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.

3.7.2.80 SpB for Australian citizen children & Australian permanent resident children in the custody of a non-permanent resident

Summary

In certain circumstances, SpB may be paid to a child under 16 years who is an Australian citizen or the holder of a permanent visa, who resides in Australia, but whose custodial parent or guardian is not a permanent resident of Australia (1.1.A.320), and is therefore precluded from receiving any social security payment.

SpB can ONLY be paid if the family is in genuine hardship and it has been established that the parent/s or guardian has no means of adequately supporting the child. Such cases should be considered on their merits and referred to a social worker.

Explanation: Children born in Australia, with one parent who is a permanent resident of Australia at the time of their birth, are automatically granted Australian citizenship. This applies even if the parent who is a permanent resident had separated from the non-resident parent before the child's birth. Since August 1986, a person is not an Australian citizen by virtue of being born here but only if at least one parent is a permanent resident.

Explanation: Children born in Australia, where neither parent is a permanent resident of Australia, automatically acquire Australian citizenship on their 10th birthday if they have lived most of their life in Australia.

Explanation: Children of asylum seeker parents may be granted Australian permanent residence in certain circumstances.

Act reference: SSAct section 23(1)-'social security payment'

Policy reference: SS Guide 3.7.1.10 Qualification for SpB, 3.1.1.10 Residence requirements, 8.1.7.20 Social worker involvement - specific payments

Confirmation of circumstances

The parent/s or guardian must provide confirmation of the circumstances leading to the claim for SpB.

Policy reference: SS Guide 8.1.4.60 Special payments - documentation required, 3.7.1.30 Assessment of SpB claims

General - child in the custody of non-permanent resident not qualified for a social security payment

In all cases, SpB can ONLY be granted if the:

  • child is an Australian citizen or an Australian permanent resident, AND
  • child is residing in Australia, AND
  • parent has taken all reasonable action to pursue child support from the non-custodial parent (refer to policy reference below), AND
  • parent/s or guardian has no means of adequately supporting the child.

Note: A non-protected SCV holder custodial parent or guardian who has lived in Australia for a continuous period of at least 10 years may be eligible to receive JSP or YA for a one-off period of up to 6 months. An SCV holder parent or guardian would be regarded as having a means of supporting their child while they are receiving JSP or YA and therefore the child would not be eligible to receive SpB for this period.

Policy reference: SS Guide 9.1.3 New Zealand citizens

FA Guide 3.1.5.30 Taking reasonable maintenance action, 3.1.5.70 Exemptions from the maintenance action test

Children over school age

SpB is only payable to full-time students, including Australian citizen or permanent resident children, under 16 years if they are an SpB homeless person. An Australian citizen or permanent resident child in the custody of a non-permanent resident parent/s is an SpB homeless person if:

  • the child cannot live at the home of their parent/s because the parent/s is unable to provide the child with a suitable home owing to a lack of accommodation, AND
  • the child is not receiving continuous support, whether directly or indirectly and whether financial or otherwise, from a parent or from another person who is acting as the child's guardian on a long-term basis.

SpB is not payable to a child who is a full-time student if the family is living in stable accommodation and/or a parent or long-term guardian is providing the child with continuous support.

A child can be regarded as not being able to live at the home of their parent/s owing to a lack of stable accommodation if the child, or their custodial parent/s, is judged to be homeless. The child or the custodial parent/s can be judged to be homeless if rejection or cancellation of SpB would place the child and their parent/s at severe risk of homelessness. Delegates should ensure that there is supporting evidence that the family is homeless or at severe risk of homelessness.

Explanation: SpB legislation is not intended to subject children, or their custodial parent/s, to homelessness in order to qualify for SpB.

Act reference: SSAct section 737 Full-time students, section 739 SPB homeless person, section 1067A(9) Unreasonable to live at home

Policy reference: SS Guide 3.7.2.70 SpB for young people under 18 years of age, 1.1.S.230 Special benefit homeless person (SpB), 3.2.5.30 Unreasonable to live at home (YA, DSP & SpB)

Determining the rate of payment

A child in the custody of a non-permanent resident who is not qualified for a social security payment or who is not receiving another form of support (for example, a Status Resolution Support Services payment or Community Assistance Support payment) should be paid SpB at the 'single, with dependent child' rate of JSP. Where more than one Australian citizen child exists in a family unit, the youngest child should be paid SpB at the 'single, with dependent child' rate of JSP and any additional children are paid up to the maximum 'single, no children, aged under 18, at home' rate of YA. This may also include RA, paid to one of the qualifying children.

