Aged Care Amendment (Omnibus) Act 1999 No. 132, 1999 An Act to amend the Aged Care Act 1997 and other Acts, and for related purposes
Contents 1............ Short title............................................................................................ 1 2............ Commencement.................................................................................. 1 3............ Schedule(s).......................................................................................... 3 Schedule 1—Aged Care Act 1997 3 Schedule 2—Social Security Act 1991 24 Schedule 3—Veterans’ Entitlements Act 1986 32 Schedule 4—Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997 41 Schedule 5—Aged Care (Consequential Provisions) Act 1997 42
Aged Care Amendment (Omnibus) Act 1999 No. 132, 1999
An Act to amend the Aged Care Act 1997 and other Acts, and for related purposes Assented to 13 October 1999 The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Aged Care Amendment (Omnibus) Act 1999.
2 Commencement
(1) Subject to this section, this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within 6 months after the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. (3) Schedule 4 is taken to have commenced immediately after the commencement of Schedule 2 to the Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997. (4) Items 3 and 4 of Schedule 5 are taken to have commenced immediately after the commencement of Schedule 1 to the Aged Care (Consequential Provisions) Act 1997.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Aged Care Act 1997
1 Section 5-1 After “bonds”, insert “and *accommodation charges”. 2 Subsection 10-3(2) Repeal the subsection. 3 Paragraph 10-3(3)(c) Omit “will take effect on the day”, substitute “may take effect as early as 7 days”. 4 Subsection 10-3(7) Repeal the subsection, substitute: (7) The Secretary must give effect to the revocation of the approval by: (a) giving the approved provider one or more written notices (which the Secretary may give at different times) limiting, or further limiting, the approval to: (i) one or more specified types of aged care; or (ii) one or more specified *aged care services; or (iii) one or more specified classes of care recipient; or (iv) any combination of the above; or (b) giving the approved provider a written notice revoking the approval altogether (whether or not the Secretary has already imposed any limitations under paragraph (a)). A notice under this subsection may be given at the same time as the subsection (5) notice or at a later time. (7A) A subsection (7) notice takes effect at the time specified in the notice, which must be at least 7 days after the day on which the notice is given. (7B) The Secretary must not give a subsection (7) notice unless the Secretary is satisfied that appropriate arrangements have been made to ensure that the care recipients to whom the approved provider will no longer be approved to provide *aged care after the notice takes effect will continue to be provided with care after that time. (7C) Subject to subsection (7B), if the Secretary imposes one or more limitations under paragraph (7)(a), the Secretary must eventually revoke the approval altogether under paragraph (7)(b). 5 Section 37-1 After “bonds”, insert “or *accommodation charges”. 6 Paragraph 38-6(2)(d) After “Division 57,”, insert “or those relating to *accommodation charges set out in Division 57A,”. 7 Subsection 42-2(2) Omit “all the days”, substitute “each day”. 8 Subsection 42-2(2) After “treatment”, insert “, so long as the day is on or after the day on which the care recipient *enters the residential care service”. 9 Paragraph 42-2(3)(b) Repeal the paragraph, substitute: (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 10 After paragraph 42-3(3)(a) Insert: (aa) the day on which he or she accepted a place in the residential care service; or 11 After paragraph 44-5(a) Insert: (aa) the charge exempt resident supplement (see section 44-8A); 12 Section 44-5 (note) Omit “The supplements” (first occurring), substitute “Most of the supplements”. 13 Paragraph 44-6(5)(a) After “paid by”, insert “, or *accommodation charge charged to,”. 14 Subparagraph 44-7(1)(b)(ii) Repeal the subparagraph, substitute: (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 15 Subsection 44-7(1) (note) Omit “an accommodation bond—see section 57-12”, substitute “an *accommodation bond or an *accommodation charge—see sections 57-12 and 57A-6”. 16 Subsection 44-7(3) After “section 57-14”, insert “or section 57A-9”. 17 Subparagraph 44-8(1)(b)(ii) Repeal the subparagraph, substitute: (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 18 Subsection 44-8(1) (note) Omit “an accommodation bond”, substitute “an *accommodation bond or an *accommodation charge”. 19 After section 44-8 Insert:
44-8A The charge exempt resident supplement
(1) The charge exempt resident supplement for the care recipient in respect of the *payment period is the sum of all the charge exempt 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 charge exempt resident supplement. (2) The care recipient is eligible for a charge exempt resident supplement on a particular day (whether before or after this section commences) if, on that day: (a) the care recipient is a *charge exempt resident; and (b) the residential care service is *certified; and (c) the residential care provided to the care recipient is not provided on an extra service basis for the purposes of Division 36. (3) The charge exempt resident supplement for a particular day is: (a) $12.17; or (b) such other amount as the Minister determines in writing. (4) The Minister may determine different amounts (including nil amounts) under subsection (3) based on any one or more of the following: (a) the maximum rate of concessional resident supplement; (b) if the care recipient is an *assisted resident—whether a reduced amount of concessional resident supplement is payable in respect of the care recipient under subsection 44-6(6); (c) any other matters specified in the Residential Care Subsidy Principles. (5) In the circumstances specified in the Residential Care Subsidy Principles, the Secretary may determine that an amount of charge exempt resident supplement that would otherwise be payable for a particular care recipient is not payable to the provider concerned. (6) In that case, the Secretary must: (a) use his or her best endeavours to find the care recipient or, if the care recipient is deceased, the care recipient’s legal representatives or such other person as is specified in the Residential Care Subsidy Principles; and (b) if the appropriate person can be found under paragraph (a)—pay the amount directly to the appropriate person or to the care recipient’s estate, as the case requires. If no appropriate person can be found under paragraph (a), the Secretary need not take any further action in relation to the amount.
