EXPLANATORY STATEMENT
Social Security (Personal Care Support – NSW Attendant Care Program Direct Funding Model) (FaHCSIA) Determination 2008
Summary
This determination provides that the scheme known as the Attendant Care Program (ACP) Direct Funding Model, that is administered by the New South Wales Department of Ageing, Disability and Home Care, is an “approved scheme” under section 35A of the Act.
The effect of this determination is that people who receive a payment under the ACP Direct Funding Model, and who also receive a social security payment, will not have their payments under the ACP Direct Funding Model taken into account for the purposes of the income test under social security law.
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. However, some items are specifically exempted under the social security law from the income test. Paragraph 8(8)(zi) of the Social Security Act 1991 (the Act) provides that a payment towards the cost of personal care support services for the 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 relevant 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. Since 1992, a number of schemes have been approved for the purposes of section 35A of the Act.
Explanation of the determination
This determination approves the ACP Direct Funding Model as an ‘approved scheme’ under section 35A of the Act. This determination has effect in relation to social security income support payments for which the Minister for Families, Housing, Community Services and Indigenous Affairs has responsibility for under the Administrative Arrangements Order.
The New South Wales Department of Ageing, Disability and Home Care makes payments under the ACP Direct Funding Model to people with disabilities to pay specifically for their personal care support. Payments under the ACP Direct Funding Model do not provide income support for people with disabilities. Instead, these payments help these people to live independent lives outside of a public institution by contributing toward the cost of their long-term personal care support.
The effect of this determination is that people who receive a payment under the ACP Direct Funding Model, and who also receive a social security payment, will not have their social security payments reduced because the payments received under the ACP Direct Funding Model will not be regarded as income.
Payments made under the ACP Direct Funding Model are only exempt in relation to the person receiving care. As payments made under approved schemes are not exempt in relation to the person providing care, payments made directly to a carer are not affected by this instrument.
Payments made under the ACP Direct Funding Model are similar to personal care support payments made by other State and Territories, including Western Australia, Queensland, Victoria and the Northern Territory, which have already been exempted from the social security income test under similar determinations.
Commencement
This determination will commence on 25 August 2008.
Consultation
This determination was made in response to a request from the New South Wales Department of Ageing, Disability and Home Care.
The Commonwealth Department of Education, Employment and Workplace Relations were consulted to ensure a co-ordinated and consistent approach to the administration of payments made under the ACP Direct Funding Model, for all social security income support payments under the Act. It is expected that the Minister for Education, Employment and Workplace Relations will sign a corresponding determination.
This determination is beneficial to income support recipients because it exempts payments made under the ACP Direct Funding Model from the income test under the social security law. Public consultation was therefore seen as unnecessary.
Regulatory Impact
This determination does not require a Regulatory Impact Statement, as this determination is not regulatory in nature, does not impact on business activity and will have no, or minimal compliance costs.
Overview
The Social Security (Personal Care Support – NSW Attendant Care Program Direct Funding Model) (FaHCSIA) Determination 2008, enacted by the Australian government, addresses the issue of income testing for recipients of the New South Wales Attendant Care Program (ACP) Direct Funding Model. This program, administered by the New South Wales Department of Ageing, Disability and Home Care, provides payments for personal care support services to people with disabilities, aiming to help them live independently outside of public institutions. The policy objective behind this determination is to ensure that these payments do not reduce social security benefits by exempting them from the income test under the Social Security Act 1991. The determination was made in response to a request from the New South Wales Department of Ageing, Disability and Home Care and after consultation with the Commonwealth Department of Education, Employment and Workplace Relations to maintain consistency across social security income support payments.
Scope and Application
This determination, made under the Social Security Act 1991, recognises the Attendant Care Program (ACP) Direct Funding Model, administered by the New South Wales Department of Ageing, Disability and Home Care, as an approved scheme for the purposes of section 35A of the Act. This effectively means that any payments received by individuals under this scheme will not be considered income when determining their eligibility for social security benefits. The determination applies to individuals who receive both ACP Direct Funding Model payments and social security payments, ensuring that the former do not adversely impact the latter. Notably, the exemption applies solely to the recipients of care, while payments made directly to caregivers are not exempt and remain subject to the income test. This determination aligns with similar exemptions granted to personal care support payments in other Australian states and territories, facilitating a consistent approach across the nation. The determination came into effect on 25 August 2008, and was made in consultation with relevant federal departments to ensure a coordinated approach to the administration of these payments.
Key Provisions
The Social Security (Personal Care Support – NSW Attendant Care Program Direct Funding Model) (FaHCSIA) Determination 2008 (the Determination) is centred on section 35A of the Social Security Act 1991 (the Act), establishing the Attendant Care Program (ACP) Direct Funding Model as an 'approved scheme' under the Act (section 1(1)). This means that payments made under the ACP Direct Funding Model by the New South Wales Department of Ageing, Disability and Home Care (sections 1(2) and (3)) for personal care support for people with disabilities will not be considered as income for the purposes of the social security income test (section 1(4)). This determination applies to social security payments for which the Minister for Families, Housing, Community Services and Indigenous Affairs has responsibility (section 1(5)).
The obligations imposed by the Determination require the New South Wales Department of Ageing, Disability and Home Care to make payments under the ACP Direct Funding Model to people with disabilities to pay specifically for their personal care support (section 1(2)). These payments are not intended to provide income support, but rather to help these individuals live independent lives outside of public institutions by contributing to the cost of their long-term personal care support (section 1(3)). Importantly, the Determination specifies that the exemption from the income test applies only to the person receiving care, and not to the person providing care (section 1(6)). This ensures that payments made directly to carers under the ACP Direct Funding Model are not affected by the Determination.
There are no offences, penalties, or civil/criminal consequences specified within the Determination itself for breaches. The focus is on exempting certain payments from the social security income test, rather than imposing sanctions for non-compliance. However, failure to adhere to the provisions of the Determination could potentially lead to the loss of the exemption for the payments, resulting in those payments being counted as income for social security purposes. The Determination is not regulatory in nature and does not impact on business activity, and thus will have no or minimal compliance costs (section 3).
In summary, the Social Security (Personal Care Support – NSW Attendant Care Program Direct Funding Model) (FaHCSIA) Determination 2008 establishes the ACP Direct Funding Model as an approved scheme under section 35A of the Act, exempting payments made under the model from the social security income test. This benefits income support recipients by allowing them to receive payments for personal care support without having their social security payments reduced. The Determination imposes obligations on the New South Wales Department of Ageing, Disability and Home Care to make these payments and ensures that the exemption applies only to the person receiving care. There are no explicit penalties for breach, but non-compliance could result in the loss of the exemption.