Chapter 3 - Dissenting Report from the Australian Greens
3.1
The Social Security Amendments (2007 Measures No 2) Bill 2007 attempts
to fill a gap in relation to principal carers and has important implications
for people in receipt or applying for the Disability Support Pension. While the
Australian Greens welcome the recognition by the Government that there is a
need to address problems with these existing provisions in relation to
principal carers (which we raised at the time these measures were enacted) we are
not convinced that these amendments properly address these outstanding issues.
3.2
The Australian Greens are also concerned that there has been
insignificant time for the Committee to adequately consider the Bill.
Submissions to the inquiry indicated a number of issues that would have
benefited from a lengthier inquiry. The Australian Greens are very concerned
about a number of unintended consequences from the amendments proposed by the
Government.
3.3
For the purposes of our Dissenting Report, the Greens will focus
primarily on issues relating to principal carers, changes to Disability Support
Pension and the amendments to section 12 of the Social Security Act.
Principal Carers
3.4
The Bill provides for an extension of participation exemptions to
principal carers who are relatives but not parents of children – where the
principal carer is providing care for a child as a result of a family law order
(as defined in the Act). These amendments also allow the person in this new
category of a relative who is a principal carer but not a parent to access the
higher PPS rate of Newstart or Youth Allowance.
3.5
The Australian Greens are pleased that the Government is finally
recognising the role of kinship care through these amendments. However, while
we welcome the intent of these amendments, we are concerned that they do not go
far enough to effectively address the reality of kinship carer’s circumstances.
3.6
The fact the Government belatedly recognised the need for this amendment
is a demonstration of the flawed approach of the Government's Welfare to Work
laws. These laws end up punishing the people who ought to be supported by our
welfare system. Having implemented such a punitive regime, the Government then
finds itself needing to make these sorts of amendments on a seemingly ad hoc
basis to rectify the extreme harshness of its unintended impacts and knock-on
effects on particular groups of people.
3.7
We note the comments of the National Council of Single Mothers and their
Children (NCSMC) welcoming this amendment because it "will reduce the
incidence and level of harm being experienced by children whose primary carer
is required to comply with the demands of the workforce participation system
and care for dependent children."[1]
However, while these changes will undo some of the damage done by Welfare to
Work in this regard, there are many more gaps that need to be addressed.
3.8
For example, we note the submission of the National Welfare Rights
Network that there is a need to recognise less formal arrangements than those
that fall under the definition of a "family law order". They comment:
There exist many circumstances where a relative of a child may
become a principal carer without court orders being made. The narrow scope of
the definition as detailed in this item undermines the utility and appeal of
parenting plans that include non-parents, and stands in direct contrast to the
current policy and legislative drive towards parenting plans and family
relationship centres as alternatives to the Family Courts.
3.9
In many kinship care arrangements, family members who care for a child
but do not have a family law order (or where protracted family law processes
are still ongoing) still face the same demands as those with a formal order,
and yet can still be subject to onerous activity requirements. There is no
justification for the discrepancy, particularly when the Government is
encouraging less formal arrangements through the establishment of Family
Relationship Centres. These informal care arrangements are also particularly
important in Aboriginal communities.
3.10
The Australian Greens agree with the recommendation from the National
Welfare Rights Network that the definition of 'family law' should be extended
to include parenting plans and other less formal care arrangements.
3.11
The Australian Greens also believe the Government should use this
opportunity to fix broader principal carer inequities – particularly the
contradiction between the presumption of equal shared care within the Family
Law Act and the definition of a unitary principal carer within the Social
Security Act. We have outlined this inequity in the past and will continue to
draw it to the attention of the Senate until it is rectified. For the purposes
of income support, the Government says that there is only one principal carer
and that person is [treated as wholly or substantially] responsible for the
care of the child. If you are the nominated principal carer you receive certain
benefits under the Welfare to Work laws, whereas if you are the other parent in
a shared parenting arrangement you receive exactly the same entitlements as
someone with no parenting responsibilities.
3.12
The problem is that, at the same time as introducing Welfare to Work,
the Government has made changes to family law which has moved to a model of equal
shared care as the preferred social model. This is resulting in increasing
numbers of parents with 50-50 shared caring arrangements within an income
support system under which only one parent in a 50-50 shared care agreement can
be determined to be the principal carer.
3.13
We are now seeing a significant number of people coming forward who
nominally have 50-50 shared care, but are in reality shouldering an unequal
part of the parental care burden because their shared care has not been
recognised through the principal carer provisions of Welfare to Work. They are
suffering and their children are suffering as a result of the Government not
recognising that the move to a presumption of shared care within the family law
system must be properly recognised within the income support system. The
current situation is leading to disadvantage and inequality in the lives of
many children.
3.14
The Australian Greens recommend that the income support definition of
‘principal carer’ be aligned with the intent of the family law changes to
reflect the concept of shared parenting such that, where parents sharing the
care of children each receive income support and the difference in percentage shared
caring responsibility is 12 per cent or less, both are deemed to be principal
carers.
Recommendation 1
That the definition of 'family law order' be extended to include
parenting plans and other less formal care arrangements.
Recommendation 2
That the definition of 'principal carer' be amended to reflect the
concept of shared parenting such that, where parents sharing the care of
children each receive income support and the difference in percentage shared
care responsibility is 12 per cent or less, both are deemed to be principal
carers.
Changes to Disability Support
Pension
3.15
There are two key issues with respect to the proposed changes to the
Disability Support Pension: Firstly, the power given to the Minister to make
guidelines by legislative instrument relating to the determination of a
person's continuing inability to work, the application of impairment ratings,
partial capacity to work and incapacity exemptions; and secondly, the changes
to allow impairment ratings to be made by non-medically qualified assessors.
3.16
The Inquiry received a number of submissions from disability groups expressing
concern over both of these changes.
Ministerial Guidelines
3.17
The main concern expressed by disability groups and the Australian
Council of Social Services (ACOSS) on the issue of the Minister setting
Guidelines by legislative instrument is the fear that such a change will
restrict the discretion of the initial job capacity assessments and the Social
Security Appeals Tribunal and Administrative Appeals Tribunal in reviewing the
merits of assessments.
3.18
The Australian Greens share these concerns. Given that the proposed
amendments provide that the Secretary must comply with the Guidelines
determined by the Minister, the ability of the Secretary or a Job Capacity
Assessor to take particular individual circumstances into account may be
reduced. Discretion would necessarily be circumscribed by the fact of a
legislative instruments setting out the Guidelines.
3.19
As ACOSS notes, the issues to be addressed in capacity assessments are
highly complex, and accurate assessments require a high degree of discretion.
The ACOSS submission makes a very important point on the complexity of
assessments and the importance of this discretion:
This is especially so under the present eligibility requirements
for Disability Support Pension (DSP), which seek to make fine distinctions
between those able to work for less than 8 hours per week, 15 hours per week,
or 30 hours per week.
3.20
The Australian Greens are opposed to the idea of the Minister
unilaterally creating guidelines for work capacity assessments. We believe that
the creation of guidelines of this nature needs to involve a public
consultation process to ensure that any such Guidelines are both credible and
transparent. Given the great variation in individual circumstances and the
corresponding complexities of the impacts and interactions of various
disabilities on an individual’s capacity to work, it is important that capacity
assessment guidelines recognise that the experience and expertise of the
assessor is a crucial factor – that they do not seek to be too prescriptive,
and that they recognise the importance of expert discretion in capacity
assessment.
Recommendation 3
That the changes relating to the Minister making guidelines by
legislative instrument and those requiring the Secretary to then comply with
those Guidelines be removed from the Bill.
Changes to impairment ratings
3.21
The second main issue with respect to changes to the DSP relates to the
replacement of 'medical officers' with 'assessors' in the context of the
impairment tables.
3.22
The key concern with this amendment is that it will make it even less
likely that the job capacity assessment process will result in accurate
assessments. This is likely to have significant consequence for persons in
respect of accessing DSP.
3.23
As ACOSS points out, there are essentially two steps in assessing a
person's work capacity: determining the person's impairment rating; and then
assessing the effect of the impairment on the capacity of the person to work a
certain number of hours each week. ACOSS suggests that the effects of the
amendments are:
...to remove any presumption in the Social Security Act that a
qualified medical practitioner should conduct certain assessments, particularly
the assessment of impairment rating using the Impairment Tables in Schedule 1B
of the Act.
3.24
The ACOSS submission goes on to provide examples of where there should
still be a presumption of a medical officer undertaking the assessments,
because non-medically qualified professionals would be unlikely to make the
expert assessments required. These examples include assessing the likely
effects of medical treatment and pain or fatigue being assessed in terms of the
underlying medical conditions which causes it.
3.25
The Inquiry also received submissions from organisations dealing with
mental illness concerned that medical officers were best placed to make a
decision about the impact of mental illness on a person's capacity to work,
particularly when many such people may have a fluctuating capacity to work.[2]
3.26
The Mental Health Council of Australia comments that:
Determining the ability of a person with mental illness to work
can be a very complex process, and is not as simple as referring to a table and
applying points. A person may present well on the day of the assessment but
then experience a relapse of their condition. This will not be picked up in the
assessment if the assessor does not have the necessary medical information or
an understanding of the mental illness.
3.27
The Australian Greens are not suggesting that there is no role for
non-medical Job Capacity Assessors, and we recognise that JCAs come from a wide
range of allied health professionals. However, we believe that there is no good
reason for these amendments and we are concerned about their consequences on
the quality and consistency impairment assessments.
Recommendation 4
That the changes which would allow impairment ratings to be made
by non-medically qualified professionals be removed from the bill.
Amendments to Section 12
3.28
The Australian Greens take note of the submission by the National
Welfare Rights Network in relation to section 12 and agree with their
recommendation that the 13 week restriction be removed from the Bill.
3.29
The Greens can see no good reason why the 13 week restriction is
necessary. We also agree with the National Welfare Rights Network that the
application of Section 12 as a means of relieving debt is reasonable, given the
unfairness of many debts and the limitations on waiver.
Recommendation 5
That the 13 week restriction on the application of section 12 of the
Social Security Administration Act be removed from the bill.
Senator Rachel Siewert
Australian Greens
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