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Under the Ombudsman Act 1976 (Cth), the Commonwealth Ombudsman investigates the administrative actions of Australian Government agencies and officers. An investigation can be conducted as a result of a complaint or on the initiative (or own motion) of the


The Ombudsman Act 1976 confers six other roles on the Commonwealth Ombudsman—the role of Defence Force Ombudsman, to investigate action arising from the service of a member of the Australian Defence Force; the role of Immigration Ombudsman, to investigate action taken in relation to immigration (including immigration detention); the role of Postal Industry Ombudsman, to investigate complaints against private postal operators; the role of Taxation Ombudsman, to investigate action taken by the Australian Taxation Office; the role of Overseas Students Ombudsman, to investigate complaints from overseas students about private education providers in Australia; the role of Law Enforcement Ombudsman, to investigate conduct and practices of the Australian Federal Police (AFP) and its members.

There are special procedures applying to complaints about AFP officers contained in the Australian Federal Police Act 1979. Complaints about the conduct of AFP officers prior to 2007 are dealt with under the Complaints (Australian Federal Police) Act 1981 (Cth).

Most complaints to the Ombudsman are resolved without the need for a formal report. The Ombudsman can, however, culminate an investigation by preparing a report that contains the opinions and recommendations of the Ombudsman. A report can be prepared if the

Ombudsman is of the opinion that the administrative action under investigation was unlawful, unreasonable, unjust, oppressive, improperly discriminatory, or otherwise wrong or

unsupported by the facts; was not properly explained by an agency; or was based on a law that was unreasonable, unjust, oppressive or improperly discriminatory. A report can also be prepared to describe an investigation, including any conclusions drawn from it, even if the Ombudsman has made no adverse findings.

A report by the Ombudsman is forwarded to the agency concerned and the responsible minister. If the recommendations in the report are not accepted, the Ombudsman can choose to furnish the report to the Prime Minister or Parliament.

These reports are not always made publicly available. The Ombudsman is subject to statutory secrecy provisions, and for reasons of privacy, confidentiality or privilege it may be

inappropriate to publish all or part of a report. Nevertheless, to the extent possible, reports by the Ombudsman are published in full or in an abridged version.

Copies or summaries of the reports are usually made available on the Ombudsman website at www.ombudsman.gov.au. Commencing in 2004, the reports prepared by the Ombudsman (in each of the roles mentioned above) are sequenced into a single annual series of reports.

ISBN 978-0-9807966-4-3 Date of publication: June 2012

Publisher: Commonwealth Ombudsman, Canberra Australia

© Commonwealth of Australia 2012

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Australian Government, available from the Attorney-General‘s Department.

Requests and enquiries concerning reproduction and rights should be addressed to the Commonwealth Copyright Administration, Copyright Law Branch, Attorney-General‘s Department, National Circuit, Barton ACT 2601, or posted at http://www.ag.gov.au/cca.

Requests and enquiries can be directed to the Director Public Affairs, Commonwealth Ombudsman, GPO Box 442, Canberra ACT 2601; email [email protected] or phone 1300 362 072 (calls from mobiles charged at mobile phone rates). This report is available on the Commonwealth Ombudsman‘s website http://www.ombudsman.gov.au.


Scope and methodology of Investigation ... 5

The Taskforce and subsequent improvements in administration ... 6


Background ... 8

Key issues ... 9

Lawfulness of decisions ... 9

Duration of FV exemption refusal decisions ... 11

Quality of decisions ... 12

Reviews not actioned or of a poor quality ... 16

The policy guiding FV IM exemption decisions ... 18

Taskforce review findings ... 18

Ombudsman summary ... 20


Background ... 21

Key issues ... 28

Lawfulness of decisions ... 28

Quality of decisions ... 30

Internal review processes ... 34

Dealing with customers with diminished capacity... 35

The policy guiding VWPR determinations ... 36

Taskforce review findings ... 37

Ombudsman summary ... 38


Lack of reasons and other relevant information ... 39

Lack of review rights information ... 41

Inaccurate or unclear information ... 41

Taskforce review findings ... 43

Ombudsman summary ... 43


Financial vulnerability decisions ... 45

Vulnerable welfare payment recipient decisions ... 47

Quality of letters ... 50



Financial vulnerability recommendations ... 53

Vulnerable Welfare Payment Recipient recommendations ... 54



Income Management (IM) has applied in the Northern Territory (NT) since 2007. IM is designed to ensure that income support payments are used to pay for necessary goods and services rather than discretionary items and activities. Initially targeting Indigenous Australians living in remote and very remote communities, it has been applied across the entire NT, depending on a person‘s payment circumstances, since mid-2010.

This report details reviews of two areas of Centrelink‘s IM decision making, namely:

a) decisions to refuse to exempt people from IM because Centrelink has formed the view that there have been indications of financial vulnerability in the past 12 months

b) decisions to apply IM to people because Centrelink social workers have assessed those people as vulnerable welfare payment recipients (VWPRs).

IM decisions have far-reaching consequences for affected people, who are often geographically remote or isolated and among the least empowered to pursue review rights or complaints mechanisms. They may also be disadvantaged by language, literacy and knowledge barriers. To safeguard the rights of these people, Centrelink‘s IM decisions must comply with all legislative requirements, be supported by sound evidence and rigorous assessment, and meet policy objectives.

We reviewed IM decisions made by Centrelink between August 2010 and March 2011, finding a need for significant improvement in the two areas described above.

Some of the decisions we reviewed did not address all of the required legislative criteria and lacked a sound evidence base. In addition, the letters designed to explain decisions were inadequate and unclear and failed to inform Centrelink customers of their review rights.

Part way through our investigation, we wrote to the Department of Human Services (DHS) (herein referred to as Centrelink)1 and the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) detailing our preliminary concern that decisions to refuse IM exemptions because of financial vulnerability might not comply with the legislation. The agencies were comprehensive in their response. Centrelink established a Taskforce to examine the issues and reported its findings and recommendations to our office in November 2011.

While we commend the agencies for their work, a range of issues arising from the decisions we reviewed were not addressed by the Taskforce and remained of concern to this office. We made recommendations accordingly. The agencies

responded to our recommendations, providing details of the significant steps already taken to improve the administration of IM. These changes addressed a number of the problems evident in the decisions we reviewed. Other solutions are still being

implemented. We will ask the agencies for an update of their progress in response to our recommendations, including examining revised decision-making processes, three months after this report is published.

