EXPLANATORY STATEMENT
Issued by the authority of a delegate of the Secretary of the Department of Social Services
Social Security Act 1991
Social Security (Special Disability Trust — Discretionary Spending) Determination 2019
Background
The Social Security (Special Disability Trust — Discretionary Spending) Determination 2019 (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 but 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.
Commencement
The Determination commences on 1 July 2019.
Consultation
The Department of Veterans’ Affairs was consulted in the making of the Determination, to ensure a coordinated approach.
Regulation Impact Statement
The Office of Best Practice Regulation confirmed that a Regulation Impact Statement is not required for the Determination because the Determination is not regulatory in nature, will not impact on business activity, and will have no, or minimal, compliance costs or effect on competition (OBPR ID 25212).
Explanation of the provisions
Section 1 sets out the name of the Determination.
Section 2 provides that the Determination commence on 1 July 2019.
Section 3 provides that the Determination is made under subsection 1209RA(3) of the Act.
Section 4 provides definitions of terms used in the Determination.
Section 5 provides that the Social Security (Special Disability Trust ‑ Discretionary Spending) Determination 2018 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 is 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 6 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 $12,250 in the 2019-2020 financial year.
Under 1209N(1) of the Act, the primary purpose of a special disability trust is to meet reasonable care and accommodation needs of the beneficiary.
Section 1209RA(3) of the Act allows the Secretary to make a legislative instrument that determines the total value of income and assets of a special disability trust that may be applied in a specified financial year for purposes, other than the primary purpose, that are primarily for the benefit of the principal beneficiary of the trust.
If a Determination is made under subsection 1209RA(3) of the Act, under subsection 1209RA(1), where a special disability trust has one or more purposes, other than its primary purpose, that are primarily to the benefit of the intended beneficiary, the total value of the income and assets of the trust applied for those other purposes in a financial year must not exceed the value specified in the determination for that year.
Schedule 1
Section 1 repeals the Social Security (Special Disability Trust Discretionary Spending) Determination 2018.
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 2019
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 (the Act).
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 may 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 of the Act. 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 total value of the income and assets determined under subsection 1209RA(3) of the Act for the 2019-20 financial year is $12,250.
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 the receipt of 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.
Brenton Philp
Group Manager, Pensions and Housing Group
Delegate of the Secretary, Department of Social Services.