EXPLANATORY STATEMENT
Social Security (Personal Care Support Scheme – Disability Services Queensland) 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 the grant of financial assistance under the Disability Services Act 2006 (Qld) (Qld Disability Services Act) of personal care support is an ‘approved scheme’ under section 35A.
The effect of this instrument is that people who meet the required criteria under the Qld Disability Services Act and receive grants to assist them with daily living activities, will not have their financial assistance grants 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 the granting of financial assistance under the Qld Disability Services Act as an ‘approved scheme’ under section 35A of the Act.
Under the Qld Disability Services Act, people who meet the eligibility requirements, may be given financial assistance grants to assist them with daily living activities, including communication, personal care and mobility. These financial assistance grants are not intended to provide people with income support. Although some of these people currently receiving these grants will transfer to the National Disability Insurance Scheme (NDIS), the Queensland Government may continue to make payments to other eligible persons who do not meet the eligibility requirements for NDIS.
The effect of this Determination is to support those people who receive financial assistance grants under the Qld Disability Services Act. 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 (Disability Services Queensland Personal Care Support) Determination No. 1 2004.
Section 5 provides that the provision of a financial assistance grant in respect of personal care support under the Qld Disability Services Act is an ‘approved scheme’ for the purposes of section 35A of the Act.
Consultation
This Determination was made in respect to a request from the Queensland Department of Communities, Child Safety and Disability Services.
The Determination is beneficial to people because it exempts financial assistance grants in respect of personal care support provided under the Qld Disability Services Act 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 Scheme – Disability Services Queensland) Determination 2017
The Social Security (Personal Care Support Scheme – Disability Services 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 Personal Care Support Scheme – Disability Services 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 payments from the Personal Care Support Scheme – Disability Services Queensland 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 – Disability Services Queensland 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