Part 1 of this report sets out the background to the current IM regime and the methodology underpinning our review. Part 2 details our assessment of financial vulnerability decision making; outlines the findings of the Taskforce in relation to those decisions; and makes recommendations for further improvements to financial vulnerability decision making. Our concerns and recommendations about VWPR

1 When we commenced this investigation, the responsible agency was Centrelink.

Subsequently, Centrelink was incorporated into the Department of Human Services (DHS).

For clarity, we will continue to refer to the agency as Centrelink throughout this report.

Reference to Centrelink should be read as reference to DHS.


decisions, as well the views of the Taskforce, are set out in Part 3 of this report. Part 4 discusses problems with Centrelink‘s letters to customers affected by both types of decisions and includes the Taskforce‘s views on this issue. Part 5 summarises our recommendations and Part 6 details Centrelink‘s and FaHCSIA‘s responses to our recommendations. Appendix 1 is the complete list of the Taskforce‘s



1.1 Income Management (IM) enables Centrelink to retain and manage at least 50% of a person‘s income support payments. The intention is to ensure that the priority needs of people, particularly children, are met through the proper expenditure of income support money.2 The managed funds can only be allocated to priority goods and services, such as housing, clothing, food, utilities, education and health care. Managed funds cannot be used to purchase prohibited goods such as alcohol, gambling products, tobacco or pornography. The remaining portion of a person‘s income support is available for that person to use as they wish.

1.2 The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) is responsible for IM policy, while Centrelink, as part of the Department of Human Services (DHS), is responsible for IM service delivery. The legislative framework for IM requires agencies to have regard to principles of administration, including: the special needs of disadvantaged groups in the

community; the need to be responsive to the interests of Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; the importance of the system of review of decisions under social security law; and the need to ensure that social security recipients have adequate information regarding the system of review of decisions under that law.3

1.3 IM was introduced into the Northern Territory (NT) as part of the 2007 Northern Territory Emergency Response (NTER).4 While IM in the NT was initially limited to 73 Indigenous communities, associated outstations and certain town camp areas,5 in mid-2010 it was progressively expanded across the whole of the NT, including Alice Springs and Darwin.6 Since mid-2010, IM in the NT has targeted specific groups of Centrelink customers considered to be at high risk of social isolation and disengagement, poor financial literacy and participation in ‗risky

behaviours‘.7 When we commenced this investigation, more than 16,500 people were subject to new IM; approximately 12,000 were on compulsory IM.8 Broadly, under the current NT program, a social security recipient who usually lives in the NT will come within the scope of IM if they fall into one of the following categories of Centrelink customers:

 Disengaged youth—customers between 15 and 24 years old who have been in receipt of one of the following payments for three of the last six months:

o youth allowance o newstart allowance o special benefit o parenting payment

2 See s 123TB of the Social Security (Administration) Act 1999.

3 Sections 8(b) to (e) of the Social Security (Administration) Act 1991.

4 The NTER was announced by the Australian Government on 21 June 2007 and legislation in support of it was passed in August 2007.

5 Initially, 73 Indigenous communities were specifically covered by the measures set out in the Northern Territory National Emergency Response Act 2007.

6 The new IM model followed the passing of the Social Security and Other Legislation (Welfare Reform and Reinstatement of the Racial Discrimination Act) Amendment Act 2010.

Under s 123TFA of the Social Security (Administration) Act 1999, the Minister may declare any specified state, territory or area to be a declared an income management area.

7 http://www.fahcsia.gov.au/guides_acts/ssg/ssguide-11/ssguide-11.1/ssguide- 11.1.1/ssguide-

8 FaHCSIA, NTER situation report as at 31 March 2011.


 Long-term welfare payment recipient—customers aged 25 years or more who have been in receipt of one of the following payments for more than one year of the last two years:

o youth allowance o newstart allowance o special benefit o parenting payment

 Vulnerable welfare payment recipient (VWPR)—anyone a Centrelink social worker has assessed to be a VWPR

 customers subject to the Child Protection IM measure—customers who are referred for IM by NT child protection authorities

 Voluntary Income Management (VIM) customers—people who volunteer for IM.

1.4 Centrelink manages 50% of the income support of those people included in the disengaged youth, long-term welfare payment, VWPR and VIM categories. Those subject to the Child Protection IM measure have 70% of their payments managed. In all cases, 100% of any lump sums or advance payments are managed.

1.5 People in the disengaged youth or long-term welfare payment recipient categories can ask Centrelink to exempt them from IM. To be exempted from IM, people in these categories who do not have dependent children must satisfy

Centrelink that they are undertaking certain activities such as full-time study, or they have worked a minimum of 15 hours or more per week for at least six of the last 12 months and been paid at least the minimum wage.

1.6 People with at least one dependent child must also satisfy Centrelink that:

 there were no indications of financial vulnerability in the 12 months before they applied for an exemption (this is referred to as the financial vulnerability (FV) test)

 each school-aged child is enrolled in, and has attended, school for the past two terms (with no more than five unexplained absences in a school term)

 each child under school age participates in age-appropriate childhood services and activities.

1.7 This report focuses on two types of IM decisions in the NT:

 decisions to refuse to exempt people from IM who are in the disengaged youth or long-term welfare payment recipient categories, and who have dependent children, on the basis that they do not pass the FV test (FV decisions)

 decisions to subject people to IM because a social worker has determined the person comes within the VWPR category (VWPR decisions).

1.8 We selected these types of decisions for investigation after an NT community legal service brought to our attention examples of problematic decisions. These examples reinforced concerns identified in the course of observations by this office during the rollout of new IM in 2010.


1.9 It should be noted that under the 2011–12 Budget, the VWPR, VIM and Child Protection IM measures will be extended to five new locations on 1 July 2012.9

1.10 In February 2011, the Ombudsman commenced an own motion investigation into Centrelink‘s decision-making processes and reasons in relation to these two types of IM decisions.10 In March 2011, we asked Centrelink how many people had been the subject of Centrelink decisions to refuse an exemption because of the FV test or to apply IM under the VWPR measure. We were given the details for 171 customers who had been refused an exemption because of the FV test, which we understand was out of more than 1,000 people who applied. Centrelink also provided the details of 237 customers who had IM applied to them under the VWPR measure.

Of these 408 customers who were subject to IM, 383 (93%) identified as Indigenous.11

1.11 We selected a 25% sample of each type of decision (40 affected by FV decisions and 59 affected by VWPR decisions) and requested from Centrelink all relevant records pertaining to these cases, including correspondence and decisions made after internal review or reconsideration. In July, Centrelink started providing the records; final material was received by this office in late September 2011.

1.12 The decisions in our sample were all made between August 2010 and March 2011. We reviewed the records of these decisions using an assessment tool that focused on how the FV test or VWPR decision was made, whether legislative and policy requirements had been met, and the quality of decision letters. We did not assess whether the outcome of the decision was correct or preferable, other than to the extent that the outcome may have been adversely influenced by problematic decision-making processes.

1.13 In assessing the decision records, we also had regard to the Administrative Review Council‘s Best Practice Guides12 and general administrative principles. Key among these are that evidence and decisions must be carefully and fully

documented, all relevant considerations must be addressed (including mandatory considerations listed in legislation) and irrelevant considerations must not be taken into account.

1.14 It should be noted that we did not investigate Centrelink‘s decisions about the stage of the exemption process for people with dependent children that follows the FV test. That is, whether the child or children participate in certain activities,

depending on their age, such as kindergarten and regular school attendance. This is a matter that the Australian National Audit Office (ANAO) may consider in its

upcoming audit of the management of IM.13

9 The new locations are Bankstown, New South Wales; Logan, Queensland; Rockhampton, Queensland; Playford, South Australia; Shepparton, Victoria. See

http://www.humanservices.gov.au/corporate/publications-and- resources/budget/measures/payments-and-services/ptf6a.

10 Pursuant to s 5(1)(b) of the Ombudsman Act 1976.

11 Of the VWPR group, 222 identified as Indigenous, seven identified as non-Indigenous and three did not indicate. Of the financial vulnerability exemption refusal group, 161 identified as Indigenous and 10 identified as non-Indigenous.

12 See, for example, Best Practice Guide 1: Decision Making: Lawfulness (August 2007), Best Practice Guide 3: Evidence, Facts and Findings (August 2007) and Best Practice Guide 5: Decision Making: Accountability (August 2007) at


13 http://www.anao.gov.au/Publications/Audits-in-Progress/2012/Winter/Centrelinks- Administration-of-Income-Management-Services.


The Taskforce and subsequent improvements in administration

1.15 We reviewed the FV decisions first. In September 2011, we wrote to

Centrelink and FaHCSIA about our preliminary concerns that these decisions might not comply with the legislation. We also informed the agencies that we were

concerned about:

 failures to include review rights in decision letters

 insufficient reasons for decisions in decision letters

 incorrect or inaccurate information in letters

 inadequate communication, including the failure to use interpreters

 requests for exemption not actioned

 failures to commence reviews, particularly during the period when Centrelink was under instructions from FaHCSIA that FV exemption refusal decisions operated for 12 months.

1.16 Both agencies responded in September 2011 and Centrelink established a Taskforce (the Taskforce) to review all of the FV refusal decisions and 25% of the VWPR decisions made between August 2010 and September 2011. The Taskforce was established with the following Terms of Reference:

1. Review all vulnerability IM decisions made since 9 August 2010 to ensure they meet administrative decision-making standards or whether they may be susceptible to a finding of invalidity by a court.

2. Review all vulnerability decision-making tools and processes to ensure they reflect the legislative and policy requirements and assist in assessing and determining customer vulnerability.

3. Review and provide advice regarding the training provided and training packages to vulnerability decision makers.

4. Provide advice on a quality framework to be adopted for IM decisions.

5. Provide advice to the National Manager, Deduction and Confirmation

Services Branch (NM, D&CSB), for input into future strategic directions for IM.

6. Provide advice and suggestions, as appropriate to NM, D&CSB and Service Leader Northern Australia regarding ongoing servicing of IM in the NT.

1.17 The Taskforce reviewed 167 FV decisions and a sample of 79 social worker VWPR decision reports.14 Centrelink provided the Taskforce‘s report to our office in November 2011. The Taskforce‘s recommendations are at Appendix 1. It made 13 recommendations concerning FV decisions and eight recommendations about VWPR decisions. These include four recommendations about letters.

14 Centrelink referred 16 FV decisions back to the decision-making team. Of these, five resulted in exemptions, two were reassessed but affirmed, three customers advised they would reapply for exemption at another time, two were out-of-scope due to changed circumstances, three customers did not want to seek exemption and one very remote

customer had not engaged with the team. Sixteen VWPR decisions were referred back to the decision-making team. Of these, nine social worker reports that were incomplete were subsequently completed, three reports that had insufficient evidence were reassessed and finalised, three cases required pre-exit assessment as the VWPR notice had expired and one report was confirmed. More details about the Taskforce‘s review and findings are at

paragraph 2.40.


1.18 We commend Centrelink for its decision to set up the Taskforce. It was an expeditious response to our concerns that demonstrates a commitment to improving services to the public and ensuring these sensitive decisions give effect to the legislation underpinning them. The Taskforce‘s report shows that it gave careful consideration to a range of issues involved in the decision-making process, from policy guidance to systems support and training. We also note that the Taskforce conducted interviews with staff.

1.19 The agencies continued to work on improving IM administration while our investigation continued. As a result of the Taskforce review of FV decisions, Centrelink recontacted each of the 167 customers to inform them of their review rights. It also engaged with community legal services about the action it was taking.

In December 2011, a Centrelink team reviewed all of the VWPR decisions in place at the time to ensure that all mandatory considerations were documented, decisions were supported by evidence and the policy intent of VWPR IM had been met. The review involved 137 cases that comprised 268 reports.15 The lessons from that review have led to the implementation of quality standards, use of a quality decision- making checklist and a change in the process whereby a senior social worker is required to review VWPR decisions before they are implemented.

1.20 Other significant improvements about which we have been informed include revised decision-making tools for FV and VWPR decisions, updated reference

material and training packages, training for 300 staff in the NT and letters that include relevant review information. Further improvements to letters and IT systems

supporting decision makers are scheduled. These changes and others are detailed further in the agencies‘ responses to the recommendations listed in Part 5 of this report.

