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Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016

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2016

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

SOCIAL SERVICES LEGISLATION AMENDMENT

(TRANSITION MOBILITY ALLOWANCE TO THE NATIONAL DISABILITY INSURANCE SCHEME) BILL 2016

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for Social Services, the Hon Christian Porter MP)



SOCIAL SERVICES LEGISLATION AMENDMENT

(TRANSITION MOBILITY ALLOWANCE TO THE NATIONAL DISABILITY INSURANCE SCHEME) BILL 2016

 

 

OUTLINE

 

This Bill will introduce a 2016-17 Budget measure to support transition of mobility allowance to the National Disability Insurance Scheme (NDIS). From 1 January 2017, changes will apply to the qualification criteria for mobility allowance for new claims and to the period for which mobility allowance is continued when a person ceases to be qualified, in certain circumstances. In addition, mobility allowance will no longer be payable to individuals who transition to the NDIS but subsequently cease to be NDIS participants. These changes will support transition from mobility allowance to the NDIS or to other arrangements for continuity of support.

 

Mobility allowance will cease on 1 July 2020, to ensure the NDIS is the main source of support for people with disability who need assistance to enable them to engage in the workplace and other economic activities.

 

Financial impact statement

 

MEASURE

FINANCIAL IMPACT OVER THE FORWARD ESTIMATES

Mobility Allowance - Transition to the National Disability Insurance Scheme

$46.5 million

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

 

 



SOCIAL SERVICES LEGISLATION AMENDMENT

(TRANSITION MOBILITY ALLOWANCE TO THE NATIONAL DISABILITY INSURANCE SCHEME) BILL 2016

 

 

NOTES ON CLAUSES

 

Abbreviations used in this explanatory memorandum

 

  • Farm Household Support Act mean the Farm Household Support Act 2014
  • Income Tax Assessment Act means the Income Tax Assessment Act 1997
  • NDIS Legislation Amendment Act means the National Disability Insurance Scheme Legislation Amendment Act 2013
  • Social Security Act means the Social Security Act 1991
  • Social Security Administration Act means the Social Security (Administration) Act 1999

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Act 2016.

 

Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedules to, the new Act.

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.

 



Schedule 1 - Amendments

 

 

Summary

 

This Schedule makes amendments to the Social Security Act, Social Security Administration Act, Farm Household Support Act, Income Tax Assessment Act and NDIS Legislation Amendment Act to support transition of mobility allowance to the National Disability Insurance Scheme (NDIS).

 

The changes made by Part 1 of this Schedule will amend the qualification criteria for mobility allowance for new claims and the period for which mobility allowance is continued when a person ceases to be qualified, in certain circumstances. In addition, mobility allowance will no longer be payable to individuals who transition to the NDIS but subsequently cease to be NDIS participants.

 

The changes made by Part 2 of this Schedule will cease mobility allowance from 1 July 2020, to ensure the NDIS is the main source of support for people with disability who need assistance to enable them to engage in the workplace and other economic activities.

 

Background

 

 

In broad terms, a person must meet the qualification criteria in Part 2.21 of the Social Security Act in order to receive mobility allowance. The criteria set out in Part 2.21 cover a variety of circumstances in which a person may be qualified, including by reference to whether the person is a handicapped person within the meaning of the Social Security Act and the type of activities the person is engaged in, which may include gainful employment, vocational training, job search activities, voluntary work, vocational rehabilitation programs and other activities. 

 

Part 1 - Amendments of mobility allowance provisions

 

The amendments in Part 1 of this Schedule will replace the current definition of handicapped person with the requirement that a person has a physical or mental disability and that the Secretary is of the opinion the disability is either permanent or likely to last for at least 12 months. In addition to the current requirement that a person has turned 16, a person will also need to be under 65 years of age.

 

The circumstances relevant to qualification for mobility allowance will be limited to where a person is undertaking gainful employment or vocational training.

