EXPLANATORY STATEMENT
Social Security (Personal Care Support – ACT Government ‘My Choice’) (FaHCSIA) Determination 2013
The Social Security (Personal Care Support – ACT Government ‘My Choice’) (FaHCSIA) 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 Families, Community Services and Indigenous Affairs and Minister for Disability Reform. A similar instrument is being considered by the Minister for Higher Education 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 Industry, Innovation, Climate Change, Science, Research and Tertiary Education.
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’) (FaHCSIA) Determination 2013
The Social Security (Personal Care Support – ACT Government ‘My Choice’) (FaHCSIA) 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 Families, Community Services and Indigenous Affairs and the Minister for Disability Reform 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 Families, Community Services and Indigenous Affairs and the Minister for Disability Reform 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.
The Hon Jenny Macklin MP, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform