Positive Life NSW

Lance Feeney reports on the impacts of same-sex legislation on Social Security law for people with HIV receiving Centrelink benefits.

New legislation designed to eliminate discrimination against same-sex couples will affect a wide range of Commonwealth laws. Recognition of same-sex de facto relationships by Social Security law will not only bring a win for overdue gay and lesbian human rights, but also some serious financial consequences for older gay and lesbians, and people with HIV receiving Centrelink benefits.

From 1 July 2009, changes to the definition of “member of a couple” (to include same-sex couples), will have a major impact on Social Security law. In effect, Centrelink will view couples – either same-sex or opposite-sex – in exactly the same way.

From 1 July 2009, same-sex couples on Centrelink payments will receive the lower couple rate - rather than the higher single rate. Where one member of a couple is still working or has a high retirement income, the Centrelink recipient may loose their pension and Health Care Card once the income and assets of their partner are taken into account.

Older gay and lesbian couples

Older gay and lesbian couples in their 60s, 70s and 80s, have lived and worked during a period of Australian social development where there was no expectation of legal relationship recognition. Many of these people have experienced first hand, the sharp pointed end of sexual and financial discrimination. They have also inadvertently missed-out on a lifetime of financial benefits that were available to heterosexual couples including:

• income tax law
• family law
• health insurance
• property rights
• access to insurance and superannuation
• laws of succession
• employment benefits for partners

Living the majority of their lives in an environment where homosexuality was criminalised until the 1980s, they certainly had no premonition or early expectation of forced financial inter-dependency under Social Security law.

People with HIV on DSP and Aged Pensions

The high cost of managing a chronic condition like HIV and maintaining health includes: access to bulk billing doctors and specialists; specialised dental treatment; HIV prescribed medication, medication for the treatment of HIV related side effects, other non-HIV related disease and the maintenance of mental health. These costs represent a significant cost burden on an already financially vulnerable group.

These expenses are subsidised for eligible recipients by the Health Care Card. The loss of the Health Care Card concession and rebates would place a significant extra cost on these couples, further reducing household income and independence. The non-working partner (on a pension) may be placed in a more financially dependent situation within the relationship. Increases in household costs, a reduction in household income (particularly in relation to the loss of concessions and rebates) may place a major strain on the emotional wellbeing of the couple, change what may be longstanding dynamics and increase dependency within the relationship. Research data from The Australian research Centre in sex, Health and Society, La Trobe University, confirms there is a clear relationship between poverty, health, and well being.

Ironically, in the last 15 years, every major change to these laws has provided a grandfather clause to minimise hardship for those already in the system. A grandfather clause is an exception that allows an old rule to continue to apply to some existing situations, when a new rule will apply to all future situations. Positive Life NSW, the Australian Federation of AIDS Organisations (AFAO), the National Association of People Living with HIV/AIDS, Welfare Rights and the Australian Human Rights Commission strongly advocated to Government for a range of transitional arrangements to counter the negative impacts envisioned after introduction of the legislation. The Federal Government steadfastly refused to instigate any grandfathering provisions.

Our position

We are unable to comprehend why the government did not introduce these amendments to protect older GLBT people from unfairly losing Social Security support as a result of the same-sex reforms. The Bill passed the Senate with no amendments. It comes into effect 1 July 2009, and it will be up to government department policy-makers and Centrelink to apply the new legislation sensitively and fairly – a daunting task unless government amends the Act.

Positive Life, ACON, Welfare Rights Sydney, People with Disability Australia and Gay and Lesbian Rights Lobby, are currently working on a joint position paper calling for grandfathering for people on DSP and Newstart who are over 55 and for gays and lesbians on the aged pension. We are additionally seeking to grandfather (for one to two years) the Health Care Card and supporting a call by Welfare Rights Network for the Centrelink low income health card to be available to people with a chronic illness where they lose eligibility because of partner income.

In the current economic climate of insecurity for people on fixed low incomes and reliant on superannuation, we believe the new precedent for not providing grandfathering provisions in the same sex legislation, cannot be allowed to stand.

Information from Centrelink

From 1 July 2009, if you receive a Centrelink payment or service and are in a same-sex de facto relationship, your payment may be affected. If you are a new Centrelink customer after 1 July 2009 and are in a same-sex de facto relationship, you will be recognised as partnered when you apply for a payment or service. The changes to recognise same-sex relationships for Centrelink purposes will take effect from 1 July 2009.

What do Centrelink advise you to do?

If you are in a same-sex de facto relationship and receive a Centrelink payment or service, you are required to tell Centrelink from 1 July 2009 to ensure that you receive the correct payment. From 1 July 2009, if you are overpaid because you have not told Centrelink that you are in a same-sex relationship, you may have to pay back some or all of your payment. From 30 March to 30 June 2009, you will be able to tell Centrelink that you are in a same-sex relationship. You may tell them in this period as it will reduce your risk of being overpaid. These changes will only affect payments from 1 July 2009.

How could your payment change?

Your payment may be affected depending on your circumstances and the type of payment you receive. Most payments are assessed based on the income and assets of both you and your partner. You may receive a different rate of payment, or you may stop receiving your payment once your partner’s income and assets are included in assessing your payment. For some payments, the partnered rate is less than the single rate of payment.

Access to other Centrelink benefits?

From 1 July same-sex de facto couples may have access to the following:

• partner concession card benefits
• bereavement benefits if a partner dies
• exemption of the family home from the asset test when one partner enters nursing home care and the other partner continues to reside there
• recognition as independent for Youth Allowance if you are in a same-sex relationship for over 12 months

Other government changes

The commitment to removing the discrimination that currently applies to members of same-sex couples and their children will also apply to other areas of the Australian Government, including:

• taxation
• superannuation
• Pharmaceutical Benefits Scheme Safety Net and Medicare Safety Net
• aged care
• child support
• Veteran’s Affairs
• immigration
• citizenship

For more information, view the Same-Sex Law Reform page on the Australian Government Attorney-General's Department website.

Reviews and appeals

If you are not happy with a decision made by Centrelink, you have the right to question it. The review and appeal process is explained in the Reviews and Appeals fact sheet.

What constitutes a de facto relationship for Centrelink?

To determine if a relationship exists, Centrelink assesses evidence against five factors prescribed in Social Security law. These five factors are:

• The financial aspects of the relationship (the degree of financial interdependence)
• The nature of the household (the usual occupants of the household and the relationship between them)
• The social aspects of the relationship (how a couple present themselves to society and how others view them)
• Any sexual relationship between the people
• The nature of the peoples’ commitment to each other

After collecting evidence against these five factors, Centrelink will form an opinion about whether the customer is living as a member of a couple. Determining that a person is a member of a couple requires that the evidence that the person is a member of a couple, outweighs the evidence that the person is not a member of a couple. All five factors are considered and no single factor is seen as conclusive. Not all factors need to be present.

How is a Member of a Couple Assessment initiated – review of relationship status by Centrelink

Centrelink can initiate a ‘Member of a Couple Assessments’ under the following circumstances:

• When information you provide at the time of making a claim, when advising a change of circumstance, or when undertaking other general business with Centrelink, indicates the possibility that you may be living as a member of a couple, and have not informed Centrelink.
• Data Matching – Centrelink matches data with internal sources and a number of other agencies to detect anomalies that may indicate the possibility that the person may be living as a member of a couple, and has not informed Centrelink.
• Information from public (tip-offs) – members of the public contact Centrelink with information about people who they think may be receiving a payment incorrectly. All information from the public is initially processed by specialist staff to determine if relevant and appropriate for review.

Centrelink does not initiate member of a couple assessments if there is no indicators that a relationship may exist.

More information from Centrelink?

If you want to talk to someone about how these changes may affect you, you can call Centrelink on 13 6280. From 30 March 2009 you can call this number to declare your relationship. As your payments may change, it is a good idea to start planning your financial affairs early. If you want to talk to a Centrelink Financial Information Service officer about the financial impacts of these changes, call 13 2300.

Centrelink also have social workers available to provide counselling and support, provide information about referral to community support services and assist with claims for payment.

To speak with a Centrelink Social Worker call 13 17 94.
To speak to Centrelink in languages other than English, call 13 1202.

Useful links

Go to www.centrelink.gov.au for:

• Centrelink rate estimator
• Financial Information Service
• Social work services
• Information on your rights
• Concession and Health Care Cards

For more information on Same-Sex Law Reform visit Australian Government Attorney-General's Department website