EXPLANATORY STATEMENT
Social Security (Personal Care Support – Victorian Transport Accident Commission – Scheme for Payment of Medical and Like Benefits to Persons Injured as a result of a Transport Accident and Scheme for Individualised Funding) Determination 2015
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 Victorian Transport Accident Commission’s Scheme for Payment of Medical and Like Benefits to Persons Injured as a result of a Transport Accident and Scheme for Individualised Funding (the Victorian TAC Schemes) are “approved schemes” under section 35A of the Act).
A person, to whom a payment is made under the Victorian TAC Schemes may also receive a social security payment. The effect of this Determination is that the person will not have a payment under the Victorian TAC Schemes taken into account for the purposes of the income test under the social security law.
Background
Under the social security law, income includes any income amount earned, derived or received for a person’s own use or benefit. However, the social security law specifically excludes some amounts from being income. 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 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.
Explanation of the Determination
This Determination approves the Victorian TAC Schemes as ‘approved schemes’ under section 35A of the Act. The Victorian TAC Schemes do not provide income support for day-to-day living expenses that people without disability would incur.
The Victorian TAC Schemes have been established by the Victorian Transport Accident Commission (the Commission) pursuant to provisions in the Victorian Transport Accident Act 1986 (the TA Act). The Commission, established under the TA Act, administers the making of payments under the Victorian TAC Schemes.
The TA Act created a compulsory third party compensation scheme that provides comprehensive no-fault and common law damages compensation for persons who are injured or die as a result of a transport accident in Victoria or interstate that involves a Victorian registered vehicle. One aspect of the ‘no fault’ component of the TA Act is the provision of Medical and Like Benefits under section 60 of the TA Act.
Payments to injured persons under the Victorian TAC Schemes are made in respect of a number of treatment and support services.
Under the Scheme for Payment of Medical and Like Benefits for Persons Injured as a result of a Transport Accident payments are made under section 60 of the TA Act to persons who are injured as a result of a transport accident and reasonably require services for the treatment of, and support services related to, the accident-related injury or disability.
The Scheme for Individualised Funding refers to payments made under funding agreements entered into under section 61A of the TA Act. These individual funding agreements allow claimants with a severe injury to self-manage the majority of the services which are provided as Medical and Like Benefits under section 60 of the TA Act. The purpose of these individualised funding agreements is to promote the claimant’s autonomy and independence in purchasing and managing their own services. The claimant is provided with access to a bank account which they can use to purchase approved services to which they would otherwise be entitled to under section 60 of the TA Act. Individualised funding recipients enter into a legal agreement with the Commission that governs the use of the bank account. The funds may only be used to purchase certain approved services.
The effect of this Determination is that a person who receives the benefit of a payment under the Victorian TAC Schemes, and who also receives a social security payment, will not have the payment under the Victorian TAC Schemes taken into account for the purposes of the income test under social security law.
Commencement
This Determination will commence on the day after it is registered.
Revocation of Previous Instruments
This Determination revokes three instruments that covered payments under the Commission’s “Attendant Care” and “Post Acute Support” schemes. This Determination will continue to cover payments for the services provided under those schemes, as well as covering a number of payments for other services for injured persons included in the Medical and Like Benefits provisions described in section 60 of the TA Act.
On 26 August 2005 Kay Patterson, the then Minister for Family and Community Services, made the Family and Community Services (Victorian Transport Accident Commission ‘Attendant Care Service’ and ‘Post Acute Support’) Determination 2005 (Federal Register of Legislative Instruments F2005L02464).
On 31 August 2005 Kevin Andrews, the then Minister for Employment and Workplace Relations, made the Social Security (Victorian Transport Accident Commission ‘Attendant Care Service’ and ‘Post Acute Support’ Exemption) (DEWR) Determination 2005 (Federal Register of Legislative Instruments F2005L02456).
On 9 September 2005 Brendan Nelson, the then Minister for Education, Science and Training, made the Social Security (Victorian Transport Accident Commission ‘Attendant Care Service’ and ‘Post Acute Support’ Exemption) (DEST) Determination 2005 (Federal Register of Legislative Instruments F2005L03027).
Under the current Administrative Arrangements Orders the Minister for Social Services has sole responsibility for making determinations under section 35A of the Act.
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.
Consultation
The Australian Government Department of Agriculture was consulted regarding this Determination.
This Determination is beneficial to income support recipients because it excludes payments made under the Victorian TAC Schemes from being taken into account as income under the social security law. Public consultation was therefore seen as unnecessary.
Regulatory Impact
This Determination does not require a Regulatory Impact Statement, as it is not regulatory in nature, does not impact on business activity and will have no, or minimal compliance costs.
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 Transport Accident Commission – Scheme for Payment of Medical and Like Benefits to Persons Injured as a result of a Transport Accident and Scheme for Individualised Funding) Determination 2015
The Social Security (Personal Care Support – Victorian Transport Accident Commission – Scheme for Payment of Medical and Like Benefits to Persons Injured as a result of a Transport Accident and Scheme for Individualised Funding) Determination 2015 (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 is made under section 35A of the Social Security Act 1991 (the
Act) and determines that the Victorian Transport Accident Commission – Scheme for Payment of Medical and Like Benefits to Persons Injured as a result of a Transport Accident and Scheme for Individualised Funding are approved personal care support schemes for the purposes of the Act, thereby exempting payments received by a person under the schemes for personal care support services from the social security income test.
The Victorian Transport Accident Commission administers the Scheme for Payment of Medical and Like Benefits to Persons Injured as a result of a Transport Accident and the Scheme for Individualised Funding (the Schemes). A person who has been injured as a result of a transport accident may be eligible to be a participant in the Schemes. The intended outcome of the Schemes is that a person is not out-of-pocket in relation to any of the expenses which he or she incurs in obtaining the treatment and support services which are appropriate for his or her injury.
Under the Scheme for Payment of Medical and Like Benefits to Persons Injured as a result of a Transport Accident, payments are made to persons who are injured as a result of a transport accident and reasonably require treatment and support services related to the accident-related injury. Under the Scheme for Individualised Funding, payments are made under individual funding agreements to allow persons who were injured as a result of a transport accident to self-manage the obtaining of, and payment for, certain approved services.
The Determination ensures that people receiving payments from the Schemes for the cost of personal care support services will not have this funding assessed as income for social security purposes.
Human rights implications
The Determination engages the human right: Right to social security.
The right to social security
Section 35A of the Act allows the Minister for Social Services 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 for Social Services is responsible. The determination is
therefore beneficial to persons who receive such a social security payment.
Conclusion
The Determination under section 35A of the Act ensures that individuals receiving
funding for personal care support services from the approved personal care support
schemes do not have this funding assessed for income test purposes. The
Determination supports their human right to social security and is compatible with
the applicable rights and freedoms.
The Hon Scott Morrison MP, Minister for Social Services