4.1.2 Protection of Payment

Summary

This topic describes the principle of protection of payment of FA payments.

Legal basis for protection of payment

The FA(Admin)Act states that the following FA payments are absolutely inalienable, or protected:

• family tax benefit,
• FTB advances,
• baby bonus,
• child care benefit,
• child care rebate,
• payments under FA(Admin)Act section 219Q or subsection 219QA(2) in respect of fee reduction,
• payments of enrolment advances under FA(Admin)Act section 219RA, and
• one-off payments to families.

An individual's right to receive a payment or benefit cannot be transferred to another person either by a voluntary act or by the operation of the law.

Act reference: FA(Admin)Act section 66 Protection of payments under this Part, section 219Q Weekly payments in respect of fee reduction, section 219QA(2) The Secretary must pay the amount as last recalculated to..., section 219RA Payment of enrolment advance 

Payment to a third party

Under the 'nominee' provisions in the FA(Admin)Act, the Secretary may direct that a payment be made to another party, after considering the wishes of the individual receiving the payment. The individual's consent may not be required.

The Secretary may direct that payments be made to a third party, including Centrepay, but only with the individual's consent.

Maintaining protection of payment

There are 3 circumstances in which, although an individual does not directly receive their payment, they do not transfer their right to that payment because they still benefit from it. Those circumstances are when a payment is:

• voluntarily directed by the individual to a third party, or,
• withheld by the Commonwealth to repay a debt (1.1.D.60) to the Commonwealth or to repay the debt of another person, or
• subject to a garnishee order on the account to which the payment is made.

These are explained in the rest of this topic.

Individual directing payment to another party

An individual must agree before any payments can be paid to a third party. This is usually done by appointing a nominee (1.1.N.20), by using the relevant form.

Example: An individual may direct their payments to:

• a nominee who:
  • exercises power of attorney for all the individual's financial affairs, or
  • simply operates a bank account on the individual's behalf, into which the individual's payments are made.
• an institution, or ACO through a group payment arrangement.

Commonwealth recovering overpayments or tax

The Commonwealth has the right, and the obligation, to recover:

• overpayments, under FA(Admin)Act Part 9,
• tax liability under section 218 of the Income Tax Assessment Act 1936, and
• child support debt, under FA(Admin)Act section 227 and section 228.

Act reference: FA(Admin)Act section 70 Debts due to the Commonwealth, Part 9 Other matters, section 225 Payment of deductions to Commissioner of Taxation, section 226 Setting off family assistance entitlement against tax liability, section 227 Payment of deductions to Child Support Registrar, section 228 Maximum deduction

Policy reference: FA Guide 4.1.3 Nominees

Garnishee orders

Once a payment has been paid into an individual's bank account it becomes part of the person's funds. A garnishee order on the account, equal to the amount of the individual's payment, is not affected by a person's inalienable rights to payments. The FA(Admin)Act, however, provides for a saved amount to which the garnishee order cannot apply. The saved amount is equal to the following:

• the total amount of the individual's payment, including advances, paid into the account in the 4 week period immediately before the order, minus
• the total amount withdrawn from the account in the same period.

Example 1: Simone is receiving an ongoing fortnightly FTB benefit of $164.64. On 20 September a garnishee order comes into force regarding the account. In the previous 4 week period $329.28 FTB was paid into the account. Simone had withdrawn $160.00 during the 4 week period. The saved amount is $164.64 ($329.28 - $164.64). This amount is exempt from any garnishee conditions.

Example 2: Bronwyn is receiving an ongoing fortnightly FTB benefit of $378.70. On 15 November a garnishee order comes into force for the account. In the previous 4 week period $757.40 FTB was paid into the account. Bronwyn had withdrawn $800.00 from her account during the 4 week period. The saved amount is nil.

Policy reference: FA Guide 3.1.6.30 Court Orders & Registered Agreements

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Last reviewed: 13 May 2013