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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SECURITY LEGISLATION AMENDMENT (IMPROVED SUPPORT FOR CARERS)
(CONSEQUENTIAL AND TRANSITIONAL) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Housing, Community Services and
Indigenous Affairs, the Hon Jenny Macklin MP)
SOCIAL SECURITY LEGISLATION AMENDMENT (IMPROVED SUPPORT FOR CARERS)
(CONSEQUENTIAL AND TRANSITIONAL) BILL 2009
OUTLINE
The Social Security Legislation Amendment (Improved Support for Carers)
Bill 2009 (the Improved Support for Carers Bill) provides part of the
Government's response to the report of the Carer Payment (child) Review
Taskforce and gives effect to a number of measures aimed at improving
assistance to carers from 1 July 2009.
This bill makes amendments as a consequence of the measures contained in
the Improved Support for Carers Bill. The Improved Support for Carers Bill
makes substantive changes to the qualification provisions for carer payment
paid in respect of a child. That bill changes the qualification criteria
and assessment process for carer payment for care provided to children with
disability or medical condition to provide a fairer and more equitable
process, based on the level of care required, rather than the rigid medical
criteria used currently.
This bill removes references in the social security law that, from 1 July
2009, will be redundant and replaces those references with new terms found
in the Improved Support for Carers Bill or created by this bill. Most of
the amendments are made to Part 2.5 of the Social Security Act. This bill
also contains transitional arrangements for the amendments made by this
bill. Other amendments clarify intended policy.
Financial impact statement
The measures in this bill are part of a 2008 Budget measure of which the
legislative component has financial impact as follows:
Total resourcing - all portfolios
|2008-09 |$15.5 m |
|2009-10 |$72.8 m |
|2010-11 |$89.9 m |
|2011-12 |$93.3 m |
SOCIAL SECURITY LEGISLATION AMENDMENT (IMPROVED SUPPORT FOR CARERS)
(CONSEQUENTIAL AND TRANSITIONAL) BILL 2009
NOTES ON CLAUSES
Clause 1 sets out how the Act is to be citied, that is, as the Social
Security Legislation Amendment (Improved Support for Carers) (Consequential
and Transitional) Act 2009.
Clause 2 provides a table that sets out the commencement dates of the
various provisions in the Act.
Clause 3 provides that each Act that is specified in a Schedule is amended
or repealed as set out in that Schedule.
This explanatory memorandum uses the following abbreviations:
. 'Social Security Act' means the Social Security Act 1991;
. 'Social Security Administration Act' means the Social Security
(Administration) Act 1999; and
. 'Veterans' Entitlements Act' means the Veterans' Entitlements Act
1986.
Schedule 1 - Amendment of the Social Security Act 1991
Summary
From 1 July 2009, a person will be able to qualify for carer payment if one
of the following circumstances applies:
- care is provided to a child with a severe disability or severe medical
condition;
- care is provided to two or more children each with a disability or
medical condition;
- care is provided to a disabled adult and one or more children, each
with a disability or medical condition;
- care is provided to a child who has a terminal condition;
- the care of two or more children each with a severe disability or
severe medical condition is exchanged between the separated or
divorced parents of the children;
- care is provided to a child or children on a short-term or episodic
basis;
- care is provided to a disabled adult or a disabled adult and a
dependent child; or
- care is provided to any of the above while they are in hospital.
The qualification provisions for carer payment where care is provided to a
child with a severe disability or severe medical condition, or care is
provided to two or more children each with disability or medical condition,
or care is provided to a child with a terminal condition, replace the
current qualification provisions for care provided to a profoundly disabled
child or two or more disabled children. Qualification for care provided to
a disabled adult and one or more children each with a disability or medical
condition is a new qualification provision that is additional to the
current qualification provision for care provided to a disabled adult and a
dependent child of the disabled adult.
This Schedule repeals references to the terms profoundly disabled child and
disabled child (where the use of the term is associated with carer payment)
from the Social Security Act. These terms are replaced with terminology
related to the new qualification provisions inserted by the Improved
Support for Carers Bill. The amendments contained in this Schedule ensure
that provisions contained in the Social Security Act, such as the care
receiver's income and assets tests, will apply to a person who makes a
claim for carer payment after the commencement of the Improved Support for
Carers Bill.
Amendments are also made to special benefit provisions to ensure that the
improved qualification criteria for carer payment is reflected in the
relief from the activity test that is applied to people who are not
residentially qualified for carer payment.
This Schedule also makes amendments so that a person who is qualified for
carer payment for care provided on a short term or episodic basis is not
qualified for a pensioner concession card but is qualified for a health
care card.
Finally, the provisions that relate to who can be the principal beneficiary
of a special disability trust are amended in line with the improved
qualification criteria for carer payment.
Background
From 1 July 2009, the qualification requirements for carers who provide
care to a child or children with disability will be replaced with a fairer
set of qualification criteria for carer payment paid in respect of a child.
The new qualification requirements will be based on the level of care
required by a child or children, rather than the rigid medical criteria
currently used. Various terms that are relevant to the current
qualification requirements are used throughout the Social Security Act and
the Social Security Administration Act. Upon commencement of the new
qualification requirements, this terminology will no longer be relevant and
consequently needs to be repealed and, in most cases, replaced with terms
that apply to the new qualification requirements.
Explanation of the changes
Items 1, 2, 4, 6 and 7 insert definitions of care child, combined care
child, multiple care child and sole care child into section 197 of the
Social Security Act. The insertion of these new terms is consequential to
the new qualification provisions for carer payment, which are inserted into
the Social Security Act by the Improved Support for Carers Bill.
Item 1 inserts a definition of care child into subsection 197(1) of the
Social Security Act. Care child means a sole care child, or a combined
care child or a multiple care child. Item 2 inserts a definition of
combined care child into subsection 197(1), with the meaning given by
subsection 4. Item 4 inserts a definition of multiple care child into
subsection 197(1), with the meaning given by subsection 5. Item 6 inserts
a definition of sole care child into subsection 197(1), with the meaning
given by subsections (2) and (3). Item 7 repeals current subsection 197(3)
and inserts new subsections 197(2), (3), (4), (5), (6) and (7), which
contain definitions of sole care child, combined care child and multiple
care child.
Under new subsection 197(2), a sole care child is a care receiver aged
under 16 with a severe disability or severe medical condition in respect of
whom a carer has been given a qualifying rating of intense under the
Disability Care Load Assessment (Child) Determination. Additionally, a
treating health professional will have certified in writing that, because
of that disability or condition the care receiver will need personal care
for six months or, in the case where the care receiver is suffering from a
short term or episodic conditions, more or for three months or more and
less than six months, and the personal care is required to be provided by a
specified number of carers. Under new subsection 197(6), a person remains
a sole care child after they turn 16, until they are 16 and three months,
if they have not been assessed, rated and given a score under the Adult
Disability Assessment Tool.
Under new subsection 197(3), a person with a terminal condition who is
under 16 is also a sole care child provided they meet the requirements of
paragraphs 197E(1)(a) and (b). That is, another person is personally
providing care to the child and a medical practitioner has certified that:
(i) the child has a terminal condition; (ii) the average life expectancy
for a child with the same or a similar condition is not substantially
longer than 24 months; (iii) because of the condition, the child will need
personal care for the remainder of his or her life; and (iv) the personal
care is required to be provided by a specified number of persons. A child
who has a terminal condition and turns 16 continues to be a sole care child
while another person remains qualified for carer payment in respect of that
person or until the child turns 18, whichever is the sooner.
A combined care child is defined in subsection 197(4) to be a care receiver
aged under 16 with a disability or medical condition for whose care, when
combined with either another child or children with a disability or medical
condition, a carer has been given a qualifying rating of intense.
Additionally, a treating health professional will have certified in writing
that, because of that disability or condition the care receiver will need
personal care for six months or, in the case where the care receiver is
suffering from a short term or episodic conditions, more or for three
months or more and less than six months, and the personal care is required
to be provided by a specified number of carers A person remains a combined
care child after they turn 16, until they are 16 and three months, if they
have not been assessed, rated and given a score under the Adult Disability
Assessment Tool.
A multiple care child is defined in subsection 197(5) to be a person aged
under 16 with a disability or medical condition for whose care, when
combined with either a disabled adult, or a disabled adult and another
child or children with a disability or medical condition, a carer has been
given a qualifying rating of intense. Additionally, a treating health
professional will have certified in writing that, because of that
disability or condition the care receiver will need personal care for six
months or, in the case where the care receiver is suffering from a short
term or episodic conditions, more or for three months or more and less than
six months, and the personal care is required to be provided by a specified
number of carers Under new subsection 197(6), a person remains a multiple
care child after they turn 16, until they are 16 and three months, if they
have not been assessed, rated and given a score under the Adult Disability
Assessment Tool.
Subsection 197(7) provides that, if a person is a care receiver because
another person is qualified for carer payment because of section 197F (that
is, if the carer is exchanging with another person the care of the care
receiver and at least one other child), then it does not matter that the
care provided to the care receiver by the carer is not constant care.
Item 3 repeals the definition of guardian. Item 3 is consequential to the
insertion of the definition of parent in subsection 197(1) by item 5.
Under subsection 197(1) a parent of a child with a severe disability or
severe medical condition, or a child with a disability or medical
condition, or a child who has a terminal condition, includes a person who
has been granted guardianship of the child under a law of the Commonwealth,
a State or Territory.
Item 8 adds new subsection 197F(5) at the end of section 197F.
Section 197F is inserted into the Social Security Act by the Improved
Support for Carers Bill and provides for qualification for carer payment in
situations where the care of two or more children is exchanged between the
children's parents. New subsection 197F(5) provides that, when the income
and assets tests under section 198A and 198D are applied to determine
whether a parent qualifies for carer payment because of the operation of
section 197F, the income and assets of the other parent are to be
disregarded.
Example
Mykal and Leeca are the parents of two children each of whom has a
severe disability. Mykal and Leeca exchange the care of the children
on a week-about basis.
Mykal claims carer payment and would qualify under section 197B
because of the application of section 197F if both children pass the
income test and both either pass the assets test under section 198D or
are the subject of a decision in force under subsection 198N(2), (3),
or (4).
In determining whether the children pass the income test under
section 198A, Leeca's income is not to be included as the taxable
income of either of the children under subsection 198B(1B).
In determining whether the children pass the assets test under
subsection 198D(1A), Leeca's income is not to be included in the
assets of either child.
