Commonwealth Numbered Acts

SOCIAL SECURITY ACT 1991 No. 46, 1991 - SECT 5

5. (1) In this Act, unless the contrary intention appears:

"adopted child" means a young person adopted under the law of any place,
whether in Australia or not, relating to the adoption of children;

"dependent child" has the meaning given by subsections (2) to (9);

"exempt FA child" means:

   (a)  a dependent child under 18 in respect of whom a person is receiving:

   (i)  a family allowance supplement; or

   (ii) a double orphan pension; or

   (iii) a child disability allowance; or

   (iv) a rate increase in the person's social security or service pension or
        benefit which has been calculated by reference to the child; or

   (b)  a dependent child who has turned 18 in respect of whom a person would,
        but for the child being 18, receive:

   (i)  a family allowance supplement; or

   (ii) a double orphan pension; or

   (iii) a child disability allowance; or

   (iv) where the person is receiving a social security or service pension or
        social security benefit, a rate increase in the person's pension or
        benefit by reference to the child; or

   (c)  a dependent child who has turned 18 where a person or the person's
        partner:

   (i)  is not receiving family allowance supplement and lodges a claim for
        family allowance supplement; and

   (ii) is not precluded by the taxable income test from receiving family
        allowance supplement; in respect of the child.

"homeless person" means a person who:

   (a)  is not a member of a couple; and

   (b)  has no dependent children; and

   (c)  either:

   (i)  does not live, and for a continuous period of at least 2 weeks has not
        lived, at a home of the parents, or of a parent, of the person because
        the parents are not, or neither parent is, prepared to allow the
        person to live at such a home; or

   (ii) does not live at a home of the parents, or of a parent, of the person
        because domestic violence, incestuous harassment or other exceptional
        circumstances make it unreasonable to expect the person to live at
        such a home; and

   (d)  is not receiving continuous support, whether directly or indirectly
        and whether pecuniary or otherwise, from a parent of the person or
        from another person who is acting as the person's guardian on a
        long-term basis; and

   (e)  is not receiving, on a continuous basis, any payment in the nature of
        income support (other than a social security benefit) from the
        Commonwealth, a State or a Territory;

"independent young person" means a person who:

   (a)  does not live, and for a continuous period of at least 6 months has
        not lived, at a home of the parents, or of a parent, of the person;
        and

   (b)  has, at a time when the person was not living at such a home, been
        employed on a full-time basis for a period of, or for periods that
        total, at least 13 weeks; and

   (c)  does not receive regular financial support from a parent of the
        person;

"maintained child", in relation to a person, means a young person who:

   (a)  is not a dependent child of the person; and

   (b)  is being wholly or substantially maintained by the person;

"parent" means:

   (a)  in relation to a young person, other than an adopted child - a natural
        parent of the young person; or

   (b)  in relation to an adopted child - an adoptive parent of the young
        person; Note: for a modification of this definition in the parental
        income test applied to social security benefits see point 1067- G7 of
        Benefit Rate Calculator A.

"prescribed educational scheme" means:

   (a)  the AUSTUDY Scheme; or

   (b)  the ABSTUDY Schooling Scheme; or

   (c)  the ABSTUDY Tertiary Scheme; or

   (d)  the Assistance for Isolated Children Scheme; or

   (e)  the Veterans' Children Education Scheme; or

   (f)  the Post-Graduate Awards Scheme;

"prescribed student child" has the meaning given by subsection (11);

"receiving full-time education at a school, college or university" has the
meaning given by subsection (10);

"student child" means a person who:

   (a)  has turned 16 but who has not turned 25; and

   (b)  is receiving full-time education at a school, college or university;
        Note: see also subsection (10) (receiving full-time education).

"young person" means:

   (a)  a person who has not turned 16; or

   (b)  a person who:

   (i)  has turned 16 but not turned 25; and

   (ii) is receiving full-time education at a school, college or university.
        Note: see also subsection (10) (receiving full-time education).
        Dependent child - under 16

(2) Subject to subsections (3) and (6) to (8), a young person who has not
turned 16 is a dependent child of another person (in this subsection called
the "adult") if:

   (a)  the adult has the right (whether alone or jointly with another
        person):

   (i)  to have the daily care and control of the young person; and

   (ii) to make decisions about the daily care and control of the young
        person;
and the young person is in the adult's care and control; or

   (b)  the young person:

   (i)  is not a dependent child of someone else under paragraph (a); and

   (ii) is wholly or substantially in the adult's care and control.

(3) A young person who has not turned 16 cannot be a dependent child if:

   (a)  the young person is not in full-time education; and

   (b)  the young person is in receipt of income from employment; and

   (c)  the rate of that income exceeds $100 per week. Note 1: for a
        modification of this rule for sole parent pension qualification see
        subsection 250 (2). Note 2: this subsection is disregarded for the
        purposes of the following maintenance income test provisions:
. section 10 (see subsection 10 (2));
. Module F of Pension Rate Calculator A (see point 1064-F1A);
. Module F of Pension Rate Calculator C (see point 1066-F1A);
. Module J of Benefit Rate Calculator A (see point 1067-J2);
. Module H of Benefit Rate Calculator B (see point 1068-H1A);
. section 1116 (see subsection 1116 (7)). Note 3: the amount in paragraph (c)
is indexed annually in line with CPI increases (see sections 1191 to 1194).
Dependent child - 16 and over

(4) Subject to subsections (5) to (8), a young person who has turned 16 is a
dependent child of another person (in this subsection called the "adult") if
the young person is wholly or substantially dependent on the adult.

(5) A young person who has turned 16 cannot be a dependent child of another
person if the other person is the young person's partner. Dependent child -
pension and benefit recipients

(6) A young person cannot be a dependent child for the purposes of this Act
if:

   (a)  the young person is receiving a social security pension (other than a
        sheltered employment allowance); or

   (b)  the young person is receiving a social security benefit.
Note: "social security pension" includes a rehabilitation allowance and would
normally include a sheltered employment allowance as well (see subsection 23
(1)). Dependent child - residence requirements

(7) For the purposes of this Act (other than the provisions dealing with
special benefit), a young person is not to be treated as a dependent child of
another person (in this subsection called the "adult") unless:

   (a)  if the adult is an Australian resident:

   (i)  the young person is an Australian resident; or

   (ii) the young person is living with the adult; or

   (b)  if the adult is not an Australian resident:

   (i)  the young person is an Australian resident; or

   (ii) the young person has been an Australian resident and is living with
        the adult outside Australia; or

   (iii) the young person had been living with the adult in Australia and is
        living with the adult outside Australia.
Note: for "Australian resident" see subsection 7 (2).

(8) For the purposes of determining the maximum rate of special benefit under
subsection 746 (2), a young person is not to be treated as a dependent
child of another person (in this subsection called the "adult") unless:

   (a)  if the adult is an Australian resident:

   (i)  the young person is an Australian resident or a resident of Australia;
        or

   (ii) the young person is living with the adult; or

   (b)  if the adult is not an Australian resident:

   (i)  the young person is an Australian resident or a resident of Australia;
        or

   (ii) the young person has been an Australian resident and is living with
        the adult outside Australia; or

   (iii) the young person had been living with the adult in Australia and is
        living with the adult outside Australia.
Note: "Australian resident" is defined by subsection 7 (2) but "resident of
Australia" has its ordinary meaning and is not given any special definition by
this Act. Subsection 7 (3) is relevant to the question of whether a person is

"residing in Australia".

(9) For the purposes of Part 2.17, a young person who is an inmate of a
mental hospital is a dependent child of another person if a determination
under subsection 37 (1) in respect of the young person and the other person is
in force. Receiving full-time education - education leavers

(10) If:

   (a)  a person is under the age of 25 years; and

   (b)  the person ceases to receive full-time education at a school, college
        or university; and

   (c)  an unemployment benefit job search allowance or sickness benefit is
        not payable to the person because of an
        education leavers waiting period; the person is to be taken to be
        receiving full-time education at a school, college or university
        during the period for the purposes of this Act (other than sections
        541, 542, 612, 613, 684 and 685).
Note: for "education leavers waiting period" see subsection 23 (1).
Prescribed student child

(11) A person is a prescribed student child if:

   (a)  the person is a young person who has turned 16; and

   (b)  the young person is qualified to receive payments under a prescribed
        educational scheme.

(12) For the purposes of subsection (11), a young person is, subject to
subsection (13), qualified to receive a payment under a prescribed educational
scheme if:

   (a)  the young person is receiving a payment under a prescribed educational
        scheme; or

   (b)  someone else is receiving, in respect of the young person, a payment
        under a prescribed educational scheme; or

   (c)  the Secretary has not formed the opinion that:

   (i)  the young person will not, or would not if an application were duly
        made, receive a payment under a prescribed educational scheme; and

   (ii) no other person will, or would if an application were duly made,
        receive, in respect of the young person, a payment under a prescribed
        educational scheme.

(13) For the purposes of subsection (11), a young person is not qualified to
receive a payment under a prescribed educational scheme if:

   (a)  the young person is not receiving a payment under a prescribed
        educational scheme; and

   (b)  no other person is receiving, in respect of the young person, a
        payment under a prescribed educational scheme; and

   (c)  the Secretary is satisfied that the educational scheme rate would be
        less than the social security rate.

(14) For the purposes of subsection (13):

   (a)  the educational scheme rate is the total of the amounts that would be
        payable to or in respect of the young person under the
        prescribed educational scheme; and

   (b)  the social security rate is the total of the amounts that would, if
        the young person were not a prescribed student child, be payable
        in respect of the young person by way of:

   (i)  dependent child add-on;

   (ii) guardian allowance;

   (iii) family allowance;

   (iv) family allowance supplement.

(15) A child is a pension increase child of a person if:

   (a)  the person's pension rate includes a dependent child add-on for the
        child; or

   (b)  the person's partner's social security or service pension rate
        includes a dependent child add-on for the child.

(16) A child is a benefit increase child of a person if:

   (a)  a person's benefit rate includes a dependent child add-on for the
        child; or

   (b)  the person's partner's social security benefit rate includes a
        dependent child add-on for the child.