EXPLANATORY STATEMENT
Social Security (Special Disability Trust — Discretionary Spending) (DEEWR) Determination 2012
Summary
The Social Security (Special Disability Trust — Discretionary Spending) (DEEWR) Determination 2012 (the Determination) is made under subsection 1209RA(3) of the Social Security Act 1991 (the Act). The purpose of the Determination is to set out the maximum amount of a special disability trust’s income and assets that can be spent for purposes that are primarily for the benefit of the principal beneficiary.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Section 1 sets out the name of the Determination.
Section 2 provides that the Determination commences on 1 July 2012. The Determination has a purely beneficial effect on the rights of persons affected by the instrument, as outlined in this statement. Retrospective commencement of the Determination does not disadvantage any person nor does it impose any liabilities in respect of anything done or omitted to be done before the date of registration.
Section 3 provides that the Social Security (Special Disability Trust ‑‑ Discretionary Spending) (DEEWR) Determination 2011 is revoked on the commencement of the Determination.
Section 4 provides definitions of terms used in the Determination.
Section 5 provides that, for the purposes of subsection 1209RA(3) of the Act, the maximum value of the trust’s income and assets that can be spent by the special disability trust for other purposes that are primarily for the benefit of the principal beneficiary (other than the primary purposes of a special disability trust), is ten thousand, five hundred dollars ($10,500) in the 2012-2013 financial year.
Consultation
Consultations have occurred between the Department of Families, Housing, Community Services and Indigenous Affairs, the Department of Education, Employment and Workplace Relations, the Department of Industry, Innovation, Science, Research and Tertiary Education and the Department of Veterans’ Affairs in the making of this Determination, to ensure a coordinated approach.
Regulation Impact Statement
There was no requirement to prepare a Regulation Impact Statement in regard to the Determination, 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 — Discretionary Spending) (DEEWR) Determination 2012
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 Determination
The Determination is made under subsection 1209RA(3) of the Social Security Act 1991.
The purpose of the Determination is to set out the maximum amount of the income and assets of a special disability trust that can be spent for purposes that are primarily for the benefit of the principal beneficiary (other than the primary purposes of a special disability trust). The maximum amount is ten thousand and five hundred dollars ($10,500) in the 2012-2013 financial year.
Human rights implications
The Determination engages the following human right:
Right to Social Security
Article 9 of the International Covenant on Economic, Social and Cultural Rights recognises the right of everyone to social security. Article 28 of the Convention on the Rights of Persons with Disabilities recognises the rights of persons with disability to an adequate standard of living and social protection.
The Determination is designed to allow a certain amount of trust income and assets to be used for the benefit of the principal beneficiary but for purposes other than the primary purposes of the trust, while maintaining the ‘special disability trust’ status.
Increasing the amount will have positive implications for persons with a disability, as it will mean that a larger amount of the income from the trust can be used for purposes other than the primary purposes of the trust without the trust ceasing to be a special disability trust. Where a trust is a special disability trust the beneficiary’s income from the trust is not considered ordinary income for social security assessment purposes.
The Determination will promote the right to social security and social protection by increasing the amount of discretionary use of special disability trust funds permitted in line with indexation, before the trust loses its status as a special disability trust.
Conclusion
This Determination is compatible with human rights as it promotes human rights issues.