Social Security (Personal Care Support – Attendance Allowance and Disability Living Allowance – United Kingdom) Determination 2018

Administered by Department of Social Services

Legislation au F2018L01055 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Social Security (Personal Care Support – Attendance Allowance and Disability Living Allowance – United Kingdom) Determination 2018

 

 

Summary

 

Section 35A of the Social Security Act 1991 (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.  This instrument determines that Attendance Allowance and Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) are approved for the purposes of section 35A of the Social Security Act 1991.

 

The effect of this instrument is that people who receive Attendance Allowance and/or Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)), will not have these payments taken into account for the purposes of the social security income test.

 

This determination replaces the previous determination for these payments to ensure that these payments continue to be exempt for social security income test purposes.

 

Background

 

Under the social security law all income earned, derived or received for a person’s own use or benefit, is generally counted as income.  The only exceptions are items specifically exempted under the social security law. 

 

In particular, section 35A of the Act allows the Minister 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 in relation to the person who is receiving care under paragraph 8(8)(zi) of the Act. 

 

Explanation of the instrument

 

This Determination approves Attendance Allowance and Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) as an “approved scheme” under section 35A of the Act.

 

Attendance Allowance under the Social Security Contributions and Benefits Act 1992 (UK) is paid to help people who have a physical and/or mental disability over the age of 65 with personal care needs.  Disability Living Allowance under the Social Security Contributions and Benefits Act 1992 (UK) is paid to people with disability who need help with mobility or care costs.

 

Some people receiving the Disability Living Allowance will be gradually transitioned onto the Personal Independence Payment. The Personal Independence Payment is income test exempt under a determination which was previously put in place.

 

The effect of this Determination is to support recipients of social security payments who receive Attendance Allowance and/or Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)), so that their social security payments will not be reduced due to the payment of the allowance.  Accordingly, these payments will not be regarded as income under the social security law.

 

Explanation of the provisions

 

Section 1 states that the name of the determination is the Social Security (Personal Care Support – Attendance Allowance and Disability Living Allowance – United Kingdom) Determination 2018 (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 section 35A of the Social Security Act 1991.

 

Section 4 revokes the Social Security Act 1991 – Notice under section 35A – Instrument 94/1.

 

Section 5 provides that Attendance Allowance and Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) are approved schemes for the purposes of section 35A of the Social Security Act 1991. 

 

Consultation

 

This Determination extends the approval of Attendance Allowance and Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) for the purposes of section 35A of the Social Security Act 1991.  This approval has been in place since 10 May 1994.

 

The Department of Human Services, the Department of Veterans’ Affairs and the Department of Agriculture and Water Resources have been consulted.

 

The Determination is beneficial to customers because it exempts Attendance Allowance and Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) from the social security income test.  Public consultation was therefore seen as unnecessary.

 

Regulatory Impact Statement

 

This Determination does not require a Regulatory Impact Statement, as it is not regulatory in nature, does not impact on business activity and will have no, or minimal compliance costs. 


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 – Attendance Allowance and Disability Living Allowance – United Kingdom) Determination 2018

 

The Social Security (Personal Care Support – Attendance Allowance and Disability Living Allowance – United Kingdom) Determination 2018 (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

This Determination is made under Section 35A of the Social Security Act 1991 (the Act) and determines that Attendance Allowance and Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) are approved personal care support schemes for the purposes of the Act, thereby exempting payments received by a person under these schemes for personal care support services from the social security income test.

 

The Determination ensures that people receiving Attendance Allowance and/or Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) will not have this assistance assessed as income for social security purposes.

 

Human Rights Implications

 

The Determination engages the right to social security.

 

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

 

 

 

Conclusion

This Determination ensures that individuals receiving Attendance Allowance and/or Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) do not have assistance under these schemes assessed for income test purposes. The Determination supports their human right to social security and is therefore compatible with human rights.

