Aged Care Legislation Amendment (2026 Measures No. 1) Rules 2026

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Aged Care and Seniors

Aged Care Legislation Amendment (2026 Measures No.1) Rules 2026

Purpose

The Aged Care Legislation Amendment (2026 Measures No.1) Rules 2026 (the Instrument) is made under the Aged Care Act 2024 (the Act) and subitem 2(1) of Schedule 6 to the Aged Care (Consequential and Transitional Provisions) Act 2024 (Consequential and Transitional Act). Schedule 1 and 2 of the Instrument amend the Aged Care (Consequential and Transitional Provisions) (Aged Care System Modification) Rules 2025 (System Modification Rules) which are made pursuant to the power prescribed under Item 2 of Schedule 6 of the Consequential and Transitional Act. That power allows the Minister to make rules which modify the operation of the provisions of the Aged Care Act 2024 (the Act) and the Aged Care Rules 2025 (the Rules). Schedule 3 of the Instrument relies on the power at section 602 of the Act to amend the Rules.

Schedule 1 of the Instrument modifies the Act by establishing a mechanism for the System Governor to pay an amount of subsidy to a registered provider in advance of a claim for that subsidy being made in accordance with sections 250 and 251 of the Act for the service groups Home Support, Assistive Technology (AT), and Home Modifications (HM) (special payment). This schedule:

         Provides for the payment of subsidy in advance and where necessary, to mitigate provider viability risks that could disrupt service delivery;

         Allows providers to request payment for specified periods at an earlier date than otherwise possible;

         Allows the System Governor to approve payment of all or part of the estimated entitlement to subsidy.

Payment of subsidy in the form of a special payment does not supplant or override the existing process and requirements for the claiming of subsidy. If the System Governor pays an amount of subsidy via a special payment, the registered provider is still required to submit a claim for that subsidy in accordance with section 251 of the Act at a later date. A failure to do so results in the special payment becoming a recoverable amount.

Schedule 2, when combined with Schedule 3 of the Instrument, modifies the operation of the Act and Rules in order to establish a mechanism to reinstate an individual’s classification level and priority category where those decisions previously ceased due to the operation of the Act.

These schedules:

         Establish a new power under section 89 of the Act to allow older people to rejoin the Home Support priority system for services without the need for a full reassessment;

         Allows for the reinstatement of priority for people who entered ongoing residential care and at some later time seek to reinstate Home Support, AT or HM services, when their earlier classification resumes under Schedule 3 of this instrument;

         Sets out when a classification level can resume after they have ceased:

o        Home Support: Classification resumes when the person notifies the System Governor they wish to reinstate Home Support services after the classification had ceased because an ongoing residential care classification took effect;

o        Short‑term Assistive Technology: classification resumes if the notification occurs before the account period ends noting that short-term AT funding is only available for a set timeframe (usually 12 months).

o        Short‑term Home Modification: Same rule as AT, restarting only if the account period is still open noting that short-term HM funding is only available for a set timeframe (usually 12 months).

         Fixes the timing of the take‑up period under the Rules;

         Aligns place‑cessation rules with expected real‑world operations.

Background

The Act commenced on 1 November 2025, establishing new legislative frameworks for access to funded aged care services, prioritisation and allocation of places, and the payment of subsidies to registered providers. Early implementation of the Act and the Rules has highlighted operational issues that require urgent correction to support continuity of services for older people and ensure the legislation functions as intended.

To address these issues in a timely manner, amendments are being made using the broad modification power under Subitem 2(1) in Schedule 6 of the Consequential and Transitional Act. This allows the Rules to temporarily modify the operation of the Act while longer‑term solutions are developed.

Provider Viability Risk and the Need for a Special Payment Mechanism

Since commencement, a small group of registered providers delivering Home Support, AT and HM services are experiencing delays submitting subsidy claims because of issues of software compatibility with the new claiming processes under Chapter 4 of the Act. As subsidy payments can only be made after the receipt of valid claims, these providers could face viability concerns despite continuing to deliver funded services.