1.21 We acknowledge these reforms and appreciate that the agencies continued to work on the problems in the FV and VWPR programs while we conducted our investigation. This approach was in the best interest of customers who continued to be affected by these programs.

1.22 It is therefore important to reiterate that the observations in this report arise from our consideration of a cohort of decisions made between August 2010 and March 2011. We recognise that the agencies have revised and improved many of the decision-making processes since we first raised our concerns. Nonetheless, where we identified problems arising from our review of decisions, we have made

recommendations aimed at improving ongoing decision making. It is evident from the agencies‘ responses to these recommendations that the work they have already done is well placed to address the issues we have identified. However, we cannot determine whether the changes have worked until they have been fully implemented.

For this reason, we will ask the agencies for an update of their progress in

responding to our recommendations and take the opportunity to examine the revised decision-making processes three months after this report is published.

15 Centrelink advised that of the 265 reports, 73 required further work.


2.1 The FV test is the first hurdle for customers with dependent children seeking an IM exemption. Centrelink has established a specialist team to decide whether people pass the FV test. Consequently, these decisions are usually made during phone interviews with customers located some distance from the decision maker.

2.2 Centrelink is required to comply with social security law when it makes FV test decisions.16 The Social Security (Administration) Act 1999 (the Administration Act) requires Centrelink to be satisfied that there were no indications of financial vulnerability in the 12 months before a person applied for the exemption. It also requires the Centrelink decision maker to comply with the legislative instrument made by the Minister17 when deciding whether to exempt a person from IM. The applicable instrument is the Social Security (Administration) (Exempt Welfare Payment

Recipients – Persons with Dependent Children) (Indications of Financial Vulnerability) Principles 2010 (the Principles).18

2.3 The Principles state that each of the following items listed under ‗Details‘ must be considered by the decision maker.

Heading Details Financial


a) whether the person experienced financial exploitation during the relevant period.19

Priority needs b) what the priority needs of the person and the person‘s specified dependants were during the 12 months prior to the decision, and

c) whether, during that period, the person applied appropriate resources to meet some or all of those priority needs.20 Money

management strategies

d) what strategies (if any and however described) the person used, during the relevant period, to manage their financial resources, and

e) whether it is likely that the person will continue to use those strategies, or similar strategies to manage their financial resources in the foreseeable future.21

Changes to welfare payment arrangements

Urgent payments

f) whether the person received more than one payment in relation to their social security entitlement in any fortnight during the preceding 12 months, and the reasons for each of those payments, and

16 Section 123UGD of the Administration Act gives Centrelink the power to exempt a person from IM. In doing so, s123UGD(1)(d) requires the decision maker to be satisfied ‗that there were no indications of financial vulnerability in relation to the person during the 12-month period ending immediately before the test time‘. The test time is when the exemption decision is made.

17 Minister for Families, Housing, Community Services and Indigenous Affairs.

18 Section 123UGD(5).

19 Per clause 5 of the Principles. The Principles provide a definition of financial exploitation at clause 3(2).

20 Per clause 6 of the Principles. Priority needs are defined in s 123TH of the Administration Act.

21 Per clause 7 of the Principles. The Principles include a non-exhaustive list of example strategies.


g) the reasons for rejection if the person requested more than one payment in any fortnight in those 12 months, and that request was rejected.22

Changes to payment payday

h) how many times (if ever) the person requested that their usual social security payment payday be changed in the last 12 months, and reasons for each request.23

2.4 All of the points from a) to h) at paragraph 2.3 are mandatory considerations that must be addressed and documented by the decision maker when they assess whether a person passes or fails the FV test.

Lawfulness of decisions

2.5 Given the strict legislative framework, we envisaged that Centrelink‘s

documents would clearly demonstrate that decision makers had turned their minds to each of the mandatory considerations, as well as recording their views on, and the weight given to, the evidence relevant to each of those considerations.

2.6 Centrelink‘s decision makers use a decision-making tool called Financial Vulnerability Overview, which is part of Centrelink‘s ‗Compulsory Income

Management Exemption Workflow‘ (CIMEW). At the time that the decisions we reviewed were made, the CIMEW did not properly reflect the mandatory

considerations. Instead, the CIMEW listed a range of factors or headings that decision makers should consider. Supporting policy suggested discussion points under each of the headings to guide conversations with customers.

2.7 We identified a range of problems with the CIMEW and how it was used to make decisions. Of most significance, it did not replicate the mandatory

considerations set out in the Principles or enable the decision maker to properly demonstrate that they had taken the mandatory considerations into account. While the headings and accompanying questions provided useful discussion points for gathering information relevant to the Principles, they did not, in their own right, amount to proper consideration of the Principles. Example 1, which is the full record of a decision made in relation to an IM exemption request, demonstrates Centrelink‘s failure to address the mandatory considerations.

Example 1—failure to address mandatory considerations Financial Exploitation

Cus does say no to family members sometimes, only in emergency. Cus puts aside


Demonstrated budgeting and savings

cus has savings of $150, cus has centrepay deductions for rent & electricity, cus spends $200 every fortnight, cus advised that electricity has been disconnected in the 12mnths twice, therefore exemption will be rejected as cus is financial vulnerable Centrepay deductions

Centrepay deduction has been used for her bills Income management

22 Per clause 8 of the Principles.

23 Ibid.


BasicsCard replacements

Declined BasicsCard transactions Entitlement period end date changes Urgent payment applications


Approved money management or other approved course

2.8 Several mandatory considerations were not captured in this decision:

 what were the priority needs of the customer and their dependants during the preceding 12 months

 did the person apply appropriate resources to meet some or all of those priority needs in the preceding 12 months

 what strategies did the person use to manage their finances in the preceding 12 months

 will they continue to use those strategies?

It is not noted in the decision when the electricity was disconnected, so it is not clear whether this occurred within the preceding 12 months. If the two incidents predated this period, they would not have been relevant.24 The circumstances leading to disconnection were undocumented, so it is unclear if the customer was even responsible for their electricity being disconnected.

2.9 Example 1 demonstrates a common problem in the decisions we reviewed, which is that no information was recorded under some of the headings. This was the only record of both the telephone conversation between Centrelink and the customer seeking an exemption, and the decision itself, making it impossible to determine whether the other headings were discussed with the customer and/or whether the customer‘s responses were regarded by the decision maker to be irrelevant to the decision. It would appear that the mandatory consideration regarding ‗how many times (if ever) the person requested that their usual social security payment payday be changed in the last 12-months, and reasons for each request‘, under the heading

‗Entitlement period end date changes‘ was not addressed.

