participation agreement notice in writing of:

                     (a)  the requirement; and

                     (b)  the places and times, being places and times which are reasonable in all the circumstances, at which the agreement is to be negotiated; and

                     (c)  the effect of failure by the person to comply with the requirement set out in the notice.

501B  Participation agreement—nature and terms

Form of agreement

     501B(1)  A participation agreement is a written agreement between the Secretary and another person, in a form approved by the Secretary, under which the person agrees to undertake, during each period of 26 weeks that the agreement is in force, approved activities anticipated to take 150 hours or such lesser number of hours as are agreed between them. Participation agreements will set out the support that the Secretary undertakes to provide to assist the person to meet his or her participation requirements in the negotiated agreement.

Approved activities

     501B(2)  For the purposes of a particular participation agreement, approved activities constitute such particular activities, comprising one or more of the following activities, as are approved by the Secretary:

                     (a)  job search;

                     (b)  a vocational or pre-vocational training course;

                     (c)  training that would help in searching for work;

                     (d)  paid work;

                     (e)  measures designed to eliminate or reduce any disadvantage the person has in relation to obtaining work;

                      (f)  subject to subsection (7)—voluntary participation in an approved program of work for income support payment;

                     (g)  participation in a labour market program;

                     (h)  participation in the PSP;

                      (i)  participation in a rehabilitation program as defined in section 23 of the Social Security Act 1991;

                      (j)  a course of education;

                     (k)  another activity that the Secretary regards as suitable for the person, including voluntary work, and that is agreed to between the person and the Secretary.

Secretary’s considerations concerning approval of terms

     501B(3)  In considering what terms of a participation agreement with a person to approve, the Secretary is to have regard to the person’s capacity to comply with the terms of the proposed agreement and to the person’s needs.

Capacity to comply with agreement, and person’s needs

     501B(4)  In having regard to a person’s capacity to comply with the terms of a participation agreement and to the person’s needs, the Secretary is to take into account, but is not limited to, the following matters:

                     (a)  the person’s education, experience, skills, age, disability, illness, mental and physical condition; and

                     (b)  the state of the local labour market and the transport options available to the person in accessing that market; and

                     (c)  the participation opportunities available to the person; and

                     (d)  the family and caring responsibilities of the person, (including those arising from any significant adverse effect on a PP child of a person that would result from the person’s compliance with the terms of the agreement); and

                     (e)  current court proceedings in the Family Court or criminal courts or current child welfare concerns such as drugs or school truanting; and

                      (f)  the length of travel time required for compliance with the agreement; and

                     (g)  the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and

                     (h)  any other matters that the Secretary or the person considers relevant in the circumstances.

Variation, suspension, cancellation and review

     501B(5)  A participation agreement with a person:

                     (a)  may be varied (in negotiation with the person) or suspended by the Secretary; and

                     (b)  if another participation agreement is made with the person—may be cancelled by the Secretary; and

                     (c)  may be reviewed from time to time by the Secretary at the request of either party to the agreement; and

                     (d)  may be cancelled by the Secretary after a review under paragraph (c).

Cooling-off period

  501B(5A)  Within 14 days of the terms of the participation agreement being approved, those terms may be varied by the person with the approval of the Secretary.

Requirement to notify

   501B(5B)  The Secretary must advise the person of the effect of subsection (5A).

Avoidance of doubt

   501B(5C)  To avoid doubt, subsection (5A) does not prevent the person at any time from requesting a review of an agreement under paragraph (5)(c).

Circumstances preventing or affecting compliance

     501B(6)  The party to a participation agreement other than the Secretary must tell the Secretary of any circumstances preventing or affecting the party’s compliance with the agreement.

Situations in which participation in an approved program of work for income support payment cannot be required

     501B(7)  A participation agreement with a person must not provide for participation in an approved program of work for income support payment if:

                     (a)  in the Secretary’s opinion:

                              (i)  it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or

                             (ii)  performing the work in the conditions in which the work would be performed would constitute a risk to health or safety or would contravene a law of the Commonwealth, a State or Territory relating to occupational health and safety; or

                     (b)  the program of work requires the person to move from a home in one place to a home in another place.

Effect of participation in an approved program of work for income support payment

     501B(8)  A person is not to be taken, merely by participating in an approved program of work for income support payment in accordance with the terms of a participation agreement under this section, to be:

                     (a)  an employee within the meaning of section 9 of the Occupational Health and Safety (Commonwealth Employment) Act 1991; or

                     (b)  an employee within the meaning of section 5 of the Safety, Rehabilitation and Compensation Act 1988; or

                     (c)  an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992; or

                     (d)  an employee for the purposes of the Workplace Relations Act 1996.

501C  Participation agreements—failure to negotiate

Failure to enter agreement

     501C(1)  If:

                     (a)  a person has been given notice under subsection 501A(5) of a requirement to enter into a participation agreement; and

                     (b)  the Secretary is satisfied, because of the person’s failure to:

                              (i)  attend the negotiation of the agreement; or

                             (ii)  respond to correspondence about the agreement; or

                            (iii)  agree to the reasonable terms of the agreement proposed by the Secretary;

                            or for any other reason, that the person is unreasonably delaying entering into the agreement;

then:

                     (c)  the Secretary may give the person notice that the person is taken to have failed to enter the agreement; and

                     (d)  if the notice is given—the person is taken to have so failed.

Form of notice

     501C(2)  A notice under paragraph (1)(c) must:

                     (a)  be in writing; and

                     (b)  set out the reasons for the decision to give the notice; and

                     (c)  include a statement describing the rights of the person to apply for the review of the decision.


 

Division 4Rate of parenting payment

Subdivision ARate of parenting payment

503  How to work out a person’s parenting payment rate

                   A person’s parenting payment rate is worked out using:

                     (a)  if the person is not a member of a couple—the Pension PP (Single) Rate Calculator at the end of section 1068A (see Part 3.6A); or

                     (b)  if the person is a member of a couple—the Benefit PP (Partnered) Rate Calculator at the end of section 1068B (see Part 3.6A).

503A  Approved program of work supplement

                   If a person:

                     (a)  is receiving a parenting payment; and

                     (b)  is participating in an approved program of work for income support payment;

the rate of the person’s parenting payment is increased by an amount of $20.80, to be known as the approved program of work supplement, for each fortnight during which the person participates in the program.

503AA  Approved program of work supplement not payable in certain circumstances

                   An approved program of work supplement is not payable to a person in respect of a fortnight if pensioner education supplement under Part 2.24A or under ABSTUDY is payable to the person in respect of a day in the fortnight.

Subdivision BRate reductions relating to participation agreement breaches

503B  Participation agreement breach rate reduction period

     503B(1)  A participation agreement breach rate reduction period applies to a person if:

                     (a)  the person fails to take reasonable steps to comply with the terms of the person’s participation agreement (latest breach); and

                     (b)  the latest breach is only the first or second breach committed by the person within the 2 years immediately before the day after the latest breach.

     503B(2)  In this section, breach means a failure to take reasonable steps to comply with the terms of a participation agreement.

503C  Length of participation agreement breach rate reduction period

Length of breach rate reduction period

     503C(1)  Subject to subsections (2) and (3), the length of a participation agreement breach rate reduction period is 26 weeks.

Pre-existing breach rate reduction period

     503C(2)  If, at the time of the commencement of a participation agreement breach rate reduction period under this Part (the current breach period), the person is already subject to a participation agreement breach rate reduction period (pre-existing rate reduction period), the pre-existing rate reduction period is taken to end immediately before the commencement of the current breach period.

Effect on breach rate reduction period of complying with the terms of an agreement within 13 weeks

     503C(3)  If:

                     (a)  a participation agreement breach rate reduction period applies to a person (or would apply to a person apart from this subsection); and

                     (b)  not more than 13 weeks after the start of the period, the person takes reasonable steps to comply, or to resume compliance, with the terms of a participation agreement that is in force in respect of the person;

this Act has effect, for the purpose only of working out the rate of parenting payment payable to the person:

                     (c)  as if the period had never started; and

                     (d)  if a prior breach penalty period had started not more than 13 weeks before the person took those reasonable steps—as if that prior breach penalty period had also never started.

Effect on breach rate reduction period of complying with the terms of agreement after 13 weeks

     503C(4)  If:

                     (a)  a participation agreement breach rate reduction period applies to a person (or would apply to a person apart from this subsection); and

                     (b)  more than 13 weeks after the start of the period, the person takes reasonable steps to comply, or to resume compliance, with the terms of a participation agreement that is in force in respect of the person;

the breach rate reduction period applicable to the person ceases with effect from the day on which the person took those reasonable steps.

     503C(5)  In this section:

breach penalty period means a participation agreement breach rate reduction period or a participation agreement breach non-payment period.

503D  Start of participation agreement breach rate reduction period

Notice of start of period

     503D(1)  If a participation agreement breach rate reduction period applies to a person under this Part, the Secretary must give to the person a written notice telling the person of the start of the period.

Notice to contain reasons

  503D(1A)  A notice under subsection (1) must contain reasons why the participation agreement breach rate reduction period applies to the person.

General rule

     503D(2)  Subject to subsection (3), the participation agreement breach rate reduction period starts on the 14th day after the day on which the notice is given to the person.

Parenting payment ceasing to be payable

     503D(3)  If, on or before the day on which the person’s participation agreement breach rate reduction period would (apart from this subsection) have started, parenting payment ceases to be payable to the person, the period starts on the day on which parenting payment ceases to be payable to the person.

503E  Rate of parenting payment where participation agreement breach rate reduction period applies

Participation agreement breach reduced rate

     503E(1)  If a participation agreement breach rate reduction period applies to a person under this Part, the person’s rate of parenting payment for the reduction period is worked out as follows:

Method statement

Step 1.   Work out the person’s maximum payment rate as follows:

               (a)     if the person is not a member of a couple, the person’s maximum payment rate will be the sum of the person’s maximum basic rate of parenting payment as determined under Module B of the Parenting Payment Rate Calculator in section 1068A and the person’s pension supplement as determined under Module BA of the Parenting Payment Rate Calculator in section 1068A;

               (b)     if the person is a member of a couple, the person’s maximum payment rate is the rate worked out using Module C of the Parenting Payment Rate Calculator in section 1068B.

