EXPLANATORY STATEMENT
Social Security (Tasmanian Motor Accidents Insurance Board Future Care Payments Exemption) (DEWR) Determination 2005
Summary
Section 35A of the Social Security Act 1991 (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. This determination provides 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 for which the Minister for Employment and Workplace Relations is responsible, 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. The only exceptions are items specifically exempted from the social security income test. Specific provisions in the Act allow Ministers to exempt certain kinds of payments from the social security income test, within principles defined in the Act, without the need for legislative change.
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. Since 1992, only a small number of schemes have been approved for the purposes of section 35A.
Explanation of the determination
This determination determines 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, for which the Minister for Employment and Workplace Relations is responsible. The effect of this determination is that these customers will not have their social security payments reduced 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.
A payment that is made from a scheme that has been approved by the Minister under s 35A of the Act will not be assessed as income of the customer for social security means testing purposes. However, this amount may also be assessed as other than ‘income’ under the Act, where the Act allows this to occur. For example, if a payment made from this scheme forms part of a compensation lump sum, then the amount will still be assessed as ‘compensation’ for the purposes of the Act and assessed according to the rules in Part 3.14 of the Act.
The Tasmanian Motor Accidents Insurance Board Future Care Payments are similar to other personal care support schemes that have previously been approved under section 35A of the Act.
Explanation of the provisions
Section 1 of the determination states the name of the determination.
Section 2 provides that the determination commences on 1 September 2005.
Section 3 provides a description of the Tasmanian Motor Accidents Insurance Board Future Care Payments Scheme.
Consultation
The Department of Family and Community Services and the Department of Education, Science and Training were consulted to ensure a co-ordinated and consistent approach to the administration of Future Care Payments for all social security payments under the Act.
This determination is beneficial to customers because it determines that this scheme is an ‘approved scheme’ allowing the payments to be exempt from the social security income test for payments for which the Minister for Employment and Workplace Relations is responsible. Public consultation was therefore seen as unnecessary.
Retrospectivity
This determination is to take effect on 1 September 2005 and is not to apply retrospectively.
Overview
The Social Security (Tasmanian Motor Accidents Insurance Board Future Care Payments Exemption) (DEWR) Determination 2005 was enacted to address a specific gap in the Social Security Act 1991 by providing an exemption for certain payments made under the Tasmanian Motor Accidents Insurance Board's Future Care Payments scheme. This determination was introduced by the Commonwealth of Australia Parliament and aims to ensure that individuals receiving personal care support through this scheme are not subject to a reduction in their Australian social security payments due to the income test. Specifically, this determination exempts Future Care Payments from being counted as income for the purposes of the social security income test, thereby preventing a reduction in social security payments for those who receive both Future Care Payments and Australian social security payments.
Scope and Application
The Social Security (Tasmanian Motor Accidents Insurance Board Future Care Payments Exemption) (DEWR) Determination 2005 applies to individuals who receive Future Care Payments from the Tasmanian Motor Accidents Insurance Board (TAMIB) and concurrently receive an Australian social security payment for which the Minister for Employment and Workplace Relations is responsible. The determination ensures that these Future Care Payments are not taken into account for the purposes of the social security income test, providing a financial relief for those who might otherwise have their social security benefits reduced. The geographic reach of this determination is limited to the Commonwealth of Australia, with a specific focus on the state of Tasmania where the TAMIB operates. It does not extend to any other state or territory. There are no stated exclusions or exemptions within the determination itself, but it is contingent on the recipients meeting the criteria for the TAMIB Future Care Payments scheme. This determination may be extended or restricted through subordinate instruments, although this has not been specified within the text.
Key Provisions
The main operative sections of the determination, as stated in section 1, is the name of the determination, the Social Security (Tasmanian Motor Accidents Insurance Board Future Care Payments Exemption) (DEWR) Determination 2005. Section 2 specifies that the determination commences on 1 September 2005. Section 3 provides a description of the Tasmanian Motor Accidents Insurance Board Future Care Payments Scheme, clarifying that the scheme is an approved scheme under section 35A of the Social Security Act 1991 (the Act). The determination ensures that payments made under this scheme are exempt from the social security income test for individuals who also receive Australian social security payments for which the Minister for Employment and Workplace Relations is responsible.
The obligations and requirements imposed by the Act on the parties it governs are primarily centred around the exemption of Future Care Payments from the social security income test. Under section 35A of the Act, Ministers are empowered to determine that certain schemes for the provision of personal care support are ‘approved schemes’. The determination in question specifically identifies the Tasmanian Motor Accidents Insurance Board Future Care Payments scheme as an approved scheme, ensuring that payments made under this scheme are not considered income for the purposes of social security means testing. The Tasmanian Motor Accidents Insurance Board is required to make payments to eligible individuals who have ongoing injuries resulting from transport accidents, and these payments must align with the conditions and criteria outlined in the determination.
Regarding the offences, penalties, or civil and criminal consequences for breach, the explanatory statement does not detail specific penalties or legal consequences for non-compliance with the determination. However, it is implied that any breach of the Act's provisions could potentially result in legal actions under the general provisions of the Act. The Act generally provides for civil and criminal penalties for non-compliance with its requirements, and any breach could lead to fines, legal proceedings, or other sanctions as prescribed by the Act. The maximum penalties for such breaches would depend on the specific provisions of the Act and the nature of the breach.
In summary, the determination identifies the Tasmanian Motor Accidents Insurance Board Future Care Payments scheme as an approved scheme, exempting these payments from the social security income test. It imposes specific obligations on the Board to ensure compliance with the determination and provides for potential civil or criminal consequences for any breaches of the Act’s provisions.