EXPLANATORY STATEMENT
Social Security (Personal Care Support – National Injury Insurance Scheme Queensland) Determination 2017
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 fully-funded, no-fault lifetime care and support provided by the National Injury Insurance Scheme Queensland to a person with a catastrophic injury sustained in a motor vehicle accident, consistent with national agreed minimum benchmarks, is an ‘approved scheme’ under section 35A.
The effect of this instrument is that people who receive fully-funded, no-fault lifetime care and support under the National Injury Insurance Scheme Queensland, and who also receive an Australian social security payment, will not have this assistance 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 counted as income. However, the social security law specifically excludes some amounts from being income.
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 under paragraph 8(8)(zi) of the Act in relation to the person who is receiving care.
Explanation of the instrument
This Determination approves the provision of fully-funded, no-fault lifetime care and support by the National Injury Insurance Scheme Queensland as an ‘approved scheme’ under section 35A of the Act.
In accordance with the National Injury Insurance Scheme Queensland, a person with catastrophic injuries sustained in a motor vehicle accident, consistent with national agreed minimum benchmarks, may be provided with fully-funded, no-fault lifetime care and support.
The effect of this Determination is that the recipient will not have their social security payments reduced due to receipt of fully-funded personal care and support from the National Injury Insurance Scheme Queensland. 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 1 July 2016, being the day on which the National Injury Insurance Scheme (Queensland) Act 2016 commenced and the National Injury Insurance Scheme Queensland was established. This Determination has retrospective effect, but it is beneficial in nature so does not adversely impact on any individual.
Section 3 provides that the authority for making this Determination is section 35A of the Social Security Act 1991.
Subsection 4(1) provides that the National Injury Insurance Scheme Queensland is an approved scheme for the purposes of the Act.
Subsection 4(2) provides a definition of the National Injury Insurance Scheme Queensland. It is defined as a fully-funded, no-fault lifetime care and support scheme for people with catastrophic injuries sustained in motor vehicle accidents, consistent with national agreed minimum benchmarks, established by commencement of the National Injury Insurance Scheme (Queensland) Act 2016 on 1 July 2016.
Consultation
This Determination was made in respect to a request from the National Injury Insurance Scheme Queensland.
The Department has consulted with the Australian Government Department of Agriculture and Water Resources regarding this Determination.
This instrument is beneficial to social security payment recipients because it exempts the provision of fully-funded personal care and support received as part of the National Injury Insurance Scheme Queensland 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 – National Injury Insurance Scheme Queensland) Determination 2017
The Social Security (Personal Care Support – National Injury Insurance Scheme Queensland) 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 National Injury Insurance Scheme Queensland 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 assistance from the National Injury Insurance Scheme Queensland 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 assistance under the National Injury Insurance Scheme Queensland do not have assistance 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