3.1.4.10 Situations that Constitute Being in Gaol or Psychiatric Confinement

Summary

A social security pension, a social security benefit, a parenting payment, PES, MOB or CA is not payable for any day a person is in gaol or for any day a person is in psychiatric confinement because they have been charged with a criminal offence.

However, where a person who is confined in a psychiatric institution undertakes a course of rehabilitation, any period during which the person is undertaking such a course is not regarded as psychiatric confinement. A social security payment is payable to the person during a period when the person is undertaking a course of rehabilitation.

Act reference: SSAct section 23(1)-'social security benefit', section 23(1)-'social security pension', section 23(5) For the purpose of this Act, a person is in gaol if.., section 23(8) Psychiatric confinement, section 23(9) The confinement of a person in a psychiatric institution…, section 1158 Some social security payments not payable…

Policy reference: SS Guide 3.1.4.05 Payability During Periods in Gaol or Psychiatric Confinement, 3.1.4.20 Person Undertaking a Course of Rehabilitation

People in gaol

Social security payments are NOT payable to a person who is in gaol. A person is in gaol in the following circumstances:

  • the person is being lawfully detained in prison while under sentence because the person has been CONVICTED of an offence and is not on parole or licence, OR
  • the person is being lawfully detained in a place other than a prison while under sentence because the person has been CONVICTED of an offence and is not on parole or licence. A place other than a prison includes psychiatric institutions, remand centres, youth training centres or community correctional centres, OR
  • the person is undergoing a period of custody in prison pending trial or sentencing for an offence.

For the purpose of the SSAct, 'gaol' is taken to include gaols in Australia and any other foreign countries and territories.

A person being detained in an immigration detention centre is not taken to be in gaol.

Explanation: Immigration detention centres detain people who have overstayed their visa, breached their visa conditions, come to Australia without a valid visa, had their visa cancelled or have been refused entry at Australia's entry ports. These people have not been convicted of an offence and are not undergoing a period of custody pending trial or sentencing for an offence.

Act reference: SSAct section 23(5) For the purpose of this Act, a person is in gaol if…

Policy reference: SS Guide 1.1.I.20 Imprisonment/in gaol

Periodic detention

Under midweek and weekend detention orders, people can serve a custodial sentence by periodic detention. The sentence is served progressively over an extended period of time and is served as a succession of short stays at a correctional institution either on weekends or over 2 consecutive days during the week.

If a person is detained periodically, they cannot be paid a social security pension, benefit or PP for those whole days that they are imprisoned. A whole day is a period of 24 hours starting from midnight on the one day and finishing at midnight on the next day. Payment should be suspended only for the whole days of detention.

Example: A person in weekend detention from Friday night to Sunday afternoon is only imprisoned for one whole day, i.e. Saturday, because this is the only day that the person is detained from midnight to midnight. This means that the person's payment should only be suspended for one day as a result of this detention.

Leave or absence from prison

A person granted leave from prison for a specific purpose cannot qualify for a social security payment as they are still considered to be imprisoned. However, if the leave is granted immediately before release, and NOT for any specific purpose, then the person CAN qualify for income support, subject to the usual qualifications.

Explanation: If the leave is granted for no specific purpose immediately before release, then the person is not considered to be imprisoned.

Act reference: SSAct section 23 (5) For the purpose of this Act, a person is in gaol if…, section 1158 Some social security payments not payable…

Policy reference: SS Guide 3.2.1.10 Qualification for NSA, 3.2.8 Mutual Obligation Requirements for NSA/YA Job Seekers, 3.2.9 Mutual Obligation Requirements for NSA/YA Job Seekers - Suitable Activities, 3.2.11 Mutual Obligation Requirements for NSA/YA - Exemptions

People in psychiatric confinement

Generally, social security payments are NOT payable to a person who is undergoing psychiatric confinement because they have been charged with an offence. Psychiatric confinement includes confinement in a psychiatric section of the hospital or any other place where 'persons with psychiatric disabilities' are confined.

The term 'people with psychiatric disabilities' should not be narrowly interpreted as applying only to those people who have psychiatric impairments such as depression, bipolar disorder or schizophrenia. This term also includes people with intellectual disability, an acquired brain injury and other impairments affecting mental health function.