44-8B Meaning of charge exempt resident
A person is a charge exempt resident if: (a) at any time on 30 September 1997, the person occupied an approved nursing home bed in a nursing home approved under section 40AA of the National Health Act 1953 (as then in force); and (b) the person is receiving residential care, having *entered an *aged care service at any time after 30 September 1997 (whether before or after this section commences); and (c) apart from this section, the person would have been eligible to pay *accommodation charge for the entry. Note 1: A *concessional resident cannot be a charge exempt resident, because concessional residents cannot be required to pay an accommodation charge and therefore do not meet the test in paragraph (c). Note 2: A charge exempt resident cannot be required to pay an accommodation charge: see paragraph 57A-2(1)(b). 20 Paragraph 44-10(2)(b) Repeal the paragraph, substitute: (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 of the care recipient’s entry to the residential care service; 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 of the care recipient’s entry to the residential care service. 21 Subsection 44-11(1) (paragraph (b) of the definition of close relation) Omit “brother or child”, substitute “brother, child or grandchild”. 22 Paragraph 44-11(2)(a) Repeal the paragraph, substitute: (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 Residential Care Subsidy Principles; and 23 Subsection 44-21(3) (paragraph (c) of step 4 of the Income Tested Reduction Calculator) After “section 44-2”, insert “, less the amount of any charge exempt resident supplement under section 44-8A”. 24 Paragraph 56-1(a) After “bond”, insert “, or the requirements of Division 57A in relation to any *accommodation charge,”. 25 After paragraph 56-1(k) Insert: (ka) to take reasonable steps to find any care recipients who paid accommodation charge while they were *charge exempt residents and who have since ceased to be provided with residential care by the provider; (kb) if a care recipient covered by paragraph (ka) is deceased—to take reasonable steps to identify the legal representatives of the care recipient’s estate or the person specified in the Residential Care Subsidy Principles; (kc) to refund any fees or charges, as and when directed by the Secretary, to care recipients who paid accommodation charge in respect of a period during which they were charge exempt residents, or, if such a care recipient is deceased, to the care recipient’s estate or to the person specified in the Residential Care Subsidy Principles; 26 Paragraph 56-3(a) After “bond”, insert “or *accommodation charge”. 27 After paragraph 56-3(i) Insert: (ia) to take reasonable steps to find any care recipients who paid accommodation charge while they were *charge exempt residents and who have since ceased to be provided with flexible care by the provider; (ib) if a care recipient covered by paragraph (ka) is deceased—to take reasonable steps to identify the legal representatives of the care recipient’s estate or the person specified in the Residential Care Subsidy Principles; (ic) to refund any fees or charges, as and when directed by the Secretary, to care recipients who paid accommodation charge in respect of a period during which they were charge exempt residents, or, if such a care recipient is deceased, to the care recipient’s estate or to the person specified in the Residential Care Subsidy Principles; 28 Before paragraph 57-2(a) Insert: (aa) at the time of entry, at least one of the following must be true: (i) the person is not eligible to pay an *accommodation charge under subsection 57A-2(1); (ii) the service, of the *distinct part of the service through which the care recipient is to receive care, has *extra service status; (iii) section 57-23 allows the approved provider to charge an accommodation bond for the entry; Note: A *concessional resident cannot be required to pay an accommodation bond—see section 57-12. (ab) the person is not a *charge exempt resident; 29 At the end of paragraph 57-2(e) Add: 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. 30 Paragraph 57-2(g) Omit “or 57-13”, substitute “, 57-13 or 57-23”. 31 At the end of section 57-2 Add: (2) If, at the end of the 7 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. 32 Subsection 57-16(2) (note 2) Omit “Paragraph 57-2(e) requires”, substitute “Paragraph 57-2(1)(e) in most cases requires”. 33 At the end of Division 57 Add:
Subdivision 57-H—Charging an accommodation bond instead of an accommodation charge
57-23 Charging an accommodation bond instead of an accommodation charge
