8.5.3 Responsibilities of nominee
Responsibilities of nominee
When a nominee is appointed, the nominee is required to act in the best interests of the principal (claimant or recipient).
A delegate should be satisfied that a proposed nominee understands the responsibilities they are taking on and appears capable of carrying them out.
Particular scrutiny should be given to requests where:
- the nominee runs a boarding or rooming establishment
- there are multiple voluntary nominee appointments for the same nominee, OR
- the nominee does not live in the same residence, or in close proximity to, the principal.
A nominee is required to advise of any matter that affects their ability to act as a nominee. Any nominee arrangement MUST be reviewed as soon as any allegations of misuse of the payment are received.
Information in relation to the principal's social security payment/s may be disclosed to their appointed nominee on the principal's behalf.
Act reference: SSAct section 23(1)-'protected information'
SS(Admin)Act section 123K Notification by nominee of matters affecting ability to act as nominee, section 208(3A) Disclosure of information by Secretary
The payment nominee must keep a record of the expenditure of the principal's payments in case the arrangement needs to be reviewed. In the instance that a review is deemed necessary, a notice needs to be sent to the nominee requesting a statement to be made regarding the disposal by the nominee of money paid under social security law to the nominee on behalf of the recipient.
The nominee is obliged to comply with this request under legislation. If they fail to do so monetary penalty provisions apply.
Act reference: SS(Admin)Act section 123L Statement by payment nominee regarding disposal of money
Policy reference: SS Guide 8.5.1 Payment nominee
In most cases, where a principal is required to perform an act for purposes of social security law, this can be actioned by the correspondence nominee on behalf of the principal.
However, in some instances a principal must act or attend on their own behalf, such as when attending a medical examination. In these instances a correspondence nominee may also be advised of the details regarding the requirement of the principal to personally act. This advice to the nominee is to enable them to assist (where required) the principal fulfil their obligations.
Example: A principal is severely mentally incapacitated and needs to attend a medical examination. They may require facilitation by a third party (the nominee) in order to ensure the principal attends the examination appointment. The nominee can attend with the principal if the principal wishes. However, in the instance of a medical, psychiatric or psychological examination, the nominee can be excluded at the request of the examiner.
Act reference: SS(Admin)Act section 123A-'principal', section 123H Actions of correspondence nominee on behalf of benefit recipient, section 123S Right of nominee to attend with principal
Policy reference: SS Guide 8.5.2 Correspondence nominee
Cancellation of arrangements
The nominee or the principal can cancel a nominee arrangement at any time. Extreme care should be taken in cases that involve a nominee that has a power of attorney or enduring power of attorney or a legally appointed guardian. The Secretary has the discretion to suspend or revoke appointments of nominees under the Act, including nominees who have a power of attorney or an enduring power of attorney. However, a delegate should not appoint a third party where a power of attorney or enduring power of attorney exists without a compelling reason. Furthermore, Services Australia nominee appointments where there is a state/territory court, tribunal, guardianship or administration order in place should not be revoked at the request of the principal. This is because such orders will generally only be made where the principal can no longer provide rational instructions. Where such an order is in place, the delegate will need to contact the relevant state/territory authority when the principal requests a change in the nominee arrangement.
There is a specific power to revoke nominee appointments in the circumstances set out in SS(Admin)Act section 123E. The Secretary or his delegate may revoke an appointment where:
- the nominee requests in writing that the Secretary revoke the appointment
- the Secretary has given the nominee a notice under SS(Admin)Act section 123K and the nominee informs the Secretary of an event or change in circumstances affecting their ability to act as a nominee, or
- the Secretary has given the nominee a notice under SS(Admin)Act sections 123K or 123L and the nominee does not comply with the notice.
The suspension or revocation of the appointment must be in writing and copies must be sent to both the principal and former nominee.
There is also a residual general power derived from the Acts Interpretation Act 1901 section 33(4). This power can be exercised where a delegate decides that a nominee appointment is not in the principal's best interests.
The delegate can also use the discretion contained in SS(Admin)Act section 44(1) to direct payment of a social security entitlement elsewhere.
Act reference: SS(Admin)Act section 123E Suspension and revocation of nominee appointments
Allegations of misuse
Any allegations of misuse of the nominee arrangements, for example, principal not getting the benefit of their income support payment, or abuse of an elderly or disabled person, must be referred immediately to a social worker. If the social worker is not available and the case is urgent, the nominee arrangement may be revoked with a referral to the social worker to investigate the allegations of misuse and follow up with the relevant authorities. Another nominee appointment may be required and/or payment redirected elsewhere as a matter of urgency.