Item 9 repeals section 198AAA and inserts new section 198AAA. Current
section 198AAA provides that a carer payment continues to be payable to a
person for 14 weeks after a care receiver permanently enters an
institution.
New section 198AAA will apply if:
- a carer payment is payable to a person who has been providing constant
care for a care receiver or care receivers; or
- carer payment is payable to a person who has ordinarily been providing
care for a care receiver or care receivers (because of the application
of section 197F); and
the person would cease to be qualified for carer payment because they cease
to provide constant care, or care, because the care receiver is admitted
permanently to an institution where care is provided for the care receiver.
Subsection 198AAA(2) provides that, if section 198AAA applies, then the
person remains qualified for carer payment for 14 weeks after the care
receiver is admitted to an institution.
Ordinarily, if a person who is qualified for carer payment ceases to
provide constant care, or care, the person ceases to be qualified for carer
payment. However, if a care receiver is permanently admitted to an
institution which provides care, qualification for carer payment will
continue for 14 weeks from the date of the care receiver's admission to the
institution. This will allow the carer time to adjust to their changed
circumstances. The usual rules in relation to whether carer payment
remains payable to the person will apply.
Section 198AAA only applies in a situation where, in light of available
evidence, the care receiver's admission to an institution is likely to
continue for the foreseeable future. A care receiver admitted to hospital
or a hospice for an operation or procedure, and who is expected to return
home at some future time, would not meet this definition. An institution
could be a nursing home or hostel providing a level of care that would
normally meet carer payment criteria. A self-care unit or a hostel
providing only meals would not meet the definition.
Item 10 is consequential to the amendments made by the Improved Support for
Carers Bill. Item 10 repeals current section 198AB and inserts new section
198AB. Under section 198AB, a person who travels with, and provides care
for, a care receiver overseas may be absent from Australia for up to 13
weeks without losing qualification for carer payment (provided that they
continue to satisfy other qualification criteria - except for the
requirement to provide constant care in 'a private residence that is the
home of the care receivers' or care in 'a private residence that is a home
of the care receivers'.
Section 198AC provides for situations in which a person may temporarily
cease to provide constant care and remain qualified for carer payment.
That is, section 198AC allows a person's carer payment to continue while
they have respite, or they temporarily cease to provide constant care for
up to 25 hours a week in order to undertake training, education, unpaid
voluntary work or paid employment.
Item 11 is consequential to amendments made by the Improved Support for
Carers Bill and repeals paragraph 198AC(1)(a) and inserts new
paragraph 198AC(1)(a). Under subsection 198AC(1), a person may cease
providing constant care (if they qualify other than because of section
197F), or care (if they qualify because of the application of
section 197F), for up to 63 days in a calendar year without ceasing to
qualify for carer payment. The amendments made by item 11 ensure that
subsection 198AC(1) applies to a person who qualifies for carer payment
under a new qualification provision inserted into the Social Security Act
by the Improved Support for Carers Bill (apart from a person who is
qualified for carer payment for care provided on a short-term or episodic
basis), as well as to a person who is qualified for carer payment for care
provided to a higher ADAT score adult or a lower ADAT score adult and their
dependent child. New subsection 198AC(1A), which is inserted by item 12,
will apply to a person who is qualified for carer payment for a specified
period under section 197G or 197H.
Item 12 repeals subsection 198AC(2) and inserts subsection 198AC(1A) and
new subsection 198AC(2). Under subsection 198AC(1A), a person who is
qualified for carer payment under section 197G or 197H does not cease to
qualify for carer payment simply because they cease to provide constant
care or, if they are qualified because they exchange the care of children,
cease to provide care, to a care receiver or care receivers. Subsection
198AC(1A) is subject to subsections 198AC(3) and (3A), which place limits
on the number of days a person can remain qualified for carer payment under
section 198AC.
New subsection 198AC(2), which is also subject to subsections (3) and (3A),
provides that a person who is qualified for carer payment under
section 198AA because they are participating in the care of an adult or
child in hospital, and who would cease to be qualified for carer payment
under section 198AA, does not cease to be qualified for carer payment
merely because they are not providing constant care (if they are qualified
for carer payment other than because of section 197F) or they are not
providing care (if they are qualified under section 197F).
Item 13 is consequential to item 14 and inserts 'Subject to subsection
(3B),' in subsection 198AC(3).
Item 14 inserts new subsections 198AC(3A) and (3B). New
subsection 198AC(3A) provides the maximum number of days for which a person
who is qualified for carer payment for care provided on a short-term or
episodic basis (that is, they are qualified under section 197G or 197H,
which are inserted into the Social Security Act by the Improved Support for
Carers Bill) can remain qualified for carer payment when they are not
providing constant care. The maximum number of days respite that a person
who is qualified for carer payment on a short-term or episodic basis is the
carer payment period (that is, the number of days for which carer payment
is granted that fall within the calendar year) divided by the number of
days in the calendar year, times the limit. The limit is either 63 days or
another number of days in the calendar year that the Secretary, for any
special reason in the particular case, decides to be appropriate. The
respite days for a person who is qualified for care provided on a short-
term or episodic basis is on a pro-rata basis for the number of days in a
year they are qualified.
Example
Ennrique's son, Booth, is injured in a car accident in September 2009.
