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

Administered by Department of Social Services

Legislation au F2015L01164 Not in force Legislative Instrument

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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

 

 

Overview

The Social Security (Special Disability Trust Beneficiary Requirements) Nomination of Agreement Instrument 2015 was enacted to address a specific need under the Social Security Act 1991, which is to ensure that individuals with disabilities residing in care facilities, such as institutions, hostels, or group homes, can satisfy certain eligibility criteria for special disability trusts. This Instrument allows the Secretary of the Department of Social Services to nominate agreements under which these care facilities operate, thereby facilitating the qualification of these trusts as special disability trusts. This is intended to enhance the beneficiaries' access to additional income without affecting their social security entitlements. The Instrument was made under the authority of the Social Security Act 1991, and it revokes the previous nomination of agreements made in 2006. It ensures that the nominated agreements align with the policy objective of supporting the rights to social security and an adequate standard of living for individuals with disabilities, as recognised in international human rights instruments.

Scope and Application

The Social Security (Special Disability Trust Beneficiary Requirements) Nomination of Agreement Instrument 2015 applies to the Secretary of the Department of Social Services who, under the authority of the Social Security Act 1991, nominates agreements for the purposes of subparagraph 1209M(2)(b)(ii) of the Act. The primary beneficiaries of this legislation are individuals who are recipients of special disability trusts and reside in institutions, hostels, or group homes that provide care for people with disabilities, where funding is sourced under an agreement nominated by the Secretary. The Instrument is a legislative instrument created under the Legislative Instruments Act 2003 and is effective from the day after its registration on the Federal Register of Legislative Instruments. This Act revokes the previous Social Security (Special Disability Trust Beneficiary Requirements) (FaCSIA) Nomination of Agreement 2006, and its jurisdictional reach is national, applying across Australia. The Instrument does not specify any exclusions, exemptions, or thresholds but extends its application through the subordinate instrument, which lists the agreements nominated for the purposes outlined in the Act.

Key Provisions

The Social Security (Special Disability Trust Beneficiary Requirements) Nomination of Agreement Instrument 2015 (the Instrument) is primarily concerned with nominating agreements under the Social Security Act 1991 (the Act) for the purposes of subparagraph 1209M(2)(b)(ii). Specifically, section 5 of the Instrument nominates each of the agreements listed in Schedule 1 as eligible for the purpose of qualifying a beneficiary who resides in an institution, hostel, or group home that provides care for people with disabilities and receives funding under these agreements (sections 5 and 1209M(2)(b)(ii)). The Instrument also revokes the previous nomination of agreements made under the Social Security (Special Disability Trust Beneficiary Requirements) (FaCSIA) Nomination of Agreement 2006 (section 3). The obligations imposed by the Instrument on the parties or entities it governs primarily relate to the recognition and implementation of the nominated agreements. The Secretary of the Department of Social Services is tasked with nominating agreements that meet the criteria set out in the Act, thereby facilitating the qualification of certain trusts as special disability trusts. These trusts can then be used to provide additional income to beneficiaries without affecting their social security entitlements, thus supporting their adequate standard of living. Additionally, the Instrument ensures that these nominated agreements are those that provide care and funding specifically for people with disabilities in eligible residential settings. The Act does not explicitly outline specific offences, penalties, or consequences for breaches of the Instrument. However, the overall legislative framework under which the Instrument operates includes general provisions for compliance and enforcement within the Social Security Act 1991. For example, breaches of the Act's requirements may lead to civil or criminal penalties, which can include fines and imprisonment, depending on the severity of the breach. The specific penalties would be determined in accordance with the relevant sections of the Social Security Act 1991. Overall, the Instrument ensures that the nominated agreements are recognised and implemented correctly, thereby supporting the rights to social security and an adequate standard of living for beneficiaries of special disability trusts.

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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.