Step 2.   Work out the rate reduction amount as follows:

               (a)     if the participation agreement breach is the person’s first breach in the 2 year period:

                       

               (b)     if the participation agreement breach is the person’s second breach in the 2 year period:

                       

Step 3.   Take the rate reduction amount away from the rate of parenting payment worked out in accordance with the Parenting Payment Rate Calculator in section 1068A or 1068B, as the case may be. The result is the participation agreement breach reduced rate.

Meaning of 2 year period

     503E(2)  In this section:

2 year period means the 2 years immediately before the day after the participation agreement breach.

Subdivision CAccumulation of parenting payments by CDEP Scheme participants

504N  CDEP Scheme participant may accumulate parenting payment

     504N(1)  A person who is a member of a couple, and is a CDEP Scheme participant in respect of the whole or a part of a quarter, may, by written notice given to the Secretary, choose to accumulate the amounts of any parenting payment that become payable to the person in respect of that quarter, or any later quarter in respect of the whole or a part of which the person is a CDEP Scheme participant, and have not already been paid.

     504N(2)  If a person to whom subsection (1) applies makes a choice under that subsection, the sum of the accumulated amounts payable to the person in respect of a quarter is to be paid on, or as soon as practicable after, the first payday after:

                     (a)  unless paragraph (b) applies, the last day of the quarter; or

                     (b)  if the person ceases to be a CDEP Scheme participant before the end of the quarter—the day on which the person so ceases.

     504N(3)  In this section:

quarter means a CDEP Scheme quarter.

Note 1:       For CDEP Scheme participant see section 1188B.

Note 2:       For CDEP Scheme quarter see subsection 23(1).


 

Division 9Bereavement payments

Subdivision AContinuation of parenting payment after death of child

512  Death of PP child—continuation of qualification for 14 weeks

        512(1)  If:

                     (a)  a person is receiving parenting payment for a dependent child; and

                     (b)  the child dies; and

                     (c)  following the child’s death, there is no other dependent child of the person who is a PP child;

the person is qualified for parenting payment in respect of the child, for the period of 14 weeks that starts on the day of the child’s death.

        512(2)  If a person is qualified under subsection (1), the person’s parenting payment rate during the 14 weeks is to be worked out as if the child had not died.

Subdivision BDeath of recipient

513  Death of recipient—recipient not member of a couple

        513(1)  If:

                     (a)  a person is receiving parenting payment; and

                     (b)  the person is not a member of a couple; 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 payday after the person’s death if the person had not died.

        513(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 2:       For death of a person qualified for bereavement payments under Subdivision C see section 514E.

513A  Death of recipient—recipient member of a couple

                   If:

                     (a)  a person is receiving parenting payment; and

                     (b)  the person is a member of a couple; and

                     (c)  the person dies; and

                     (d)  the person:

                              (i)  was qualified at the time of the person’s death for payments under Subdivision A in relation to the death of a PP child; or

                             (ii)  would have been qualified if the person had not died; and

                     (e)  the person’s partner claims the payments referred to in paragraph (d) within 13 weeks after the death of the child;

there is payable to the partner of the person an amount equal to the amount of parenting payment that would have been payable to the person under Subdivision A if the person had not died.

Subdivision CDeath of partner

514  Surviving partner and deceased partner

                   If:

                     (a)  a person is receiving parenting payment; and

                     (b)  the person’s partner dies;

then, for the purposes of this Division:

                     (c)  the person is the surviving partner; and

                     (d)  the person’s partner is the deceased partner.

514A  Qualification for payments under this Subdivision

     514A(1)  If:

                     (a)  a person is receiving a benefit PP (partnered); and

                     (b)  the person’s partner dies; and

                     (c)  immediately before the deceased partner died, he or she:

                              (i)  was a long-term social security recipient; or

                             (ii)  was receiving a social security pension, a service pension or income support supplement; and

                     (d)  immediately before the deceased partner died, the surviving partner was a long-term social security recipient;

the surviving partner is qualified for payments under this Subdivision to cover the bereavement period.

Note 1:       For benefit PP (partnered) see section 18 and for long-term social security recipient see subsection 23(1).

Note 2:       Section 514B provides for the payment to the surviving partner, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the deceased partner during that period if the partner had not died.

Note 3:       Section 514C provides for payment to the surviving partner of a lump sum that represents the instalments that would have been paid to the deceased partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the deceased partner had not died.

Note 4:       For bereavement period see section 21.

     514A(2)  A surviving partner who is qualified for payments under this Subdivision may choose not to receive payments under this Subdivision.

     514A(3)  An election under subsection (2):

                     (a)  must be made by written notice to the Secretary; and

                     (b)  may be made after the surviving partner 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.

514B  Continued payment of deceased partner’s previous entitlement

                   If a surviving partner is qualified for payments under this Subdivision in relation to the death of the deceased partner, there is payable to the surviving partner, on each of the deceased partner’s paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the deceased partner on that payday if he or she had not died.

Note:          For bereavement rate continuation period see section 21.

514C  Lump sum payable in some circumstances

                   If:

                     (a)  a surviving partner is qualified for payments under this Subdivision in relation to the death of the deceased partner; and

                     (b)  the first available bereavement adjustment payday occurs before the end of the bereavement period;

there is payable to the surviving partner as a lump sum an amount worked out using the following Lump Sum Calculator:

Lump Sum Calculator

This is how to work out the amount of the lump sum:

Method statement

Step 1.   Work out the amount that would have been payable to the surviving partner on the surviving partner’s payday immediately before the first available bereavement adjustment payday if:

               (a)     the deceased partner had not died; and

               (b)     if, immediately before the partner’s death, the couple were an illness separated couple or a respite care couple—they were not such a couple.

                   Note:             For illness separated couple and respite care couple see subsections 4(7) and (8).

Step 2.   Work out the amount that would have been payable to the deceased partner on the deceased partner’s payday immediately before the first available bereavement adjustment payday if:

               (a)     the deceased partner had not died; and

               (b)     if, immediately before the partner’s death, the couple were an illness separated couple or a respite care couple—they were not such a couple.

                   Note:             For illness separated couple and respite care couple see subsections 4(7) and (8).

Step 3.   Add the results of Step 1 and Step 2: the result is called the combined rate.

Step 4.   Work out the amount of pension PP (single) that would, if section 514D did not apply, have been payable to the surviving partner on the surviving partner’s payday immediately before the first available bereavement adjustment payday: the result is called the surviving partner’s individual rate.

Step 5.   Take the surviving partner’s individual rate away from the combined rate: the result is called the deceased partner’s instalment component.

Step 6.   Work out the number of the deceased partner’s paydays in the bereavement lump sum period.

Step 7.   Multiply the deceased partner’s instalment component by the number obtained in Step 6: the result is the amount of the lump sum payable to the surviving partner under this section.

514D  Adjustment of person’s parenting payment rate

     514D(1)  This section applies if a surviving partner:

                     (a)  is qualified for payments under this Subdivision; and

                     (b)  does not elect under subsection 514A(2) not to receive payments under this Subdivision.

     514D(2)  The surviving partner’s parenting payment rate during the bereavement rate continuation period is the benefit PP (partnered) rate that would have been payable to the surviving partner if:

                     (a)  the deceased partner had not died; and

                     (b)  if the couple had been an illness separated couple or a respite care couple—they had not been such a couple.

     514D(3)  The surviving partner’s parenting payment rate during the bereavement lump sum period (if any) is the pension PP (single) rate.

Note 1:       For bereavement period, bereavement rate continuation period, bereavement lump sum period and first available bereavement adjustment payday see section 21.

Note 2:       For illness separated couple and respite care couple see subsections 4(7) and (8) respectively.

Note 3:       For pension PP (single) and benefit PP (partnered) see section 18.

514E  Effect of death of surviving partner

                   If:

                     (a)  a surviving partner is qualified for payments under this Subdivision in relation to the death of the deceased partner; and

                     (b)  the surviving partner dies within the bereavement period; and

                     (c)  the Secretary does not become aware of the death of the deceased partner before the surviving partner dies;

there is payable, as a lump sum, to any person that the Secretary thinks appropriate, an amount worked out using the following Lump Sum Calculator:

Lump Sum Calculator

This is how to work out the amount of the lump sum:

Method statement

Step 1.   Work out the amount that would have been payable to the surviving partner on the surviving partner’s payday immediately after the day on which the surviving partner died if:

               (a)     neither the surviving partner nor the deceased partner had died; and

               (b)     if, immediately before the deceased partner’s death, the couple were an illness separated couple or a respite care couple—they were not such a couple.

                   Note:             For illness separated couple and respite care couple see subsections 4(7) and (8).

Step 2.   Work out the amount that would have been payable to the deceased partner on the deceased partner’s payday immediately after the day on which the surviving partner died if:

               (a)     neither the surviving partner nor the deceased partner had died; and

               (b)     if, immediately before the deceased partner’s death, the couple were an illness separated couple or a respite care couple—they were not such a couple.

                   Note:             For illness separated couple and respite care couple see subsections 4(7) and (8).

Step 3.   Add the results of Step 1 and Step 2: the result is called the combined rate.

Step 4.   Work out the amount of pension PP (single) that would, if section 514D did not apply, have been payable to the surviving partner on the surviving partner’s payday immediately after the day on which the surviving partner died if the surviving partner had not died: the result is called the surviving partner’s individual rate.

Step 5.   Take the surviving partner’s individual rate away from the combined rate: the result is called the deceased partner’s instalment component.

Step 6.   Work out the number of the deceased partner’s paydays in the period that commences on the day on which the surviving partner dies and ends on the day on which the bereavement period ends.

Step 7.   Multiply the deceased partner’s instalment component by the number obtained in Step 6: the result is the amount of the lump sum payable under this section.

Note:          For bereavement period and first available bereavement adjustment payday see section 21.