The Act currently contains an advance‑payment mechanism for residential care only, leaving no suitable mechanism for the Support at Home programs. To ensure continuity of services and mitigate financial risks, the amendments establish a discretionary special payment framework that enables the System Governor to also make payments to Support at Home providers in advance of claim submission, following delivery of services. These payments will later be reconciled against actual claims once claiming occurs.

This measure is designed to prevent disruption to essential care while registered providers navigate the new subsidy and claiming framework under Support at Home. The mechanism will also provide a basis for paying an advance subsidy in future emergency scenarios where registered providers are unable to submit a valid claim for subsidy, for example, during a natural disaster.

Amenability to review

The mechanism is not subject to reconsideration or independent merits review as otherwise provided for in the Act. Having regard to the Administrative Review Council’s guidance What decisions should be subject to merits review? 1999, there is minimal utility in providing a review pathway when the intent of the power is to address time specific viability issues. In the likely practical circumstances, there would be no meaningful or appropriate remedy to be obtained by undertaking a review.

Special payments decisions relate solely to operational financial viability management, allowing the System Governor to provide temporary advance subsidy payments to mitigate cashflow risks where a registered provider is unable to submit claims for reasons outside the ordinary claiming process.

• This mechanism does not create any new entitlement to subsidy. A registered provider’s entitlement only arises upon submission of a compliant claim under section 251.
• Special payments do not alter whether subsidy is payable (a special payment is only payable if subsidy would have been payable under section 250 had the registered provider submitted a regular claim), nor do they affect the eligibility criteria for subsidy. They merely allow earlier payment of subsidy for services already delivered.
• Special payment approval or refusal has no bearing on any regulatory action.
• Special payment decisions do not disadvantage the provider over the ordinary course of the Act. A refusal to approve an advance payment simply results in subsidy being paid later through the regular claiming pathway.
• In effect, even following an adverse decision, the payment would be made (following the ordinary claiming process) before a merits review process would be completed.

Justification for use of power for special payments mechanism

The amendments establishing a special payment pathway are made under Item 2 of Schedule 6 of the Consequential and Transitional Act. This provision allows the Minister to modify the operations of the Act through delegated legislation in limited circumstances.

This broad modification power is intended to be used only to ensure continuity and operability in relation to care provided under the old and new law, despite transition. The foremost reason for this provision is to serve as a failsafe which ensures that the Minister is empowered to act swiftly to address the impact that unintended or unforeseen circumstances may have on the operation of the new Commonwealth aged care system, as interruption to these critical services may result in significant detriment to the older persons who rely upon them.

The System Modification Rules are made within this context. This Instrument is necessary to respond to circumstances that were unforeseen and that it is in the interests of older people for these issues to be resolved in order to ensure the Act’s effective operation. The use of this power is necessary and appropriate for the following reasons:

• Immediate operational need to ensure continuity of service delivery and viability of registered providers.
• Provides alternative payment mechanism in emergency scenarios where a registered provider unexpectedly cannot submit a valid claim for subsidy, for example, during a natural disaster.
• Existing grant processes are slow to enact and cannot accommodate financial viability support for multiple registered providers at a single given time.

The modification does not expand entitlements or alter rights. These provisions are also time limited, both in relation to the period in which they may be exercised and in the period of effect of any rules made through that exercise. This Instrument will automatically be repealed in line with the repeal of the System Modification Rules, being 12 months after those rules were made (29 October 2026) as provided for in the Consequential and Transitional Act.

Prioritisation and Place Allocation Framework

Experience with the early operation of the place‑allocation system for Home Support, AT and HM services has revealed two significant issues affecting individuals’ ability to access services.

Under the Rules, a place allocated to an individual is withdrawn if they do not commence services within the prescribed 56‑day (or extended 84‑day) take‑up period. When a place is withdrawn, the individual’s priority category also ceases to be in effect. There is no mechanism for the person to re‑enter the priority system using their existing access approval and prioritisation. Instead, they must undergo a full reassessment to obtain a new classification and priority decision, despite unchanged underlying care needs.

This results in unnecessary administrative burden and delays access to care. The amendments introduce a mechanism to reinstate an individual’s most recent priority category decision once the take‑up period expires, allowing them to return to the priority system without a full reassessment.

