The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

3.7.2.40 SpB for people not residentially qualified for other payments

Summary

A person who is not residentially qualified for other payments, or is subject to a NARWP or QRP for other payments, may still qualify for SpB, subject to all the usual SpB provisions, including the NARWP.

As with all claims for SpB, all avenues of support should be explored and exhausted before the claim is granted.

Policy reference: SS Guide 3.7.1.10 Qualification for SpB

Factors to consider for SpB claims

The delegate should consider the following issues when determining whether a claimant is unable to receive any other payment and whether payment of SpB is appropriate:

  • Is the person on a temporary visa type that is eligible for SpB but not for other payments?
  • Can the person be exempt from the NARWP (3.1.2.43) or QRP for another payment?
  • Is the person subject to an AoS (1.1.A.310)?

Holders of specified subclasses of temporary visas

Subject to all the usual SpB provisions, holders of the following temporary visas qualify for SpB because of a determination by the Minister under SSAct section 729(2)(f)(v) and may be paid SpB - holders of these visas are not residentially qualified for any other social security pension or benefit:

  • subclass 820 - Partner
  • subclass 309 - Partner (Provisional)
  • subclass 785 - Temporary Protection
  • subclass 786 - Temporary (Humanitarian Concern)
  • subclass 790 - Safe Haven Enterprise
  • subclass 449 - Humanitarian Stay (Temporary)
  • CJSV (9.2.14) - issued specifically for the purpose of assisting in the administration of criminal justice in relation to an offence of trafficking in persons, slavery or slavery like practices
  • subclass 060 - Bridging F, and
  • subclass 070 - Bridging (Removal Pending).

Holders of most of these visas are not subject to the NARWP for SpB.

The exception is temporary partner visa holders (subclasses 309 and 820), who are subject to the NARWP for SpB. While serving the NARWP, these visa holders can only be paid SpB if eligible for a NARWP exemption because they:

  • are in financial hardship, AND
  • have suffered a substantial change in circumstances, beyond their control after arrival in Australia.

If it is established that SpB may be granted to the person, careful consideration should be given to any income earned by their partner, and the partner's capacity to provide support.

Explanation: Holders of provisional or temporary partner visas are required to be sponsored by their Australian resident partner and as such, the sponsor agrees to provide support to their partner.

If the person does not qualify for payment of SpB, their Australian resident partner may qualify for payment at the single rate under SSAct section 24.

Act reference: SSAct section 24 Person may be treated as not being a member of a couple …, section 729(2)(f) The Secretary may, in his or her discretion, determine that an SpB should be granted …, section 7(2) Australian residence definitions, section 739A Newly arrived resident's waiting period

Policy reference: SS Guide 2.2.5.40 Discretion to treat a person as not being a member of a couple for a special reason - section 24, 3.7.2.20 Substantial change in circumstances for SpB, 9.2 Visa subclasses & payment eligibility for visas issued after 1/9/94

People subject to a NARWP or QRP for other payments

If a person is subject to a NARWP or QRP for other payments, their eligibility for an exemption for one of those payments should be considered first before considering SpB.

For example, a person who became a lone parent after becoming an Australian resident may be exempt from the NARWP and/or QRP for JSP or PP. Similarly, a person may be exempt from the QRP for DSP if their continuing inability to work occurred while an Australian resident.

If a person is ineligible for any exemptions for other payments, they may be eligible for SpB, subject to meeting the provisions for SpB, including either having served the NARWP for SpB or being eligible for a NARWP exemption because they:

  • are in financial hardship, AND
  • have suffered a substantial change in circumstances, beyond their control after arrival in Australia.

Policy reference: SS Guide 3.1.2.40 Newly arrived resident’s waiting period (NARWP), 3.1.2.43 Exemptions from the NARWP, 3.7.2.20 Substantial change in circumstances for SpB

People subject to an AoS

People subject to an AoS can qualify for SpB, subject to all the usual SpB provisions, including the NARWP, if:

  • their assurer is no longer willing to support them, OR
  • it would not be reasonable for them to accept support from their assurer.

The assurer's financial circumstances must be closely examined to find out why they cannot provide support to the person. The assurer must be made aware of:

  • their legal obligation to provide support, and
  • the potential debt they will incur if the person is granted SpB.

The level of support provided by the assurer is important. If the assurer is unable to fully support the person but can provide free board and/or lodgings (1.1.B.70) and a decision is made to grant SpB, the rate payable should be adjusted accordingly.

If the person refuses to accept support from the assurer, the circumstances surrounding the case must be carefully examined to determine whether there are reasonable grounds for refusing the support available (for example, family or domestic violence).

Careful consideration must be given to whether the person has an entitlement to any other payment, such as JSP, or PP, despite the AoS.

Policy reference: SS Guide 3.7.1.80 Determining the rate of SpB, 9.4.1.10 Overview of the AoS scheme

Reviews

Review of all cases is particularly important to ensure that SpB is not paid after residence qualifications or waiting periods for other payments are met. Where a person becomes eligible for another payment, they should transfer to that payment.

Policy reference: SS Guide 6.2.6 Special payments reviews

Last reviewed: