EXPLANATORY STATEMENT
Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’) Determination 2015
Summary
Section 35A of the Social Security Act 1991 (the Act) allows the Minister to determine, in writing, that a scheme for the provision of personal care support is an “approved scheme” for the purposes of the Act. This instrument determines that the Tasmanian Motor Accidents Insurance Board Future Care Payments scheme for personal care support is an “approved scheme” under section 35A.
The effect of this Determination is that people who receive Tasmanian Motor Accidents Insurance Board Future Care Payments, and who also receive an Australian social security payment, will not have these Future Care Payments taken into account for the purposes of the social security income test.
Background
Under the social security law all income earned, derived or received for a person’s own use or benefit, is counted as income. However, the social security law specifically excludes some amounts from being income.
Section 35A of the Act allows Ministers to determine that a scheme for the provision of personal care support is an “approved scheme” for the purposes of the Act. Payments made under an “approved scheme” are exempt from the income test under paragraph 8(8)(zi) of the Act in relation to the person who is receiving care.
Explanation of the instrument
This Determination provides that the Tasmanian Motor Accidents Insurance Board Future Care Payments scheme is an “approved scheme” under section 35A of the Act.
The Tasmanian Motor Accidents Insurance Board makes payments under the Future Care Payments scheme to people, who have an ongoing injury as a result of a transport accident, for their personal care.
Some Tasmanian Motor Accidents Insurance Board Future Care Payments recipients may also receive an Australian social security payment. The effect of this Determination is that these social security payment recipients will not have their social security payments reduced under the income test because of the Future Care Payments that they receive, because their Future Care Payments will not be regarded as income in accordance with paragraph 8(8)(zi) of the Act.
This Determination replaces three previous determinations which provided the same income test exemption for social security payment recipients who receive Future Care Payments.
Explanation of the provisions
Section 1 of the Determination states the name of the determination.
Section 2 provides that the Determination commences the day after it is registered.
Section 3 revokes three previous determinations of the former Department of Families and Community Services, the former Department of Education, Science and Training and the former Department of Employment and Workplace Relations.
The three former determinations are:
- Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’ Exemption) (DEST) Determination 2005
- Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’ Exemption) (DEWR) Determination 2005
- Family and Community Services (Tasmanian Motor Accidents Insurance Board 'Future Care Payments') Determination 2005
Subsection 4(1) provides that the Future Care Payments scheme is an approved scheme for the purposes of the Social Security Act 1991.
Subsection 4(2) provides a definition of the Future Care Payments scheme. It defines the Future Care Payments scheme as the scheme established by the Tasmanian Motor Accidents Insurance Board under the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) under which an allowance for long term care is paid to certain injured persons.
Commencement
This instrument is to take effect the day after it is registered.
Revocation of former instruments
Section 3 of this Determination revokes three instruments that covered payments under the Tasmanian Motor Accidents Insurance Board Future Care Payments Scheme. This Determination will continue to cover payments under that scheme in the same way as the three revoked instruments.
On 26 August 2005 Kay Patterson, the then Minister for Family and Community Services, made the Family and Community Services (Tasmanian Motor Accidents Insurance Board 'Future Care Payments') Determination 2005 (Federal Register of Legislative Instruments F2005L02463).
On 31 August 2005 Kevin Andrews, the then Minister for Employment and Workplace Relations, made the Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’ Exemption) (DEWR) Determination 2005 (Federal Register of Legislative Instruments F2005L02460).
On 9 September 2005 Brendan Nelson, the then Minister for Education, Science and Training, made the Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’ Exemption) (DEST) Determination 2005 (Federal Register of Legislative Instruments F2005L03068).
Under the current Administrative Arrangements Orders the Minister for Social Services has sole responsibility for making determinations under section 35A of the Act.
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.
Consultation
This Determination is based on the three previous determinations that are revoked in section 3 of the Determination. The Department has consulted with Tasmanian Motor Accidents Insurance Board and Australian Government Department of Agriculture regarding this determination.
This instrument is beneficial to social security payment recipients because it determines that the Tasmanian Motor Accidents Insurance Board Future Care Payments Scheme is an “approved scheme” under section 35A of the Act, thereby allowing payments under the Scheme to be exempt from the social security income test. Public consultation was therefore seen as unnecessary.
Regulatory Impact
This Determination does not require a Regulatory Impact Statement, as it is not regulatory in nature, does not impact on business activity and will have no, or minimal compliance costs.
The Determination remakes three previous determinations and therefore does not alter the law in this area.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
This Legislative Instrument is the Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’) Determination 2015
The Social Security (Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’) Determination 2015 (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 Legislative Instrument
The Determination is made under section 35A of the Social Security Act 1991 (the Act) and determines that the Tasmanian Motor Accidents Insurance Board ‘Future Care Payments’ Scheme is an approved personal care support scheme for the purposes of the Act, thereby exempting payments received by a person under this scheme for personal care support services from the social security income test.
The Tasmanian Motor Accidents Insurance Board makes payments under the ‘Future Care Payments’ scheme to people, who have an ongoing injury as a result of a transport accident, for their personal care.
The Determination ensures that people receiving payments from this scheme for the cost of personal care support services will not have these payments assessed as income for social security purposes.
Human rights implications
The Determination engages the right to social security.
The right to social security
Section 35A of the Act allows the Minister for Social Services to determine that when a person receives funding provided by a personal care support scheme this funding is exempt from the social security income test in relation to social security payments for which the Minister for Social Services is responsible. The Determination is therefore beneficial to persons who receive such a social security payment.
Conclusion
This Determination ensures that individuals receiving payments for personal care support services from the ‘Future Care Payments’ scheme do not have payments under this scheme assessed for income test purposes. The Determination supports their human right to social security and is therefore compatible with human rights.
The Hon Scott Morrison MP, Minister for Social Services