The Act as drafted does not allow for reinstatement of a person’s previous classification level and priority category when they transition from home‑based care to ongoing residential care and later wish to resume Home Support or AT‑HM services. Existing provisions cause their home‑based place and priority category to cease, even when operational practice and ICT systems support reinstatement in such circumstances.

This imposes unnecessary reassessment requirements and creates barriers to continuity of care for individuals who temporarily enter residential care. The amendments allow for the reinstatement of an individual’s previous classification level and priority category when they choose to resume home‑based services.

Technical Corrections to the Rules

The amendments also address drafting misalignments that currently limit the practical operation of the take‑up period and create uncertainty regarding when certain places cease to have effect. These technical adjustments ensure that:

         The 56‑day and 84‑day take‑up periods operate from the date a place is allocated, not from the date access approval was granted;

         Ongoing Home Support and (ongoing) AT places cease consistently with the cessation of their associated classification levels;

         Reinstatement mechanisms operate consistently with policy intent and ICT system settings.

These changes clarify operational settings and minimise ambiguity for providers, assessors and individuals.

Justification for use of power for reinstatement of priority and place mechanism

The amendments establishing a reinstatement mechanism for priority categories and place allocation are made under Item 2 of Schedule 6 of the Consequential and Transitional Act. This provision allows the Minister to modify the operations of the Act in limited circumstances. As with the special payments mechanism provisions above, this Instrument is necessary to respond to circumstances that were unforeseen and that it is in the interests of older people for these issues to be resolved in order to ensure the Acts effective operation.

The use of this power is necessary and appropriate for the following reasons:

These provisions are also time limited, both in relation to the period in which they may be exercised and in the period of effect of any rules made through that exercise. This Instrument will automatically be repealed in line with the repeal of the System Modification Rules, being 12 months after those rules were made (29 October 2026) as provided for in the Consequential and Transitional Act.

Authority

This instrument is authorised under the Aged Care Act 2024 and subitem 2(1) of Schedule 6 of the Aged Care (Consequential and Transitional Provisions) Act 2024.

Subitem 2(1) in Schedule 6 of the Transitional Act provides that the Minister may, by legislative instrument, make rules that alter the operation of any aspect of the Commonwealth aged care system by modifying the operation of certain provisions of the Act, the Transitional Act (other than Schedule 6), or any other Act or instrument, if the Minister is satisfied that it is necessary or appropriate to do so. This Instrument amends the System Modification Rules which are made under this item and modifies the operational detail of the Act and the Rules to ensure the effective implementation of the new aged care framework established by the Act.

In accordance with subsection 33(3) of the Acts Interpretation Act 1901, the power to make the System Modification Rules includes the power to amend, repeal or vary them as necessary. This ensures that they can be updated promptly in response to emerging issues. However, it is noted that subitem 2(8) of Schedule 6 of the Consequential and Transitional Act provides that rules must not be made under subitem 2(1) in Schedule 6 of the Consequential and Transitional Act after the end of the period of 12 months beginning on the day this subitem commenced on 20 September 2025. This means that no further rules can be made in reliance of subitem 2(1) in Schedule 6 of the Consequential and Transitional Act after 20 September 2026.

Consultation

 The department has undertaken internal consultation and external consultation with Services Australia in relation to this instrument.

Commencement

This instrument commences the day after registration.

Schedule

The operation of each Act or instrument that is specified in a Schedule to this instrument is modified as if it were amended as set out in the applicable items in the Schedule concerned.

Repeal

This instrument is repealed at the end of 12 months beginning on the day after the System Modification Rules are made, being 29 October 2026, as provided for by paragraph (4)(a) of Schedule 6 of the Consequential and Transitional Act.

Explanation of the provisions

Section 1 – Name

This section provides that this instrument is the Aged Care Legislation Amendment (2026 Measures No.1) Rules 2026

Section 2 – Commencement

This section provides for the commencement of each provision in the instrument, as set out in the table at subsection 2(1). 

The table provides that the whole of the instrument commences the day after registration.

Subsection 2(2) explains that information in column 3 of the table is not part of the instrument, and that information may be inserted in this column, or information in it may be edited, in any published version of this instrument. 

Section 3 – Authority

This instrument is authorised under the Aged Care Act 2024 and subitem 2(1) of Schedule 6 of the Aged Care (Consequential and Transitional Provisions) Act 2024.

Section 4 – Schedule

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms. 

Schedule 1—System Modification amendments–payments of subsidy

Schedule 1 amends the Aged Care (Consequential and Transitional Provisions) (Aged Care System Modification) Rules 2025 (System Modification Rules).

Item 1 – In the appropriate position in Schedule 1

Item 1 of this Instrument inserts new items 1D, 1E and 1F in the appropriate position in the System Modification Rules.

Item 1D repeals the note under subsection 250(1) of the Aged Care Act 2024 (the Act) and replaces it with new notes 1 and 2.

Note 1 provides that subsidy is not payable to the extent that there are insufficient funds in an individual’s relevant notional account: see section 251A.

Note 2 provides that subsidy may also be payable in advance of a claim being made: see Subdivision AA.

Item 1E inserts subclause (4A) after subsection 251(4) of the Act. Subclause (4A) provides that, in approving a claim for payment of an amount of subsidy to a registered provider for the relevant period for the subsidy, the System Governor must increase or reduce the amount to make any adjustments that are necessary to take account of any subsidy paid to the registered provider for the relevant period for the subsidy in accordance with Subdivision AA.

Item 1F inserts the heading ‘Subdivision AA—Payments of subsidy for home support, AT and HM in advance of claims’, along with clauses 253A, 253B, 253C, and 253D after Subdivision A of Division 6 of Part 2 of Chapter 4.

Clause 253A provides for payments of subsidy in advance of claims. Where a subsidy would have been payable to a registered provider under section 250 if:

         The registered provider gives the System Governor a request for that subsidy in accordance with subclause 253B(1); and

Clause 253B provides for the request for payments of subsidy in advance of claims.

Subclause 253B(1) provides that for the purposes of obtaining payment, a registered provider must give to the System Governor a request, in an approved form. This relates to any subsidy that is payable in accordance with clause 253A, for the relevant period for the subsidy, to the registered provider for a funded aged care service delivered to an individual through a service delivery branch of the registered provider during the relevant period.

Subclause 253B(2) provides that the System Governor may approve the request for the whole or any part of any subsidy that is payable in accordance with clause 253A to the registered provider as soon as reasonably practicable after the request is given to the System Governor under subclause (1) if:

         The payment is likely to mitigate a risk to the financial viability and sustainability of the registered provider that could disrupt the delivery of funded aged care services by the registered provider; or

         The circumstances (if any) prescribed by the rules apply.

While there is no current intention to create rules under subclause (2)(b), this is an important safeguard to allow for circumstances where a payment would align with the System Governor’s functions but not otherwise meet the test provided under subclause (2)(a). The rule making power in this circumstance is reasonable and proportionate, because of the inherent guardrail that payments of subsidy may only be made following the provision of a service to an individual and subject to the ordinary subsidy, claiming, and recovery principles.

Subclause 253B(3) provides that to avoid doubt, for the purposes of this clause:

         Multiple requests can be made for a single relevant period; and

         Requests for multiple days in the same relevant period can be included in a single request.

A decision of the System Governor not to approve a request under subclause 253B(2) is not a reviewable decision. See note above.

Clause 253C provides for working out amounts of payments of subsidy in advance of claims.

Subclause (1) provides that if the System Governor pays an amount of subsidy in accordance with this Subdivision to a registered provider for a relevant period for the subsidy, the System Governor must work out the amount for the relevant period by estimating the amount of subsidy that would be payable under Subdivision A for the relevant period if the registered provider had given the System Governor a claim for that subsidy in accordance with section 251 for the period taking into account any deductions under subsection 261(1).

Subclause (2) provides that the amounts referred to in subclause 253C(1) must be worked out in accordance with any requirements prescribed by the rules. No such rules are presently proposed.

Clause 253D provides that claims for subsidy following payments of subsidy in accordance with this Subdivision. For the avoidance of doubt, if the System Governor pays an amount of subsidy in accordance with this Subdivision to a registered provider for a relevant period for the subsidy, the registered provider must give the System Governor a claim for that subsidy in accordance with section 251.

