8.6.4.10 Date of Effect of Non-Automatic Adverse Determinations

Introduction

This topic outlines the application of the provisions of SS(Admin)Act relating to the date of effect of adverse determinations, in particular, section 118. For the date of effect of adverse determinations relating to employment income see 'Impact of working credit or student income bank on adverse determinations' in this topic.

Note: This topic deals with the date of effect of non-automatic adverse determinations (those made under SS(Admin)Act sections 79, 80, 81 or 82). For information on the date of effect of automatic determinations made under SS(Admin)Act Part 3 Division 8, see 8.6.4.20.

Act reference: SS(Admin)Act section 79 Rate of reduction determination, section 80 Cancellation or suspension determination, section 81 Cancellation or suspension for non-compliance with certain notices, section 81A Rate reduction determination for non-compliance with notice relating to rent assistance, section 82 Cancellation or suspension for failure to take action to obtain foreign payment, section 118 Date of effect of adverse determinations-general rules

Applying section 118

Section 118 applies to determine the date of effect of an adverse determination made in relation to any social security payment. Additional rules in section 120 apply in relation to CP.

Subsection 118(2) provides that if an adverse determination is made after the person has informed DHS of the occurrence of an event or change of circumstances, and the person has not been paid after the day the event or change occurred and before the determination is made, the date of effect of that adverse determination is the date of event (1.1.D.19).

Note: For explanation of date of effect rules relating to adverse determinations concerned with working credit or student income bank, such as at subsections 118(2A), 118(2B), 118(5A) and 118(5B) see 8.6.7.

Subsection 118(5) provides that generally if an adverse determination is made after DHS has required a person to provide a statement about a matter that affects their payment, and the person has done so within the required timeframe (in accordance with a section 68 notice), the date of effect of that adverse determination is the date the matter arose.

Example: Statements required about a relevant matter include SU19s (NSA) and Reporting and Income Statement for other income support payments.

Note: Where a person is, in addition to the subsection 118(5) criteria, earning income during the instalment period, the above section is subject to further rules contained in subsections 118(5A) and 118(5B) in order to determine the date of effect.

Subsection 118(6) applies where a person and their partner are both receiving a social security payment and the partner provides a statement to DHS about a matter that affects the partner's payment during a specified period (in accordance with a section 68 notice). If an adverse determination is made in respect of the person as a result of this statement, the date of effect of that determination is the date the matter arose.

Note: Where a person is, in addition to the subsection 118(6) criteria, earning income during the instalment period, the above section is subject to further rules contained in subsections 118(6A) and 118(6B) in order to determine the date of effect.

Subsection 118(11) provides that if a person's social security payment is suspended after DHS has required a person:

  • to provide a statement about a matter that might affect their payment, and the person has failed to do so within the required timeframe (in accordance with a paragraph 67(2)(b) or 68(2)(b) notice) and the payment is subsequently cancelled under either section 80, 81 or 82, the date of effect of the determination to cancel the payment is the day on which the payment was suspended, OR
  • to provide information under either sections 192, 193, 194, or 195, and the person has failed to do so within the required timeframe (in accordance with a section 196 notice) and the payment is subsequently cancelled under either section 80, 81 or 82, the date of effect of the determination to cancel the payment is the day on which the payment was suspended, OR
  • or their partner to comply with a notice issued under section 66 and the person or their partner has failed to comply with that notice within the required timeframe, and the payment is subsequently cancelled under either section 80, 81 or 82, the date of effect of the determination to cancel the payment is the day on which the payment was suspended.

Explanation: If a person's payment was suspended under section 81 because he or she did not provide a statement to DHS about a matter that might affect their payment, as required by a paragraph 68(2)(b) notice and the person's payment was later cancelled under section 80 or 81, then subsection 118(11) would apply to the person. If a favourable decision under section 109 is made on review in relation to the decision to cancel the person's payment where the person applied for review within 13 weeks of a cancellation notice being given, the favourable determination will take effect on the day on which the determination embodying the original decision took effect. As the determination embodying the original decision (i.e. the cancellation decision) is taken to have effect on the day the person's payment was suspended, this means the person could receive more than 13 weeks arrears back to the date of suspension.

