Social Security Payments - Residence Criteria

 

Summary

Australia's income support system is based on residence and need, and is paid by the Australian Government out of general revenue. Payments are usually only available to Australian residents—most migrants do not have access to the majority of payments for up to four years after their arrival under the Newly Arrived Resident’s Waiting Period (NARWP). Payments for the long-term contingencies of life, such as old age and disability, are further restricted to those people with a long-term connection with Australia (unless, in the case of Disability Support Pension, the disability occurs while the person is an Australian resident).

There are exemptions from the qualifying residence requirements and from the NARWP for certain people. For people who are in hardship but cannot get any other form of income support, Special Benefit provides a safety net. A NARWP applies to Special Benefit, but this can be waived if the claimant has suffered a substantial change in circumstances beyond his or her control.

Background - a residence-based system

The Australian income support system differs from those of most other developed countries, in that it is funded from general revenue, rather than from direct contributions by individuals and employers. Instead of reflecting the level and duration of contributions into a social insurance fund, Australian income support is based on residence and need.

In general, a person must be an "Australian resident", as defined in the Social Security Act 1991, in order to qualify for Australian social security payments. An Australian resident is a person who resides in Australia and has permission to remain permanently—either because they are: an Australian citizen; the holder of a permanent visa; or a protected Special Category Visa holder (as described below). In deciding whether a person is residing in Australia, factors such as the person's domestic, financial and family ties to Australia are taken into account, as well as the frequency and duration of any absences from Australia and the reasons for such absences.

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Residence and New Zealand citizens

Before 26 February 2001, holders of Special Category Visas (i.e. New Zealand citizens entering Australia under the Trans-Tasman Travel Arrangements) could meet the definition of an Australian resident if they were residing in Australia and likely to remain permanently.

New Zealand citizens may enter Australia as a Special Category Visa holder or on a permanent visa under the Migration Program (ie as if migrating from any other country). A Special Category Visa is granted to a New Zealand citizen who does not hold a visa on arrival in Australia, and who presents their New Zealand passport. From 26 February 2001, holders of Special Category Visas are no longer able to satisfy the definition of an Australian resident for income support purposes, unless they belong to a "protected" group. However, holders of Special Category Visas who are residing in Australia can receive family assistance and the low income Health Care Card.

The protected groups include Special Category Visa holders who:

  • were in Australia on 26 February 2001; or
  • had been in Australia for at least 12 months in the two-years immediately before 26 February 2001 and returned to Australia after that day; or
  • were residing in Australia on 26 February 2001 but were temporarily absent on that day; or
  • commenced (or recommenced) residing in Australia within three months of that day.

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Exceptions to the residence rules for income support

The principle that only Australian residents should qualify for social security payments is fundamental to the Australian income support system. Exceptions to this principle are limited to Special Benefit (the "payment of last resort") and some family payments.

Under social security law, the Minister for Families and Social Services has authority to make determinations to allow the holders of particular temporary visas to meet the residence requirements for Special Benefit. This authority enables Australia to meet its legal and moral obligations to provide social security assistance to a particular class of people, even though those people do not have permission to remain permanently in Australia. Currently, determinations are in force for a number of temporary visas providing access to only Special Benefit. For more information on the visa types go to Exemptions from the Special Benefit newly arrived resident's waiting period.

In addition, some temporary visas, such as the Special Category Visa and certain Humanitarian Visas, allow access to the range of family assistance payments.

The Minister has no power to make exceptions to the residence rules on an individual or case by case basis. Exceptions can only be made for an entire class (or subclass) of visa by ministerial determination.

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Periods of qualifying residence

Access to social security benefits is generally restricted to people who are Australian permanent residents or citizens residing permanently in Australia. While most income support payments have up to a four-year waiting period, Age Pension and DSP have a 10-year qualifying residence requirement. This 10-year qualifying residence requirement aims to ensure that only those people who have established a long term connection with Australia are able to access Age Pension and DSP.
The 10-year qualifying residence period must include a period of five years continuous residence in Australia. The qualifying residence period begins from the date the person starts residing in Australia as a permanent visa holder. Time spent in Australia on a temporary visa is not counted towards the qualifying residence period.

