C10/2000 THE NEW SOCIAL SECURITY LAW

Purpose

The purpose of this instruction is to provide legislation and policy information following amendments to the Social Security Act 1991.

This amends some of the instructions in Departmental Instructions C32/97 and C11/98 (relating to the payment of age and wife pension) and C19/99 (relating to Date of Effect as it relates to age and wife pensioners).

R J HAY

Branch Head

Income Support

Introduction

From 20 March 2000, with the passage of the:

• Social Security (Administration) Act 1999
• Social Security (International Agreements) Act 1999; and
• Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999

some of the provisions relating to the administration of the payment of age and wife pensions have been transferred from the Social Security Act 1991 to the new Social Security (Administration) Act 1999.  At the same time some of them have been amended.  These changes will affect the payment of age and wife pensions by DVA.

More information:  refer respectively:

http://scaleplus.law.gov.au/html/comact/10/6101/t…

http://scaleplus.law.gov.au/html/comact/10/6101/t…

http://scaleplus.law.gov.au/h — tml/comact/10/6085/top.htm

and

http://scaleplus.law.gov.au/html/comact/10/6102/top.htm

Aim of the change

The aim of these changes is to simplify the machinery provisions of the Social Security Act 1991.

The social security Law

A new concept of the "social security law" is being introduced to refer to the Social Security Act 1991, the Social Security (Administration) Act 1999 and the Social Security (International) Agreements Act 1999.

What is the impact on DVA?

Because this Department pays age and wife pension to some disability pensioners and their partners, any changes effected by the social security law will impact on this Department's operations.

Abbreviations

In this Departmental Instruction:

SSA refers to the Social Security Act 1991;

SSAA refers to the Social Security (Administration) Act 1999;

SS(IA)A refers to the Social Security (International Agreements) Act 1999; and

SSPAL (formerly known as OPAL) refers to the online policy and legislation system used by the Department of Family and Community Services.

Commencement

The two new Acts and the amendments to the Social Security Act 1991 which are contained in the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999, commence on 20 March 2000.

Content of this DI

This Departmental Instruction contains information only on those changes that are likely to impact on day to day processing in State Offices.

More information: refer SSPAL for more information on any topic.

Changes at a Glance

The following is a summary of the affected provisions that are more commonly used.

Provision

New rule

Old rule

DI reference

Start Date

Claims can be backdated to the date of an informal contact, but new time limits apply.  Called a deemed claim.

The 'incorrect claim' provisions have been used to backdate a claim to the date of contact.  Under these provisions backdating occurred if the proper claim was lodged within 3 months of the contact.

4.1

Partners can have same start day as long as they claim within 14 days of each other.

No equivalent

4.2

A person claiming within 4 weeks of death of partner can have start day backdated to day their partner died.

No equivalent

4.2

A person who becomes incapacitated for work can have start day backdated to the day of their incapacity.

No equivalent

4.2

A person who claimed and qualified for disaster relief payment and then claims age pension within 14 days, can have their start day backdated to the day they qualified for the payment.

No equivalent

4.2

Notices

Notices requiring the provision of information or statements can be issued to age pension claimants and to those who were previously in receipt of age pension.

No equivalent

4.3

A person receiving a compensation payment is required to notify the Department within 7 days.

A person receiving a compensation payment was required to notify the Department within 14 days.

4.3

Hardship advance

These payments are now available to claimants in financial hardship.  The amount payable is not to exceed 14 days of pension.

The payments were only available to those leaving gaol or psychiatric confinement and the amount payable was not to exceed 7 days of pension.

4.7

What the Social Security (Administration) Act 1999 covers

The SSAA is primarily a condensation of the existing technical rules.  The rules included in the new Act relate to:

• claims
• start days (replacing provisional commencement days)
• payment into bank accounts
• payment by instalment
• protection of social security payments
• information gathering
• comparable foreign payments
• provision of Tax File Numbers
• rate increase, reduction, cancellation or suspension determinations
• changes to payment by computer
• date of effect of determinations
• review of decisions

•     offences

What the SSAA does not cover.

The following matters are not covered in the SSAA and are still contained in the SSA:

• qualification for pensions or benefits
• the concept of payability
• rates of pension or benefits
• overpayments
• debt recovery
• portability.

A deemed claim?

Provided certain conditions are met, the date of a contact about a claim for pension can be taken as the date the claim is made.

How can a contact be a deemed claim?

If a person (or a person on their behalf) contacts the Department in relation to a claim and within 14 days, or within 13 weeks if there is a medical condition, of that contact the person lodges a claim, they are taken to have made the claim on the day of contact if:

• the contact has been acknowledged in writing; and
• the person is, on the day of contact, qualified for age pension.

More information: refer Chapter 8.1.1.60 of SSPAL

Recording of informal contact

Work practices must provide for the subsequent claim to be linked to the contact, so that the claim can be backdated to the date of contact.  Current State Office practice for dealing with informal claims may already accommodate this.

If a claim has not been lodged within 2 weeks of the initial contact, but there has been further contact, a further acknowledgment should be sent out.

