An Act to deal with transitional matters in connection with the Aged Care (Living Longer Living Better) Act 2013, and for other purposes
Chapter 1—Introduction
Division 1—Preliminary matters
1‑1 Short title
This Act may be cited as the Aged Care (Transitional Provisions) Act 1997.
1‑2 Commencement
This Act commences on 1 July 2014.
1‑2A Act applies to continuing care recipients
This Act applies only in relation to *continuing care recipients.
1‑3 Identifying defined terms
(1) Many of the terms in this Act are defined in the Dictionary in Schedule 1.
(2) Most defined terms are identified by an asterisk appearing at the start of the term: as in “*aged care service”. The footnote that goes with the asterisk contains a signpost to the Dictionary.
(3) An asterisk usually identifies the first occurrence of a term in a subsection, note or definition. Later occurrences of the term in the same subsection, note or definition are not asterisked.
(4) Terms are not asterisked in headings, tables or diagrams.
(5) The following basic terms used throughout the Act are not identified with an asterisk:
Terms that are not identified |
Item | This term: | is defined in: |
1 | approved provider | Schedule 1 |
2 | care | Schedule 1 |
3 | home care | section 45‑3 |
4 | home care service | Schedule 1 |
5 | flexible care | section 49‑3 |
6 | flexible care service | Schedule 1 |
7 | provide | section 96‑4 |
8 | residential care | section 41‑3 |
9 | residential care service | Schedule 1 |
10 | Secretary | Schedule 1 |
1‑4 Tables of Divisions and Subdivisions do not form part of this Act
Tables of Divisions and tables of Subdivisions do not form part of this Act.
Division 2—Objects
2‑1 The objects of this Act
(1) The objects of this Act, in conjunction with the Aged Care Act 1997, are as follows:
(a) to provide for funding of *aged care that takes account of:
(i) the quality of the care; and
(ii) the *type of care and level of care provided; and
(iii) the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and
(iv) appropriate outcomes for recipients of the care; and
(v) accountability of the providers of the care for the funding and for the outcomes for recipients;
(b) to promote a high quality of care and accommodation for the recipients of *aged care services that meets the needs of individuals;
(c) to protect the health and well‑being of the recipients of aged care services;
(d) to ensure that aged care services are targeted towards the people with the greatest needs for those services;
(e) to facilitate access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location;
(f) to provide respite for families, and others, who care for older people;
(g) to encourage diverse, flexible and responsive aged care services that:
(i) are appropriate to meet the needs of the recipients of those services and the carers of those recipients; and
(ii) facilitate the independence of, and choice available to, those recipients and carers;
(h) to help those recipients to enjoy the same rights as all other people in Australia;
(i) to plan effectively for the delivery of aged care services that:
(i) promote the targeting of services to areas of the greatest need and people with the greatest need; and
(ii) avoid duplication of those services; and
(iii) improve the integration of the planning and delivery of aged care services with the planning and delivery of related health and community services;
(j) to promote ageing in place through the linking of care and support services to the places where older people prefer to live.
(2) In construing the objects, due regard must be had to:
(a) the limited resources available to support services and programs under this Act and the Aged Care Act 1997; and
(b) the need to consider equity and merit in accessing those resources.
Division 3—Overview of this Act
3‑1 General
This Act, in conjunction with the Aged Care Act 1997, provides for the Commonwealth to give financial support:
(a) through payment of subsidies for the provision of *aged care; and
(b) through payment of grants for other matters connected with the provision of aged care.
Subsidies are paid under Chapter 3 of this Act and Chapter 3 of the Aged Care Act 1997 (but Chapters 2 and 4 of the Aged Care Act 1997 and Chapter 4 of this Act are also relevant to subsidies), and grants are paid under Chapter 5 of the Aged Care Act 1997.
3‑2 Preliminary matters relating to subsidies
Before the Commonwealth can pay subsidy to an approved provider of *aged care under Chapter 3 of this Act, a number of approvals and similar decisions may need to have been made under Chapter 2 of the Aged Care Act 1997. These may relate to:
(b) the *aged care service in question (for example, for residential care services and flexible care services the requirement that *places have been allocated in respect of the service); or
(c) the recipient of aged care (for example, the requirement that the recipient has been approved as a recipient of the type of aged care that is provided).
Note: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
3‑3 Subsidies (Chapter 3)
A number of different kinds of subsidy can be paid under Chapter 3 of this Act. They are paid for *aged care that has been provided. Eligibility for a subsidy depends on:
(a) particular approvals and similar decisions having been made under Chapter 2 of the Aged Care Act 1997; and
(b) the circumstances in which the care is provided (for example, whether the care is provided in a residential care service that meets its *accreditation requirement).
3‑4 Responsibilities of approved providers
Approved providers have certain responsibilities under Chapter 4 of this Act and Chapter 4 of the Aged Care Act 1997. These responsibilities relate to:
(a) the quality of care they provide; and
(b) user rights for the people to whom care is provided; and
(c) accountability for the care that is provided, and the basic suitability of their *key personnel.
Failure to meet these responsibilities can lead to the imposition of sanctions on an approved provider under Part 7B of the *Quality and Safety Commission Act, which may affect amounts of subsidy payable to the provider.
3‑5 Grants
The Commonwealth makes grants under Chapter 5 of the Aged Care Act 1997 to contribute to costs associated with:
(a) the establishment or enhancement of *aged care services (for example, *residential care grants); or
(c) support services related to the provision of aged care (for example, *advocacy grants).
The grants are (in most cases) payable under agreements with the recipients of the grants, and may be subject to conditions.
Division 4—Application of this Act
4‑1 Application of this Act
(1) This Act applies in all the States and Territories.
(2) However, this Act does not apply in any external Territory, except Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
(3) Despite subsection (1), Part 3.1 applies in relation to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands as if those Territories were part of Western Australia and were not Territories.
Note: This has the effect that references in Part 3.1 to a Territory do not apply to the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands, and that references in that Part to a State will be relevant to Western Australia as if it included those Territories.
(4) Despite subsection (1), Part 3.1 applies in relation to Norfolk Island as if Norfolk Island were part of New South Wales and were not a Territory.
Note: This has the effect that references in Part 3.1 to a Territory do not apply to Norfolk Island, and that references in that Part to a State will be relevant to New South Wales as if it included Norfolk Island.
4‑2 Binding the Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
Chapter 3—Subsidies
Division 40—Introduction
40‑1 What this Chapter is about
The Commonwealth pays subsidies to approved providers for *aged care that has been provided. These subsidies are:
• *residential care subsidy (see Part 3.1);
• *home care subsidy (see Part 3.2);
• *flexible care subsidy (see Part 3.3).
A number of approvals and other decisions may need to have been made under Chapter 2 of the Aged Care Act 1997 before a particular kind of payment can be made (see section 5‑2 of that Act). For example, an approved provider can only receive subsidy for providing residential care or flexible care in respect of which a *place has been allocated. Receipt of payments under this Chapter gives rise to certain responsibilities, that are dealt with in Chapter 4 of this Act and Chapter 4 of the Aged Care Act 1997.
Part 3.1—Residential care subsidy
Division 41—Introduction
41‑1 What this Part is about
The *residential care subsidy is a payment by the Commonwealth to approved providers for providing residential care to care recipients.
Table of Divisions
41 Introduction
42 Who is eligible for residential care subsidy?
43 How is residential care subsidy paid?
44 What is the amount of residential care subsidy?
41‑2 Residential care subsidy also dealt with in Aged Care (Transitional Provisions) Principles
*Residential care subsidy is also dealt with in the Aged Care (Transitional Provisions) Principles. Provisions in this Part indicate when a particular matter is or may be dealt with in those Principles.
Note: The Aged Care (Transitional Provisions) Principles are made by the Minister under section 96‑1.
41‑3 Meaning of residential care
(1) Residential care is personal care or nursing care, or both personal care and nursing care, that:
(a) is provided to a person in a residential facility in which the person is also provided with accommodation that includes:
(i) appropriate staffing to meet the nursing and personal care needs of the person; and
(ii) meals and cleaning services; and
(iii) furnishings, furniture and equipment for the provision of that care and accommodation; and
(b) meets any other requirements specified in the Aged Care (Transitional Provisions) Principles.
(2) However, residential care does not include any of the following:
(a) care provided to a person in the person’s private home;
(b) care provided in a hospital or in a psychiatric facility;
(c) care provided in a facility that primarily provides care to people who are not frail and aged;
(d) care that is specified in the Aged Care (Transitional Provisions) Principles not to be residential care.
Division 42—Who is eligible for residential care subsidy?
42‑1 Eligibility for residential care subsidy
(1) An approved provider is eligible for *residential care subsidy in respect of a day if the Secretary is satisfied that, during that day:
(a) the approved provider holds an allocation of *places for residential care subsidy that is in force under Part 2.2 of the Aged Care Act 1997 (not being a *provisional allocation); and
(b) the approved provider provides residential care to a care recipient in respect of whom an approval is in force under Part 2.3 of the Aged Care Act 1997 as a recipient of residential care; and
(c) the residential care service through which the care is provided meets its *accreditation requirement (if any) applying at that time (see section 42‑4 of the Aged Care Act 1997).
Note 1: A care recipient can be taken to be provided with residential care while he or she is on *leave from that care (see section 42‑2).
Note 2: If the care recipient’s approval under Part 2.3 of the Aged Care Act 1997 is not in force, subsidy will not be payable. (For example, the approval may have been given only for a limited period.)
(2) However, the approved provider is not eligible in respect of residential care provided to the care recipient during that day if:
(a) it is excluded because the approved provider exceeds the approved provider’s allocation of *places for residential care subsidy (see section 42‑7); or
(b) the approved provider stopped providing residential care to the person during that day; or
(c) subject to subsection (3), another approved provider would, but for this paragraph, also be eligible for *residential care subsidy in respect of residential care provided to the same care recipient during that day.
(3) Paragraph (2)(c) does not apply if the approved provider started providing residential care to the care recipient before the other approved provider.
(5) Despite any other provision of this Act, an approved provider operating a residential care service is not eligible for *residential care subsidy for a care recipient in respect of a day if the care recipient is on *leave from that service on that day because of subsection 42‑3(3).
42‑2 Leave from residential care services
(1) On each day during which a care recipient is on *leave under this section from a residential care service, the care recipient is taken, for the purposes of this Part (other than section 42‑3) and for the purposes of section 63Q of the *Quality and Safety Commission Act, to be provided with residential care by the approved provider operating the residential care service.
(2) A care recipient is on *leave under this section from a residential care service on each day of any period during which the care recipient attends a hospital for the purpose of receiving hospital treatment, so long as the day is on or after the day on which the care recipient *enters the residential care service.
Note: Attending a hospital for a period of extended hospital leave may result in the Minister determining a lower basic subsidy amount for the recipient for days occurring during that period, which will affect the amount of subsidy that is payable (see section 44‑3).
(3) A care recipient is on *leave under this section from a residential care service on a day if:
(a) during the whole of that day, the care recipient is absent from the residential care service; and
(b) either:
(i) the care recipient does not, during that day, attend a hospital for the purpose of receiving hospital treatment; or
(ii) the care recipient does, during that day, attend a hospital for that purpose and the day is before the day on which the care recipient *enters the residential care service; and
(ba) the care recipient is not on leave under subsection (3B) on that day; and
(c) the number of days on which the care recipient has previously been on leave under this subsection, during the current financial year, is less than 52.
Note: If a care recipient is taken not to have been provided with care because the maximum number of days has been exceeded, subsidy will not be payable in respect of those days. However, the care recipient may agree to pay a fee to the approved provider to reserve the care recipient’s *place in the service. The maximum amount in such a case is set by section 58‑6.
(3AA) For the purposes of paragraph (3)(c), disregard days on which the care recipient is on *leave from the residential care service because of subsection 42‑3(3).
(3A) A care recipient is on *leave under this section from a residential care service on a day if:
(a) *flexible care subsidy is payable in respect of the care recipient and the day; and
(b) the requirements specified in the Aged Care (Transitional Provisions) Principles for the purposes of this paragraph are met.
Note: If a care recipient is on leave for at least 30 days continuously under subsections (2) and (3A), this may result in the Minister determining a lower basic subsidy amount for the recipient for days occurring during that period, which will affect the amount of residential care subsidy that is payable (see section 44‑3).
(3B) A care recipient is on *leave under this section from a residential care service (the affected service) on a day if:
(a) during the whole of that day, the care recipient is absent from the affected service; and
(b) either:
(i) the care recipient does not, during that day, attend a hospital for the purpose of receiving hospital treatment; or
(ii) the care recipient does, during that day, attend a hospital for that purpose and the day is before the day on which the care recipient *enters the affected service; and
(c) the Minister determines under subsection 42‑2A(1) of the Aged Care Act 1997 that there is a situation of emergency for that day for the affected service or a class of residential care services that includes the affected service.
(4) Despite subsections (2), (3), (3A) and (3B), a care recipient cannot be on *leave under this section from a residential care service during any period during which the residential care in question would have been *respite care.
42‑3 Working out periods of leave
(1) In working out the days on which a care recipient is on *leave under section 42‑2:
(a) include the day on which the period commenced; and
(b) do not include the day on which the approved provider recommenced, or commenced, providing residential care to the care recipient.
Note: Absences that do not include an overnight absence from a residential care service are not counted as *leave because of paragraph (b).
(2) Subject to subsection (3), a care recipient cannot be on *leave under section 42‑2 from a residential care service before he or she *enters the service.
(3) A care recipient may be on leave under section 42‑2 on the days during the period starting on the later of:
(a) the day on which he or she was notified that there was a vacancy in the residential care service in question; or
(aa) the day on which he or she accepted a place in the residential care service; or
(b) the day that is 7 days, or such other period as is specified in the Aged Care (Transitional Provisions) Principles, before the day on which the person *enters the residential care service;
and ending at the end of the day before the day the person enters the residential care service.
42‑7 Exceeding the number of places for which there is an allocation
(1) For the purposes of a person’s eligibility for *residential care subsidy, residential care provided to a particular care recipient on a particular day is excluded if:
(a) the number of care recipients provided with residential care by the approved provider during that day exceeds the number of *places included in the approved provider’s allocation of places for residential care subsidy; and
(b) the Secretary decides, in accordance with subsection (2), that the residential care provided to that particular care recipient on that day is to be excluded.
(2) In deciding under paragraph (1)(b) which residential care is to be excluded, the Secretary must:
(a) make the number of exclusions necessary to ensure that the number of *places for which *residential care subsidy will be payable does not exceed the number of places included in the approved provider’s allocation of places for residential care subsidy; and
(b) exclude the residential care in the reverse order in which the care recipients *entered the residential care service for the provision of residential care.
42‑8 Notice of refusal to pay residential care subsidy
(1) If:
(a) an approved provider has claimed *residential care subsidy in respect of a person; and
(b) the approved provider is not eligible for residential care subsidy in respect of that person;
the Secretary must notify the approved provider, in writing, accordingly.
(2) A notice given under subsection (1) is not a legislative instrument.
Division 43—How is residential care subsidy paid?
43‑1 Payment of residential care subsidy
(1) Residential care subsidy is payable by the Commonwealth to an approved provider in respect of each *payment period (see section 43‑2) during which the approved provider is eligible under section 42‑1. However, it is not payable in respect of any days during that period on which the approved provider is not eligible.
(2) Residential care subsidy is separately payable by the Commonwealth in respect of each residential care service through which the approved provider provides residential care.
(3) The Secretary may, in accordance with the Aged Care (Transitional Provisions) Principles, deduct from the amount of residential care subsidy otherwise payable in respect of a *payment period such of the following amounts as apply to the residential care service in question:
(a) deductions for fees (see section 43‑5);
(b) *capital repayment deductions (see section 43‑6).
43‑2 Meaning of payment period
A payment period is:
(a) a calendar month; or
(b) such other period as is set out in the Aged Care (Transitional Provisions) Principles.
43‑3 Advances
(1) Subject to subsection 43‑4(2), *residential care subsidy is payable by the Commonwealth in advance, in respect of a *payment period, at such times as the Secretary thinks fit.
(2) The Secretary must work out the amount of an advance to be paid to an approved provider in respect of the first *payment period or the second payment period for a residential care service by estimating the amount of *residential care subsidy that will be payable for the days in that period.
(3) The Secretary must work out the amount of an advance to be paid to an approved provider in respect of subsequent *payment periods for a residential care service by:
(a) estimating the amount of *residential care subsidy that will be payable (taking into account any deductions under subsection 43‑1(3)) for the days in the period; and
(b) increasing or reducing that amount to make any adjustments that the Secretary reasonably believes are necessary to take account of likely underpayments or overpayments in respect of advances previously paid under this section.
(4) The amounts of advances must be worked out in accordance with any requirements set out in the Aged Care (Transitional Provisions) Principles.
(5) The Secretary may, in deciding whether to reduce the amount of an advance under paragraph (3)(b), take into account the likelihood of the Commonwealth’s right to recover a particular overpayment being waived under section 95‑6 of the Aged Care Act 1997.
Note: Subsection (5) allows the Secretary to take account of waivers in respect of overpayments caused, for example, by some cases of incorrect determinations of the *ordinary incomes of care recipients.
