I am all a-jitter. Seriously, I am. I am having a cup of coffee to calm down. I may need a nap. The thing I have been waiting for has finally happened, and to be honest, I just don’t know how I feel about it. Well, it is a bloody doorstop (440 pages), so that ambivalence will on for a while yet. Yes indeed, the Social Security Act 1964 has finally undergone the first full draft of its rewrite. The Rewrite bill (OK, proper name: Social Security Legislation Rewrite Bill)is now available here.
Actually, in all honesty I am shamefully late to post about this. I have been buried up to my neck in other writing and wilfully ignoring all sorts of things (like emails, and children), so it makes me blush to say this was released on 17 March. For crying out loud..I am WRITING BOOK ON SOCIAL SECURITY LAW. You’d think I’d have caught up with this little earthquake a little sooner.
Cos make no mistake, here there be earthquakes and tigers. I don’t have time today to engage in a full analysis (you are very welcome). But legislative reform of social security in this country has often been about trumpeting much and delivering little; or alternatively trumpeting very little and delivering knockout blows. When I am teaching my welfare law classes I often have to point out a kind of now-you-see it, now-you-don’t magic trick that passes for legislative reform in this area, whereby new provisions are jammed into the old Act but closer inspection reveals there has just simply been a shuffling around of old provisions that might conflate existing tests, but really, the status quo continues to a large degree.
When the government crowed about its streamlining of 7 benefits down to 3, they neglect to mention that often the same tests for eligibility are simply picked up and plonked somewhere else in the Act. So while the DPB (sole parent) was repackaged as sole parent support, the same eligibility tests were applied. The DPB carer’s benefit was also renamed and shifted to the supported living payment. Same tests. Sickness benefit was picked up and dumped into jobseeker support, with the same eligibility tests. Now, obviously there were changes in the application of work-tests and harsher requirements for reapplications, and implementation of other provisions and policies that have made such benefits harder to get; but in many respects the law has trundled on as it always has, really. The only benefits really to disappear in recent years have been widows’ and women alone benefits (both replaced by jobseeker support) most other reform has involved shuffling, reshaping, rebranding, and tightening of obligation.
Which is what makes this rewrite kind of exciting, and freaking scary. The Social Security Act 1964 has become a hot mess. But those of us who work with it recognise some phrases in the legislation like we would recognise old family members; in many cases those phrases were written before most of us were born. There are many things I’ll be looking for..here are a couple:
- what has happened to the level of administrative discretion in the Bill? Has it depleted? Is it roughly the same? Where are there any changes?
- I know the Emergency benefit is to be replaced with the exceptional circumstances benefit. How different is it? At first glance, not much, but I need a bit more time to cogitate.
- where are the bodies hidden? One of the problems of the current Act is the connections between different parts of the Act that the hapless reader may not know about. How well crafted is the roadmap of this Act?
OK, I can’t answer that all right now. But one benefit I have taught many times, the unsupported child’s benefit has, I’m told, been ‘gotten rid of’ along with the orphan’s benefit in this Bill: A quick look reveals that the new benefit ‘supported child’s benefit’ does actually streamline two benefits (orphan’s benefit and unsupported child’s benefit) that existed for pretty much the same reason: the child or children had no parents to look after them. In the old Unsupported Child’s benefit in s29 there is a requirement that there be a family breakdown in the child’s family which has meant that no parent is available to look after the child. Then a non-parent can be granted the payment for looking after the child. The practical implication of the ‘breakdown’ requirement was that children being looked after by way of the whāngai process (sometimes called informal adoptions) didn’t reach this threshold usually; there is not usually a family breakdown when children are looked after as whāngai; although the family member looking after the whāngai will be doing exactly the same thing as in other situations without whāngai. So NOW; the ‘breakdown’ requirement has been excised. Does this mean whāngai carers will now be eligible? Perhaps. There has to be no parent ‘willing and able’ to take care of the child. That requires consideration, but the deletion of the ‘breakdown’ requirement is, I think, a good thing.
But no mistake. that is a substantive change, and not merely cosmetic one. Time to identify the rest.
After my nap, maybe…