Standard Letter System

A new letter has been developed to go to the person wanting to claim an age pension.

Available on:  IS Standard Letters, New Claims

Start Day

The term 'start day' replaces the term 'provisional commencement day' and basically has the same meaning.  There are, however, a few differences as described below.

More information: refer SSP — A — L 8.3

Under the SSAA

Under the SSA

Application by partner

Under clause 8 of Schedule 2, if a person applies for a pension within 14 days of their partner applying, and both pensions are granted, the person's start day is the earliest day on which they are qualified starting from their partner's start day.

Note: To enable partners to take advantage of this provision, it is important that this information is provided at the time the first member of the couple contacts the Department or makes a claim.

No equivalent

Claim after death of partner

If a person claims a social security payment within 4 weeks of the death of their partner, their start day is the first day they are qualified on or after the day their partner died (Clause 12 of Schedule 2).

No equivalent

Deemed claims

See 4.1 above

The practice has been to apply the initial incorrect claim provisions in section 46(2).  This provides that, if a person initially applies for the wrong pension but within 3 months applies for age pension, the commencement day is the day of the initial claim.

Claim for age pension following claim for disaster relief payment

If a person who is qualified for a disaster relief payment claims that payment and then within 14 days claims age pension, their start day is the day they became qualified for the relief payment.  SSP — A — L 3.7.3.10 refers.

No equivalent

Incapacitated claimants lodging claim for age pension

Clause 11 of Schedule 2 contains special provisions for a person's start day to be earlier than claim lodgement date where a person has become incapacitated for work.

No equivalent

Provision of Information

Changes have been made in respect to the provision of information.  Those affecting day to day processing of age pension cases are described hereunder.

More information: refer SSPAL 8.1.3.10

Notices requiring the provision of information

Sections 68 and 69 of the SSA provide for the Secretary to give a person to whom a pension is being paid a notice requiring the person to inform the Department of change of circumstances or to give a statement about a matter that might affect the payment of pension.  Sections 67, 68 and 69 of the SSAA contain similar provisions, but they relate not only to a person who is receiving a pension, but also to:

a person who has made a claim; and

a person who is not receiving a pension but to whom a social security payment has at any time been paid.

More information: refer SSPAL Chapter 8.1.3.10

Time limits for the provision of information

Under sections 68 and 69 of the SSA, the time within which information was to be provided was, with certain specified exceptions, 14 days after the event or the day the person becomes aware of the event.  However under the SSAA, different time limits apply as follows:

Reason

No of days

SSA Section

in relation to the receipt of a compensation payment

7

72(3)(a)

in relation to the provision of any other information

14

72(3)(b)

in relation to the giving of a statement

14

72(3)(d))

where the event is the death of a pensioner

28

72(6)

Compensation payments and the notification period

Age and wife pensioners are to be advised of the change to the notification provisions in relation to compensation payments as an on-going process.

New claimants will be notified in their automatic grant advice letter.  Existing recipients who are on less than maximum rate will receive the changed notification provisions as part of the June SI mailout.  Maximum rate pensioners will not receive the changed notification provisions until June 2003.

Therefore, it is important that the 7 day notification period should not be enforced in relation to a specific person if the most recent obligation notification that was sent out to them states that they have 14 days in which to notify of such payments.

Meeting time limits

If a notice has been sent out to a person requiring the provision of information within a specified time, or if a person has a certain period within which to take an action, an additional 7 days are to be factored in to allow for postage delays.  For example:

• if a person's circumstances change, they will have 14 days from the date of the event + 7 days in which to notify the Department; or

• if a person receives notification of a decision and wishes to appeal in time to have arrears backdated to the date of the initial decision, the date by which they should notify the Department will be calculated as follows: date of notice + 13 weeks + 7 days.

If a person is living overseas or in a remote area, an additional 7 days should be added.

Review Provisions

The following amendments have been made to the review provisions.

SSAA section

Provisions under the SSAA

Provisions under the SSA

131

Allows a person who has applied for review to withdraw the application.  The application is taken never to have been made.

No equivalent

142(2)

Where a decision has been made by the Secretary himself, the person can apply to the SSAT.

No equivalent

165

Where the National Convener of the SSAT asks the Secretary to provide information that is relevant to a review, the Department has a maximum of 14 days in which to supply it.

In such a case the Secretary was required to comply, if at all practicable, within 7 days after receiving the request.

166

Where the National Convener asks the Secretary to exercise his powers to obtain information, the Department has 7 days in which to comply.

The Secretary was required to take all reasonable steps to comply with the request and, if at all practicable, do so within 7 days of the request.

Date of Effect of Determinations

The following is an outline of changes made to provisions relating to the date of effect of determinations.

More information:  refer 8.1.2.20 of SSP — A — L

3 months becomes 13 weeks

There were a number of provisions in the SSA under which the date of effect of a decision depended on whether the person applied for review of the decision within 3 months or later than 3 months after being notified of the decision.  3 months has now become 13 weeks in those provisions.

