User Rights Amendment Principles 2008 (No. 3) (Cth)
User Rights Amendment Principles 2008 (No. 3)1
Aged Care Act 1997
I, JUSTINE ELLIOT, Minister for Ageing, make these Principles under subsection 96-1 (1) of the Aged Care Act 1997.
Dated 18 December 2008
JUSTINE ELLIOT
Minister for Ageing
1 Name of Principles
These Principles are the User Rights Amendment Principles 2008 (No. 3).
2 Commencement
These Principles commence on the commencement of the Aged Care Amendment (2008 Measures No. 2) Act 2008.
3 Amendment of User Rights Principles 1997
Schedule 1 amends the User Rights Principles 1997.
4 Application
The amendments made by item [31] of Schedule 1 apply to an entity that becomes a former approved provider after 31 December 2008.
Schedule 1 Amendments
(section 3)
[1] Subsection 23.3 (1), definition of key personnel
omit
paragraph 9-1 (2) (a)
insert
section 8-3A
[2] Paragraph 23.30 (1) (b)
substitute
(b) the approved provider or care recipient has applied to the Secretary for a determination, under paragraph 57-14 (1) (a) or (b) of the Act, that the care recipient must not be charged an accommodation bond or must not be charged an accommodation bond of more than a specified maximum amount because payment of the accommodation bond would cause the care recipient financial hardship.
[3] Subparagraph 23.38 (2) (c) (viii)
omit
Division 14; and
insert
Division 14 and the date when the base interest was paid; and
[4] Subparagraph 23.38 (2) (c) (ix)
omit
Division 14;
insert
Division 14 and the date when the maximum permissible interest was paid;
[5] Subparagraph 23.38 (2) (d) (v)
omit
Division 15;
insert
Division 15 and the date when the maximum permissible interest was paid;
[6] Paragraph 23.40 (1) (b) (iv)
substitute
(iv) paragraph 57-2 (1) (e) and sections 57-21, 57-21A and 57-21B of the Act; and
[7] Subsection 23.48 (1)
substitute
(1) This section applies if an accommodation bond is not paid, or a lower amount of accommodation bond is proposed to be paid, because the care recipient has applied to the Secretary:
(a) for a determination under paragraph 57-14 (1) (a) of the Act that the care recipient must not be charged an accommodation bond because payment of an accommodation bond would cause the care recipient financial hardship; or
(b) for a determination under paragraph 57-14 (1) (b) of the Act that the care recipient must not be charged an accommodation bond of more than a specified maximum amount because payment of more than that amount would cause the care recipient financial hardship.
[8] After section 23.49
insert
23.49A Payment of accommodation bond before refund of pre‑allocation lump sum (Act, s 14-5)
(1) If the Secretary imposes a condition of allocation under section 14-5 of the Act on an allocation of places within a residential care service (the effect of which is that the person must refund any pre-allocation lump sums within a time specified in the condition) and a care recipient has paid a pre-allocation lump sum for care within that residential care service, an accommodation bond must not be charged until:
(a) the pre-allocation lump sum has been refunded to the care recipient; and
(b) the approved provider has complied with the rules in section 57-2 of the Act.
(2) If an approved provider first complies with the rules in section 57-2 of the Act after the time specified in the condition for the refund of the pre‑allocation lump sum, the care recipient must not be required to pay an accommodation bond earlier than 21 days after the approved provider first complied with those rules.
[9] Paragraph 23.53 (a)
substitute
(a) matters relevant to the making of a determination by the Secretary that a person must not be charged an accommodation bond or must not be charged more than a specified maximum amount of accommodation bond, because payment of an accommodation bond or payment of an accommodation bond of more than the specified amount would cause the person financial hardship; and
[10] Subsection 23.56 (1), definition of unrealisable asset
omit
subsections 11 (12), (13) and (14)
insert
subsections 11 (12) and (13)
[11] Subsection 23.56 (2)
after
an accommodation bond
insert
or payment of a specified maximum amount of accommodation bond
[12] Subsections 23.56 (3) and (4)
substitute
(3) In making a determination under paragraph 57-14 (1) (a) or (b) of the Act, the Secretary may consider any of the following matters:
(a) the person’s financial arrangements;
(b) whether any assets of the person are assets to which he or she does not reasonably have access;
(c) if the person has significant assets — whether the assets are unrealisable assets;
(d) whether the person has recently gifted any assets;
(e) any other matter that the Secretary considers relevant.
[13] Section 23.57
omit
section 57-14
insert
paragraph 57-14 (1) (a) or (b)
[14] Section 23.57, note
omit
section 57-14
insert
paragraph 57-14 (1) (a) or (b)
[15] Paragraph 23.58 (b)
substitute
(b) either:
(i) paying an accommodation bond would not cause the care recipient financial hardship; or
(ii) paying an accommodation bond of more than a specified maximum amount would not cause the care recipient financial hardship.
[16] Section 23.67A
omit
subsection 57-14 (1)
insert
paragraph 57-14 (1) (a)
[17] Section 23.75A
omit
subsection 57-14 (1)
insert
paragraph 57-14 (1) (a) or (b)
[18] Section 23.79B, definition of base interest rate
substitute
base interest rate means a rate that:
(a) is the sum of the below threshold rate and 2%, expressed as a percentage; and
(b) takes effect on the first day of the month following the day when the below threshold rate is determined.
[19] Subsections 23.79D (1) and (2), definition of BIR
substitute
BIR is the base interest rate, calculated on the first day of the refund period.