(1) This section applies if: (a) a care recipient has entered into an *accommodation bond agreement (the original agreement) for *entry to a residential care service (the original service); and (b) the care recipient ceases being provided with residential care through the original service (other than because the care recipient is on *leave); and (c) within 28 days after the cessation, the care recipient enters another residential care service (the later service) for which entry an *accommodation charge would become payable (disregarding subparagraph 57A-2(1)(a)(iv)); and (d) the approved provider of the later service and the care recipient agreed, before the care recipient entered the later service, that an accommodation bond, instead of an accommodation charge, can be charged for the entry of the person to the later service. (2) If this section applies: (a) the approved provider of the later service can charge an *accommodation bond for the *entry of the person to the later service; and (b) if the care recipient has paid the full amount of the accommodation bond relating to the original agreement—the maximum amount of the new accommodation bond is the amount of the accommodation bond balance that was refunded or is payable to the care recipient under section 57-21 in respect of the accommodation bond relating to the original agreement; and (c) in any other case—the maximum amount of the new accommodation bond is the amount of the accommodation bond that was payable under the original agreement, less any retention amounts that would have been permitted to be deducted under section 57-20 in respect of the original service if the accommodation bond had been paid as a lump sum. 34 After Division 57 Insert:
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) at the time of entry, all of the following must be true: (i) the person requires a *high level of residential care; (ii) the person’s approval as a care recipient of residential care is not limited under section 22-2 to a *low level of residential care; (iii) the service, of the *distinct part of the service through which the care recipient is to receive care, does not have *extra service status; (iv) section 57-23 does not allow the approved provider to charge an *accommodation bond for the entry; Note: A *concessional resident cannot be required to pay an accommodation charge—see section 57A-6. (b) the person is not a *charge exempt resident; (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 User Rights Principles; (e) the approved provider must have entered into an *accommodation charge agreement (see section 57A-3) with the care recipient before, or within 7 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 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 imposes a 5 year limit) or 57A-8 (which deals with *certification of the residential care service); (i) the accommodation charge must not be charged if a determination is in force under section 57A-9 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; (l) the approved provider must use any payment of the accommodation charge it receives in the following ways: (i) to meet capital works costs relating to residential care; (ii) to retire debt relating to residential care; (iii) where no capital expenditure is reasonably necessary to comply with matters specified in the Certification Principles for the purposes of subsection 38-3(3) and meeting accreditation requirements—to improve the quality and range of *aged care services; (m) the approved provider must not charge an accommodation charge if prohibited under Part 4.4 from doing so (see paragraph 66-1(j)); (n) any other rules specified in the User Rights Principles. (2) If, at the end of the 7 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 User Rights 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 User Rights 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 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), 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 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 1,825; (c) such amount as is specified in, or worked out in accordance with, the User Rights Principles. (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 44-7 or 44-8.
57A-7 Maximum period of daily accrual of accommodation charge
(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. (2) An *accommodation charge for *entry to a residential care service must not accrue for any day after 5 years after the later of the following: (a) the time when the care recipient entered the residential care service; (b) if, at the time of the entry, the service was not *certified, and the approved provider and the care recipient agreed that a charge became, or was to become, payable when the service was certified—the time when the service was certified. (3) In working out that period of 5 years, include any day on which the care recipient was on *leave from the service, but do not include any other day on which the care recipient did not receive residential care through the service. (4) Also, if the care recipient has previously become liable to pay an *accommodation charge for *entry to a residential care service, the period of 5 years is reduced by the number of days for which that charge accrued.
57A-8 Accommodation charge not to accrue while residential service not certified
An *accommodation charge for *entry to a residential care service must not accrue for any day during which the service is not *certified.
57A-9 Accommodation charge not payable in cases of financial hardship
(1) The Secretary may determine, in accordance with the User Rights Principles, that a person must not be charged an *accommodation charge because payment of an accommodation charge 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 User Rights 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 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 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 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.