 

Mobility allowance will no longer be payable to individuals who transition to the NDIS but subsequently cease to be NDIS participants. In addition, mobility allowance advance will cease from 1 January 2017. These changes will support transition from mobility allowance to the NDIS or to other arrangements for continuity of support.

 

The amendments made by Part 1 of this Schedule commence on the first 1 January or 1 July to occur after the day this Act receives the Royal Assent.

Part 2 - Cessation of mobility allowance

 

Part 2 of this Schedule provides that mobility allowance will cease from 1 July 2020.

 

The amendments made by Part 2 of this Schedule commence on 1 July 2020.

 

 

Explanation of the changes

 

Part 1 - Amendments of mobility allowance provisions

 

Amendments to the Social Security Act

 

Items 1 and 2 repeal the definition of handicapped person contained in section 19 and subsection 23(1). These definitions will no longer be necessary as a result of the amendments made to sections 1035 and 1035A of the Social Security Act made by this Part.

 

Item 3 amends subsection 1035(1) by requiring that a person is 16 or over and under 65 in order to qualify for mobility allowance at the rate specified in subsection 1044(1).

 

Currently, handicapped person , as defined in section 19 of the Social Security Act, means a person who has turned 16. The requirement that a person has turned 16 for the purposes of section 1035 will now be covered by subsection 1035(1). In addition, item 3 will require a person to be under 65 years of age.

 

Items 4 and 5 repeal subparagraphs 1035(1)(a)(i) and 1035(1)(b)(i) and substitute the requirement that a person has a physical or mental disability and that the Secretary is of the opinion that the disability is either permanent or likely to last at least 12 months.

 

Current paragraphs 1035(1)(a)(i) and 1035(1)(b)(i) require that a person is a handicapped person as defined in section 19 of the Social Security Act, which means a person must have a physical or mental disability. For the purposes of section 1035, this requirement will now be specified in subparagraphs 1035(1)(a)(i) and 1035(1)(b)(i).

 

Items 4 and 5 also introduce for the purposes of paragraphs 1035(1)(a)(i) and 1035(1)(b)(i) the requirement that the Secretary is of the opinion the disability is either permanent or likely to last for at least 12 months.

 

Items 6 and 11 repeal paragraphs 1035(1)(c) to (f) and (h). These paragraphs currently describe a number of circumstances in which a person may qualify for mobility allowance at the rate set out in subsection 1044(1). These provisions will be repealed so that qualification for mobility allowance is limited to the circumstances set out in paragraphs 1035(1)(a), (b) and (g). The effect of this is that, in addition to meeting other qualification criteria, a person must be engaged in gainful employment or undertaking vocational training (or a combination of these) in order to qualify under section 1035.

 

Item 7 repeals subparagraph 1035(1)(g)(i) and substitutes a new subparagraph 1035(1)(g)(i). This change will replace the current reference to a handicapped person with the requirement that a person has a physical or mental disability and that the Secretary is of the opinion the disability is either permanent or likely to last for at least 12 months. This is in line with the amendments made by items 4 and 5.

 

Item 8 amends the wording of subparagraph 1035(1)(g)(iii) as a consequence of the repeal of sub-subparagraph 1035(1)(g)(iii)(C) by item 9.  

 

Item 9 repeals sub-subparagraph 1035(1)(g)(iii)(C). The effect of this is that qualification for mobility allowance under paragraph 1035(1)(g) is limited to where a person is undertaking a combination of gainful employment and vocational training.

 

Item 10 makes a grammatical change as a result of the repeal of paragraph 1035(1)(h) by item 11.

 

Item 12 makes a grammatical change as a result of the repeal of paragraphs 1035(2)(c) to (e) by item 13.

 

Item 13 repeals paragraphs 1035(2)(c) to (e).

 

Subsection 1035(2) specifies relevant activities for the purposes of the travel test in subsection 1035(1). This amendment will limit these activities to gainful employment and vocational training and corresponds with the amendments made by this to subsection 1035(1).