[20] Paragraph 23.81C (2) (d)
substitute
(d) when an accommodation charge:
(i) is not required; or
(ii) must not be charged at more than a specified maximum daily amount because a determination is in force for the care recipient under paragraph 57A-9 (1) (b) of the Act; or
(iii) if paid — is refundable.
[21] Section 23.81C, note
substitute
Note Section 57A-2 of the Act sets out basic rules about accommodation charges. In particular, paragraphs 57A-2 (1) (h) and (i) of the Act deal with circumstances when an accommodation charge is not required, will not be charged at more than a specified maximum daily amount or, if paid, is refundable.
[22] Paragraph 23.81E (1) (b)
substitute
(b) the approved provider or care recipient has applied to the Secretary for a determination, under paragraph 57A-9 (1) (a) or (b) of the Act, that the care recipient must not be charged an accommodation charge or must not be charged at more than a specified maximum daily amount, because paying the accommodation charge would cause the care recipient financial hardship.
[23] Section 23.81G
substitute
23.81G Purpose of Division (Act, s 57A-2 and 96-1)
The purpose of this Division is to specify periods for which an approved provider must not:
(a) charge the daily accommodation charge; or
(b) charge the daily accommodation charge at more than a specified maximum daily amount.
[24] Section 23.81K
substitute
23.81K Period of financial hardship
If a determination under paragraph 57A-9 (1) (a) or (b) of the Act is in force for a care recipient, an approved provider must not, for the period beginning on the date of effect of the determination and ending on the day when the determination ceases to be in force under subsection 57A‑9 (7) of the Act:
(a) charge an accommodation charge; or
(b) charge an accommodation charge of more than a specified maximum daily amount.
[25] Subsection 23.81M (1)
substitute
(1) This section applies if an accommodation charge is not paid because the approved provider or care recipient has applied to the Secretary for a determination, under paragraph 57A-9 (1) (a) or (b) of the Act, that:
(a) the care recipient must not be charged an accommodation charge; or
(b) the care recipient must not be charged an accommodation charge of more than a specified maximum daily amount;
because payment of an accommodation charge would cause the care recipient financial hardship.
[26] Paragraph 23.81R (a)
substitute
(a) matters relevant to the making of a determination by the Secretary that a person must not be charged an accommodation charge or must not be charged an accommodation charge of more than a specified maximum daily amount, because payment of an accommodation charge or payment of an accommodation charge of more than a specified amount would cause the person financial hardship; and
[27] Subsection 23.81U (1), definition of unrealisable asset
omit
subsections 11 (12), (13) and (14)
insert
subsections 11 (12) and (13)
[28] Subsection 23.81U (2)
after
accommodation charge
insert
or payment of an accommodation charge of more than a specified maximum daily amount
[29] Subsections 23.81U (3) and (4)
substitute
(3) In making a determination under paragraph 57A-9 (1) (a) or (b) of the Act, the Secretary may consider any of the following matters:
(a) the person’s financial arrangements;
(b) whether any assets of the person are assets to which he or she does not reasonably have access;
(c) if the person has significant assets — whether the assets are unrealisable assets;
(d) whether the person has recently gifted any assets;
(e) any other matter that the Secretary considers relevant.
[30] Section 23.81W
omit
section 57A-9
insert
paragraph 57A-9 (1) (a) or (b)
[31] Paragraph 23.81W (b)
after
accommodation charge
insert
or payment of an accommodation charge of more than a specified maximum daily amount
[32] Further amendments
| Provision | omit each mention of | insert |
| Paragraph 23.79A (a) | an approved provider | an approved provider or a corporation mentioned in subsection 57-21A (1A) of the Act |
| Paragraph 23.79A (b) | the approved provider | the approved provider or the corporation |
| Subsection 23.79C (1) | an approved provider | an approved provider or a corporation mentioned in subsection 57-21A (1A) of the Act |
| Subsection 23.79C (1) | the approved provider | the approved provider or the corporation |
| Subsection 23.79C (2) | an approved provider | an approved provider or a corporation mentioned in subsection 57-21A (1A) of the Act |
| Subsection 23.79C (2) | the approved provider | the approved provider or the corporation |
| Subsection 23.79C (3) | an approved provider | an approved provider or a corporation mentioned in subsection 57-21A (1A) of the Act |
| Subsection 23.79C (3) | the approved provider | the approved provider or the corporation |
| Subsection 23.79C (4) | an approved provider | an approved provider or a corporation mentioned in subsection 57-21A (1A) of the Act |
| Sections 23.79C and 23.79D | the approved provider | the approved provider or the corporation |
| Section 23.79E | An approved provider | An approved provider or a corporation mentioned in subsection 57-21A (1A) of the Act |
| Section 23.79E | the approved provider | the approved provider or the corporation |
| Paragraph 23.80A (a) | an approved provider | an approved provider or a corporation mentioned in subsection 57-21B (1A) of the Act |
| Sections 23.80A and 23.80B | the approved provider | the approved provider or the corporation |
| Subsection 23.80C (1) | an approved provider | an approved provider or a corporation mentioned in subsection 57-21B (1A) of the Act |
| Subsection 23.80C (1) | the approved provider | the approved provider or the corporation |
| Subsection 23.80C (2) | an approved provider | an approved provider or a corporation mentioned in subsection 57-21B (1A) of the Act |
| Sections 23.80C and 23.80D | the approved provider | the approved provider or the corporation |
| Section 23.80E | An approved provider | An approved provider or a corporation mentioned in subsection 57-21B (1A) of the Act |
| Section 23.80E | the approved provider | the approved provider or the corporation |
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See
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