Social Security (Personal Care Support – National Injury Insurance Scheme Queensland) Determination 2017

Administered by Department of Social Services

Legislation au F2017L00958 In force Legislative Instrument

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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 

Overview

The Social Security (Personal Care Support – National Injury Insurance Scheme Queensland) Determination 2017 was enacted to address the problem of social security payments being reduced for individuals receiving personal care support under the National Injury Insurance Scheme Queensland. This legislation was enacted by the Parliament of Australia to ensure that such care support is not taken into account for social security income tests, thereby protecting the beneficiaries' social security payments. The policy objective of this determination is to exempt the fully-funded, no-fault lifetime care and support provided by the National Injury Insurance Scheme Queensland from being counted as income for the purposes of the social security income test. This ensures that the recipients of this care support will not experience a reduction in their social security payments due to the receipt of this assistance.

Scope and Application

The Social Security (Personal Care Support – National Injury Insurance Scheme Queensland) Determination 2017 applies to individuals who receive fully-funded, no-fault lifetime care and support under the National Injury Insurance Scheme Queensland, particularly those with catastrophic injuries sustained in motor vehicle accidents, as consistent with national agreed minimum benchmarks. This Determination operates within the jurisdiction of the Commonwealth of Australia, as it pertains to the Social Security Act 1991. The instrument aims to exempt payments made under the approved scheme from being considered income for social security purposes, thus not adversely affecting the social security payments of those who qualify under the scheme. The scope of the Determination is explicitly tied to the National Injury Insurance Scheme Queensland and does not extend to other types of care support schemes or injuries not covered under the scheme. This Determination ensures that the benefits received under the National Injury Insurance Scheme Queensland do not interfere with the social security benefits of the recipients.

Key Provisions

The Social Security (Personal Care Support – National Injury Insurance Scheme Queensland) Determination 2017, made under section 35A of the Social Security Act 1991, designates the National Injury Insurance Scheme Queensland as an approved personal care support scheme. This means that the payments received by individuals for personal care support under this scheme are exempt from the social security income test (section 4(1)). The determination ensures that the assistance provided by the National Injury Insurance Scheme Queensland is not considered income when determining eligibility for social security payments. The obligations imposed by the Determination on the relevant parties include the requirement for the National Injury Insurance Scheme Queensland to provide fully-funded, no-fault lifetime care and support to individuals with catastrophic injuries sustained in motor vehicle accidents, in accordance with the national agreed minimum benchmarks (section 4(2)). The scheme must be operated in a manner that ensures the payments made to individuals are exempt from the social security income test, thereby safeguarding the recipients' social security benefits. There are no specific offences, penalties, or civil or criminal consequences outlined for breaches of this Determination. However, any failure to comply with the requirements of the National Injury Insurance Scheme Queensland, as determined by this instrument, could potentially lead to the scheme not being considered an 'approved scheme' under the Social Security Act 1991. This could result in the payments received by individuals being subject to the social security income test, which would adversely affect their social security payments. The primary focus of the Determination is to ensure that the recipients of care and support under the National Injury Insurance Scheme Queensland are not disadvantaged by having their assistance assessed as income for social security purposes.

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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.