 

Items 14 and 15 repeal the definitions of vocational rehabilitation program and voluntary work from subsection 1035(3). These definitions will no longer be necessary as a result of the amendments to subsections 1053(1) and (2).

 

Item 16 substitutes a new paragraph 1035A(1)(a) to replace the current reference to a handicapped person with the requirement that a person has a physical or mental disability and that the Secretary is of the opinion the disability is either permanent or likely to last for at least 12 months. This is in line with the amendments to section 1035 made by this Part.

 

Item 17 repeals paragraphs 1035A(3)(b) to (d) and substitutes new paragraphs (b) and (c).

 

This change will limit the circumstances that will satisfy subsection 1035A(3) in relation to a person receiving disability support pension to where the person is working for at least 15 hours per week on wages that are at or above the relevant minimum wage and the person is required to travel to and from the person’s home for the purpose of performing the work. A person who satisfies subsection 1035A(3), in addition to meeting the criteria in subsection 1035A(1), is qualified for mobility allowance at the rate specified in subsection 1044(1A).

 

Item 18 repeals paragraphs 1035A(6)(b) to (d) and substitutes new paragraphs (b) and (c).

 

This change will limit the circumstances that will satisfy subsection 1035A(6) in relation to a person receiving newstart allowance or youth allowance (but who is not undertaking full-time study and is not a new apprentice) to where the person is working for at least 15 hours per week on wages that are at or above the relevant minimum wage and the person is required to travel to and from the person’s home for the purpose of performing the work. A person who satisfies subsection 1035A(6), in addition to meeting the criteria in subsection 1035A(1), is qualified for mobility allowance at the rate specified in subsection 1044(1A).

 

Item 19 amends the heading of section 1038 in line with the changes made by items 20 and 21.

 

Item 20 inserts a new paragraph reference (1) in section 1038.

 

Item 21 adds a new subsection 1038(2).

 

Current section 1038 provides that mobility allowance is not payable to a person who has transitioned to the NDIS (that is, a person who is an NDIS participant and who has a plan in effect containing a statement specifying the reasonable and necessary supports that will be funded under the NDIS).

 

New subsection 1038(2) extends the circumstances in which mobility allowance is not payable to where a person ceases to be an NDIS participant. This means an NDIS participant who previously received mobility allowance cannot return to receiving mobility allowance.

 

Item 22 repeals subsection 1039AA(4) and substitutes a new subsection 1039AA(4).

 

Current subsection 1039AA(4) provides that newly arrived resident’s waiting period that may apply under subsection 1039AA(4) does not apply to a person who becomes a handicapped person while in Australia.

 

New subsection 1039AA(4) preserves the requirement that a person’s physical or mental disability arose while the person was in Australia, consistent with the terminology in new paragraph 1035A(1)(a).

 

Item 23 adds a note at the end of subsection 1044(1A) referring to the annual indexation of mobility allowance in line with CPI increases.

 

Item 24 repeals subsections 1044(2) and (3). These subsections currently set out the effect on a person’s mobility allowance rate if the person has received mobility allowance advance under section 1045. These provisions will no longer be required as a result of the repeal of mobility allowance advance by item 26.

 

Item 25 repeals section 1044A. This section currently provides for reduction of a person’s advance payment period in relation to mobility allowance advance in certain circumstances. This section will no longer be required as a result of the repeal of mobility allowance advance by item 26.

 

Item 26 repeals Division 3 of Part 2.21. The effect of this will be the repeal of mobility allowance advance.

 

Item 27 amends the list of activities set out in subparagraph 1046(1)(b)(i).

 

Currently, a person who ceases to undertake gainful employment, vocational training or voluntary work will, subject to meeting other requirements under subsection 1046(1), continue to be qualified for mobility allowance for a specified period after they would otherwise cease to qualify.

 

This amendment limits the activities relevant to section 1046(1) to gainful employment or vocational training.

 

Item 28 amends the wording of subparagraph 1046(1)(b)(ii) as a consequence of the repeal of sub-subparagraph 1046(1)(b)(ii)(C) by item 29.   

