EXPLANATORY STATEMENT
Issued by the authority of the Minister for Education, Science and Training
Subject: Social Security Act 1991
Social Security (Personal Care Support Scheme - Pflegegeld) Determination 2005
Background
Under the social security law all income earned, derived or received for a person’s own use or benefit, is counted as income. The only exceptions are items specifically exempted under the social security law. Specific provisions in the Social Security Act 1991 (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.
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, twelve schemes have been approved for the purposes of section 35A.
The purpose of this instrument is to determine that the Austrian Pflegegeld scheme of personal care support is an “approved scheme” under section 35A of the Act.
The effect of this instrument is that people living in Austria who receive a Pflegegeld payment, and who are eligible for Youth Allowance and Austudy because of enrolment with an Australian education provider and their study for a defined period at an Austrian university, will not have their Pflegegeld payments taken into account for the purposes of the social security income test.
Explanation of the instrument
The Austrian government makes payments under the Pflegegeld scheme to people with disabilities to pay specifically for their personal care support. Pflegegeld payments do not provide income support for people with disabilities, however, they help these people to live independent lives outside of a public institution by contributing toward the cost of their long term personal care support.
Some Pflegegeld recipients living in Austria may also receive an Australian social security payment, such as disability support pension. This Determination aims to ensure that the recipients of any of the Australian social security payments will not have their social security payments reduced because of the Pflegegeld payments that they receive.
Pflegegeld payments are similar to other personal care support payments made by Italy and the United Kingdom 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.
Consultation
The Department of Family and Community Services and the Department of Employment and Workplace Relations were consulted to ensure a co-ordinated and consistent approach to the administration of Pflegegeld payments for all social security payments under the Act.
This instrument is beneficial to customers because it exempts Austrian Pflegegeld payments from the social security income test. Public consultation was therefore seen as unnecessary.
Retrospectivity
The Minister for Family and Community Services signed a similar instrument on 17 December 2004 in relation to social security payments within her portfolio responsibilities. This instrument will also have effect from 17 December 2004 to ensure that Pflegegeld payments are treated consistently for all social security payments under the Act from the same date. This retrospective commencement is beneficial to social security recipients in that it exempts their Pflegegeld payments from the income test from 17 December 2004. This instrument does not disadvantage social security recipients in any way.
Overview
The Social Security (Personal Care Support Scheme - Pflegegeld) Determination 2005 was introduced to address a gap in the existing social security legislation concerning the treatment of certain personal care support payments made to Australian citizens living abroad. Enacted by the Parliament of Australia, the objective of this Determination is to exempt Pflegegeld payments from the social security income test, ensuring that these payments do not adversely affect the recipients' eligibility for Australian social security benefits. This Determination was made under the authority of the Social Security Act 1991 and aims to align the treatment of Pflegegeld payments with other similar personal care support payments already exempted from the income test. By exempting Pflegegeld payments from the income test, the Determination ensures that Australian citizens receiving these payments while living in Austria will not have their social security benefits reduced, thus promoting consistency and fairness in the administration of social security payments.
Scope and Application
The Social Security (Personal Care Support Scheme - Pflegegeld) Determination 2005 applies to individuals living in Austria who receive Pflegegeld payments and are also eligible for Youth Allowance and Austudy through their enrolment with an Australian education provider and their study at an Austrian university. This determination seeks to ensure that the Pflegegeld payments these individuals receive do not affect their eligibility for Australian social security income support by exempting these payments from the social security income test. The exemption applies solely to the person receiving care and does not extend to payments made directly to carers. The instrument is effective from 17 December 2004, allowing retrospective application to benefit social security recipients by exempting their Pflegegeld payments from the income test from that date. The instrument is made under the authority of the Minister for Education, Science and Training and applies on a national level across Australia, ensuring a consistent approach in the administration of Pflegegeld payments for all social security payments under the Act.
Key Provisions
The key provisions of the Social Security (Personal Care Support Scheme - Pflegegeld) Determination 2005, as outlined in the explanatory statement, establish the framework for exempting Pflegegeld payments from the social security income test. Section 35A of the Social Security Act 1991 allows Ministers to designate the Austrian Pflegegeld scheme as an approved scheme, ensuring that payments made under this scheme are exempt from the income test for individuals receiving care (section 8(8)(zi) of the Act). The determination aims to benefit individuals who are eligible for Australian social security payments, such as Youth Allowance and Austudy, while also receiving Pflegegeld payments from Austria.
The Act imposes specific obligations on the parties involved. The Australian government, through the Department of Family and Community Services and the Department of Employment and Workplace Relations, ensures a coordinated approach in administering Pflegegeld payments. This includes ensuring that such payments are not considered income for the purposes of social security assessments. Recipients of Pflegegeld payments who are also receiving Australian social security benefits must comply with the requirements set forth in the Act and the determination to ensure their eligibility for both types of support.
The explanatory statement indicates that there are no specified offences or penalties within the determination itself. However, the Social Security Act 1991 does provide for various civil and criminal consequences for breaches related to social security payments. For instance, section 125 of the Act stipulates that providing false or misleading information to obtain a social security payment can result in a civil penalty, and in severe cases, criminal charges may be brought against the offender. The maximum penalties can vary depending on the specific offence and the circumstances of the breach, but they can include substantial fines and imprisonment.