57A-10 Revocation of determinations of financial hardship
(1) The Secretary may, in accordance with the User Rights 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 User Rights Principles. 35 Subsection 59-1(3) (at the end of the note) Add “or *accommodation charge agreement (see section 57A-4)”. 36 Subparagraph 62-1(b)(ii) After “under section 57-20”, insert “or to the person’s remaining liability (if any) to pay an *accommodation charge”. 37 Paragraph 63-2(2)(d) Omit “accommodation bonds”, substitute “*accommodation bonds and *accommodation charges”. 38 Paragraph 66-1(j) After “of *accommodation bonds”, insert “, or the accrual of *accommodation charges,”. 39 Section 85-1 (after table item 53) Insert:
53A
To refuse to make a determination that paying an accommodation charge would cause financial hardship
subsection 57A-9(1)
53B
To specify, in a determination that paying an accommodation charge would cause financial hardship, a period or event at the end of which or, on the occurrence of which, the determination will cease 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)
40 At the end of paragraph 86-9(1)(e) Add “and *accommodation charges”. 41 At the end of paragraph 88-2(2)(h) Add “or *accommodation charges”. 42 Paragraph 96-5(b) Omit “physical or mental incapacity”, substitute “physical incapacity or mental impairment”. 43 Section 96-5 (note) After “bond agreements,”, insert “*accommodation charge agreements,”. 44 Subsection 96-10(1) After “Chapter 3”, insert “, and amounts payable under subsection 44-8A(6),”. 45 Clause 1 of Schedule 1 (definition of accommodation bond) After “money”, insert “that does not accrue daily and is”. 46 Clause 1 of Schedule 1 Insert: accommodation charge, in relation to a person, means an amount of money that accrues daily and is paid or payable to an approved provider by the person for the person’s *entry to a residential care service or flexible care service through which care is, or is to be, provided by the approved provider. 47 Clause 1 of Schedule 1 Insert: accommodation charge agreement has the meaning given by section 57A-3. 48 Clause 1 of Schedule 1 Insert: charge exempt resident has the meaning given by section 44-8B. 49 Clause 1 of Schedule 1 Insert: low level of residential care means a level of residential care that is not a *high level of residential care.
Schedule 2—Social Security Act 1991
1 Section 3 (index) Insert the following entries in their appropriate alphabetical positions, determined on a letter-by-letter basis:
accommodation charge
11(1)
charge exempt resident
11(1)
2 Subsection 8(1) (note 1 to the definition of income) Omit “and sections 1095-1099D (income from income streams)”, substitute “, sections 1095 to 1099D (income from income streams), section 1099F (exempt bond amount does not count as income) and section 1099K (refunded amount does not count as income)”. 3 At the end of subsection 8(8) Add: ; (zn) while a person is accruing a liability to pay an accommodation charge—any rent from the person’s principal home that the person, or the person’s partner, earns, derives or receives from another person. Note 1: For rent, see subsection 13(2). Note 2: Under subsections 11(6A) and (7), the principal home of a person in a care situation may be a place other than the place where the person receives care. 4 Subsection 11(1) Insert: accommodation charge has the same meaning as in the Aged Care Act 1997. 5 Subsection 11(1) Insert: charge exempt resident has the same meaning as in the Aged Care Act 1997. 6 Subsection 11(1) (definition of principal home) Omit “subsections (5), (6) and (7)”, substitute “subsections (5) to (7)”. 7 After subsection 11(6) Insert: (6A) A residence of a person is taken to be the person’s principal home during: (a) if the Secretary is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation—any period during which: (i) the person is accruing a liability to pay an accommodation charge (or would be accruing such a liability, assuming that no sanctions under Part 4.4 of the Aged Care Act 1997 were currently being imposed on the provider of the care concerned); and (ii) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and Note 1: For rent, see subsection 13(2). Note 2: A person can be liable to pay an accommodation charge only if certain conditions are met: see Division 57A of the Aged Care Act 1997. (b) any period during which the residence is, because of paragraph (a), the principal home of the person’s partner. Note: This subsection is not meant to imply that a person may have more than one principal home at the same time. 8 Subsection 13(1) (note to the definition of ineligible homeowner) Omit “subsections 11(5), (6) and (7)”, substitute “subsections 11(5) to (7)”. 9 Subparagraph 13(2)(a)(iii) Omit “subsection 11(7)”, substitute “subsection 11(6A) or (7)”. 10 Subsection 13(2) (note) Omit “subsections 11(5), (6) and (7)”, substitute “subsections 11(5) to (7)”. 11 Subsection 13(3A) (note) Omit “subsection 11(7)”, substitute “subsection 11(6A) or (7)”. 12 Subsection 13(3B) (note) Omit “subsection 11(7)”, substitute “subsection 11(6A) or (7)”. 13 After Division 1C of Part 3.10 Insert:
Division 1D—Aged care accommodation bonds: certain transactions before 6 November 1997
1099E Scope of Division
(1) This Division applies to a person if: (a) at any time from the beginning of 1 October 1997 until the end of 5 November 1997, the person became liable to pay an accommodation bond for entry to a residential care service; and (b) either an accommodation charge would have been payable for the entry, or the person would have been a charge exempt resident, had section 44-8B and Division 57A of the Aged Care Act 1997 been in force at the time of the entry; and (c) the person later made an agreement (a refund agreement) with the provider of the service that the person’s liability to pay an accommodation bond for the entry was to be replaced with a liability to pay an accommodation charge for the entry, and that any payment of any of the bond was to be refunded to the person. Note: For accommodation bond, accommodation charge and charge exempt resident, see subsection 11(1). (2) This Division also applies to a person if the Secretary is satisfied that: (a) on or before 5 November 1997, the person sold his or her principal home for the sole or principal purpose of raising money to pay an accommodation bond for entry to a residential care service; and (b) either an accommodation charge would have been payable for the entry, or the person would have been a charge exempt resident, had section 44-8B and Division 57A of the Aged Care Act 1997 been in force at the time of the entry. Note: For accommodation bond, accommodation charge and charge exempt resident, see subsection 11(1). (3) This Division also applies to the partner of a person covered by subsection (1) or (2) (even if the person so covered is now deceased). (4) For the purposes of subsection (2), the time at which a person sells his or her home is the time when he or she comes under a legal obligation to transfer the home to the buyer.
