SOCIAL SECURITY ACT 1991 - SECT 38B Notional continuous period of receipt of income support payments

SOCIAL SECURITY ACT 1991 - SECT 38B

  (1)   The object of this section is to treat a person in certain circumstances as having received an income support payment in respect of a continuous period even though the person did not actually receive such a payment during a part or parts of the period.

  (2)   A continuous period in respect of which a person has received income support payments can only start on a day on which the person is receiving such a payment and can only end on a day when the person is receiving such a payment, and the following provisions of this section have effect subject to this section.

  (3)   Subject to subsection   (4), in determining the continuous period in respect of which a person has received income support payments, any period of not longer than 6 weeks in respect of which the person did not receive an income support payment is taken to have been a period in respect of which the person received such a payment.

  (4)   If a person is taken, because of subsection   (3), to have received income support payments in respect of a continuous period of at least 12 months, then, in determining, as at a time after the end of that period of 12 months, the continuous period in respect of which the person has received income support payments, any period of not longer than 13 weeks in respect of which the person did not receive an income support payment is taken to have been a period in respect of which the person received such a payment.

  (5)   In determining for the purposes of subsection   (4) the length of a period in respect of which a person did not receive an income support payment, any part of the period that occurred immediately before the end of the period of 12 months referred to in that subsection is to be taken into account.

EXAMPLE OF APPLICATION OF SUBSECTION   (5)

Facts:

John receives an income support payment for 48 weeks. He is then employed for 14 weeks. After the 14 weeks he again begins to receive an income support payment. How does his break in payments affect the calculation of his continuous period of receipt of income support payments?

Application:

At the end of the first 4 weeks of John's employment he may be taken, under subsection   38B(3), to have received income support payments for a continuous period of 12 months because no longer than 6 weeks have elapsed since he actually received such a payment.

Therefore, as John may be taken to have accrued 12 months continuous receipt of income support payments, he may have a period, under subsection   38B(4), of not longer than 13 weeks without income support payments and still be taken to be in continuous receipt.

However, under subsection   38B(5), the period of not longer than 13 weeks allowed under subsection   38B(4) must include the period of 4 weeks that occurred immediately before, as well as the 10 weeks immediately after, John was taken to have accrued 12 months duration.

As his total period in which he did not receive income support payments was 14 weeks, it exceeds the 13 weeks allowed under subsection   38B(4). His continuous period in receipt of income support ceased, under subsection   38B(2), on the last day he received payment before he started employment.

A new period of continuous receipt of income support payments will begin when John resumes income support payments after his 14 week break.

  (6)   For the purposes of this section, a person who was receiving an income support payment is taken to have continued to receive the payment in respect of a period if:

  (a)   for the duration of the period, the person remained qualified to receive the income support payment by the operation of the exercise of the discretion under:

  (i)   section   516 of this Act as in force at a time before 20   September 1996; or

  (ii)   section   595 of this Act (disregard a period of employment);

    but the person's rate of payment was reduced to nil because of the operation of:

  (iii)   section   1067G, 1067L or 1068 of this Act; or

  (b)   the period was a compliance penalty period that applied to the person in respect of the income support payment; or

  (c)   subsection   547AA(1) or 615(1) applied to the person in respect of the income support payment for the duration of the period.

Note:   For income support payment see subsection   23(1).