EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Personal Care Support) (ACT Lifetime Care and Support Scheme) Determination 2026
Purpose
The Social Security (Personal Care Support) (ACT Lifetime Care and Support Scheme) Determination 2026 (the Determination) provides that the Lifetime Care and Support Scheme (the Scheme) established under the Lifetime Care and Support (Catastrophic Injuries) Act 2014 (ACT) (the ACT Act) is an “approved scheme” under section 35A of the Social Security Act 1991 (the Act).
The Lifetime Care and Support Commissioner of the Australian Capital Territory (the Commissioner) manages and administers lifetime personal care and support under the Scheme to people who have sustained catastrophic injuries as a result of a motor vehicle accident or private sector workplace accident in the Australian Capital Territory (ACT).
A person who receives a payment under the Scheme may also receive social security payments if they meet the relevant eligibility requirements under the social security law. The Determination has the effect that payments made under the Scheme are not taken to be income for the purposes of the income test under the social security law. This ensures that a person’s entitlement to a social security payment is not affected by receiving personal care support through the Scheme and the operation of the income test.
Similarly, the Determination will also have the effect that a Scheme payment is not assessed as income for the purposes of means tested payments under the Veterans’ Entitlements Act 1986 and the Farm Household Support Act 2014.
Background
When determining a person’s eligibility for a social security payment, an income and assets test applies. Income is defined in subsection 8(1) of the Act, and includes any income amount earned, derived or received for a person’s own use or benefit, a periodical payment by way of gift or allowance or a periodical benefit by way of gift or allowance.
However, the Act specifically exempts some amounts that would otherwise be considered 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 a 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 Minister to determine, in writing, that a scheme for the provision of personal care support is an approved scheme for the purposes of the Act.
Australian Capital Territory Lifetime Care and Support Scheme
Part 3 of the ACT Act establishes the role of the Commissioner. The Commissioner manages and administers the Scheme, which provides treatment, rehabilitation and care to people who have been catastrophically injured in motor vehicle accidents or private sector workplace accidents in the ACT. Under subsection 6(1) of the ACT Act, the Scheme applies from 1 July 2014 for a motor vehicle accident and from 1 July 2016 for a private sector workplace accident. The cover is provided regardless of fault.
The Scheme applies to eligible persons as defined in subsection 15(1) of the ACT Act. This includes people who have sustained a specified catastrophic injury (for example, a spinal cord injury or brain injury) where that injury satisfies the criteria mentioned in the Lifetime Care and Support Guidelines (the Guidelines). The Guidelines are made by the Commissioner under section 93 of the ACT Act.
The Scheme assists eligible persons with their “reasonable and necessary treatment and care needs” as per section 7 of the ACT Act, and as further defined in section 9. This includes, for example, medical and dental treatment, aids and appliances, rehabilitation, and respite care. Generally, this occurs via providers invoicing the Scheme rather than individuals paying out-of-pocket. The Scheme does not provide eligible persons with income support.
The Determination exempts payments made to eligible persons under the Scheme from being considered as income, and therefore being subject to the social security income test, for the purposes of the Act.
The Scheme is currently an approved personal care support scheme under section 35A of the Act, in accordance with the current determination, the Social Security (ACT Lifetime Care and Support Scheme) Determination 2015 (the 2015 Determination).
The 2015 Determination is due to sunset on 1 April 2026. The Determination repeals and remakes the 2015 Determination. The Determination intends to include private sector workplace injuries in the scope of the income test exemption. This was not referred to in relation to the 2015 Determination because the Scheme did not contemplate such injuries at the time.
Authority
The Determination is made under section 35A of the Act, which provides that the Minister may determine that a scheme for the provision of personal care support is an approved scheme for the purposes of the Act.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument. The Minister has the power under section 35A of the Act to repeal the 2015 Determination and make the Determination.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to disallowance.
Commencement
The Determination commences on the day after it is registered on the Federal Register of Legislation.
Consultation
The Department of Social Services consulted with the Commissioner on the text of the proposed Determination because payments administered by the Commissioner are included in the Determination. The Commissioner supported the Determination.
The Department of Social Services also consulted the following agencies on the intention to make the Determination. These agencies did not raise any concerns.
- Services Australia, given the impact on income support recipients.
- The Department of Agriculture, Fisheries and Forestry because determinations made under section 35A of the Act apply automatically under the Farm Household Support Act 2014.
- The Department of Veterans’ Affairs because determinations made under section 35A of the Act apply automatically under the Veterans’ Entitlements Act 1986.