1099F Exempt bond amount does not count as income
The person’s exempt bond amount (see section 1099H) does not count as income of the person for the purposes of this Act. Note: Income is otherwise defined in section 8.
1099G Person’s ordinary income reduced using financial asset rules
(1) For the purposes of this section, assume that the person’s exempt bond amount (see section 1099H) were a financial asset of the person. (2) The person’s ordinary income for a year is reduced by the amount of ordinary income taken to be received on the asset for the year, as worked out under Division 1B (Deemed income from financial assets). (3) In working out that reduction, assume that the total value of the person’s financial assets exceeded the person’s deeming threshold (deeming threshold is a term used in Division 1B).
1099H Meaning of exempt bond amount
(1) The following is how to work out a person’s exempt bond amount. (2) If the person is covered by subsection 1099E(1) (but not subsection 1099E(2)), the person’s exempt bond amount is any amount of accommodation bond payment refunded to the person under the refund agreement mentioned in that subsection. (3) If the person is covered by subsection 1099E(2) (but not subsection 1099E(1)), the person’s exempt bond amount is the gross proceeds of the sale mentioned in that subsection, less: (a) any costs incurred in the course of the sale; and (b) the amount of any debt the person or the person’s partner owed immediately before the sale, so far as the debt was secured by the home at that time. (4) If the person is covered by both subsections 1099E(1) and (2), the person’s exempt bond amount is the greater of the 2 amounts worked out under subsections (2) and (3) of this section. (5) If the person is covered by subsection 1099E(3), the person’s exempt bond amount is equal to the exempt bond amount of the person’s partner, as worked out under subsection (2), (3) or (4) of this section. (6) But in all of the above cases, if the person currently has a partner (who is not deceased), the person’s exempt bond amount is half of what it would otherwise be.
Division 1E—Refunds to charge exempt residents
1099J Scope of Division
(1) This Division applies to an amount (the refunded amount) that is refunded as mentioned in paragraph 56-1(kc) or 56-3(ic) of the Aged Care Act 1997 to a person because the person is or was a charge exempt resident. Note: For charge exempt resident, see subsection 11(1). (2) This Division also applies to an amount (also called the refunded amount) that is paid to a person under paragraph 44-8A(6)(b) of that Act because the person is or was a charge exempt resident. Note: For charge exempt resident, see subsection 11(1). (3) To avoid doubt, this Division does not apply if the amount is paid to the person’s estate or to any other person.
1099K Refunded amount does not count as income
The refunded amount does not count as income of the person for the purposes of this Act. Note: Income is otherwise defined in section 8.
1099L Person’s ordinary income reduced using financial asset rules
(1) For the purposes of this section, assume that the refunded amount were a financial asset of the person. (2) The person’s ordinary income for a year is reduced by the amount of ordinary income taken to be received on the asset for the year, as worked out under Division 1B (Deemed income from financial assets). (3) In working out that reduction, assume that the total value of the person’s financial assets exceeded the person’s deeming threshold (deeming threshold is a term used in Division 1B).
1099M Application of Division
This Division applies in relation to a person who is a charge exempt resident at any time, whether before or after the commencement of the Division. 14 Subsection 1118(1) (note 2) Omit “subsections 11(5), (6) and (7), substitute “subsections (5) to (7)”. 15 After section 1118AA Insert:
1118AB Value of person’s assets reduced: certain transactions to do with aged care accommodation bonds
(1) This section applies to a person if Division 1D of Part 3.10 applies to the person. (2) For the purposes of this Act (other than subparagraph 501E(1)(d)(iv) and sections 1124A, 1125, 1125A and 1126), the total value of the person’s assets is reduced by the person’s exempt bond amount (as defined by section 1099H).