43‑4 Claims for residential care subsidy
(1) For the purpose of obtaining payment of *residential care subsidy in respect of a residential care service through which an approved provider provides residential care, the approved provider must, as soon as practicable after the end of each *payment period, give to the Secretary:
(a) a claim, in the form approved by the Secretary, for residential care subsidy that is payable in respect of the residential care service for that payment period; and
(b) any information relating to the claim that is stated in the form to be required, or that the Secretary requests; and
(c) copies of any documents relating to the claim, or to the payment of *residential care subsidy, that are stated in the form to be required, or that the Secretary requests.
(2) An advance of *residential care subsidy is not payable in respect of a *payment period for the residential care service if the approved provider has not given to the Secretary under subsection (1) a claim relating to the second last preceding payment period for the service.
Example: An advance of subsidy is not payable for March if the Secretary has not been given a claim for January of the same year (assuming the *payment periods are all calendar months—see section 43‑2).
(3) Subsection (2) does not apply to the first *payment period or the second payment period for a residential care service.
(4) If all the places in a residential care service are transferred from one person to another, subsection (2) does not apply to the first 2 *payment periods for the residential care service that occur after the transfer took effect.
(5) If:
(a) apart from this subsection, the operation of paragraph (1)(c) would result in the acquisition of property from a person otherwise than on just terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.
43‑4A Variations of claims for residential care subsidy
(1) An approved provider may vary the claim made in respect of a *payment period within:
(a) 2 years after the end of the payment period; or
(b) such longer period as is determined in respect of the claim by the Secretary.
(2) In determining a longer period for the purposes of paragraph (1)(b), the Secretary must be satisfied that a variation is required:
(a) due to an administrative error made by the Commonwealth or an agent of the Commonwealth; or
(b) because the Commonwealth or an agent of the Commonwealth considers that the circumstances of a care recipient are different from those on the basis of which subsidy was claimed.
Note: Determinations of periods under paragraph (1)(b) are reviewable under Part 6.1.
(3) A determination made under paragraph (1)(b) is not a legislative instrument.
43‑5 Deductions for fees
The Secretary may, on behalf of the Commonwealth, enter into an agreement with an approved provider, under which:
(a) amounts equal to the fees payable by the approved provider for applications made under this Act are to be deducted from amounts of *residential care subsidy otherwise payable to the approved provider in respect of the residential care service specified in the agreement; and
(b) so far as amounts are so deducted, the approved provider ceases to be liable to the Commonwealth for payment of the fees.
43‑6 Capital repayment deductions
(1) Capital repayment deductions apply in respect of a residential care service if:
(a) the approved provider is granted *extra service status under Division 32 of the Aged Care Act 1997 in respect of the service, or in respect of a *distinct part of the service; and
(b) the Commonwealth has previously made capital payments in respect of the service, whether or not the payments were made to that approved provider; and
(c) the payments have not been repaid to the Commonwealth.
The capital repayment deductions are applied in accordance with an agreement entered into under this section.
(2) The Secretary may, on behalf of the Commonwealth, enter into an agreement with the approved provider, under which:
(a) amounts equal to the capital payments made in respect of the service are to be deducted from amounts of *residential care subsidy otherwise payable to the approved provider in respect of the service; and
(b) so far as amounts are so deducted, the approved provider ceases to be liable to the Commonwealth for repayment in respect of the capital payments.
Note: Entering into such an agreement may be a condition of the granting of *extra service status (see paragraph 32‑8(5)(b) of the Aged Care Act 1997).
(3) However, only a proportion of the amounts equal to the capital payments made in respect of the service are to be deducted under the agreement if:
(a) *extra service status is granted only in respect of a *distinct part of the service; or
(b) some or all of the capital payments were made more than 5 years before the first of the deductions is to be made; or
(c) the circumstances (if any) specified in the Aged Care (Transitional Provisions) Principles apply.
The proportion is to be worked out in accordance with the Aged Care (Transitional Provisions) Principles.
(4) The agreement must provide for the deductions to be completed within 3 years after the making of the first deduction.
(5) In this section:
capital payment means:
(a) a *residential care grant; or
(b) a payment of a kind specified in the Aged Care (Transitional Provisions) Principles.
43‑9 Recovery of overpayments
This Division does not affect the Commonwealth’s right to recover overpayments under Part 6.5 of the Aged Care Act 1997.
Division 44—What is the amount of residential care subsidy?
44‑1 What this Division is about
Amounts of *residential care subsidy payable under Division 43 to an approved provider are worked out under this Division in respect of each residential care service. The amount in respect of a residential care service is determined by adding together amounts worked out, using the residential care subsidy calculator in section 44‑2, in respect of individual care recipients in the service.
Table of Subdivisions
44‑A Working out the amount of residential care subsidy
44‑B The basic subsidy amount
44‑C Primary supplements
44‑D Reductions in subsidy
44‑E The income test
44‑F Other supplements
Subdivision 44‑A—Working out the amount of residential care subsidy
44‑2 Amount of residential care subsidy
(1) The amount of *residential care subsidy payable to an approved provider for a residential care service in respect of a *payment period is the amount worked out by adding together the amounts of residential care subsidy for each care recipient:
(a) to whom the approved provider provided residential care through the residential care service during the period; and
(b) in respect of whom the approved provider was eligible for residential care subsidy during the period.
(2) This is how to work out the amount of *residential care subsidy for a care recipient in respect of the *payment period.
Residential care subsidy calculator
Step 1. Work out the basic subsidy amount using Subdivision 44‑B.
Step 2. Add to this amount the amounts of any primary supplements worked out using Subdivision 44‑C.
Step 3. Subtract the amounts of any reductions in subsidy worked out using Subdivision 44‑D.
Step 4. Subtract any further reduction worked out by applying the income test under Subdivision 44‑E.
Step 5. Add the amounts of any other supplements worked out using Subdivision 44‑F.
The result is the amount of residential care subsidy for the care recipient in respect of the payment period.
Subdivision 44‑B—The basic subsidy amount
44‑3 The basic subsidy amount
(1) The basic subsidy amount for the care recipient in respect of the *payment period is the sum of all the basic subsidy amounts for the days during the period on which the care recipient was provided with residential care through the residential care service in question.
(2) The basic subsidy amount for a care recipient for a day is the amount:
(a) determined by the Minister by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(3) The Minister may determine different amounts (including nil amounts) based on any one or more of the following:
(a) the kind of residential care service through which residential care is provided to a care recipient;
(aa) whether a care recipient being provided with residential care has been classified under Part 2.4A of the Aged Care Act 1997;
(ab) the *classification levels for care recipients who have been classified under that Part;
(b) whether the residential care being provided is *respite care;
(c) the times at which a care recipient *entered a residential care service;
(ca) whether a care recipient is on *extended hospital leave;
(e) any other matters specified in the Aged Care (Transitional Provisions) Principles;
(f) any other matters determined by the Minister.
(4) The Minister may make provision for, or in relation to, a matter by conferring a power on the Secretary.
Subdivision 44‑C—Primary supplements
44‑5 Primary supplements
The primary supplements for the care recipient under step 2 of the residential care subsidy calculator in section 44‑2 are such of the following supplements as apply to the care recipient in respect of the *payment period:
(aaa) the accommodation supplement (see section 44‑5A);
(a) the concessional resident supplement (see section 44‑6);
(b) the respite supplement (see section 44‑12);
(c) the oxygen supplement (see section 44‑13);
(d) the enteral feeding supplement (see section 44‑14);
(e) any additional primary supplements (see section 44‑16).
Note: Most of the supplements under this Subdivision are taken into account in applying the income test under Subdivision 44‑E. (The supplements under Subdivision 44‑F are not taken into account in applying the income test.)
44‑5A The accommodation supplement
(1) The accommodation supplement for the care recipient in respect of the *payment period is the sum of all the accommodation supplements for the days during the period on which:
(a) the care recipient was provided with residential care (other than *respite care) through the residential care service in question; and
(b) the care recipient was eligible for an accommodation supplement.
(2) The care recipient is eligible for an accommodation supplement on a particular day if, on that day:
(b) the care recipient is a *supported resident; and
(d) the residential care provided to the care recipient is not provided on an extra service basis for the purposes of Division 36 of the Aged Care Act 1997.
(3) The accommodation supplement for a particular day is the amount:
(a) determined by the Minister by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(4) The Minister may determine different amounts (including nil amounts) or methods based on any one or more of the following:
(a) the value of assets held by a care recipient;
(b) any other matter specified in the Aged Care (Transitional Provisions) Principles.
44‑5B Meaning of supported resident
(1) A person is a supported resident on a particular day if:
(a) on that day, the person is being provided with residential care (other than *respite care) through a residential care service; and
(b) on that day, the person is a *post‑2008 reform resident; and
(c) the amount determined by the Secretary by legislative instrument in relation to that day for the purposes of this paragraph is equal to or more than the value of the person’s assets at the time at which the person *entered the residential care service or such other time specified in the Aged Care (Transitional Provisions) Principles.
Note: Some *supported residents may be required to pay an *accommodation bond or an *accommodation charge—see sections 57‑12 and 57A‑6.
If there is financial hardship
(2) A person is also a supported resident if:
(a) a determination is in force under section 57‑14 or 57A‑9 in respect of the person; and
(b) the person is a *post‑2008 reform resident.
44‑5C Meaning of post‑2008 reform resident
A person is a post‑2008 reform resident if the person is being provided with residential care through a residential care service and the person is not a *pre‑2008 reform resident.
44‑5D Meaning of pre‑2008 reform resident
(1) A person is a pre‑2008 reform resident if:
(a) the person is being provided with residential care through a residential care service; and
(b) either:
(i) the person *entered a residential care service before 20 March 2008; or
(ii) the person was on *pre‑entry leave from a residential care service immediately before 20 March 2008 and the person entered the residential care service on or after 20 March 2008 at the end of that pre‑entry leave; and
(c) the person has not had a break in residential care of more than 28 days between:
(i) the last residential care service through which residential care was provided, or taken to be provided, to the person before 20 March 2008 and the next residential care service through which residential care is provided, or taken to be provided, to the person; and
(ii) any residential care service through which residential care is provided, or taken to be provided, to the person on or after 20 March 2008 and the next residential care service through which residential care is provided, or taken to be provided, to the person.
(2) The period:
(a) beginning on the day on which a person ceases to be provided with residential care through a residential care service (other than because the person is on *leave from the residential care service); and
(b) ending on the day on which the person *enters, or begins *pre‑entry leave, with the next residential care service through which residential care is provided, or taken to be provided, to the person;
is a break in residential care for the person.
(3) For the purposes of subsections (1) and (2), a person is not provided, or taken to be provided, with residential care during any period during which the person is being provided with *respite care.
44‑5E Meaning of pre‑entry leave
A care recipient is on pre‑entry leave from a residential care service on a particular day if, on that day, the care recipient is taken to be provided with residential care by the residential care service because the care recipient is on *leave under section 42‑2 because of subsection 42‑3(3).
44‑6 The concessional resident supplement
(1) The concessional resident supplement for the care recipient in respect of the *payment period is the sum of all the concessional resident supplements for the days during the period on which:
(a) the care recipient was provided with residential care (other than *respite care) through the residential care service in question; and
(b) the care recipient was eligible for a *concessional resident supplement.
(2) The care recipient is eligible for a concessional resident supplement on a particular day if, on that day:
(b) the care recipient is a *concessional resident or an *assisted resident; and
(d) the residential care provided to the care recipient is not provided on an extra service basis for the purposes of Division 36 of the Aged Care Act 1997.
(3) The care recipient is also eligible for a concessional resident supplement on a particular day if the care recipient was eligible for either of the following on the day before the transition day (within the meaning of the Aged Care Act 1997):
(a) a charge exempt resident supplement under repealed section 44‑8A;
(b) a transitional supplement under repealed section 33 of the Aged Care (Transitional Provisions) Principles.
(4) The concessional resident supplement for a particular day is the amount determined by the Minister by legislative instrument.
(5) The Minister may determine different amounts (including nil amounts) based on any one or more of the following:
(a) the amount of an *accommodation bond paid by, or an *accommodation charge charged to, a care recipient for *entry to a residential care service;
(b) the value of assets held by a care recipient;
(c) whether the residential care with which a care recipient is provided is *respite care;
(d) any other matters specified in the Aged Care (Transitional Provisions) Principles.
44‑7 Meaning of concessional resident
If the applicable time is before 1 July 2005
(1) A person is a concessional resident if the person is being provided with residential care (other than *respite care) through a residential care service, the applicable time under subsection (2) is before 1 July 2005 and, at the applicable time:
(a) the person was receiving an *income support payment; and
(b) the person had not been a *homeowner for 2 years or more, or owned a home that was occupied by:
(i) the *partner or a *dependent child of the person; or
(ii) a carer of the person who had occupied the home for the past 2 years and, at the entry time, was eligible to receive an income support payment; or
(iii) a *close relation of the person who had occupied the home for the past 5 years and, at the entry time, was eligible to receive an income support payment; and
(c) the value of the person’s assets was less than:
(i) the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 2.5 times the *basic age pension amount at the time in question; or
(ii) such other amount as is specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles.
Note: A *concessional resident cannot be required to pay an *accommodation bond or an *accommodation charge—see sections 57‑12 and 57A‑6.
If the applicable time is on or after 1 July 2005
(1A) A person is also a concessional resident if:
(a) the person is being provided with residential care (other than *respite care) through a residential care service; and
(b) the applicable time under subsection (2) is on or after 1 July 2005; and
(c) the person is a *pre‑2008 reform resident; and
(d) there is in force a determination covered by subsection (1B) or (1C).
(1B) Subject to subsection (1D), this subsection covers a determination, made under section 44‑8AA before the person *entered the residential care service, that the conditions in paragraphs (1)(a), (b) and (c) would have been met for the person at the time specified in the determination if the references in subparagraphs (1)(b)(ii) and (iii) to the entry time had been references to the time specified in the determination.
(1C) Subject to subsection (1E), this subsection covers a determination, made under section 44‑8AA when or after the person *entered the residential care service, that the conditions in paragraphs (1)(a), (b) and (c) were met at the applicable time under subsection (2).
(1D) If:
(a) a determination covered by subsection (1B) is made in relation to a person; and
(b) the time specified in the determination is on or after 20 September 2009;
subsection (1B) has effect as if the reference to paragraph (1)(c) were a reference to that paragraph modified by omitting “2.5” from subparagraph (i) and substituting “2.25”.
(1E) If:
(a) a determination covered by subsection (1C) is made in relation to a person; and
(b) the applicable time under subsection (2) is on or after 20 September 2009;
subsection (1C) has effect as if the reference to paragraph (1)(c) were a reference to that paragraph modified by omitting “2.5” from subparagraph (i) and substituting “2.25”.
What is the applicable time?
(2) The applicable time is:
(a) if:
(i) the person had, within 28 days prior to *entry to the residential care service, been provided with residential care through another residential care service; and
(ii) the person had paid an *accommodation bond for entry to that other service;
the time that was, under this subsection, the applicable time in respect of that other service; or
(b) in any other case—the time at which the person entered the residential care service.
If there is financial hardship (whatever the applicable time)
(3) A person is also a concessional resident if:
(a) a determination is in force under paragraph 57‑14(1)(a) or 57A‑9(1)(a) in respect of the person; and
(b) the person is a *pre‑2008 reform resident.
44‑8 Meaning of assisted resident
If the applicable time is before 1 July 2005
(1) A person is an assisted resident if the person is being provided with residential care (other than *respite care) through a residential care service, the applicable time under subsection (2) is before 1 July 2005 and, at the applicable time:
(a) the person was receiving an *income support payment; and
(b) the person had not been a *homeowner for 2 years or more, or owned a home that was occupied by:
(i) the *partner or a *dependent child of the person; or
(ii) a carer of the person who had occupied the home for the past 2 years and, at the entry time, was eligible to receive an income support payment; or
(iii) a *close relation of the person who had occupied the home for the past 5 years and, at the entry time, was eligible to receive an income support payment; and
(c) the value of the person’s assets was less than:
(i) the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 4 times the *basic age pension amount at the time in question; or
(ii) such other amount as is specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles;
but more than:
(iii) the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 2.5 times the *basic age pension amount at the time in question; or
(iv) such other amount as is specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles.
Note: An *assisted resident may be required to pay an *accommodation bond or an *accommodation charge.
If the applicable time is on or after 1 July 2005
(1A) A person is also an assisted resident if:
(a) the person is being provided with residential care (other than *respite care) through a residential care service; and
(b) the applicable time under subsection (2) is on or after 1 July 2005; and
(c) the person is a *pre‑2008 reform resident; and
(d) there is in force a determination covered by subsection (1B) or (1C).
If there is financial hardship (whatever the applicable time)
(1AA) A person is also an assisted resident if:
(a) a determination is in force under paragraph 57‑14(1)(b) or 57A‑9(1)(b) in respect of the person; and
(b) the person is a *pre‑2008 reform resident.
(1B) Subject to subsection (1D), this subsection covers a determination, made under section 44‑8AA before the person *entered the residential care service, that the conditions in paragraphs (1)(a), (b) and (c) would have been met for the person at the time specified in the determination if the references in subparagraphs (1)(b)(ii) and (iii) to the entry time had been references to the time specified in the determination.
(1C) Subject to subsection (1E), this subsection covers a determination, made under section 44‑8AA when or after the person *entered the residential care service, that the conditions in paragraphs (1)(a), (b) and (c) were met at the applicable time under subsection (2).
(1D) If:
(a) a determination covered by subsection (1B) is made in relation to a person; and
(b) the time specified in the determination is on or after 20 September 2009;
subsection (1B) has effect as if the reference to paragraph (1)(c) were a reference to that paragraph modified by:
(c) omitting “4” from subparagraph (i) and substituting “3.61”; and
(d) omitting “2.5” from subparagraph (iii) and substituting “2.25”.
(1E) If:
(a) a determination covered by subsection (1C) is made in relation to a person; and
(b) the applicable time under subsection (2) is on or after 20 September 2009;
subsection (1C) has effect as if the reference to paragraph (1)(c) were a reference to that paragraph modified by:
(c) omitting “4” from subparagraph (i) and substituting “3.61”; and
(d) omitting “2.5” from subparagraph (iii) and substituting “2.25”.
What is the applicable time?
(2) The applicable time is:
(a) if:
(i) the person had, within 28 days prior to *entry to the residential care service, been provided with residential care through another residential care service; and
(ii) the person had paid an *accommodation bond for entry to that other service;
the time that was, under this subsection, the applicable time in respect of that other service; or
(b) in any other case—the time at which the person entered the residential care service.
44‑8AA Determinations for sections 44‑7 and 44‑8
Making determinations
(1) The Secretary may make a determination (the resident status determination) described in section 44‑7 or 44‑8 if:
(a) the person mentioned in that section has applied, in a form approved by the Secretary, for the resident status determination; and
(b) the Secretary has made a determination (the asset value determination) under section 44‑8AB of the value of the person’s assets at the time that is specified in the resident status determination; and
(c) the Secretary is satisfied of the matters relating to the person that are to be set out in the resident status determination.
Note: The time specified in a determination covered by subsection 44‑7(1C) or 44‑8(1C) is the applicable time under subsection 44‑7(2) or 44‑8(2).
Giving notice of decision on resident status determination
(2) Within 14 days after deciding whether or not to grant the application, the Secretary must notify the person in writing of:
(a) the decision; and
(b) if the Secretary made the resident status determination—the content of the determination.
When the resident status determination comes into force
(3) The resident status determination comes into force on the day it is made or an earlier day stated in the determination to be the day on which the determination comes into force.
When the resident status determination ceases to be in force
(5) The resident status determination ceases to be in force when the asset value determination ceases to be in force, if:
(a) the person was not being provided with residential care (other than *respite care) through a residential care service when the resident status determination came into force; and
(b) the person has not been provided with such care between:
(i) the time the resident status determination came into force; and
(ii) the time the asset value determination ceases to be in force.
Note: Subsections 44‑8AB(3) and (4) explain how to work out when the asset value determination ceases to be in force.
(6) The Secretary may by written instrument revoke the resident status determination if he or she ceases to be satisfied of any of the matters relating to the person that are set out in the determination. The determination ceases to be in force on a day specified in the instrument (which may be before the instrument is made).
(7) Within 14 days after revoking the resident status determination, the Secretary must give written notice of the revocation and the day on which the determination ceases being in force to:
(a) the person; and
(b) each approved provider (if any) who has provided the person with residential care (other than *respite care) through a residential care service since the determination ceased to be in force.
(8) A resident status determination made under subsection (1) is not a legislative instrument.
44‑8AB Determination of value of person’s assets
Making determinations
(1) The Secretary must determine the value, at the time specified in the determination, of a person’s assets in accordance with section 44‑10, if the person:
(a) applies in the approved form for the determination; and
(b) gives the Secretary sufficient information to make the determination.
The time specified must be at or before the determination is made.
Note: The determination may affect the maximum amount of accommodation bond or charge for the person under section 57‑12 or 57A‑6, as well as whether the person is a *supported resident under section 44‑5B, a concessional resident under section 44‑7 or an assisted resident under section 44‑8.
Giving notice of the determination
(2) Within 14 days after making the determination, the Secretary must give the person a copy of the determination.
When the determination is in force
(3) The determination is in force for the period specified in, or worked out under, the determination.
(4) However, the Secretary may by written instrument revoke the determination if he or she is satisfied that it is incorrect. The determination ceases to be in force on a day specified in the instrument (which may be before the instrument is made).
(5) Within 14 days after revoking the determination, the Secretary must give written notice of the revocation and the day the determination ceases being in force to:
(a) the person; and
(b) if the Secretary is aware that the person has given an approved provider a copy of the determination—the approved provider.
(6) A determination made under subsection (1) is not a legislative instrument.
44‑9 Person taken not to be a supported resident, a concessional resident or an assisted resident if asset information not provided
If:
(a) a care recipient is provided with residential care through a residential care service at a particular time; and
(b) at that time, the care recipient has not given to the approved provider conducting the residential care service sufficient information about the care recipient’s assets for the approved provider to determine whether the care recipient is a *supported resident, an *assisted resident or a *concessional resident;
the person is taken, for the purposes of this Act, not to be a supported resident under subsection 44‑5B(1), a concessional resident under subsection 44‑7(1) or an assisted resident under subsection 44‑8(1) at that time.
Note: This section does not affect whether a person is a concessional resident under subsection 44‑7(1A) or an assisted resident under subsection 44‑8(1A).
44‑10 How to work out the value of a person’s assets
(1) Subject to this section, the value of a person’s assets for the purposes of section 44‑5A, 44‑5B, 44‑7, 44‑8 or 44‑8AB is to be worked out in accordance with the Aged Care (Transitional Provisions) Principles.
(1A) If a person who is receiving a *service pension, an *income support supplement or a *veteran payment has an income stream (within the meaning of the Veterans’ Entitlements Act 1986) that was purchased on or after 20 September 2007, the value of the person’s assets:
(a) is taken to include the amount that the Secretary determines to be the value of that income stream that would be included in the value of the person’s assets if Subdivision A of Division 11 of Part IIIB of the Veterans’ Entitlements Act 1986 applied for the purposes of this Act; and
(b) is taken to exclude the amount that the Secretary determines to be the value of that income stream that would not be included in the value of the person’s assets if Subdivision A of Division 11 of Part IIIB of the Veterans’ Entitlements Act 1986 applied for the purposes of this Act.
(1B) If a person who is not receiving a *service pension, an *income support supplement or a *veteran payment has an income stream (within the meaning of the Social Security Act 1991) that was purchased on or after 20 September 2007, the value of the person’s assets:
(a) is taken to include the amount that the Secretary determines to be the value of that income stream that would be included in the value of the person’s assets if Division 1 of Part 3.12 of the Social Security Act 1991 applied for the purposes of this Act; and
(b) is taken to exclude the amount that the Secretary determines to be the value of that income stream that would not be included in the value of the person’s assets if Division 1 of Part 3.12 of the Social Security Act 1991 applied for the purposes of this Act.
(1C) The value of a person’s assets is taken to include the amount that the Secretary determines to be the amount:
(a) if the person is receiving a *service pension, an *income support supplement or a *veteran payment—that would be included in the value of the person’s assets if Subdivisions B and BB of Division 11 and Subdivision H of Division 11A of Part IIIB of the Veterans’ Entitlements Act 1986 applied for the purposes of this Act; and
(b) otherwise—that would be included in the value of the person’s assets if Division 2 of Part 3.12 and Division 8 of Part 3.18 of the Social Security Act 1991 applied for the purposes of this Act.
Note 1: Subdivisions B and BB of Division 11 of Part IIIB of the Veterans’ Entitlements Act 1986, and Division 2 of Part 3.12 of the Social Security Act 1991, deal with disposal of assets.
Note 2: Subdivision H of Division 11A of Part IIIB of the Veterans’ Entitlements Act 1986, and Division 8 of Part 3.18 of the Social Security Act 1991, deal with the attribution to individuals of assets of private companies and private trusts.
(2) In working out the value at a particular time of the assets of a person who is or was a *homeowner then, disregard the value of a home that, at the time, was occupied by:
(a) the *partner or a *dependent child of the person; or
(b) a carer of the person who:
(i) had occupied the home for the past 2 years; and
(ii) was eligible to receive an *income support payment at the time; or
(c) a *close relation of the person who:
(i) had occupied the home for the past 5 years; and
(ii) was eligible to receive an *income support payment at the time.
(3) The value of the assets of a person who is a *member of a couple is taken to be 50% of the sum of:
(a) the value of the person’s assets; and
(b) the value of the assets of the person’s *partner.
(4) A reference to the value of the assets of a person is, in relation to an asset owned by the person jointly or in common with one or more other people, a reference to the value of the person’s interest in the asset.
(5) A determination under paragraph (1A)(a), (1A)(b), (1B)(a) or (1B)(b) or subsection (1C) is not a legislative instrument.
44‑11 Definitions relating to supported residents, concessional residents and assisted residents
(1) In sections 44‑7, 44‑8, and 44‑10 and in this section:
child: without limiting who is a child of a person for the purposes of this section and sections 44‑7, 44‑8 and 44‑10, each of the following is the child of a person:
(a) a stepchild or an adopted child of the person;
(b) someone who would be the stepchild of the person except that the person is not legally married to the person’s partner;
(c) someone who is a child of the person within the meaning of the Family Law Act 1975;
(d) someone included in a class of persons specified for the purposes of this paragraph in the Aged Care (Transitional Provisions) Principles.
close relation, in relation to a person, means:
(a) a parent of the person; or
(b) a sister, brother, child or grandchild of the person; or
(c) a person included in a class of persons specified in the Aged Care (Transitional Provisions) Principles.
Note: See also subsection (5).
dependent child has the meaning given by subsection (2).
homeowner has the meaning given by the Aged Care (Transitional Provisions) Principles.
member of a couple means:
(a) a person who is legally married to another person, and is not living separately and apart from the person on a permanent basis; or
(aa) a person whose relationship with another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section, and who is not living separately and apart from the other person on a permanent basis; or
(b) a person who lives with another person (whether of the same sex or a different sex) in a de facto relationship, although not legally married to the other person.
parent: without limiting who is a parent of a person for the purposes of this section and sections 44‑7, 44‑8 and 44‑10, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
partner, in relation to a person, means the other *member of a couple of which the person is also a member.
(2) A young person (see subsection (3)) is a dependent child of a person (in this subsection referred to as the adult) if:
(a) the adult:
(i) is legally responsible (whether alone or jointly with another person) for the day‑to‑day care, welfare and development of the young person; or
(ii) is under a legal obligation to provide financial support in respect of the young person; and
(aa) in a subparagraph (a)(ii) case—the adult is not included in a class of people specified for the purposes of this paragraph in the Aged Care (Transitional Provisions) Principles; and
(b) the young person is not:
(i) in full‑time employment; or
(ii) in receipt of a social security pension (within the meaning of the Social Security Act 1991) or a social security benefit (within the meaning of that Act); or
(iii) included in a class of people specified in the Aged Care (Transitional Provisions) Principles.
(3) A reference in subsection (2) to a young person is a reference to any of the following:
(a) a person under 16 years of age;
(b) a person who:
(i) has reached 16 years of age, but is under 25 years of age; and
(ii) is receiving full‑time education at a school, college or university;
(c) a person included in a class of people specified in the Aged Care (Transitional Provisions) Principles.
(4) The reference in paragraph (2)(a) to care does not have the meaning given in the Dictionary in Schedule 1.
(5) For the purposes of paragraph (b) of the definition of close relation in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.
44‑12 The respite supplement
(1) The respite supplement for the care recipient in respect of the *payment period is the sum of all the respite supplements for the days during the period on which:
(a) the care recipient was provided with residential care through the residential care service in question; and
(b) the care recipient was eligible for a respite supplement.
(2) The care recipient is eligible for a respite supplement on a particular day if, on that day:
(a) the residential care provided through the residential care service:
(i) was provided as *respite care; and
(ii) meets any requirements specified in the Aged Care (Transitional Provisions) Principles; and
(b) the care recipient’s approval under Part 2.3 of the Aged Care Act 1997 was not limited so as to preclude the provision of respite care; and
(c) the number of days on which the care recipient had previously been provided with residential care as respite care during the financial year in which the day occurred does not equal or exceed the number specified, for the purposes of this paragraph, in the Aged Care (Transitional Provisions) Principles; and
(d) immediately before that day, the number of successive days on which the care recipient had been provided with residential care as respite care does not equal the number specified, for the purposes of this paragraph, in the Aged Care (Transitional Provisions) Principles.
(3) The respite supplement for a particular day is the amount determined by the Minister by legislative instrument.
(4) The Minister may determine different amounts (including nil amounts) based on any one or more of the following:
(a) the different levels of care at which a care recipient may be assessed under section 22‑4 of the Aged Care Act 1997;
(d) whether a care recipient continues to be provided with residential care through a residential care service immediately after ceasing to be provided with *respite care through that service;
(e) whether a care recipient is a *member of a couple;
(f) any other matters specified in the Aged Care (Transitional Provisions) Principles.
44‑13 The oxygen supplement
(1) The oxygen supplement for the care recipient in respect of the *payment period is the sum of all the oxygen supplements for the days during the period on which:
(a) the care recipient was provided with residential care through the residential care service in question; and
(b) a determination was in force under subsection (2) in relation to the care recipient; and
(c) the residential care provided through the residential care service included administering oxygen to the care recipient in circumstances of a kind specified in the Aged Care (Transitional Provisions) Principles.
(2) The Secretary may determine that a care recipient is eligible for an oxygen supplement.
Note: Refusals to make determinations are reviewable under Part 6.1.
(2A) A determination made under subsection (2) is not a legislative instrument.
(3) In deciding whether to make a determination, the Secretary must comply with any requirements, and have regard to any matters, specified in the Aged Care (Transitional Provisions) Principles.
(4) An approved provider that is providing, or is to provide, residential care to a care recipient may apply to the Secretary, in the form approved by the Secretary, for a determination under subsection (2) in respect of the care recipient.
(5) The Secretary must notify the applicant, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given within 28 days after the decision is made.
(6) The oxygen supplement for a particular day is the amount:
(a) determined by the Minister by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(7) The Minister may determine different amounts (including nil amounts) or methods based on any matters determined by the Minister by legislative instrument.
44‑14 The enteral feeding supplement
(1) The enteral feeding supplement for the care recipient in respect of the *payment period is the sum of all the enteral feeding supplements for the days during the period on which:
(a) the care recipient was provided with residential care through the residential care service in question; and
(b) a determination was in force under subsection (2) in relation to the care recipient; and
(c) the residential care provided through the residential care service included providing enteral feeding to the care recipient in circumstances of a kind specified in the Aged Care (Transitional Provisions) Principles.
(2) The Secretary may determine that a care recipient is eligible for an enteral feeding supplement.
Note: Refusals to make determinations are reviewable under Part 6.1.
(2A) A determination made under subsection (2) is not a legislative instrument.
(3) In deciding whether to make a determination, the Secretary must comply with any requirements, and have regard to any matters, specified in the Aged Care (Transitional Provisions) Principles.
(4) An approved provider that is providing, or is to provide, residential care to a care recipient may apply to the Secretary, in the form approved by the Secretary, for a determination under subsection (2) in respect of the care recipient.
(5) The Secretary must notify the applicant, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given within 28 days after the decision is made.
(6) The enteral feeding supplement for a particular day is the amount:
(a) determined by the Minister by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(7) The Minister may determine different amounts (including nil amounts) or methods based on any matters determined by the Minister by legislative instrument.
44‑15 Requests for further information
(1) If the Secretary needs further information to determine an application under section 44‑13 or 44‑14, the Secretary may give to the applicant a notice requesting the further information:
(a) within the period specified in the notice; or
(b) if no period is specified in the notice—within 28 days after receiving the notice.
(2) The application is taken to be withdrawn if the applicant does not give the further information within whichever of those periods applies.
Note: The period for giving further information can be extended—see section 96‑7.
(3) The notice must contain a statement setting out the effect of subsection (2).
44‑16 Additional primary supplements
(1) The Aged Care (Transitional Provisions) Principles may provide for additional primary supplements.
(2) The Aged Care (Transitional Provisions) Principles may specify, in respect of each such supplement, the circumstances in which the supplement will apply to a care recipient in respect of a *payment period.
(3) The Minister may determine by legislative instrument, in respect of each such supplement, the amount of the supplement, or the way in which the amount of the supplement is to be worked out.
Subdivision 44‑D—Reductions in subsidy
44‑17 Reductions in subsidy
The reductions in subsidy for the care recipient under step 3 of the residential care subsidy calculator in section 44‑2 are such of the following reductions as apply to the care recipient in respect of the *payment period:
(a) the extra service reduction (see section 44‑18);
(c) the compensation payment reduction (see section 44‑20).
44‑18 The extra service reduction
(1) The extra service reduction for the care recipient in respect of the *payment period is the sum of all the extra service reductions for days during the period on which:
(a) the care recipient was provided with residential care through the residential care service in question; and
(b) the care is provided in respect of a place that is an *extra service place (see Division 31 of the Aged Care Act 1997), or the care is required, under a condition of a kind specified in paragraph 32‑8(3)(b) of the Aged Care Act 1997, to be provided on an extra service basis.