Ennrique applies for, and is granted, under section 197G, carer
payment for a period of 126 days. As the Secretary has not determined
that a limit other than the usual 63 day limit should apply, the
number of days for which Ennrique can cease to provide constant care
to Booth is 21, which is:
126/365 X 63
New subsection 198AC(3B) provides that, if a person is initially qualified
for carer payment for care provided on a short-term or episodic basis and
they subsequently qualify for carer payment under another provision (other
than section 197G or 197H) then any days that have been counted towards
their limit of temporary cessation of care days in the calendar year should
be included in their 63 day limit.
Example
Ennrique's son, Booth, fails to recover as quickly as doctors had
thought he would. Booth will now require constant care for a period
of more than six months. During the period that Ennrique was
qualified under section 197G he utilised 15 days of respite care.
Therefore, Ennrique will have a further 48 days on which he can
temporarily cease to provide constant care to Booth in 2009.
Items 15 and 30 are consequential to the repeal of the qualification
provisions for carer payment that contain the terms profoundly disabled
child and disabled child. Item 15 repeals the phrase 'profoundly disabled
child, or a disabled child' from subsection 198B(1B) and substitutes the
phrase 'sole care child, combined care child or multiple care child. The
heading to subsection 198B(1B) is also amended to reflect the repeal of the
qualification provisions containing the terms profoundly disabled child and
disabled child from Part 2.5 of the Social Security Act. Item 30 repeals
the phrase 'profoundly disabled child, a disabled child' from
subsection 198F(1A) and substitutes the phrase 'care child'.
Item 16 is consequential to the repeal of the qualification provisions for
carer payment that contain the term disabled child. The phrase 'is a
disabled child' is omitted from subsection 198B(1B) and is replaced with
the phrase 'is a combined care child or a multiple care child'.
Item 17 inserts a note at the end of subsection 198B(1B) to refer the
reader to subsection 197F(5). For the effect of the insertion of
subsection 197F(5), see item 8.
Items 18, 19 and 20 are consequential to the insertion of section 197D into
the Social Security Act by the Improved Support for Carers Bill. Section
197D provides for qualification for carer payment for care provided to a
disabled adult and one or more children each with disability or medical
condition. Item 18 amends paragraph 198B(1BA)(a), to provide that, if a
care receiver is a lower ADAT score adult, the care receiver's taxable
income includes the taxable income of the adult and the adult's partner as
well as any FTB children of the adult or the partner, or, if the lower ADAT
score adult does not have a partner, then their taxable income includes
income of any FTB child of the adult (apart from the other care receiver or
care receivers).
Item 19 inserts new subsection 198B(3A) and item 20 amends
subsection 198B(5). These amendments will ensure that a lower ADAT score
adult may give the Secretary an estimate of each multiple care child's
taxable income for a tax year. The effect of new subsection 198B(3A) and
the amendment to subsection 198B(5) is that, in a multiple care situation,
either the child's parent or the lower ADAT score adult may give the
Secretary an estimate of the child's or children's income for a tax year.
Item 21 is consequential to the repeal of the qualification provisions for
carer payment for care provided to a profoundly disabled child by the
Improved Support for Carers Bill and replaces 'profoundly disabled child'
with 'sole care child' in subsection 198D(1A). The heading to
subsection 198D(1A) is replaced with the heading, Sole care child passing
the assets test.
Items 22, 24, 26, 28, 32 and 34 are consequential to the removal of the
term disabled child from the qualifying provisions for carer payment.
These items omit the word disabled from paragraphs 198D(1A)(a) and (b),
subsection 198D(1B), paragraphs 198D(1C)(a) and (b), subsection 198D(1D),
subsections 198JE(2) and (3), and subsections 198JF(2) and (3). Items 32
and 34 also amend the headings to subsections 198JE(3) and 198JF(3) to
repeal the word disabled.
Items 23 and 27 insert a note at the end of subsections 198D(1A)
and 198D(1C) to refer the reader to subsection 197F(5). For the effect of
the insertion of subsection 197F(5), see item 8.
Item 25 amends subsection 198D(1C) to omit the first occurring reference to
the phrase disabled children and replace it with the phrase combined care
children. This amendment is consequential to the repeal of the
qualification provisions for carer payment that contain the term disabled
child by the Improved Support for Carers Bill. The heading to
subsection 198D(1C) is also amended to replace the term disabled children
with the term combined care children.
Item 29 inserts new subsection 198D(1DA) after subsection 198D(1D). New
subsection 198D(1DA) provides the assets test that is applicable to a lower
ADAT score adult and a multiple care child or children. The lower ADAT
score adult and child/children pass the assets test if the total assets of
the adult, each child and, where applicable, the adult's partner and other
FTB children of the adult or partner, do not exceed the assets limit. The
asset limit for a lower ADAT score adult and a multiple care child or
children is $571,500 and is consistent with the asset limit that is
currently applicable to all other care receivers. The assets limits are
increased by the automatic indexation provisions in section 1190 of the
Social Security Act. Item 78 inserts a reference to new subsection
198D(1DA) into column 4 of item 27A of the table in section 1190 of the
Social Security Act.
Items 31 and 33 omit the term profoundly disabled child in
subsections 198JE(1) and 198JF(1) and replace it with the term sole care
child. These amendments are consequential to the repeal of the
qualification provisions by the Improved Support for Carers Bill that
contain the term profoundly disabled child.
Items 35, 36, 37 and 38 are consequential to the insertion of section 197D
into the Social Security Act by the Improved Support for Carers Bill.
