EXPLANATORY STATEMENT
Social Security (Victorian Transport Accident Commission Attendant Care Service and Post Acute Support 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 Victorian Transport Accident Commission Attendant Care Service and Post Acute Support schemes for personal care support are ‘approved schemes’ under section 35A.
The effect of this determination is that people who receive Victorian Transport Accident Commission Attendant Care Service or Post Acute Support payments, and who also receive an Australian social security payment for which the Minister for Employment and Workplace Relations is responsible, will not have their Attendant Care Service or Post Acute Support 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 provides that Victorian Transport Accident Commission Attendant Care Service and Post Acute Support schemes are ‘approved schemes’ under section 35A of the Act.
The Victorian Transport Accident Commission makes payments under the Attendant Care Service scheme to people, who have an ongoing injury as a result of a transport accident, for their personal care support. The Victorian Transport Accident Commission also makes payments under the Post Acute Support scheme to people who have a temporary need for support as a result of transport accident injuries.
Some Victorian Transport Accident Commission Attendant Care Service and Post Acute Support 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 Attendant Care Service or Post Acute Support payments that they receive, because their Attendant Care Service or Post Acute Support 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.
Victorian Transport Accident Commission Attendant Care Service and Post Acute Support 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 descriptions of the Attendant Care Service and Post Acute Support schemes.
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 social security income test treatment of Attendant Care Service and Post Acute Support payments for all social security payments under the Act.
This determination is beneficial to customers because it determines that these schemes are ‘approved schemes’ 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 (Victorian Transport Accident Commission Attendant Care Service and Post Acute Support Exemption) (DEWR) Determination 2005, enacted by the Australian Government, addresses the issue of ensuring that payments made under the Victorian Transport Accident Commission Attendant Care Service and Post Acute Support schemes are not taken into account for the purposes of the social security income test. This determination was introduced to ensure consistency and fairness in the treatment of these payments, which are provided to individuals who have suffered injuries from transport accidents. The policy objective is to exempt certain kinds of payments from the social security income test, aligning with the principles defined in the Social Security Act 1991. By classifying these schemes as 'approved schemes', the determination ensures that recipients of these payments, who also receive Australian social security payments, will not experience a reduction in their social security benefits due to the attendant care or post acute support payments they receive. This approach ensures that the income test for social security purposes does not unfairly impact those who are already receiving support for their injuries.
Scope and Application
The Social Security (Victorian Transport Accident Commission Attendant Care Service and Post Acute Support Exemption) (DEWR) Determination 2005, which applies from 1 September 2005, serves to exempt certain personal care support payments from the income test under the Social Security Act 1991. This determination applies to individuals receiving payments under the Victorian Transport Accident Commission Attendant Care Service and Post Acute Support schemes. These schemes provide personal care support to individuals who have sustained injuries as a result of transport accidents, either ongoing or temporary. The determination ensures that recipients of these payments who also receive Australian social security payments managed by the Minister for Employment and Workplace Relations will not have their social security payments reduced due to the attendant care or post acute support payments they receive, as these payments are not considered income under the income test provisions of the Act. While this determination provides relief by exempting certain payments from the income test, it is important to note that such payments may still be assessed as other forms of income or compensation under different provisions of the Act.
Key Provisions
The main sections of the determination (Sections 1 to 3) outline the name of the determination, its commencement date, and descriptions of the Victorian Transport Accident Commission Attendant Care Service and Post Acute Support schemes. Section 1 gives the determination its formal name, while Section 2 specifies that it comes into effect on 1 September 2005. Section 3 provides detailed descriptions of the Attendant Care Service and Post Acute Support schemes, clarifying the types of support they offer and the eligibility criteria for recipients.
The determination imposes certain obligations and requirements on the relevant parties. For instance, it mandates that the payments made under the Attendant Care Service and Post Acute Support schemes be recognised as 'approved schemes' under section 35A of the Social Security Act 1991. This recognition ensures that these payments are exempt from the social security income test for individuals receiving Australian social security payments overseen by the Minister for Employment and Workplace Relations. The schemes must adhere to the criteria and conditions set out in the determination to maintain their approved status, ensuring that beneficiaries do not face reductions in their social security payments due to the care support they receive.
Regarding potential breaches and consequences, the determination does not explicitly outline specific offences or penalties for non-compliance with its provisions. However, any failure to adhere to the requirements of being an 'approved scheme' could lead to the loss of exemption from the social security income test. This could result in recipients' social security payments being incorrectly assessed, potentially leading to financial hardship. While the determination does not specify maximum penalties, any breach of social security laws generally could result in fines, legal action, or other administrative penalties as prescribed under the Social Security Act 1991 and related regulations.
The determination is designed to protect the financial stability of individuals receiving care support by ensuring their Attendant Care Service or Post Acute Support payments do not negatively impact their social security benefits. By classifying these schemes as 'approved', the legislation aims to streamline the income assessment process and provide clarity for both service providers and beneficiaries. This approach ensures that the support provided through these schemes is accessible without the risk of reduced social security payments, thereby supporting the intended recipients more effectively.