EXPLANATORY STATEMENT
Issued by the authority of the Minister for Ageing
Aged Care Act 1997
Allocation Amendment Principles 2009 (No.1)
The Aged Care Act 1997 (the Act) provides for the funding of aged care services. Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy payments in respect of the care they provide to approved care recipients.
Subsection 96-1(1) of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act. One set of Principles made under the Act is the Allocation Principles 1997 (the Allocation Principles).
The purpose of the Allocation Amendment Principles 2009 (No. 1) (the Amending Principles) is detailed below. The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Allocation Amendment Principles 2009 (No. 1)
An approved provider can only receive subsidy under Chapter 3 of the Act for providing aged care in respect of which a place has been allocated. The Commonwealth plans the distribution between regions of the available places in respect of types of subsidies. It then invites applications and allocates the places to approved providers.
One of the matters that the Secretary of the Department of Health and Aging can determine when allocating places is the proportion of care that must be provided to people with special needs.
Section 11-3 defines ‘people with special needs’ as follows:
a) people from Aboriginal and Torres Strait Islander communities;
b) people from non-English speaking backgrounds;
c) people who live in people in rural or remote areas;
d) people who are financially or socially disadvantaged; and
e) people of a kind (if any) specified in Allocation Principles.
Currently the Allocation Principles specify veterans as another group of people who have special needs for the purpose of the Act.
The purpose of these Amending Principles is to specify a further class of people, namely people who are homeless or at risk of becoming homeless. This ensures that the Secretary can cater for the needs of homeless people (or people at risk of becoming homeless) when making allocations of places to approved providers.
This amendment fulfils an undertaking made by the Government in the White Paper: Homelessness: The Road Home to amend the aged care legislation to recognise older people who are homeless as a special needs group.
Consultation
As noted above, this amendment reflects an undertaking given by the Government in the White Paper. Extensive consultation was undertaken in relation to undertakings made in the White Paper including this one.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required.
Details of the amendments to the Allocation Principles are listed at Attachment A.
ATTACHMENT A
NOTES ON CLAUSES
Section 1 states that the name of the instrument is the Allocation Amendment Principles 2009 (No.1) (the Amending Principles).
Section 2 states that the Amending Principles commence on 1 June 2009.
Section 3 states that the Amending Principles amend the Allocation Principles 1997 in accordance with the Schedule.
Schedule 1 Amendment
Item 1
This item inserts a new subsection (subsection 4.4C Homeless people) in the Allocation Principles. The effect of the amendment is to include people who are homeless or at risk of becoming homeless within the definition of “people with special needs” in section 11-3 of the Aged Care Act 1997 (the Act). Other people defined as “people with special needs” for the purpose of the Act are:
- people from Aboriginal and Torres Strait Islander communities;
- people from non-English speaking backgrounds;
- people who live in people in rural or remote areas;
- people who are financially or socially disadvantaged; and
- veterans.
Overview
The Aged Care Act 1997 governs the funding of aged care services, allowing approved providers to receive subsidies for care they offer to approved recipients. To facilitate this, the Minister for Ageing can establish Principles under subsection 96-1(1) of the Act, which include the Allocation Principles 1997 that determine various matters concerning the allocation of places for aged care. The Allocation Amendment Principles 2009 (No. 1) were introduced to address a gap in the existing legislation by recognising homeless people or those at risk of homelessness as a special needs group, thus amending the Allocation Principles 1997. This change was enacted to fulfil a commitment made in the White Paper: Homelessness: The Road Home, ensuring that the needs of homeless individuals are considered during the allocation process. These Amending Principles, made under the Legislative Instruments Act 2003, officially commenced on 1 June 2009.
Scope and Application
The Aged Care Act 1997 governs the funding of aged care services and applies to approved providers who can receive subsidy payments for the care they provide to approved care recipients. The Allocation Amendment Principles 2009 (No.1) amends the Allocation Principles 1997 to include a further class of people, namely those who are homeless or at risk of becoming homeless, within the definition of "people with special needs" for the purposes of allocating places for aged care services. These Amending Principles ensure that the Secretary of the Department of Health and Ageing can cater for the needs of homeless people when making allocations of places to approved providers. The amendment applies nationally and is effective from 1 June 2009, with no specific exclusions or thresholds mentioned in the explanatory statement. Subordinate instruments may extend or restrict the application of these principles as needed.
Key Provisions
The main operative sections of the Allocation Amendment Principles 2009 (No.1) (the Amending Principles) are focused on amending the Allocation Principles 1997 to include a new class of people with special needs. Section 3 of the Amending Principles states that they amend the Allocation Principles 1997 in accordance with the Schedule. The Schedule, specifically Item 1, inserts a new subsection (subsection 4.4C Homeless people) in the Allocation Principles. This amendment results in the inclusion of people who are homeless or at risk of becoming homeless within the definition of “people with special needs” as per section 11-3 of the Aged Care Act 1997.
The obligations and requirements imposed by the Amending Principles on the parties governed by the Act are primarily concerned with the allocation of aged care places. The Secretary of the Department of Health and Ageing, when allocating places to approved providers, must now consider the proportion of care that must be provided to people with special needs, including the newly defined group of homeless or at-risk-of-homelessness individuals. This ensures that the allocation process considers the needs of this vulnerable group. Approved providers must also be aware that their eligibility for subsidy payments may now be contingent upon their provision of care to people with special needs, including those who are homeless.
The Act does not explicitly detail specific offences, penalties, or civil/criminal consequences for breaches of the Amending Principles within the text provided. However, breaches of the Aged Care Act 1997, which the Amending Principles support, can lead to various consequences. For instance, failure to comply with the Act's requirements could result in financial penalties or the suspension of funding. Furthermore, serious breaches might be subject to criminal penalties if they involve fraud or other illegal activities. The specific penalties would depend on the nature and severity of the breach, as outlined in the Aged Care Act 1997 and related regulations.