EXPLANATORY STATEMENT
Social Security (Self-Directed Funding Tasmania Program) Determination 2015
Summary
Section 35A of the Social Security Act 1991 (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. This instrument determines that the Self-Directed Funding Tasmania Program established under the Disability Services Act 2011 (Tas) is an “approved scheme” under section 35A.
The effect of this Determination is that people who receive assistance under the
Self-Directed Funding Tasmania Program, and who also receive an Australian social security payment, will not have this assistance 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 counted as income. However, the social security law specifically excludes some amounts from being income.
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 under paragraph 8(8)(zi) of the Act in relation to the person who is receiving care.
Explanation of the instrument
This Determination provides that the Self-Directed Funding Tasmania Program is an “approved scheme” under section 35A of the Act.
The Self-Directed Funding Tasmania Program has been established 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 was introduced as a pilot in 2013 and from 1 January 2015 the Self-Directed Funding Tasmania Program has been available to eligible participants.
In 2013 three determinations were made under section 35A of the Act which made the pilot of the Self-Directed Funding Tasmania Program an ”approved scheme” under section 35A of the Act. The three determinations are:
- Social Security (Personal Care Support - Tasmanian Self Directed Funding Pilot) (FaHCSIA) Determination 2013
- Social Security (Personal Care Support - Tasmanian Self Directed Funding Pilot) (DEEWR) Determination 2013 (No. 1)
- Social Security (Personal Care Support - Tasmanian Self Directed Funding Pilot) (DIICCSRTE) Determination 2013
This Determination revokes the 2013 determinations which provided an income test exemption for social security payment recipients who received payments from the Tasmanian Self Directed Funding Pilot. These determinations are no longer required as payments are no longer being made under that Pilot.
Some recipients of payments under the Self-Directed Funding Tasmania Program also receive an Australian social security payment. The effect of this Determination is that these people will not have their social security payments reduced under the income test because of the Self-Directed Funding Tasmania Program payments they receive. The Determination will ensure that their Self-Directed Funding Tasmania Program payments will not be regarded as income for the purpose of paragraph 8(8)(zi) of the Act.
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 it is registered.
Section 3 revokes three previous determinations of the former Department of Families, Housing, Community Services and Indigenous Affairs (F2013L00770), the former Department of Education, Employment and Workplace Relations (F2013L01636) and the former Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education (F2013L01111).
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.
Subsection 4(1) provides that the Self-Directed Funding Tasmania Program is an approved scheme for the purposes of the Social Security Act 1991.
Subsection 4(2) provides a definition of the Self-Directed Funding Tasmania Program. It defines the Self-Directed Funding Tasmania Program as the scheme established by the Disability Services Act 2011 (Tas).
Commencement
The Determination takes effect the day after it is registered.
Consultation
This Determination is based on three previous determinations that are revoked in section 3 of the Determination. The Department has consulted with the Tasmanian Department of Health and Human Services, the Australian Government Department of Veterans’ Affairs and the Australian Government Department of Agriculture and Water Resources regarding this determination.
This Determination is beneficial to social security payment recipients because it determines that the Self-Directed Funding Tasmania Program is an “approved scheme” under section 35A of the Act, thereby allowing payments under the
Self-Directed Funding Tasmania Program to be exempt from the social security income test. 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 (Self-Directed Funding Tasmania Program) Determination 2015
The Social Security (Self-Directed Funding Tasmania Program) 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 Self-Directed Funding Tasmania Program established under the Disability Services Act 2011 (Tas) is an approved personal care support scheme for the purposes of the Act. The Determination thereby exempts 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 payments from the Self-Directed Funding Tasmania Program will not have these payments assessed as income for social security purposes.
Human rights implications
The Determination engages the 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
This Determination ensures that individuals receiving assistance under the
Self-Directed Funding Tasmania Program do not have payments 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