EXPLANATORY STATEMENT
Social Security (Personal Care Support Scheme – NSW Department of Ageing, Disability and Home Care (DADHC) Direct Payment Pilot Project) (DEST) Determination 2006
Summary
Section 35A of the Social Security Act 1991 (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. This instrument determines that the Direct Payment Pilot Project (the Pilot Project), for the provision of personal care support, administered by the NSW Department of Ageing, Disability and Home Care under its Attendant Care Program, is an “approved scheme” under section 35A.
The effect of this instrument is that people who receive a Pilot Project payment, and who also receive an Australian social security payment, will not have their Pilot Project payments 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. Specific provisions in the Act allow Ministers to exempt certain kinds of payments from the social security income test, within principles defined in the Act, without the need for legislative change.
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. Since 1992, fifteen schemes have been approved for the purposes of section 35A.
Explanation of the instrument
This instrument approves the Pilot Project as an “approved scheme” under section 35A of the Act.
The NSW government makes payments under the Pilot Project to people with disabilities to pay specifically for their personal care support. Pilot Project payments 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 instrument is that these customers will not have their social security payments reduced because of the Pilot Project payments that they receive, because these payments will not be regarded as income in accordance with paragraph 8(8)(zi) of the Act.
These payments are similar to personal care support payments made by various state and territory governments, including the governments of Western Australia, Queensland, Victoria and the Northern Territory, which have already been exempted from the social security income test under similar instruments.
Payments made under approved personal care support schemes 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.
Commencement
This determination will take effect on 24 March 2006.
Consultation
This instrument was made in response to a request from the NSW Department of Ageing, Disability and Home Care.
The Commonwealth Department of Employment and Workplace Relations and the Commonwealth Department of Family, Community Services and Indigenous Affairs were also consulted to ensure a co-ordinated and consistent approach to the administration of Pilot Project payments for all social security payments under the Act.
This instrument is beneficial to customers because it exempts these Pilot Project payments from the social security income test. Public consultation was therefore seen as unnecessary.
Overview
The Social Security (Personal Care Support Scheme – NSW Department of Ageing, Disability and Home Care (DADHC) Direct Payment Pilot Project) (DEST) Determination 2006 was enacted to address the issue of social security income test implications for personal care support payments under the Pilot Project administered by the NSW Department of Ageing, Disability and Home Care. This determination was made under the authority of section 35A of the Social Security Act 1991, which allows Ministers to approve schemes that provide personal care support as "approved schemes" for the purposes of the Act. The primary objective of this instrument is to ensure that recipients of Pilot Project payments who also receive Australian social security payments are not disadvantaged by having their Pilot Project payments considered as income under the social security income test. This initiative aligns with the broader policy goal of supporting individuals with disabilities to maintain independent living arrangements outside of public institutions by mitigating the financial burden of personal care costs.
Scope and Application
The Social Security (Personal Care Support Scheme – NSW Department of Ageing, Disability and Home Care (DADHC) Direct Payment Pilot Project) (DEST) Determination 2006 applies to individuals receiving personal care support payments through the Direct Payment Pilot Project administered by the NSW Department of Ageing, Disability and Home Care. This instrument specifically determines that payments made under the Pilot Project are considered an “approved scheme” under section 35A of the Social Security Act 1991. Consequently, these payments will not be taken into account for the purposes of the social security income test, thereby ensuring that the social security payments of those receiving care under the Pilot Project are not reduced. The geographic and jurisdictional reach of this Act is confined to the Commonwealth of Australia, specifically within the state of New South Wales. It is important to note that these payments are designed solely to cover the cost of personal care support and are not intended as income support. The exemption from the social security income test applies only to the individual receiving the care, not to the carer who may be receiving payments directly. This Determination came into effect on 24 March 2006 and was made in response to a request from the NSW DADHC, with consultation involving relevant Commonwealth departments to ensure coordinated administration of Pilot Project payments.
Key Provisions
The primary operative sections of the Social Security (Personal Care Support Scheme – NSW Department of Ageing, Disability and Home Care (DADHC) Direct Payment Pilot Project) (DEST) Determination 2006 (the Determination) are sections 35A of the Social Security Act 1991 (the Act), which empowers Ministers to determine that a scheme for the provision of personal care support is an "approved scheme" for the purposes of the Act (s 35A). The Determination, under section 35A, approves the Direct Payment Pilot Project, administered by the NSW Department of Ageing, Disability and Home Care, as an "approved scheme" (s 3). The effect of this approval is that individuals receiving Pilot Project payments and also receiving an Australian social security payment will not have their Pilot Project payments taken into account for the purposes of the social security income test (s 8(8)(zi)).
The Act imposes obligations on the parties involved, primarily ensuring that payments made under the approved Pilot Project are used strictly for personal care support purposes and not for general income support. This means that the NSW Department of Ageing, Disability and Home Care must administer the Pilot Project in accordance with the Act's principles and ensure that the payments are directed towards personal care support, which helps people with disabilities to live independent lives outside of a public institution (s 3). Furthermore, it is the responsibility of the NSW Department to ensure that these payments are not considered as income for the purposes of social security income testing (s 8(8)(zi)).
Breaching the provisions of the Determination could lead to civil or criminal consequences, although specific offences, penalties, or consequences are not detailed within the Determination itself. However, under the general principles of the Act, any misuse of funds or failure to comply with the approved scheme's requirements could result in penalties. These may include fines, legal action, or other sanctions as prescribed by the Act or related legislation. Given the nature of the Determination, penalties would likely focus on ensuring compliance with the income testing exemptions and proper use of funds for personal care support.
The Determination aims to provide clarity and protection to participants in the Pilot Project, ensuring that their personal care support payments are not misconstrued as income for social security purposes. This, in turn, helps beneficiaries maintain their social security benefits without the risk of their Pilot Project payments affecting their income test outcomes. The co-ordinated approach with other government departments ensures that the implementation of this scheme is consistent and effective across different jurisdictions.