2.10 We also noted that while the policy guides (FaHCSIA‘s Guide to Social Security Law and Centrelink‘s e-Reference) refer to relevant definitions from the Principles and the Act, such as ‗priority needs‘, ‗financial exploitation‘ and ‗specified dependants‘, the CIMEW decision-making tool did not. It was not apparent in the decisions that we reviewed that decision makers satisfied those definitions or that the tool properly supported them to make quality and lawful decisions.

2.11 During our investigation we examined whether the decisions, as evidenced by the decision records, addressed all of the mandatory considerations specified by legislation and were supported by relevant evidence. In our view, where it was not apparent from the face of the record that all of the mandatory considerations had been addressed, the resulting decision could be susceptible to legal challenge.

24 From around March 2011, Centrelink commenced documenting the dates of relevant events in these decisions. None of the decisions in our sample post-date this change in practice.


2.12 Put simply, each of the mandatory considerations listed in the Principles is a relevant consideration. If there is no evidence on the record that a relevant

consideration was taken into account in making a decision, then the lawfulness of that decision is open to challenge, irrespective of the appropriateness of the outcome of the decision.

Duration of FV exemption refusal decisions

2.13 In researching the legislation and policy guidance about FV decisions, we noticed that the legislation did not explain how long an FV exemption refusal decision would be in effect. In theory, a person refused an IM exemption because there were indications of FV in the preceding 12 months could apply for an exemption again as soon after the refusal and as often as they wished. A person refused an IM

exemption could successfully reapply if the events that caused the first refusal were, with the passage of time, more than 12 months old.

2.14 Contrary to this, FaHCSIA‘s policy originally stated that each FV exemption refusal decision applied for 12 months.25 Our review revealed that it was common for Centrelink staff to inform people who were refused an exemption because of the FV test that they could not apply for another exemption for 12 months from the date of the refusal decision. It was also common for Centrelink to inform people who contacted it about reapplying for an exemption within 12 months of the previous rejection that they could not do so. There was no basis in law for this advice and it was unfair to those Centrelink customers who were deprived of the opportunity to make further exemption requests.

2.15 We raised this issue with both agencies at a meeting in March 2011. We were informed that FaHCSIA had revised this instruction so that it no longer advised that exemption decisions were applicable for 12 months. Centrelink started applying this revised instruction in April 2011.

2.16 When this policy change was made, Centrelink reviewed the decisions it had made to refuse exemptions because of the FV test to determine which customers needed to be informed of the change. In conducting this review, it became apparent to Centrelink that decision makers had not been noting the dates of key events in their decisions. Centrelink advises that it now records the dates of events in its decisions. This is a necessary change as it is possible that decision makers had been including events that predated the relevant 12-month period.

2.17 However, we would caution that, in the experience of this office, many

Indigenous Australians in remote communities may not account for, or monitor, dates or periods of time in the same way, or with the specificity, that might be displayed by others. Decision makers need to be careful to test the dates provided to them, clearly explain the significance of dates of events in the 12-month period and ensure that there is effective two-way communication. This may require interpreters.

25 Guide at http://www.fahcsia.gov.au/guides_acts/ssg/ssguide-11/ssguide- 11.1/ssguide-11.1.14/ssguide- originally stated ‗if a person is found to be financially vulnerable, they would not be eligible for an exemption for another 12 months from the time the test took place‘. It was revised to remove any suggestion that a failed financial vulnerability test had effect for any length of time.


Quality of decisions

2.18 At a minimum, FV decisions should meet contemporary administrative standards, such as those detailed by the Administrative Review Council in its best practice guides.26 However, many of the decisions in the sample we reviewed lacked adequate detail to determine when key events occurred. There was no evidence that competing considerations had been weighted and balanced in making decisions, and the CIMEW decision-making tool lacked the space for an overall assessment to be made and recorded.27

Example 2—lack of proper consideration Financial Exploitation

Cus advised, cus can say No to family member when they ask for money.

Demonstrated budgeting and savings

Cus advise buys food and power card - $100 on food, $80 on power card. Cus advised has $70 left over cash in hand.

Centrepay deductions

Cus was not aware of centrepay explained to cus about centrepay will setup if granted.

Income management

Cus advised looking for work at the school.

BasicsCard replacements

Cus advise does not give her basic card to family members, keeps her pin safe.

Declined BasicsCard transactions

Cus has too many declined transaction. Cus has advised does not check her balance before she goes shopping. Cus could not give explanation in regards to why she had a few incorrect pin numbers.

Entitlement period end date changes Cus advised in hardship.

Urgent payment applications Nil

Approved Money Management Course

2.19 In this decision, positive and negative financial vulnerability indicators were not balanced. The decision maker made judgements such as ‗cus had too many declined transaction(s)‘ without explaining how many transactions constituted too many and why. The decision maker did not record how many transactions were declined or whether any or all of the declined transactions were in the relevant 12- month period. The notation under ‗Entitlement period end date changes‘ does not make sense or indicate if there have been any such changes.

2.20 Centrelink needs to exercise caution when considering declined BasicsCard transactions to assess a person‘s financial vulnerability. For many people living in remote communities, checking their BasicsCard balance is not always easy. Often, the only mechanisms for doing so are contacting Centrelink directly or via a hotlinked phone, or through an IM kiosk machine, if one is available, before making a

purchase. Declined transactions are not, in themselves, indicative of failures to meet

26 See footnote 13.

27 Some decision makers utilised the final heading ‗Approved money management or other approved course‘ to record an overview assessment of the information.


priority needs. A customer may not know how to check their BasicsCard balance28 or have access to the means to do so. In example 2, the decision did not take into account other Centrelink information that showed the customer regularly transferred funds to their BasicsCard shortly after a declined transaction. The latter information suggests that the person had sufficient funds to make their purchase and the difficulty rested, instead, with the workings of the BasicsCard.