Subsection 118(7) provides that if an adverse determination is made, and the making of this determination was delayed because a person contravened a provision of the SSAct or the SS(Admin)Act (other than subsections 67(2), 68(2), 69(2), and sections 192, 193, 194 or 195 as they relate to requiring a person to give a statement or information to DHS), the date of effect of the adverse determination is the day specified in the determination. This may be earlier than the day the determination is made.

Explanation: The date of effect would normally be backdated in this situation so the person does not benefit from contravening the social security law.

Example: If a person does not attend an interview at a DHS office as required by a section 63 notice, their social security payment will become not payable, so the DHS delegate may cancel or suspend their payment under section 80 and backdate that determination because the person has contravened a provision of the SS(Admin)Act.

The SS(Admin)Act provisions governing other parts of section 118 are set out in the following table.

Determination decision SS(Admin)Act reference
Adverse determinations associated with arrears of periodic compensation. subsection 118(3) or 118(4)
Adverse determination follows false statement or misrepresentation. subsection 118(8) or 118(9)
Adverse determination relating to telephone allowance. subsection 118(12)

If no other provision of section 118 applies, the date of effect of an adverse determination is:

  • the day on which the determination is made, or
  • a later day specified in the determination.

Act reference: SS(Admin)Act section 117 Definition, section 118 Date of effect of adverse determinations-general rules, section 80 Cancellation or suspension determination, section 81 Cancellation or suspension for non-compliance with certain notices, section 82 Cancellation or suspension for failure to take action to obtain foreign payment, Part 3 Division 6 Subdivision B Requirement to give information about change of circumstances etc., Part 5 Division 1 Information gathering

Policy reference: SS Guide 8.6.1 Date of Effect of Determinations - Summary of Legislation

Impact of working credit or student income bank on adverse determinations

There are additional rules in section 118 for working out the date of effect where:

  • the adverse determination relates to an increase in the person's (or the persons partner's) income, or to the person starting paid work, and
  • the person has a student income bank or working credit balance.

The effect of these rules is generally to delay the date of effect of the adverse determination until the person's working credit or student income bank balance is reduced to nil.

Act reference: SS(Admin)Act section 118 Date of effect of adverse determinations-general rules see subsections (2A), (2B), (5A), (5B), (6A), and (6B)

Additional rules for CP

Additional rules that impact the date of effect of adverse determinations relating to CP (child) are found in SSAct sections 197E, 197G, 197H and 197K. These rules apply when a child who qualifies a carer for CP (child) turns 16 years of age.

Additional rules for determining the date of effect of adverse determinations relating to CP are also found in section 120. These rules apply where the care receiver's taxable income exceeds the income ceiling under SSAct section 198A.

Act reference: SSAct section 197E Qualification-child who has a terminal condition, section 197G Qualification-short term or episodic care of children, section 197H Qualification-extension of short term or episodic care, section 197K Remaining qualified for up to 3 months after child turns 16, section 198A Income test-carer payment

SS(Admin)Act section 117 Definition, section 118 Date of effect of adverse determinations-general rules, section 120 Additional rules in the case of carer payment

Policy reference: SS Guide 3.6.4.34 Qualification for CP (child) - Transition (Turning 16 Years of Age) from CP (child) to CP (adult), 8.6.1 Date of Effect of Determinations - Summary of Legislation

Adverse determinations relating to concession cards

The date of effect of an adverse determination made in relation to a concession card is:

  • the day on which the determination is made, or
  • a later day specified in the determination.

Act reference: SS(Admin)Act section 121 Definition, section 122 Date of effect of adverse determinations

Policy reference: SS Guide 8.6.1 Date of Effect of Determinations - Summary of Legislation

Last reviewed: 16 May 2016