|
|
|
|
|
A social security pension, a social security benefit, a parenting payment, PES, MOB or CA is not payable for any day a person is imprisoned or for any day a person is in psychiatric confinement because they have been charged with a criminal offence, EXCEPT during a period when the person is undertaking a course of rehabilitation.
Note: A recipient who is in a psychiatric institution because they have been charged with an offence is not prevented from being paid a social security payment if they are undertaking a course of rehabilitation. HOWEVER, they must still satisfy all of the qualification criteria to attract that payment. In almost all cases the recipient will not be able to meet the basic qualification criteria.
Example: The activity test for NSA/YA or be undertaking the necessary activity or be able to meet the travel test for MOB.
Act reference: SSAct section 23(1)-'social security benefit', section 23(1)-'social security pension', section 23(5) A person is in gaol if.., section 23(8) Psychiatric confinement, section 23(9) The confinement of a person in a psychiatric institution, section 1158 Some social security payments not payable …
Policy reference: SS Guide 3.1.4.05 Payability During Periods in Gaol or Psychiatric Confinement, 3.1.4.20 Person Undertaking a Course of Rehabilitation
Social security payments are NOT payable to people in gaol. People are in gaol in the following circumstances:
Under midweek and weekend detention orders, recipients can serve a custodial sentence by periodic detention. The sentence is served progressively over an extended period of time and is served as a succession of short stays at a Correctional Institution either on weekends or over 2 consecutive days during the week.
If a recipient is detained periodically, they cannot be paid a social security pension, benefit or PP for those whole days that they are imprisoned. A whole day is a period of 24 hours starting from midnight on the one day and finishing at midnight on the next day. Payment should be suspended only for the whole days of detention.
Example: A recipient in weekend detention from Friday night to Sunday afternoon is only imprisoned for one whole day, i.e. Saturday, because this is the only day that the recipient is detained from midnight to midnight. This means that the recipient's payment should only be suspended for one day as a result of this detention.
A recipient granted leave from prison for a specific purpose cannot qualify for income support as they are still imprisoned. However, if the leave is granted immediately before release, and NOT for any specific purpose, then the recipient CAN qualify for income support, subject to the usual qualifications.
Explanation: If the leave is granted for no specific purpose immediately before release, then the recipient is not considered to be imprisoned.
Act reference: SSAct section 23(5) A person is in gaol if…, section 1158 Some social security payments not payable
Policy reference: SS Guide 3.2.1.10 Qualification for NSA, 3.2.8 Activity Testing & Mutual Obligation for NSA/YA Job Seekers, 3.2.9 Activity Testing for NSA/YA Job Seekers - Suitable Activities, 3.2.11 Activity Test for NSA/YA Job Seekers - Exemptions
Social security payments are NOT payable to a person who is undergoing psychiatric confinement. Psychiatric confinement is where the person is confined in a psychiatric institution because the person has been charged with an offence.
Exception: A person is not in psychiatric confinement (and may be paid a social security payment) during a period when the person is undertaking a course of rehabilitation - see topic below.
The circumstances in which a person will be regarded as being in psychiatric confinement because they have been charged with an offence include the following situations:
Explanation: Refer to the Federal Court decision of Garden v Secretary, FaCS [2001] FCA 827 which stated that paragraph 1158(b) includes people in psychiatric confinement who have been found unfit to be tried because of their mental condition and those who have been acquitted on the ground of their mental condition. This is one example of the type of situations that are included under paragraph 1158(b).
Charges do not need to be pending for a person to be precluded from receiving income support by paragraph 1158(b) of the SSAct. In cases where the person is found not guilty of an offence or unfit to stand trial (charges dropped or discontinued) because of their psychiatric condition, but they are sentenced or ordered to confinement in a psychiatric institution, it may still be considered that the person is in psychiatric confinement BECAUSE they have been charged.
When deciding whether a person's confinement in a psychiatric institution is BECAUSE they have been charged with an offence, consideration needs to be made to whether there is a connection between the charge brought against the person (regardless of whether that charge is still pending), and the fact that they are in psychiatric confinement. The charges do not necessarily have to be the SOLE cause of confinement, but as long as they are a cause, this will be sufficient to satisfy paragraph 1158(b).
In any case where the person has been found guilty of an offence and a conviction RECORDED, social security payments are NOT payable because the person is regarded as being in gaol, even if they are in a psychiatric institution, because they are in a place other than a prison in connection with their conviction for an offence (SSAct paragraph 23(5)(b)).
Explanation: Refer to the Federal Court decision of Garden v Secretary, FaCS which found that a person convicted of a criminal offence and detained in a psychiatric institution could not be paid because of paragraph 23(5)(b).
Social security payments may be payable to people in the following circumstances:
Policy reference: SS Guide 3.1.4.40 Effect of a Community Service Order on Activity Tested Payments, 3.1.4.41 Effect of Home Detention on Social Security Benefits, Social Security Pensions, PP, PES & CrP
_______________________________________________________
Last reviewed: 2 January 2007