514F  Matters affecting payments under this Subdivision

      514F(1)  If:

                     (a)  the surviving partner is qualified for payments under this Subdivision; and

                     (b)  after the deceased partner died, an amount to which the deceased partner would have been entitled if he or she 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 surviving partner 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 surviving partner or from the personal representative of the deceased partner, except to the extent (if any) that the amount exceeds the amount payable to the surviving partner under this Subdivision;

                     (e)  the amount payable to the surviving partner under this Subdivision is to be reduced by the amount referred to in paragraph (b).

      514F(2)  If:

                     (a)  the surviving partner is qualified for payments under this Subdivision; and

                     (b)  an amount to which the deceased partner would have been entitled if the deceased 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; and

                     (c)  the bank pays to the surviving partner, out of that account, an amount not exceeding the total of the amounts paid as mentioned in paragraph (b);

the bank 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 deceased partner or anyone else in respect of the payment of that money to the surviving partner.

Note:          For bereavement period see section 21.

Subdivision DBereavement payment in respect of a person who was a CDEP Scheme participant

514FA  Calculation of bereavement payment in respect of former CDEP Scheme participant

                   If a benefit becomes payable under this Division in respect of a person who was a CDEP Scheme participant in respect of the day on which the benefit becomes payable, the amount of the benefit is to be the amount that would have been the amount of the benefit if section 500W had not been enacted.

Note:          For CDEP Scheme participant see section 1188B.

 


 

Part 2.11Youth allowance

Division 1Qualification for youth allowance

Subdivision ABasic qualifications

540  Qualification for youth allowance—general rule

                   Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:

                     (a)  either of the following applies:

                              (i)  throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);

                             (ii)  the person is a CDEP Scheme participant (see section 1188B) in respect of the period;

                     (b)  throughout the period the person is of youth allowance age (see Subdivision D); and

                     (c)  throughout the period the person satisfies any requirements relating to Youth Allowance Activity Agreements that apply to the person under Subdivision E; and

                     (d)  throughout the period, the person:

                              (i)  is an Australian resident; or

                             (ii)  is exempt from the residence requirement within the meaning of subsection 7(7).

Note 1:       Subdivision G provides for prospective qualification for youth allowance.

Note 2:       Division 2 sets out situations in which youth allowance is not payable even if the person qualifies for it.

540A  Qualification for youth allowance—claimants for disability support pension

General rule

     540A(1)  Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:

                     (b)  throughout the period, the person is of youth allowance age (see Subdivision D); and

                     (c)  the person made a claim for disability support pension at or before the start of the period and the claim was not determined before the end of the period; and

                     (d)  the Secretary is satisfied that, throughout the period, the person suffers from a medical condition that had a significant adverse effect on the person’s ability to work or study; and

                     (e)  throughout the period, the person satisfies the residency requirements that apply to the person under Subdivision F; and

                      (f)  the person satisfies any one of the conditions in subsection (2).

Conditions for qualification

     540A(2)  The conditions referred to in paragraph (1)(f) are:

                     (a)  a condition that the person was an Australian resident when the significant adverse effect of the medical condition on the person’s ability to work or study first occurred; and

                     (b)  a condition that at the start of the period the person had 10 years qualifying Australian residence or had a qualifying residence exemption for a social security benefit or youth training allowance; and

                     (c)  a condition that:

                              (i)  the person was born outside Australia; and

                             (ii)  when the significant adverse effect of the medical condition first occurred the person was not an Australian resident but was a dependent child of an Australian resident; and

                            (iii)  the person became an Australian resident while a dependent child of an Australian resident.

Note 1:       Subdivision G provides for prospective qualification for youth allowance.

Note 2:       Division 2 sets out situations in which youth allowance is not payable even if the person qualifies for it.

540AA  Qualification for youth allowance—new apprentices

                   Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if, throughout the period:

                     (a)  the person is a new apprentice; and

                     (b)  the person is of youth allowance age (see Subdivision D); and

                     (c)  the person:

                              (i)  is an Australian resident; or

                             (ii)  is exempt from the residence requirement within the meaning of subsection 7(7).

Note 1:       Subdivision G provides for prospective qualification for youth allowance.

Note 2:       Division 2 sets out situations in which youth allowance is not payable even if the person qualifies for it.

540B  Qualification for youth allowance—transferee from social security pension

                   If:

                     (a)  a person was receiving a social security pension; and

                     (b)  the person claims a youth allowance within 14 days after the day on which the last instalment of the person’s pension was paid; and

                     (c)  the person becomes qualified for a youth allowance at some time during the 14 day period but after the first day of that period;

the person is taken to be qualified for a youth allowance for the whole of the 14 day period.

540C  Qualification for youth allowance may continue to end of payment period

                   If:

                     (a)  a person is receiving a youth allowance; and

                     (b)  apart from this section, the person would cease on a particular day to be qualified for the allowance because the person has attained the maximum age for youth allowance; and

                     (c)  the day falls in, but is not the last day of, a period for which an instalment of youth allowance is payable to the person;

the person continues to be qualified for the allowance until the end of that period.

Subdivision BActivity test

541  Activity test

General

        541(1)  Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:

                     (a)  the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B); or

                     (b)  the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or

                     (c)  the person takes reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or

                     (d)  the person takes reasonable steps to comply, throughout the period, with a requirement of the Secretary notified to the person under subsection (2).

Note 1:       See section 541D on paid work that is unsuitable.

Note 2:       See section 541F on taking reasonable steps.

     541(1A)  A person also satisfies the activity test in respect of the period if, throughout the period, the person participates in the CSP.

Notices of particular requirements

        541(2)  If the Secretary is of the opinion that, throughout the period, the person should do one or more of the following:

                     (a)  undertake particular paid work other than paid work that is unsuitable for the person;

                     (b)  participate in an approved program of work for income support payment;

                     (c)  participate in one or more of the following:

                              (i)  a course of vocational training;

                             (ii)  a labour market program;

                            (iii)  a rehabilitation program;

                            (iv)  another course;

                            approved by the Secretary that is likely, in the Secretary’s opinion, to improve the person’s prospects of obtaining suitable paid work, or to help the person in seeking suitable paid work;

                    (ca)  participate in the PSP;

                     (d)  if the person lives in an area where:

                              (i)  there is no locally accessible labour market; and

                             (ii)  there is no locally accessible vocational training course or labour market program;

                            participate in an activity suggested by the person and approved by the Secretary;

the Secretary may, subject to section 541E, by notice in writing given to the person, inform the person that the person is required to act in accordance with the Secretary’s opinion.

     541(2A)  A notice under subsection (2) must inform the person to whom it is given of the effect of failure by the person to comply with the requirement set out in the notice.

Full-time employees etc.

        541(3)  A person cannot be taken to satisfy the activity test if:

                     (a)  the person is a new apprentice; or

                     (b)  except in the case of a person who is undertaking full-time study—the person is employed in full-time paid work for at least:

                              (i)  35 hours per week; or

                             (ii)  such lesser period per week as is, in the Secretary’s opinion, the normal number of hours per week that constitutes full-time work in the industry in which the person is employed; or

                     (c)  except in the case of a person who is undertaking full-time study—the person is, in the Secretary’s opinion, involved to a substantial degree in the operation of a family business and, in the Secretary’s opinion, should not be taken to satisfy the activity test.

541A  Failure to satisfy the activity test

                   A person cannot be taken to satisfy the activity test in respect of a period if:

                     (a)  the person fails to take reasonable steps to comply, throughout the period, with a requirement of the Secretary under subsection 541(2); or

                     (b)  the person fails to take reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or

                     (c)  the person refuses or fails, without reasonable excuse, to attend a job interview; or

                     (d)  the person voluntarily ceases, without reasonable excuse, to take part in, or is dismissed for misconduct from, a labour market program; or

                     (e)  the person refuses or fails to commence, or to complete, an approved program of work for income support payment that the person is required to undertake; or

                      (f)  the person refuses or fails to comply with the conditions of such a program; or

                     (g)  the person fails to comply with a notice to the person under subsection 541C(1); or

                     (h)  the person contravenes subsection 541C(2).

Note:          See section 541F on taking reasonable steps.

541B  Undertaking full-time study

General

     541B(1)  For the purposes of this Act, a person is undertaking full-time study if:

                     (a)  the person:

                              (i)  is enrolled in a course of education at an educational institution; or

                             (ii)  was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or

                            (iii)  was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and

                     (b)  the person:

                              (i)  is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or

                             (ii)  intends to undertake in the next study period for which he or she intends to enrol for the course;

                            either:

                            (iii)  in a case to which subsection (1A) does not apply—at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); or

                            (iv)  in a case to which subsection (1A) applies—at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); and

                     (c)  the course in question is an approved course of education or study (see subsection (5)); and

                     (d)  in the Secretary’s opinion, the person is making satisfactory progress towards completing the course.

When two-thirds study load applies

  541B(1A)  This subsection applies for the purposes of subparagraph (1)(b)(iv) if the person cannot undertake the normal amount of full-time study in respect of the course for that period:

                     (a)  because of the usual requirements of the institution in question in respect of the course; or

                     (b)  because of a specific direction in writing to the student from the academic registrar, or an equivalent officer, of the institution in question; or

                     (c)  because the academic registrar, or an equivalent officer, of the institution in question recommends in writing that the person undertake the amount of study mentioned in subparagraph (1)(b)(iv) in respect of the course for specified academic or vocational reasons.

                   Paragraph (c) applies for no longer than half of the academic year.

Meaning of normal amount of full-time study

     541B(2)  For the purposes of paragraph (1)(b), the normal amount of full-time study in respect of a course is:

                     (a)  if:

                              (i)  the course is a course of study within the meaning of the Higher Education Support Act 2003; and

                             (ii)  there are Commonwealth supported students (within the meaning of that Act) enrolled in the course;

                            the full-time student load for the course; or

                     (b)  if the course is not such a course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course—the amount so defined; or

                     (c)  otherwise—an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.

Alternative meaning of normal amount of full-time study

     541B(3)  For the purposes of paragraph (1)(b), and without limiting subsection (2), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.

Meaning of satisfactory progress

  541B(3A)  In forming an opinion about whether a person is making satisfactory progress for the purpose of paragraph (1)(d), the Secretary is to have regard to the guidelines.

