EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Personal Care Support) (Tasmanian Motor Accidents Insurance Board – Future Care program) Determination 2025
Purpose
The Social Security (Personal Care Support) (Tasmanian Motor Accidents Insurance Board - Future Care program) Determination 2025 (the Determination) provides that the Tasmanian Motor Accidents Insurance Board Future Care program (the Future Care program) is an approved scheme under section 35A of the Social Security Act 1991 (the Act). The Future Care program is established under the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.) (the Tasmanian Act) for the payment of treatment and services for persons who require daily care.
A person who receives a payment under the Future Care program may also receive social security payments, if they meet all the eligibility requirements. The Determination has the effect that payments made under the Future Care program are not taken to be income for the purposes of the income test under the social security law. This ensures that a person’s entitlement to a social security payment is not affected by receiving personal care support through the Future Care program and the operation of the income test.
Similarly, the Determination will also have the effect that a Future Care program payment is not assessed as income for the purposes of means tested payments under the Veterans’ Entitlements Act 1986 and the Farm Household Support Act 2014.
Background
When determining a person’s eligibility for a social security payment, an income and assets test applies. Income is defined in subsection 8(1) of the Act, and includes any income amount earned, derived or received for a person’s own use or benefit, a periodical payment by way of gift or allowance or a periodical benefit by way of gift or allowance.
However, the Act specifically exempts some amounts that would otherwise be income for the purposes of the income test. Paragraph 8(8)(zi) of the Act provides that a payment towards the cost of personal care support services for a person, being a payment made under a scheme approved under section 35A, is not income for the purposes of the Act.
Section 35A of the Act allows the Minister to determine in writing that a scheme for the provision of personal care support is an approved scheme for the purposes of the Act.
Tasmanian Motor Accidents Insurance Board - Future Care program
The Tasmanian Act established the Tasmanian Motor Accidents Insurance Board. The Board funds a range of treatment and support services for eligible people injured as a result of a motor vehicle accident. This includes the Future Care program.
The Future Care program applies to eligible persons who “require[s] daily care”, as defined in subsection 2(5) of the Tasmanian Act. This is where the person requires or is likely to require at least two hours of care per day for an indefinite period as a result of a personal injury that directly results from a motor accident. This includes people who have sustained significant permanent life-changing injuries, for example, spinal cord or acquired brain injuries. Subsection 2(5) of the Tasmanian Act also requires that the daily care must commence within one year after the date of the person’s motor accident.
The Future Care program funds personal care support in accordance with the Tasmanian Act, to assist eligible persons with their “daily care”, as defined in subsection 2(1) of the Tasmanian Act). This includes treatment, nursing services, supervision and rehabilitation services. However, the Future Care program does not provide eligible persons with income support.
This Determination exempts payments made to eligible persons under the Future Care program from being considered as income, and therefore being subject to the income test, for the purposes of the Act.
The Future Care program has been an approved personal care support scheme under section 35A of the Act, in accordance with the current determination, the Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’) Determination 2015 (2015 Determination).
The 2015 Determination is due to sunset on 1 October 2025. The Determination repeals and remakes the previous determination in substantively the same terms.
Authority
The Determination is made under section 35A of the Act, which provides that the Minister may determine that a scheme for the provision of personal care support is an approved scheme for the purposes of the Act.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument. The Minister has the power under section 35A of the Act to repeal the 2015 Determination and make the Determination.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to disallowance.
Commencement
The Determination commences on the day after it is registered on the Federal Register of Legislation.
Consultation
The Department of Social Services consulted with the Tasmanian Motor Accidents Insurance Board on the text of the proposed Determination because payments administered by the Board are included in this Determination. The Board supported the Determination.
The Department of Social Services also consulted the following agencies on the intention to make this Determination. These agencies did not raise any concerns.
- Services Australia, given the impact on income support recipients.
- The Department of Agriculture, Fisheries and Forestry because paragraph 8(11)(d) determinations made under the Act apply automatically under the Farm Household Support Act 2014.
