188.8.131.52 Mutual Obligation Requirements for NSA/YA Job Seekers - Exemptions - Special Circumstances
Basis for exemption
Where circumstances arise that impede, rather than prevent, a job seeker from meeting their mutual obligation requirements, consideration should be given first to adjusting or reducing these requirements in preference to exempting the job seeker from mutual obligation requirements (1.1.M.160) completely.
However, there will sometimes be circumstances that are UNFORESEEN or UNAVOIDABLE and cause major disruption for the job seeker, where it would be unreasonable to expect the job seeker to meet any of their mutual obligation requirements for a specific period of time.
The following are categories of special circumstance exemptions that may arise:
- major personal disruption to the job seeker's home,
- major personal crisis (including homelessness),
- affected by declared natural disaster, e.g. bushfire, flooding or cyclone,
- temporary caring responsibilities,
- dad and partner leave,
- undertaking jury duty,
- being a newly protected witness,
- being a newly arrived refugee,
- volunteering during a state or national emergency, or
- undertaking Indigenous cultural business.
Each of these categories is explained in more detail in the rest of this topic.
Note: Exemptions do not apply to circumstances wholly or predominantly attributable to the job seeker's misuse of alcohol or another drug, unless the job seeker is a CDP participant.
Duration of exemption
The legislation allows for exemptions for any of the above reasons to be granted for a period of up to 13 weeks (with the exception of dad and partner leave which is limited to up to 2 weeks) and where necessary this period can be extended. However, actual periods should be determined according to the individual circumstances. A guide to the suggested length of the various exemptions is contained in each category below. In some cases, an exemption may not be appropriate, such as YA recipients who have been identified as at risk. In these cases a new Job Plan should be negotiated to provide support for the person to overcome their personal barriers.
Major personal disruptions to home
The legislation allows for exemptions of up to 13 weeks, however, an exemption period of 2 weeks is generally appropriate for major disruptions related to the job seeker's home.
Examples: The following would be considered major personal disruptions:
- damage to the home/contents caused by storm, flood, fire or earthquake (this exemption can be used when a natural disaster occurs that causes disruption to the job seeker but the occurrence of the disaster does not result in the official declaration of a natural disaster),
- damage to the home/contents caused by an accident, explosion or electrical fault, or
- burglary of or vandalism to the home/contents or other assets (e.g. vehicle).
Exemptions in these situations are limited to the time required to:
- arrange alternative accommodation,
- replace household items,
- organise major repairs, and
- organise insurance claims.
Major personal crisis
Although the legislation allows for exemptions of up to 13 weeks, the appropriate exemption period granted for a major personal crisis should be limited to the time needed to address the immediate situation only.
Examples: The following are examples of a major personal crisis:
- the death of a member of the person's immediate family,
- the breakdown of marriage or equivalent relationship,
- domestic violence,
- temporary caring responsibilities,
- for people assessed as having a partial capacity to work, where their carer is temporarily or permanently unable to care for them because of unforeseen circumstances, and
- Indigenous sorry business.
Note: Principal carer parents will be able to access a special family circumstance exemption where an immediate family member has died (see 184.108.40.206). They may also be able to access special family circumstance exemptions where they are subject to domestic violence or where they experience unusually high stress due to the breakdown of their marriage or equivalent relationship. Principal carer parents receiving NSA or YA who may have experienced a major personal crisis should therefore in the first instance be assessed according to guidelines outlined in 220.127.116.11.
Exemptions in such cases are limited to the time required to:
- arrange a funeral and other related matters,
- move belongings,
- arrange for care of children,
- attend short term counselling, and/or
- for people assessed as having a partial capacity to work, the time required to find alternative carer arrangements or for the duration of their carer's temporary incapacity.
Note: Exemptions should generally only be granted following the death of an immediate family member. An immediate family member is a person's partner, father, mother, sister, brother or child. However, an exemption can be granted if the delegate is satisfied that the deceased person should be treated as though they were an immediate family member.
- A member of the job seeker's foster or adoptive family, whether the fostering arrangement was formal or informal.
- A member of the job seeker's extended family who may at some time have fulfilled the role of an immediate family member, (such as an aunt or uncle who may have had care of the job seeker when they were a child).
In Indigenous communities, exemptions can also be granted to job seekers following the deaths of people who were not or could not be considered as immediate family members, in order to allow the job seeker to participate in sorry business.
The period of exemption should be limited to what is required in individual circumstances. Local information should be sourced wherever possible to assist in determining the length of time that may be required for an individual.
If an individual's need to attend sorry business can be verified but the likely length of that involvement cannot be reliably ascertained at that time, a short initial period of exemption should be applied, e.g. 2 weeks, and then extended if further information is obtained that deems this appropriate.
Community engagement in remote areas has provided evidence that sorry business requirements for non-family members can vary quite widely between communities and that, in some instances, this would not interfere with an individual's requirements beyond the day of the funeral.
Declared natural disaster
An initial exemption period of 4 weeks will usually be granted, but exemptions can be applied for up to 13 weeks at a time.
This exemption is for job seekers affected by a declared major natural disaster where an emergency response plan has been put in place by relevant state officials. An official declaration that the area has natural disaster status must be made before the exemption can be granted. Examples of what could be declared a natural disaster are:
- cyclone, or
In determining whether to grant an exemption for homelessness, the primary consideration should be whether a person's living circumstances are stable enough to allow them to meet their mutual obligation requirements. A person may not be able to do this if they have just started living on the street, in a hostel or refuge or moving from house to house every few days. On the other hand, a person who is living or residing temporarily with relatives or friends may be able to meet their requirements.
