EXPLANATORY STATEMENT
Social Security (Special Disability Trust — Discretionary Spending) Determination 2018
Summary
The Social Security (Special Disability Trust — Discretionary Spending) Determination 2018 (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 that are purposes other than the primary purpose of the special disability trust described in subsection 1209N(1) of the Act.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Section 1 sets out the name of the Determination.
Section 2 provides that the Determination commences on 1 July 2018.
Section 3 provides that the Social Security (Special Disability Trust ‑ Discretionary Spending) Determination 2017 is revoked on the commencement of the Determination.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
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 for other purposes that are primarily for the benefit of the principal beneficiary (other than the primary purposes of a special disability trust), is twelve thousand dollars ($12,000) in the 2018-2019 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 2018
The Social Security (Special Disability Trust – Discretionary Spending) Determination 2018 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 for purposes other than the primary purposes of the trust, while maintaining the ‘special disability trust’ status in accordance with section 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 twelve thousand dollars ($12,000) in the 2018-2019 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.
Mary McLarty, Branch Manager, Payment Structures Branch, as a delegate of the Secretary, Department of Social Services.