(2) The extra service reduction for a particular day is an amount equal to 25% of the daily rate of the extra service fee in force for the *place under Division 35 of the Aged Care Act 1997.
44‑20 The compensation payment reduction
(1) The compensation payment reduction for the care recipient in respect of the *payment period is the sum of all compensation payment reductions for days during the period:
(a) on which the care recipient is provided with residential care through the residential care service in question; and
(b) that are covered by a compensation entitlement.
(2) For the purposes of this section, a day is covered by a compensation entitlement if:
(a) the care recipient is entitled to compensation under a judgment, settlement or reimbursement arrangement; and
(b) the compensation takes into account the cost of providing residential care to the care recipient on that day; and
(c) the application of compensation payment reductions to the care recipient for preceding days has not resulted in reductions in subsidy that, in total, exceed or equal the part of the compensation that relates, or is to be treated under subsection (5) or (6) as relating, to future costs of providing residential care.
(3) The compensation payment reduction for a particular day is an amount equal to the amount of *residential care subsidy that would be payable for the care recipient in respect of the *payment period if:
(a) the care recipient was provided with residential care on that day only; and
(b) this section and Subdivision 44‑F did not apply.
(4) However, if:
(a) the compensation payment reduction arises from a judgment or settlement that fixes the amount of compensation on the basis that liability should be apportioned between the care recipient and the compensation payer; and
(b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned; and
(c) the compensation is not paid in a lump sum;
the amount of the compensation payment reduction under subsection (3) is reduced by the proportion corresponding to the proportion of liability that is apportioned to the care recipient by the judgment or settlement.
(5) If a care recipient is entitled to compensation under a judgment or settlement that does not take into account the future costs of providing residential care to the care recipient, the Secretary may, in accordance with the Aged Care (Transitional Provisions) Principles, determine:
(a) that, for the purposes of this section, the judgment or settlement is to be treated as having taken into account the cost of providing that residential care; and
(b) the part of the compensation that, for the purposes of this section, is to be treated as relating to the future costs of providing residential care.
Note: Determinations are reviewable under Part 6.1.
(6) If:
(a) a care recipient is entitled to compensation under a settlement; and
(b) the settlement takes into account the future costs of providing residential care to the recipient; and
(c) the Secretary is satisfied that the settlement does not adequately take into account the future costs of providing residential care to the care recipient;
the Secretary may, in accordance with the Aged Care (Transitional Provisions) Principles, determine the part of the compensation that, for the purposes of this section, is to be treated as relating to the future costs of providing residential care.
Note: Determinations are reviewable under Part 6.1.
(7) A determination under subsection (5) or (6) must be in writing and notice of it must be given to the care recipient.
(7A) A determination under subsection (5) or (6) is not a legislative instrument.
(8) A reference in this section to the costs of providing residential care does not include a reference to an amount that is or may be payable as an *accommodation bond, except to the extent provided in the Aged Care (Transitional Provisions) Principles.
(9) In this section, the following terms have the same meanings as in the Health and Other Services (Compensation) Act 1995:
compensation |
compensation payer |
judgment |
reimbursement arrangement |
settlement. |
Subdivision 44‑E—The income test
44‑21 The income test
(1) The income test for the care recipient under step 4 of the residential care subsidy calculator in section 44‑2 is applied by working out the amount (if any) of the income tested reduction in respect of the *payment period.
(2) The income tested reduction in respect of the *payment period is the sum of all the *daily income tested reductions for days during the period on which the care recipient is provided with residential care through the residential care service in question.
(3) The *daily income tested reduction for a particular day is worked out as follows:
Income tested reduction calculator
Step 1. Work out the care recipient’s *total assessable income on a yearly basis (see section 44‑24).
Step 2. Work out the care recipient’s *total assessable income free area (see section 44‑26).
Step 3. If the care recipient’s *total assessable income does not exceed the care recipient’s *total assessable income free area, the income tested reduction is zero.
Step 4. If the care recipient’s *total assessable income exceeds the care recipient’s *total assessable income free area, the smallest of the following amounts (rounded down to the nearest cent) is the *daily income tested reduction:
(a) the amount equal to 5/12 of that excess (worked out on a per day basis);
(b) the amount equal to 135% of the *basic age pension amount for that day (worked out on a per day basis);
(c) the subsidy related amount for a care recipient for a day (see subsection (4)).
Note: In some circumstances, a different *daily income tested reduction will apply under section 44‑22 or 44‑23.
(4) The subsidy related amount for a care recipient for a day is the total of the following amounts:
(a) the adjusted basic subsidy amount for the care recipient for the day (see subsection (5));
(b) the amounts of any primary supplements worked out using Subdivision 44‑C for the care recipient for the day;
less the amounts of any reductions in subsidy worked out using Subdivision 44‑D for the care recipient for the day.
(5) The adjusted basic subsidy amount for a care recipient for a day is an amount:
(a) determined by the Minister by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
44‑22 Daily income tested reduction taken to be zero in some circumstances
(1) The *daily income tested reduction in respect of the care recipient is taken to be zero for each day, during the *payment period, on which one or more of the following applies:
(a) the care recipient was provided with *respite care;
(b) a determination was in force under subsection (2) in relation to the care recipient;
(c) the care recipient was included in a class of people specified in the Aged Care (Transitional Provisions) Principles.
(2) The Secretary may, in accordance with the Aged Care (Transitional Provisions) Principles, determine that the *daily income tested reduction in respect of the care recipient is to be taken to be zero.
Note: Refusals to make determinations are reviewable under Part 6.1.
(3) The determination ceases to be in force at the end of the period (if any) specified in the determination.
Note: Decisions specifying periods are reviewable under Part 6.1.
(4) In deciding whether to make a determination, the Secretary must have regard to the matters specified in the Aged Care (Transitional Provisions) Principles.
(5) Application may be made to the Secretary, in the form approved by the Secretary, for a determination under subsection (2) in respect of a care recipient. The application may be made by:
(a) the care recipient; or
(b) an approved provider that is providing, or is to provide, residential care to the care recipient.
(6) The Secretary must notify the care recipient and the approved provider, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given:
(a) if an application for a determination was made under subsection (5)—within 28 days after the application was made, or, if the Secretary requested further information in relation to the application, within 28 days after receiving the information; or
(b) if such an application was not made—within 28 days after the decision is made.
(7) A determination under subsection (2) is not a legislative instrument.
44‑23 Effect on daily income tested reduction of failure to give requested information
(1) If the care recipient fails to give to the Secretary information, within the time specified in a notice under subsection 44‑24(8), that the Secretary requests for the purpose of determining the care recipient’s *total assessable income under section 44‑24, the *daily income tested reduction in respect of the care recipient, for each day during the period:
(a) starting on the day on which the care recipient failed to give the information; and
(b) finishing at the end of the day before the day on which the care recipient gives to the Secretary the information requested;
is the amount worked out under subsection (4) of this section.
(2) If the care recipient elects, by a written notice given to the Secretary, not to give any information to the Secretary for the purpose of determining the care recipient’s *total assessable income under section 44‑24, the *daily income tested reduction in respect of the care recipient, for each day during the period:
(a) starting on the day on which the care recipient made the election; and
(b) finishing at the end of, the day before the day on which the care recipient gives to the Secretary a written notice revoking the election;
is the amount worked out under subsection (4) of this section.
(3) The Secretary must not, while the election is in force, request the care recipient to give information for the purpose of determining the care recipient’s *total assessable income under section 44‑24.
(4) For the purpose of subsections (1) and (2), the *daily income tested reduction in respect of the care recipient is whichever is the lesser of the following amounts (rounded down to the nearest cent):
(a) the amount equal to 135% of the *basic age pension amount for that day (worked out on a per day basis);
(b) the subsidy related amount worked out under subsection 44‑21(4) for the care recipient for that day.
Note: Care recipients are not obliged to give information to the Secretary. However, if they do not, the amount of residential care subsidy paid for their care may be reduced, and the amount of resident fees that they are liable to pay may therefore increase (see Division 58).
44‑24 The care recipient’s total assessable income
(1) If the care recipient is not entitled to an *income support payment, his or her total assessable income is the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary income for the purpose of applying Module E of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991.
Note: Determinations are reviewable under Part 6.1.
(2) If the care recipient is entitled to a *service pension, his or her total assessable income is the sum of:
(a) the amount of the care recipient’s service pension reduced by the amount worked out under subsection 5GA(3) of the Veterans’ Entitlements Act 1986 to be the care recipient’s minimum pension supplement amount; and
(b) the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary/adjusted income for the purpose of applying Module E of the Rate Calculator in Schedule 6 to the Veterans’ Entitlements Act 1986.
Note: Determinations are reviewable under Part 6.1.
(3) If the care recipient is entitled to an *income support supplement, his or her total assessable income is the sum of:
(a) the amount of the care recipient’s income support supplement reduced by the amount worked out under subsection 5GA(3) of the Veterans’ Entitlements Act 1986 to be the care recipient’s minimum pension supplement amount; and
(b) the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary/adjusted income for the purpose of applying Module E of the Rate Calculator in Schedule 6 to the Veterans’ Entitlements Act 1986.
Note: Determinations are reviewable under Part 6.1.
(3A) If the care recipient is entitled to a *veteran payment, his or her total assessable income is the sum of:
(a) the amount of the care recipient’s veteran payment reduced by the amount worked out under subsection 5GA(3) of the Veterans’ Entitlements Act 1986 to be the care recipient’s minimum pension supplement amount; and
(b) the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary/adjusted income for the purpose of applying Module E of the Rate Calculator in Schedule 6 to the Veterans’ Entitlements Act 1986.
Note: Determinations are reviewable under Part 6.1.
(4) If the care recipient is entitled to an *income support payment (other than a *service pension, an *income support supplement or a *veteran payment), his or her total assessable income is the sum of:
(a) the amount of the care recipient’s income support payment reduced by, if the payment is an income support payment within the meaning of subsection 23(1) of the Social Security Act 1991, the amount worked out under subsection 20A(4) of that Act to be the care recipient’s minimum pension supplement amount; and
(b) the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary income for the purpose of applying Module E of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991.
Note: Determinations are reviewable under Part 6.1.
(4A) However, the reduction referred to in paragraph (4)(a) does not apply if:
(a) the care recipient’s income support payment is special benefit or youth allowance under the Social Security Act 1991; or
(b) the care recipient has not reached pension age (within the meaning of subsections 23(5A), (5B), (5C) and (5D) of that Act) and the rate of the care recipient’s income support payment is worked out in accordance with the Rate Calculator at the end of section 1066A, 1067L, 1068, 1068A or 1068B of that Act.
(5) The Aged Care (Transitional Provisions) Principles may specify amounts that are to be taken, in relation to specified kinds of care recipients, to be excluded from determinations under subsection (1) or paragraph (2)(b), (3)(b), (3A)(b) or (4)(b).
(6) For the purpose of making a determination under subsection (1) or paragraph (4)(b) of the amount that would be worked out as the care recipient’s ordinary income for the purpose referred to in that subsection or paragraph, the relevant provisions of the Social Security Act 1991 apply as if:
(a) paragraph 8(8)(zc) of that Act were omitted; and
(b) section 1176 of that Act were omitted; and
(c) any other provision of the social security law (within the meaning of the Social Security Act 1991) were omitted:
(i) that has the direct or indirect effect of excluding an amount from a person’s ordinary income (within the meaning of that Act); and
(ii) that is specified in the Aged Care (Transitional Provisions) Principles.
Note: The effect of this subsection is that certain amounts that would not be included when working out a person’s ordinary income under the Social Security Act 1991 will be included for the purposes of working out a care recipient’s total assessable income under this section.
(7) For the purpose of making a determination under paragraph (2)(b), (3)(b) or (3A)(b) of the amount that would be worked out as the care recipient’s ordinary/adjusted income for the purpose referred to in the relevant paragraph, the relevant provisions of the Veterans’ Entitlements Act 1986 apply as if:
(a) section 59X of that Act were omitted; and
(b) any other provision of the Veterans’ Entitlements Act 1986 were omitted:
(i) that has the direct or indirect effect of excluding an amount from a person’s ordinary/adjusted income (within the meaning of that Act); and
(ii) that is specified in the Aged Care (Transitional Provisions) Principles.
Note: The effect of this subsection is that certain amounts that would not be included when working out a person’s ordinary/adjusted income under the Veterans’ Entitlements Act 1986 will be included for the purposes of working out a care recipient’s total assessable income under this section.
(8) The Secretary may, by notice in writing, request one or more of the following:
(a) the care recipient;
(b) a person acting for or on behalf of the care recipient;
(c) any other person whom the Secretary believes has information that would assist the Secretary in making the determination;
to give, within the period specified in the notice, to the Secretary such information as is specified in the notice for the purposes of making the determination.
Note: A person is not obliged to provide the information.
(9) A determination under subsection (1) or paragraph (2)(b), (3)(b), (3A)(b) or (4)(b) takes effect on the day specified by the Secretary. The day may be earlier than the day on which the determination is made.
(10) The Secretary must notify, in writing, the care recipient of any determination under subsection (1) or paragraph (2)(b), (3)(b), (3A)(b) or (4)(b).
(11) The notice must include such matters as are specified in the Aged Care (Transitional Provisions) Principles.
(12) A determination made under subsection (1) or paragraph (2)(b), (3)(b), (3A)(b) or (4)(b) is not a legislative instrument.
44‑26 The care recipient’s total assessable income free area
General rule
(1) The total assessable income free area for a care recipient (other than a *protected resident) is the sum of:
(a) the amount worked out by applying point 1064‑B1 of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991; and
(b) the amount worked out under point 1064‑BA4 of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991; and
(c) the amount worked out by applying point 1064‑E4 of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991.
Protected residents
(2) The total assessable income free area for a care recipient who is a *protected resident is the sum of:
(a) the amount worked out by applying old point 1064‑B1; and
(b) the amounts referred to in paragraphs (1)(b) and (c).
Note: Old point 1064‑B1 is defined in subsection (6).
Definition
(6) In this section:
old point 1064‑B1 means point 1064‑B1 of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991, as that point has effect on 19 September 2009.
Subdivision 44‑F—Other supplements
44‑27 Other supplements
(1) The other supplements for the care recipient under step 5 of the residential care subsidy calculator in section 44‑2 are such of the following supplements as apply to the care recipient in respect of the *payment period:
(a) the pensioner supplement (see section 44‑28);
(c) the hardship supplement (see section 44‑30);
(e) any other supplement set out in the Aged Care (Transitional Provisions) Principles for the purposes of this paragraph.
Note: The supplements under this Subdivision are not taken into account in applying the income test under Subdivision 44‑E. (The supplements under Subdivision 44‑C are taken into account in applying the income test.)
(2) The Aged Care (Transitional Provisions) Principles may specify, in respect of each other supplement set out for the purposes of paragraph (1)(e), the circumstances in which the supplement will apply to a care recipient in respect of a *payment period.
(3) The Minister may determine by legislative instrument, in respect of each such supplement, the amount of the supplement, or the way in which the amount of the supplement is to be worked out.
44‑28 The pensioner supplement
(1) The pensioner supplement for the care recipient in respect of the *payment period is the sum of all the pensioner supplements for the days during the period on which:
(a) the care recipient was provided with residential care through the residential care service in question; and
(b) the care recipient was eligible for a pensioner supplement.
(2) Subject to subsections (3), (5) and (6), the care recipient is eligible for a pensioner supplement on a particular day if:
(a) the care recipient is a *pre‑2008 reform resident; and
(b) if the day falls before 20 March 2008—on that particular day any of the following apply to the care recipient:
(i) the care recipient was receiving an *income support payment;
(ii) the care recipient had a *dependent child;
(iii) the care recipient was provided with *respite care;
(iv) the care recipient was included in a class of people specified in the Aged Care (Transitional Provisions) Principles; and
(c) if the day falls on or after 20 March 2008—on that particular day any of the following apply to the care recipient:
(i) the care recipient was receiving an income support payment;
(ii) the care recipient had a dependent child;
(iii) the care recipient was included in a class of people specified in the Aged Care (Transitional Provisions) Principles.
(3) The care recipient is not eligible for a pensioner supplement on a particular day if:
(a) an *accommodation bond was paid, or agreed to be paid, by the care recipient for *entry to the residential care service; and
(b) either:
(i) if the time (the entry time) of the care recipient’s entry was before 20 September 2009—that accommodation bond exceeded the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 10 times the *basic age pension amount; or
(ii) if the time (the entry time) of the care recipient’s entry was on or after 20 September 2009—that accommodation bond exceeded the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 9 times the *basic age pension amount;
unless, on that day, the care recipient had a dependent child.
(4) For the purposes of subsection (3), if the care recipient elects under subsection 57‑17(1) to pay an *accommodation bond by periodic payments, the amount of the accommodation bond is taken to be what would have been payable by the care recipient in accordance with Subdivision 57‑D had the care recipient paid it as a lump sum.
(5) If the care recipient has failed to give to the Secretary information that the Secretary requests for the purpose of determining the care recipient’s *total assessable income under section 44‑24, the care recipient is not eligible for a pensioner supplement for any of the days during the period:
(a) starting on the day on which the care recipient failed to give to the Secretary that information; and
(b) finishing at the end of the day before the day on which the care recipient gave to the Secretary that information.