Date of effect following provision of a statement by pensioner

There is a new provision relating to the making of a determination to increase or resume payment of a pension following the person giving the Department a statement about a matter in accordance with section 68.

In such a case the determination takes effect on the day on which the matter arose (section 112 refers).  This differs from the date of effect when a person has notified the Department of the occurrence of an event or change of circumstances.

Review by Secretary without appeal

There is a new provision in 126(2)(a) that provides that the Secretary may review a decision whether or not anyone has applied for review of the decision.

Bank Account details Not Nominated

There are changed provisions dealing with an applicant for age pension where bank account details are not disclosed on the claim form.

Under the new provisions, if the bank details are not provided in the period specified following the issue of a notice under section 55, age pension is not payable.

More information:  refer SSPAL 8.4.1.10

Hardship advance payment to those claiming a pension

A hardship advance payment is an amount of a pensioner's first instalment of pension, or of the first instalment immediately following resumption of payment.

The intention is to assist people in severe financial hardship.  Section 51 extends the availability of such payments to those claiming a pension.  Previously these advances were only available to those leaving gaol or psychiatric confinement.

More information:  refer 8.4.2.20 o — f SSPAL

Transfers from Centrelink to DVA

In respect of the cancellation of payments by Centrelink and the commencement of DVA payments, see Departmental Instruction C19/99 "Date of Effect".  The half instalment provisions have been removed from the social security law.  They are no longer necessary, because of the change in calculation of pensions to a daily entitlement.

Commonwealth Seniors Health Card (CSHC)

Provision of the CSHC (referred to in the SSAA as a "concession card") to ex-age pensioners previously receiving their pension through DVA is affected by the commencement of the SSAA.

Note:  DVA handles CSHC only for age pensioners who lose payability of age pension through DVA.

Impact of changes on CSHC

Some of the changes which will impact on the administration of the seniors health card are:

• the new deemed claims provisions outlined in 4.1;

• the new information gathering provisions in sections 67 to 69 of the SSAA (see 4).

Forms to be provided by Centrelink

The following two forms are being amended and Centrelink will continue to provide stocks:

Claim for Pension (SA 002)

Pension Re-Claim (SA 002A)

Advices

Minor changes to automatic advice paragraphs relating to obligations and reviews are required and will take effect following implementation of the DOE system changes.  This is expected to be in late April 2000.

Standard Letters

Amendments to existing standard letters

Contents of all letters on the Standard Letter system have been reviewed and updated to reflect:

changed references resulting from the SSAA and

the period 3 months becoming 13 weeks.

New standard letter

A new standard letter has been developed to allow the contact date to be the deemed claim date.

Available on:  IS Standard Letters, New Clm

Savings and Transitional Provisions

The following savings and transitional provisions will apply from 20 March 2000:

SSAA Section

Provisions

246

Where a determination under the SSA granting a claim or directing the making of a payment is in force immediately before 20 March 2000, it has effect as if it were a determination under the SSAA.

247

An instrument in force immediately before 20 March under a provision of the SSA, which has been amended or repealed, has effect as if it were an instrument under the SSAA.

248

If a person's claim is lodged but not determined before 20 March 2000, it is to be treated as if it is a claim under the SSAA.

249

Pensions are paid in relation to instalment periods.  Should a person's instalment period span both the pre and post 20 March period, the SSAA will apply to that period as if it had been in force throughout the whole instalment period.

250

If a person applies for a payment after the death of another person before 20 March and the application has not been determined by that date, the SSAA applies in all respects to the application.

251

Provisions in the SSAA which give the Secretary power to request a person to give information or produce a document apply to information about matters that arose before 20 March 2000 and to documents that were created or relate to matters that arose before that date.

252(1)

If a person applies for a review of a decision made under the SSA before 20 March 2000, but the application is not determined before that date, the provisions of the SSAA apply to the application.

252(2)

The date of effect of the decision made as a result of the application may be earlier than 20 March.

252(3)

If the date of effect is earlier than 20 March, the decision has effect for the period up to 19 March 2000, as if it were a decision made under the SSA.

253 and 254

The same applies to an application made to the SSAT or the AAT that has not been determined before 20 March 2000.

255

In the case of applications for any of these three types of review, anything done under the SSA before 20 March has effect as if it were done under the SSAA.

256

A debt due under the SSA before 20 March 2000 and not paid on that date is taken to be a debt due under the SSAA.

International agreement provisions

Legislative references in DI C32/97 to the international agreements provisions in the SSAA are no longer applicable.  The provisions referred to are now in the Social Security (International Agreements) Act 1999 as follows:

Topic

SS(IA)A ref

SSA ref

Definition of scheduled international social security agreements

section 5 by reference to the agreements in the Schedules to the Act

subsection 1208(4), Part 4.1

Effect on portability

section 11

section 1209, Part 4.1

Effect on claim for pension

section 6

sections 51 and 1208, Parts 2.2 and 4.1

Rate of pension under agreement

Part 3

section 1210 and point 1210-A1, Part 4.1