- The Department of Veterans’ Affairs because paragraph 8(11)(d) determinations made under the Act apply automatically under the Veterans’ Entitlements Act 1986.
The Department of Social Services did not consult with social security recipients likely to be affected by the Determination, given the beneficial nature of the Determination. The Determination has been revised but is being made in substantively the same terms and serves the same purpose as the 2015 Determination.
Availability of independent review
A decision made under the social security law, as informed by the Determination, is subject to internal and external review under Parts 4 and 4A of the Social Security (Administration) Act 1999.
Explanation of the provisions
Details of the Social Security (Personal Care Support) (Tasmanian Motor Accidents Insurance Board - Future Care program) Determination 2025
Section 1 – Name
This section states how the instrument is to be cited, that is, as the Social Security (Personal Care Support) (Tasmanian Motor Accidents Insurance Board - Future Care program) Determination 2025.
Section 2 - Commencement
This section provides that the Determination commences on the day after it is registered.
Section 3 - Authority
This section provides that the Determination is made under section 35A of the Social Security Act 1991.
Section 4 - Schedules
This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 repeals the Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’) Determination 2015 (see below).
Section 5 – Personal care support scheme
Section 5 provides that the scheme for the provision of personal care support, known as the Future Care program, is an approved scheme for the purposes of section 35A of the Social Security Act 1991.
The Future Care program is administered by the Tasmanian Motor Accidents Insurance Board, which is established under the Tasmanian Act. The program provides personal care support to eligible persons who satisfy the requirements in subsection 2(5) of the Tasmanian Act. This includes that the person must have suffered personal injury as a direct result of a motor accident, and requires indefinite daily care.
The approval of the Future Care program as an approved scheme has the effect that payments made under the program to social security recipients will not be regarded as income under the Act, and will not affect their entitlement to a social security payment.
Schedule 1 – Repeals
Item 1
Item 1 repeals the whole of the Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’) Determination 2015. The Determination remakes this sunsetting instrument in substantively the same terms. It is not intended that there are any changes to the approval of the scheme specified in the repealed instrument.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Personal Care Support) (Tasmanian Motor Accidents Insurance Board - Future Care program) Determination 2025
The Social Security (Personal Care Support) (Tasmanian Motor Accidents Insurance Board - Future Care program) Determination 2025 (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
The Determination provides that the Tasmanian Motor Accidents Insurance Board Future Care program is an approved scheme under section 35A of the Social Security Act 1991 (the Act).
The Motor Accidents Insurance Board makes payments under the Future Care program to people who have a personal injury as a direct result of a motor accident, and require daily care on an indefinite basis.
The Determination ensures that people receiving payments from this scheme for personal care support services will not have these payments assessed as income for social security purposes.
Human rights implications
The Determination engages the right to social security and the right to an adequate standard of living.
Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right to social security and requires a social security scheme to be established under domestic law that provides a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.
Article 11 of the ICESCR recognises the right to an adequate standard of living, which provides that everyone is entitled to adequate food, clothing and housing and to the continuous improvement of living conditions.
Section 35A of the Act allows the Minister to approve a personal care support scheme, which means that payments provided to a person under such a scheme are exempt from the social security income test under the Act. The exemption also flows through to means tested payments under the Veterans’ Entitlements Act 1986 and the Farm Household Support Act 2014.
The Determination is beneficial to persons who receive income support payments as it ensures that individuals receiving personal care support from the approved personal care support scheme, the Tasmanian Motor Accidents Insurance Board Future Care program, do not have these payments assessed for income test purposes. This means the individual’s entitlement to an income support payment under the Act, the Veterans’ Entitlements Act 1986 and the Farm Household Support Act 2014, is not affected by the support they receive under the Future Care program.
Conclusion
The Determination is compatible with human rights as it supports the right to social security and the right to an adequate standard of living.
The Hon Tanya Plibersek MP
Minister for Social Services