2.21 The decisions we reviewed did not show that decision makers complied with FaHCSIA‘s policy guidance. FaHCSIA‘s Guide explains that:

‘ … a number of indicators should be considered to build an overall picture of a person’s financial circumstances, to assess whether they are able to meet their priority needs and those of their family, to manage their money, and to be safe from financial exploitation in the absence of income management … Each factor may or may not indicate financial vulnerability,

depending on the discussion with the person. Some factors will not be relevant to the person, or the delegate may have no evidence about a particular factor … The delegate will document the discussion with the person and balance the factors, to make a decision as to whether there were indicators of financial vulnerability in the previous 12 months.’29

2.22 This is reinforced in Centrelink‘s e-Reference, which states:

‘Do not give any weight to specific indicators or use them as a checklist. Only consider indicators that are relevant to the customer.

Use the indicators to establish an overall impression of the customer’s financial circumstances.

They are not used to indicate financial vulnerability but are designed to identify whether the customer has been managing their money effectively and have [sic] met any financial challenges.’30

2.23 Another problem with the CIMEW decision-making tool was that it combined into one document the decision maker‘s views, information from the customer and Centrelink‘s own records. Consequently, as the extracts of the decision in the following example show, the boundaries between the sources are unclear, making it difficult to determine the origin and status of the evidence. The shorthand and brevity of the notes compound the deficiencies in this record.

Example 3—combining all sources of information Financial exploitation

doc 29/10 ―Do not issue BCard to this customer without discussing in regards to family having access‖ Gives out $50-100/ft to family. Gives out BC. Gives out PIN.

BC not taken, only given out. Can hear voices in background, being coerced?

Demonstrated budgeting and savings

budget=maybe? Evicted=yes, within year? Stretch=no food=‗saving‘? lg_bill=not pay bills=usually not pay

2.24 In the interests of good record keeping, clarity and sound decision making, it is important that Centrelink separately document conversations with customers and third parties and appropriately reference this information in its decision records.

28 Feedback to our office is that many customers, particularly the elderly, find it difficult to check their balances, use the automated services or gain access to a Centrelink office to facilitate this. Instead, people choose to use their BasicsCard and remove things from their groceries if the transaction is declined. People will not realise the consequences that such an approach may have to future IM exemption requests and their ability to pass the FV test.

29 Guide to Social Security,

30 At 003.72050.


2.25 Several of the decisions we reviewed indicated significant communication problems. Most of the customers were Indigenous Australians in remote and very remote locations, but only two of the decisions in the sample we examined referred to the need for an interpreter. In one, it was noted ‗does the customer require an

interpreter – no‘. In another, the decision maker noted on Centrelink‘s electronic records that ‗throughout interview I continually ask cus to confirm she understood the questions. Cus advised each time she understood what was being asked‘.

2.26 In April 2011, this office released a report about a lack of awareness of the need for, and skills in working with, Indigenous language interpreters.31 We

highlighted the widely acknowledged point that it is not appropriate to simply ask someone if they understand what is being said. The better approach is to ask the person to repeat, in their own words, what they believe was said or asked. This enables the English speaker to check understanding and address gratuitous concurrence.32 The FV test is usually conducted over the phone. It requires customers to discuss events in some detail, with reference to dates, money and topics that may be highly personal or make the customer feel uncomfortable, or which require them to have access to information that is not readily available or easily recalled. In these circumstances, even people with sound English language skills may have difficulty understanding and communicating with the Centrelink officer. It was apparent during the review that these issues affected the quality of the FV decisions we sampled.

2.27 FaHCSIA‘s Guide explains that:

‘Exemptions are available in cases where income management is not necessary because a person has met the broad outcomes that comprise the objectives of income management. That is, the person can demonstrate that they:

 are not experiencing hardship or deprivation and are applying appropriate resources to meet their families' priority needs,

 can budget to meet priority needs,

 are not vulnerable to financial exploitation or abuse, and

 are demonstrating socially responsible behaviour, particularly in the care and education of dependent children … ’33

2.28 We reviewed cases in which the information in the decision record, when viewed as a whole, indicated that IM may not have been necessary as the person was already demonstrating financial capability. For example, some decision makers appeared to take a ‗one strike‘ approach. Adverse information under just one heading in the CIMEW was treated as evidence that the customer had failed the FV test. As the following example shows, some of the factors relied on have a tenuous link to the mandatory considerations in the Principles.

31 Talking in language: Indigenous language interpreters and government communication, Report no. 5/2011, Available at http://www.ombudsman.gov.au/files/Talking_in_Language- Indigenous_Interpreters_REPORT-05-2011.pdf.

32 Gratuitous concurrence: when Indigenous Australians indicate agreement during a conversation in English in order to avoid embarrassment for either party. This can mask a failure to achieve true understanding and engagement.

33 See http://www.fahcsia.gov.au/guides_acts/ssg/ssguide-11/ssguide-11.1/ssguide- 11.1.14/ssguide-


Example 4—one strike and exemption is refused Financial exploitation

when i received my payment i buy food and something for (son‘s name). I can say no to my family when they ask for Money. My family always asked for money but I don‘t give, sometimes if i have enough I help and gave out $20.

Demonstrated budgeting and savings

no i dont budget, but i keep it to last a fortnight. i pay rent but already deducted on my pay. I dont use layby, i am working at the moment so when i have large bills i use my pay from work.

Centrepay deductions

no i have not use this payment option yet, but I know its available Income management

yes i set up some regular expenses, i can manage without IM i can pay on cash and money in the bank with my expenses, my regular are foods, school foods for (son‘s name), clothes, housing and sometime plane tickets, I normally pay cash.

BasicsCard replacements

i was doing a walk and lost my basic cards so I request for replacement.

Declined BasicsCard transactions

yes it happens, so many times, i enter wrong pin number and sometimes no money in BC. I use my keycard then, sometimes i put away the items. Customer record show too many declined BC transactions for cus. I advised customer that she should check her BC balance first before going to purchase and use the card and keep her pin number safe. I advised customer that her application will be rejected due to this Entitlement period end date changes

Urgent payment applications

i have not done EBT but i check for my advance loans if available to me, because sometimes i don‘t work i need to get foods and clothes. I am on leave holiday at the moment and my centrelink pay is not enough for the fortnight.

Approved money management or other approved course

2.29 In our view, the number of times BasicsCard transactions have been refused can only be relevant to the money management Principle (items d) and e) in the table in paragraph 2.3). Yet the decision maker did not link this aspect back to that

Principle or attempt to balance competing, favourable information. Instead, it appears the decision maker refused the exemption on the basis of declined BasicsCard transactions alone.

2.30 We also observed that few decision makers took the opportunity to refer customers to money management courses. It would seem to us that all customers who fail an FV test would benefit from one of these courses, yet there was scant evidence in the cases we examined that such referrals were routinely made.

Recommendation 1

Centrelink should separately document conversations it has with customers seeking exemptions and with any third parties who are contacted for the purpose of informing FV decisions. The FV decision should appropriately reference those separate



Reviews not actioned or of a poor quality

2.31 During our investigation, we noted numerous cases in which customers‘

requests for exemption had not been actioned. Case study 1 provides an example of two typical causes—an incomplete FV test assessment and the application of the erroneous 12-month rule. This case study also suggests that Centrelink needs to improve its communication with these customers.

Case study 1—applications not actioned

Ms A asked Centrelink on 30 August 2010 for an exemption from IM (application 1).

She passed the FV test but, on 7 September 2010, was refused an exemption on the basis that her children were not engaged in requisite activities (decision 1). The decision letter did not explain which part of the exemption test Ms A had failed or why.

On 12 November 2010, Ms A contacted Centrelink and once more requested an exemption from IM (application 2). It appears the phone line dropped out during the exemption discussion, as Centrelink‘s records note ‗Call was terminated before Financial Vulnerability Test could be commenced‘.

On 17 November 2010, Ms A again contacted Centrelink about an exemption from IM (application 3). She was refused an exemption on the same day on the basis that she did not pass the FV test (decision 2). Centrelink‘s records indicate that she was also informed she could not reapply for an exemption for 12 months.

On 8 December 2010, Ms A contacted Centrelink and provided information about her income as well as evidence concerning her children‘s activities (application 4). She was informed that ‗exemption denied as not met financial test, she will wait 12 mths to reapply‘ (decision 3).

On 14 January 2011, Ms A contacted Centrelink advising she wished to come off IM (application 5). She was informed that ‗due to failing FVT in November she is unable to apply for another exemption until November 2011 and will need to supply evidence that her circumstances have improved‘.

On 28 February 2011, Ms A requested an exemption once again (application 6). She was told that she was ‗unable to reapply for 12 months‘ and was placed on weekly payments instead.

2.32 Along with many other people in her position, Ms A was repeatedly and incorrectly informed that she could not reapply for exemption for 12 months after she failed the FV test. In addition, other aspects of Ms A‘s requests for exemption were not handled appropriately:

 application 2 was not actioned—there are no records of an attempt to call Ms A back to continue the FV test or of a letter sent to Ms A explaining that she needed to get back in contact with Centrelink to proceed with her

application. This application should have resulted in a decision and a letter to Ms A explaining that her application for exemption had been refused, the reasons for the refusal and her review rights

 applications 4, 5 and 6 were denied because they were made within 12 months of Ms A‘s previous application. However, there were no records of FV decisions or letters sent to Ms A confirming that decisions had been made or that she had the right to seek review of the decisions. Alternatively, these applications could have been treated as requests for review of earlier decisions.


2.33 There were other examples of this problem in the sampled cases. Centrelink‘s core work involves making decisions, recognising and acting on review requests and properly informing people of decisions and related review rights, consistent with the legislative and policy framework. Our investigation points to a fundamental

breakdown in Centrelink‘s services to IM customers.

2.34 When there is a problem with an agency‘s original decision or decision- making process, it can often be rectified through a fresh decision on review.

Centrelink provides internal review by an Authorised Review Officer (ARO) for most of its decisions, where requested. Unfortunately, the few decisions in the sample that went to internal review were not improved or enhanced.

Case study 2—problematic review

In late 2010, Ms B, who had not previously been subject to IM, was informed that the new IM regime would apply to her. She applied for, and was refused, exemption on 25 November 2010. The decision records show that information favourable to Ms B being granted an exemption was obtained. The exception was information supplied under the heading ‗Urgent payment applications‘, which noted that ‗cus applied for 2 urgent payments in Aug 2010 and Sept 2010 – for rent, elec and food IMCO has sighed doc’s – advised cus rejected on theses grounds‘. Ms B requested a review of the decision; she said she meets her financial commitments.

On 29 November 2010, following internal reconsideration by the original decision maker, the decision to reject the exemption was affirmed. A separate FV assessment was not conducted as part of the reconsideration. The records indicate that Ms B was informed that the decision had been affirmed because she had ‗shown signs of financial vulnerability over the last 12 months‘. Ms B applied to an ARO for review of the decision.

On 30 December 2010, the ARO wrote to Ms B to inform her that the decision to refuse to exempt her from IM had been affirmed. The decision statement said:

‘When assessing whether an exemption can be applied, I have taken into account whether you have requested more than one payment to your social security entitlement in any fortnight during the relevant period and the reasons for each of those payments even if the request was declined as defined in the … Principles.

It was noted that in the 12 months immediately prior to income management being applied to your payment you had applied for 2 urgent payments to meet your priority needs. [details of each then provided]

Whilst acknowledging your reasons for seeking an exemption from income management, those exemptions are only granted in limited circumstances. I have found that you … did not meet the financial vulnerability test. It follows that you are subject to income management.’

2.35 Although the ARO referred to the Principles, only one mandatory

consideration (changes to welfare payment arrangements) was actually addressed in the decision. The ARO also focused on the 12 months immediately prior to IM being applied to Ms B, whereas the relevant period was the 12 months prior to her request for an exemption. This ARO decision replicates many of the failures highlighted earlier in this report and indicates that Centrelink needs to improve its instructions to, and training of, staff involved in the decision-making process.


Recommendation 2

Centrelink should provide training and guidance to its staff so they more readily identify when a review pathway is available to a customer and take adequate action to facilitate a review.

Recommendation 3

Centrelink should extend the planned training for FV decision makers to Authorised Review Officers who are likely to deal with IM matters to ensure they address all mandatory considerations and follow policy instructions.

The policy guiding FV IM exemption decisions

2.36 FaHCSIA‘s Guide and Centrelink‘s e-Reference attempt to provide detailed instructions for a decision-making process that is complicated and multi-tiered. While it is apparent that the headings in the CIMEW decision-making tool were created to help decision makers, the process of simplifying and breaking down the instructions took the guidance too far away from the legislation. Consequently, the tool used in the decisions we reviewed did not adequately address the mandatory considerations.