1118AC Value of person’s assets reduced: refunds to charge exempt residents
(1) This section applies to a person if Division 1E of Part 3.10 applies to the person. (2) For the purposes of this Act (other than subparagraph 501E(1)(d)(iv) and sections 1124A, 1125, 1125A and 1126), the total value of the person’s assets is reduced by the refunded amount (as defined by section 1099J). 16 Transitional—persons who became charge exempt residents before commencement (1) This item applies if a person first became a charge exempt resident before the commencement of this item. (2) If, at any time after becoming a charge exempt resident but before the commencement of this item, the person, or the person’s partner, was earning, deriving or receiving any rent from the person’s principal home from another person, any such rent earned, derived or received while the person is a charge exempt resident is not income for the purposes of the Social Security Act 1991. Note 1: For rent, see subsection 13(2) of that Act. Note 2: Under subsections 11(6A) and (7) of that Act, and subitem (3) of this item, the principal home of a person in a care situation may be a place other than the place where the person receives care. (3) A residence of a person is taken to be the person’s principal home for the purposes of the Social Security Act 1991 during: (a) if: (i) the Secretary is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident; and (ii) at any time after leaving the residence but before the commencement of this item, the person, or the person’s partner, earned, derived or received rent for the residence from another person; any period during which: (iii) the person is a charge exempt resident; and (iv) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and (b) any period during which the residence is, because of paragraph (a), the principal home of the person’s partner. Note 1: For rent, see subsection 13(2) of that Act. Note 2: This subitem is not meant to imply that a person may have more than one principal home at the same time.
Schedule 3—Veterans’ Entitlements Act 1986
1 Section 5 (index entry relating to principal home) Omit “5L(5), (6), (7)”, substitute “5L(5), (6), (6A), (7)”. 2 Section 5 (index) Insert the following entries in their appropriate alphabetical positions, determined on a letter-by-letter basis:
accommodation bond
5L(1)
accommodation charge
5L(1)
exempt lump sum
5H(12)
3 Subsection 5H(1) (at the end of the definition of ordinary income) Add “or an exempt lump sum”. 4 Subsection 5H(1) (at the end of note 1 to the definition of ordinary income) Add “For exempt lump sum, see subsection (8).”. 5 After paragraph 5H(8)(nb) Insert: (nc) while a person is accruing a liability to pay an accommodation charge—any rent from the person’s principal home that the person, or the person’s partner, earns, derives or receives from another person; Note 1: Accommodation charge has the same meaning as in the Aged Care Act 1997: see subsection 5L(1). Note 2: For rent, see subsection 5N(2). Note 3: Under subsections 5L(6A) and (7), the principal home of a person in a care situation may be a place other than the place where the person receives care. 6 At the end of section 5H Add: (12) An amount received by a person is an exempt lump sum if: (a) it is not a periodic amount (within the meaning of subsection 5K(1A)); and (b) it is not income from remunerative work undertaken by the person; and (c) it is an amount, or one of a class of amounts, that the Commission determines to be an exempt lump sum. 7 Subsection 5J(2C) After “the Aged Care Act 1997”, insert “: see subsection 5L(1) of this Act”. 8 Subsection 5L(1) (definition of principal home) Omit “subsections (5), (6) and (7)”, substitute “subsections (5) to (7)”. 9 Subsection 5L(1) Insert: accommodation bond has the same meaning as in the Aged Care Act 1997. 10 Subsection 5L(1) Insert: accommodation charge has the same meaning as in the Aged Care Act 1997. 11 Subsection 5L(3B) After “the meaning of that Act”, insert “: see subsection (1) of this section”. 12 After subsection 5L(6) Insert: (6A) A residence of a person is taken to be the person’s principal home during: (a) if the Commission is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident—any period during which: (i) the person is accruing a liability to pay an accommodation charge (or would be accruing such a liability, assuming that no sanctions under Part 4.4 of the Aged Care Act 1997 were currently being imposed on the provider of the care concerned); and (ii) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and (b) any period during which the residence is, because of paragraph (a), the principal home of the person’s partner. Note 1: Accommodation charge has the same meaning as in the Aged Care Act 1997: see subsection (1) of this section. Note 2: For rent see subsection 5N(2). For in a care situation see subsection 5NC(2). For aged care resident see subsection 5NC(5). Note 3: This subsection is not meant to imply that a person may have more than one principal home at the same time. Note 4: A person can be liable to pay an accommodation charge only if certain conditions are met: see Division 57A of the Aged Care Act 1997. 13 Subsection 5N(1) (note to the definition of ineligible property owner) Omit “subsections 5L(5), (6) and (7)”, substitute “subsections 5L(5) to (7)”. 14 Subparagraph 5N(2)(a)(iii) Omit “subsection 5L(7)”, substitute “subsection 5L(6A) or (7)”. 15 Subsection 5N(2) (note) Omit “subsections 5L(5), (6) and (7)”, substitute “subsections 5L(5) to (7)”. 16 Subsection 5N(3A) (note) Omit “subsection 5L(7)”, substitute “subsection 5L(6A) or (7)”. 17 Subsection 5N(3B) (note) Omit “subsection 5L(7)”, substitute “subsection 5L(6A) or (7)”. 18 After subparagraph 46A(b)(ii) Insert: or (iii) an exempt lump sum; 19 At the end of section 52 Add: Note: The total value of the person’s assets may be reduced in some circumstances if the person has an exempt bond amount (see clause 15 of Schedule 5) or a refunded amount (see clause 17D of Schedule 5). 20 Before clause 1 of Schedule 5 Insert:
Part 1—General
21 Before Part 3 of Schedule 5 Insert:
Part 2—Aged care accommodation bonds: certain transactions before 6 November 1997
12 Overview of Part
(1) The following is a basic summary of this Part. (2) For people who either: (a) became liable to pay an accommodation bond at any time from the beginning of 1 October 1997 until the end of 5 November 1997 but then agreed to switch to an accommodation charge; or (b) sold their principal home on or before 5 November 1997 in order to be able to pay certain accommodation bonds; and for the partners of such people, certain amounts relating to refunds of such bonds, or to the proceeds of such sales, are excluded from the income and assets tests under this Act. Note: Accommodation bond and accommodation charge have the same meanings as in the Aged Care Act 1997: see subsection 5L(1) of this Act.
