Social Security (Personal Care Support – ACT Government ’My Choice’) (DIICCSRTE) Determination 2013

Administered by Department of Social Services

Legislation au F2013L01670 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Social Security (Personal Care Support – ACT Government ‘My Choice’) (DIICCSRTE) Determination 2013

The Social Security (Personal Care Support – ACT Government ‘My Choice’) (DIICCSRTE) Determination 2013 (the Determination) is made under section 35A of the Social Security Act 1991 (the Act).

Background

Under the social security law, income includes any income amount earned, derived or received for a person’s own use or benefit. However, the social security law specifically excludes some amounts from being recognised as income for the purposes of the income test. Paragraph 8(8)(zi) of the Act provides that a payment towards the cost of personal care support services for the person, being a payment made under a scheme approved under section 35A, is not income for the purposes of the Act.

 

Section 35A of the Act allows the relevant Minister to determine that a scheme for the provision of personal care support is an ‘approved scheme’ for the purposes of the Act.

 

The scheme known as My Choice has been established by Disability ACT of the Australian Capital Territory Government Community Services Directorate to provide payments directly to a person with a disability, or if requested, to a third party to assist in purchasing some of the services and supports they need. Residents of the ACT may apply to participate in the scheme to receive funding for things such as:

 

  • Buying goods and equipment that minimise the impact of their disability;

 

  • Contracting services that promote independence such as someone to assist with personal care, or household duties;

 

  • Employing staff to meet the individual’s support needs with payroll assistance from My Choice (or another agency); and

 

  • Employing staff to meet the individual’s support needs and managing payroll independently.

 

These payments are not intended as income, or to be used as an income source for the person.

 

 

 

Purpose

 

The purpose of the Determination is to determine that the Australian Capital Territory Government’s My Choice is an approved personal care support scheme for the purposes of the Act.

 

A person for whom a payment is made under the scheme may also receive a social security payment. The effect of this Determination is that the person will not have the payment received taken into account for the purposes of the income test under the social security law to the extent that the payment is for the cost of personal care support services for the person. This would ensure that the receipt of payments for personal care support services under the scheme would not have the unintended effect of reducing a person’s entitlement to any social security payment because of the operation of the income test.

 

This Determination has effect in relation to social security payments within the portfolio responsibility of the Minister for Higher Education. A similar instrument is being considered by the Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform and the Minister for Employment.

 

The Determination is a legislative instrument and commences the day after it is registered.

 

Explanation of the Provisions

 

Section 1 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 scheme for the provision of personal care support known as ‘My Choice’ (being a scheme established by Disability ACT of the Australian Capital Territory Government Community Services Directorate) is an approved scheme for the purposes of the Act.

 

Consultation

 

This Determination was made in response to a request from Disability ACT of the Australian Capital Territory Government Community Services Directorate.

 

Consultation on the Determination was undertaken with the Department of Education, Employment and Workplace Relations, and Department of Families, Housing, Community Services and Indigenous Affairs.

 

Public consultation was considered to be unnecessary as this determination is purely beneficial in character.

 

Regulatory Impact Analysis

 

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

This Legislative Instrument is the Social Security (Personal Care Support – ACT Government ‘My Choice’) (DIICCSRTE) Determination 2013

The Social Security (Personal Care Support – ACT Government ‘My Choice’) (DIICCSRTE) Determination 2013 (the Determination) 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 Legislative Instrument

 

The Determination is made under section 35A of the Social Security Act 1991 (the Act) and determines that the Australian Capital Territory Government’s My Choice is an approved personal care support scheme for the purposes of the Act, thereby exempting payments received by a person under the scheme for personal care support services from the social security income test.

 

My Choice has been established by Disability ACT of the Australian Capital Territory Government Community Services Directorate to allow a person with a disability to purchase some of the disability services and supports they need.

 

The Determination ensures that people receiving funding under My Choice for the cost of personal care support services will not have this funding assessed as income for social security purposes.

 

Human rights implications

 

The Determination engages the human right: Right to social security.

