EXPLANATORY STATEMENT
Family and Community Services (Tasmanian Motor Accidents Insurance Board Future Care Payments) Determination 2005
Summary
Section 35A of the Social Security Act 1991 (the Act) allows Ministers to determine that a scheme for the provision of personal care support is an “approved scheme” for the purposes of the Act. This instrument determines that the Tasmanian Motor Accidents Insurance Board Future Care Payments scheme for personal care support is an “approved scheme” under section 35A.
The effect of this instrument is that people who receive Tasmanian Motor Accidents Insurance Board Future Care Payments, and who also receive an Australian social security payment for which the Minister for Family and Community Services is responsible, will not have these Future Care Payments taken into account for the purposes of the social security income test.
Background
Under the social security law all income earned, derived or received for a person’s own use or benefit, is counted as income. The only exceptions are items specifically exempted from the social security income test. Specific provisions in the Act allow Ministers to exempt certain kinds of payments from the social security income test, within principles defined in the Act, without the need for legislative change.
Section 35A of the Act allows Ministers to determine that a scheme for the provision of personal care support is an “approved scheme” for the purposes of the Act. Payments made under an “approved scheme” are exempt from the income test under paragraph 8(8)(zi) of the Act in relation to the person who is receiving care. Since 1992, only a small number of schemes have been approved for the purposes of section 35A.
Explanation of the instrument
This instrument determines that the Tasmanian Motor Accidents Insurance Board Future Care Payments scheme is an “approved scheme” under section 35A of the Act.
The Tasmanian Motor Accidents Insurance Board makes payments under the Future Care Payments scheme to people, who have an ongoing injury as a result of a transport accident, for their personal care.
Some Tasmanian Motor Accidents Insurance Board Future Care Payments recipients may also receive an Australian social security payment, for which the Minister for Family and Community Services is responsible. The effect of this instrument is that these customers will not have their social security payments reduced because of the Future Care Payments that they receive, because their Future Care Payments will not be regarded as income in accordance with paragraph 8(8)(zi) of the Act.
A payment that is made from a scheme that has been approved by the Minister under s 35A of the Act will not be assessed as income of the customer for social security means testing purposes. However, this amount may also be assessed as other than income under the Act, where the Act allows this to occur. For example, if a payment made from this scheme forms part of a compensation lump sum, then the amount will still be assessed as “compensation” for the purposes of the Act and assessed according to the rules in Part 3.14 of the Act.
The Tasmanian Motor Accidents Insurance Board Future Care Payments are similar to other personal care support schemes that have previously been approved under section 35A of the Act.
Explanation of the provisions
Section 1 of the Determination states the name of the determination.
Section 2 provides that the Determination commences on 1 September 2005.
Section 3 provides a description of the Tasmanian Motor Accidents Insurance Board Future Care Payments Scheme.
Consultation
The Department of Employment and Workplace Relations and the Department of Education, Science and Training were consulted to ensure a co-ordinated and consistent approach to the administration of Future Care Payments for all social security payments under the Act.
This instrument is beneficial to customers because it determines that this scheme is an “approved scheme” allowing the payments to be exempt from the social security income test for payments for which the Minister for Family and Community Services is responsible. Public consultation was therefore seen as unnecessary.
Retrospectivity
This instrument is to take effect on 1 September 2005 and is not to apply retrospectively.
Overview
The Family and Community Services (Tasmanian Motor Accidents Insurance Board Future Care Payments) Determination 2005 was enacted to address the need for exempting certain personal care support payments from the social security income test. This instrument was introduced by the Parliament of Australia under section 35A of the Social Security Act 1991, allowing Ministers to determine that specific schemes for personal care support are "approved schemes." The policy objective of this determination is to ensure that individuals receiving Tasmanian Motor Accidents Insurance Board Future Care Payments, who are also recipients of Australian social security payments overseen by the Minister for Family and Community Services, are not subject to a reduction in their social security benefits due to these care payments. Instead, these Future Care Payments are exempt from being assessed as income for social security means testing purposes, thus providing financial relief and stability to those in need of ongoing personal care following transport accidents in Tasmania.
Scope and Application
The Family and Community Services (Tasmanian Motor Accidents Insurance Board Future Care Payments) Determination 2005 pertains to the Tasmanian Motor Accidents Insurance Board's Future Care Payments scheme for personal care support. This scheme, which assists individuals with ongoing injuries resulting from transport accidents, is designated as an "approved scheme" under section 35A of the Social Security Act 1991. This designation ensures that Future Care Payments are exempt from the social security income test for those recipients who are also beneficiaries of Australian social security payments managed by the Minister for Family and Community Services. This means that the income from these payments will not reduce the social security payments of eligible recipients. The exemption applies only to the income test and not to other assessments under the Act, such as lump sum compensation assessments. The Determination, which came into effect on 1 September 2005, was developed in consultation with the Department of Employment and Workplace Relations and the Department of Education, Science and Training, ensuring a coordinated approach to the administration of these payments. It is noteworthy that this instrument does not apply retrospectively and was not subject to public consultation, given its targeted and specific nature.
Key Provisions
The Family and Community Services (Tasmanian Motor Accidents Insurance Board Future Care Payments) Determination 2005 (the Determination) introduces a provision under section 35A of the Social Security Act 1991 (the Act) that recognises the Tasmanian Motor Accidents Insurance Board Future Care Payments scheme as an "approved scheme" for the purposes of the Act. This means that recipients of Future Care Payments who are also receiving an Australian social security payment for which the Minister for Family and Community Services is responsible will not have these Future Care Payments taken into account for the purposes of the social security income test. Section 1 of the Determination provides the name of the determination, while section 2 specifies that it commences on 1 September 2005. Section 3 describes the Tasmanian Motor Accidents Insurance Board Future Care Payments Scheme.
The Determination imposes certain obligations on the parties involved. It requires the Tasmanian Motor Accidents Insurance Board to make payments under the Future Care Payments scheme to individuals who have an ongoing injury as a result of a transport accident, for their personal care. It also imposes an obligation on the Minister for Family and Community Services to ensure that Future Care Payments are exempt from the social security income test for those who are also receiving an Australian social security payment under the Act. This exemption is intended to provide relief to individuals who may otherwise face a reduction in their social security payments due to the receipt of Future Care Payments.
Failure to comply with the requirements of the Determination may result in civil or criminal consequences. However, the Determination does not explicitly state the specific offences, penalties, or consequences for breach. Under the general provisions of the Act, penalties for non-compliance with social security laws can include fines, imprisonment, or both, depending on the severity of the offence. The maximum penalties for offences under the Act are prescribed in the relevant legislation and may vary depending on the specific circumstances of the case. It is important for individuals and entities subject to the Determination to adhere to its provisions to avoid any potential legal repercussions.