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Exemption from periods of residence

Asylum seekers who are assessed as genuine refugees and who are granted permanent visas on this basis are exempt from the qualifying residence requirements for income support payments. The Social Security Act 1991 definition of a refugee includes all people who were granted permanent residence under the Humanitarian Program – that is, those granted refugee or special humanitarian visas. To protect their access to benefits, such people continue to be defined as refugees for social security purposes, even if they cease to hold a refugee or humanitarian visa (e.g. if they become Australian citizens).

This "qualifying residence exemption" recognises that refugees have not had the same freedom of choice as other migrants, when making the decision to come to Australia. Refugees are not, however, exempt from the basic requirement to be an Australian resident at the time of claiming a payment.

Under social security law, the Minister for Families and Social Services has authority to make determinations to allow the holders of particular permanent visas to meet the qualifying residence requirements for certain social security payments.

Where a person’s disability occurred while they were in Australia as a permanent resident or the holder of a permanent visa, they can seek an exemption from the 10-year qualifying residence requirement for Disability Support Pension (DSP).

A permanent Australian resident who becomes a lone parent in Australia can seek and exemption to the waiting period for Parenting Payment Single (previously known as Sole Parent Pension). Eligibility requirements include meeting the income and assets test.

A person is exempt from the qualifying residence requirements for the Age Pension if the person:

  • is a woman who was widowed in Australia, and both she and her partner were Australian residents at the time of his death, and she was an Australian resident for two-years immediately prior to the claim;
    or
  • was in receipt of Widow B Pension, Widow Allowance, Partner Allowance or Mature Age Allowance immediately before turning Age Pension age.

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Newly arrived resident's waiting period

Most migrants do not have immediate access to income support payments but instead have a "newly arrived resident's waiting period". The provisions restricting migrants’ access to payments are not identical across payment types.

A NARWP applies to people who have not been Australian residents and in Australia for a period of, or periods totalling, the specified period of time relevant to the payment. Periods spent in Australia as an Australian resident, at any time in a person's life, can be counted towards the waiting period.

The waiting period rules changed on 1 January 2019. For people granted a permanent visa and partner temporary visa on or after 1 January 2019, the following waiting periods apply:

  • A four-year waiting period applies to most working age payments.
  • A two-year waiting period applies to Parental Leave Pay, Dad and Partner Pay and Carer Payment.
  • A one-year waiting period applies to Carer Allowance and Family Tax Benefit Part A.
  • There is no waiting period for Family Tax Benefit Part B.

Those granted a permanent visa before 1 January 2019 are subject to the old rules. They can access Family Tax Benefit Part A, Parental Leave Pay, Dad and Partner Pay and Carer Allowance immediately, if they are eligible. They have a two-year waiting period for most other payments.

In addition, people on certain visa types are also subject to the old rules, even if the visa is granted from 1 January 2019. Depending on their visa type, these visa holders can access Family Tax Benefit Part A, Parental Leave Pay, Dad and Partner Pay and Carer Allowance immediately if they are eligible but will have to wait two-years for certain other payments. These visas include:

  • New Zealand citizens on a Special Category Visa (subclass 444)
  • Orphan Relative visas (subclasses 117 and 837)
  • Remaining Relative visas (subclasses 115 and 835).

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Exemptions from the newly arrived resident’s waiting period

Exemptions according to migration category

Refugees and holders of certain temporary humanitarian visas are exempt from the NARWP. Their immediate family members (partners and dependent children) are also exempt. This policy recognises the fact that the sponsored family members of refugees have often been in refugee-like situations themselves, and will face the same sorts of settlement barriers.

Holders and former holders of visa subclass 852 are also exempt from NARWP for all payments.

People whose migration to Australia is approved on the basis that they will act as a carer for a disabled relative are exempt from the newly arrived resident's waiting period for Carer Payment and Carer Allowance (but not for any other payment). These are the holders of permanent carer visas (visa subclasses 116 and 836), which are specifically for people who come to Australia to care for an Australian resident family member. Holders of family visa subclasses 104 and 806, who are defined by the Migration Regulations as either "special need relatives" or "carers", are also exempt from the Carer Payment waiting period.

Australian citizens are exempt from the newly arrived resident's waiting period for all payments. People who become an Australian citizen during their waiting period will become exempt from the remainder of the period.

