EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for Social Services
Aged Care (Transitional Provisions) Act 1997
Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Removal of Certification and Other Measures) Determination 2015
The Omnibus Repeal Day (Autumn 2014) Act 2014 amended the Aged Care Act 1997 (the Act) and the Aged Care (Transitional Provisions) Act 1997 (TP Act) to repeal the requirement for residential care services to be certified. The repeal of the certification provisions occurred as part of the Government’s red tape reduction agenda
Certification requirements under the Act were duplicative, in that a number of these requirements replicated building regulations administered by state, territory and local governments. Aspects of certification under the Act also replicated certain requirements under the Accreditation Standards administered by the Australian Aged Care Quality Agency.
The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Removal of Certification and Other Measures) Determination 2015 (Amending Determination) addresses consequential changes required as a result of the repeal of certification from the Act and the TP Act, and unrelated unintended drafting errors made in the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014.
For the purposes of eligibility for the concessional resident supplement, it is necessary to distinguish between care recipients who entered a service after it was certified or before. The Amending Determination addresses this matter. In addition the Amending Determination makes technical corrections in relation to the accommodation and concessional resident supplement.
The amending determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
This Amending Determination commences the day after it is registered on the Federal Register of Legislative Instruments.
Reliance on subsection 33(3) of the Acts Interpretation Act 1901
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Consultation
The amendments in Part 1 are consequential amendments that flow from the Omnibus Repeal Day (Autumn 2014) Act 2014. As such no specific consultations were undertaken in regard to the changes in this instrument.
The amendments in Part 2 make technical corrections. As Part 2 is of a machinery nature and does not substantially alter existing arrangements no consultation has occurred (section 18, Legislative Instruments Act 2003).
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required in respect of the repeal of certification requirements (OBPR ID: 16379) or the technical corrections made to the amount of concessional resident supplement (OBPR ID: 17938) or accommodation supplement payable (OBPR ID: 17541).
ATTACHMENT
Details of the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Removal of Certification and Other Measures) Determination 2015
Clause 1 states that the name of the determination is the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Removal of Certification and Other Measures) Determination 2015.
Clause 2 sets out the commencement date of the Amending Determination.
Clause 3 provides that the authority for the making of the determination is the Aged Care (Transitional Provisions) Act 1997.
The authority for making some specific amendments is subsections 44‑5A(3), 44‑6(4) and 44‑12(3) of the Aged Care (Transitional Provisions) Act 1997.
Clause 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 – Amendments
Part 1 – Amendments relating to removal of certification
Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014
Item 1 – Section 20
This item inserts a definition for ‘certified’, which allows the TP Determination to deal with certification matters for transitional residents, such as concessional residents and assisted residents. This is needed for Item 2 below.
Item 2 – At the end of Division 2 of Part 2 of Chapter 2
This item inserts a new section 23A to make technical corrections to clarify the eligibility requirements for the concessional resident supplement in light of the repeal of certification on 17 October 2014 by the Omnibus Repeal Day (Autumn 2014) Act 2014. These amendments ensure continuity with previous arrangements by ensuring the certification amendments made on 17 October 2014 do not affect eligibility for the concessional resident supplement. Concessional and assisted residents in a non-certified aged care home are instead eligible for transitional supplement.
New section 23A provides that whether a care recipient entered care before 17 October 2014 and the certification status of the service will determine whether or not concessional resident supplement should be paid for a day. This item does not affect eligibility for the concessional resident supplement for a day during the period of 17 October 2014 to the date of registration. The calculation and payment of concessional resident supplement according to new section 23A will only commence from the date of commencement and not from 17 October 2014.
Item 3 – Section 29 (definition of certified residential care service)
This item repeals the definition of ‘certified residential care service as it is no longer needed.
Item 4 – Subsections 30(2) and (3)
This item repeals the subsections and substitutes a new subsection (2) which removes references to certification.
Item 5 – Subsection 31(2) (heading)
This item repeals the heading as it refers to certification.
Item 6 – Subsection 31(2)
This item removes the reference to certified residential care service.
Item 7 – Subsection 31(3)
This item repeals the subsection as it refers to certification.
Item 8 – Subsection 31(4)
This item removes the reference to paragraph (3)(b) as a result of Item 7 above.
Part 2 – Amendments relating to primary supplements
Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014
Items 9 and 11– Section 5
These items insert definitions for ‘newly built residential care service’, ‘relevant resident’ and significantly refurbished residential care service’. These terms are needed for Items 15, 16, 18, 20 and 22 below.
Item 10 – Section 5 (definition of new resident)
This item repeals the definition of ‘new resident’ as it is no longer needed.
Items 12 and 17 – Sections 14 and 20
These items repeal the definitions for ‘newly built residential care service’ and ‘significantly refurbished residential care service’ as a result of Items 9 and 11.
Item 13 – Subsection 15(1)
This item clarifies that the residential care service must meet the building requirements specified in Schedule 1 to the Aged Care (Transitional Provisions) Principles 2014.
Item 14 – Subsection 15(3)
This item simplifies the reference to subsections 15(1) and 15(2).
Items 15 and 16 – Subparagraphs 16(2)(a)(i)-(ii) and 17(3)(a)(i)-(ii)
This item makes technical corrections to clarify the operation of the accommodation supplement, by repealing the subparagraphs and substituting new subparagraphs.
Items 18, 20 and 22 – Paragraphs 21(1)(b), 21(2)(b) and 22(1)(b)
These items substitute the term ‘the new residents’ with ‘relevant residents’ as a result of Items 10 and 11 above.
Items 19, 21 and 23 – Paragraphs 21(1)(b), 21(2)(b) and 22(1)(b)
This item repeals the references to respite care as this is duplicative as a result of Items 18, 20 and 22 above.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Removal of Certification and Other Measures) Determination 2015
This Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Removal of Certification and Other Measures) Determination 2015 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 Legislative Instrument
The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Removal of Certification and Other Measures) Determination 2015 removes and makes a technical correction by clarifying how to calculate the amount of accommodation supplement and concessional resident supplement in certain circumstances.
Human rights implications
This legislative instrument is compatible with the right to an adequate standard of living contained in article 11 of the International Covenant on Economic, Social and Cultural Rights. Aged care facilities must continue to comply with state and territory building requirements.
The legislative instrument is also compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health as contained in article 11(1) and article 12(1) of the International Covenant on Economic, Social and Cultural Rights, and article 25 and article 28 of the Convention on the Rights of Persons with Disabilities. The amending determination continues to enable the payment of supplements to approved providers for the provision of care and services to people with a condition of frailty or disability who require assistance to achieve and maintain the highest attainable standard of physical and mental health.
Conclusion
This legislative instrument is compatible with human rights as it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health.
Senator the Hon Mitch Fifield
Assistant Minister for Social Services