 

The right to social security

 

Section 35A of the Act allows the Minister for Higher Education to determine that when a person receives funding provided by a personal care support scheme this funding is exempt from the social security income test in relation to social security payments for which the Minister for Higher Education is responsible. The determination is therefore beneficial to persons who receive such a social security payment.

 

 

 

Conclusion

 

The Determination under section 35A of the Act ensures that individuals receiving funding for personal care support services from the approved personal care support scheme do not have this funding assessed for income test purposes. The Determination supports their human right to social security and is compatible with the applicable rights and freedoms.

 

 

 

 

 

 

Senator the Hon Kim Carr, Minister for Higher Education

 

Overview

The Social Security (Personal Care Support – ACT Government ‘My Choice’) (DIICCSRTE) Determination 2013 was enacted to address a gap in the Social Security Act 1991, specifically regarding the exclusion of certain payments from being recognised as income for the purposes of the income test. This legislative instrument was made under the authority of section 35A of the Act, allowing the relevant Minister to determine that a scheme for the provision of personal care support is an ‘approved scheme’. The scheme known as My Choice, established by Disability ACT of the Australian Capital Territory Government Community Services Directorate, provides payments directly to a person with a disability to assist in purchasing services and supports they need. The Determination ensures that these payments are not treated as income for social security purposes, thereby supporting the human right to social security. Consultation on the Determination was undertaken with relevant departments, and public consultation was deemed unnecessary due to the purely beneficial nature of the instrument. The Determination is not regulatory in nature and will have minimal compliance costs or competition impact. It is compatible with the human rights and freedoms recognised in international instruments, specifically engaging the right to social security. The Determination ensures that individuals receiving funding for personal care support services under the My Choice scheme will not have this funding assessed for income test purposes, thus supporting their eligibility for social security payments.

Scope and Application

The Social Security (Personal Care Support – ACT Government ‘My Choice’) (DIICCSRTE) Determination 2013 applies to the Australian Capital Territory Government's 'My Choice' scheme, which is an initiative by Disability ACT within the Community Services Directorate. This Determination, made under section 35A of the Social Security Act 1991, specifies that payments made under the 'My Choice' scheme for personal care support services do not count as income for the purposes of the social security income test. Consequently, individuals who receive such payments for personal care support services are not penalised by having their entitlement to social security payments reduced due to these payments. The Determination is jurisdictional in scope, applying solely to the Australian Capital Territory and to those participating in the 'My Choice' scheme, thereby ensuring that these payments are not considered income, thus preserving the beneficiaries' social security benefits. No specific exclusions or thresholds are mentioned in the Determination, but its application is contingent on the scheme's eligibility criteria and the approval of the relevant Minister.

Key Provisions

The main operative sections of the Social Security (Personal Care Support – ACT Government ‘My Choice’) (DIICCSRTE) Determination 2013 (sections 1 to 3) establish that the scheme, known as ‘My Choice,’ is an approved personal care support scheme for the purposes of the Social Security Act 1991 (section 3). This determination ensures that payments received by individuals under this scheme for personal care support services are not treated as income for the purposes of the social security income test (section 35A). The Determination came into effect the day after it was registered, as stated in section 2. The Act imposes certain obligations on the parties involved, particularly on Disability ACT, which is responsible for administering the My Choice scheme. Disability ACT must ensure that payments made under the scheme are used exclusively for the purposes of personal care support services and do not function as a source of income for the recipients. Furthermore, the recipients of the payments must use them strictly for the services and supports outlined in the scheme, ensuring that they do not inadvertently reduce their eligibility for social security payments by treating the payments as income. Any misuse of funds under the My Choice scheme, where payments are used for purposes other than personal care support services, could result in civil or criminal consequences. However, the Determination does not explicitly state specific offences or penalties. Generally, under the Social Security Act 1991, misuse of social security funds can result in civil penalties, including financial penalties and the requirement to repay the misused amounts. Additionally, criminal penalties may apply, including fines and imprisonment, depending on the severity and intent of the breach. The exact penalties would be determined in accordance with the broader provisions of the Social Security Act 1991 and relevant criminal law.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.