Explanation: The 'single, with dependent child' rate of JSP recognises the need for the child to have a carer and includes a component to help support the parent where the parent has no other adequate means of support.

A child in the custody of a non-permanent resident who is receiving a Status Resolution Support Services payment or a Community Assistance Support payment should be paid SpB at the rate equivalent to the FTB rate (excluding RA) that the non-permanent resident parent would otherwise have been entitled to for that child. RA is excluded from the SpB rate as payments made under the Status Resolution Support Services and Community Assistance Support programs include an RA component if rent is being paid.

The following table summarises the appropriate rate of payment.

Situation and … Rate
Youngest, or only child parent has no other means of adequately supporting the child. 'Single, with dependent child' rate of JSP
Older sibling of child receiving the 'single, with dependent child' rate of JSP parent has no other means of adequately supporting the child. 'Single, no children, aged under 18, at home' rate of YA
All children parent is receiving a payment made under the Status Resolution Support Services or Community Assistance Support program. FTB rate (excluding RA) that would be payable to the parent for that child if the parent was a permanent resident

Act reference: SSAct section 746(2) The rate of a person's SpB is not to exceed …

Policy reference: SS Guide 5.1.1.20 YA - current rates, 5.1.8.20 Common benefit rates

Other income

The maximum rate of SpB payable to the child should be directly reduced by any income:

  • paid to the custodial parent for the express purpose of supporting the child, for example, child support, OR
  • the child receives themselves.

If the parent is working and has income greater than the maximum rate of JSP that would otherwise apply to them, then the child's payment of SpB should be reduced applying the direct deduction income test for each dollar of income above the maximum rate of JSP. The maximum rate of JSP includes any add-ons that may otherwise be payable, for example, RA.

For parental income, if there is more than one Australian citizen child, then the income is deducted from the child with the highest rate first, usually the youngest child, then any excess income is deducted from subsequent children until the rate is zero.

Payment arrangements

As the child is too young to manage money, the parent or guardian must be a nominee (1.1.N.80) for the child. As nominee, the parent or guardian has responsibility for notifying Centrelink of changes in circumstances prescribed under the notification provisions.

Policy reference: SS Guide 3.7.1.100 Notification & recipient obligations for SpB, 8.4.1.30 Payments to a third party, 8.5 Nominees

Review

SpB must be reviewed when a change of circumstances or notifiable event occurs that may affect the child's continuing entitlement. For example, but not limited to:

  • child turns 16 years - child may be eligible to receive YA
  • change in custodial parent's visa sub-class or residence status - parent may be eligible to receive an income support payment
  • custodial parent re-partners - partner's income and any provision of in-kind support must be taken into account
  • custodial parent commences employment - parental income may affect the child's rate and whether the family continues to be regarded as being in genuine hardship
  • child starts school - a full-time student must be an SpB homeless person, and
  • custodial parent secures stable accommodation - a full-time student must be an SpB homeless person.

Example: Child is granted SpB while in the care of a non-resident single parent who subsequently partners an Australian resident who is employed full-time. SpB is cancelled as the child has another means of support and the resident partner may claim FTB for the child.

The following table explains the possibilities when the parent's permanent residence status is determined:

If permanent residence is … then …
granted, and the NARWP applies child's SpB is cancelled and the parent should claim SpB. SpB can ONLY be paid to the parent if the parent has suffered a substantial change in circumstances beyond their control since being granted permanent residence. Cancellation of the child's SpB may be regarded as a substantial change in circumstances where there is no alternative means of support. Parent should also claim FTB.
granted, and the NARWP does NOT apply child's SpB is cancelled and the parent should claim an appropriate income support payment, for example, JSP or PP. Parent should also claim FTB.
refused, and the parent is appealing payment of SpB to the child should continue until the appeal is finalised.
refused, and the Department of Home Affairs plans to deport the parent SpB should be reviewed.

Policy reference: SS Guide 3.7.2.20 Substantial change in circumstances for SpB, 8.1.7.20 Social worker involvement - specific payments

Last reviewed: