Dr Simone Casey, Associate Future Social Services Institute RMIT
The Targeted Compliance Framework (TCF) creates a system of demerit points, which has been likened to the system for traffic offences, which are “designed to ensure that only those jobseekers who are persistently and wilfully non-compliant with their obligations incur financial penalties”. However, one year on from its inception, the operation of the TCF raises troubling questions about accountability in the social security system.
This article outlines how the TCF represents a major shift in the way social security decisions are being made, with the application of demerit points being automated in a way that reduces decision-makers’ discretion to take into account the person’s actual circumstances. The requirement for job seekers to self-report under the TCF further shifts the onus of accurate administration away from government and employment services, and onto job seekers themselves.
Outline of the TCF
The TCF was implemented in July 2018, replacing the jobseeker compliance framework which had been based on the 2010 Disney Review. The stated aim of the TCF is to encourage job seekers to meet their mutual obligation requirements and stay connected with employment services. Failure to do so results in a payment suspension and a ‘demerit point’. If a job seeker accrues enough demerit points, they may incur stronger financial penalties. It also introduces new self-reporting obligations for job seekers.
Self-reporting is a core obligation within the TCF. By default, all job plans contain a code which marks the job seeker as capable of self-reporting and intentional action from the ES provider is required to remove it. ES providers must assess whether a job seeker is capable of self-reporting their attendance. If they are, they must sign a job plan which contains the following commitment:
“I agree to take responsibility to report and/or record my attendance at requirements set out in my Plan by close of business on the day of the requirement. I understand that if I am unable to record my own attendance using available technology, I am required to contact my provider by close of business on the day of the requirement to ensure my attendance is recorded. I understand that if I do not ensure my attendance is recorded, my payment will be affected.”
Approximately 95% of job plans include this obligation. Even if the provider assesses the job seeker as incapable of self-reporting, the job seeker is still required to assist their provider by being available for contact or contacting their provider to ensure their attendance is recorded. It is unclear what recourse job seekers have when they are genuinely unable to self-report but are expected to do so.
Self-reporting shifts administrative responsibility onto the job seeker in a way that disrupts the SS decision-making process. Job seekers are made solely responsible for administrative tasks that may form part of payment suspensions and the job seeker’s future obligations. This raises the issue of just how much administrative responsibility can justifiably be placed on individuals who are often experiencing major upheaval and financial instability.
Further, the decision to suspend payments is made automatically by the system, rather than by an ES provider. This creates a gap in the decision-making process. The application of the suspension is referable only to the job seeker’s failure to report and the system’s response to this failure, rather than to a human decision-maker.
Assessments of self-reporting capability
The rushed nature of ES provider decision-making means that job seekers may be erroneously assessed as having the capacity to self-report. Provider appointments are time limited and caseloads for individual employment consultants are as high as 300. In this context, job seekers report feeling rushed and bullied into signing job plans.
The criteria used in the assessment of self-reporting capability require the provider to assess whether the job seeker has regular and reliable access to internet at home or at another location. Arguably, this assessment constitutes a ‘Social Security decision’ subject to review rights. However, it is unclear whether this is an ‘operative decision’ for the purposes of review.
Prior notice and acceptable reason decisions
Under the TCF, job seekers who are unable to fulfil an obligation must give notice to their ES provider and provide a reason for non-compliance. The ES provider then assesses whether the reason is a ‘valid’ one according to the TCF guidelines and the Instrument for Reasonable Excuse – if it’s not, a demerit point or suspension may be applied. This assessment is arguably a delegated social security decision (see Bond etc) because the accrual of demerit points leads to a mutual obligation failure and payment preclusion period.
Provider discretion based on individual knowledge of the job seeker’s circumstances is not used when making an acceptable reason decision. Rather, the TCF guidelines state that the reason given must appear on the list of valid or acceptable reasons.
Demerit points and guideline interpretation
The demerit point system at the core of the TCF itself raises a number of legal issues, a detailed overview of which can be found here. Briefly, the decision to apply a demerit point may not qualify as a ‘decision’ for the purposes of ARO or Administration Act ‘review and appeals’. This is because it is not yet ‘final and constitutive of an adverse consequence’ but only becomes such when 7 demerit points accumulate to trigger a rate reduction or preclusion penalty.
Recent data shows that 47 per cent of original job plans have been corrected during the Human Services Capability Assessment, suggesting that the TCF process is leading to provider error. In the context of automated decision-making and dispersed responsibility, clarification is urgently needed as to how decisions made about demerit points can be subjected to scrutiny and review.
A case study helps to illustrate the problematic nature of the TCF decision making. This case study involves a ParentsNext participant whose phone was stolen on a Sunday night and who was unable to report that they would not be able to attend their mutual obligation requirements on the Monday. The participant reported that they had been told by their provider that their payment would be suspended for an entire month because no re-engagement appointment was available until then. A demerit point is also applied.
This is problematic for several reasons. Firstly, no suspension should last more than two days if a re-engagement appointment cannot be booked in that time.
Secondly, ParentsNext participants payments are supposed to be reinstated when they contact their provider to make the re-engagement appointment, NOT when they attend it. The problem is that the TCF guidelines don’t reflect the PN re-engagement requirement under section 42SB so it is easy for the provider to make that mistake.
Thirdly, the guidelines were interpreted literally in that the job seeker’s phone had been stolen and the list of valid reasons did not include it as a reason.
In this case, the unclear nature of accountability under the TCF means that the recipient might have little recourse for a review of the demerit point. Further, because the suspension will be lifted when the job seeker re-engages, it is unlikely to form the basis of a legal challenge.
For the full version of this article, please click here
 This is referenced in the TCF Guidelines (p.14).
 This is referenced in Social Security Administration Act 1999 Section 42SB.