Section 197D provides for qualification where a person cares for a lower
ADAT score adult and one or more children each with a disability or medical
condition. Item 35 amends subsection 198JG(1) and item 37 amends
subsection 198JH(1) by omitting the words 'a lower ADAT score adult and a
dependent child' and substituting the words 'a lower ADAT score adult and
one or more multiple care children, or a lower ADAT score adult and their
dependent child', while items 36 and 38 repeal paragraphs 198JG(2)(b) and
198JH(2)(b) and insert new paragraphs 198JG(2)(b) and 198JH(2)(b). The
effect of these amendments is that sections 198JG and 198JH will apply in
the situation where a person is caring for a lower ADAT score adult and
their dependent child or where a person is caring for a lower ADAT score
adult and one or more multiple care children. Items 35 and 37 also amend
the headings to sections 198JG and 198JH by removing the reference to
dependent child and substituting the phrase child or children.
Item 39 repeals section 198MA and inserts new section 198MA. New
section 198MA provides for the exemption of certain assets of a care
receiver from the assets test in specified circumstances where a person
disposes of the assets of a child with severe disability or severe medical
condition or a child with disability or medical condition. New section
198MA provides that an asset that has been disposed of is not to be
included in a child's assets if:
. the disposal occurred more than five years before the carer became
qualified for carer payment because the carer was caring for the
child; or
. the disposal occurred before the time when the disposer could, in the
Secretary's opinion, reasonably have expected that the carer would
become qualified for carer payment because the carer was caring for
the child.
The note to section 198MA advises the reader that, if a sole care child, a
combined care child or a multiple care child lives with a parent then the
assets of the parent, as listed in subsection 198D(1A) and paragraphs
198D(1C)(b) and (1DA)(c), are taken to be the assets of the child.
Item 40 inserts new subsections 198N(1AA), 198N(1AB) and 198N(1AC) and
item 42 includes a reference to new qualification sections 197B, 197C, 197D
and 197E. The effect of these amendments is that the exemption from the
care receiver assets test may be applied to the assets of a sole care child
(new subsection198N(1AA)), combined care children (new
subsection 198N(1AB)) or a multiple care child or children (new
subsection 198N(1AC)).
Item 41 repeals subsection 198N(1A), which allows for the exemption from
the care receiver assets test if a parent or carer or a profoundly disabled
child or disabled child makes an application.
Item 43, omits the phrase 'profoundly disabled child or a disabled child'
in paragraph 198N(5)(aa) and substitutes the phrase 'sole care child,
combined care child or multiple care child'. Item 44 omits the phrase 'is
a disabled child' in paragraph 198N(5)(aa) and substitutes the phrase 'is a
combined care child or a multiple care child'. Item 49 repeals note 2 to
subsection 198N(5) and replaces it with a new note 2 and note 3. Note 2
informs the reader that subsections 198D(1B), (1D) and (1DB) provide that,
if a sole care child, a combined care child or a multiple care child live
with a parent, the assets listed in subsection 198D(1A) and paragraphs
198D(1C)(b) and (1DA)(c) are taken to be the assets of the child. Note 3
informs the reader that subsection 197F(5) should be read in conjunction
with subparagraph 198N(5)(aa)(ii).
Items 45 and 48 are consequential to the insertion of new section 197D into
the Social Security Act by the Improved Support for Carers Bill, under
which a person can qualify for carer payment for care provided to a lower
ADAT score adult and one or more children each with a disability or medical
condition. These items omit the phrase 'dependent child who is the other
care receiver' and substitute the phrase 'child who is the other care
receiver or the children who are the other care receivers'.
Item 46 is a technical amendment that omits 'receiver); and' and
substitutes 'receiver).'
Item 47 inserts the phrase 'However, liquid assets of the same person are
not to be taken into account in respect of any of the other care receivers;
and'. This clarifies that the assets of a multiple care child or children
or the assets of a dependent child of a lower ADAT score adult are not
counted in the assets of the lower ADAT score adult. This ensures that the
assets of each care receiver are only counted once towards the asset limit
of the care receivers.
Item 48 omits the phrase 'dependent child who is the other care receiver'
and substitutes 'child who is the other care receiver or the children who
are the other care receivers' in the note at the end of paragraph
198N(5)(ab).
Item 50 omits the phrase profoundly disabled child and substitutes sole
care child in paragraphs (b) and (c) of the definition of FPC in
subsection 198N(6) of the Social Security Act.
Item 51 omits the term disabled children in subsection 198N(6) (paragraph
(d) of the definition of FPC) and replaces it with the term combined care
children.
Item 52 amends subsection 198N(6) (paragraph (e) of the definition of FPC)
by omitting the words 'a lower ADAT score adult and a dependent child' and
substituting the words 'a lower ADAT score adult and one or more multiple
care children, or a lower ADAT score adult and a dependent child'.
Item 54 inserts note 2 at the end of subsection 198N(6), which refers the
reader of paragraph (b) of the definition of FPC to subsection 197F(5).
For the effect of the insertion of subsection 197F(5), see item 8. Item 53
is consequential to item 54 and changes the note at the end of
paragraph 198N(6) to Note 1.
Items 55 to 62 amend section 198P of the Social Security Act, which
provides for the date of effect of favourable decisions under section 198N.