 

Item 29 repeals sub-subparagraph 1046(1)(b)(ii)(C). The effect of this is that the application of paragraph 1046(1)(b)(ii) is limited to where a person ceases to undertake a combination of gainful employment and vocational training.

 

Item 30 makes a grammatical change as a consequence of the repeal of paragraphs 1046(2)(b)(iv) to (vi) by item 31.

 

Items 31 and 33 repeal subparagraphs 1046(2)(b)(iv) to (vi) and subparagraph 1046(2B)(b)(iii) respectively.

 

A person to whom section 1046 applies continues to be qualified for 12 weeks after the person would otherwise cease to be qualified.

 

Subsections 1046(2) and 1046(2B) set out some circumstances in which section 1046 applies to a person, based on factors including the reason the person would cease to qualify for mobility allowance, but for the application of section 1046.

 

These amendments remove job search activities and vocational rehabilitation programs under subparagraphs 1046(2)(b)(iv) to (vi) and subparagraph 1046(2B)(b)(iii).The cessation of these activities will no longer be relevant as a result of the changes to qualification for mobility allowance.

 

Item 32 makes a grammatical change to subparagraph 1046(2B)(b)(iia) as a consequence of the repeal of subparagraph 1046(2B)(b)(iii) by item 33.

 

Item 34 omits ‘12’ from subsection 1046(3) and substitutes ‘4’. This change will reduce the period for which a person’s qualification for mobility allowance is continued under subsection 1046(3) from 12 weeks to 4 weeks.

 

Items 35 and 36 delete the definitions of vocational rehabilitation program and voluntary work from subsection 1046(6). These definitions will no longer be necessary as a result of the changes to qualification for mobility allowance and consistent with amendments to section 1046.

 

Item 37 removes the reference to mobility allowance from the note 1 at subsection 1061A(1).

 

Item 38 removes mobility allowance advance debt from the recovery methods table in subsection 1222(2). This reference becomes redundant with the repeal of mobility allowance advance.

 

Item 39 repeals section 1224D. This section currently provides for amounts of mobility allowance advance to be recovered as a debt in certain circumstances. This section will also no longer be required as a result of the repeal of mobility allowance advance.

 

Item 40 omits the reference to section 1224D from section 1230B due to the repeal of section 1224D.

 

Amendments to the Social Security Administration Act

 

Items 41, 42 and 43 repeal paragraph (u) of the definition of category I welfare payment and paragraph (l) of the definition of category Q welfare payment from section 123TC and subparagraph (a)(xix) of the definition of restrictable payment from section 124PD(1) respectively.  

 

These paragraphs each refer to a mobility allowance advance under section 1045 of the Social Security Act and will no longer required due to the repeal of mobility allowance advance.

 

Item 44 provides for application and saving provisions for the amendments made by Part 1 of this Schedule.

 

Subitem 44(1) provides that the amendments of sections 1035, 1035A and 1039AA of the Social Security Act apply to claims made after the commencement of item 44, except where a claim relates to a day before commencement. In effect this means the changes to these sections will apply only to new claims, unless the claim relates to days before commencement.  The changes to these sections will not affect existing mobility allowance recipients.

 

Subitem 44(2) provides that amended subsection 1038(2) of the Social Security Act applies to a person who ceases to be an NDIS participant on or after item 44 commences.

 

Subitem 44(3) provides that the amendments of section 1039 AA and subsections 1046(1), (2) and (2B) of the Social Security Act apply to a person whose claim for mobility allowance was granted on the basis of their qualification under section 1035 or 1035A as amended by this Part. This means the application of the amendments to these provisions, which affect the application of the newly arrived resident’s waiting period and the circumstances relevant to continuation of mobility allowance, is consistent with the application of amendments to sections 1035 and 1035A.  

