MHCC Mental Health Rights Manual

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Chapter 7 Section F: Social security

7F.1: Introduction

This section of the Manual looks at social security law from the perspective of someone who has been diagnosed with a mental health condition in NSW.

People with mental health conditions often find themselves dealing with Centrelink, the Commonwealth Government agency that manages social security benefits or payments.

A mental health condition can affect how a person interacts with Centrelink in several ways:

  • Having an acute mental health condition might make you eligible, if you have no other source of income, to get a Disability Support Pension.
  • You might already be on a pension or benefit but the symptoms of your mental health condition may make it difficult to follow the rules for getting that pension or benefit.

This section looks firstly at how you can access Centrelink and the services it can provide .

The second section looks at eligibility for those benefits that are more likely to be relevant to someone with a mental health condition. These are the Disability Support Pension and Sickness Allowances as well as the Newstart and the Youth Allowance.

The final section looks at how decisions by Centrelink can be challenged, either when Centrelink says you are not eligible for a benefit or when your benefits are stopped or changed.

If you have any general questions or need advice about your pension or benefit you should contact the Welfare Rights Centre. Phone 1800 22 6208* or click here for more information about the Welfare Rights Centre.

The Aged-Care Rights Service (TARS) also gives advice about pensions and benefits relevant to seniors in the community. Click here to contact TARS or phone TARS on (02) 9281 3600 (Sydney), or 1800 424 079*.

The National Welfare Rights Network has an information page about complaining about Centrelink decisions and service (this is different from asking for a review of a Centrelink decision or an appeal). Click here to go to this webpage.

* Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

7F.2: Centrelink

Centrelink is the agency of the Australian Government that is responsible for delivering a wide range of services and unemployment benefits to Australians who find themselves on a low income or without an income.

It manages social security policy and it is responsible for making sure that all social security payments are made in an accurate and timely manner.

Most people who have to deal with Centrelink have contact through a Centrelink Customer Service Centre.

7F.2.1: What happens at Centrelink Customer Service Centres?

There are Centrelink Customer Service Centres across Australia. Each Centre has three main sections:

  • Retirement: which deals with Age Pension, Wife Pension, Widow Pension, and Carer Pension
  • Employment Services: which deals with the Newstart Allowance, Youth Allowance, Disability Support Pension, Carer Payment, and Special Benefit
  • Family Assistance: which deals with Family Tax Benefit, Parenting Payment and Double Orphan Pension.

If you want to make a claim for any sort of Centrelink payments and allowances this is done at a Centrelink Customer Service Centre. Other activities at Centrelink Customer Service Centres include the following:

  • You can get answers to questions about Centrelink payments and allowances
  • You can give Centrelink documents that are needed to support your claim for a payment
  • You can get Centrelink forms and publications about Centrelink payments and allowances
  • Centrelink officers make decisions about whether or not you are entitled to any Centrelink payments and allowances
  • You can challenge Centrelink decisions

Staff at the Centrelink Customer Service Centres include the following:

  • Section Managers: who can make initial decisions but who more frequently supervise and review decisions made by other officers.
  • Senior Customer Service Advisers: who provide help to people with disability. They can also assess and refer you to appropriate employment services, help you get access to training and vocational rehabilitation in your local area, advise you on medical eligibility for disability and carer-related payments, and help you if you are not ready for employment assistance by linking you to your local disability and carer organisations.
  • Customer Service Officers: who can handle your initial enquiries and give you information and advice.
  • Social Workers: who do not make decisions but can act as a liaison between you and the other Centrelink staff.

In some offices, other staff may include Interpreters, Multicultural Service Officers and Indigenous Officers.

7F.3: Pensions and benefits relevant to a mental health condition

There are several pensions and benefits that may be available to you if you have a mental health condition:

7F.3.1: Disability Support Pension

A mental health condition may be considered a disability for the purpose of eligibility to a Disability Support Pension.

A Disability Support Pension may be paid to you if you are 16 or over (but not eligible for the aged pension), and have a disability, mental health condition, illness or injury that will stop you from working or retraining for working full time (15 hours per week) for two years or more.

The Disability Support Pension is 'means' tested. If you or your partner's income and assets are above a certain amount, you may only be eligible for a reduced pension amount or not eligible for a pension at all.