The Department of Social Services did not consult with income support recipients likely to be affected by the Determination, given the beneficial nature of the Determination. The Determination has been revised and is intended to include private sector workplace injuries in the ACT, but serves substantively the same purpose as the 2015 Determination.
Availability of independent review
A decision made under the social security law, as informed by the Determination, is subject to internal and external review under Parts 4 and 4A of the Social Security (Administration) Act 1999.
Explanation of the provisions
Details of the Social Security (Personal Care Support) (ACT Lifetime Care and Support Scheme) Determination 2026
Section 1 – Name
This section states how the instrument is to be cited, that is, as the Social Security (Personal Care Support) (ACT Lifetime Care and Support Scheme) Determination 2026.
Section 2 – Commencement
This section provides that the Determination commences on the day after it is registered.
Section 3 – Authority
This section provides that the Determination is made under section 35A of the Social Security Act 1991 (the Act).
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 repeals the Social Security (ACT Lifetime Care and Support Scheme) Determination 2015 (see below).
Section 5 – Personal care support scheme
Section 5 provides that the scheme for the provision of personal care support, known as the Lifetime Care and Support Scheme (the Scheme), is an approved scheme for the purposes of section 35A of the Act.
The Scheme is managed and administered by the Lifetime Care and Support Commissioner of the Australian Capital Territory (ACT) under the Lifetime Care and Support (Catastrophic Injuries) Act 2014 (ACT) (the ACT Act). The Scheme provides treatment, rehabilitation and care to people who have been catastrophically injured in motor vehicle accidents or private sector workplace accidents in the ACT. The Scheme was established on 1 July 2014 for motor vehicle accidents and from 1 July 2016 for private sector workplace accidents. The cover is provided regardless of fault.
The status of the Scheme as an approved scheme has the effect that payments made under the Scheme to social security recipients will not be regarded as income under the Act, and will not affect their entitlement to a social security payment.
Schedule 1 – Repeals
Item 1
Item 1 repeals the whole of the Social Security (ACT Lifetime Care and Support Scheme) Determination 2015. The Determination remakes this sunsetting instrument and continues to approve the Scheme as it relates to motor vehicle accidents. The Determination is also intended to include private sector workplace injuries occurring in the ACT from 1 July 2016, to reflect changes to the ACT Act since the previous determination was made.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Personal Care Support) (ACT Lifetime Care and Support Scheme) Determination 2026
The Social Security (Personal Care Support) (ACT Lifetime Care and Support Scheme) Determination 2026 (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 provides that the Lifetime Care and Support Scheme (the Scheme) established under the Lifetime Care and Support (Catastrophic Injuries) Act 2014 (ACT) (the ACT Act) is an “approved scheme” under section 35A of the Social Security Act 1991 (the Act).
The Lifetime Care and Support Commissioner of the Australian Capital Territory (the Commissioner) manages and administers lifetime personal care and support under the Scheme to people who have sustained catastrophic injuries as a result of a motor vehicle accident or private sector workplace accident in the Australian Capital Territory (ACT).
A person who receives a payment under the Scheme may also receive social security payments if they meet the relevant eligibility requirements under the social security law. The Determination has the effect that payments made under the Scheme are not taken to be income for the purposes of the income test under the social security law. This ensures that a person’s entitlement to a social security payment is not affected by receiving personal care support through the Scheme and the operation of the income test.
Similarly, the Determination will also have the effect that a Scheme payment is not assessed as income for the purposes of means tested payments under the Veterans’ Entitlements Act 1986 and the Farm Household Support Act 2014.
Human rights implications
The Determination engages the right to social security and the right to an adequate standard of living.
Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right to social security and requires a social security scheme to be established under domestic law that provides a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
Article 11 of the ICESCR recognises the right to an adequate standard of living, which provides that everyone is entitled to adequate food, clothing and housing and to the continuous improvement of living conditions.
Section 35A of the Act allows the Minister to approve a personal care support scheme, which means that payments provided to a person under such a scheme are exempt from the social security income test under the Act. The exemption also flows through to means tested payments under the Veterans’ Entitlements Act 1986 and the Farm Household Support Act 2014.
The Determination is beneficial to persons who receive income support payments as it ensures that individuals receiving personal care support from the approved personal care support scheme, the ACT Lifetime Care and Support Scheme, do not have these payments assessed for income test purposes. This means the individual’s entitlement to an income support payment under the Act, the Veterans’ Entitlements Act 1986 and the Farm Household Support Act 2014, is not affected by the support they receive under the Scheme.
Conclusion
The Determination is compatible with human rights as it supports the right to social security and the right to an adequate standard of living.
The Hon Tanya Plibersek MP
Minister for Social Services