 

The Hon Dan Tehan MP, Minister for Social Services

 

 

 

Overview

The Social Security (Personal Care Support – Attendance Allowance and Disability Living Allowance – United Kingdom) Determination 2018 was enacted to ensure that payments under the Attendance Allowance and Disability Living Allowance schemes, as defined in the Social Security Contributions and Benefits Act 1992 (UK), are recognised as "approved schemes" under Section 35A of the Social Security Act 1991. This determination was made by the Minister for Social Services to address the need for continuity in the exemption of these UK payments from the Australian social security income test. This legislative instrument ensures that individuals receiving these UK allowances will not have their social security payments reduced due to the receipt of these allowances. The determination was introduced to maintain the existing exemption for these allowances, thereby supporting recipients’ human right to social security without undue financial hardship. This determination was made under the authority provided by Section 35A of the Social Security Act 1991 and aims to exempt Attendance Allowance and Disability Living Allowance payments from the social security income test. This ensures that these payments are not treated as income for social security purposes, thus safeguarding the financial security of recipients who rely on these allowances for personal care support. The Determination has been reviewed and found to be compatible with human rights as it upholds the right to social security for affected individuals.

Scope and Application

The Social Security (Personal Care Support – Attendance Allowance and Disability Living Allowance – United Kingdom) Determination 2018 applies to individuals who receive Attendance Allowance or Disability Living Allowance under the Social Security Contributions and Benefits Act 1992 in the United Kingdom. This Determination ensures that such payments are considered "approved schemes" for the purposes of section 35A of the Social Security Act 1991, thereby exempting them from the social security income test in Australia. The instrument maintains the continuity of these exemptions, ensuring that the recipients of these UK allowances do not experience reductions in their Australian social security payments due to these income sources. The Determination applies nationally across Australia, as it falls under the Commonwealth’s jurisdiction as per the Social Security Act 1991. This Determination does not extend to other forms of personal care support not explicitly mentioned and does not impose any new thresholds or exclusions beyond those already defined in the Social Security Act 1991. It supersedes the previous determination related to these allowances, ensuring updated and continued exemption from the social security income test. The application of this Determination is facilitated through subordinate instruments as authorised under the Act, with no additional regulatory requirements or compliance costs noted.

Key Provisions

The Social Security (Personal Care Support – Attendance Allowance and Disability Living Allowance – United Kingdom) Determination 2018 (the Determination) establishes that Attendance Allowance and Disability Living Allowance (payable under the Social Security Contributions and Benefits Act 1992 (UK)) are approved personal care support schemes for the purposes of section 35A of the Social Security Act 1991 (the Act). This means that individuals receiving these allowances are exempt from having their payments counted as income for the purposes of the social security income test. Specifically, section 5 of the Determination declares that these allowances are approved schemes, and as such, any payments made under these allowances will not be taken into account when assessing an individual’s eligibility for social security benefits. This provision ensures that recipients of these UK allowances will not face a reduction in their Australian social security payments due to the receipt of these allowances. The Determination imposes specific obligations on both the Australian government and the recipients of the UK allowances. For the government, the primary obligation is to recognise and exempt the specified UK allowances from the social security income test. This involves administrative processes to ensure that these allowances are not included in the income calculations for social security purposes. For the recipients, the obligation is to comply with the social security requirements and to ensure that they are aware of the exemptions provided by the Determination. This includes correctly reporting their receipt of these UK allowances when applying for or receiving Australian social security benefits. Failure to comply with the requirements of the Determination can result in civil or administrative consequences. If a person does not correctly declare their receipt of Attendance Allowance or Disability Living Allowance, this could lead to an overpayment of social security benefits. In such cases, the Department of Human Services may recover the overpaid amounts from the individual. Additionally, if there is evidence of deliberate misrepresentation or fraud in relation to the receipt of these allowances, this could result in more severe penalties, including fines and potential legal action. While the Determination itself does not specify maximum penalties, the general penalties for overpayments under the Social Security Act 1991 can include substantial fines and interest on the overpaid amounts.

Legal classification tags

Area of Law
Social Security Law
Instrument
Determination
Concepts
Definitions & Interpretation
Exemptions & Exclusions
Regulatory Standards

Interactions

Authorises

All Versions

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.