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Social Security Law: What Does the Politics of 'Conditional Welfare' Mean for Review and Client Representation?

Article excerpt

Introduction

Nothing stands still in social security law, administration, or policy. We live in an ever-changing social, economic and political environment, as detailed in recent research and official intergenerational reports (Marston et al. 2010; Tepe & Vanhuysse 2010; Treasury 2010).

Not only has the world of work altered, fragmenting and casualising the once dominant 'standard employment relation' of permanent full-time work at standard hours (western-Europe aside), but technological and demographic shifts bring into question economic assumptions behind prevailing programs (for example, the sustainability of current models of residential aged care provision) and alter the politics of welfare (see Walker 2002), which discusses UK changes). For example the voting power and heightened expectations of the now ageing baby boom population cohort has resulted in increasing emphasis on choice and respect for individual autonomy in the crafting of welfare services. It may well also account for the disproportionate share of fiscal welfare accruing to this generation in the form of tax exemptions on retirement incomes (or earlier, the largest fiscal welfare tax-concession distortions to encourage superannuation, running at 26 billion in 2009: Stebbing & Spies-Butcher 2010: 592). Conditional social security, which curtails or removes the freedom to spend associated with cash provision, or which imposes onerous lifestyle or other conditions of eligibility (such as imposing education or drug treatment requirements), is one politically popular outcome of such changes.

Human rights influences, such as the shift towards 'supported decision-making' of people with cognitive incapacity, and welfare program reforms giving direct client control of funds previously delivered only as state-provided services, as encouraged by principles of individual choice enshrined in the Convention on the Rights of Persons with Disabilities 2006 'CRPD'), are also increasingly shaping welfare policy. One example is the provision of fungible welfare in the form of an individual budget (the so-called 'personal budget' approach) instead of access to standardised state delivery of aged and disability services (Needham 2011). This transformation puts pressure on more neglected aspects of social security law, such as payment and correspondence nominee provisions which empower third parties to make decisions for another person, or receive a copy of Centrelink correspondence; provisions currently drafted in unduly open ended terms (for example, FA(A)A 1999 s219TD) and administered with a paternalism more befitting of the 1950s than 2011, despite some limited progressive guidance from the Administrative Appeals Tribunal (AAT) (Re Henderson 2008; Re Boyling 2009). It also calls into question the way welfare currently interfaces poorly with state and territory adult guardianship laws (Carney 2012, forthcoming). Federalist issues too are rising in prominence in some areas, as state or territory agencies seek to maximise their revenue/authority, especially as social security income conditionality 'knits' with state agencies responsible for areas such as child protection or assessments of 'vulnerability', without sufficient regard to levels of required resourcing or protocols for review of referral decisions.

This paper reflects on aspects of the likely future directions of social security, particularly what is termed 'conditional welfare'--such as the restrictions able to be placed on the permissible expenditure of Australian social security payments for some indigenous and other social security recipients, a scheme known within Australia as 'welfare quarantining' (Billings 2010)--and its implications for client rights, representation and public policy accountability. In the next section the article considers the rising reliance on conditional welfare and related measures such as 'linked', localised (or 'place-based') welfare, and the increasing complexity of welfare discretions. …