(6) If the care recipient has elected not to give any information to the Secretary for the purpose of determining the care recipient’s *total assessable income under section 44‑24, the care recipient is not eligible for a pensioner supplement for any of the days during the period:
(a) starting on the day on which the care recipient made the election; and
(b) finishing at the end of the day before the day on which the care recipient gives to the Secretary a written notice revoking the election.
Note: Care recipients are not obliged to give the Secretary the information. They can choose not to give the information, but, in addition to the effect this has on the income test (see section 44‑23), a pensioner supplement will not apply.
(7) The pensioner supplement for a particular day is the amount determined by the Minister by legislative instrument.
(8) The Minister may determine different amounts (including nil amounts) based on any matters determined by the Minister by legislative instrument.
44‑30 The hardship supplement
(1) The hardship supplement for the care recipient in respect of the *payment period is the sum of all the hardship supplements for the days during the period on which:
(a) the care recipient was provided with residential care through the residential care service in question; and
(b) the care recipient was eligible for a hardship supplement.
(2) Subject to subsection (4), the care recipient is eligible for a hardship supplement on a particular day if:
(a) the Aged Care (Transitional Provisions) Principles specify one or more classes of care recipients to be care recipients for whom paying the maximum daily amount of resident fees worked out under section 58‑2 would cause financial hardship; and
(b) on that day, the care recipient is included in such a class.
(3) Subject to subsection (4), the care recipient is also eligible for a hardship supplement on a particular day if a determination is in force under section 44‑31 in relation to the care recipient.
(4) The care recipient is not eligible for a hardship supplement in respect of a day if, on that day, the care recipient is being provided with residential care on an extra service basis (see Division 36 of the Aged Care Act 1997).
(5) The hardship supplement for a particular day is the amount:
(a) determined by the Minister by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(6) The Minister may determine different amounts (including nil amounts) or methods based on any matters determined by the Minister by legislative instrument.
44‑31 Determining cases of financial hardship
(1) The Secretary may, in accordance with the Aged Care (Transitional Provisions) Principles, determine that the care recipient is eligible for a hardship supplement if the Secretary is satisfied that paying the maximum daily amount of resident fees worked out under section 58‑2 would cause the care recipient financial hardship.
Note: Refusals to make determinations are reviewable under Part 6.1.
(2) In deciding whether to make a determination under this section, and in determining a lesser amount, the Secretary must have regard to the matters (if any) specified in the Aged Care (Transitional Provisions) Principles.
(3) A determination under this section ceases to be in force at the end of a specified period, or on the occurrence of a specified event, if the determination so provides.
Note: Decisions to specify periods or events are reviewable under Part 6.1.
(4) Application may be made to the Secretary, in the form approved by the Secretary, for a determination under this section. The application may be made by:
(a) the care recipient; or
(b) an approved provider who is providing, or is to provide, residential care to the care recipient.
(5) If the Secretary needs further information to determine the application, the Secretary may give to the applicant a notice requesting the applicant to give the further information:
(a) within 28 days after receiving the notice; or
(b) within such other period as is specified in the notice.
(6) The application is taken to have been withdrawn if the information is not given within whichever of those periods applies. The notice must contain a statement setting out the effect of this subsection.
Note: The period for giving the further information can be extended—see section 96‑7.
(7) The Secretary must notify the care recipient and the approved provider, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given:
(a) within 28 days after receiving the application; or
(b) if the Secretary has requested further information under subsection (5)—within 28 days after receiving the information.
(8) If the Secretary makes the determination, the notice must set out:
(a) any period at the end of which; or
(b) any event on the occurrence of which;
the determination will cease to be in force.
(9) A determination under subsection (1) is not a legislative instrument.
Part 3.2—Home care subsidy
Division 45—Introduction
45‑1 What this Part is about
The *home care subsidy is a payment by the Commonwealth to approved providers for providing home care to care recipients.
However, any *unspent home care amount (which may include home care subsidy) of a care recipient must be dealt with by an approved provider in accordance with the User Rights Principles.
Table of Divisions
45 Introduction
46 Who is eligible for home care subsidy?
47 On what basis is home care subsidy paid?
48 What is the amount of home care subsidy?
45‑2 Home care subsidy also dealt with in Aged Care (Transitional Provisions) Principles
*Home care subsidy is also dealt with in the Aged Care (Transitional Provisions) Principles. Provisions of this Part indicate when a particular matter is or may be dealt with in those Principles.
Note: The Aged Care (Transitional Provisions) Principles are made by the Minister under section 96‑1.
45‑3 Meaning of home care
(1) Home care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care.
(2) The Aged Care (Transitional Provisions) Principles may specify care that:
(a) constitutes home care for the purposes of this Act; or
(b) does not constitute home care for the purposes of this Act.
Division 46—Who is eligible for home care subsidy?
46‑1 Eligibility for home care subsidy
(1) An approved provider is eligible for *home care subsidy in respect of a day if the Secretary is satisfied that:
(a) the approval of the approved provider is in respect of home care; and
(b) on that day there is in force a *home care agreement under which a care recipient approved under Part 2.3 of the Aged Care Act 1997 in respect of home care is to be provided with home care by the approved provider through a home care service; and
(c) the home care service is a notified home care service; and
(d) the care recipient is a *prioritised home care recipient; and
(e) on that day the approved provider provides the care recipient with such home care (if any) as is required under the home care agreement; and
(f) the approved provider has agreed in the claim relating to the day to deal with the care recipient’s *unspent home care amount in accordance with the User Rights Principles.
Note: Eligibility may also be affected by Division 7 of the Aged Care Act 1997 (relating to a person’s approval as a provider of aged care services) or Division 20 of that Act (relating to a person’s approval as a recipient of home care).
(2) For the purposes of paragraph (1)(c), a home care service is a notified home care service if the approved provider has notified the Secretary of the information required by section 9‑1A of the Aged Care Act 1997 in relation to the home care service.
46‑2 Suspension of home care services
(1) A care recipient who is being provided with home care by an approved provider in accordance with a *home care agreement may request the approved provider to suspend, on a temporary basis, the provision of that home care, commencing on a date specified in the request.
(2) The approved provider must comply with the request.
(3) The Aged Care (Transitional Provisions) Principles may specify requirements relating to the suspension, on a temporary basis, of home care.
46‑4 Notice of refusal to pay home care subsidy
(1) If:
(a) an approved provider has claimed *home care subsidy in respect of a person; and
(b) the approved provider is not eligible for home care subsidy in respect of that person;
the Secretary must, within 28 days after receiving the claim, notify the approved provider in writing accordingly.
(2) A notice given under subsection (1) is not a legislative instrument.
Division 47—On what basis is home care subsidy paid?
47‑1 Payability of home care subsidy
(1) *Home care subsidy is payable by the Commonwealth to an approved provider in respect of each *payment period (see section 47‑2) during which the approved provider is eligible under section 46‑1.
(1A) However, *home care subsidy is not payable:
(a) in respect of any days during a *payment period on which the approved provider is not eligible; or
(b) in respect of a payment period if the approved provider has not given to the Secretary under section 47‑4:
(i) a claim in respect of the payment period; and
(ii) a claim in respect of each preceding payment period (if any) ending on or after the first day on which the approved provider is eligible under section 46‑1.
(2) *Home care subsidy is separately payable by the Commonwealth in respect of each home care service through which an approved provider provides home care.
47‑2 Meaning of payment period
A payment period is:
(a) a calendar month; or
(b) such other period as is set out in the Aged Care (Transitional Provisions) Principles.
47‑4 Claims for home care subsidy
For the purpose of obtaining payment of *home care subsidy in respect of a home care service through which an approved provider provides home care, the approved provider must, as soon as practicable after the end of each *payment period, give to the Secretary:
(a) a claim, in the form approved by the Secretary, for home care subsidy that is, or may become, payable in respect of the service for that payment period; and
(b) any information relating to the claim that is stated in the form to be required, or that the Secretary requests.
47‑4A Variations of claims for home care subsidy
(1) An approved provider may vary the claim made in respect of a *payment period within:
(a) either:
(i) the period specified in the Aged Care (Transitional Provisions) Principles; or
(ii) if no such period is specified—2 years after the end of that payment period; or
(b) such longer period as is determined in respect of the claim by the Secretary.
(1A) Without limiting subparagraph (1)(a)(i), the Aged Care (Transitional Provisions) Principles may specify different periods in respect of different classes of variations.
(2) In determining a longer period for the purposes of paragraph (1)(b), the Secretary must be satisfied that a variation is required:
(a) due to an administrative error made by the Commonwealth or an agent of the Commonwealth; or
(b) because the Commonwealth or an agent of the Commonwealth considers that the circumstances of a care recipient are different from those on the basis of which subsidy was claimed.
Note: Determinations of periods under paragraph (1)(b) are reviewable under Part 6.1.
(3) A determination made under paragraph (1)(b) is not a legislative instrument.
47‑5 Recovery of overpayments
This Division does not affect the Commonwealth’s right to recover overpayments under Part 6.5 of the Aged Care Act 1997.
Division 48—What is the amount of home care subsidy?
48‑1 Amount of home care subsidy
(1) The amount of *home care subsidy that is payable to an approved provider in respect of a *payment period for a home care service is the sum of the amounts of home care subsidy payable to the approved provider in respect of each care recipient:
(a) in respect of whom there is in force a *home care agreement for provision of home care provided through the service during the period; and
(b) in respect of whom the approved provider was eligible under section 46‑1 for home care subsidy during the period.
(2) The amount of *home care subsidy payable to the approved provider in respect of a care recipient in respect of the *payment period is the amount:
(a) specified in the Aged Care (Transitional Provisions) Principles; or
(b) worked out in accordance with a method specified in the Aged Care (Transitional Provisions) Principles.
(3) Without limiting subsection (2), the Aged Care (Transitional Provisions) Principles made for the purposes of subsection (2) may authorise the making of legislative instruments by the Minister.
Part 3.3—Flexible care subsidy
Division 49—Introduction
49‑1 What this Part is about
The *flexible care subsidy is a payment by the Commonwealth to approved providers for providing flexible care to care recipients.
Table of Divisions
49 Introduction
50 Who is eligible for flexible care subsidy?
51 On what basis is flexible care subsidy paid?
52 What is the amount of flexible care subsidy?
49‑2 Flexible care subsidy also dealt with in Aged Care (Transitional Provisions) Principles
*Flexible care subsidy is also dealt with in the Aged Care (Transitional Provisions) Principles. Provisions of this Part indicate when a particular matter is or may be dealt with in those Principles.
Note: The Aged Care (Transitional Provisions) Principles are made by the Minister under section 96‑1.
49‑3 Meaning of flexible care
Flexible care means care provided in a residential or community setting through an *aged care service that addresses the needs of care recipients in alternative ways to the care provided through residential care services and home care services.
Division 50—Who is eligible for flexible care subsidy?
50‑1 Eligibility for flexible care subsidy
(1) An approved provider is eligible for *flexible care subsidy in respect of a day if the Secretary is satisfied that, during that day:
(a) the approved provider holds an allocation of *places for flexible care subsidy that is in force under Part 2.2 of the Aged Care Act 1997 (other than a *provisional allocation); and
(b) the approved provider:
(i) provides flexible care to a care recipient who is approved under Part 2.3 of the Aged Care Act 1997 in respect of flexible care; or
(ii) provides flexible care to a care recipient who is included in a class of people who, under the Aged Care (Transitional Provisions) Principles, do not need approval under Part 2.3 of the Aged Care Act 1997 in respect of flexible care; or
(iii) is taken to provide flexible care in the circumstances set out in the Aged Care (Transitional Provisions) Principles; and
(c) the flexible care is of a kind for which flexible care subsidy may be payable (see section 50‑2).
(2) However, the approved provider is not eligible in respect of flexible care provided to the care recipient if the care is excluded because the approved provider exceeds the approved provider’s allocation of *places for *flexible care subsidy (see section 50‑3).
Note: Eligibility may also be affected by Division 7 of the Aged Care Act 1997 (relating to a person’s approval as a provider of aged care services) or Division 20 of that Act (relating to a person’s approval as a recipient of flexible care).
50‑2 Kinds of care for which flexible care subsidy may be payable
(1) The Aged Care (Transitional Provisions) Principles may specify kinds of care for which *flexible care subsidy may be payable.
(2) Kinds of care may be specified by reference to one or more of the following:
(a) the nature of the care;
(b) the circumstances in which the care is provided;
(c) the nature of the locations in which it is provided;
(d) the groups of people to whom it is provided;
(e) the period during which the care is provided;
(f) any other matter.
Note: Examples of the kinds of care that might be specified are:
(a) care for *people with special needs;
(b) care provided in small, rural or remote communities;
(c) care provided through a pilot program for alternative means of providing care;
(d) care provided as part of co‑ordinated service and accommodation arrangements directed at meeting several health and community service needs.
50‑3 Exceeding the number of places for which there is an allocation
(1) For the purposes of an approved provider’s eligibility for *flexible care subsidy, flexible care provided to a particular care recipient on a particular day is excluded if:
(a) the number of care recipients provided with flexible care by the approved provider during that day exceeds the number of *places included in the approved provider’s allocation of places for flexible care subsidy; and
(b) the Secretary decides, in accordance with subsection (2), that the flexible care provided to that particular care recipient on that day is to be excluded.
(2) In deciding under paragraph (1)(b) which flexible care is to be excluded, the Secretary must:
(a) make the number of exclusions necessary to ensure that the number of *places for which *flexible care subsidy will be payable does not exceed the number of places included in the approved provider’s allocation of places for flexible care subsidy; and
(b) exclude the flexible care in the reverse order in which the care recipients in question *entered the flexible care service for the provision of flexible care.
50‑4 Notice of refusal to pay flexible care subsidy
(1) If:
(a) an approved provider has claimed *flexible care subsidy in respect of a person; and
(b) the approved provider is not eligible for flexible care subsidy in respect of that person;
the Secretary must notify the approved provider, in writing, accordingly.
(2) A notice given under subsection (1) is not a legislative instrument.
Division 51—On what basis is flexible care subsidy paid?
51‑1 Payment of flexible care subsidy
(1) *Flexible care subsidy in respect of a particular kind of flexible care is payable in accordance with the Aged Care (Transitional Provisions) Principles.
(2) The Aged Care (Transitional Provisions) Principles may, in relation to each kind of flexible care, provide for one or more of the following:
(a) the periods in respect of which *flexible care subsidy is payable;
(b) the payment of flexible care subsidy in advance;
(c) the way in which claims for flexible care subsidy are to be made;
(d) any other matter relating to the payment of flexible care subsidy.
Division 52—What is the amount of flexible care subsidy?
52‑1 Amounts of flexible care subsidy
(1) The amount of *flexible care subsidy that is payable in respect of a day is the amount:
(a) determined by the Minister by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(2) The Minister may determine rates of or methods for working out *flexible care subsidy based on any matters determined by the Minister by legislative instrument.
Chapter 4—Responsibilities of approved providers
Part 4.2—User rights
Division 57—What are the responsibilities relating to accommodation bonds?
57‑1 What this Division is about
If an approved provider charges an *accommodation bond for the *entry of a care recipient to a residential care service or flexible care service, several rules must be followed. These relate particularly to prudential arrangements, *accommodation bond agreements, the amount of the bond and its payment, treatment of income derived from the bond, deductions from the bond and refunding the bond.
If an approved provider has been given or loaned an *entry contribution, several rules must be followed. Rules set out in Part 3A.3 of the Aged Care Act 1997 relate particularly to prudential arrangements and payment of interest on *entry contribution balances. Other rules are set out in section 71 of the Aged Care (Consequential Provisions) Act 1997.
Table of Subdivisions
57‑A The basic rules
57‑C Accommodation bond agreements
57‑D Amounts of accommodation bonds
57‑E Payment of accommodation bonds
57‑F Rights of approved providers
Subdivision 57‑A—The basic rules
57‑2 Basic rules about accommodation bonds
(1) The rules relating to charging an *accommodation bond for the *entry of a person to a residential care service, or flexible care service, as a care recipient are as follows:
(a) subject to this subsection, an accommodation bond must be charged for the entry if:
(i) the care recipient enters the service within 28 days after the day on which the care recipient ceased (other than because the care recipient is on *leave) being provided with care through another such service (the prior service); and
(ii) an accommodation bond was paid by the care recipient for entry to the prior service;
(aa) the care recipient is not a care recipient eligible for a concessional resident supplement under paragraph 44‑6(3)(a);
(b) the entry must not be for the purpose of the provision of *respite care;
(c) the approved provider conducting the residential care service or flexible care service must comply with the prudential requirements (see section 52M‑1 of the Aged Care Act 1997);
(d) the approved provider must, before the recipient enters the service, provide the care recipient with such information about the accommodation bond as is specified in the Aged Care (Transitional Provisions) Principles;
(e) the approved provider must have entered into an *accommodation bond agreement (see section 57‑9) with the care recipient before, or within 21 days after, the care recipient entered the service;
Note: This time limit is extended in some cases if certain legal processes relating to the care recipient’s mental impairment are in progress—see subsection (2) of this section.
