EXPLANATORY STATEMENT

Social Security (Special Disability Trust Beneficiary Requirements) Nomination of Agreement Instrument 2015

Summary

The Social Security (Special Disability Trust Beneficiary Requirements) Nomination of Agreement Instrument 2015 (the Instrument) is made under subsection 1209M(3) of the Social Security Act 1991 (the Act). The purpose of the Instrument is for the Secretary of the Department of Social Services to nominate agreements for the purposes of subparagraph 1209M(2)(b)(ii); that is, one of the possible ways to satisfy paragraph 1209M(2)(b) is if the beneficiary lives in an institution, hostel or group home in which care is provided for people with disabilities and for which funding is provided (in whole or part) under an agreement nominated by the Secretary under the Instrument.

The Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Section 1 sets out the name of the Instrument.

Section 2 provides that the Instrument commences the day after it is registered on the Federal Register of Legislative Instruments.

Section 3 provides that the Social Security (Special Disability Trust Beneficiary Requirements) (FaCSIA) Nomination of Agreement 2006 is revoked.

Section 4 provides definitions of terms used in the Instrument.

Section 5 provides that each of the agreements specified in Schedule 1 is an agreement nominated by the Secretary for the purposes of subparagraph 1209M(2)(b)(ii) of the Act.

Schedule 1 lists the agreements that are nominated for the purposes of subparagraph 1209M(2)(b)(ii) of the Act.

Consultation

The Department of Veterans’ Affairs was consulted by electronic communication in the making of this Determination/Instrument, to ensure a coordinated approach.

Regulation Impact Statement

There was no requirement to prepare a Regulation Impact Statement in regard to the Instrument as this measure is not likely to have a direct, or a substantial indirect, effect on business and is not likely to restrict competition.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Social Security (Special Disability Trust Beneficiary Requirements) Nomination of Agreement Instrument 2015

The Social Security (Special Disability Trust Beneficiary Requirements) Nomination of Agreement Instrument 2015 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 Instrument

The Instrument is made under subsection 1209M(3) of the Social Security Act 1991 (the Act).

The purpose of the Instrument is for the Secretary of the Department of Social Services to nominate agreements for the purposes of subparagraph 1209M(2)(b)(ii) of the Act; that is, one of the possible ways to satisfy paragraph 1209M(2)(b)is if the beneficiary lives in an institution, hostel or group home in which care is provided for people with disabilities and for which funding is provided (in whole or part) under an agreement nominated by the Secretary under the Instrument.

Human rights implications

The Instrument engages the following human rights:

• the right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
• the right to an adequate standard of living as recognised in Article 11 of ICESCR and Article 28 of the Convention on the Rights of Persons with Disabilities (CPRD).

The Instrument will promote the right to social security and the right to an adequate standard of living. The Instrument promotes these rights by nominating agreements for the purposes of the beneficiary requirements under the Act in relation to qualification of a trust as a special disability trust.

The effect of a trust being considered a special disability trust under the social security law is that a certain amount of income from the trust can be used for the benefit of the principal beneficiary while not being considered ordinary income for social security assessment purposes. This means that the beneficiary of the trust will potentially have more income to meet their needs before it affects their social security entitlement.

One of the possible ways to satisfy the beneficiary requirement under paragraph 1209M(2)(b) is if the beneficiary lives in an institution, hostel or group home in which care is provided for people with disabilities and for which funding is provided (in whole or part) under an agreement nominated by the Secretary under the Instrument.

Conclusion

The Instrument is compatible with human rights because it promotes the right to social security and the right to an adequate standard of living.

Finn Pratt, Secretary, Department of Social Services