Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013

Administered by Department of Social Services

Legislation au F2013L02152 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013

The Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013 (the Determination) provides that the New South Wales Government’s Individual Budgets: Direct Payments scheme is an approved scheme under section 35A of the Social Security Act 1991 (the Act).

Background

Under the social security law, income includes any income amount earned, derived or received for a person’s own use or benefit. However, the social security law specifically excludes some amounts from being recognised as income for the purposes of the income test. Paragraph 8(8)(zi) of 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 Minister to determine that a scheme for the provision of personal care support is an approved scheme for the purposes of the Act.

The scheme known as Individual Budgets: Direct Payments has been established by the New South Wales Government Department of Family and Community Services to provide payments directly to a person with a disability, or their nominee, to give maximum choice and control over how a person’s funding is spent, the supports they receive and who delivers these supports.

To receive a direct payment a person must enter into a Direct Payment Agreement (DPA) with the Department of Family and Community Services. The DPA includes an Individual Plan that identifies the outcomes the person wants to achieve and the supports they need to purchase to achieve these outcomes. It also includes an Individual Budget that sets out how much funding the person will receive. Funding must only be used to purchase supports that meet the support needs or outcomes identified in their Individual Plan.

These payments are not intended as income, or to be used as an income source for the person. It is expected that payments to individuals would commence from 1 January 2014.

Purpose

The purpose of the Determination is to determine that the New South Wales Government’s Individual Budgets: Direct Payments scheme is an approved personal care support scheme for the purposes of the Act.

A person for whom a payment is made under the scheme may also receive a social security payment. The effect of this Determination is that the person will not have the payment received taken into account for the purposes of the income test under the social security law to the extent that the payment is for the cost of personal care support services for the person. This would ensure that the receipt of payments for personal care support services under the scheme would not have the unintended effect of reducing a person’s entitlement to any social security payment because of the operation of the income test.

This Determination has effect in relation to social security payments under the Act. It also has effect in relation to means tested payments under the Veterans’ Entitlements Act 1986. This is because a payment towards the cost of personal care support services for the person that is made under a scheme approved under section 35A of the Act are excluded from the concept of income under paragraph 5H(8)(ya) of the Veterans’ Entitlements Act 1986.

Explanation of the Provisions

 

Section 1 states the name of the Determination.

 

Section 2 provides that the Determination commences on the day after registration.

 

Section 3 provides that the scheme Individual Budgets: Direct Payments, being a scheme of that name established by the New South Wales Government Department of Family and Community Services, is an approved scheme for the purposes of the Act.

 

Consultation

 

This Determination was made in response to a request from the New South Wales Government Department of Family and Community Services.

Public consultation was considered to be unnecessary as this determination is purely beneficial in character.

Regulatory Impact Analysis

 

The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.

 


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) (NSW Government Individual Budgets: Direct Payments) Determination 2013

 

 

The Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013  (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

The Determination is made under section 35A of the Social Security Act 1991 (the Act) and determines that the New South Wales Government’s Individual Budgets: Direct Payments is an approved personal care support scheme for the purposes of the Act, thereby exempting payments received by a person under the scheme for personal care support services from the social security income test.

 

The New South Wales Government’s Individual Budgets: Direct Payments scheme has been established by the New South Wales Government Department of Family and Community Services to provide payments directly to a person with a disability, to give the person maximum choice and control over how a person’s funding is spent, the supports they receive and who delivers these supports. Payments to individuals are expected to commence from 1 January 2014.

 

The Determination ensures that people receiving funding under the Individual Budgets: Direct Payments for the cost of personal care support services will not have this funding assessed as income for the purposes of social security law or veterans’ entitlements law.

 


Human rights implications

 

The Determination engages the human right: 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 income test in relation to social security payments.  The exemption also flows through to means tested payments under the Veterans’ Entitlements Act 1986. The determination is therefore beneficial to persons who receive income support.



Conclusion

 

The Determination under section 35A of the Act ensures that individuals receiving funding for personal care support services from the approved personal care support scheme do not have this funding assessed for income test purposes. The Determination supports their human right to social security and is compatible with the applicable rights and freedoms.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Hon Kevin Andrews MP, Minister for Social Services

Overview

The Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013 was enacted to address the gap in the Social Security Act 1991 where payments towards the cost of personal care support services were not recognised as income for the purposes of the income test. This was intended to ensure that individuals receiving these payments under the New South Wales Government’s Individual Budgets: Direct Payments scheme would not experience a reduction in their entitlement to social security payments due to the income test. The Determination was made under section 35A of the Act and identifies the NSW Government’s scheme as an approved scheme, thereby excluding payments made under this scheme from being considered as income. The policy objective was to provide maximum choice and control to individuals with disabilities over their personal care support funding, ensuring their human right to social security is upheld without unintended negative impacts on their social security entitlements.

Scope and Application

The Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013 applies to the New South Wales Government’s Individual Budgets: Direct Payments scheme, an initiative established by the Department of Family and Community Services to provide payments directly to persons with disabilities. This scheme is intended to empower individuals with disabilities by giving them choice and control over how their funding is spent, the supports they receive, and who delivers these supports. The Determination ensures that payments made under this scheme for personal care support services are not treated as income for the purposes of the income test under the Social Security Act 1991 and the Veterans' Entitlements Act 1986. This means that recipients of these payments will not have their entitlement to social security or veterans' entitlements reduced as a result of receiving these payments. The Determination applies nationally as it is made under the Social Security Act 1991, which is a Commonwealth Act. The scheme is expected to commence on 1 January 2014, and the Determination is purely beneficial, with no regulatory impact or compliance costs associated with it.

Key Provisions

The Social Security (Personal Care Support) (NSW Government Individual Budgets: Direct Payments) Determination 2013 (the Determination) (s 1) confirms that the New South Wales Government’s Individual Budgets: Direct Payments scheme is an approved scheme under section 35A of the Social Security Act 1991 (the Act) (s 3). The Determination came into effect the day after its registration (s 2). It ensures that payments made under the scheme are not considered income for the purposes of the income test under the Act (s 35A). This means that individuals receiving personal care support payments will not have their social security benefits reduced because of these payments. The scheme provides payments directly to individuals with disabilities, allowing them to have control over their personal care support services. The Determination imposes specific obligations on the New South Wales Government Department of Family and Community Services, which administers the Individual Budgets: Direct Payments scheme. The department must ensure that payments are made in accordance with the terms of a Direct Payment Agreement (DPA) (s 3). This agreement includes an Individual Plan that outlines the person's desired outcomes and the supports needed to achieve them, as well as an Individual Budget that specifies the funding amount. The department must also ensure that the funding is used solely for purchasing supports that meet the needs identified in the Individual Plan. This arrangement aims to give individuals with disabilities greater autonomy over their care and support services. Breach of the obligations outlined in the Determination may have consequences. Although the Determination does not explicitly outline penalties, the Act includes provisions for penalties in case of non-compliance. Under section 199 of the Act, a person who contravenes a provision of the Act may be liable to a penalty of up to $22,200 for individuals and $111,000 for bodies corporate, depending on the nature and extent of the contravention. Additionally, any misuse of funds intended for personal care support services could result in civil or criminal action, depending on the severity of the breach. The Determination also ensures that payments under the Individual Budgets: Direct Payments scheme are not considered income for the purposes of means-tested payments under the Veterans’ Entitlements Act 1986, aligning with the social security law. This dual exclusion from income tests under both acts protects the income support entitlements of individuals receiving personal care support services, ensuring they do not inadvertently lose their social security or veterans' benefits due to the receipt of these payments.

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Social Security Law
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Determination
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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.