If you have not claimed the Disability Support Pension before, you can be referred to a job capacity assessor. If the assessor finds that you are able to work for at least 15 hours a week, you will not get the Disability Support Pension.

The job capacity assessment is part of the Job Access program. Job Access is an information and advice service funded by the Australian Government. It offers help and workplace solutions for people with disability and their employers.

To access the job access website, click here.

For more information about job capacity assessments click here.

For more information about Disability Support Pensions: Click here for information from Centrelink.

From 1 July 2014 the eligibility of current Disability Support Pension recipients aged under 35 years who were granted Disability Support Pension (DSP) between 1 January 2008 and 31 December 2011 prior to the introduction of the revised impairment tables, will be reviewed.

Those DSP recipients who were granted on clear grounds will be excluded as would those already assessed as having a work capacity of less than 8 hours a week.

Under this change, DSP recipients will have a comprehensive review of their eligibility for DSP. This will involve a review against the revised impairment tables and an assessment of their work capacity. Eligible DSP recipients will be supported to help maximise their work capacity.

DSP recipients will also be assessed as to whether they have evidence of having actively participated in a Program of Support. Depending on their circumstances, if they have not participated in a Program of Support they will be required to do so. DSP payment will continue based on their participation in a Program of Support.

Reviews will be carried out over 18 months from 1 July 2014 – December 2015. The Department of Human Services will contact recipients who are affected by this measure. Recipients will be asked to provide current medical evidence and may need to attend a Job Capacity Assessment scheduled by the department.

For more information about this review click on this link. 

7F.3.2: Allowances if you are acutely unwell and/or hospitalised

 If your mental health condition, illness, injury or disability prevents you from working or studying for only a short time, then depending on your age and other circumstances, you may be eligible for Sickness Allowance, Newstart or Youth Allowance. If you were hospitalised, either as a voluntary or involuntary patient, and you expect to return to work or full-time study after you are discharged, then you can claim a Sickness Allowance.

If you lose your job because of a mental health condition or you become an involuntary patient under the Mental Health Act 2007 (NSW) and you subsequently lose your job, then you are likely to be eligible for Newstart or a Youth Allowance. If you were hospitalised, either as a voluntary or involuntary patient, and you expect to return to work or full-time study after you are discharged, then you can claim a Sickness Allowance. If you are in hospital, the hospital social worker can advise and help you with this. 

If you are already on Newstart or a Youth Allowance, and you are either at home or in hospital being treated during an acute phase of mental illness, you will need to have someone go to Centrelink on your behalf with supporting written medical information to ask for you to be exempt from the activities tests. If you do nothing in these circumstances, you are likely to be taken off your current benefit for failing to comply with Centrelink's activity tests. If you are in hospital you should talk to the hospital social worker about this as soon as possible after your admission. If you are being treated in the community, you should talk to your case manager about this. You are not eligible for Sickness Allowance in these circumstances.

7F.3.3: Sickness Allowance

Sickness Allowance may be paid to people who are temporarily unable to work or study due to an illness, injury or disability and are:

  • 21 or over and have a job;
  • 21 or over and on ABSTUDY; or
  • Over 25 and receiving Austudy.

You must have work or study to return to when you are well again.

Click here to go to the National Welfare Rights Network to download the fact sheet on Sickness Allowance .

For more information about other benefits and payments available from Centrelink, click here to go to their website.

7F.3.4: Working and getting a pension or benefit

Almost all pensions and benefits are subject to an income or assets test. This means that the amount of money you get may be reduced by any other income you have. Income can mean money you earn from a part-time job, but it may also mean interest from money you have in a bank account, superannuation payments, dividends (a sum of money paid regularly (typically annually) by a company to its shareholders out of its profits (or reserves) or rent received (from properties owned and leased). 

You may also have a 'free' amount of income per fortnight, this is not counted for the income test. This depends on the sort of pension and benefit you are receiving, the number of dependents you have and whether you are single or not (that is, whether you are married or in a de facto relationship).

An assets test applies to all benefits and pensions unless you are legally blind.

The value of your family home is exempt from the assets test. Other assets can either reduce the amount of your benefit depending on their value or rule you out from getting a benefit altogether.