   541B(3B)  The Minister, by determination in writing:

                     (a)  is to set guidelines for the exercise of the Secretary’s discretion under subsection (3A); and

                     (b)  may revoke or vary those guidelines.

   541B(3C)  Guidelines made for the purpose of subsection (3A) are disallowable instruments.

First fortnight of classes

     541B(4)  For the purposes of paragraph (1)(b), a person is taken to be undertaking full-time study in respect of a course during the period (the relevant period):

                     (a)  starting on the first day of classes in a study period; and

                     (b)  ending on the Friday of the second week of classes in the study period;

                   if the person is enrolled in the course and undertakes study in respect of the course on at least one day in the relevant period.

Meaning of approved course of education or study

     541B(5)  For the purposes of paragraph (1)(c), the course is an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.

541C  Requiring a person to apply for job vacancies

General

     541C(1)  The Secretary may notify a person in writing (other than a person who is undertaking full-time study) that the person must take reasonable steps to apply for a particular number of advertised job vacancies in the period stated in the notice, being a period of not less than 14 days.

Note:          See section 541F on taking reasonable steps.

Statements confirming job applications

     541C(2)  The person must give the Secretary a written statement from each employer whose job vacancy the person applied for that confirms that the person applied for the job vacancy.

Form of statements

     541C(3)  The statement from the employer must be in a form approved by the Secretary.

Exemption from giving the Secretary statements

     541C(4)  Subsection (2) does not apply to a person if the Secretary is satisfied that there are special circumstances in which it is not reasonable to expect the person to give the statement referred to in that subsection.

541D  Unsuitable paid work

What is unsuitable paid work

     541D(1)  Subject to subsections (1A) and (1B), for the purposes of section 541, particular paid work is unsuitable for a person if, and only if, in the Secretary’s opinion:

                     (a)  the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or

                     (b)  it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or

                     (c)  performing the work in the conditions in which the work would be performed would constitute a risk to health or safety and would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or

                     (d)  the work would involve the person being self-employed; or

                     (e)  the work would be covered by the Australian Fair Pay and Conditions Standard, but the terms and conditions for the work would be less generous than the minimum terms and conditions for the work under the Australian Fair Pay and Conditions Standard; or

                      (f)  the work would not be covered by the Australian Fair Pay and Conditions Standard, but, if it were so covered, the terms and conditions for the work would be less generous than the minimum terms and conditions for the work under the Australian Fair Pay and Conditions Standard; or

                     (g)  commuting between the person’s home and the place of work would be unreasonably difficult; or

                    (ga)  the place of work is not accessible by public transport services and the person does not have access to alternative transport facilities and could not reasonably be expected to travel to the place of work; or

                     (h)  the work would require enlistment in the Defence Force or the Reserves; or

                    (ha)  the work requires the person to move from a home in one place to a home in another place; or

                      (i)  for any other reason, the work is unsuitable for the person.

When commuting is unreasonably difficult

  541D(1A)  If:

                     (a)  a person seeks work in an area (the new area) that is outside the area (the old area) in which the person’s home is situated; and

                     (b)  the person is offered permanent full-time work (whether or not work of the kind sought) in the new area;

the work offered is not unsuitable for the person because of paragraph (1)(g), (ga) or (ha) unless:

                     (c)  the person is under the age of 18; or

                     (d)  the person or the person’s partner is pregnant; or

                     (e)  the person or the person’s partner has a severe medical condition and the condition makes it unreasonable for the person to accept the offer; or

                      (f)  the acceptance of the offer would jeopardise the current employment, or the employment prospects, of the person’s partner; or

                     (g)  the person or the person’s partner has a child under the age of 16 years who is living with them or is living somewhere else in the old area; or

                     (h)  the person or the person’s partner has significant caring responsibilities in the old area; or

                      (i)  the educational, cultural or religious background of the person makes it unreasonable for the person to accept the offer; or

                      (j)  it is more appropriate for the person to participate in education or training than to accept the offer; or

                     (k)  the person would suffer severe financial hardship if the person were to accept the offer.

  541D(1B)  Without affecting what would otherwise constitute a person seeking work outside the area in which the person’s home is situated, if a person, when seeking employment through an employment service provider, represents to the provider that the person is willing to undertake work outside the area in which the person’s home is situated, the person is taken for the purposes of subsection (1A) to seek work outside the area at the time when the representation is made.

     541D(2)  For the purposes of paragraph (1)(g), commuting is not unreasonably difficult if:

                     (a)  the sole or principal reason for the difficulty is that the commuting involves a journey, either from the person’s home to the place of work or from the place of work to the person’s home, that does not normally exceed 90 minutes in duration; or

                     (b)  in the Secretary’s opinion a substantial number of people living in the same area as the person regularly commute to their places of work in circumstances similar to those of the person.

Effect of subsection (2)

     541D(3)  Subsection (2) does not limit the Secretary’s discretion to form the opinion that, for the purposes of paragraph (1)(g), commuting is not unreasonably difficult.

Remuneration for work

     541D(4)  A reference in subsection (1) to remuneration for work is a reference to any income derived from the work that is income from personal exertion.

Note:          For income from personal exertion see subsection 8(1).

541E  Provisions relating to participation in an approved program of work for income support payment

Situations in which participation in an approved program of work for income support payment cannot be required

     541E(1)  The Secretary must not notify a person under subsection 541(2) that the person is required to participate in an approved program of work for income support payment if:

                     (a)  the person is under 18 years of age; or

                     (b)  the person is undertaking full-time study; or

                     (c)  because of the application of one or more Modules of the Youth Allowance Rate Calculator in section 1067G, the person is receiving a youth allowance at a rate that has been reduced; or

                     (d)  in the Secretary’s opinion:

                              (i)  it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or

                             (ii)  performing the work in the conditions in which the work would be performed would constitute a risk to health or safety or would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or

                     (e)  the program of work requires the person to move from a home in one place to a home in another place.

Secretary may give notice

     541E(2)  If, after the Secretary has notified the person that the person is required to participate in an approved program of work for income support payment, the Secretary:

                     (a)  is satisfied that the person is undertaking full-time study; or

                     (b)  is satisfied that the person is a person to whom paragraph (1)(c) applies; or

                     (c)  forms the opinion that subparagraph (1)(d)(i) or (ii) applies in relation to the performance of that work by the person;

the Secretary may, by notice in writing given to the person, inform the person that the requirement to participate in the program is revoked and, upon his or her so doing, the requirement is taken to have been revoked with effect from the day of that notification.

Effect of participation in an approved program of work for income support payment

     541E(3)  A person is not to be taken, merely by participating in an approved program of work for income support payment in accordance with a requirement of the Secretary under subsection 541(2), to be:

                     (a)  an employee within the meaning of section 9 of the Occupational Health and Safety (Commonwealth Employees) Act 1991; or

                     (b)  an employee within the meaning of section 5 of the Safety, Rehabilitation and Compensation Act 1988; or

                     (c)  an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992; or

                     (d)  an employee for the purposes of the Workplace Relations Act 1996.

541F  What are reasonable steps

                   For the purposes of this Subdivision, a person takes reasonable steps to comply with:

                     (a)  a requirement of the Secretary notified to the person under subsection 541(2); or

                     (b)  the terms of a Youth Allowance Activity Agreement; or

                     (c)  a notice to the person under subsection 541C(1);

(as the case requires) unless the Secretary is satisfied that the person has not attempted in good faith and to the best of his or her ability to comply with the requirement.

Subdivision CExemptions from the activity test

542  Situations in which a person is not required to satisfy the activity test

                   For the purposes of this Part, a person is not required to satisfy the activity test in respect of a period if, throughout the period:

                     (a)  the person has a temporary incapacity exemption under section 542A; or

                     (b)  the person has a pre-natal exemption or a post-natal exemption under section 542D; or

                     (c)  the person has a remote area exemption under section 542E; or

                     (d)  the person has an unpaid voluntary work exemption under section 542F; or

                     (e)  the person has a training camp exemption under section 542G; or

                      (f)  the person has a special circumstances exemption under section 542H.

542A  Temporary incapacity exemption

General

     542A(1)  Subject to subsection (2) of this section and sections 542B and 542C, a person has a temporary incapacity exemption if:

                     (a)  throughout the period the person:

                              (i)  if the person is undertaking full-time study—does not have the capacity to undertake the course of education in respect of which he or she is undertaking full-time study; or

                             (ii)  in any other case—is incapacitated for work;

                            because of sickness or an accident; and

                     (b)  the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

                     (c)  the incapacity is, or is likely to be, of a temporary nature; and

                     (d)  the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

                              (i)  the medical practitioner’s diagnosis; and

                             (ii)  the medical practitioner’s prognosis; and

                            (iii)  that the person is incapacitated for study or work (as the case requires); and

                            (iv)  the period for which the person is incapacitated for study or work (as the case requires); and

                     (e)  the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

Claimants for disability support pension

     542A(2)  This section does not apply to a person who is qualified for a youth allowance under section 540A.

Definition of work

     542A(3)  In this section:

work, in relation to a person, means work (whether full-time, part-time, permanent or casual) that:

                     (a)  if the person was employed at the time the sickness or accident in question occurred—the person has contracted to perform under a contract of employment that:

                              (i)  the person had immediately before the person becomes incapacitated; and

                             (ii)  continues after the person becomes incapacitated; and

                     (b)  if the person was not employed at that time—the person is reasonably capable of performing;

being work that is for at least 8 hours per week on wages that are at or above the relevant minimum wage.

542B  Failure to attend interview etc. may result in cessation of temporary incapacity exemption

General

     542B(1)  A person ceases to have a temporary incapacity exemption if:

                     (a)  the Secretary is of the opinion that the person should:

                              (i)  contact a particular officer of the Department; or

                             (ii)  attend an interview at a particular place; or

                            (iii)  complete a questionnaire; or

                            (iv)  attend a medical, psychiatric or psychological examination; and

                     (b)  the Secretary gives the person a written notice stating that the person is required, within a period stated in the notice, being a period of not less than 14 days, to:

                              (i)  contact the officer; or

                             (ii)  attend the interview; or

                            (iii)  complete the questionnaire; or

                            (iv)  attend the examination; or

                             (v)  if the person has undergone an examination—give the Secretary a report on the examination in the approved form; and

                     (c)  the Secretary is satisfied that it is reasonable for this section to apply to the person; and

                     (d)  the person does not take reasonable steps to comply with the requirement.

