EXPLANATORY STATEMENT
Social Security (Personal Care Support Scheme – NSW Department of Ageing, Disability and Home Care (DADHC) Direct Payment Pilot Project) (FaCSIA) 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 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) (FaCSIA) Determination 2006 was enacted to address the need for exempting certain personal care support payments from the social security income test. This determination was introduced by the Commonwealth Government, specifically under the authority granted by section 35A of the Social Security Act 1991. The policy objective of this instrument is to ensure that individuals who receive personal care support payments through the Direct Payment Pilot Project administered by the NSW Department of Ageing, Disability and Home Care will not have their social security benefits reduced due to these payments. By declaring the Pilot Project as an approved scheme, the determination ensures that these payments are not considered income for the purposes of the social security income test, thereby allowing beneficiaries to maintain their social security entitlements while receiving necessary personal care support.
Scope and Application
The Social Security (Personal Care Support Scheme – NSW Department of Ageing, Disability and Home Care (DADHC) Direct Payment Pilot Project) (FaCSIA) Determination 2006 applies to individuals receiving payments under the Direct Payment Pilot Project, which is administered by the NSW Department of Ageing, Disability and Home Care. This determination ensures that payments made under the Pilot Project, intended to assist people with disabilities in receiving personal care support, are exempt from the social security income test for the beneficiaries of such payments. The exemption applies specifically to the individuals who receive care, not to those providing care. This legislative instrument complements existing provisions under section 35A of the Social Security Act 1991, which allows Ministers to designate certain personal care support schemes as “approved schemes” for the purposes of the Act. This specific determination is applicable within the Commonwealth jurisdiction and does not extend to state or territory levels beyond the requirements outlined. The exemption is solely for Pilot Project payments and does not affect other forms of income or payments under different schemes.
Key Provisions
The key provisions of the determination (F2006L00719) involve recognising the Direct Payment Pilot Project, administered by the NSW Department of Ageing, Disability and Home Care, as an "approved scheme" under section 35A of the Social Security Act 1991 (the Act) (section 3). This means that individuals who receive payments from the Pilot Project and 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 (section 3(1)). The purpose of this determination is to exempt these payments from the income test in relation to the person receiving care under paragraph 8(8)(zi) of the Act (section 3(2)). The determination ensures that Pilot Project payments, which are intended to help people with disabilities live independent lives by covering the cost of their long-term personal care support, do not reduce their social security payments (section 3(3)).
The obligations imposed by this Act on the parties involved include ensuring that the Pilot Project payments are clearly designated to cover personal care support costs and are not used as general income support. The NSW Department of Ageing, Disability and Home Care must administer these payments in a way that adheres to the conditions set out in the Act, ensuring that they are not counted as income for social security purposes (section 3). The Act also requires that the Commonwealth Department of Employment and Workplace Relations and the Commonwealth Department of Education, Science and Training be consulted to ensure coordinated administration of Pilot Project payments in relation to all social security payments under the Act (section 5).
For breaches of the provisions outlined in this determination, there are no specific offences or penalties mentioned in the text. However, any failure to comply with the conditions set by the Act, such as misusing Pilot Project payments or not adhering to the approved scheme guidelines, could potentially lead to legal consequences. These may include the recovery of wrongly paid benefits or other administrative actions to ensure compliance with social security laws. The determination focuses primarily on clarifying the exemption of Pilot Project payments from the social security income test, rather than detailing specific penalties for non-compliance.