These items make amendments to ensure that the section applies to a care
receiver who is: a sole care child; care receivers who are two or more
combined care children; or care receivers who are a lower ADAT score adult
and one or more multiple care children. The amendments provide that, in
the case where a care receiver is a sole care child or combined care
children, notice of the decision may be given to the carer, or to the
parent of any of the children. In the case of the lower ADAT score adult
and one or multiple care children, notice of the decision may be given to
the carer or to the lower ADAT score adult.
Item 55 inserts into subsection 198P(1) of the Social Security Act a
reference to subparagraphs 197B(4)(d)(i), 197C(4)(d)(i), 197D(4)(d)(i)
and 197E(5)(d)(i) so that section 198P applies to the new qualification
provisions.
Items 56 and 59 repeal paragraphs 198P(3)(b)(ii) and 198P(4)(b)(ii) and
replace them with new paragraphs 198P(3)(b)(ii) and 198P(4)(b)(ii). This
repeals the reference to a care receiver who is a profoundly disabled child
and replaces it with a reference to a sole care child. These amendments
are consequential to the repeal of the qualification provisions for carer
payment that use the term profoundly disabled child and the insertion of
new qualification criteria for carer payment into the Social Security Act
by the Improved Support for Carers Bill.
Items 57 and 60 omit references to the term disabled children from
subparagraphs 198P(3)(b)(iii) and 198P(4)(b)(iii) and substitute references
to combined care children. These amendments are consequential to the
removal of the qualification provisions for carer payment that contain the
term disabled child and the insertion of new qualification provisions by
the Improved Support for Carers Bill.
Items 58 and 61 insert new subparagraphs 198P(3)(b)(iiia)
and 198P(4)(b)(iiia). These amendments are consequential to the insertion
of new section 197D in the Social Security Act by the Improved Support for
Carers Bill, which provides for qualification for carer payment for care
provided to a lower ADAT score adult and one or more children each with
disability or medical condition. Item 62 is also consequential to the
insertion of new section 197D in the Social Security Act by the Improved
Support for Carers Bill and amends subparagraph 198P(4)(b)(iv) so that it
refers to the new qualification provisions.
Item 63 amends section 198Q of the Social Security Act, which provides for
the date of effect of an adverse decision under section 198N. Section 198Q
will apply in situations where subparagraphs 197B(4)(d)(i), 197C(4)(d)(i),
197D(4)(d)(i) and 197E(5)(d)(i) disqualify a person for carer payment and
no exemption from the assets test is granted. This amendment is
consequential to the insertion of new qualification provisions for carer
payment into the Social Security Act by the Improved Support for Carers
Bill.
Items 64 and 65 amend section 235 of the Social Security Act. Section 235
provides for the continuation of carer payment for a bereavement period
where a care receiver dies. Section 235 will apply to a person qualified
for a carer payment without the need for amendment with the exception of
qualification under sections 197G and 197H if the care receiver is in
hospital. These amendments ensure that a person will remain qualified for
carer payment during the bereavement period in the situation where a person
is qualified for carer payment for care provided on a short-term or
episodic basis and the care receiver is in hospital when they pass away.
Item 66 repeals paragraph 236B(a) and substitutes new paragraph 236B(a).
Item 68 repeals paragraph 243(a) and substitutes new paragraph 243(a).
Sections 236B and 243, as amended, will prevent more than one bereavement
payment being made if the care receivers are a lower ADAT score adult and
their dependent child or a lower ADAT score adult and one or more children
each with disability or medical condition if the lower ADAT score adult and
one or more of the children die at the same time. These sections apply
where the lower ADAT score adult is the carer's partner. The combined
effect of the sections is that, if the carer would be qualified for
bereavement payments in respect of the child/children (under section 235)
and the adult (under Subdivision B, which provides for bereavement payments
on the death of the partner), the carer will be qualified for only one set
of payments. The payments will be made under either section 235 or
Subdivision B; and the sum payable will be whichever is the greater amount
in the particular case.
Item 67 inserts new subsection 237(1AB) into the Social Security Act, which
provides that, in the case of a lower ADAT score adult and child or
children each with disability or medical condition, if bereavement payments
are being paid to the carer because of the death of the child or children,
the carer does not qualify for a further set of bereavement payments if the
lower ADAT score adult is the carer's partner and the partner dies within
the bereavement period.
Nominated visa holders cannot qualify for carer payment as they do not meet
the residence requirement. These visa holders may be granted special
benefit. However, they must satisfy the activity test or be granted an
exemption. An exemption from the activity test is currently available
under section 731J, which exempts a nominated visa holder from the activity
test where, but for the residence requirement, the person would have
satisfied the basic elements of qualification for carer payment or carer
allowance.
Item 69 inserts new sections 731HA and 731HB into the Social Security Act.
New sections 731HA and 731HB provide that a nominated visa holder may be
exempt from the activity test for special benefit if they are providing
constant care, and, but for the residence requirements, the person would
have satisfied the basic elements of qualification for carer payment
(whether that care is provided on a short-term or episodic basis or whether
the care receiver is in hospital). New sections 731HA and 731HB reflect
the new qualification provisions inserted into the Social Security Act by
the Improved Support for Carers Bill.
Item 70 amends section 731J to provide that the section only applies to a
person who would qualify for carer payment for care provided to a higher
ADAT score adult or a lower ADAT score adult and their dependent child.