(f) another person must not be required to pay the accommodation bond as a condition of the care recipient entering the residential care service or flexible care service;
(g) the accommodation bond must not exceed the maximum amount under section 57‑12 or 57‑13, or paragraph 57‑14(1)(b), as the case requires, and the care recipient must not be charged more than one accommodation bond in respect of entering the service;
(h) the accommodation bond must not be charged if a determination is in force under paragraph 57‑14(1)(a) that paying an accommodation bond would cause the care recipient financial hardship;
(i) payment of the accommodation bond can only be required during a period specified in section 57‑16;
(j) payment of the accommodation bond by periodic payments must meet the requirements set out in section 57‑17;
(k) the approved provider must not use the accommodation bond unless the use of the bond is *permitted (see section 52N‑1 of the Aged Care Act 1997);
Note: For the use of bonds charged before 1 October 2011, see Part 2 of Schedule 1 to the Aged Care Amendment Act 2011.
(ka) the approved provider must comply with the prudential requirements (see section 52M‑1 of the Aged Care Act 1997);
(l) the approved provider is entitled to income derived from investing the *accommodation bond balance (see section 57‑18);
(m) amounts must not be deducted from the accommodation bond balance, except for amounts deducted under section 57‑19;
(o) the approved provider must not charge an accommodation bond if:
(i) a sanction has been imposed on the approved provider under section 63N of the *Quality and Safety Commission Act; and
(ii) the sanction prohibits the charging of an accommodation bond for the entry;
(p) any other rules specified in the Aged Care (Transitional Provisions) Principles.
(2) If, at the end of the 21 days mentioned in paragraph (1)(e):
(a) the approved provider and the care recipient have not entered into an *accommodation bond agreement; and
(b) a process under a law of the Commonwealth, a State or a Territory has begun for a person (other than an approved provider) to be appointed, by reason that the care recipient has a mental impairment, as the care recipient’s legal representative;
the time limit in that paragraph is extended until the end of 7 days after:
(c) the appointment is made; or
(d) a decision is made not to make the appointment; or
(e) the process ends for some other reason;
or for such further period as the Secretary allows, having regard to any matters specified in the User Rights Principles.
Subdivision 57‑C—Accommodation bond agreements
57‑9 Contents of accommodation bond agreements
(1) An agreement between an approved provider and a person proposing to *enter, or having entered, as a care recipient to a residential care service, or flexible care service, through which the approved provider provides care is an accommodation bond agreement if it sets out the following:
(a) the amount of the *accommodation bond that:
(i) will be payable if the care recipient enters the residential care service or flexible care service; or
(ii) if the care recipient has already entered the residential care service or flexible care service—is payable;
(b) the care recipient’s proposed date of entry, or date of entry, to the residential care service or flexible care service;
(c) how the accommodation bond is to be paid, and if the accommodation bond is to be paid by periodic payments, the conditions relating to the periodic payments (which must comply with the requirements of section 57‑17);
(d) when the accommodation bond is payable;
(e) the amount of each retention amount (within the meaning of section 57‑20) that will be deducted from the *accommodation bond balance;
(f) when retention amounts and other amounts permitted by section 57‑19 to be deducted from the accommodation bond balance will be deducted;
(g) unless the care recipient has already entered the residential care service or flexible care service—the conditions that will apply if the care recipient agrees to pay the accommodation bond but then does not enter the residential care service or flexible care service (including the conditions that will apply if the person chooses not to enter the service);
(h) whether agreeing to pay the accommodation bond entitles the care recipient to specific accommodation or additional services within the residential care service or flexible care service;
(i) if the accommodation bond is such an amount that, under subsection 44‑28(3), the care recipient would not be eligible for a *pensioner supplement—any additional resident fees that will be payable by the care recipient as a result of not being so eligible;
(j) any financial hardship provisions that apply to the care recipient;
(k) the circumstances in which the accommodation bond balance must be refunded and the way the amount of the refund will be worked out;
(l) such other matters as are specified in the Aged Care (Transitional Provisions) Principles.
(2) The User Rights Principles may specify, but are not limited to, matters relating to the following:
(a) the specific entitlements of care recipients arising from entering into an *accommodation bond agreement;
(d) a care recipient’s obligations;
(e) alleviating financial hardship.
57‑10 Accommodation bond agreements may be incorporated into other agreements
For the purposes of this Division, a person is taken to have entered into an *accommodation bond agreement if the person has entered into an agreement that contains the provisions required by section 57‑9.
Example: These provisions may be included in a *resident agreement.
57‑11 Agreements cannot affect requirements of this Division
The requirements of this Division apply despite any provision of an *accommodation bond agreement, or any other agreement, to the contrary.
Subdivision 57‑D—Amounts of accommodation bonds
57‑12 Maximum amount of accommodation bond
(1) Subject to subsection (2) and sections 57‑13 and 57‑14, the maximum amount of an *accommodation bond for the *entry of a person as a care recipient to a residential care service or flexible care service is whichever is the lowest of the following:
(a) the amount of the accommodation bond specified in the *accommodation bond agreement;
(b) an amount that, when subtracted from an amount equal to the value of the care recipient’s assets at the time of the care recipient’s entry to the residential care service or flexible care service, leaves an amount at least equal to the care recipient’s minimum permissible asset value (see subsection (3));
(c) such amount as is specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles.
Note: The operation of this section may be modified if, before entering an accommodation bond agreement, the care recipient gives the approved provider a determination under section 44‑8AB of the value of the care recipient’s assets. See subsection (5).
(2) If:
(a) a care recipient proposes to *enter a residential care service, or flexible care service, conducted by an approved provider; and
(b) the care recipient does not, before entering an *accommodation bond agreement, give to the approved provider sufficient information about the care recipient’s assets for the approved provider to be able to determine the amounts referred to in paragraph (1)(b);
the maximum amount of an *accommodation bond for the entry of the person as a care recipient to the residential care service or flexible care service is the lesser of the amounts referred to in paragraphs (1)(a) and (c).
(3) A care recipient’s minimum permissible asset value is:
(a) if the time (the entry time) of the care recipient’s *entry to the residential care service or flexible care service is before 20 September 2009:
(i) the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 2.5 times the *basic age pension amount at the entry time; or
(ii) such higher amount as is specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles; or
(b) if the time (the entry time) of the care recipient’s entry to the residential care service or flexible care service is on or after 20 September 2009:
(i) the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 2.25 times the *basic age pension amount at the entry time; or
(ii) such higher amount as is specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles.
(4) The value of a care recipient’s assets is to be worked out in the same way as it would be worked out under section 44‑10 for the purposes of section 44‑5B, 44‑7 or 44‑8.
(5) However, subsections (1), (2) and (3) are modified as described in the table, and subsection (4) does not apply, if, before entering the *accommodation bond agreement, the care recipient gives the approved provider a copy of a determination that:
(a) is a determination under section 44‑8AB of the value of the care recipient’s assets at a time (the valuation time) that is before or at the time (the entry time) the care recipient *enters the residential care service or flexible care service; and
(b) is in force at the entry time, if that is after the valuation time.
Modifications of subsections (1), (2) and (3) |
| If: | Subsections (1), (2) and (3) have effect as if: |
1 | The valuation time is before the entry time | (a) the references in paragraph (1)(b) and subsection (3) to the time of the care recipient’s *entry to the residential care service or flexible care service were references to the valuation time; and (b) the value of the care recipient’s assets at the valuation time were the value specified in the determination |
2 | The valuation time is at the entry time | The value of the care recipient’s assets at the entry time were the value specified in the determination |
57‑13 Maximum amount of accommodation bond if care recipient moves between aged care services
(1) If paragraph 57‑2(1)(a) applies in relation to the charging of an *accommodation bond for *entry by a care recipient to an *aged care service, the maximum amount of the accommodation bond for the entry of the care recipient to the service is the amount set out in subsection (2) of this section.
(2) The amount is the *accommodation bond balance that was refunded or is payable to the care recipient under Division 52P of the Aged Care Act 1997 in respect of the *accommodation bond referred to in subparagraph 57‑2(1)(a)(ii).
57‑14 Accommodation bond in cases of financial hardship
(1) The Secretary may determine, in accordance with the Aged Care (Transitional Provisions) Principles, that a person:
(a) must not be charged an *accommodation bond because payment of an accommodation bond would cause the person financial hardship; or
(b) must not be charged an accommodation bond of more than a specified maximum amount because payment of more than that amount would cause the person financial hardship.
Note: Refusals to make determinations are reviewable under Part 6.1.
(2) Without limiting the circumstances that constitute financial hardship for the purposes of this section, such circumstances include any circumstances specified in the Aged Care (Transitional Provisions) Principles.
(3) The determination ceases to be in force at the end of a specified period or on the occurrence of a specified event, if the determination so provides.
Note: Decisions to specify periods or events are reviewable under Part 6.1.
(4) Application may be made to the Secretary, in the form approved by the Secretary, for a determination under subsection (1) that payment of an *accommodation bond, or an accommodation bond of more than a specified maximum amount, would cause the person financial hardship. The application may be made by:
(a) the person; or
(b) an approved provider to which the accommodation bond, or a larger accommodation bond, would otherwise be paid.
(5) If the Secretary needs further information to determine the application, the Secretary may give to the applicant a notice requiring the applicant to give the further information:
(a) within 28 days after receiving the notice; or
(b) within such other period as is specified in the notice.
The application is taken to have been withdrawn if the information is not given within whichever of those periods applies. The notice must contain a statement setting out the effect of this subsection.
Note: The period for giving the further information can be extended—see section 96‑7.
(6) The Secretary must notify the person and the approved provider, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given:
(a) within 28 days after receiving the application; or
(b) if the Secretary has requested further information under subsection (5)—within 28 days after receiving the information.
(7) If the Secretary makes a determination, the notice must:
(a) set out any period at the end of which, or any event on the occurrence of which, the determination will cease to be in force; and
(b) if the determination is that a person must not be charged an *accommodation bond of more than a specified maximum amount—specify the maximum amount of the accommodation bond.
57‑15 Revocation of determinations of financial hardship
(1) The Secretary may, in accordance with the Aged Care (Transitional Provisions) Principles, revoke a determination made under section 57‑14.
Note: Revocations of determinations are reviewable under Part 6.1.
(2) Before deciding to revoke the determination, the Secretary must notify the person, and an approved provider who is providing or is to provide residential care or flexible care to the person, that revocation is being considered. The notice must be in writing and must:
(a) invite the person and the approved provider to make submissions, in writing, to the Secretary within 28 days after receiving the notice; and
(b) inform them that if no submissions are made within that period, the revocation takes effect on the day after the last day for making submissions.
(3) In making the decision whether to revoke the determination, the Secretary must consider any submissions received within the period for making submissions. The Secretary must make the decision within 28 days after the end of that period.
(4) The Secretary must notify, in writing, the person and the approved provider of the decision.
(5) The notice must be given to the person and the approved provider within 28 days after the end of the period for making submissions. If the notice is not given within that period, the Secretary is taken to have decided not to revoke the determination.
(6) A revocation has effect:
(a) if the person and the approved provider received notice under subsection (4) on the same day—the day after that day; or
(b) if they received the notice on different days—the day after the later of those days.
Subdivision 57‑E—Payment of accommodation bonds
57‑16 Period for payment of accommodation bond
A care recipient must not be required to pay an *accommodation bond:
(a) before the end of such period as is specified in the Aged Care (Transitional Provisions) Principles; or
(b) if no period is specified—before the end of 6 months;
after *entry to the residential care service or flexible care service.
Note: However, under sections 57‑18 and 57‑20, amounts representing income derived and retention amounts are payable from the date a care recipient *enters a residential care service or a flexible care service.
57‑17 Payment of an accommodation bond by periodic payments
(1) A care recipient may elect that an *accommodation bond is to be paid, in whole or in part, by periodic payments.
(2) The Aged Care (Transitional Provisions) Principles may specify:
(a) the frequency of periodic payments; and
(b) the method for working out amounts of periodic payments (including a method where only part of the *accommodation bond is to be paid by periodic payments); and
(c) any other matters relating to periodic payments.
(3) The method specified in the Aged Care (Transitional Provisions) Principles for working out amounts of periodic payments must have regard to:
(a) the income that the approved provider could be expected to have derived; and
(b) the retention amounts that would have been permitted to be deducted under section 57‑20;
if the *accommodation bond had been paid as a lump sum.
Subdivision 57‑F—Rights of approved providers
57‑18 Approved provider may retain income derived
(1) An approved provider may retain income derived from the investment of an *accommodation bond balance in respect of an *accommodation bond paid to the approved provider.
(2) Despite section 57‑16, if a care recipient pays an *accommodation bond to an approved provider after the due date (see subsection (6)), the care recipient may be required to pay to the approved provider an amount representing the income the approved provider could be expected to have derived, through investing the *accommodation bond balance, during the period:
(a) beginning on the due date; and
(b) ending on the day on which the *accommodation bond was paid.
(3) If the care recipient is provided with care for 2 months or less, the care recipient may be required to pay to the approved provider an amount representing the income the approved provider could be expected to have derived, through investing the *accommodation bond balance, during:
(a) the whole of the month in which the care recipient *entered the residential care service or flexible care service; and
(b) the 2 following months;
unless the Aged Care (Transitional Provisions) Principles specify that a lesser amount is payable.
Example: If a care recipient *entered a residential care service on 20 January and left on 3 March, the amount would be the amount the approved provider could have been expected to have derived if the care recipient received care for the whole of January, February and March.
(4) The Aged Care (Transitional Provisions) Principles may specify a method for working out the amounts referred to in subsections (2) and (3).
(5) The Aged Care (Transitional Provisions) Principles may provide that, in the circumstances specified in the Aged Care (Transitional Provisions) Principles, an approved provider must not retain income derived, from the investment of an *accommodation bond balance, in respect of periods specified in the Aged Care (Transitional Provisions) Principles.
(6) In this section:
due date means:
(a) in relation to an *accommodation bond payable by a care recipient for *entry to a residential care service—the day on which the care recipient entered the residential care service; or
(b) in relation to an accommodation bond payable by a care recipient for entry to a flexible care service—the day on which the care recipient entered the flexible care service.
57‑19 Amounts to be deducted from accommodation bond balance
(1) An approved provider to whom an *accommodation bond was paid by a care recipient may deduct from the *accommodation bond balance:
(a) retention amounts in respect of the accommodation bond (see section 57‑20); and
(b) amounts owed to the approved provider by the care recipient under an *accommodation bond agreement, a *resident agreement or an *extra service agreement; and
(c) amounts, worked out in accordance with the Aged Care (Transitional Provisions) Principles, representing interest on the amounts referred to in paragraph (b).
(2) The approved provider must not deduct any other amounts from the *accommodation bond balance.
57‑20 Retention amounts
(1) A retention amount must not exceed the amount specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles.
(2) The Aged Care (Transitional Provisions) Principles may provide that, in the circumstances specified in the Aged Care (Transitional Provisions) Principles, an approved provider must not deduct any amounts from an *accommodation bond balance in respect of periods specified in the Aged Care (Transitional Provisions) Principles.
(3) Subject to subsections (4) and (5), a retention amount may be deducted from an *accommodation bond balance for each month, or part of a month, during which the care recipient concerned is:
(a) provided with residential care through the residential care service in respect of which the *accommodation bond was paid; or
(b) provided with flexible care through the flexible care service in respect of which the accommodation bond was paid.
(4) Subject to subsection (5), retention amounts may only be deducted during the period of 5 years, or such other period specified in the Aged Care (Transitional Provisions) Principles, starting on the latest of the following days:
(a) the day on which the care recipient *entered the residential care service or flexible care service;
(c) if a determination under paragraph 57‑14(1)(a) is in force in respect of the care recipient—the day after the day on which the determination ceases to be in force;
(d) such other day as is worked out in accordance with the Aged Care (Transitional Provisions) Principles.
(5) If, before the *accommodation bond was paid, amounts had already been deducted from an *accommodation bond balance in respect of another accommodation bond previously paid by the care recipient, the period of 5 years referred to in subsection (4) is reduced by each month in respect of which a retention amount was so deducted.
Note: The effect of this subsection is that all periods spent in residential care or flexible care after an *accommodation bond is first paid will count towards the 5 year maximum under subsection (4) for deducting retention amounts.
Example: If a care recipient initially spends 6 weeks in residential care and then moves to another residential care service, retention amounts can be deducted for 3 months in respect of the 6 weeks of care (see subsection (6)), but after that only for up to 4 years and 9 months.
(6) For the purposes of this section, if the care recipient is provided with care for 2 months or less, the care recipient is taken, for the purposes of working out retention amounts payable, to have received that care during:
(a) the whole of the month in which the care recipient *entered the residential care service or flexible care service; and
(b) the 2 following months;
unless the Aged Care (Transitional Provisions) Principles specify that care is taken to have been provided for a shorter period.
Example: A care recipient who *entered a residential care service on 20 January and left on 3 March would be taken to have received care for the whole of January, February and March. Therefore, retention amounts could be deducted for each of these months.
(7) Deduction of retention amounts must comply with any other requirements specified in the Aged Care (Transitional Provisions) Principles.
Division 57A—What are the responsibilities relating to accommodation charges?