Contents of notice

     542B(2)  A notice under paragraph (1)(b) must inform the person to whom it is given of the effect of failure by the person to take reasonable steps to comply with the requirement set out in the notice.

What are reasonable steps

     542B(3)  For the purposes of paragraph (1)(d), a person takes reasonable steps to comply with a requirement under subsection (1) unless the Secretary is satisfied that the person has not attempted in good faith and to the best of his or her ability to comply with the requirement.

542C  Time limit for temporary incapacity exemptions

General

     542C(1)  A person ceases to have a temporary incapacity exemption if the person’s maximum exemption period ends.

Maximum exemption period

     542C(2)  Subject to this section, a person’s maximum exemption period is:

                     (a)  if the person has, whether before or after the commencement of this section, given the Secretary a medical certificate for the purpose of enabling the Secretary to decide whether the person was required to satisfy the activity test—the lesser of the following periods:

                              (i)  the period stated in the certificate as the period for which the person would be incapacitated for work or study;

                             (ii)  the period of 13 weeks that started or starts on the first day of the period so stated in the certificate; or

                     (b)  otherwise—the period of 4 weeks that started or starts on the day determined by the Secretary to have been the day on which the person’s incapacity for work or study began.

Extension where paragraph 542A(1)(d) certificate given

     542C(3)  If:

                     (a)  a person has a temporary incapacity exemption; and

                     (b)  the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner that states the matters listed in paragraph 542A(1)(d) and is in accordance with the form approved under that paragraph; and

                     (c)  the Secretary is satisfied that the person’s incapacity for work or study will continue after the end of the person’s maximum exemption period;

the Secretary may extend the person’s maximum exemption period by a period that is not more than the lesser of the following periods:

                     (d)  a period equal to the period stated in the certificate as the period for which the person would be incapacitated for work or study;

                     (e)  13 weeks.

Extension where paragraph 542A(1)(d) certificate given after end of maximum exemption period

     542C(4)  If:

                     (a)  a person had a temporary incapacity exemption; and

                     (b)  within 14 days after the end of the person’s maximum exemption period, the person gives the Secretary a certificate of a medical practitioner that states the matters listed in paragraph 542A(1)(d) and is in accordance with the form approved under that paragraph; and

                     (c)  the Secretary is satisfied that the person’s incapacity for work or study has continued after the end of the person’s maximum exemption period and that the incapacity will continue;

the Secretary may extend the maximum exemption period by a period of not more than the lesser of the following periods:

                     (d)  a period equal to the period stated in the certificate as the period for which the person would be incapacitated for work or study;

                     (e)  13 weeks.

Extension where other written evidence given

     542C(5)  If:

                     (a)  a person has a temporary incapacity exemption; and

                     (b)  the person gives the Secretary written evidence (other than a certificate referred to in paragraph (3)(b)) that the person’s incapacity for work or study will continue after the end of the person’s maximum exemption period; and

                     (c)  the Secretary is satisfied that:

                              (i)  the person’s circumstances make it unreasonable to expect the person to obtain a certificate referred to in paragraph (3)(b) before the end of the maximum exemption period; and

                             (ii)  the person’s incapacity for work or study will continue after the end of the person’s maximum exemption period;

the Secretary may extend the person’s maximum exemption period by not more than 4 weeks.

Extension where other written evidence given after end of maximum exemption period

     542C(6)  If:

                     (a)  a person had a temporary incapacity exemption; and

                     (b)  within 14 days after the end of the person’s maximum exemption period, the person gives the Secretary written evidence (other than a certificate referred to in paragraph (4)(b)) that the person’s incapacity for work or study will continue after the end of the person’s maximum exemption period; and

                     (c)  the Secretary is satisfied that:

                              (i)  the person’s circumstances make it unreasonable to expect the person to obtain a certificate referred to in paragraph (4)(b); and

                             (ii)  the person’s incapacity for work or study has continued after the end of the person’s maximum exemption period and that the incapacity will continue;

the Secretary may extend the maximum exemption period by a period of not more than 4 weeks from the end of the previous maximum exemption period.

Extension where paragraph 542A(1)(d) certificate not considered in a timely manner

     542C(7)  If:

                     (a)  a person has a temporary incapacity exemption; and

                     (b)  the person has, whether before or after the commencement of this section, given the Secretary a certificate referred to in paragraph (3)(b) before the end of the person’s maximum exemption period; and

                     (c)  before the end of the person’s maximum exemption period, the Secretary does not satisfy himself or herself that the person’s incapacity for work or study will continue after the end of that period; and

                     (d)  the sole or dominant cause of the Secretary failing so to satisfy himself or herself is an act or omission of an officer of the Department;

the Secretary may extend the person’s maximum exemption period by not more than 4 weeks.

542D  Pre-natal and post-natal exemptions

Pre-natal exemption

     542D(1)  A pregnant woman has a pre-natal exemption for the period that starts 6 weeks before the woman’s expected date of confinement and ends on the day on which the woman gives birth to the child (whether or not the child is born alive).

Post-natal exemption

     542D(2)  If a woman gives birth to a child (whether or not the child is born alive), the woman has a post-natal exemption for the period that starts on the day on which she gives birth to the child and ends 6 weeks after that day.

542E  Remote area exemption

General

     542E(1)  Subject to subsection (2), a person has a remote area exemption in respect of a period if the Secretary considers that:

                     (a)  it would be reasonable to assume that, at the end of a period, a person is present in an area where:

                              (i)  there is no locally accessible labour market; and

                             (ii)  there is no locally accessible vocational training course or labour market program; and

                     (b)  it would also be reasonable to assume that the person is throughout the period:

                              (i)  unemployed; and

                             (ii)  capable of undertaking paid work that in the Secretary’s opinion is suitable to be undertaken by the person; and

                            (iii)  willing to undertake paid work that in the Secretary’s opinion is suitable to be undertaken by the person; and

                     (c)  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 satisfy the activity test in order to be qualified for youth allowance for the period.

Note:          The activity test is dealt with in Subdivision B.

Effect of subsection 541(2) notices

     542E(2)  This section does not apply if the person has been notified of a requirement under subsection 541(2) in relation to the period.

542F  Unpaid voluntary work exemption

General

      542F(1)  Subject to subsection (2), a person has an unpaid voluntary work exemption in respect of a period if:

                     (a)  the person is engaged in approved full-time unpaid voluntary work for an approved organisation for at least 32 hours in the period; and

                     (b)  the person was receiving income support payments (whether or not the kind of payment received has changed over the period and whether any part of it occurred before or after the commencement of this section) in respect of a continuous period of at least 3 months immediately before the start of the period referred to in paragraph (a); and

                     (c)  the person has not already undertaken full-time unpaid voluntary work with one or more approved organisations in more than 6 months during the 12 month period ending immediately before the start of the period referred to in paragraph (b).

Availability of employment

      542F(2)  Subsection (1) does not apply to a person in respect of a day in a period if, 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 the day.

Definitions

      542F(3)  In this section:

approved full-time unpaid voluntary work means work that has been approved by the Secretary for the purposes of this section.

approved organisation means an organisation that has been approved by the Secretary for the purposes of this section.

542G  Training camp exemption

                   A person has a training camp exemption if the person is attending a training camp as a member of:

                     (a)  the Naval Reserve; or

                     (b)  the Army Reserve; or

                     (c)  the Air Force Reserve.

542H  Special circumstances exemption

General

     542H(1)  Subject to subsections (2) and (3), a person has a special circumstances exemption in respect of a period if:

                     (a)  the Secretary is satisfied that special circumstances, beyond the person’s control, exist; and

                     (b)  the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to satisfy the activity test for that period.

Meaning of special circumstances

  542H(1A)  In making a decision under subsection (1), the Secretary is to have regard to the guidelines.

  542H(1B)  The Minister, by determination in writing:

                     (a)  is to set guidelines for the exercise of the Secretary’s discretion under subsection (1A); and

                     (b)  may revoke or vary those guidelines.

  542H(1C)  Guidelines made for the purpose of subsection (1A) are disallowable instruments.

Duration of period

     542H(2)  The period referred to in subsection (1) is not to be more than 13 weeks.

Duration where a number of determinations made

     542H(3)  If:

                     (a)  the Secretary makes more than one decision under subsection (1) or under subsection 731E(1); and

                     (b)  the periods to which the decisions relate form a continuous period;

the continuous period is not to be more than 13 weeks, unless the Secretary decides otherwise, having regard to the continued existence, or likely continued existence, of the special circumstances on which the last preceding decision was based.

Subdivision DYouth allowance age

543  Youth allowance age

                   For the purposes of this Part, a person is of youth allowance age if the person:

                     (a)  has attained the minimum age for youth allowance (see section 543A); and

                     (b)  has not yet attained the maximum age for youth allowance (see section 543B).

543A  Minimum age for youth allowance [see Note 6]

General

     543A(1)  Subject to this section, the person has attained the minimum age for youth allowance if the person:

                     (a)  is at least 16 years old; or

                     (b)  is 15 years old and is independent.

Note:          For independent see section 1067A.

Persons not yet 18 years old

     543A(2)  Subject to subsections (2A) and (2B), a person who satisfies paragraph (1)(a) or (b) but is not yet 18 years old is not taken under subsection (1) to have attained the minimum age for youth allowance unless the person:

                     (a)  has completed the final year of secondary school, or an equivalent level of education; or

                     (b)  is undertaking full-time study; or

                     (c)  has agreed to enter into a Youth Allowance activity agreement; or

                     (d)  is a new apprentice.