7F.4: Other pensions, benefits and allowances

There are a number of benefits and payments available from Centrelink other than those that are particularly relevant to people with mental health conditions. They all have complex eligibility rules, usually with equally complex means (income) and assets tests.

There are a number of benefits and payments available from Centrelink other than those that are particularly relevant to people with mental health conditions. They all have complex eligibility rules, usually with equally complex means and assets tests.

The first place to find information about pensions, benefits and allowances is Centrelink itself. Click here to find a Centrelink office near you or click here for a list of Centrelink telephone services.

If you have doubts or concerns about information that Centrelink gives you, you can get further advice from a welfare rights specialist within a Community Legal Centre or from a Welfare Rights Centre.

Examples of pensions, benefits and allowances are:

  • Newstart Allowance: This is the allowance to support your income if you are unemployed and looking for work 
  • Youth Allowance: This is the income support payment if you are 16–20 years old and looking for full-time work or doing a combination of approved activities, or have a temporary exemption from the participation and activity test requirements. 
  • There is also an income support benefit if you are 16–24 years and studying full time or doing a full-time Australian Apprenticeship.
  • Aged Pension: To qualify for an aged pension if you are a male you must be at least 65 years old. To qualify if you are a female you must be at least 60 years old (note that from 1 July 2017 the age is gradually being increased). 
  • Pensioner education supplement: The Pensioner Education Supplement (PES) helps you with the costs of full-time or part-time study.

Note: Your eligibility for Age Pension depends on when you were born. Women born before 1 January 1949 reach qualifying age at 64 and a half, and women born between 1 January 1949 and 30 June 1952 at age 65. Qualifying age for men born before 1 July 1952 is age 65.

  • Pensioner education supplement: The Pensioner Education Supplement (PES) helps you with the costs of full-time or part-time study.
  • Carers benefits and allowances: This is an income support payment if you personally provide care to an adult with disability, a child with 'profound disability', or two or more children with disability.

For more information about these other allowances and benefits, click here

7F.5: Challenging Centrelink decisions

If you are not happy with a Centrelink decision, you can ask to have it reviewed. The first step in the process is internal review .

If you are still not satisfied, you can ask for a further review and it will be reviewed by an Authorised Review Officer .

If you think the Authorised Review Officer has got it wrong, you can appeal to the Social Services and Child Support Division (the SSCS Division) of the Administrative Appeals Tribunal (AAT).

The decision of the SSCS can also be appealed, this time to the Administrative Appeals Tribunal (AAT). Either you or Centrelink can appeal to the AAT.

If you are going to challenge a Centrelink decision, you should consider getting advice about how to do this.

7F.5.1: Internal reviews

If you think Centrelink has made a wrong decision, you can ask for it to be reviewed. This does not cost anything.

You should contact Centrelink as soon as possible because if the decision is changed, you can be back-paid. It is important that you ask for a review of the decision as soon as possible as certain time limits apply.

A first option is to have the person who made the original decision explain it. This is an opportunity to correct misunderstandings, present new information or evidence and to get an incorrect decision changed immediately. You do not have to take this step and can immediately ask for a formal review.

The next step is to apply for a review by a Senior Centrelink Officer called an Authorised Review Officer. This person is independent of the Regional Office. They will contact you, and look at the decision again after they have talked to all those involved in the decision and taken into account any new evidence. They will tell you the outcome of their review and your appeal rights if necessary.

Contact between you and the Authorised Review Officer is almost always made by telephone (using the Telephone Interpreter Service where needed). Review by the Authorised Review Officer should take no more than ten working days or less in an emergency. If the decision is unfavourable to you, the Authorised Review Officer will write to you setting out the reasons for the decision.

7F.5.2: Getting a benefit or pension while the review is taking place

If you ask for a review of a decision, Centrelink may agree to continue your payment at the rate you were getting until the review is finalised. This is called ‘payment pending review’. Centrelink can do this if the decision being reviewed is the result of it exercising a discretion, or 'holding an opinion', or if a ‘participation penalty’ has been imposed on you.

You should put in a request for a 'payment pending a review' at the same time as you put in your review request, preferably in writing.