The note provides that if the registered provider fails to give the System Governor a claim for that subsidy in accordance with section 251, the amount of subsidy paid is a recoverable amount, and the entity is a debtor in relation to the amount: see new subclause 514(4).

Item 2 – After item 21 of Schedule 1

Item 2 inserts new item 22 after item 21 of Schedule 1 of the System Modification Rules.

Item 22 adds subclause (4) at the end of section 514 of the Act. New subclause 514(4) provides that an amount of subsidy paid to an entity in accordance with Subdivision AA of Division 6 of Part 2 of Chapter 4 is a recoverable amount, and the entity is a debtor in relation to the amount, if the entity fails to give the System Governor a claim for that subsidy in accordance with section 251.

Schedule 2—System Modification amendments—priority categories

Schedule 2 amends the System Modification Rules.

Item 1 – In the appropriate position in Schedule 1

Item 1 of Schedule 2 of the Instrument inserts new Items 1A, 1B, and 1C in the appropriate position in Schedule 1 of the System Modification Rules.

Item 1A inserts a ‘(1)’ before ‘A’ in section 89 of the Act.

Item 1B follows by then adding an additional subclause (2) to section 89 which provides that a decision that has ceased to have effect under the new subclause (1) resumes being in effect for a period in circumstances prescribed by the Rules.

Item 1C modifies paragraph 92(4)(b) of the Act by omitting the words “if the service group is residential care” from the paragraph.

Item 2 – In the appropriate position in Schedule 2

Item 2 of Schedule 2 of this Instrument inserts new Item 1A in the appropriate position in Schedule 2 of the System Modification Rules.

Item 1A modifies the Rules by inserting:

         A new division, “Division 5 - Period of effect of decisions” at the end of Part 4 of Chapter 2 of the Rules; and

         A new clause “89-5 Circumstances in which decisions resume being in effect for a period” within that division.

Subclause 89-5(1) provides for circumstances in which a decision under subsection 86(1) of the Act about an individual’s priority category for a classification type for a service group that has ceased to have effect under subsection 89(1) of the Act resumes being in effect for a period.

Subclause 89-5(2) applies to circumstances where a place allocated to an individual for the service group home support, AT or HM is taken to be withdrawn due to expiration of the take up period in prescribed in section 92A-5.

Subclause 89-5(2) provides that a decision about an individual’s priority category for a classification type for the service groups home support, assistive technology and home modifications that has ceased to have effect under paragraph 89(1)(a) or (aa) of the Act resumes being in effect, immediately after it ceased to have effect, if:

         The place allocated to the individual for the classification type for the service group under subsection 92(1) of the Act does not take effect and is taken to be withdrawn under subsection 92A(2) of the Act; and

         The individual notifies the System Governor that the individual needs the decision to resume being in effect.

Paragraph 89-5(2)(b) provides that once a priority category has resumed being in effect, it remains in effect in accordance with section 89 of the Act.

Subclauses 89-5(3)-(5) apply to circumstances where a classification level for the service group Home Support, Assistive Technology or Home Modification resumes being in effect after it had previously ceased to have effect due to the individual entering ongoing residential care.

Subclause 89-5(3) provides that a decision about an individual’s priority category for a classification type for the service group home support that has ceased to have effect under paragraph 89(1)(a) of the Act resumes being in effect if the circumstances in paragraphs (a)(i)-(iii) apply. Those circumstances are:

         The place allocated to the individual for the classification type for the service group under subsection 92(1) of the Act ceased to have effect under paragraph 92A-10(a) of the Rules because a classification level for the classification type ongoing for the service group residential care has taken effect for the individual; and

         A classification level for a classification type for the service group home support for the individual, that ceased being in effect because the classification level for the classification type ongoing for the service group residential care mentioned in subparagraph (i) has taken effect for the individual, resumes being in effect under subclause 80-49(1) of this instrument; and

         The individual notifies the System Governor that the individual needs the decision to resume being in effect.

Paragraphs 89-5(3)(b) and (b) provide that in the circumstances above, the individuals priority category will resume being in effect when the individual notifies the System Governor and will then remain effect in accordance with section 89 of the Act.

Subclause 89-5(4) provides that a decision about an individual’s priority category for the classification type short term for the service group assistive technology that has ceased to have effect under paragraph 89(1)(aa) of the Act resumes being in effect if the circumstances in paragraphs (a)(i)-(iii) apply. Those circumstances are:

         The place allocated to the individual for the classification type for the service group under subsection 92(1) of the Act ceased to have effect under paragraph 92A-10(a) of this instrument because a classification level for the classification type ongoing for the service group residential care has taken effect for the individual; and

         A classification level for the classification type short term for the service group assistive technology for the individual, that ceased being in effect because the classification level for the classification type ongoing for the service group residential care mentioned in subparagraph (i) has taken effect for the individual, resumes being in effect under subclause 80-49(3) of this Instrument; and

         The individual notifies the System Governor that the individual needs the decision to resume being in effect.

Paragraphs 89-5(4)(b) and (c) provide that in the circumstances above, the individuals priority category will resume being in effect when the individual notifies the System Governor and will then remain effect in accordance with section 89 of the Act.

Subclause 89-5(5) provides that a decision about an individual’s priority category for the classification type short term for the service group HM that has ceased to have effect under paragraph 89(1)(aa) of the Act resumes being in effect if the circumstances in paragraphs (a)(i)-(iii) apply. Those circumstances are:

         The place allocated to the individual for the classification type for the service group under subsection 92(1) of the Act ceased to have effect under paragraph 92A-10(a) of this instrument because a classification level for the classification type ongoing for the service group residential care has taken effect for the individual; and

         A classification level for the classification type short term for the service group HM for the individual, that ceased being in effect because the classification level for the classification type ongoing for the service group residential care mentioned in subparagraph (i) has taken effect for the individual, resumes being in effect under subclause 80-49(4) of this instrument; and

         The individual notifies the System Governor that the individual needs the decision to resume being in effect.

Paragraphs 89-5(5)(b) and (c) provide that in the circumstances above, the individuals priority category will resume being in effect when the individual notifies the System Governor and will then remain effect in accordance with section 89 of the Act.

Schedule 3—Rules amendments—classification, prioritisation and place allocation

Schedule 3 amends the Aged Care Rules 2025 (the Rules).

Item 1 – After Subdivision B of Division 2 of Part 3 of Chapter 2

Item 1 of Schedule 3 of this Instrument inserts:

         A new subdivision “Subdivision BA—Circumstances in which classification levels resume being in effect for a period” after Subdivision B of Division 2 of Part 3 of Chapter 2 of the Rules; and

         New clauses 80-47 and 80-49 into Subdivision BA.

Clause 80-47 provides that for the purposes of subsection 80(1) of the Act, this Subdivision provides, subject to subsection 80(3) of the Act, circumstances in which a classification level for an individual that has ceased being in effect resumes being in effect for a period.

Clause 80-49 provides for circumstances in which a classification level resumes being in effect for a period for the service groups home support, AT and HM.

Subclause 80-49(1) provides that for a classification level for a classification type for the service group home support for an individual that has ceased being in effect because a classification level for the classification type ongoing for the service group residential care has taken effect for the individual, the classification level for a classification type for the service group home support:

In practical terms, this ensures the classification level resumes effect so that a person can obtain services under home support.

Subclause 80-49(2) provides that subclause 80-49(1) does not apply to the classification level CHSP class for the classification type ongoing for the service group home support.

Subclause 80-49(3) provides that for a classification level (the individual’s old AT classification level) for the classification type short term for the service group assistive technology for an individual that has ceased being in effect because a classification level for the classification type ongoing for the service group residential care has taken effect and resumes being in effect for the individual:

         If the individual notifies the System Governor that the individual needs the classification level to resume being in effect; and

         If when the individual so notifies the System Governor, the account period for the individual’s notional assistive technology account established in respect of the individual’s old AT classification level has not ended; and

         When the individual so notifies the System Governor; and

         In accordance with section 80 of the Act and Subdivision B of Division 2 of Part 3 of Chapter 2 of the Rules.

In practical terms, this ensures the classification level resumes effect so that a person can obtain services under AT.

Subclause 80-49(4) provides that for a classification level (the individual’s old HM classification level) for the classification type short term for the service group home modifications for an individual that has ceased being in effect because a classification level for the classification type ongoing for the service group residential care has taken effect and resumes being in effect for the individual:

         If the individual notifies the System Governor that the individual needs the classification level to resume being in effect; and

         If when the individual so notifies the System Governor, the account period for the individual’s notional home modifications account established in respect of the individual’s old HM classification level has not ended; and

         When the individual so notifies the System Governor; and

         In accordance with section 80 of the Act and Subdivision B of Division 2 of Part 3 of Chapter 2 of the Rules.

In practical terms, this ensures the classification level resumes in effect so that a person can obtain services under HM.

Item 2 – Sections 92A‑5 and 92A‑10

Item 2 of Schedule 3 of this Instrument repeals section 92A-5 and 92A-10 of the Rules and replaces them with the below.

Clause 92A‑5 provides for the period for start day for when a place is in effect for the service groups home support, assistive technology and home modifications. For the purposes of subclause 92A(2) of the Act, the period for a place allocated under subclause 92(1) of the Act to an individual is:

Clause 92A-10 provides for when a place ceases to have effect for the service groups home support, assistive technology and home modifications. For the purposes of subclause 92A(4) of the Act, the time when a place allocated under subclause 92(1) of the Act to an individual for a classification type for the service group home support, assistive technology or home modifications ceases to have effect ceases to have effect is the end of the earlier of the following (as applicable):

         For a place allocated to an individual for whom a classification level has been established for the classification type for the service group by a classification decision—the period of effect for the classification level;

         The day the individual dies.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Aged Care Legislation Amendment (2026 Measures No.1) Rules 2026

This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Instrument

The Aged Care Legislation Amendment (2026 Measures No.1) Rules 2026 (the Instrument) are made under the Aged Care Act 2024 (the Act) and the Aged Care (Consequential and Transitional Provisions) Act 2024 (the Consequential and Transitional Act). The Instrument:

         Establishes an interim, discretionary special payment framework enabling the System Governor to make advance payments of subsidy for services in the Home Support, Assistive Technology (AT) and Home Modifications (HM) service groups, to address short term provider viability risks where standard claiming processes cannot be used.

         Creates mechanisms to reinstate an individual’s priority category decision and classification level in specified circumstances, including where a place is not taken up within the prescribed period or where a person temporarily enters ongoing residential care and later resumes home‑based services.

         Makes associated technical corrections to the Rules to align take-up periods and place cessation settings with policy intent and operational practice.

The special payment mechanism does not create any new entitlement to subsidy and does not affect regulatory decisions: it simply allows earlier payment, on a discretionary basis, of amounts that would be payable via ordinary claims once submitted. Registered providers remain required to lodge claims and any advances are subsequently reconciled.

Human rights implications

The instrument engages the following rights:

         The right to social security in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 28(2) of the Convention on the Rights of Persons with Disabilities (CRPD)

         The right to the highest attainable standard of health in article 12 of the ICESCR and article 25 of the CRPD.

         The right to an adequate standard of living in article 11(1) of the ICESCR;

         The right to equality and non-discrimination in article 2(2) of the ICESCR and articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the CRPD.

Assessment of Compatibility

Right to Social Security

The right to social security in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 28(2) of the Convention on the Rights of Persons with Disabilities (CRPD) protects access to social support systems that assist individuals to secure an adequate standard of living and to participate fully in the community. The UN Committee has stated that the right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their rights under the ICESCR. The UN Committee has stated that the right to social security, through its redistributive character, plays an important role in poverty reduction and alleviation. It has also stated that social security prevents social exclusion and promotes social inclusion.

The instrument engages this right because it modifies the operation of the Aged Care Act 2024 and associated Rules in ways that affect how older people access government funded aged care services, and how subsidies are paid to registered providers that deliver those services. The amendments support the realisation of the right to social security by ensuring continuity of essential Home Support, Assistive Technology and Home Modifications services, including through the creation of an interim special payment mechanism to maintain provider viability where standard claiming processes cannot be used.

