EXPLANATORY STATEMENT
Social Security (Personal Care Support - Tasmanian Self Directed Funding Pilot) (DEEWR) Determination 2013 (No. 1)
This Determination provides that the Tasmanian Self Directed Funding Pilot Scheme is an ‘approved scheme’ under section 35A of the Social Security Act 1991 (the Act).
Background
Under the social security law, income includes any amount earned, derived or received for a person’s own use or benefit. However, the social security law specifically excludes some amounts from being recognised as 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 the 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 relevant Minister to determine that a scheme for the provision of personal care support is an ‘approved scheme’ for the purposes of the Act.
The scheme known as Self Directed Funding Pilot has been established by the Tasmanian Department of Health and Human Services to allow for direct payments to a person with a disability, or a person nominated by the person with disability, to enable the provision of specialist disability services or other support goods and services. Payments are not intended as income, or to be used as an income source for the person. The program will be introduced as a pilot from 1 July 2013.
Purpose
The purpose of the Determination is to determine that the Tasmanian Government’s Self Directed Funding Pilot Scheme is an approved personal care support scheme for the purposes of the Act.
A person for whom a payment is made under the Tasmanian Self Directed Funding Pilot Scheme may also receive a social security payment. The effect of this Determination is that the person will not have the payment received under the Self Directed Funding Pilot Scheme taken into account for the purposes of the income test under the social security law to the extent that the payment is for the cost of personal care support services for the person. This would ensure that the receipt of payments under the scheme would not have the unintended effect of reducing a person’s entitlement to any social security payment, because of the operation of the income test.
This Determination has effect in relation to social security payments coming within the portfolio responsibility of the Minister for Employment. Equivalent instruments have been made by the Ministers responsible for social security payments within the portfolios of the Department of Families, Housing, Community Services and Indigenous Affairs and the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education.
Explanation of the Provisions
Section 1 states the name of the Determination.
Section 2 provides that the Determination commences on 1 July 2013. The Determination allows for a payment to be made under the Tasmanian Self Directed Funding Pilot Scheme to a person. The person will not have the payment received under the Self Directed Funding Pilot Scheme taken into account for the purposes of the income test under the social security law to the extent that the payment is for the cost of personal care support services for the person.
Consequently, the Determination is purely beneficial in nature. Retrospective commencement of this Determination does not affect the rights of a person so as to disadvantage that person or impose any liabilities in respect of anything done or omitted to be done before the date of registration.
Section 3 provides that the Self Directed Funding Pilot, being a scheme of that name, established by the Tasmanian Department of Health and Human Services, is an approved scheme for the purposes of the Act.
Consultation
This Determination was made in response to a request from the Tasmanian Department of Health and Human Services.
Consultation on the Determination was undertaken with the Department of Families, Housing, Community Services and Indigenous Affairs and Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education.
Public consultation was considered to be unnecessary as this determination is purely beneficial in character.
Regulatory Impact Analysis
The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
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 Self Directed Funding Pilot) (DEEWR) Determination 2013 (No. 1)
The Social Security (Personal Care Support - Tasmanian Self Directed Funding Pilot) (DEEWR) Determination 2013 (No. 1) 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 Social Security (Personal Care Support - Tasmanian Self Directed Funding Pilot) (DEEWR) Determination 2013 (No. 1) (the Determination) is made under section 35A of the Social Security Act 1991 (the Act) and determines that the Government of Tasmania’s Self-Directed Funding Pilot program is an approved personal care support scheme for the purposes of the Act, thereby exempting Self-Directed Funding from the social security income test.
The Self-Directed Funding Pilot has been established by the Tasmanian Department of Health and Human Services to enable people with disability to have control and choice about the individual funding they receive from the Tasmanian Government. The program will be available to pilot program participants from July 2013.
Section 35A of the Act allows the Minister for Employment to determine that when a person receives funding provided by a personal care support scheme this funding is exempt from the social security income test in relation to social security payments for which the Minister is responsible. The Determination ensures that people receiving Self-Directed Funding from the Government of Tasmania will not have this funding assessed as income for social security law purposes, thereby ensuring that recipients retain the full value of the Self-Directed Funding.
Human rights implications
The Determination engages the human right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
In determining that payments made under the Self-Directed Funding Pilot are exempt from income tests for social security law purposes under section 35A, the Determination is beneficial to persons who receive payments under the Self-Directed Funding Pilot.
Conclusion
The Determination is compatible with the applicable rights and freedoms.