Federal Register of Legislation - Australian Government

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Principles as made
This instrument amends the Subsidy Principles 2014 to confirm the current policy for the treatment of a refundable accommodation deposit (RAD) for means testing purposes where the RAD is funded (in part or in full) by a loan and to include a clause that outlines arrangements for leave to be taken from the Innovative Pool Programme.
Administered by: Health
Registered 14 Oct 2016
Tabling HistoryDate
Tabled HR19-Oct-2016
Tabled Senate07-Nov-2016
Date of repeal 16 Oct 2016
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Health and Aged Care

 

Aged Care Act 1997

 

Subsidy Amendment (Flexible Care Subsidy and Other Measures) Principles 2016

 

Authority

The authority for the Subsidy Amendment (Flexible Care Subsidy and Other Measures) Principles 2016 (the Amending Principles) is section 96-1 of the Aged Care Act 1997 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901.

 

Purpose

The purpose of the Amending Principles is to amend the Subsidy Principles 2014 to:

1.      preclude subsection 1121(1) of the Social Security Act 1991 from affecting the value of a care recipient’s assets (Item 1 of the Amending Principles); and

2.      include a clause which sets out the circumstances in which flexible care is taken to be provided to certain care recipients with disabilities and subsidy paid when the care recipient is on leave (Items 2-5 of the Amending Principles).

 

Background

The Aged Care Act 1997 (the Act) provides for the regulation and funding of aged care services. Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy and supplement payments in respect of the care they provide to approved care recipients.

 

Section 96-1 of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act.

 

Among the Principles made under section 96-1 are the Subsidy Principles 2014 (the Principles).

 

The amendments related to the first purpose confirm the position that the full value of a refundable accommodation deposit is included as an asset for aged care means testing purposes and is not reduced by any charge or encumbrance over the refundable accommodation deposit.

 

The amendments related to the second purpose deal with the fact that the circumstances in which flexible care was taken to be provided to certain care recipients with disabilities and subsidy paid when the care recipient was on leave were previously set out in the Act Determination under subsection 14-6(1) (ACA Ch.2 No 1/2006), and this Determination has been repealed.  However as this was the only mechanism by which an approved provider of flexible care to care recipients with disabilities was paid subsidy for a care recipient whilst the care recipient was on leave, an appropriate arrangement needed to be maintained.  As payment of subsidy is at the core of the issue it was considered appropriate to amend the Subsidy Principles.

 

Under the amendments, a care recipient is able to take up to 52 days leave per financial year from the premises where their supported accommodation is provided, and hospital leave for up to 30 continuous days per instance.  In accordance with subparagraph 50-1(1)(b)(iii) of the Act the approved provider will be taken to be providing flexible care to the care recipient on each day during which the care recipient is on leave and thereby continue to be paid subsidy during a period of leave.

 

The Principles are a legislative instrument for the purposes of the Legislation Act 2003.

 

Commencement

The Amending Principles commence on the day after it is registered.

 

Reliance on subsection 33(3) of the Acts Interpretation Act 1901

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

Consultation

Consultation has not been undertaken on the amendments related to the first purpose, as the Amending Principles clarify and confirm the existing and understood position that the full value of a refundable accommodation deposit is included in the care recipient’s assets.

 

Consultation has not been undertaken on the amendments related to the second purpose, as it is considered administrative in nature.

 

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) has advised that no Regulation Impact Statement is required for the amendments related to the first purpose (OBPR ID 20775).

 

The Office of Best Practice Regulation (OBPR) has advised that no Regulation Impact Statement is required for the amendments related to the second purpose (OBPR ID 20636).

 

 


ATTACHMENT

 

Details of the Subsidy Amendment (Flexible Care Subsidy and Other Measures) Principles 2016

 

Section 1

This section provides how the proposed instrument is to be cited, that is, as Subsidy Amendment (Flexible Care Subsidy and Other Measures) Principles 2016.

 

Section 2

This section sets out the commencement of this instrument.  The commencement date is the day after the instrument is registered.

 

Section 3

This section provides the authority for making this instrument. This instrument is made under section 96-1 of the Aged Care Act 1997 (the Act).

 

Under subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

Accordingly, the power in section 96-1 of the Act is relied on, in conjunction with subsection 33(3) of the Acts Interpretation Act, to vary the Determination.

 

Section 4

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

Schedule 1— Amendments: 

 

Subsidy Principles 2014

 

Item 1 – After subsection 47(2)

This item inserts a new subsection (2A) after subsection 47(2) of the Subsidy Principles.  This subsection clarifies that subsection 1121(1) of the Social Security Act does not apply for the purposes of working out the value of the person’s assets to a charge or encumbrance over the amount of any refundable deposit balance in respect of a refundable deposit paid by the person.

 

Item 2 – Section 102 (heading)

This item replaces the heading of section 102 of the Subsidy Principles to allow for a new section 102A to be created under Item 3 of this instrument.

 

Item 3 – At the end of Division 2 of Part 1 of Chapter 4

This item creates a new section 102A which sets out circumstances in which flexible care is taken to have been provided to certain care recipients with disabilities.

