EXPLANATORY STATEMENT
Social Security (Special Disability Trust — Discretionary Spending) (DIICCSRTE) Determination 2013 (No. 1)
Summary
The Social Security (Special Disability Trust — Discretionary Spending) (DIICCSRTE) Determination 2013 (No. 1) (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 2013.
Section 4 provides that the Social Security (Special Disability Trust — Discretionary Spending) (DIISRTE) Determination 2012 is revoked on the commencement of the Determination.
Section 5 provides definitions of terms used in the Determination.
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 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, seven hundred and fifty dollars ($10,750) in the 2013-2014 financial year.
Consultation
The Department of Families, Housing, Community Services and Indigenous Affairs, the Department of Veterans’ Affairs and the Department of Education, Employment and Workplace Relations were 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) (DIICCSRTE) Determination 2013 (No. 1)
The Social Security (Special Disability Trust – Discretionary Spending) (DIICCSRTE) Determination 2013 (No. 1) 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. 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.
The maximum amount is ten thousand, seven hundred and fifty dollars ($10,750) in the 2013-2014 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 in Article 11 of ICESCR and Article 28 of the Convention on the Rights of Persons with Disabilities.
The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
The right to an adequate standard of living, including food, water and housing provides that everyone is entitled to adequate food, clothing and housing and to the continuous improvement of living conditions.
In increasing the amount of discretionary use of Special Disability Trust funds permitted in line with indexation, before the Trust loses its status, and exemption from assessment as income for social security purposes, the Determination will promote the right to social security and the right to an adequate standard of living of those people whose social security entitlements are affected by receiving income from a Special Disability Trust. This is because these people will be better able, as a result of this Determination, to acquire essential health care, basic shelter and housing, water and sanitation, foodstuffs, clothing and the most basic forms of education.
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-Anne Sakkara, General Manager, Tertiary Strategies and Income Support Branch, as a delegate of Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education