  543A(2A)  Subject to subsection (2B), subsection (2) does not apply to the person if the Secretary considers that the person does not have the capacity to undertake full-time study or training because he or she:

                     (a)  is ill or has had an accident and the incapacity is, or is likely to be, of a temporary nature; or

                     (b)  has a physical, psychiatric or intellectual disability, or a learning difficulty such as attention deficit disorder; or

                     (c)  is pregnant and the expected date of confinement is within 6 weeks; or

                     (d)  has given birth within the previous 6 weeks; or

                     (e)  has been in full-time employment for 6 weeks or more within the last 13 weeks; or

                      (f)  has been refused enrolment and no other education or training place is available within a reasonable distance; or

                     (g)  is required to provide full-time care for a family member who is incapacitated due to illness or accident and the incapacity is, or is likely to be, of a temporary nature; or

                     (h)  has suffered a personal crisis such as the death of an immediate family member, a marriage breakup, family dislocation or physical, emotional or sexual abuse; or

                      (i)  is homeless and unable to obtain stable accommodation; or

                      (j)  has suffered a major disruption of their home such as fire damage, flooding, earthquake damage, vandalism or burglary; or

                     (k)  suffers from alcohol or drug abuse sufficient to cause intermittent or temporary absences from full-time study or training; or

                      (l)  is engaged in part-time work, education, training or a combination of these for not less than 20 hours per week; or

                    (m)  is a refugee whose capacity to undertake full-time education is reduced because:

                              (i)  the person has suffered torture, imprisonment or other traumatic circumstances; or

                             (ii)  lacks sufficient English skills; or

                            (iii)  is recently arrived and lacks stable accommodation; or

                     (n)  is the subject of a community service or juvenile justice order which reduces the person’s capacity to engage in full-time education; or

                     (o)  will become 18 years old within three months; or

                     (p)  is receiving Commonwealth funded intensive assistance for jobseekers or State, Territory or community provided case management approved by the Secretary or, where no intensive assistance or case management place is available to the person, is suitable for and agrees to undertake intensive assistance or case management; or

                     (q)  is in other circumstances which, in the opinion of the Secretary, make it unreasonable for the person to be in full-time education or training.

  543A(2B)  If the following circumstances exist in relation to the person in respect of a period (the qualifying period):

                     (a)  except for paragraph 540(b), the person would be qualified for a youth allowance in respect of the qualifying period;

                     (b)  the person is taken to have attained the minimum age for youth allowance in respect of the qualifying period only because one or more of the grounds (the precluding grounds) referred to in subsection (2A) preclude subsection (2) from applying to the person;

the person is qualified for youth allowance under section 540 only in respect of so much of the qualifying period as does not exceed:

                     (c)  if the only precluding ground is the ground referred to in paragraph (2A)(c) or (d)—6 weeks; or

                     (d)  if the only precluding ground is the ground referred to in paragraph (2A)(h) or (j)—2 weeks; or

                     (e)  if the only precluding ground is the ground referred to in paragraph (2A)(l)—the period for which the work, education or training lasts; or

                      (f)  if the only precluding grounds are 2 or more of the grounds referred to in paragraphs (2A)(c), (d), (h), (j) and (l)—the longer or longest period prescribed by paragraphs (c), (d) and (e) of this subsection in relation to those precluding grounds; or

                     (g)  otherwise—13 weeks or such longer period as the Secretary approves.

Independent persons

     543A(3)  For the purposes of this section, the person cannot be taken to be independent unless the person:

                     (a)  has reached the minimum school leaving age for the State or Territory in which the person is living; or

                     (b)  is the subject of a formal exemption from attending school granted by the education authority of that State or Territory.

543B  Maximum age for youth allowance

General

     543B(1)  Subject to subsection (2), the person has attained the maximum age for youth allowance if:

                     (a)  the person is not undertaking full-time study and is at least 21 years old; or

                     (b)  the person:

                              (i)  is undertaking full-time study in respect of a course of education that is to last for less than 12 months; and

                             (ii)  was, immediately before starting the course of education, receiving newstart allowance; and

                            (iii)  is at least 21 years old; or

                     (c)  the person is undertaking full-time study and is at least 25 years old; or

                     (d)  the person is not a new apprentice and is at least 21 years old; or

                     (e)  the person is a new apprentice and is at least 25 years old.

Continuance of full-time study after turning 25

     543B(2)  If the person is at least 25 years old, the person is taken not to have attained the maximum age for youth allowance if the person:

                     (a)  was receiving youth allowance immediately before turning 25; and

                     (b)  is either:

                              (i)  undertaking full-time study in respect of a course of education that the person had commenced before turning 25; or

                             (ii)  a new apprentice and became a new apprentice before turning 25.

Subdivision EYouth Allowance Activity Agreements

544  Requirements relating to Youth Allowance Activity Agreements

General

        544(1)  The requirements that apply to a person relating to Youth Allowance Activity Agreements in respect of a period are as follows:

                     (a)  the person must enter into a Youth Allowance Activity Agreement in relation to the period when the person is required by the Secretary under section 544A to do so; and

                     (b)  while the agreement is in force, the person must take reasonable steps, to the satisfaction of the Secretary, to comply with the terms of the agreement; and

Note:       See subsection (2) on taking reasonable steps.

                     (c)  at all times when the person is a party to the agreement, the person must be prepared to enter into another such agreement instead of the existing agreement if required to do so by the Secretary.

What are reasonable steps

        544(2)  For the purposes of paragraph (1)(b), a person is taking reasonable steps to comply with the terms of a Youth Allowance Activity Agreement unless the Secretary is satisfied that the person has not attempted in good faith and to the best of his or her ability to comply with the requirement.

Secretary must contact person before determining failure to comply with terms

     544(2A)  The Secretary must not determine that a person has failed to take reasonable steps to comply with the terms of a youth allowance activity agreement unless the Secretary:

                     (a)  is satisfied that the terms of the agreement were intended to assist the person over time in gaining employment or undertaking study or training; and

                     (b)  has made reasonable attempts to contact the person in relation to the requirement to comply with the terms of the agreement (and has documented each attempt to contact); and

                     (c)  if contact was able to be made, has had regard to the reasons, if any, provided by the person for not complying with the terms of the agreement; and

                     (d)  has confirmed the adequacy of the support that the Secretary agreed to provide under the agreement.

        544(3)  For the purposes of this Part, if:

                     (a)  a person starts to receive youth allowance on a particular day; and

                     (b)  immediately before that day the person was a party to a Special Benefit Activity Agreement; and

                     (c)  the period covered by the agreement ends after that day;

the agreement has effect on or after that day as if it were a Youth Allowance Activity Agreement.

544A  Youth Allowance Activity Agreements—requirement

Requirement to enter into agreement

     544A(1)  Subject to this section, the Secretary may require a person who is not a party to a Youth Allowance Activity Agreement to enter into such an agreement if:

                     (a)  the person is receiving, or has made a claim for, a youth allowance; or

                     (b)  the Department is contacted by or on behalf of the person in relation to a claim for a youth allowance.

Persons who have temporary incapacity exemptions

     544A(2)  A person who:

                     (a)  has a temporary incapacity exemption under section 542A; or

                     (b)  has a pre-natal exemption or a post-natal exemption under section 542D; or

                     (c)  is qualified for a youth allowance under section 540A;

is not to be required to enter into a Youth Allowance Activity Agreement.

Requirement to enter another agreement

     544A(3)  The Secretary may require a person who has entered into a Youth Allowance Activity Agreement to enter into another such agreement instead of the existing one.

Notice of requirement

     544A(4)  The Secretary is to give a person who is required to enter into a Youth Allowance Activity Agreement a notice in writing of:

                     (a)  the requirement; and

                     (b)  the places and times, being places and times which are reasonable in all the circumstances, at which the agreement is to be negotiated; and

                     (c)  the effect of failure by the person to comply with the requirement set out in the notice.

Form of agreement

     544A(5)  A Youth Allowance Activity Agreement is a written agreement, in a form approved by the Secretary. The agreement is between the person and the Secretary.

544B  Youth Allowance Activity Agreements—terms

Approved activities

     544B(1)  A Youth Allowance Activity Agreement with a person is to require the person to undertake one or more of the following activities approved by the Secretary:

                     (a)  a job search;

                     (b)  a vocational training course;

                     (c)  training that would help in searching for work;

                     (d)  paid work experience;

                     (e)  measures designed to eliminate or reduce any disadvantage the person has in the labour market;

                      (f)  subject to subsection (7)—an approved program of work for income support payment;

                     (g)  subject to section 544D—development of self-employment;

                     (h)  subject to section 544E—development of and/or participation in group enterprises or co-operative enterprises;

                      (i)  participation in a labour market program conducted by the Department;

                     (ia)  participation in the PSP;

                      (j)  participation in a rehabilitation program;

                     (k)  a course of education;

                      (l)  an activity proposed by the person (such as unpaid voluntary work proposed by the person).

Secretary’s approval

     544B(2)  The terms of an agreement (including the description of the activities that the person is to be required to undertake) are to be approved by the Secretary.

Secretary’s considerations concerning approval of terms

     544B(3)  In considering whether to approve the terms of an agreement with a person, the Secretary is to have regard to the person’s capacity to comply with the proposed agreement and the person’s needs.

     544B(4)  In having regard to a person’s capacity to comply with an agreement, the Secretary is to take into account, but is not limited to the following matters:

                     (a)  the person’s education, experience, skills, age, disability, illness, mental and physical condition; and

                     (b)  the state of the local labour market and the transport options available to the person in accessing that market; and

                     (c)  the participation opportunities available to the person; and

                     (d)  the family and caring responsibilities of the person; and

                     (e)  the length of travel time required for compliance with the agreement, by reference to what constitutes unreasonably difficult commuting for the purposes of paragraph 541D(1)(g); and

                      (f)  the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and

                     (g)  any other matters that the Secretary or the person considers relevant in the circumstances.

Variation, suspension, cancellation and review

     544B(5)  An agreement with a person:

                     (a)  may be varied (in negotiation with the person) or suspended by the Secretary; and

                     (b)  if another Youth Allowance Activity Agreement is made with the person—may be cancelled by the Secretary; and

                     (c)  may be reviewed from time to time by the Secretary at the request of either party to the agreement; and

                     (d)  may be cancelled by the Secretary after a review under paragraph (c).

