EXPLANATORY STATEMENT
Social Security (Personal Care Support Scheme – NSW Department of Ageing, Disability and Home Care (DADHC) Direct Payment Pilot Project) (DEWR) 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 Families, Community Services and Indigenous Affairs and the Commonwealth Department of Education, Science and Training 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) (DEWR) Determination 2006 was enacted to address a specific gap in the social security income test concerning personal care support payments. This determination was made under section 35A of the Social Security Act 1991, allowing Ministers to exempt certain personal care support payments from the income test. Administered by the NSW Department of Ageing, Disability and Home Care, the Direct Payment Pilot Project aims to enable people with disabilities to live more independently by funding their personal care support. By declaring this Pilot Project an "approved scheme," the determination ensures that the payments made under this scheme are not considered income for social security purposes, thereby preventing any reduction in social security payments for the recipients. This initiative aligns with the broader objective of providing coordinated and consistent support across various state and territory personal care support schemes.
Scope and Application
The Social Security (Personal Care Support Scheme – NSW Department of Ageing, Disability and Home Care (DADHC) Direct Payment Pilot Project) (DEWR) Determination 2006 applies to the Direct Payment Pilot Project administered by the NSW Department of Ageing, Disability and Home Care. The Pilot Project provides personal care support payments to individuals with disabilities, aimed at enabling them to live independently outside public institutions. These payments are specifically designed to cover the costs of long-term personal care support and are not intended to serve as income support. The determination ensures that recipients of Pilot Project payments who also receive Australian social security payments are not disadvantaged by having their Pilot Project payments included in the social security income test. This applies nationally under the Commonwealth's Social Security Act 1991, and the exemption is limited to the individuals receiving care, not to those providing care. The exemption is effective from 24 March 2006, and the instrument was created in response to a request from the NSW DADHC, with consultations involving relevant Commonwealth departments to ensure consistency in the administration of these payments.
Key Provisions
This determination, under section 35A of the Social Security Act 1991 (the Act), establishes the Direct Payment Pilot Project (the Pilot Project) administered by the NSW Department of Ageing, Disability and Home Care as an "approved scheme." This means that individuals receiving payments under this Pilot Project, who also receive Australian social security payments, will not have their Pilot Project payments considered as income for the purposes of the social security income test. The Pilot Project aims to provide personal care support to people with disabilities, enabling them to live independently outside of public institutions by covering the costs of their long-term personal care support. The payments made under this Pilot Project are not income support but are intended to supplement personal care needs.
The approved scheme, as per section 35A, imposes specific obligations on the parties involved. The NSW Department of Ageing, Disability and Home Care is responsible for administering the Pilot Project, ensuring that payments are made to eligible individuals for their personal care support. Recipients of these payments must use them for the specified purpose of personal care support and not as general income. Additionally, the Act ensures that these payments are only exempt from the social security income test for the person receiving the care, not for the person providing the care.
Breach of the provisions under this determination could lead to civil or criminal consequences, although the Act does not specify particular offences in this context. The maximum penalties for non-compliance with social security provisions generally include fines and imprisonment, as outlined under the Social Security Act. However, in this specific case, the primary consequence of failing to adhere to the approved scheme's purpose would be the re-inclusion of Pilot Project payments in the social security income test, potentially affecting the recipient's social security benefits. The Act mandates strict adherence to the terms of the approved scheme to maintain the integrity of the social security system and to ensure that payments are used for their intended purpose.