Social Security (South Australian 'Individualised Funding') (FaHCSIA) Determination 2013

Administered by Department of Social Services

Legislation au F2013L00116 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Social Security (South Australian ‘Individualised Funding’) (FaHCSIA) Determination 2013

The Social Security (South Australian ‘Individualised Funding’) (FaHCSIA) Determination 2013 (the Determination) is made under section 35A of the Social Security Act 1991 (the Act).

Background

Under the social security law, all income earned, derived or received for a person’s own use or benefit, is treated as income.  The only exceptions are items specifically exempted from the social security income test.

Section 35A of the Act allows the Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform 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.

The program known as ‘Individualised Funding’ has been established by the South Australian Department for Communities and Social Inclusion to enable people with disability to have control and choice about the supports they receive from the South Australian Government.  The program is intended to improve the lives of people with disability through greater choice and control in the supports they need and in achieving their goals and aspirations.  The program will be available to people with disability from January 2013.

Purpose

The purpose of the Determination is to determine that the Government of South Australia’s ‘Individualised Funding’ program is an approved personal care support scheme for the purposes of the Act.

This means that payments made under the Individualised Funding program towards the cost of personal care support services for a person, will be exempt from the social security income test in relation to social security payments for which the Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform is responsible.

A similar instrument is being considered by the Minister for Employment and Workplace Relations and the Minister for Tertiary Education, Skills, Science and Research in relation to social security payments for which those Ministers are responsible.

The Determination is a legislative instrument and commences the day after it is registered.

Explanation of the Provisions

 

Section 1 states the name of the Determination.

 

Section 2 provides that the Determination commences on the day after it is registered.

 

Section 3 provides that ‘Individualised Funding’, being the program of that name established by the South Australian Department for Communities and Social Inclusion, is an approved scheme for the purposes of the Act.

 

Consultation

 

Consultation on the Determination was undertaken with the South Australian Department for Communities and Social Inclusion as well as the Department of Education, Employment and Workplace Relations, and Department of Industry, Innovation, Science, Research and Tertiary Education.

 

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

This Legislative Instrument is the Social Security (South Australian ‘Individualised Funding’) (FaHCSIA) Determination 2013

The Social Security (South Australian ‘Individualised Funding’) (FaHCSIA) Determination 2013 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 (South Australian ‘Individualised Funding’) (FaHCSIA) Determination 2013 (the Determination) is made under section 35A of the Social Security Act 1991 (the Act) and determines that the Government of South Australia’s ‘Individualised Funding’ program is an approved personal care support scheme for the purposes of the Act, thereby exempting Individualised Funding from the social security income test.

The Individualised Funding program has been established by the South Australian Department for Communities and Social Inclusion to enable people with disability to have control and choice about the supports they receive from the South Australian Government.  The program will be available to people with disability from January 2013.

The Determination ensures that people receiving Individualised Funding from the Government of South Australia will not have this funding assessed as income for social security purposes thereby ensuring that recipients retain the full value of the Individualised Funding.

 

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 of FaHCSIA 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 Families, Community Services and Indigenous Affairs and the Minister for Disability Reform 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 from a personal care support scheme do not have this funding assessed for income test purposes. The Determination supports their human right to social security.

 

 

 

 

 

 

 

The Hon Jenny Macklin MP, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform

 

Overview

The Social Security (South Australian ‘Individualised Funding’) (FaHCSIA) Determination 2013 was enacted to address a gap in the treatment of certain social security payments under the Social Security Act 1991. This legislation was introduced to exempt payments made under the South Australian Government’s ‘Individualised Funding’ program from the social security income test. This program, established by the South Australian Department for Communities and Social Inclusion, aims to empower people with disabilities by giving them control and choice over the supports they receive. The Determination ensures that these individuals can retain the full value of their Individualised Funding without it impacting their social security benefits. This legislative instrument was created under the authority of the Minister for Families, Community Services and Indigenous Affairs and the Minister for Disability Reform, with a clear policy objective of supporting the human right to social security for those receiving such payments.

Scope and Application

The Social Security (South Australian ‘Individualised Funding’) (FaHCSIA) Determination 2013 is an instrument made under the Social Security Act 1991, which specifies that the ‘Individualised Funding’ program by the South Australian Department for Communities and Social Inclusion is recognised as an approved personal care support scheme. This means that payments made under this program towards personal care support services are exempt from the social security income test for those receiving care. The Determination applies specifically to individuals with disabilities who are beneficiaries of the Individualised Funding program in South Australia, ensuring that these payments do not reduce their social security benefits. This legislation is intended to uphold the recipients' human right to social security by allowing them to retain the full value of the Individualised Funding. The Determination commences the day after it is registered and is not considered to have regulatory impacts, compliance costs, or competition impacts. The Determination extends only to the personal care support services provided under the Individualised Funding program in South Australia, and it does not specify any exclusions or exemptions. The legislation is designed to ensure that the program operates within the framework of the Social Security Act 1991, allowing eligible individuals to access support without affecting their social security payments. This ensures that the funding is used to support their care needs without penalising them through a reduction in their social security benefits.

Key Provisions

The Social Security (South Australian ‘Individualised Funding’) (FaHCSIA) Determination 2013 is primarily structured around the key provisions in section 3, which states that the ‘Individualised Funding’ program, established by the South Australian Department for Communities and Social Inclusion, is approved as a personal care support scheme under the Social Security Act 1991. This approval ensures that payments made under the Individualised Funding program towards the cost of personal care support services for a person are exempt from the social security income test. This means that such payments will not be considered income for the purposes of assessing eligibility for social security benefits, thereby allowing recipients to retain the full value of these payments. In terms of obligations, the Determination imposes a responsibility on the Government of South Australia to administer the Individualised Funding program in a way that aligns with the social security laws. This includes ensuring that the program operates in a manner consistent with the exemptions outlined in the Determination. Furthermore, it requires that the program is accessible to eligible individuals with disabilities and that it provides them with the intended support and choice over their care services. The Determination does not explicitly outline specific offences, penalties, or civil/criminal consequences for breach. However, any deviation from the approved scheme's guidelines or misuse of funds could potentially lead to broader legal consequences under the Social Security Act 1991. The Act itself contains provisions for penalties and enforcement actions, which could be applied in cases of non-compliance with the approved scheme or any related social security laws. It is also worth noting that the Determination is compatible with the human rights and freedoms recognised in international instruments, ensuring that the rights of individuals receiving support under the Individualised Funding program are upheld.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.