7F.6: Appeal to the Social Services and Child Support Division of the AAT (the SSCS Division) 

If you think the Authorised Review Officer's decision is wrong, you can appeal to the Social Services and Child Support Division of the AAT (the SSCS Division). A negative outcome of review by an Authorised Review Officer does not mean that an appeal will be unsuccessful at the SSCS. For more about how to appeal to the SSCS, click here.

Centrelink staff can give you information about an appeal to the SSCS.

The SSCS is a relatively informal tribunal and tribunal members include lawyers, community and welfare workers, doctors and people with knowledge of Centrelink procedures.

The SSCS can confirm the original decision, change the decision, or give a new decision.

You need to apply within three months of getting the Authorised Review Officer's decision in writing. There can be no backdated payments for more than three months' benefit.

It costs nothing to appeal to the SSCS. Even if an appeal is lodged and later withdrawn, there are no fees or penalties involved. To help applicants get to the hearing, SSCS pays reasonable travel costs for the applicant, but not for friends or relatives.

If needed, SSCS provides and pays for interpreters. SSCS does not pay fees of lawyers or other professionals if you choose to be represented at the hearing.

SSCS cannot order Centrelink to continue payments while you are waiting for the outcome of the appeal. Enquiries about continuing to get payments while you are waiting for the appeal should be directed to the Manager of the Centrelink office where the original decision was made.

Note: From 1 July 2015 the Social Security Appeals Tribunal became a Division of the Commonwealth Administrative Appeals Tribunal (AAT). It is now known as the Social Services and Child Support Division (the SSCS Division) . 

7F.6.1: How to appeal to the Social Services and Child Support Division of the AAT (SSCS) 

The SSCS has an application form that is available from Centrelink offices, Authorised Review Officers or from the Tribunal itself. The form includes an addressed and postage paid envelope. It may be posted, faxed or lodged at any SSCS office or lodged with or faxed to any office of Centrelink.

Appeals may be made any time after the Authorised Review Officer's decision is made, but it is best to do it as soon as possible and certainly within thirteen weeks of getting that decision. This is because, if the SSCS finds in your favour, there are limits on the amount of back payment you can get if you made the application more than thirteen weeks after getting the Authorised Review Officer's decision.

It costs nothing to appeal to the SSCS. Even if an appeal is lodged and later withdrawn, there are no fees or penalties involved. To help applicants get to the hearing, the SSCS pays reasonable travel costs for the applicant, but not for friends or relatives.

Note: From 1 July 2015 the Social Security Appeals Tribunal became a Division of the Commonwealth Administrative Appeals Tribunal (AAT). This is now known as the Social Services and Child Support Division of the AAT (the SSCS Division).

7F.6.2: What happens after you have appealed to the Social Services and Child Support Division of the AAT (SSCS) ?

The SSCS takes about four weeks to respond to an appeal application. It will send a letter that tells you the hearing date and a copy of Centrelink's submission (written argument) to the SSCS. There is usually about a six to eight week wait for appeals to be held by the SSCS. If this delay will lead to hardship, you should tell SSCS this at the time of lodging the appeal form.

You may ask for access to your Centrelink files under the freedom of information (FOI) law if you are not satisfied that all relevant documents have been provided. FOI requests should be made direct to Centrelink. For more information, click here. 

You can withdraw the appeal at any time. SSCS can dismiss your appeal if you fail to contact the Tribunal when asked to do so, fail to make an appointment for the hearing, or fail to attend the hearing.

If you have lodged an appeal, you will need to prepare for the appeal hearing. Click here to find out more about what you should do before the SSCS hearing.

It is also useful to know what will happen at and after the hearing. To find out, click here.

Note: From 1 July 2015 the Social Security Appeals Tribunal became a Division of the Commonwealth Administrative Appeals Tribunal (AAT). This is now known as the Social Services and Child Support Division of the AAT (the SSCS Division).

7F.6.3: What should you do to prepare for the Social Services and Child Support Division (SSCS) hearing?

