EXPLANATORY STATEMENT
Social Security (Personal Care Support – Direct Consumer Funding) Determination 2017
Summary
Section 35A of the Social Security Act 1991 (the Act) allows Ministers 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 funding provided by the Northern Territory Department of Health to a person with a disability (or on that person’s behalf to their carer) for the purposes of paying for support or services by a third party is an ‘approved scheme’ under section 35A.
The effect of this instrument is that people who are granted funding by the Department of Health through its Individual Support Package to pay for support or services by a third party, will not have their funding taken into account for the purposes of the social security income test.
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 Ministers 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 funding granted by the Northern Territory Department of Health known as Direct Consumer Funding as an ‘approved scheme’ under section 35A of the Act.
In accordance with an Individual Support Package, a person with a disability, or their carer on the person’s behalf, may be given grants of financial assistance for the purchase of direct support services for the purposes of accommodation support, community support, respite or community access.
The effect of this Determination is that the recipient will not have their social security payments reduced due to the payment of Direct Consumer Funding by the Northern Territory Department of Health. Accordingly, these payments will not be regarded as income under the social security law.
Explanation of the 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 section 35A of the Social Security Act 1991.
Section 4 revokes the Social Security (Local Area Coordination Scheme) Determination 2000.
Subsection 5(1) provides that Direct Consumer Funding is an approved scheme for the purposes of the Act.
Subsection 5(2) provides a definition of Direct Consumer Funding. It is defined as an agreement by the Northern Territory Department of Health to provide funding through its Individual Support Package to a person with a disability, or on that person’s behalf to their carer, for the payment of support or services by a third party.
Consultation
This Determination was made in respect to a request from the Northern Territory Department of Health.
The Determination is beneficial to customers because it exempts grants for financial assistance in respect of personal care support provided by the Northern Territory Department of Health 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 – Direct Consumer Funding) Determination 2017
The Social Security (Personal Care Support Scheme – Direct Consumer Funding) Determination 2017 (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 the Personal Care Support Scheme – Direct Consumer Funding is an approved personal care support scheme for the purposes of the Act, thereby exempting payments received by a person under this scheme for personal care support services from the social security income test.
The Determination ensures that people receiving payments from the Personal Care Support Scheme – Direct Consumer Funding will not have these payments assessed as income for social security purposes.
Human rights implications
The Determination engages the right to social security.
The right to social security
Section 35A of the Act allows the Minister for Social Services 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 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 assistance under the Personal Care Support Scheme – Direct Consumer Funding do not have payments under this
scheme assessed for income test purposes. The Determination supports their human right to social security and is therefore compatible with human rights.
The Hon Christian Porter MP, Minister for Social Services