We note that amendments have subsequently been made to the decision-making tool. Importantly, the Guide and e-Reference will need to align with the revised template.34

2.37 We also note that the Guide and e-Reference inappropriately refer to

‗approved money management courses‘ or ‗other approved courses‘ at various points.35 The Principles do not refer to ‗approved courses‘. Rather, they provide a non-exhaustive list of activities that a person might undertake as part of their money management strategies. We suggest that the reference to ‗approved‘ money

management or other courses be removed from the Guide and e-Reference.

Recommendation 4

FaHCSIA and Centrelink should review the use of the terms ‗approved money management courses‘ or ‗other approved courses‘ in the Guide and e-Reference to ensure consistency with the decision-making Principles.

2.38 On 5 September 2011, we sent Centrelink and FaHCSIA a letter in which we detailed our preliminary concerns about the lawfulness of the FV exemption refusal decisions. We recommended that:

 the agencies revise the FV decision-making tool to ensure it captures all mandatory considerations, allows for weighting and assessment of the information and references all applicable definitions

34 For example, the Guide and e-Reference 003.72050 advise decision makers to only address those factors that are relevant to the customer. These will need to be amended to make it clear that decision makers must have regard to all of the mandatory considerations when every FV decision is made.

35 For example, at 003.72050 in the ‗detail‘ section, e-Reference prompts the decision maker to consider ‗If the customer has completed a Money Management or similar approved course, discuss the following ... ‘ E-Reference has a link to a pop up screen (zzd.efap7) about

‗approved courses‘, however this information is generic and seems more applicable to courses that people can undertake to meet the eligibility for certain Centrelink payments.


 FV decision makers be trained in the mandatory considerations necessary for lawful decision making as well as administrative decision making and record keeping principles

 FV decision making should cease until the decision-making tool has been revised and appropriate quality assurance is in place

 all rejected FV decisions should be reviewed to determine if they meet administrative decision-making standards or may be susceptible to a finding of invalidity by a court and, where necessary, remake those decisions.

2.39 In late September 2011, we were informed that the Taskforce had been established to review the FV exemption refusal decisions. We were also advised that while the Taskforce was in operation, any IM exemption requests likely to be rejected because of the FV test would be reviewed by the Taskforce before a final

assessment was made.

2.40 In November 2011 we were provided the Taskforce‘s report, including its findings and recommendations about Centrelink‘s FV exemption refusal decision making. The Taskforce concluded that the ‗original FV exemption refusal decision appeared to be reasonable in only 31% of cases with the remainder either appearing to be unreasonable (15%) or there being insufficient documentation available for the Taskforce to make a judgement (54%)‘.

2.41 Importantly, the Taskforce identified a change in the pattern of FV exemption decisions over time. From August 2010 to 15 April 2011, 1,075 customers were granted FV exemptions and 180 (14%) refused; from 16 April 201136 to October 2011, there have been 754 exemptions granted and 17 (2%) refused.

2.42 The Taskforce highlighted 10 FV issues:

 the management and skillset of the FV decision-making area require attention

 more could be done to assist customers to obtain exemptions from IM, including referring all customers refused an exemption to money management courses

 the Guide, e-Reference and training material would benefit from refinements based on the four mandatory considerations set out in the Principles

 in 48% of cases, there was a failure to consider all relevant factors and to make holistic/overall assessments of the customer‘s FV—a ‗one strike‘

approach was used or only evidence supporting a finding of FV was

summarised. In some instances, the decision was made before the workflow had been completed

 the decision-making process—while the Taskforce found the process for FV decision making was sound, the decision-making workflow limited the decision maker‘s ability to document discussions and lacked an effective quality framework

 the CIMEW decision-making tool needs to be redesigned as its headings do not directly relate to the Principles and it does not facilitate the consideration and recording of an overall assessment of the customer‘s circumstances

 80% of the people who sought exemptions were remote Indigenous

customers who were more likely to require the assistance of an interpreter.

There was only evidence of the use of an interpreter in two cases and most

36 16 April 2011 was the date that FaHCSIA changed its policy advice so that Centrelink was no longer instructed to apply an exemption refusal decision for 12 months.


customers‘ records did not accurately note their language needs.37 The Taskforce noted the shortage of accredited Indigenous language interpreters

 existing training requires improvement and more training needs to be delivered to staff

 the lack of a consistent quality assurance framework for FV exemption decisions.

2.43 The Taskforce‘s recommendations are at Appendix 1 to this report. They are well considered and have already resulted in improvements to FV decision-making practices. More changes are planned. However, it remains the case that

inappropriate decisions have been made. Decisions that do not meet the mandatory considerations could be susceptible to legal challenge. Further, Centrelink did not pick up these problems when it conducted a review of its decisions in April 2011.38 2.44 We note that Centrelink has since taken steps to address problematic FV decisions made between August 2010 and September 2011 and that it has implemented changes to improve future decision making. In view of the concerns flagged in this report, the Ombudsman‘s office makes the following recommendations in addition to those made by the Taskforce.

Recommendation 5

Centrelink should update this office as to the outcome of its review into the use of interpreters and how it will address the concerns raised by the Taskforce and this office.

Recommendation 6

FaHSCIA and Centrelink should consider implementing a standard practice of reviewing new decision-making processes or programs at an early stage of their delivery in order to identify and address problems immediately.

Recommendation 7

In three months‘ time, FaHSCIA and Centrelink should provide a progress report to the Ombudsman on the impact and implementation of the recommendations made by the Taskforce and this office.

37 The Taskforce noted that the interpreter language listed on most customer records ‗is English and there is no way to identify if the customer has a communication problem, needs an interpreter or whether an interpreter was actually used during the FV assessment‘.

Centrelink informed this office in 2009 that its ‗staff record a client’s interpreter needs on the client’s record. Once this is done, any time an appointment is booked for that client, the system will automatically request an interpreter in the client’s preferred language‘. It appears that this process is not currently in practice and that Centrelink is not conducting itself as advised for the purpose of the report Use of interpreters: Australian Federal Police;

Centrelink; Department of Education, Employment and Workplace Relations; and Department of Immigration and Citizenship, report 03/2009, which can be accessed at


38 See paragraph 2.16.


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