Overview

The Social Security (Special Disability Trust Beneficiary Requirements) (FaCSIA) Nomination of Agreement 2006, enacted to address the need for specific guidelines regarding the nomination of agreements for special disability trusts under the Social Security Act 1991, was introduced by the Secretary of the Department of Families, Communities and Indigenous Affairs, or their delegate. This legislative instrument aims to facilitate the qualification of trusts as special disability trusts by nominating specific agreements for beneficiaries living in institutions, hostels, or group homes funded under these agreements. It was made under subsection 1209M(3) of the Act, and its policy objective is to ensure a coordinated approach to payments under the Act, as evidenced by the consultations with the Department of Education, Science and Training and the Department of Employment and Workplace Relations. The instrument came into effect on 20 September 2006 and specifically nominates the Commonwealth State/Territory Disability Agreements listed in Schedule 1 as agreements under subparagraph 1209M(2)(b)(ii) of the Act.

Scope and Application

The Social Security (Special Disability Trust Beneficiary Requirements) (FaCSIA) Nomination of Agreement 2006 applies to the nomination of agreements for the purposes of qualifying a trust as a special disability trust under the Social Security Act 1991. Specifically, it allows for the nomination of agreements between the Commonwealth and a State or Territory, known collectively as the "Commonwealth State/Territory Disability Agreement". This applies to beneficiaries who live in institutions, hostels, or group homes where care is provided for people with disabilities and which receive funding under the nominated agreements. The legislation is applicable nationally as it involves agreements between the Commonwealth and various States and Territories. The Instrument is made under subsection 1209M(3) of the Social Security Act 1991 and commences on 20 September 2006. The agreements specified in Schedule 1 become nominated by the Secretary for the purposes of subparagraph 1209M(2)(b)(ii) of the Act. The legislation does not specify exclusions, exemptions, or thresholds but allows for extension or restriction of application through subordinate instruments.

Key Provisions

The Social Security (Special Disability Trust Beneficiary Requirements) (FaCSIA) Nomination of Agreement 2006 (the Instrument) nominates specific agreements for the purposes of qualifying a trust as a special disability trust. According to section 1209M(3) of the Social Security Act 1991, one of the ways for a trust to qualify is if the beneficiary resides in an institution, hostel, or group home that provides care for people with disabilities, and is funded (in whole or part) under an agreement nominated by the Secretary (section 1209M(2)(b)(ii)). The Instrument, made under the authority of the Secretary of the Department of Families, Communities and Indigenous Affairs or the Secretary’s delegate, identifies the Commonwealth State/Territory Disability Agreement as the nominated agreement (Schedule 1). This ensures that the trust can benefit from the special provisions available under the Act. The Instrument imposes specific obligations on the parties involved. Firstly, the Secretary must nominate an agreement that meets the criteria outlined in the Act. This involves entering into agreements with states and territories to ensure that the care facilities for people with disabilities are adequately funded and compliant with the requirements of the Social Security Act. These agreements must detail the funding arrangements, care standards, and other relevant criteria to qualify as a special disability trust. The Secretary’s role is pivotal in ensuring that the nominated agreements are in place and meet the legislative standards (section 1209M(3)). Breaches of the provisions in the Instrument can lead to significant consequences. The Social Security Act 1991 outlines various offences and penalties for non-compliance. For example, providing false or misleading information to obtain benefits can result in criminal charges, with potential penalties including fines and imprisonment. Additionally, trustees or beneficiaries who fail to comply with the requirements of the special disability trust may face civil consequences, such as the loss of benefits or financial penalties. The maximum penalties for these offences are determined by the specific provisions of the Act and can vary depending on the severity and nature of the breach. It is crucial for all parties to adhere to the requirements to avoid these potential repercussions.