If you are representing yourself at the SSCS hearing, you can use the following as a checklist to help you prepare for the hearing:

  • If your circumstances change, do not wait for the appeal to be finalised, lodge a new claim with Centrelink immediately. (This might avoid possible hardship while waiting for the appeal process to be finalised).
  • If you have no income or are experiencing hardship you may be eligible for continuation of your current payment while you wait for your appeal to be finalised or for another type of payment, such as Special Benefit to be confirmed. If you think this applies to you, contact Centrelink about possible payment, and tell the SSCS of your circumstances when you lodge your appeal form and ask for your appeal to be dealt with urgently.
  • You should tell the SSCS if you need an interpreter, either for you or any witnesses you might want to include at the hearing to give evidence.
  • Gather information or documents relevant to the claim as evidence to give to the SSCS.
  • At the hearing you will have the opportunity to tell the SSCS what they think is important, so prepare a list beforehand of what you want to tell the Tribunal.
  • Do not be afraid to prepare questions to ask about any aspect of the appeal.

You should supply as much relevant information as you can to the Tribunal. The Welfare Rights Centre's self-help guide sets out a list of information it recommends you should take to the Tribunal hearing of your review.

To access this guide, click here.

Note: From 1 July 2015 the Social Security Appeals Tribunal became a Division of the Commonwealth Administrative Appeals Tribunal (AAT). This is now known as the Social Services and Child Support Division of the AAT (the SSCS Division).

7F.6.4: What happens at the Social Services and Child Support Division of the AAT (the SSCS Division) hearing?

The hearings of the Social Services and Child Support Division of the AAT (the SSCS Division) are informal. The Tribunal panel will usually consist of a lawyer and two other members, sometimes a doctor or another health professional. The Tribunal members will listen to what you have to say, read any relevant documents you provide, and ask questions. Centrelink does not have a person at the hearing but supplies its case to the Tribunal in writing. The Tribunal will consider what Centrelink has provided.

Sometimes the Tribunal hearings are held over the telephone or by video-conference.

You should supply as much relevant information as you can to the Tribunal. The Welfare Rights Centre's self-help guide sets out a list of information it recommends you should take to the Tribunal hearing of your review.

To access this guide, click here

Note: From 1 July 2015 the Social Security Appeals Tribunal became a Division of the Commonwealth Administrative Appeals Tribunal (AAT). This is now known as the Social Services and Child Support Division of the AAT (the SSCS Division).

7F.6.5: Powers of the Social Services and Child Support Division of the AAT (the SSCS Division) 

The SSCS generally has the power to confirm, vary or set aside the decision it is reviewing. The Tribunal can also refer the decision or parts of it back to Centrelink for reconsideration.

Note: From 1 July 2015 the Social Security Appeals Tribunal became a Division of the Commonwealth Administrative Appeals Tribunal (AAT). This is now known as the Social Services and Child Support Division of the AAT (the SSCS Division).

7F.6.6: What happens after the Social Services and Child Support Division of the AAT (the SSCS Division) hearing?

After the appeal hearing, the Tribunal members discuss all the information in private and come to a decision based on the facts, the relevant law and the merits of each case.

Within 14 days of making the decision, the Tribunal must tell you:

The decision it has made;

  • What the Tribunal decided happened (the facts of the case);
  • The evidence the Tribunal relied on to decide on the facts of the case; and
  • The reasons for its decision.

The SSCS may adjourn (delay) a case until a later date. This may be to give you time to provide extra information, or to allow the SSCS to get extra information or research the law. You will be told in writing of any delay in the case and will be given a chance to comment on any new information that is not favourable to your case.

Click here for more information on how to appeal to the SSCS, or here

Note: From 1 July 2015 the Social Security Appeals Tribunal became a Division of the Commonwealth Administrative Appeals Tribunal (AAT). This is now known as the Social Services and Child Support Division of the AAT (the SSCS Division).

7F.7: Appeal to the Administrative Appeals Tribunal (AAT)

If you think a decision by the Social Services and Child Support Division of the AAT (the SSCS Division) is wrong, you can appeal to the Administrative Appeals Tribunal (AAT). The AAT is more formal than the SSCS, and you must appeal in writing within 28 days of getting the SSCS decision. However, you can apply to the AAT for an extension of the 28-day time limit.

There is no fee that applies to the AAT on a social security decision.

Legal Aid NSW provides financial help to get legal representation in social security cases being dealt with by the AAT.

This help is subject to the usual Legal Aid policies on means, assets, merits and contributions .