Before granting an exemption on the grounds of unstable accommodation, consideration should be given to the person's individual circumstances and whether it would be more appropriate to reduce a person's mutual obligation requirements to a level that they are able to meet. Consideration should also be given to whether the person would benefit from other interventions.
If an exemption is granted, it should be limited to the time required to arrange more stable accommodation.
Example: A young person aged 18 years, indicates that they do not have a permanent place of residence and are having trouble looking for work or undertaking study as a result. A new Job Plan is negotiated to take in to consideration the young person's circumstances, as such reduced mutual obligation requirements have been agreed to, including participation in a relevant program of support which will assist them to resume study or work and to establish a stable residence.
If the young person was granted an exemption, the young person would not be required to participate in any activities outlined in their Job Plan for the period of the exemption.
Temporary caring responsibilities for an adult
A person who cannot meet their mutual obligation requirements because they are required to provide care for another person should test their eligibility for CP.
A special circumstances exemption may be applied when a person is unexpectedly required to provide full-time care for an adult. An exemption should only be applied if no alternative caring arrangements are available and CP is not payable to the carer. The exemption should only be applied for the period of time required to make alternative arrangements for the care of the adult and should not exceed 13 weeks.
Temporary caring responsibilities for child/ren
Short term exemptions can also be granted where a job seeker who is not a principal carer parent is unexpectedly or unavoidably required to care for their child/ren. Examples might be where the child is sick and is not allowed to attend child care and there is no one else available, such as a partner or family member, to provide care or where the non-custodial parent unexpectedly has to care for their child due to personal circumstances of the custodial parent. The period of exemption should be limited to the time required to arrange suitable day care where it is available. The period of exemption is not to exceed 13 weeks.
Where possible it is preferable to reduce the job seeker's mutual obligation requirements for the period during which they have the caring responsibilities rather than grant a full exemption.
In some circumstances, a child or children may come into the care of a relative, such as a grandparent or aunt/uncle, in what could be deemed as an informal arrangement. However, this arrangement may have the support of the state or territory authorities, in that it is an alternative to the child being placed under a Child Protection order, and being placed into the formal foster care system.
In these cases, if the informal carer is also a NSA/YA recipient, the carer may be eligible to receive a special circumstances exemption, where they are able to produce documentation from the relevant state or territory authority. The documentation should state that the placement of the child/ren with the carer has been negotiated with the authority and that the child/ren's parents have agreed to the placement. The documentation should clearly state that the authority has acted as the conduit in the arrangement, or has had a role in the placement of that child/ren outside of their immediate family. The documentation should also advise that caring for the child/ren will affect the person's ability to work, or search for work. The initial and any subsequent periods of exemption are each not to exceed 13 weeks.
Note: If the NSA or YA (job seeker) recipient is a principal carer of one or more dependent children in this circumstance, they will be able to access a special family circumstance exemption from their mutual obligation requirements as outlined in 18.104.22.168. Principal carers will be able to access a special family circumstance exemption for a period of up to 16 weeks.
Dad & partner pay (DAPP)
An exemption from mutual obligation requirements can be provided to eligible recipients of DAPP. Dad and partner leave allows parents to spend more time at home with their newborn baby or adopted child. The exemption can apply for up to 2 weeks and must be taken within 12 months of the child's birth or of the child being placed in their care (for adopted children up to 16 years of age).
Undertaking jury duty
Exemptions for jury duty can be granted for up to 13 weeks, which may be extended, but not by more than 13 weeks at a time.
Being a protected witness
Job seekers should be exempt during their first 13 weeks under a witness protection programme. Further exemptions (of not more than 13 weeks at a time) can be granted if the job seeker's circumstances continue to make it difficult for them to satisfy requirements.
Being a newly arrived refugee
A refugee is granted automatic exemption for up to 13 weeks in the first 13 weeks after their arrival in Australia.
Volunteering in a state or national emergency
Exemptions for volunteers during a state or national emergencies (e.g. bushfires or floods), can be granted for up to 13 weeks. The job seeker should be asked to provide proof of their active involvement, such as a written statement from their rural fire service/State Emergency Service commander, when they next lodge their claim for payment.
Undertaking Indigenous cultural business
Indigenous cultural business relates to the cultural practices of Indigenous Australians not related to deaths and funerals. An exemption can be granted for Indigenous Australians to attend to cultural business. The period of the exemption should be limited to what is required in individual circumstances. Local information should be sourced wherever possible to assist in determining the length of time that may be required for an individual participant.
If an individual's participation in cultural business can be verified but the likely length of that cultural business cannot be reliably ascertained at that time, a short initial period of exemption should be applied, e.g. 2 weeks, and then extended if further information is obtained that deems this appropriate.
Community engagement in remote areas has provided evidence that cultural business requirements vary widely between communities and that, in some instances, cultural business can be undertaken concurrently with an individual's mutual obligation requirements (e.g. the cultural business only occurs at particular times of day or at night).
Act reference: SSAct section 603A Relief from activity test-special circumstances, section 542H Special circumstances exemption (YA), section 544DA YA Employment Pathway Plans-early school leavers