Cooling off period

  544B(5A)  Within 14 days of the terms of the agreement being approved, those terms may be varied by the person with the approval of the Secretary.

Requirement to notify

   544B(5B)  The Secretary must advise the person in writing of the effect of subsection (5A).

Avoidance of doubt

   544B(5C)  To avoid doubt, subsection (5A) does not prevent the person at any time from requesting a review of an agreement under paragraph (5)(c).

Circumstances preventing or affecting compliance

     544B(6)  The party to an agreement other than the Secretary must tell the Secretary of any circumstances preventing or affecting the party’s compliance with the agreement.

Situations in which participation in an approved program of work for income support payment cannot be required

     544B(7)  A Youth Allowance Activity Agreement with a person must not require the person to participate in an approved program of work for income support payment if:

                     (a)  the person is under 18 years of age; or

                     (b)  the person is undertaking full-time study; or

                     (c)  because of the application of one or more Modules of the Youth Allowance Rate Calculator in section 1067G, the person would receive or is receiving a youth allowance at a rate that has been reduced; or

                     (d)  in the Secretary’s opinion:

                              (i)  it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or

                             (ii)  performing the work in the conditions in which the work would be performed would constitute a risk to health or safety or would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or

                     (e)  the program of work requires the person to move from a home in one place to a home in another place.

Effect of participation in an approved program of work for income support payment

     544B(8)  A person is not to be taken, merely by participating in an approved program of work for income support payment in accordance with the terms of a Youth Allowance Activity Agreement under this section, to be:

                     (a)  an employee within the meaning of section 9 of the Occupational Health and Safety (Commonwealth Employees) Act 1991; or

                     (b)  an employee within the meaning of section 5 of the Safety, Rehabilitation and Compensation Act 1988; or

                     (c)  an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992; or

                     (d)  an employee for the purposes of the Workplace Relations Act 1996.

544C  Youth Allowance Activity Agreements—failure to negotiate

Failure to enter agreement

     544C(1)  If:

                     (a)  a person has been given notice under subsection 544A(4) of a requirement to enter into a Youth Allowance Activity Agreement; and

                     (b)  the Secretary is satisfied, because of the person’s failure to:

                              (i)  attend the negotiation of the agreement; or

                             (ii)  respond to correspondence about the agreement; or

                            (iii)  agree to the reasonable terms of the agreement proposed by the Secretary;

                            or for any other reason, that the person is unreasonably delaying entering into the agreement:

then:

                     (c)  the Secretary may give the person notice that the person is taken to have failed to enter the agreement; and

                     (d)  if the notice is given—the person is taken to have so failed.

Note:          Refusal to enter into an agreement is a failure to satisfy the requirements under section 544 relating to Youth Allowance Activity Agreements, which disqualifies a person from youth allowance (see section 540).

Form of notice

     544C(2)  A notice under paragraph (1)(c) must:

                     (a)  be in writing; and

                     (b)  set out the reasons for the decision to give the notice; and

                     (c)  include a statement describing the rights of the person to apply for the review of the decision.

544D  Youth Allowance Activity Agreements—self-employment

Person previously received allowance

     544D(1)  A Youth Allowance Activity Agreement must not require a person to undertake as an activity any development of self-employment unless:

                     (a)  at all times during the 6 months immediately before the undertaking of the activity the person has been, or will have been, receiving any of the following:

                              (i)  a youth allowance;

                             (ii)  a youth training allowance;

                            (iii)  a newstart allowance; and

                     (b)  the Secretary is satisfied that the activity:

                              (i)  will be commercially viable 12 months after the person begins the activity; and

                             (ii)  is likely to provide the person with sustainable full-time employment that will provide the person with a level of income at least equivalent to the person’s maximum basic rate worked out under Module B of the Youth Allowance Rate Calculator in section 1067G.

Time limitation

     544D(2)  A Youth Allowance Activity Agreement must not require a person to undertake as an activity any development of self-employment if:

                     (a)  the person is to undertake the activity for more than 12 months; or

                     (b)  subject to subsection (3), the person has previously been subject to a requirement under that or any other Youth Allowance Activity Agreement to undertake the same activity or a similar activity; or

                     (c)  at any time during the 6 months immediately before the time at which the activity is to start, the person has been subject to a requirement under:

                              (i)  that or any other Youth Allowance Activity Agreement or a Youth Training Activity Agreement; or

                             (ii)  a Newstart Activity Agreement;

                            to undertake as an activity other development of self-employment.

Exception

     544D(3)  Paragraph (2)(b) does not apply if the Secretary determines in writing that there are special circumstances that justify inclusion of the activity in the Youth Allowance Activity Agreement.

Certain activities excluded

     544D(4)  This section does not apply to an activity to which a paragraph of subsection 544B(1) other than paragraph 544B(1)(g) or (h) applies.

544E  Youth Allowance Activity Agreements—group enterprises and co-operative enterprises

Person previously received allowance, and activity will be commercially viable

     544E(1)  A Youth Allowance Activity Agreement must not require a person to undertake as an activity any development of a group enterprise or co-operative enterprise unless:

                     (a)  at all times during the 6 months immediately before the undertaking of the activity the person has been, or will have been, receiving any of the following:

                              (i)  a youth allowance;

                             (ii)  a youth training allowance;

                            (iii)  a newstart allowance; and

                     (b)  the Secretary is satisfied that the activity:

                              (i)  will be commercially viable 12 months after the person begins the activity; and

                             (ii)  is likely to provide the person with sustainable full-time employment that will provide the person with a level of income at least equivalent to the person’s maximum basic rate worked out under Module B of the Youth Allowance Rate Calculator in section 1067G.

Person previously received allowance, and activity will provide work experience

     544E(2)  A Youth Allowance Activity Agreement must not require a person to undertake as an activity any participation in a group enterprise or co-operative enterprise unless:

                     (a)  at all times during the 6 months immediately before the undertaking of the activity the person has been, or will have been, receiving any of the following:

                              (i)  a youth allowance;

                             (ii)  a youth training allowance;

                            (iii)  a newstart allowance; and

                     (b)  the Secretary is satisfied that the activity is likely to provide the person with skills, training or work experience that will help the person to obtain paid employment providing a level of income at least equal to the person’s maximum basic rate worked out under Module B of the Youth Allowance Rate Calculator in section 1067G.

Agreement not to require certain group activity

     544E(3)  A Youth Allowance Activity Agreement must not require a person to undertake as an activity any development of, or participation in, a group enterprise or co-operative enterprise if:

                     (a)  the person is to undertake the activity for more than 12 months; or

                     (b)  the person has previously been subject to a requirement under that or any other Youth Allowance Activity Agreement to undertake the same activity or a similar activity; or

                     (c)  at any time during the 6 months immediately before the time at which the activity is to start, the person has been subject to a requirement under:

                              (i)  that or any other Youth Allowance Activity Agreement or a Youth Training Activity Agreement; or

                             (ii)  a Newstart Activity Agreement;

to undertake as an activity other development of, or participation in, a group enterprise or co-operative enterprise.

Exception

     544E(4)  This section does not apply to an activity to which a paragraph of subsection 544B(1), other than paragraph 544B(1)(g) or (h), applies.

Subdivision GMiscellaneous

546  Prospective determinations for some allowance recipients

Recipients may qualify in advance in some cases

        546(1)  A person is qualified for youth allowance for a period if:

                     (a)  the person is receiving youth allowance; and

                     (b)  the Secretary considers at the start of the period that:

                              (i)  the person may reasonably be expected to satisfy the qualification requirements for youth allowance (see Subdivision A) during the period; and

                             (ii)  it is reasonable to expect that youth allowance will be payable to the person for the period; and

                            (iii)  the person will comply with this Act during the period; and

                     (c)  except where the person is a CDEP Scheme participant in respect of the period, the person is not indebted at the start of the period to the Commonwealth under or as a result of:

                              (i)  this Act; or

                             (ii)  the Student Assistance Act 1973 as in force immediately before the commencement of this section; and

                     (d)  one or more of subsections (3), (5), (6) and (7) apply to the person at the start of the period.

Guidelines for the purposes of paragraph (1)(b)

        546(2)  The Minister:

                     (a)  must determine in writing guidelines for making decisions under paragraph (1)(b); and

                     (b)  may revoke or vary the determination.

If the Minister revokes a determination, the Minister must determine guidelines that take effect immediately after the revocation. A determination is a disallowable instrument.

Recipients who have Case Management Activity Agreements

        546(3)  This subsection applies to a person who has a Case Management Activity Agreement with a case manager if the Secretary has decided (either on the recommendation of the case manager or on the Secretary’s own initiative) not to give the person, at intervals of a fortnight or less, notices under section 68 of the Administration Act requiring the person to give the Department a statement.

Definitions

        546(4)  In subsection (3), Case Management Activity Agreement and case manager have the meanings that they have in the Employment Services Act 1994.

Recipients satisfying the activity test

        546(5)  This subsection applies to a person who:

                     (a)  satisfies the activity test under paragraph 541(2)(c) (except by undertaking particular paid work as provided for in paragraph 541(2)(a)); or

                     (b)  satisfies the activity test under subsection 601(4) by taking reasonable steps to comply with a Newstart Activity Agreement that requires the person to undertake full-time unpaid voluntary work proposed by the person and approved by the Secretary.

Recipients not required to satisfy the activity test

        546(6)  This subsection applies to a person who:

                     (a)  has a temporary incapacity exemption under section 542A; or

                     (b)  has a pre-natal exemption or a post-natal exemption under section 542D; or

                     (c)  has an unpaid voluntary work exemption under section 542F.

Recipients the Secretary considers should be qualified

        546(7)  This subsection applies to a person if the Secretary considers that the person should be qualified for youth allowance for the period because of one or more of the following:

                     (a)  the place where the person lives;

                     (b)  the person’s recent employment history;

                     (c)  the state of the labour market;

                     (d)  any other reason that the Secretary considers relevant.


 

Division 2Situations in which youth allowance is not payable

Subdivision ASituations in which allowance not payable (general)

547  Youth allowance not payable if allowance rate nil

        547(1)  Subject to subsection (2), a youth allowance is not payable to a person if the person’s youth allowance rate would be nil.