If you are appealing to the AAT you should try to get legal assistance. Click here to find out more about getting legal help .

The AAT can confirm the decision, change the decision or give a new decision.

Payment can be backdated but only to the time of the wrong decision if you asked for the review within three months of the decision. If you have been given an extension of the 28 days to apply, payment will only be backdated to the date you asked for the review rather than to the date of the decision itself.

7F.8: Where to get independent advice and assistance

You should if possible, before lodging the appeal seek independent advice and ask about your chances of success. By all means talk to Centrelink, but do not rely totally on the information you get from Centrelink.

You can get free legal advice from a Welfare Rights Centre.

You could also ask Legal Aid NSW through LawAccess on 1300 888 529* for general legal information and advice.

(Legal Aid will assist in paying for legal representation at the Administrative Appeals Tribunal (AAT) but not normally at the Social Services and Child Support Division of the AAT (the SSCS Division).

When you appeal against a decision of Centrelink to the AAT, the Welfare Rights Centre may offer you representation by a lawyer or a social worker. The Welfare Rights Centre will also provide advice if you feel more confident about running your own appeals.

*Remember, mobile phone calls to Local call numbers (numbers starting with 1300) are charged to the caller at the usual mobile rate.

Note: From 1 July 2015 the Social Security Appeals Tribunal will become a Division of the Commonwealth Administrative Appeals Tribunal (AAT). This is now known as the Social Services and Child Support Division of the AAT (the SSCS Division).

7F.8.1: Welfare Rights Centres

Welfare Rights Centres provide information, advice and representation to people affected by decisions made by Centrelink. The assistance they provide is free.

The Centres operate on the principle that social security is a right, not a privilege. They work on the principle that people affected by Centrelink decisions should be able to have decisions re-examined if they either do not understand the decision or believe it is incorrect.

You can contact a Welfare Rights Centre about:

  • Eligibility for particular payments: for example, whether you are likely to be eligible for a Disability Support Pension, or some other pension or benefit;
  • Information: for example, to find out what information Centrelink is allowed to obtain from people; and
  • Rejection of applications for payment: if you applied for a Disability Support Pension but were rejected.

There is a Welfare Rights Centre in NSW and it offers an independent assessment of all decisions referred to it. It can act as an intermediary if communication between you and Centrelink has broken down. It can help by finding out what information is missing or has been wrongly interpreted.

The Welfare Rights Centre is located in Sydney:

Phone: (02) 9211 5300
Freecall: 1800 226 028* (from outside Sydney)
Fax: (02) 9211 5268
Teletypewriter (TTY): (02) 9211 0238
E-mail: welfarerights@welfarerights.org.au
Street and Postal address: Suite 102, 55 Holt St
SURRY HILLS NSW 2010

The Welfare Rights Centre also has staff in Wollongong at the Illawarra Legal Centre:

Phone: (02) 4276 1939
Fax: (02) 4276 1978
Teletypewriter (TTY): 133 677
Street address: 7 Greene Street
WARRAWONG NSW
Postal address: PO Box 139
WARRAWONG NSW 2502

There is a Welfare Rights and Legal Centre in Canberra that provides services to South West NSW:

Phone: (02) 6247 2177
Fax: (02) 6257 4801
Teletypewriter (TTY): (02) 6247 2018
E-mail: wrlc@netspeed.com.au
Street address: Havelock House
Gould Street
TURNER ACT
Postal address: PO Box 337
CIVIC SQUARE ACT 2608

7F.9: Right to get access to information

Under the Commonwealth Freedom of Information Act 1982 (FOI Act), if you are receiving payments and you wish to challenge a Centrelink decision, you have a right to get on request:

  • Copies of any statements of fact that you have made to Centrelink;
  • Copies of any documents that you have provided to Centrelink; and
  • Detailed reasons for any decision made by Centrelink.

However, the personal details of another person, and information judged by Centrelink to be prejudicial to your psychological wellbeing or prejudicial to the public interest will not be given to you.

You can make an FOI request for your Centrelink document in writing or using the form linked below. Click here for more information.

Click here for the Centrelink form to access or change information. 


 DISCLAIMER

  • The legal and other information contained in this Section is up to date to 6 July 2015
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
  • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.