Social Security (Special Disability Trust - Discretionary Spending) Determination 2014

Administered by Department of Social Services

Legislation au F2014L00868 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Social Security (Special Disability Trust — Discretionary Spending) Determination 2014

Summary

 

The Social Security (Special Disability Trust — Discretionary Spending) Determination 2014 (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 2014.

Section 3 provides that the Social Security (Special Disability Trust ‑‑ Discretionary Spending) (FaHCSIA) Determination 2013, the Social Security (Special Disability Trust – Discretionary Spending) (DEEWR) Determination 2013 (No. 1) and Social Security (Special Disability Trust – Discretionary Spending) (DIICCSRTE) Determination 2013 (No. 1) are revoked on the commencement of the Determination.  The Determination consolidates the power now vested in the Secretary of the Department of Social Services.

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 eleven thousand dollars ($11,000) in the 2014-2015 financial year.

Consultation

 

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

 

Regulation Impact Statement

 

A Regulation Impact Statement is not required for this Determination because this Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or 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) Determination 2014

 

The Social Security (Special Disability Trust – Discretionary Spending) Determination 2014 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 which is to meet reasonable care and accommodation needs of the beneficiary).

 

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 in accordance with s 1209L. Increasing the amount will mean that more of the income of a person with a disability will not be considered ordinary income for social security assessment purposes due to the maintenance of ‘special disability trust’ status.

 

The maximum amount is eleven thousand dollars ($11,000) in the 2014-2015 financial year.

 

Human rights implications

The Determination 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 Determination will promote the right to social security and the right to an adequate standard of living for those people whose social security entitlements are affected by receiving income from a special disability trust. The rights will be promoted by increasing the amount of discretionary use of special disability trust funds before the trust loses its status as a ‘special disability trust’.

 

Conclusion

The Determination 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 — Discretionary Spending) Determination 2014 was enacted to address the need for flexibility in the spending of funds held within special disability trusts, while ensuring the maintenance of their status and the protection of beneficiaries’ social security entitlements. This Determination was made under subsection 1209RA(3) of the Social Security Act 1991 by the Secretary of the Department of Social Services. The primary policy objective of this legislation is to allow a certain amount of trust income and assets to be spent for the benefit of the principal beneficiary for purposes other than the primary objectives of the trust, without compromising the ‘special disability trust’ status. This is achieved by setting a maximum limit of $11,000 that can be spent in the 2014-2015 financial year, thereby supporting the rights to social security and an adequate standard of living as recognised in international human rights instruments. The Determination also consolidates the spending authority previously held by various departments into a single authority, ensuring a coordinated approach.

Scope and Application

The Social Security (Special Disability Trust — Discretionary Spending) Determination 2014 applies to special disability trusts under the Social Security Act 1991. This legislation is applicable to trusts established for the benefit of individuals with disabilities, allowing a specific amount of discretionary spending from the trust's income and assets for the principal beneficiary's benefit, beyond the primary purposes of the trust. The Determination is a legislative instrument created under the Legislative Instruments Act 2003, with its scope extending across Australia as it operates within the framework of the Commonwealth’s social security system. It revokes previous determinations from 2013, consolidating the authority under the Secretary of the Department of Social Services. Notably, the Determination sets a limit of eleven thousand dollars ($11,000) for discretionary spending in the 2014-2015 financial year, ensuring that the trust maintains its status as a special disability trust, which is crucial for the beneficiaries' social security assessment. The legislation does not require a Regulation Impact Statement, as it is not considered regulatory and does not impose significant compliance costs or impact on business activities.

Key Provisions

The Social Security (Special Disability Trust — Discretionary Spending) Determination 2014 (the Determination) under subsection 1209RA(3) of the Social Security Act 1991 sets the maximum amount of a special disability trust's income and assets that can be spent for purposes primarily for the benefit of the principal beneficiary. This amount is capped at eleven thousand dollars ($11,000) for the 2014-2015 financial year. This provision ensures that the trust retains its special status while allowing for some flexibility in how the funds are used for the beneficiary’s benefit. The Determination revokes previous determinations and consolidates the spending authority under the Secretary of the Department of Social Services. The Determination imposes specific obligations on trustees of special disability trusts. They must ensure that any discretionary spending does not exceed the specified maximum and that the primary purpose of the trust, which is to meet the reasonable care and accommodation needs of the beneficiary, is not compromised. Trustees are also required to maintain records and provide reports as necessary to demonstrate compliance with the Determination. Additionally, the trustees must ensure that the spending is for the benefit of the principal beneficiary and not for any other purposes that could jeopardize the special status of the trust. Failure to comply with the Determination can lead to significant consequences. Trustees who exceed the maximum discretionary spending limit may face penalties, including financial penalties as specified by the Social Security Act 1991. The trust could also lose its special status, which would have implications for the beneficiary’s social security entitlements. Furthermore, trustees who knowingly or recklessly breach the Determination may face civil or criminal penalties, including fines and imprisonment. The exact penalties depend on the severity and intent behind the breach, with maximum penalties outlined in the Social Security Act 1991.

Legal classification tags

Area of Law
Social Security Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Commencement Provisions
Repeal & Amendment

Interactions

Authorises

All Versions

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.