 

Subsection (1) sets out the care recipients in relation to whom this section applies.  This section applies to a care recipient with a disability who is being provided with flexible care by an approved provider through an innovative care service and the flexible care is provided in a disability supported accommodation that is funded by a State or Territory, and the care recipient was receiving aged care services under the Aged Care Innovative Pool Disability Aged Care Programme on 25 May 2006.

 

Subsection (2) sets out circumstances when flexible care is taken to have been provided to a care recipient meeting the criteria in subsection (1).  The subsection states that a provider is taken to have provided flexible care to the care recipient on each day during which the care recipient is on leave under this section from the premises where the accommodation is provided.

 

Subsection (3) operates to allow an approved provider to be taken to have provided flexible care to the care recipient where the care recipient attends a hospital for the purposes of receiving hospital treatment for a period of up to 30 continuous days.  A person may take any number of periods of leave to attend hospital for hospital treatment; however, only the first 30 days of any period longer than 30 continuous days will be considered leave under this section.  In other words, flexible care will not be taken to have been provided for any days after the first 30 days of a period where the care recipient attends hospital for hospital treatment.

 

Subsection (4) sets out another scenario in which a care recipient is on leave under this section.  If the care recipient is absent from the premises other than for the purpose of attending hospital to receive hospital treatment, the care recipient is on leave under this section from the premises on each day of such absence for up to a maximum of 52 days each financial year.  This means that for the first 52 days of absence from the premises where the care recipient is not attending hospital for hospital treatment, the approved provider is taken to have provided flexible care to the care recipient on each of those days.  If the care recipient is absent for more than 52 days in any financial year, the care recipient is not on leave for any days beyond the 52nd day of leave, and accordingly, the approved provider is not taken to have provided flexible care on those days.

 

Subsection (5) sets out the method to calculating the days on which a person is on leave under this section.  The subsection provides that the day on which leave commences is counted, while the day on which the provision of flexible care to the care recipient recommences is not counted. 

 

The first note under this subsection outlines that absences that do not involve an overnight absence are not counted as leave as flexible care is considered to have recommenced to that person on that day due to paragraph (5)(b) and that day is not counted.

 

The second note under subsection (5) clarifies that if a care recipient is not taken to be provided with flexible care because the maximum number of days under subsections (3) and (4) have been exceeded, subsidy will not be payable in respect of those days.  This is because the approved provider has not met the eligibility criteria for receiving flexible care subsidy set out at paragraph 50-1(1)(b) of the Aged Care Act 1997.

 

Subsection (6) clarifies that the day on which the care recipient permanently leaves the premises, the care recipient is not on leave under this section, nor is the approved provider taken to provide flexible care to the care recipient on that day.

 

Item 4 – Section 110 (heading)

This item replaces the heading of section 110 of the Subsidy Principles to allow for a new section 110A to be created under Item 5 of this instrument.

 

Item 5 – At the end of Division 3 of Part 2 of Chapter 4

This item creates a new section 110A which outlines when flexible care subsidy is payable where two approved providers are eligible for flexible care subsidy in relation to a care recipient with a disability is on leave from the premises under section 102A of the Subsidy Principles.

 

Subsection (1) outlines when this section applies.  The section applies if the approved provider (the first approved provider) is taken to provide flexible care to a care recipient who is on leave from the premises under section 102A of the Subsidy Principles, that the first approved provider and another provider are both eligible for flexible care subsidy in respect of flexible care provided to the care recipient on that day, and the first approved provider started providing flexible care to the care recipient before the other approved provider.  In such a case, subsection (2) provides that flexible care subsidy is not payable to the other provider in respect of the flexible care provided to the care recipient during that day.

 

 

 


 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Humans Rights (Parliamentary Scrutiny) Act 2011

 

Subsidy Amendment (Flexible Care Subsidy and Other Measures) Principles 2016

 

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of Legislative Instrument

The legislative instrument enforces the policy position that the full value of a refundable accommodation deposit is included in the calculation of the value of a care recipient’s assets.  It does this by exempting from the calculation the amount of any loan obtained by the care recipient to fund the payment of the refundable accommodation deposit.  The value of such a loan was previously included in the calculation by virtue of subsection 1121(1) of the Social Security Act 1991.

 

The legislative instrument also provides for the payment of flexible care subsidy to approved providers of flexible care during periods when the care recipient is on leave.

 

The instrument amends the Subsidy Principles to;

·         exclude subsection 1121(1) of the Social Security Act from the calculation of the value of a care recipient’s assets; and

·         include a clause which sets out the circumstances in which flexible care is taken to be provided to certain care recipients with disabilities and subsidy paid when the care recipient is on leave.

 

Human Rights Implications

This legislative instrument is compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health as contained in article 11(1) and article 12(1) of the International Covenant on Economic, Social and Cultural Rights, and article 25 and article 28 of the Convention on the Rights of Persons with Disabilities.

 

This legislative instrument concerns the calculation of the value of the assets of a person with a condition of frailty or disability who requires assistance to achieve and maintain the highest attainable standard of physical and mental health for the purposes of determining the person’s aged care fees and payments.

 

The instrument also concerns the payment of flexible care subsidy while a person with a condition of frailty or disability who requires assistance to achieve and maintain the highest attainable standard of physical and mental health is on leave.

 

Conclusion

This legislative instrument is compatible with human rights as it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health.

The Minister for Health and Aged Care, the Hon Sussan Ley MP