        547(2)  Subsection (1) does not apply to a person if the person’s rate would be nil merely because an advance pharmaceutical allowance has been paid to the person under:

                     (a)  the social security law; or

                     (b)  Division 2 of Part VIIA of the Veterans’ Entitlements Act.

547AA  Youth allowance not payable if person fails to attend interview etc. in certain circumstances

General

  547AA(1)  A youth allowance is not payable to a person if:

                     (a)  before or after the person made a claim for a youth allowance, the Department is contacted by or on behalf of the person in relation to a claim for a youth allowance; and

                     (b)  as a result of the contact, the Department required the person to do one or both of the following:

                              (i)  attend an interview with a specified person or organisation at a time and place specified in the requirement;

                             (ii)  enter into a Youth Allowance Activity Agreement; and

                     (c)  the person fails to comply with that requirement, or those requirements; and

                     (d)  the person is not undertaking full-time study and is not a new apprentice.

Note 1:    For undertaking full-time study see section 541B.

Note 2:    For new apprentice see subsection 23(1).

Secretary may decide that this section does not apply

  547AA(2)  This section does not apply to a person if the Secretary is satisfied, in accordance with any guidelines under subsection (3), that it should not apply to the person.

  547AA(3)  The Secretary may, by legislative instrument, make guidelines to be complied with in deciding under subsection (2) whether this section applies to a person.

When this section ceases to apply

  547AA(4)  This section ceases to apply:

                     (a)  when the person complies with:

                              (i)  that requirement, or those requirements; or

                             (ii)  any requirements that the Secretary has required the person to undertake in place of that requirement, or those requirements; or

                     (b)  at such earlier time as the Secretary determines, in accordance with any guidelines under subsection (5).

  547AA(5)  The Secretary may, by legislative instrument, make guidelines to be complied with in making determinations under paragraph (4)(b).

This section is unaffected by date of claim

  547AA(6)  To avoid doubt, the fact that a person is taken, because of section 13 of the Administration Act, to have made a claim for a youth allowance on the day on which the Department was contacted by or on behalf of the person in relation to the claim does not affect the operation of this section.

Subdivision ABAssets test

547A  Allowance not payable if assets value limit exceeded

                   A youth allowance is not payable to a person if:

                     (a)  the person is not excluded from the application of the youth allowance assets test; and

                     (b)  the value of the person’s assets is more than the person’s assets value limit.

Note 1:       For persons excluded from application of test see section 547B.

Note 2:       For assets value limit see section 547C.

547B  Who is excluded from application of assets test?

     547B(1)  A person is excluded from the application of the youth allowance assets test if the person is independent but the person’s partner is receiving:

                     (a)  a payment of pension, benefit or allowance referred to in Module L; or

                     (b)  a payment under Part 5 or 6 of the Farm Household Support Act 1992.

     547B(2)  A person is excluded from the application of the youth allowance assets test if:

                     (a)  the person is not independent; but

                     (b)  in working out the rate of youth allowance payable to the person, the parental income test is not applied because of point 1067G-F3 (other than paragraph (d)).

547C  Assets value limit [see Appendix for CPI adjusted figures]

     547C(1)  A person’s assets value limit is:

                     (a)  $407,250 if the person is not independent (see section 1067A); or

                     (b)  $125,750 if the person:

                              (i)  is independent; and

                             (ii)  is not a member of a couple (see section 4); and

                            (iii)  is a homeowner; or

                     (c)  $215,750 if the person:

                              (i)  is independent; and

                             (ii)  is not a member of a couple; and

                            (iii)  is not a homeowner; or

                     (d)  $178,500 if the person:

                              (i)  is independent; and

                             (ii)  is a member of a couple; and

                            (iii)  is a homeowner; or

                     (e)  $268,500 if the person:

                              (i)  is independent; and

                             (ii)  is a member of a couple; and

                            (iii)  is not a homeowner.

Note 1:       For homeowner see subsection 11(4).

Note 2:       The amount in paragraph (a) is indexed annually on 1 January and the amounts in paragraphs (b), (c), (d) and (e) are indexed annually on 1 July (see sections 1191 to 1194).

547D  Value of person’s assets to include value of assets of partner or family members in certain circumstances

                   The value of a person’s assets is the sum of the following values:

                     (a)  the value of the person’s assets (disregarding paragraphs (b) and (c) and Part 3.18);

                     (b)  if the person is independent (see section 1067A) and is a member of a couple (see section 4)—the value of the assets of the person’s partner (disregarding Part 3.18);

                     (c)  if the person is not independent—the value of the assets of each person who is a family member of the person (disregarding Part 3.18).

Sections 547E to 547G apply for the purpose of working out the value of the assets of the person and of any other person who is the partner, or a family member, of the person.

547E  Assets of trust in which person benefits

                   A person’s assets include:

                     (a)  any benefit to which the person is entitled directly or indirectly out of the assets of a trust; and

                     (b)  any asset of a trust that the person can deal with directly or indirectly to his or her advantage; and

                     (c)  any interest in the assets of a trust which has been assigned to someone else but which the person can directly or indirectly control.

547F  Exclusion of certain farm assets

                   If:

                     (a)  an exceptional circumstances certificate referred to in section 8A of the Farm Household Support Act 1992 was issued in respect of a person; and

                     (b)  the certificate has effect;

the person’s assets do not include any asset that is an exempt asset in respect of the person within the meaning of that Act.

547G  How business assets are treated

     547G(1)  If (and only if) paragraph 547D(c) applies in working out the value of the assets of a person, assets of a business are treated in accordance with subsections (2) and (3). For this purpose, a business includes:

                     (a)  the carrying on of primary production; and

                     (b)  the provision of professional services.

     547G(2)  Subject to subsection (3), 75% of the value of a person’s interest in the assets of a business is disregarded if the person, or his or her partner, is wholly or mainly engaged in the business and the business:

                     (a)  is owned by the person; or

                     (b)  is carried on by a partnership of which the person is a member; or

                     (c)  is carried on by a company of which the person is a member; or

                     (d)  is carried on by the trustee of a trust in which the person is a beneficiary.

     547G(3)  Subsection (2) does not apply to assets of a business that are of any of the following kinds:

                     (a)  cash on hand, bank deposits, bank bonds, or similar readily realisable assets;

                     (b)  shares in companies, or rights in relation to shares;

                     (c)  rights to deal in real or personal property;

                     (d)  assets leased out by the business, unless leasing is a major activity of the business;

                     (e)  assets used for private or domestic purposes by the owners of the business.

Subdivision CWaiting periods

549  Waiting periods

        549(1)  A youth allowance is not payable to a person who is qualified for youth allowance while the person is subject to a waiting period.

        549(2)  For the purposes of this Part, a person may be subject to the following waiting periods:

                     (a)  a liquid assets test waiting period (see sections 549A, 549B and 549C);

                     (b)  a newly-arrived resident’s waiting period (see sections 549D and 549E).

549A  Liquid assets test waiting period

When person subject to liquid assets test waiting period—general

     549A(1)  Subject to this section, if:

                     (a)  the value of a person’s liquid assets is more than the person’s maximum reserve on:

                              (i)  the day on which the person becomes qualified for youth allowance; or

                             (ii)  the day on which the person claims a youth allowance; and

                     (b)  the person is not a transferee to a youth allowance;

the person is subject to a liquid assets test waiting period.

Note 1:       For liquid assets and maximum reserve see section 14A.

Note 2:       For transferee to a youth allowance see subsections 23(6) and (7).

Exception—person already subject to liquid assets test waiting period in previous 12 months

     549A(2)  Subsection (1) does not apply to a person if, at any time during the 12 months before:

                     (a)  the day on which the person becomes qualified for youth allowance; or

                     (b)  the day on which the person claims youth allowance;

the person:

                     (c)  was subject to a liquid assets test waiting period under this Part and that period has ended; or

                     (d)  has served a liquid assets test waiting period under another Part of this Act;

that started during that 12 months.

Exception—waiver for hardship

     549A(3)  If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while serving a liquid assets test waiting period, the Secretary may determine that the person does not have to serve the whole, or any part, of the waiting period.

Note 1:       For in severe financial hardship see subsections 19C(2) (person who is not a member of a couple) and 19C(3) (person who is a member of a couple).

Note 2:       For unavoidable or reasonable expenditure see subsection 19C(4).

Exception—certain transferees to youth allowance

     549A(4)  Subsection (1) does not apply to a person if:

                     (a)  the person is a transferee to a youth allowance; and

                     (b)  the person claims the youth allowance within 14 days of the transfer day.

Exception—person in formal vocational training in a labour market program etc.

     549A(5)  Subsection (1) does not apply to a person who:

                     (a)  has started:

                              (i)  formal vocational training in a labour market program approved by the Secretary; or

                            (ia)  participation in the PSP; or

                             (ii)  a rehabilitation program approved by the Secretary; and

                     (b)  has been exempted from the application of that subsection by the Secretary.

549B  Start of liquid assets test waiting period

General

     549B(1)  The liquid assets test waiting period of a person who does not have a temporary incapacity exemption starts on the day on which the person became qualified for youth allowance.

Person has temporary incapacity exemption

     549B(2)  If a person has a temporary incapacity exemption, the person’s liquid assets test waiting period starts on the day on which the person became incapacitated.

549C  Length of liquid assets test waiting period

Number of weeks

     549C(1)  A person’s liquid assets test waiting period is:

                     (a)  if the result obtained under subsection (2) is 13 or more whole weeks—13 weeks; or

                     (b)  if the result obtained under subsection (2) is fewer than 13 whole weeks—the number of whole weeks obtained under that subsection.

Working out number of weeks

     549C(2)  Subject to subsection (3), the number of weeks is worked out by using the following formula:

where:

divisor, in relation to the person, means:

                     (a)  if the person is not a member of a couple and does not have a dependent child—$500; or

                     (b)  otherwise—$1,000.

liquid assets means the person’s liquid assets on the day referred to in subparagraph 549A(4)(a)(i) or (ii) (as the case requires).

maximum reserve amount means the maximum reserve in relation to the person under