3.11.14 Consequences for not meeting mutual obligation requirements - CDP job seeker compliance framework
People who are declared program participants (i.e. CDP participants) under the Social Security (Declared Program Participant) Determination 2018, and in receipt of participation payments are subject to the compliance arrangements set out in SS(Admin)Act Division 3A.
Social security law defines 'participation payments' as:
- jobseeker payment
- YA, unless the recipient is a full-time student or a new apprentice
- PP, if the recipient is subject to participation requirements, and
- SpB, if the person is a NVH.
In this section of the Guide, people receiving participation payments are referred to as job seekers.
Act reference: SSAct section 23(1)-'nominated visa holder', section 28 Approved programs of work for income support payment
Objectives of the compliance framework
The purpose of the compliance legislation is to encourage job seekers to meet their mutual obligation requirements. That is, to do all that they can to find work and participate in employment services and other activities designed to improve their job prospects. Job seekers who have a good reason for not meeting their requirements should not be penalised. Job seekers who do not meet their mutual obligation requirements should be reconnected with employment services as quickly as possible.
Act reference: SS(Admin)Act section 42A Simplified outline of this Division, section 42SA Immediate non-payment of participation payments for certain failures
Role of providers
CDP providers do not make compliance decisions under social security law. Providers report non-compliance to Services Australia, for Services Australia to make compliance penalty decisions. Providers are to consider the above objectives when deciding whether to report non-compliance. Guidelines for providers emphasise the discretion they have to consider strategies such as giving a job seeker another chance to attend an appointment or letting them make up time missed from an activity, if they believe this will be a more effective way of re-engaging the job seeker than compliance action.
Role of Services Australia
The legislation gives Services Australia officers, as delegated decision makers, some discretion when deciding if a job seeker has a reasonable excuse for failing to meet their requirements and in deciding if they have been persistently non-compliant. This discretion is limited, however, if a job seeker fails to give prior notice of their excuse when it was reasonable to expect them to do so.
Even where no reasonable excuse exists, the legislation also gives Services Australia the discretion not to apply a NSNP failure, a connection failure, a non-attendance failure, a reconnection failure or a serious failure, despite the failure being applicable. The discretion not to apply a penalty even where a job seeker has no reasonable excuse for their actions should be exercised only in very limited and exceptional circumstances.
Example: Jane is a 22 year old JSP recipient participating in the CDP. She has a history of non-compliance over a 6-month period. Services Australia conducts a CCA and finds that Jane has no barriers to participation. However, Jane is 7 months pregnant and intends to claim PP as soon as her baby is born. Jane's pregnancy has not affected her capacity to comply and does not provide a reasonable excuse for any of her past failures, so Services Australia could apply a serious failure. However, the decision maker decides not to do so as applying the failure would serve no purpose as a deterrent to future non-compliance and would cause unnecessary financial hardship to Jane and her child.