Exception: Under SSAct subsection 23(9) a person is not taken to be in psychiatric confinement (and may be paid a social security payment) during a period when the person is undertaking a course of rehabilitation - see Situations where people may be paid.

A person confined in a psychiatric institution is regarded as being in psychiatric confinement if they have been charged with an offence and the following circumstances apply:

  • the person's mental fitness to stand trial is being assessed, OR
  • the person was found unfit to stand trial due to mental impairment, OR
  • the person was found not guilty on the grounds of mental impairment, OR
  • the person was found guilty but has not been convicted as their mental fitness to be sentenced is being assessed, OR
  • the person was found guilty but no conviction was recorded due to their mental impairment.

Explanation: Refer to the Federal Court decision of Garden v Secretary, FaCS [2001] FCA 827 which stated that paragraph 1158(b) includes people confined in psychiatric institutions who have been found unfit to be tried because of their mental condition and those who have been acquitted on the ground of their mental condition. This is one example of the type of situations that are included under paragraph 1158(b).

The main difference between being 'in gaol' and in 'psychiatric confinement' following a criminal charge is that a person is considered to be 'in gaol' if they are under sentence because the person has been CONVICTED of an offence (and are not on parole or licence), while a person held in a psychiatric institution because the person HAS BEEN CHARGED BUT NOT CONVICTED is considered to be in 'psychiatric confinement'.

Charges do not need to be pending for a person to be precluded from receiving social security payments by SSAct paragraph 1158(b). In cases where the person is found not guilty of an offence or unfit to stand trial (charges dropped or discontinued) because of their mental impairment, but they are sentenced or ordered to confinement in a psychiatric institution, the person may still be considered to be in psychiatric confinement BECAUSE they have been charged.

When deciding whether a person's confinement in a psychiatric institution is BECAUSE they have been charged with an offence, consideration needs to be made to whether there is a connection between the charge brought against the person (regardless of whether that charge is still pending), and the fact that they are in psychiatric confinement. The charges do not necessarily have to be the SOLE cause of confinement, but as long as they are a cause, this will be sufficient to satisfy paragraph 1158(b).

In any case where the person has been found guilty of an offence and a conviction RECORDED, social security payments are NOT payable because the person is regarded as being in gaol, even if they are in a psychiatric institution. This is because they are lawfully detained in a place other than a prison while under sentence for conviction of an offence (SSAct paragraph 23(5)(b)).

Explanation: Refer to the Federal Court decision of Garden v Secretary, FaCS which found that a person convicted of a criminal offence and detained in a psychiatric institution could not be paid because of (the former) paragraph 23(5)(b) - now SSAct paragraph 23(5)(a).

Note: While a person who is in a psychiatric institution because they have been charged with an offence is not prevented from being paid a social security payment when undertaking a course of rehabilitation, they must still satisfy all the qualification criteria to attract that payment. For some payments, the person will not be able to meet the basic qualification criteria.

Example: The activity test for NSA/YA or be undertaking the necessary activity or be able to meet the travel test for MOB.

Situations where people may be paid

Social security payments may be payable to a person in the following circumstances:

  • The person is participating in one of the following programs:
    • early release.
    • a program of a CSO nature.
  • The person is confined to a psychiatric institution but NOT because they have been charged with an offence (even if they are not undertaking a course of rehabilitation).
    Example: A person who is a danger to themselves and/or others, but who has not been charged with committing an offence.
  • The person is confined in a psychiatric institution because of a criminal charge (but not convicted), during a period when the person is undertaking a course of rehabilitation (3.1.4.20).
    Explanation: Refer to the explanatory memorandum relating to the former subsection 135THA(9) of the 1947 Act, which was the equivalent of the current SSAct subsection 23(9). This explanatory memorandum, from the Social Security and Veteran's Affairs (Miscellaneous Amendments) Bill 1986 specifically states that:
    • New subsection 135THA(9) would modify the effect of the bar on payment of an income support payment under the Principal Act to a person confined in a psychiatric institution after being charged with an offence. The new provision would not apply the bar to such a person who was undertaking a course of rehabilitation.

Policy reference: SS Guide 3.1.4.40 Effect of a Community Service Order on Activity Tested Payments, 3.1.4.41 Effect of Home Detention on Social Security Benefits, Social Security Pensions, PP, PES & CrP

Last reviewed: 15 August 2016