EXPLANATORY STATEMENT
Social Security (Personal Care Support – Victorian Direct Payments Project) Determination 2017
Summary
Section 35A of the Social Security Act 1991 (the Act) allows the Minister to determine that a scheme for the provision of personal care support is an ‘approved scheme’ for the purposes of the Act. This determination provides that the ‘Direct Payments Project,’ that provides personal care support, administered by the Victorian Department of Health and Human Services, is an ‘approved scheme’ under section 35A of the Act.
The effect of this determination is that people who receive a payment under the Direct Payments Project, and who also receive a social security payment, will not have their payments under the Direct Payments Project 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.
In particular, section 35A of the Act allows the Minister 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.
The Victorian Department of Health and Human Services makes payments under the Direct Payments Project to people with disabilities to pay specifically for their personal care support. Payments under the Direct Payments Project do not provide income support for people with disabilities. Instead, these payments help these people to live independent lives by contributing toward the cost of their long-term personal care support.
Under subsection 33(3) of the Acts Interpretation Act 1901, 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.
This determination repeals and remakes the Social Security (Personal Care Support– Direct Payments Project) (FaCSIA) Determination 2007, Social Security (Personal Care Support – Direct Payments Project) (DEWR) Determination 2007, and the Social Security (Personal Care Support – Direct Payments Project) (DEST) Determination 2007, consolidating these three determinations into one.
This instrument maintains the current Direct Payments Project as administered by the Victorian Department of Health and Human Services until the National Disability Insurance Scheme is fully established in Victoria.
The Determination provides that the Direct Payments Project is an ‘approved scheme’ under section 35A of the Act.
The effect of this determination is that people will not have their social security payments reduced because they are receiving payments under the Direct Payments Project, because the payments will not be regarded as income under the social security law.
Commencement
The Determination commences on the day after this instrument is registered on the Federal Register of Legislation.
Consultation
This Determination was made at the request of the Victorian Department of Health and Human Services. The Department of Agriculture and Water Resources has also been consulted.
The Determination is beneficial to customers because it exempts financial assistance in respect of personal care support provided by the Victorian Department of Health and Human Services from the social security income test. Public consultation was therefore seen as unnecessary.
Regulatory Impact Statement
The Determination does not require a Regulatory Impact Statement. The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Explanation of the provisions
Section 1 of the Determination states the name of the Determination.
Section 2 provides that the Determination commences the day after this instrument is registered on the Federal Register of Legislation.
Section 3 provides that the authority for making this determination is section 35A of the Social Security Act 1991.
Section 4 contains definitions of certain terms used in the Determination, including the Direct Payments Project. The Direct Payments Project is defined as a project which is administered by the Victorian Department of Health and Human Services and funds individuals with a disability who elect to self-manage their Individual Support Package under a direct payment model. A person who is funded under this project must comply with the agreement negotiated between the person and the Victorian Department of Health and Human Services which sets out the roles and responsibilities of both parties, the Individual Support Package Handbook, the Direct Payments Supplement and the person’s funding plan.
Section 5 provides that each instrument specified in the Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule and any other items have effect according to their terms.
Section 6 provides that the Direct Payments Project is an approved scheme for the purposes of the Act.
Items 1 to 3 of Schedule 1 repeal three Determinations. These are the Social Security (Personal Care Support – Direct Payments Project) (FaCSIA) Determination 2007, Social Security (Personal Care Support – Direct Payments Project) (DEWR) Determination 2007, and the Social Security (Personal Care Support – Direct Payments Project) (DEST) Determination 2007.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Legislative Instrument is the Social Security (Personal Care Support – Victorian Direct Payments Project) Determination 2017
The Social Security (Personal Care Support – Victorian Direct Payments Project) Determination 2017 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
This Determination is made under Section 35A of the Social Security Act 1991 (the Act) and determines that the Victorian Direct Payments Project is an approved personal care support scheme for the purposes of the Act, thereby exempting payments received by a person under this scheme for personal care support services from the social security income test.
The Determination ensures that people receiving assistance from the Victorian Direct Payments Project will not have this assistance assessed as income for social security purposes.
Human rights implications
The Determination engages the right to social security.
Section 35A of the Act allows the Minister for Social Services to determine that when a person receives assistance provided by a personal care support scheme this assistance is exempt from the social security income test in relation to social security payments for which the Minister for Social Services is responsible. The Determination is therefore beneficial to persons who receive such a social security payment.
Conclusion
This Determination ensures that individuals receiving assistance under the Victorian Direct Payments Project do not have assistance under this scheme assessed for income test purposes. The Determination supports their human right to social security and is therefore compatible with human rights.
The Hon Christian Porter MP, Minister for Social Services