13 Scope of Part
(1) This Part applies to a person if: (a) at any time from the beginning of 1 October 1997 until the end of 5 November 1997, the person became liable to pay an accommodation bond for entry to a residential care service; and (b) either an accommodation charge would have been payable for the entry, or the person would have been a charge exempt resident, had section 44-8B and Division 57A of the Aged Care Act 1997 been in force at the time of the entry; and (c) the person later made an agreement (a refund agreement) with the provider of the service that the person’s liability to pay an accommodation bond for the entry was to be replaced with a liability to pay an accommodation charge for the entry, and that any payment of any of the bond was to be refunded to the person. Note: Accommodation bond, accommodation charge and charge exempt resident have the same meanings as in the Aged Care Act 1997: see subsection 5L(1) of this Act. (2) This Part also applies to a person if the Commission is satisfied that: (a) on or before 5 November 1997, the person sold his or her principal home for the sole or principal purpose of raising money to pay an accommodation bond for entry to a residential care service; and (b) either an accommodation charge would have been payable for the entry, or the person would have been a charge exempt resident, had section 44-8B and Division 57A of the Aged Care Act 1997 been in force at the time of the entry. Note: Accommodation bond, accommodation charge and charge exempt resident have the same meanings as in the Aged Care Act 1997: see subsection 5L(1) of this Act. (3) This Part also applies to the partner of a person covered by subclause (1) or (2) (even if the person so covered is now deceased). (4) For the purposes of subclause (2), the time at which a person sells his or her home is the time when he or she comes under a legal obligation to transfer the home to the buyer.
14 Person’s ordinary income reduced using financial asset rules
(1) For the purposes of this clause, assume that the person’s exempt bond amount (see clause 16) were a financial asset of the person. (2) The person’s ordinary income for a year is reduced by the amount of ordinary income taken to be received on the asset for the year, as worked out under Division 3 of Part IIIB of this Act (Deemed income from financial assets). (3) In working out that reduction, assume that the total value of the person’s financial assets exceeded the person’s deeming threshold (deeming threshold is a term used in that Division).
15 Value of person’s assets reduced
For the purposes of this Act (other than sections 52FA, 52G, 52GA and 52H), the total value of the person’s assets is reduced by the person’s exempt bond amount (see clause 16).
16 Meaning of exempt bond amount
(1) The following is how to work out a person’s exempt bond amount. (2) If the person is covered by subclause 13(1) (but not subclause 13(2)), the person’s exempt bond amount is any amount of accommodation bond payment refunded to the person under the refund agreement mentioned in that subclause. (3) If the person is covered by subclause 13(2) (but not subclause 13(1)), the person’s exempt bond amount is the gross proceeds of the sale mentioned in that subclause, less: (a) any costs incurred in the course of the sale; and (b) the amount of any debt the person or the person’s partner owed immediately before the sale, so far as the debt was secured by the home at that time. (4) If the person is covered by both subclauses 13(1) and (2), the person’s exempt bond amount is the greater of the 2 amounts worked out under subclauses (2) and (3) of this clause. (5) If the person is covered by subclause 13(3), the person’s exempt bond amount is equal to the exempt bond amount of the person’s partner, as worked out under subclause (2), (3) or (4) of this clause. (6) But in all of the above cases, if the person currently has a partner (who is not deceased), the person’s exempt bond amount is half of what it would otherwise be.
Part 2A—Charge exempt residents under the Aged Care Act 1997
17 Meaning of charge exempt resident
In this Part: charge exempt resident has the same meaning as in the Aged Care Act 1997.