57A‑1 What this Division is about
If an approved provider charges an *accommodation charge for the *entry of a care recipient to a residential care service, several rules must be followed. These relate particularly to *accommodation charge agreements, the amount of the charge that accrues and its payment, and treatment of charge payments received.
Table of Subdivisions
57A‑A The basic rules
57A‑B Accommodation charge agreements
57A‑C Daily accrual amounts of accommodation charges
57A‑D Payment of accommodation charges
Subdivision 57A‑A—The basic rules
57A‑2 Basic rules about accommodation charges
(1) The rules relating to charging an *accommodation charge for the *entry of a person to a residential care service as a care recipient are as follows:
(a) subject to this subsection, an accommodation charge must be charged for the entry if:
(i) the care recipient enters the service within 28 days after the day on which the care recipient ceased (other than because the care recipient is on *leave) being provided with care through another such service (the prior service); and
(ii) an accommodation charge was payable by the care recipient for entry to the prior service;
(b) the care recipient is not a care recipient eligible for a concessional resident supplement under paragraph 44‑6(3)(a);
(c) the entry must not be for the purpose of the provision of *respite care;
(d) the approved provider must, before the care recipient enters the service, provide the care recipient with such information about the accommodation charge as is specified in the Aged Care (Transitional Provisions) Principles;
(e) the approved provider must have entered into an *accommodation charge agreement (see section 57A‑3) with the care recipient before, or within 21 days after, the care recipient entered the service;
Note: This time limit is extended in some cases if certain legal processes relating to the care recipient’s mental impairment are in progress—see subsection (2) of this section.
(f) another person must not be required to pay the accommodation charge as a condition of the care recipient entering the residential care service;
(g) the daily amount at which the accommodation charge accrues must not exceed the maximum provided for by section 57A‑6 or 57A‑8A or paragraph 57A‑9(1)(b) and the care recipient must not be charged more than one accommodation charge in respect of entering the service;
(h) the accommodation charge must not accrue for any day in contravention of the requirements of section 57A‑7 (which deals with cessation of the provision of care);
(i) the accommodation charge must not be charged if a determination is in force under paragraph 57A‑9(1)(a) that paying an accommodation charge would cause the care recipient financial hardship;
(j) the approved provider must comply with the requirements of section 57A‑11 relating to payment of the accommodation charge;
(k) the care recipient may be required in accordance with section 57A‑12 to pay interest to the approved provider if some or all of the accommodation charge is not paid within the time that section permits;
(m) the approved provider must not charge an accommodation charge if:
(i) a sanction has been imposed on the approved provider under section 63N of the *Quality and Safety Commission Act; and
(ii) the sanction prohibits the charging of an accommodation charge for the entry;
(n) any other rules specified in the Aged Care (Transitional Provisions) Principles.
(2) If, at the end of the 21 days mentioned in paragraph (1)(e):
(a) the approved provider and the care recipient have not entered into an *accommodation charge agreement; and
(b) a process under a law of the Commonwealth, a State or a Territory has begun for a person (other than an approved provider) to be appointed, by reason that the care recipient has a mental impairment, as the care recipient’s legal representative;
the time limit in that paragraph is extended until the end of 7 days after:
(c) the appointment is made; or
(d) a decision is made not to make the appointment; or
(e) the process ends for some other reason;
or for such further period as the Secretary allows, having regard to any matters specified in the Aged Care (Transitional Provisions) Principles.
Subdivision 57A‑B—Accommodation charge agreements
57A‑3 Contents of accommodation charge agreements
(1) An agreement between an approved provider and a person proposing to *enter, or having entered, as a care recipient to a residential care service through which the approved provider provides care is an accommodation charge agreement if it sets out the following:
(a) the amount of the *accommodation charge that:
(i) will accrue for each day (including a day on which the care recipient is on *leave from the residential care service) if the care recipient enters the service; or
(ii) if the care recipient has already entered the residential care service—has accrued and will accrue for each day (including a day on which the care recipient is on *leave from the service);
(b) the care recipient’s proposed date of entry, or date of entry, to the residential care service;
(c) how the accommodation charge is to be paid;
(d) the time or times when the accommodation charge is payable;
(e) whether agreeing to pay the accommodation charge entitles the care recipient to specific accommodation or additional services within the residential care service;
(f) any financial hardship provisions that apply to the care recipient;
(g) such other matters as are specified in the Aged Care (Transitional Provisions) Principles.
(2) The Aged Care (Transitional Provisions) Principles may specify, but are not limited to, matters relating to the following:
(a) the specific entitlements of care recipients arising from entering into an *accommodation charge agreement;
(b) the provision of information to third parties about accommodation charges and related matters;
(c) a care recipient’s obligations;
(d) alleviating financial hardship.
57A‑4 Accommodation charge agreements may be incorporated into other agreements
For the purposes of this Division, a person is taken to have entered into an *accommodation charge agreement if the person has entered into an agreement that contains the provisions required by section 57A‑3.
Example: These provisions may be included in a *resident agreement.
57A‑5 Agreements cannot affect requirements of this Division
The requirements of this Division apply despite any provision of an *accommodation charge agreement, or any other agreement, to the contrary.
Subdivision 57A‑C—Daily accrual amounts of accommodation charges
57A‑6 Maximum daily accrual amount of accommodation charge
(1) Subject to subsection (2) and sections 57A‑8A and 57A‑9, the maximum daily amount at which an *accommodation charge accrues for the *entry of a person as a care recipient to a residential care service is whichever is the lowest of the following:
(a) the amount of the daily accrual of the accommodation charge as specified in the *accommodation charge agreement;
(b) the amount (rounded down to the nearest cent) obtained by:
(i) taking the amount that, when subtracted from an amount equal to the value of the care recipient’s assets at the time of the care recipient’s entry to the residential care service, leaves an amount at least equal to the care recipient’s minimum permissible asset value as defined in subsection 57‑12(3); and
(ii) dividing the result by 2,080;
(c) such amount as is specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles.
Note: The operation of this section may be modified if, before entering into an accommodation charge agreement, the care recipient gives the approved provider a determination under section 44‑8AB of the value of the care recipient’s assets. See subsection (4).
(2) If:
(a) a care recipient proposes to *enter a residential care service conducted by an approved provider; and
(b) the care recipient does not, before entering into an *accommodation charge agreement, give the approved provider sufficient information about the care recipient’s assets for the approved provider to be able to determine the amounts referred to in paragraph (1)(b);
the maximum daily amount at which an *accommodation charge accrues is the lesser of the amounts mentioned in paragraphs (1)(a) and (c).
(3) The value of a care recipient’s assets is to be worked out in the same way as it would be worked out under section 44‑10 for the purposes of section 44‑5B, 44‑7 or 44‑8.
(4) However, subsections (1) and (2) are modified as described in the table, and subsection (3) does not apply, if, before entering into the *accommodation charge agreement, the care recipient gives the approved provider a copy of a determination that:
(a) is a determination under section 44‑8AB of the value of the care recipient’s assets at a time (the valuation time) that is before or at the time (the entry time) the care recipient *enters the residential care service; and
(b) is in force at the entry time, if that is after the valuation time.
Modifications of subsections (1) and (2) |
| If: | Subsections (1) and (2) have effect as if: |
1 | The valuation time is before the entry time | (a) the reference in paragraph (1)(b) to the time of the care recipient’s *entry to the residential care service were a reference to the valuation time; and (b) the value of the care recipient’s assets at the valuation time were the value specified in the determination; and (c) subsection 57‑12(3) defined minimum permissible asset value by reference to the *basic age pension amount at the valuation time (instead of the entry time) |
2 | The valuation time is at the entry time | The value of the care recipient’s assets at the entry time were the value specified in the determination |
57A‑7 Accommodation charge not to accrue after provision of care has ceased
(1) An *accommodation charge for *entry to a residential care service must not accrue for any day after the provision of care to the care recipient through that residential care service ceases.
57A‑8A Maximum amount of accommodation charge if care recipient moves between aged care services
(1) If paragraph 57A‑2(1)(a) applies in relation to the charging of an *accommodation charge for *entry by a care recipient to an *aged care service, the maximum daily amount at which the accommodation charge accrues for the entry of the care recipient to the service is the amount set out in subsection (2) of this section.
(2) The amount is the maximum daily amount of *accommodation charge that accrued under section 57A‑6 for entry of the care recipient to the prior service referred to in subparagraph 57A‑2(1)(a)(i).
57A‑9 Accommodation charge in cases of financial hardship
(1) The Secretary may determine, in accordance with the Aged Care (Transitional Provisions) Principles, that a person:
(a) must not be charged an *accommodation charge because payment of an accommodation charge would cause the person financial hardship; or
(b) must not be charged an accommodation charge of more than a specified maximum daily amount because payment of more than that amount would cause the person financial hardship.
Note: Refusals to make determinations are reviewable under Part 6.1.
(2) Without limiting the circumstances that constitute financial hardship for the purposes of this section, such circumstances include any circumstances specified in the Aged Care (Transitional Provisions) Principles.
(3) The determination ceases to be in force at the end of a specified period or on the occurrence of a specified event, if the determination so provides.
Note: Decisions to specify periods or events are reviewable under Part 6.1.
(4) Application may be made to the Secretary, in the form approved by the Secretary, for a determination under subsection (1) that payment of an *accommodation charge, or an accommodation charge of more than a specified maximum daily amount, would cause the person financial hardship. The application may be made by:
(a) the person; or
(b) an approved provider to which the accommodation charge, or a larger accommodation charge, would otherwise be paid.
(5) If the Secretary needs further information to determine the application, the Secretary may give to the applicant a notice requiring the applicant to give the further information:
(a) within 28 days after receiving the notice; or
(b) within such other period as is specified in the notice.
The application is taken to have been withdrawn if the information is not given within whichever of those periods applies. The notice must contain a statement setting out the effect of this subsection.
Note: The period for giving the further information can be extended—see section 96‑7.
(6) The Secretary must notify the person and the approved provider, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given:
(a) within 28 days after receiving the application; or
(b) if the Secretary has requested further information under subsection (5)—within 28 days after receiving the information.
(7) If the Secretary makes the determination, the notice must:
(a) set out any period at the end of which, or any event on the occurrence of which, the determination will cease to be in force; and
(b) if the determination is that a person must not be charged an *accommodation charge of more than a specified maximum daily amount—specify the maximum daily amount of the accommodation charge.
57A‑10 Revocation of determinations of financial hardship
(1) The Secretary may, in accordance with the Aged Care (Transitional Provisions) Principles, revoke a determination made under section 57A‑9.
Note: Revocations of determinations are reviewable under Part 6.1.
(2) Before deciding to revoke the determination, the Secretary must notify the person, and an approved provider who is providing or is to provide residential care to the person, that revocation is being considered. The notice must be in writing and must:
(a) invite the person and the approved provider to make submissions, in writing, to the Secretary within 28 days after receiving the notice; and
(b) inform them that if no submissions are made within that period, the revocation takes effect on the day after the last day for making submissions.
(3) In making the decision whether to revoke the determination, the Secretary must consider any submissions received within the period for making submissions. The Secretary must make the decision within 28 days after the end of that period.
(4) The Secretary must notify, in writing, the person and the approved provider of the decision.
(5) The notice must be given to the person and the approved provider within 28 days after the end of the period for making submissions. If the notice is not given within that period, the Secretary is taken to have decided not to revoke the determination.
(6) A revocation has effect:
(a) if the person and the approved provider received notice under subsection (4) on the same day—the day after that day; or
(b) if they received the notice on different days—the day after the later of those days.
Subdivision 57A‑D—Payment of accommodation charges
57A‑11 Accommodation charge may be payable not more than one month in advance
(1) A care recipient may be required to pay an *accommodation charge at a time before the day for which the charge will accrue.
(2) However, the time must not be more than one month before the day for which the charge will accrue and, if the charge does not in fact accrue, the care recipient is entitled to a refund of the amount paid.
57A‑12 Approved provider may charge interest
(1) If:
(a) a care recipient is required, under an *accommodation charge agreement, to pay an amount of *accommodation charge to an approved provider; and
(b) the care recipient does not pay the required amount before the end of one month after the day for which the charge accrues; and
(c) the agreement provides for interest to be charged on the balance outstanding at a specified rate;
the care recipient may be required to pay the approved provider interest on the balance outstanding for the period beginning at the end of the one month and continuing while the balance remains unpaid.
(2) However, the rate at which the interest is charged must not exceed the maximum specified in the Aged Care (Transitional Provisions) Principles.
Division 58—What are the responsibilities relating to resident fees?
58‑1 Responsibilities relating to resident fees
The responsibilities relating to resident fees charged for, or in connection with, the provision to a care recipient of care and services that it is the approved provider’s responsibility under paragraph 54‑1(1)(a) of the Aged Care Act 1997 to provide, are as follows:
(a) subject to section 58‑6, the resident fee in respect of any day must not exceed the sum of:
(i) the maximum daily amount set under section 58‑2; and
(ii) such other amounts as are specified in, or worked out in accordance with, the Aged Care (Transitional Provisions) Principles;
(b) the care recipient must not be required to pay resident fees more than one month in advance;
(c) the care recipient must not be required to pay resident fees for any period prior to *entry to the residential care service, other than for a period in which the care recipient is, because of subsection 42‑3(3), taken to be on *leave under section 42‑2;
(d) if the care recipient dies or departs from the service—any fees paid in advance in respect of a period occurring after the care recipient dies or leaves must be refunded in accordance with the Aged Care (Transitional Provisions) Principles.
58‑2 Maximum daily amount of resident fees
(1) The maximum daily amount of resident fees payable by the care recipient is the amount worked out as follows:
Resident fee calculator
Step 1. Work out the *standard resident contribution for the care recipient using section 58‑3, 58‑3B or 58‑3C (whichever is applicable).
Step 2. Add the compensation payment reduction (if any) applicable to the care recipient on the day in question (see section 44‑20).
Step 3. Add the *daily income tested reduction (if any) applicable to the care recipient on that day (see sections 44‑21 to 44‑23).
Step 4. Subtract the amount of any hardship supplement (expressed as a daily amount) applicable to the care recipient on the day in question under section 44‑30.
Step 5. Add any other amounts agreed between the care recipient and the approved provider in accordance with the Aged Care (Transitional Provisions) Principles.
Step 6. If, on the day in question, the *place in respect of which residential care is provided to the care recipient has *extra service status, add the extra service amount in respect of the place worked out under section 58‑5.
The result is the maximum daily amount of resident fees for the care recipient.
(2) Steps 2 to 6 of the resident fee calculator in subsection (1) do not apply in relation to a day on which the care recipient is, because of subsection 42‑3(3), taken to be on *leave under section 42‑2.
58‑3 Standard resident contribution
General rule
(1) The standard resident contribution for a care recipient is the amount obtained by rounding down to the nearest cent an amount equal to 85% of the *basic age pension amount (worked out on a per day basis).
Exceptions
(2) However, the standard resident contribution for a care recipient who is:
(a) a *protected resident; or
(b) a care recipient to whom section 58‑3C applies;
is the amount referred to in subsection 58‑3B(3) or 58‑3C(3) (as the case requires).
58‑3A Meaning of pre‑September 2009 resident and post‑September 2009 resident
Pre‑September 2009 resident
(1) A person is a pre‑September 2009 resident if:
(a) the person is being provided with residential care through a residential care service; and
(b) either:
(i) the person *entered a residential care service before 20 September 2009; or
(ii) the person was on *pre‑entry leave from a residential care service immediately before 20 September 2009 and the person entered the residential care service on or after 20 September 2009 at the end of that pre‑entry leave; and
(c) the person has not had a break in residential care of more than 28 days between:
(i) the last residential care service through which residential care was provided, or taken to be provided, to the person before 20 September 2009 and the next residential care service through which residential care is provided, or taken to be provided, to the person; and
(ii) any residential care service through which residential care is provided, or taken to be provided, to the person on or after 20 September 2009 and the next residential care service through which residential care is provided, or taken to be provided, to the person.
Post‑September 2009 resident
(2) A person is a post‑September 2009 resident if:
(a) the person is being provided with residential care through a residential care service; and
(b) the person is not a *pre‑September 2009 resident.
Break in residential care
(3) For the purposes of subsection (1), the period:
(a) beginning on the day on which a person ceases to be provided with residential care through a residential care service (other than because the person is on *leave from the residential care service); and
(b) ending on the day on which the person *enters, or begins *pre‑entry leave, with the next residential care service through which residential care is provided, or taken to be provided, to the person;
is a break in residential care for the person.
Person not provided with residential care while on respite leave
(4) For the purposes of subsections (1), (2) and (3), a person is not provided, or taken to be provided, with residential care during any period during which the person is being provided with *respite care.
58‑3B Standard resident contribution—protected residents
Meaning of protected resident
(1) A care recipient is a protected resident if:
(a) the care recipient is a *pre‑September 2009 resident; and
(b) the care recipient is not a *pre‑2008 reform resident to whom section 58‑3C applies; and
(c) on 19 September 2009, the care recipient was not receiving an *income support payment.
(2) A care recipient is also a protected resident if:
(a) the care recipient is a *pre‑September 2009 resident; and
(b) the care recipient is not a *pre‑2008 reform resident to whom section 58‑3C applies; and
(c) on 19 September 2009, the care recipient was receiving an *income support payment; and
(d) the amount determined under paragraph 44‑24(2)(b), (3)(b) or (4)(b) (as the case requires), for the purposes of working out the care recipient’s *total assessable income in respect of 20 September 2009, is equal to or more than the sum of:
(i) the amount worked out by applying point 1064‑E4 of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991; and
(ii) $5,668.00.