Items 71, 72, 73, 74 and 75 amend section 731J to remove the limit of days
for which a person can remain exempt from the activity test while the
dependent child of a lower ADAT score adult or a disabled child (who would
qualify the person for carer allowance) is in hospital. The limit of 63
days of exemption from the activity test while a disabled adult is
hospitalised remains.
Item 76 inserts new subsection 1061ZA(1A) into the Social Security Act.
Section 1061ZA provides for qualification for a pensioner concession card.
Currently, only recipients of social security pensions, or long-term
recipients of social security benefits, are qualified for a pensioner
concession card. New subsection 1061ZA(1A) provides that a person who is
qualified for carer payment under section 197G or 197H (that is, for care
provided on a short term or episodic basis) is not qualified for a
pensioner concession card. New subsection 1061ZK(3A), which is inserted by
item 77, provides that a person who is qualified for carer payment under
section 197G or 197H will qualify for a health care card. A person will be
qualified for a health care card in their own name and the child for whom
they are providing care will also qualify for a health care card under
subsection 1061ZK(2).
Item 79 is consequential to the repeal of the qualification provisions for
carer payment in respect of care given to a profoundly disabled child and
the insertion of new qualification provisions for carer payment in the
Social Security Act by the Improved Support for Carers Bill. Item 79
amends section 1209M to provide that those care receivers under the age of
16 who qualify a person for carer payment under the new qualification
provisions can be principal beneficiaries of special disability trusts.
Additionally, the carer of the care receiver must have certified in writing
that the care receiver will requires the same level of care, or an
increased level of care, to be provided in the future.
Items 80 and 81 add new application and savings provisions to Schedule 1A
to the Social Security Act in the form of new clauses 139A, 139B, 139C, 142
and 143.
Subclause 139A(1) is an application provision which provides that the
amendments made by items 1 to 68 and 76 to 77, that is, the items in this
Schedule that relate to carer payment, will apply to claims for carer
payment made on or after the commencement of clause 139A. Subclause
139A(1) is subject to clause 139B, which is inserted by this Schedule and
clause 141 which is inserted by the Improved Support for Carers Bill.
Clause 139B provides that sections 198AA and 198AB as amended by this
Schedule apply to a person who is receiving a carer payment immediately
before 1 July 2009 as well as to a person who makes a claim for carer
payment on or after 1 July 2009. Subclause 141(1), inserted by the
Improved Support for Carers Bill, provides that if a person was receiving a
carer payment immediately before 1 July 2009 because they were qualified
for care they provide to a profoundly disabled child or two or more
disabled children then the Social Security Act, as in force immediately
before 1 July 2009, continues to apply to the person. However, subclauses
141(2), (3) and (4) provide that the beneficial changes that allow a person
to remain qualified for carer payment for up to 3 months after a child
turns 16; provide for qualification to continue for an unlimited period
when a care receiver is hospitalised and for automatic qualification for
carer allowance to also apply to a person who is qualified for carer
payment for care provided to a profoundly disabled child or two or more
disabled children.
Subclause 139A(2) is an application provision that provides that that
amendments made by items 69 to 75 (that is, the amendments that relate to
special benefit) apply to claims for special benefit made on or after the
commencement of this clause. Subclause 139A(2) is subject to clauses 139C
and 143. Clause 139C is inserted into the Social Security Act to allow a
person who is caring for a child immediately before 1 July 2009 to be taken
to satisfy the activity test in 731J despite the hospitalisation beyond 63
days of a dependent child (731J(2)) or a disabled child (731J(6)).
Clause 143 is a savings provision that is inserted into the Social Security
Act so that the Social Security Law, as in force immediately before 1 July
2009 continues to apply to a person who is providing care to a profoundly
disabled child or two or more disabled children and is taken to satisfy the
activity test immediately before 1 July 2009. Subclause 143(2) ensures
that, despite the application of the Social Security Law as in force
immediately before 1 July 2009 a person can continue to satisfy the
activity test for 3 months after a child for whom they are providing care
turns 16 if the conditions in subsection 143(2) are met. Subclause 143(2)
provides that a person who is saved by subclause 143(1) can continue to
satisfy the activity test for an unlimited time if a child for whom they
are providing care is hospitalised.
New clause 139C provides an application provision for subsections 731J(2)
and (6).
New clause 139D provides a savings provision for a principal beneficiary of
a special disability trust. Clause 139D provides that the Social Security
Act as in force immediately before 1 July 2009 continues to apply to a
child who is a profoundly disabled child and was the principal beneficiary
of a special disability trust immediately before 1 July 2009.
Schedule 2 - Amendment of the Social Security Administration Act 1999
Summary
This Schedule makes amendments to the Social Security Administration Act
consequential to the repeal of the qualification provisions for carer
payment that utilise the terms profoundly disabled child and disabled
children and the insertion of new qualification provisions for carer
payment.
This Schedule also provides for the backdating of claims for carer payment
made on or after 1 July 2009 and before 1 October 2009.
Explanation of the changes
Item 1 is consequential to the insertion of section 197F into the Social
Security Act by the Improved Support for Carers Bill. If a person is
qualified for carer payment because of the application of section 197F the
care that they provide, while constant, is not constant in respect of the
same care receiver. Item 1 inserts the phrase '(or, if section 197F
applies to the person, care)' into subsection 70(1) of the Social Security
Administration Act.
