EXPLANATORY STATEMENT
Social Security (Exempt Lump Sum - Pastoral Care and Assistance Scheme) Determination 2017
Summary
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 under the social security law. Paragraph 8(11)(d) of the Social Security Act 1991 (the Act) allows the Secretary of the Department of Social Services to determine that an amount or class of amounts received by a person is an exempt lump sum for the purposes of the Act. An exempt lump sum is not included in the definition of “ordinary income” under subsection 8(1) of the Act, so any such amount would not be taken into account under the social security income test.
In 2007, three determinations (the 2007 determinations) were made which provided that a payment made under the Pastoral Care and Assistance Scheme Anglican Church Diocese of Sydney and ANGLICARE Diocese of Sydney to persons who were victims of child abuse or sexual misconduct by a church worker, is an exempt lump sum under paragraph 8(11)(d).
Three determinations were necessary as the administration of social security payments under the Act was split between three Commonwealth departments.
Some of the people receiving a payment made under Pastoral Care and Assistance Scheme Anglican Church Diocese of Sydney and ANGLICARE Diocese of Sydney may also be in receipt of a social security payment. The effect of the 2007 determinations was that a payment made under this Scheme was not to be regarded as income under the Act. Accordingly, if a social security customer receives such a payment, it will be exempt from the social security income test.
This instrument remakes the 2007 determinations. Had the 2007 determinations not been re-made, they would automatically be repealed on 1 April 2017. In consultation with the Anglican Church, Diocese of Sydney and Anglican Community Services, the Department of Social Services has reviewed the 2007 determinations and determined that an exemption for these payments is still required. Accordingly, this instrument re-makes the 2007 determinations in a single determination. Only one determination is required as the Department of Social Services now has sole responsibility for payments subject to the income test in the Act.
This new instrument refers to payments made by the Anglican Church, Diocese of Sydney and the Sydney Anglican Home Mission Society Council. The Sydney Anglican Home Mission Society Council was the legal entity name for Anglicare Diocese of Sydney. The Sydney Anglican Home Mission Society Council and Anglican Retirement Villages, Diocese of Sydney have now merged to form Anglican Community Services. As part of this arrangement, the Sydney Anglican Home Mission Society Council remains in place to administer the Pastoral Care and Assistance Scheme, and is therefore referred to in this instrument.
Aside from this change of name and some other minor updates and streamlining, this instrument has the same legal effect as the three determinations it replaces.
Explanation of Provisions
Section 1 of the Determination states the name of the Determination.
Section 2 provides that the Determination commences on the day after it is registered.
Section 3 provides that the authority for making this Determination is paragraph 8(11)(d) of the Act.
Section 4 revokes previous determinations made in 2007, specifically those made by the then Department of Family, Community Services and Indigenous Affairs, the then Department of Employment and Workplace Relations and the then Department of Education, Science and Training.
Section 5 contains definitions of certain terms used in the Determination. The terms “Act”, “Pastoral Care and Assistance Scheme” and “Pastoral Care and Assistance Scheme Payment” are defined. Pastoral Care and Assistance Scheme refers to the scheme operated by the Anglican Church Diocese of Sydney and the Sydney Anglican Home Mission Society Council that provides one off payments to persons who were victims of child abuse or sexual misconduct by a church worker in the context of, or related to, their church role. Pastoral Care and Assistance Scheme Payment refers to payments made by the Anglican Church Diocese of Sydney and Sydney Anglican Home Mission Society Council under the Pastoral Care and Assistance Scheme.
Section 6 specifies that a payment made to a person under the Pastoral Care and Assistance Scheme is an exempt lump sum for the purposes of paragraph 8(11)(d) of the Social Security Act 1991. Such an amount will be regarded as an exempt lump sum from the date the payment is received by the person.
Consultation
This determination was remade as it would otherwise have been automatically repealed on 1 April 2017.
Public consultation was not necessary as this determination was remade at the request of the Anglican Church, Diocese of Sydney and the Anglican Community Services (which includes the Sydney Anglican Home Mission Society Council). It will be beneficial to persons affected as it exempts Pastoral Care and Assistance Scheme Payments from the social security income test.
If it was not remade, it would have been automatically repealed on 1 April 2017.
Regulatory Impact Analysis
The Determination remakes a current determination and does not require a Regulatory Impact Statement. The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Exempt Lump Sum - Pastoral Care and Assistance Scheme) Determination 2017
The effect of the Determination is that a person who receives a Pastoral Care and Assistance Scheme Payment from Anglican Church Diocese of Sydney or the Sydney Anglican Home Mission Society Council in respect of the Pastoral Care and Assistance Scheme will not have that payment assessed as income under the social security law.
Human rights implications
The Determination engages the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
The Determination will operate beneficially as a Pastoral Care and Assistance Scheme Payment will not be taken into account when assessing a person’s eligibility or rate of social security entitlements under the social security income test. If the Pastoral Care and Assistance Scheme Payment is not exempted, a person in receipt of that payment may not be eligible for a social security payment or, if they are eligible, their rate of payment might be reduced. The Determination is therefore consistent with the promotion of the right to social security.
The exemption of the Pastoral Care and Assistance Scheme Payment from the income test does not mean that any ongoing income generated by the lump sum is exempt from the income test, nor does it mean that any asset produced from the lump sum is exempt from the social security assets test. This is consistent with the treatment of other lump sum payments exempted under paragraph 8(11)(d) of the Act.
Conclusion
This Determination supports a person’s human right to social security.
Anita Davis, Acting Branch Manager, International and Means Test Policy Branch, as a delegate of the Secretary of the Department of Social Services.