Standard resident contribution
(3) The standard resident contribution for a care recipient who is a *protected resident is the amount obtained by rounding down to the nearest cent an amount equal to 77.5% of the *basic age pension amount (worked out on a per day basis).
58‑3C Standard resident contribution—certain pre‑2008 reform residents
Care recipients to whom this section applies
(1) This section applies to a care recipient if:
(a) the care recipient is a *pre‑2008 reform resident; and
(b) on 19 September 2009, the care recipient did not have a dependent child; and
(c) on 19 September 2009, one or more of the following requirements is met:
(i) the care recipient was not receiving an *income support payment;
(ii) for *entry to the residential care service in question, the care recipient had paid an *accommodation bond that was more than the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 10 times the *basic age pension amount at the time of entry;
(iii) the *daily income tested reduction in respect of the care recipient was an amount worked out under section 44‑23; and
(d) on 20 September 2009 and on each day since that day, the care recipient does not have a *dependent child; and
(e) on 20 September 2009 and on each day since that day, one or more of the following requirements is met:
(i) the care recipient is not receiving an *income support payment;
(ii) if the care recipient *entered the residential care service in question before 20 September 2009—the care recipient paid an *accommodation bond for the entry that was more than the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 10 times the *basic age pension amount at the time of entry;
(iii) if the care recipient *entered the residential care service in question on or after 20 September 2009—the care recipient paid an *accommodation bond that was more than the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 9 times the *basic age pension amount at the time of entry;
(iv) the *daily income tested reduction in respect of the care recipient was an amount worked out under section 44‑23.
(2) For the purposes of subparagraphs (1)(c)(ii), (1)(e)(ii) and (1)(e)(iii), if the care recipient has elected under subsection 57‑17(1) to pay an *accommodation bond by periodic payments, the amount of the accommodation bond is taken to be what would have been payable by the care recipient in accordance with Subdivision 57‑E had the care recipient paid it as a lump sum.
Standard resident contribution
(3) The standard resident contribution for a care recipient to whom this section applies is the amount obtained by rounding down to the nearest cent an amount equal to 96.5% of the *basic age pension amount (worked out on a per day basis).
58‑5 Extra service amount
The extra service amount in respect of the *place referred to in step 6 of the resident fee calculator in subsection 58‑2(1) is the sum of:
(a) the extra service fee in force for the place on the day in question (see Division 35 of the Aged Care Act 1997); and
(b) an amount equal to 25% of that extra service fee.
58‑6 Maximum daily amount of resident fees for reserving a place
If:
(a) a care recipient is absent from a residential care service on a particular day; and
(b) the care recipient is not on *leave from the residential care service on that day; and
(ba) the care recipient would have been on leave from the residential care service on that day under subsection 42‑2(3) except that the care recipient had previously been on leave under that subsection, during the current financial year, for 52 days;
the maximum fee in respect of a day that can be charged for reserving a place in the residential care service for that day is the amount:
(c) determined by the Minister by legislative instrument; or
(d) worked out in accordance with a method determined by the Minister by legislative instrument.
Division 60—What are the responsibilities relating to home care fees?
60‑1 Responsibilities relating to home care fees
The responsibilities relating to home care fees charged, for the provision to a care recipient of care and services that it is the approved provider’s responsibility under paragraph 54‑1(1)(a) of the Aged Care Act 1997 to provide, are as follows:
(a) the fee in respect of any day must not exceed the maximum daily amount under section 60‑2;
(b) the care recipient must not be required to pay home care fees more than one month in advance;
(c) the care recipient must not be required to pay home care fees for any period prior to being provided with the home care;
(d) if the care recipient dies or provision of home care ceases—any fees paid in advance in respect of a period occurring after the care recipient’s death, or the cessation of home care, must be refunded in accordance with the Aged Care (Transitional Provisions) Principles.
60‑2 Maximum daily amount of home care fees
(1) The maximum daily amount of home care fees payable by the care recipient is the amount specified in, or determined in accordance with, the Aged Care (Transitional Provisions) Principles.
(2) The Aged Care (Transitional Provisions) Principles may specify different levels of maximum daily amounts of home care fees having regard to any or all of the following:
(a) the income of a care recipient;
(b) the nature and level of the care and services to which the home care fees relate;
(c) reduced levels of home care fees for a care recipient who would suffer financial hardship if required to pay the amount of home care fees that would otherwise be payable.
Chapter 6—Administration
Division 84—Introduction
84‑1 What this Chapter is about
This Chapter deals with the reconsideration and administrative review of decisions (see Part 6.1).
Part 6.1—Reconsideration and review of decisions
Division 85—Reconsideration and review of decisions
85‑1 Reviewable decisions
Each of the following decisions is a *reviewable decision:
Reviewable decisions |
Item | Decision | Provision under which decision is made |
39AA | To extend the period within which a variation of a claim for residential care subsidy can be made | section 43‑4A |
39AB | To refuse to extend the period within which a variation of a claim for residential care subsidy can be made | section 43‑4A |
39A | To grant or refuse an application for a determination described in subsection 44‑7(1A) or 44‑8(1A) (which is relevant to a person’s status as a *concessional resident or an *assisted resident) | subsection 44‑8AA(1) |
39B | To revoke a determination described in subsection 44‑7(1A) or 44‑8(1A) | subsection 44‑8AA(6) |
39C | To determine the value of a person’s assets | subsection 44‑8AB(1) |
39D | To revoke a determination of the value of a person’s assets | subsection 44‑8AB(4) |
40 | To refuse to make a determination that a care recipient is eligible for an oxygen supplement | subsection 44‑13(2) |
41 | To refuse to make a determination that a care recipient is eligible for an enteral feeding supplement | subsection 44‑14(2) |
42 | To determine that a judgment or settlement is to be treated as having taken into account the cost of providing residential care | subsection 44‑20(5) |
43 | To determine that a part of the compensation under a settlement is to be treated as relating to the future costs of providing residential care | subsection 44‑20(6) |
44 | To refuse to make a determination that the daily income tested reduction is zero | subsection 44‑22(2) |
45 | To specify a period at the end of which a determination that the daily income tested reduction is zero ceases to be in force | subsection 44‑22(3) |
46 | To make a determination for the purposes of working out a care recipient’s total assessable income | subsection 44‑24 (1) or paragraph 44‑24(2)(b), (3)(b), (3A)(b) or (4)(b) |
48 | To refuse to make a determination that a care recipient is eligible for a hardship supplement | subsection 44‑31(1) |
49 | To specify a period or event at the end of which, or on the occurrence of which, a determination under section 44‑31 will cease to be in force | subsection 44‑31(3) |
49A | To extend the period within which a variation of a claim for home care subsidy can be made | section 47‑4A |
49B | To refuse to extend the period within which a variation of a claim for home care subsidy can be made | section 47‑4A |
51 | To refuse to make a determination that paying an accommodation bond would cause financial hardship | paragraph 57‑14(1)(a) |
51A | To refuse to make a determination that paying an accommodation bond of more than a specified maximum amount would cause financial hardship, or to specify a particular maximum amount under such a determination | paragraph 57‑14(1)(b) |
52 | To specify a period or event at the end of which, or on the occurrence of which, a determination under subsection 57‑14(1) ceases to be in force | subsection 57‑14(3) |
53 | To revoke a determination that paying an accommodation bond would cause financial hardship | subsection 57‑15(1) |
53A | To refuse to make a determination that paying an accommodation charge would cause financial hardship | paragraph 57A‑9(1)(a) |
53AA | To refuse to make a determination that paying an accommodation charge of more than a specified maximum daily amount would cause financial hardship, or to specify a particular maximum daily amount under such a determination | paragraph 57A‑9(1)(b) |
53B | To specify a period or event at the end of which, or on the occurrence of which, a determination under subsection 57A‑9(1) ceases to be in force | subsection 57A‑9(3) |
53C | To revoke a determination that paying an accommodation charge would cause financial hardship | subsection 57A‑10(1) |
54 | A decision under the Aged Care (Transitional Provisions) Principles made under section 96‑1 that is specified in the Principles to be a decision reviewable under this section | the provision specified in the Principles as the provision under which the decision is made |
85‑2 Deadlines for making reviewable decisions
If:
(a) this Act provides for a person to apply to the Secretary to make a *reviewable decision; and
(b) a period is specified under this Act for giving notice of the decision to the applicant; and
(c) the Secretary has not notified the applicant of the Secretary’s decision within that period;
the Secretary is taken, for the purposes of this Act, to have made a decision to reject the application.
85‑3 Secretary must give reasons for reviewable decisions
(1) If this Act requires the Secretary to notify a person of the making of a *reviewable decision, the notice must include reasons for the decision.
(2) Subsection (1) does not affect an obligation, imposed upon the Secretary by any other law, to give reasons for a decision.
85‑4 Secretary may reconsider reviewable decisions
(1) The Secretary may reconsider a *reviewable decision if the Secretary is satisfied that there is sufficient reason to reconsider the decision.
(3) The Secretary may reconsider a decision even if:
(a) an application for reconsideration of the decision has been made under section 85‑5; or
(b) if the decision has been confirmed, varied or set aside under section 85‑5—an application has been made under section 85‑8 for review of the decision.
(4) After reconsidering the decision, the Secretary must:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(5) The Secretary’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the decision on review; or
(b) if a day is not specified—on the day on which the decision on review was made.
(6) The Secretary must give written notice of the decision on review to the person to whom that decision relates.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.
85‑5 Reconsideration of reviewable decisions
(1) A person whose interests are affected by a *reviewable decision may request the Secretary to reconsider the decision.
(3) The person’s request must be made by written notice given to the Secretary:
(a) within 28 days, or such longer period as the Secretary allows, after the day on which the person first received notice of the decision; or
(b) if the decision is a decision under section 44‑24 to make a determination under subsection 44‑24(1) or paragraph 44‑24(2)(b), (3)(b), (3A)(b) or (4)(b)—within 90 days, or such longer period as the Secretary allows, after the day on which the person first received notice of the decision.
(4) The notice must set out the reasons for making the request.
(5) After receiving the request, the Secretary must reconsider the decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(6) The Secretary’s decision (the decision on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the decision on review; or
(b) if a day is not specified—on the day on which the decision on review was made.
(7) The Secretary is taken, for the purposes of this Part, to have confirmed the decision if the Secretary does not give notice of a decision to the person within 90 days after receiving the person’s request.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.
(8) If a committee has been established under section 96‑3 and a function of the committee is to provide advice to the Secretary in relation to the Secretary’s reconsideration of a particular kind of *reviewable decision, the Secretary:
(a) may refer a reviewable decision of that kind to the committee for advice; and
(b) must, in reconsidering the decision, take account of any advice of the committee in relation to the decision.
85‑8 AAT review of reviewable decisions
An application may be made to the Administrative Appeals Tribunal for the review of a *reviewable decision that has been confirmed, varied or set aside under section 85‑4 or 85‑5.
Chapter 7—Miscellaneous
Division 96—Miscellaneous
96‑1 Aged Care (Transitional Provisions) Principles
The Minister may, by legislative instrument, make Aged Care (Transitional Provisions) Principles providing for matters:
(a) required or permitted by this Act to be provided; or
(b) necessary or convenient to be provided in order to carry out or give effect to this Act.
96‑2 Delegation of Secretary’s powers and functions
Employees etc. of Agencies and Commonwealth authorities
(1) The Secretary may, in writing, delegate all or any of the powers and functions of the Secretary under this Act, the regulations or any Principles made under section 96‑1 to a person engaged (whether as an employee or otherwise) by:
(a) an Agency (within the meaning of the Public Service Act 1999); or
(b) an authority of the Commonwealth.
Chief Executive Centrelink
(2) The Secretary may, in writing, delegate to the *Chief Executive Centrelink:
(a) the Secretary’s powers and functions under section 44‑8AA or 44‑8AB; or
(b) the Secretary’s powers and functions under section 44‑24 relating to making a determination for the purposes of working out a care recipient’s *total assessable income; or
(c) the Secretary’s powers and functions under section 85‑4 or 85‑5 relating to reconsidering the following decisions:
(i) a decision under section 44‑8AA or 44‑8AB;
(ii) a determination under section 44‑24 for the purposes of working out a care recipient’s total assessable income.
(3) If, under subsection (2), the Secretary delegates a power or function to the *Chief Executive Centrelink, the Chief Executive Centrelink may, in writing, sub‑delegate the power or function to a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997).
Chief Executive Medicare
(4) The Secretary may, in writing, delegate to the *Chief Executive Medicare:
(a) the Secretary’s powers and functions under section 44‑8AA or 44‑8AB; or
(b) the Secretary’s powers and functions under section 44‑24 relating to making a determination for the purposes of working out a care recipient’s *total assessable income; or
(c) the Secretary’s powers and functions under section 85‑4 or 85‑5 relating to reconsidering the following decisions:
(i) a decision under section 44‑8AA or 44‑8AB;
(ii) a determination under section 44‑24 for the purposes of working out a care recipient’s total assessable income.
(5) If, under subsection (4), the Secretary delegates a power or function to the *Chief Executive Medicare, the Chief Executive Medicare may, in writing, sub‑delegate the power or function to a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973).
Veterans’ Affairs Secretary
(6) The Secretary may, in writing, delegate to the Secretary of the Department administered by the Minister who administers the Veterans’ Entitlements Act 1986:
(a) the Secretary’s powers and functions under section 44‑8AA or 44‑8AB; or
(b) the Secretary’s powers and functions under section 85‑4 or 85‑5 relating to reconsidering a decision under section 44‑8AA or 44‑8AB.
(7) If, under subsection (6), the Secretary delegates a power or function to the Secretary of the Department administered by the Minister who administers the Veterans’ Entitlements Act 1986, the Secretary of that Department may, in writing, sub‑delegate the power or function to an APS employee in that Department.
Repatriation Commission
(8) The Secretary may, in writing, delegate to the *Repatriation Commission:
(a) the Secretary’s powers and functions under section 44‑24 relating to making a determination for the purposes of working out a care recipient’s *total assessable income; or
(b) the Secretary’s powers and functions under section 85‑4 or 85‑5 relating to reconsidering a determination under section 44‑24 for the purposes of working out a care recipient’s total assessable income.
(9) If, under subsection (8), the Secretary delegates a power or function to the *Repatriation Commission, the Repatriation Commission may, in writing, sub‑delegate the power or function to any person to whom it may delegate powers under the Veterans’ Entitlements Act 1986 under section 213 of that Act.
Social Services Secretary
(10) The Secretary may, in writing, delegate to the Secretary of the Department administered by the Minister who administers the Data‑matching Program (Assistance and Tax) Act 1990:
(a) the Secretary’s powers and functions under section 44‑24 relating to making a determination for the purposes of working out a care recipient’s *total assessable income; or
(b) the Secretary’s powers and functions under section 85‑4 or 85‑5 relating to reconsidering a determination under section 44‑24 for the purposes of working out a care recipient’s total assessable income.
(11) If, under subsection (10), the Secretary delegates a power or function to the Secretary of the Department administered by the Minister who administers the Data‑matching Program (Assistance and Tax) Act 1990, the Secretary of that Department may, in writing, sub‑delegate the power or function to an APS employee in that Department.
SES employee etc. in the Department
(11A) The Secretary may, in writing, delegate the powers conferred on the Secretary under the determination made under subsection 44‑3(2) to an SES employee, or an acting SES employee, in the Department.
Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.
Sub‑delegation
(12) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to a sub‑delegation in a corresponding way to the way in which they apply to a delegation.
96‑4 Care provided on behalf of an approved provider
A reference in this Act to an approved provider providing care includes a reference to the provision of that care by another person, on the approved provider’s behalf, under a contract or arrangement entered into between the approved provider and the other person.
Note: The approved provider will still be subject to the responsibilities under Chapter 4 of this Act and Chapter 4 of the Aged Care Act 1997 in respect of care provided by the other person.
96‑5 Care recipients etc. lacking capacity to enter agreements
If:
(a) this Act provides for an approved provider and a care recipient, or a person proposing to enter an *aged care service, to enter into an agreement; and
(b) the care recipient or person is, because of any physical incapacity or mental impairment, unable to enter into the agreement;
another person (other than an approved provider) representing the care recipient or person may enter into the agreement on behalf of the care recipient or person.
Note: The agreements provided for in this Act are *accommodation bond agreements and accommodation charge agreements.
96‑6 Applications etc. on behalf of care recipients
If this Act provides for a care recipient to make an application or give information, the application may be made or the information given by a person authorised to act on the care recipient’s behalf.
96‑7 Withdrawal of applications
(1) A person who has made an application to the Secretary under this Act may withdraw the application at any time before the Secretary makes a decision relating to the application.
(2) If:
(a) this Act provides that an application under this Act is taken to be withdrawn if the application does not give further information, within a particular period, as requested by the Secretary; and
(b) the Secretary, at the applicant’s request, extends the period for giving the further information;
the application is not taken to be withdrawn unless the applicant does not give the further information within the period as extended.
96‑13 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