The amendments also strengthen individuals’ access to care by reinstating previous priority category decisions and classification levels in circumstances where care needs remain unchanged, preventing unnecessary reassessment requirements and avoiding delays or interruptions in access to services.

These measures collectively promote timely, practical access to social support and care, and ensure that individuals, particularly those with disability or significant functional limitations, can continue to receive the services they rely upon to live safely and independently in their own homes. The instrument does not reduce any entitlement to subsidy or restrict access to aged care services, and in practice enhances the effectiveness, stability and responsiveness of the aged care system, thereby positively engaging the right to social security.

Right to Health

The right to the highest attainable standard of physical and mental health, protected by Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 25 of the Convention on the Rights of Persons with Disabilities (CRPD), encompasses timely and appropriate access to health-related services that enable individuals to maintain wellbeing, functional capacity, and independence.

The instrument engages this right because it directly affects the availability and continuity of essential aged care supports, such as Home Support, Assistive Technology and Home Modifications, that enable older people and people with disability to remain safely in their homes and communities. By establishing a special payment mechanism for providers who are unable to submit subsidy claims due to interruptions, the amendments help ensure continued delivery of these services, preventing gaps in care that could heighten health risks or exacerbate underlying conditions. The reforms therefore support, rather than limit, access to health related assistance that forms part of Australia’s broader social support and health framework.

The amendments also promote the right to health by ensuring individuals can continue to receive appropriate care without unnecessary reassessment or administrative delay. The reinstatement of previous classification levels and priority category decisions allows older people the ability to re-access Home Support, AT and HM services in a timely manner, including after short periods in residential care or where a place has lapsed solely due to the expiry of the take-up period. This reduces the risk that individuals with unchanged needs will experience interruptions in essential care, particularly where delays could lead to deterioration in functional ability, increased falls risk, or avoidable hospitalisation. The technical corrections to the take-up period and place cessation rules further strengthen system clarity and predictability, allowing providers and the System Governor to support timely access to services. Collectively, these measures advance the realisation of the right to health by improving continuity of care, reducing barriers caused by administrative rigidities, and ensuring that older Australians and people with disability can access the supports necessary to maintain health, autonomy and quality of life.

Right to an adequate standard of living

The instrument engages the right to an adequate standard of living, including adequate food, water and housing, and to the continuous improvement of living conditions is contained in article 11(1) of ICESCR. Article 28(1) of the CRPD also requires countries to take appropriate measures to ensure an adequate standard of living and social protection for persons with disabilities, including clean water services, access for older persons with disabilities to social protection programs, appropriate and affordable services, devices and other assistance and public housing programs.

AT and HM services enable older people and people with disability to live safely in their homes through environmental modifications, mobility supports and assistance with daily living. Ensuring continuity of these services, by stabilising provider cashflow during system transition and by facilitating rapid return to the priority system, promotes the right to an adequate standard of living, including adequate housing and conditions of life. The Instrument does not diminish benefits or reduce access; rather, it mitigates the risk that administrative rigidity or temporary system issues would compromise living conditions.

Right to equality and non-discrimination

The rights to equality and non-discrimination are contained in articles 2 and 26 of the ICCPR and article 2(2) of the ICESCR. The rights to equality and non-discrimination provide that all persons are equal before the law and entitled, without any discrimination, to the equal protection of the law. Non-discrimination is an integral part of the principle of equality. It ensures that no one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth. The Human Rights Committee has recognised that 'not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant'.

Administrative barriers can disproportionately impact people with disability, cognitive impairment, or limited capacity to navigate reassessment processes. The reinstatement mechanism reduces these barriers by enabling people with unchanged needs to resume services without repeating comprehensive reassessment. The special payment framework may also assist smaller or rural/remote providers serving cohorts at greater risk of disadvantage, supporting equitable access to services across regions and communities. The Instrument therefore positively engages equality and non-discrimination rights.

Conclusion

The Aged Care Legislation Amendment (2026 Measures No.1) Rules 2026 are compatible with human rights. The Instrument promotes the rights to social security, health, an adequate standard of living, equality and non‑discrimination. Overall, the Instrument advances the protection of human rights by ensuring the continuity, timeliness and accessibility of essential aged care supports.

Sam Rae

Minister for Aged Care and Seniors