Items 2 to 7 amend various paragraphs contained in section 120 which
provides additional rules in the case of carer payment in relation to the
date of effect of determinations. These items are consequential to the
repeal of qualification provisions for carer payment that utilise the terms
profoundly disabled child and disabled child. Item 2 omits the phrase
'profoundly disabled child or a disabled child' and substitutes the phrase
'sole care child, combined care child or multiple care child'. Item 3
replaces 'profoundly disabled child' in paragraph 120(4)(a) with 'sole care
child' and item 4 omits the word 'disabled' in paragraph 120(4)(d) so that
the subsection 120(4) will apply to a person who qualifies for carer
payment for care provided to a child with a severe disability or severe
medical condition or a child with a terminal condition.
Item 5 omits 'disabled child' in paragraph 120(5)(a) and substitutes the
phrase 'combined care children'. Item 6 omits the term 'disabled' from
paragraphs 120(5)(d) and (e). Subsection 120(5) will therefore apply to a
person who is qualified for carer payment for care provided to two or more
children each with disability or medical condition.
Item 7 is consequential to the insertion of the new qualification provision
for carer payment which provides for qualification for care provided to a
lower ADAT score adult and one or more children each with disability or
medical condition. Item 7 inserts new subsection 120(5A) which provides
for the cancellation or suspension of carer payment where the income of a
lower ADAT score adult and one or more children each with disability or
medical condition exceeds the income ceiling. The decision takes effect on
the date that the carer or the lower ADAT score adult informed the
Department that the income exceeded the ceiling (or if the Department was
not so informed, the decision takes effect on the date that the income
exceeded the ceiling).
Item 8 inserts new clause 15A into Schedule 2 to the Social Security
Administration Act. New clause 15A provides that if a person is qualified
for carer payment under one of the new qualification provisions inserted
into the Social Security Act by the Improved Support for Carers Bill and
the person makes a claim for carer payment on or after 1 July 2009 and
before 1 October 2009, then the person's start day is the day on which the
person became qualified for the payment.
Example 1 - start date backdated to 1 July 2009
Nakita's ten year old daughter Melysa was involved in a car accident
on 30 June 2009 and admitted to hospital. Nakita ceased her
employment on the date of the accident to care for Melysa in hospital.
Melysa was released from hospital on 15 July 2009 and Nakita
continued to care for Melysa at home on a full time basis.
Nakita did not know about the new carer payment criteria at the time
of the accident and did not claim for a carer payment until
1 August 2009. Due to the high level of care required by Melysa,
Nakita achieved a qualifying rating of intense under the Disability
Care Load Assessment (Child) Determination. A treating health
professional certified that the level of care required by Melysa
necessitated full time constant care for six months or more from one
person. The care that Nakita provides to Melysa severely restricts
her capacity to undertake paid employment. As Nakita (and Melysa)
satisfy all other qualification requirements, such as Australian
residency, and Melysa passes the care receiver income and assets
tests, Nakita qualifies for a carer payment under section 197B for
caring for a child with a severe disability or severe medical
condition.
Without this backdating provision, Nakita's starting date for carer
payment would be the day she claimed for a carer payment, that is,
1 August 2009. However, under this provision, as Nakita was qualified
from 1 July 2009 (in that she had ceased her employment and started
caring for Melysa, and satisfied all other qualification criteria from
that date) she can have her start date backdated to 1 July 2009.
Although Nakita's claim for a carer payment was made after
1 July 2009, because she claimed before 1 October 2009, her start day
for payment is the day on which she became qualified, that is,
1 July 2009.
Example 2 - start date backdated to first day of qualification
If, in the example above, Nakita retained her employment until Melysa
was released from hospital, and did not start providing constant care
for Melysa until 15 July 2009, she did not qualify for a carer payment
until that date.
Although Nakita claimed for a carer payment on 1 August 2009, under
this provision, as her claim was made after 1 July 2009 and
before 1 October 2009, her start date for payment is the day she
became qualified. As Nakita did not cease employment until Melysa
left hospital on 15 July 2009, and did not provide care in the
hospital or constant care to her daughter until that day, her start
date for carer payment is 15 July 2009.
Schedule 3 - Amendment of the Veterans' Entitlements Act 1986
Summary
This Schedule makes amendments the Veterans' Entitlements Act consequential
to the repeal of the qualification provisions for carer payment that
utilise the terms profoundly disabled child and the insertion of new
qualification provisions for carer payment.
Explanation of the changes
Item 1 is consequential to the repeal of the qualification provisions for
carer payment in respect of care given to a profoundly disabled child and
the insertion of new qualification provisions for carer payment in the
Social Security Act by the Improved Support for Carers Bill. Item 1 amends
section 52ZZZWA to provide that those care receivers under the age of 16
who would qualify a person for carer payment under the new qualification
provisions can be principal beneficiaries of special disability trusts.
Additionally, the carer of the care receiver must have certified in writing
that the care receiver will requires the same level of care, or an
increased level of care, to be provided in the future.
Item 2. is a savings provision for children who are, immediately
before 1 July 2009 the principal beneficiary of a special disability trust
because they meet the definition of profoundly disabled child. The
Veterans' Entitlements Act as in force immediately before 1 July 2009 will
continue to apply to a child who was a principal beneficiary at that time.