17A Persons who became charge exempt residents before commencement
(1) This clause applies if a person first became a charge exempt resident before the commencement of this clause. (2) If, at any time after becoming a charge exempt resident but before the commencement of this clause, the person, or the person’s partner, was earning, deriving or receiving any rent from the person’s principal home from another person, any such rent earned, derived or received while the person is a charge exempt resident is not income in relation to the person, or the person’s partner, for the purposes of this Act. Note 1: For rent, see subsection 5N(2). Note 2: Under subsections 5L(6A) and (7), and subclause (3) of this clause, the principal home of a person in a care situation may be a place other than the place where the person receives care. (3) A residence of a person is taken to be the person’s principal home for the purposes of this Act during: (a) if: (i) the Commission is satisfied that the residence was previously the person’s principal home but that the person left it for the purpose of going into a care situation or becoming an aged care resident; and (ii) at any time after leaving the residence but before the commencement of this clause, the person, or the person’s partner, earned, derived or received rent for the residence from another person; any period during which: (iii) the person is a charge exempt resident; and (iv) the person, or the person’s partner, is earning, deriving or receiving rent for the residence from another person; and (b) any period during which the residence is, because of paragraph (a), the principal home of the person’s partner. Note 1: For rent see subsection 5N(2). For in a care situation see subsection 5NC(2). For aged care resident see subsection 5NC(5). Note 2: This subclause is not meant to imply that a person may have more than one principal home at the same time.
17B Refunds of accommodation charge
(1) Clauses 17C and 17D apply to an amount (the refunded amount) that is refunded as mentioned in paragraph 56-1(kc) or 56-3(ic) of the Aged Care Act 1997 to a person because the person is or was a charge exempt resident. (2) Those clauses also apply to an amount (also called the refunded amount) that is paid to a person under paragraph 44-8A(6)(b) of that Act because the person is or was a charge exempt resident. (3) To avoid doubt, those clauses do not apply if the amount is paid to the person’s estate or to any other person.
17C Person’s ordinary income reduced using financial asset rules
(1) For the purposes of this clause, assume that the refunded amount were a financial asset of the person. (2) The person’s ordinary income for a year is reduced by the amount of ordinary income taken to be received on the asset for the year, as worked out under Division 3 of Part IIIB of this Act (Deemed income from financial assets). (3) In working out that reduction, assume that the total value of the person’s financial assets exceeded the person’s deeming threshold (deeming threshold is a term used in that Division).
17D Value of person’s assets reduced
For the purposes of this Act (other than sections 52FA, 52G, 52GA and 52H), the total value of the person’s assets is reduced by the refunded amount.
17E Application of Part
This Part applies in relation to a person who is a charge exempt resident at any time, whether before or after the commencement of the Part.
Schedule 4—Veterans’ Affairs Legislation Amendment (Budget and Simplification Measures) Act 1997
1 Item 1 of Schedule 2 (heading) Repeal the heading, substitute: 1 Subsection 44-24(2) 2 Item 2 of Schedule 2 (heading) Repeal the heading, substitute: 2 Subsection 44-24(3) 3 Item 3 of Schedule 2 (heading) Repeal the heading, substitute: 3 Subsection 44-26(2) 4 Item 4 of Schedule 2 (heading) Repeal the heading, substitute: 4 Subsection 44-26(3)
Schedule 5—Aged Care (Consequential Provisions) Act 1997
1 At the end of Division 1 of Part 4.4 Add:
78A Breaches of conditions before commencement day
If: (a) a particular condition is covered by paragraph 20(1)(b); and (b) before the commencement day, there was a failure to comply with the condition; and (c) as at the commencement day, no declaration under subsection 45EA(1) of the 1953 Act had been made in relation to the failure; Part 4.4 of the new Act applies to the failure as if the failure had happened after the commencement day. 2 At the end of Division 2 of Part 4.4 Add:
81A Breaches of conditions before commencement day
If: (a) a particular condition is covered by paragraph 29(1)(b); and (b) before the commencement day, there was a failure to comply with the condition; and (c) as at the commencement day, no declaration under section 10FAA or 10FI of the 1954 Act had been made in relation to the failure; Part 4.4 of the new Act applies to the failure as if the failure had happened after the commencement day. 3 After item 45 of Schedule 1 Insert: 45A Application—power to extend period Despite the repeal of subsection 52C(3) of the National Health Act 1953 by item 45 of this Schedule, that subsection continues to apply, in relation to AIPs that were in force immediately before the repeal, as if the repeal had not happened. 4 After item 49 of Schedule 1 Insert: 49A Application—power to extend period Despite the repeal of subsection 58CA(3) of the National Health Act 1953 by item 49 of this Schedule, that subsection continues to apply, in relation to AIPs that were in force immediately before the repeal, as if the repeal had not happened.
Minister’s second reading speech made in— House of Representatives on 10 June 1999 Senate on 28 June 1999 (108/99