Other Exemptions

There are a number of general and payment specific exemptions from the newly arrived resident’s waiting period, and situations where a newly arrived resident’s waiting period does not apply. These include the following exemptions (from 1 January 2019):

  • Lone parent exemption - A person is exempt from the newly arrived resident’s waiting period for Parenting Payment, Youth Allowance or JobSeeker Payment if they become a lone parent after becoming an Australian resident.
  • Low Income Health Care Card exemption (FTB child) - People who have an FTB child are exempt from the newly arrived resident’s waiting period for a Low Income Health Care Card.
  • Receiving an income support payment exemption - People who are receiving a social security pension, social security benefit or Farm Household Allowance (e.g. because they are exempt from the newly arrived resident’s waiting period or other qualifying residence requirements for that payment) are exempt from the newly arrived resident’s waiting period for Carer Allowance, FTB Part A, Parental Leave Pay and Dad and Partner Pay. People may also be exempt from the newly arrived resident’s waiting period for Carer Allowance and FTB Part A if they are receiving Parental Leave Pay or Dad and Partner Pay.
  • Special Benefit - substantial change in circumstance exemption - People are exempt from the newly arrived resident’s waiting period for Special Benefit and Low Income Health Care Card if they have experienced a substantial change in circumstance beyond their control and are in financial hardship (see below).

Exemptions from the Special Benefit newly arrived resident’s waiting period

Special Benefit is a "safety net payment of last resort" for people who are ineligible for any other payments. Permanent residents and holders of particular temporary visas may be eligible for an exemption from the newly arrived resident’s waiting period for Special Benefit if they meet the following requirements:

  •  unable to earn a sufficient livelihood;
  • in severe financial hardship, and
  • experiencing a substantial change of circumstances beyond their control since arriving in Australia.

The rate of Special Benefit is discretionary, but it cannot be more than the rate of JobSeeker Payment and Youth Allowance that would otherwise apply to the recipient. Hardship tests, outlined in the Social Security Guide, are used to decide whether a person meets the above exemption requirements. The Guide states the types of situations that would constitute financial hardship and a substantial change of circumstances.

Situations which could constitute a substantial change in circumstances include where:

  • the migrant, their sponsor or their partner has a prolonged illness or injury and is unable to work and/or significant medical costs are being incurred,
  • the migrant’s partner or sponsor has died and the migrant has no other means of support,
  • the migrant has experienced domestic violence and has no other means of support, or
  • The migrant loses a pre-arranged job which was the reason for their migration through no fault of their own.

The Guide gives examples such as these, but does not seek to predict every type of situation in which it would be appropriate to waive the waiting period. Such a decision is discretionary. However, the Guide stipulates that failure to find or keep employment cannot, of itself, be regarded as a substantial change in circumstances.

Under a Ministerial Determination Special Benefit may also be paid to certain temporary visa holders (see above). The following temporary visa holders may be exempt from the newly arrived resident’s waiting period and may be able to access Special Benefit if they otherwise meet the qualification requirements (note: holders of these visas do not have to have experienced a substantial change in circumstances in order to be exempt from the waiting period):

  • visa subclass 060 (Bridging F)
  • visa subclass 070 (Removal Pending Bridging Visa)
  • visa subclass 449 (Humanitarian Stay) (Temporary))
  • visa subclass 785 (Temporary Protection);
  • visa subclass 786 (Temporary) (Humanitarian Concern);
  • visa subclass 790 (Safe Haven Enterprise);
  • visa subclass ZB 951 (Criminal Justice Stay Visas - relating to the offence of people trafficking, sexual servitude or deceptive recruiting).

This exemption is provided for by a Ministerial determination as holders of some temporary visas (including those granted under the Humanitarian Program) cannot meet the Social Security Act 1991 definition of a refugee. This exemption is consistent with the humanitarian reasons for allowing these groups to remain in Australia and receive Special Benefit.

In addition, Criminal Justice Entry Visas and Criminal Justice Stay Visas granted to those assisting in the administration of criminal justice in relation to people trafficking, sexual servitude or deceptive recruiting are also entitled to Special Benefit and are exempt from the NARWP.

Assurance of Support

The Department of Social Services acquired responsibility for the Assurance of Support (AoS) program from the then Department of Immigration on 1 July 2004. The AoS program is legislated under the Social Security Act 1991.

The AoS program is an integral part of the Government’s migration program. Migrants entering Australia with an AoS do so on condition that a person (the assurer) provides an assurance to undertake financial responsibility for the migrant (the assuree) for the duration of the AoS period. The AoS period is either one-year, two-years, four-years, or ten years depending on the visa type.

Further information on the AoS program is provided under the Assurance of Support topic.

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