3.1.4.05 Payability During Periods in Gaol or Psychiatric Confinement

Summary

A social security pension, a social security benefit, a PP, PES, MOB or CA is NOT payable to a person who is in gaol.

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

A social security pension, a social security benefit, a PP, PES, MOB or CA is also NOT payable to a person with a psychiatric disability who is confined in a psychiatric institution because the person has been charged with a criminal offence. The term 'person with a psychiatric disability' includes, but is not limited to, a person with an acquired brain injury and intellectual disability.

Exception: The confinement of a person in a psychiatric institution during which a person is undertaking a 'course of rehabilitation' is not regarded as psychiatric confinement and in these circumstances a social security payment IS payable to the person.

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 if they are undertaking a course of rehabilitation, they must still satisfy all of 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.

Policy reference: SS Guide 1.1.I.20 Imprisonment/in gaol, 3.1.4.10 Situations that Constitute Being in Gaol or Psychiatric Confinement, 3.1.4.20 Person Undertaking a Course of Rehabilitation

Flowchart to assist decision makers

If a person is undergoing a period of custody in prison, pending trial or sentencing for an offence then a social security pension/benefit is not payable because of SSAct sections 23(5)(b) and 1158(a). If a person is undergoing a period of custody in psychiatric confinement (assessing mental fitness to stand trial), pending trial or sentencing for an offence and the person is not undergoing a course of rehabilitation then a social security pension/benefit is not payable because of SSAct sections 1158(b). If a person is undergoing a period of custody in psychiatric confinement (assessing mental fitness to stand trial), pending trial or sentencing for an offence and the person is undertaking a course of rehabilitation then a social security pension/benefit is payable because of SSAct section 23(9). If a person found guilty, with no conviction recorded, is confined in a psychiatric institution because they have been charged with an offence and the person is undertaking a course of rehabilitation then a social security pension/benefit is payable because of SSAct section 23(9). If a person found guilty, with no conviction recorded, is confined in a psychiatric institution because they have been charged with an offence and the person is not undergoing a course of rehabilitation then a social security pension/benefit is not payable because of SSAct section 1158(b). If a person unfit for trial or not guilty (mentally impaired) with no conviction recorded, is confined in a psychiatric institution because they have been charged with an offence and the person is undertaking a course of rehabilitation then a social security pension/benefit is payable because of SSAct section 23(9). If a person unfit for trial or not guilty (mentally impaired) with no conviction recorded, is confined in a psychiatric institution because they have been charged with an offence and the person is not undergoing a course of rehabilitation then a social security pension/benefit is not payable because of SSAct section 1158(b). If a person found guilty, with a conviction recorded, is imprisoned (not on parole or licence) then a social security pension/benefit is not payable because of SSAct sections 23(5)(a) and section 1158(a). If a person found guilty, with a conviction recorded, is lawfully detained in a place other than prison while under sentence for conviction (not on parole or licence), then a social security pension/benefit is not payable because of SSAct sections 23(5)(a) and section 1158(a).

Act reference: SSAct 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…

Rate payable to person with a partner who is imprisoned or in psychiatric confinement

While a recipient's partner is imprisoned or in psychiatric confinement because the partner has been charged with committing an offence, the recipient is paid the partnered (partner in gaol) rate applicable to their pension/benefit. This rate is higher than the 'regular' partnered rate. This is adjusted back to the 'regular' partnered rate from the date of their partner's release.

Act reference: SSAct section 4(11)(f) A person is partnered (partner in gaol) if…, section 1064-B1 Maximum basic rate

WP person

If the WP recipient's partner is imprisoned:

  • WP is suspended or cancelled from the date of imprisonment, and
  • the person can receive her partner's pension at the partnered rate.
  • people in this situation should however test their eligibility for another income support payment.

Explanation: The rate payable is likely to be higher as it would be based on the single rather than the partnered rate.

If the person chooses to claim a payment in her own right, WP should be cancelled and CANNOT be regranted, EVEN IF the period of imprisonment is less than 12 months.

Explanation: This is due to the restriction on grant of WP from 1 July 1995.

Act reference: SSAct section 1158 Some social security pensions not payable…, section 1159 Payment may be redirected to dependent partner or child, section 146V(1) Wife pension not to be granted after 30 June 1995

Some pensions may be redirected to dependants

If a social security pension is not payable to a person because the person is imprisoned or in psychiatric confinement due to a criminal charge and the person has a dependent partner or a dependent child (1.1.D.70), the Secretary may authorise a short-term (for up to 13 week) redirection of payment to:

  • the partner, OR
  • the child, OR
  • another person or institution on behalf of the partner or child.

Explanation: This provision applies to social security pensions OTHER THAN pension PPS. Pension PPS CANNOT be re-directed.

Act reference: SSAct section 1159 Payment may be redirected to a dependent partner or child

If a relative or friend cares for the child in the family home pending the person's release, an amount can be re-directed from what would have otherwise been the person's basic pension entitlement. This amount is the lesser of the:

  • full cost of the maintenance of the home, support of the child and other expenses, OR
  • equivalent of the basic pension component.

Re-direction is NOT appropriate if the child is being cared for in a State-funded home or an institution.

Act reference: SSAct section 1158 Some social security pensions not payable…

Last reviewed: 8 May 2017