Factsheet “Thank You To The Aurora Group For Funding

factsheet “thank you to the aurora group for funding this factsheet”. declaring your same-sex relationship to centrelink re

factsheet
“Thank you to the Aurora Group
for funding this Factsheet”.
Declaring your same-sex relationship to Centrelink
Recent changes to Commonwealth legislation mean that for the first
time people in same-sex relationships may be regarded as living in a
“de facto relationship”. This means that gay, lesbian and opposite-sex
couples will have equal rights and entitlements under the amended
laws, effectively removing discrimination.
Same-sex de facto relationships will be recognised under Social
Security and Family Assistance law from 1 July 2009. This means that
you will be required to advise Centrelink if you have a same-sex de
facto partner. If you are assessed to be a member of couple, your
partner’s income and assets will be taken into account and your
entitlements may be reduced or cancelled. Some people in same-sex de
facto relationships may have new or higher entitlements because income
and assets test thresholds are higher for couples.
Some people in the community fear coming out to Centrelink because of
past discrimination, or are concerned that the loss of entitlements
will mean the end of their relationship with their partner –
especially for those who will lose entitlements once their partner’s
income and assets are assessed. Some people have no real issue with
declaring their relationship to Centrelink, but are anxious about the
financial consequences.
This factsheet is for people in same-sex relationships who are now
treated as single by Centrelink and are unsure whether they will be
treated as a member of a couple by Centrelink from 1 July 2009. This
factsheet explains the factors that Centrelink will be required to
take into account when assessing whether a relationship is “de facto”
for Social Security and Family Assistance purposes. It also explains
some of the ways being assessed as a member of couple may affect your
and your partner’s entitlements.
*
What if I am inter-sex or transgender?
In this factsheet we refer to same-sex and opposite-sex couples for
the sake of clarity and because these are the terms that Centrelink
and the mainstream community generally use. However, under the new
laws a person’s gender is irrelevant to whether they may be considered
to be a member of a couple. This means that if you are transgender or
inter-sex you may be regarded as a member of a couple under the new
laws whatever your partner’s gender.
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What has changed?
Until 1 July 2009 Centrelink can only treat a person as a member of a
couple if they are legally married or in an opposite-sex relationship
which is considered by Centrelink to be “marriage-like”.
Social Security and Family Assistance legislation has been amended
from 1 July 2009. The term “marriage-like” has been replaced with “de
facto”, and the new “de facto” definition may apply to you – whatever
your gender. The new law will apply to people claiming payments on or
after 1 July 2009, and also to people already receiving payments on
that day. Under the new law, you will be considered to be a member of
a couple if you are married, in a “registered relationship”, or in a
de facto relationship.
If you are newly treated as a member of a couple, your own and your
partner’s entitlements may change because:
*
the maximum rate of pension or allowance is generally lower for a
person who is a member of a couple;
*
the income and assets of a person’s partner are assessable under
Social Security and Family Assistance income and assets tests; and
*
there are some entitlements with eligibility requirements that
relate to relationship status.
People who have registered a couple relationship (same-sex or opposite
sex) with a State or Territory authority will be assessed to be in a
de facto relationship. Registration is currently only possible in
Victoria, Tasmania and the ACT.
From 1 July 2009, you may be in a de facto relationship under Social
Security law if you live with someone (or usually live with them), as
their partner. Whether Centrelink regards the relationship as “de
facto” will depend on consideration of the criteria which are
explained below. These are often referred to as “the factors”. The
factors are the same as those currently applying to assessment of a
“marriage-like relationship”.
If you live with someone in a close same-sex relationship you may feel
that it should not be treated as “de facto”, even though you may have
a sexual relationship and/or share a bedroom.
*
What does Centrelink need to know? how can I tell if I am living
de facto?
You may have seen Centrelink advertisements or posters (the
tooth-brushes perhaps), which state that from 1 July 2009 you must
advise Centrelink if you are a member of a couple. Some of these
posters say: “a couple is a couple – gay or straight”.
The fact is that gay and lesbian relationships can be very different
to straight couples’. The concept of a “de facto” relationship is an
alien one for many gays and lesbians. Recognition of same-sex
relationships by Centrelink is new, and there will be special
considerations that Centrelink should take into account when assessing
whether a same-sex relationship is “de facto”.
It is important to understand that just because you may be in a close
gay or lesbian relationship with someone you describe as your
boyfriend, girlfriend, lover or partner, this does not mean that you
are necessarily living in a “de facto” relationship according to the
definition in the Social Security legislation.
This factsheet may help you decide whether or not you are, and whether
you are obliged to advise Centrelink of your relationship. Below is a
list of questions you can use to help decide whether you are in a “de
facto” relationship. The list is based on the factors that Centrelink
must consider under the law. Keep in mind that this list is not a
checklist. Centrelink must look at the whole picture of your
relationship under these factors. This can be quite intrusive, but
Centrelink must assess your situation in this way under the law.
The best assessment of your living situation may come from explaining
to Centrelink the reasons behind your personal arrangements. For
example - do you share accommodation due to friendship, for
convenience, or for some other reason? If your relationship involves
care and commitment, what is the basis for this?
*
Separated?
If you think you may not be a member of a couple because you have
separated from your partner, the same list of questions can be used to
show that the relationship has broken down or changed. Consider what
your relationship was like before and after the separation, and why
things have changed. There may have been an event that caused the
relationship to change, or a gradual change. Explaining these changes
to Centrelink can be particularly important if you continue to live in
the same house with your ex-partner. Centrelink may call this
"separated under the one roof".
If you have separated but still live with your ex-partner, Centrelink
may ask you to provide independent evidence, e.g., from doctors,
counselors, or community leaders, that your relationship has broken
down. This information may be particularly difficult for you to obtain
if you are gay or lesbian and not out. There is no legal requirement
to produce this type of evidence but it can be helpful in assisting
Centrelink to make a decision.
Centrelink may also suggest that you cannot be treated as single
unless one of you moves out. If you want to continue living together,
or you choose to do so in spite of the separation, explain the reasons
for this to Centrelink.
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The factors
Financial arrangements
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do you provide financial support for each other? If so, why?
*
do you have any joint accounts or credit cards?
*
do you have a joint loan or have you applied jointly for any loan?
What for? Did you describe the co-borrower as your “partner” on
the application?
*
whose name is the telephone/electricity/gas in?
*
who pays the bills and how do you work out contributions?
*
do you jointly own assets, eg, your home, an investment property,
car, furniture?
*
do you know about each other's financial affairs?
*
is either of you listed as a dependent spouse/partner for tax or
Medicare?
*
has either of you named the other person as a beneficiary in your
will or superannuation? Do you describe the other person as your
“partner”?
*
do you lend or give each other money? Why?
*
if the other person lost their job or had no income, would you
feel obliged to them? For how long? Why?
Accommodation and domestic arrangements
*
do you live at the same address? For how long? Have you lived
together at other places? Why did you first decide to live at the
same address?
*
has the way you live together changed since you first lived
together? Do you intend to continue living together in the future?
If so, why?
*
do you have separate bedrooms or living areas?
*
whose name is the lease or mortgage in? How do you arrange your
domestic chores?
*
if you do not live at the same address, is this temporary or
permanent? Why?
Social relationship
*
do you share the same circle of friends?
*
do you tell each other where you are daily or what you are doing
when you go out?
*
do you frequently go out together or do you regularly go out
separately?
*
do either of you have a girlfriend or boyfriend?
*
do you visit each others families? If not, why?
*
would your friends and family consider you a couple? Do you
correct them? Are you out as a couple to your families?
*
do you conceal your relationship from friends, family, employers.
If so, why?
*
do your family or friends make plans for you as a couple?
*
have you ever let a government department, real estate agency or
bank assume you are a couple?
*
do you take holidays together?
Sexual relationship
*
do you have a continuing sexual relationship with each other?
*
does either of you have a sexual relationship with anyone else?
Relationship with children
If one of you has children
*
do you co-parent the child(ren) in your household?
*
do you share parenting activities, e.g. feeding, dressing,
disciplining, transport?
*
who are the emergency contacts for the child(ren)’s school or
child-care?
Commitment to each other
*
how long have you been in the relationship?
*
is the relationship stronger than an ordinary friendship? In what
way?
*
do you believe the relationship will continue?
*
if you suddenly got sick, who would you call?
*
have you made long-term plans involving the other person?
*
do you think you are likely to register your relationship
(currently only possible in Victoria, Tasmania and the ACT?
*
If you don’t think your relationship is “de facto”, why?
*
How does Centrelink investigate?
Centrelink may ask a lot of questions. The Centrelink officer can
interview you and the person they think may be in a de facto
relationship with you. If you refuse to answer questions your payments
might be suspended or reduced. If this happens you can appeal (see
below).
To investigate your situation, Centrelink may contact banks,
employers, Australia Post, telephone companies, motor transport
authorities, and government departments like Immigration or Tax. There
are also data-matches between Centrelink and some agencies. These
investigations are to find out whether you or the other person has
indicated that you live as a couple to other agencies, and to check
how long you have shared addresses.
If a Centrelink officer visits your home, you do not have to let them
in, but you may choose to do so. They cannot demand to have the
interview in your home. You have the right to have the interview at a
Centrelink office. If Centrelink asks you to provide a signed
statement, you have at least seven days to consider this. Make sure
any statement you provide is completely accurate before signing. Get
help from a Welfare Rights advocate if you are unsure. For more
information on visits, see the Factsheet “Centrelink home visits and
your rights”.
It is important to accurately and honestly notify Centrelink of your
living arrangements. If Centrelink decides that you are living in a de
facto relationship on the basis of that information, you can appeal if
you disagree (see below). Providing false information may result in a
debt and prosecution.
*
In hardship?
If your allowance or pension is reduced or cancelled because of your
own and/or your partner’s assets, there are Hardship Provisions that
may allow particular assets to be disregarded when assessing your
entitlement.
If your pension or allowance has been reduced or cancelled because of
your partner’s income, section 24 of the Social Security Act may allow
Centrelink to treat you and your partner as single where there is a
“special reason” to do so.
If you are assessed as a member of a couple after 1 July 2009 and the
re-assessment leaves you in financial hardship, ask Centrelink about
these discretionary provisions and contact a Welfare Rights service
for advice.
*
Appeal rights
If you disagree with a Centrelink decision you have the right to
appeal against it. Appealing is easy and free. To appeal you should
simply tell Centrelink that you are not happy with its decision and
that you would like to appeal to an Authorised Review Officer (ARO).
It is best to lodge an appeal in writing and you should keep a copy of
your appeal letter. You can, however, lodge an appeal over the
telephone.
The ARO is a senior officer in Centrelink who has the power to change
the original decision. Many people are successful at this level.
If Centrelink has decided to treat you as a member of a couple and you
disagree with the decision, or are unsure whether it is correct, don't
hesitate to contact your local Welfare Rights Centre/Advocate for
assistance.
If you are appealing against Centrelink’s decision to cancel your
Social Security payment on the basis that you are a member of a
couple, you can ask Centrelink to continue to pay you while the review
is being conducted. This is called “payment pending review”. You may
have to pay these payments back if you lose your appeal.
If you are not satisfied with an ARO decision you can appeal to the
Social Security Appeals Tribunal (SSAT), which is independent of
Centrelink.
You may appeal to an ARO or to the SSAT at any time. However, to
receive back pay from the date you were affected by the original
decision, you must appeal to an ARO within 13 weeks of receiving
written notice of the original decision. If you appeal to the SSAT,
you must appeal to the SSAT within 13 weeks of receiving notice of the
ARO decision to receive back pay (except for Family Tax Benefit – see
below). If you appeal more than 13 weeks after receiving the notice
and you are successful, you will only receive back pay from the date
you appealed.
Different rules generally apply to appeals to the ARO and the SSAT
regarding Family Tax Benefit assessments - see the Factsheets "Family
Tax Benefit" and "Family Tax Benefit and estimating your income".
If you are appealing to an ARO or to the SSAT about a debt only, no
time limits apply. This means that if your appeal is successful, and
your debt is cancelled or recovery waived, you may be entitled to a
refund of the amount you have paid back to Centrelink.
If you are not satisfied with the SSAT decision you can appeal to the
Administrative Appeals Tribunal (AAT). Centrelink can also appeal
against the SSAT decision to the AAT. You need to appeal to the AAT
within 28 days of receiving the SSAT decision in writing. This time
limit can be extended in limited circumstances by order of the AAT.
For more information on appealing see the Factsheet “Appeals – how to
appeal against a Centrelink decision”, the form “Request for a review
by an Authorised Review Officer” and the booklet, “How to appeal to
the social security appeals tribunal”.
*
Interpreters
If you think you need an interpreter, or if you feel more confident
with an interpreter, you should use one of the three free available
interpreter services.
*
Most Centrelink offices have interpreters available at regular
times each week. Your local Centrelink office can tell you whether
there is an interpreter available who speaks your language, and at
what times they are in the office.
*
You can telephone the Multilingual Telephone Information Service
(MTI), which is part of Centrelink. MTI is staffed by Centrelink
officers who are bilingual. You can ring them directly on 131 202
and they can answer your questions for you.
*
You can also call the Telephone Interpreter Service (TIS) on 131
450 and ask for an interpreter. This is a free service
*
More information
Additional information about Social Security and Family Assistance,
about other law reforms affecting same-sex couples may be found at:
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www.welfarerights.org.au National Welfare Rights Network
*
www.tars.com.au The Aged-care Rights Service
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www.centrelink.gov.au Centrelink
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www.fahcsia.gov.au Dept of Families, Housing, Community Services
and Indigenous Affairs
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www.ag.gov.au Attorney General’s Department
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www.hreoc.gov.au Australian Human Rights Commission
Information about making complaints regarding the way you are treated
may be found at:
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www.ombudsman.gov.au Commonwealth Ombudsman
*
www.privacy.gov.au Office of the Privacy Commissioner

Please note: This Factsheet contains general information only. It does
not constitute legal advice. If you need legal advice about your
Social Security entitlement, please contact your local Welfare Rights
Centre/Advocate.
Welfare Rights Centres are community legal centres which specialise in
Social Security law, administration and policy. They are entirely
independent of Centrelink. All assistance is free.
This Factsheet was created in May 2009.
www.welfarerights.org.au
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