 

Subitem 44(4) provides that the amendments of subsection 1046(3) of the Social Security Act apply in relation to a person to whom section 1046 applies, on or after the commencement of item 44, whether the person’s claim for mobility allowance was made before, on or after commencement. This means that the reduction in the period for which a person’s qualification for mobility allowance is continued under subsection 1046(3), as amended by item 34 of Part 1 of this Schedule, will apply to existing mobility allowance recipients as well as those whose claims are granted after commencement.

 

Subitem 44(6) provides for current Chapter 5 of the Social Security Act to continue to apply to a payment of mobility allowance advance made before, on or after commencement of Part 1 of this Schedule. This preserves the operation of the mobility allowance advance debts provisions in relation to a payment of mobility allowance advance.

 

Subitem 44(7) provides for current Parts 3B and 3D of the Social Security Administration Act to continue to apply in relation to a payment of mobility allowance advance made before, on or after commencement of Part 1 of this Schedule. This preserves the operation of the income management regime in relation to a payment of mobility allowance advance.

 

Part 2 - Cessation of mobility allowance

 

Amendments to the Farm Household Support Act

 

Item 45 repeals paragraph 94(g). This will remove Part 2.21 (mobility allowance) from the list of provisions of the Social Security Act set out in section 94 that do not apply in relation to the operation of the Farm Household Support Act. Paragraph 94(g) will not be required as a consequence of the repeal of mobility allowance from the Social Security Act.

 

Amendments to the Income Tax Assessment Act

 

Item 46 repeals table item 18.1 (Mobility allowance) from the table about the income tax treatment of security payments at section 52-10. Table item 18.1 will not be required as a consequence of the repeal of mobility allowance from the Social Security Act.

 

Item 47 repeals table item 18 from the table at section 52-10 relating to provisions of the Social Security Act under which social security payments are made that are wholly or partly exempt from income tax under Subdivision 52-A of the Income Tax Assessment Act. Table item 18 will not be required as a consequence of the repeal of mobility allowance from the Social Security Act.

 

Amendments to the NDIS Legislation Amendment Act

 

Item 48 repeals item 17 of Schedule 2.

 

 

 

 

Currently, the effect of this provision is that a person will continue to be qualified for a health care card even though mobility allowance is not payable to the person because of the operation of section 1038 of the Social Security Act, provided the person was receiving mobility allowance immediately before becoming an NDIS participant.

 

This provision will be repealed as a consequence of the cessation of mobility allowance.

 

Amendments to the Social Security Act

 

Items 49 to 62 repeal references to mobility allowance and related provisions and also make consequential grammatical changes.

 

Amendments to the Social Security Administration Act

 

Items 63 to 71 repeal references to mobility allowance and related provisions and also make consequential grammatical changes.

 

Item 72 provides for saving provisions for the amendments made by Part 2 of this Schedule.

 

Subitem 72(1) preserves the application of current subsection 7(6AA) of the Social Security Act in working out whether a person has a qualifying residence exemption for a mobility allowance before the commencement of the amendments made by  Part 2 of this Schedule.

 

Subitem 72(2) preserves the application of current Part 2.21 of the Social Security Act in working out qualification for, or the rate of, a mobility allowance for days occurring before the commencement of Part 2 of this Schedule. For example, these provisions will apply in respect of a claim made but not determined prior to the commencement of Part 2 of this Schedule, but only in respect of days up to that commencement.

 

Subitem 72(3) provides that if a person is receiving mobility allowance immediately before the commencement of Part 2 of this Schedule because their qualification is continued under section 1046 of the Social Security Act, the person’s qualification is taken to end at the end of the day before the commencement of Part 2 of this Schedule.

 

The effect of this is that a continuation period that applies to a person under section 1046 will end on the day before the commencement of Part 2 of this Schedule.

 

Subitem 72(4) preserves the application of current section 1158 of the Social Security Act, relating to social security payments not payable during a period a person is in gaol or in psychiatric confinement following criminal charge, in respect of mobility allowance on days prior to the commencement of Part 2 of this Schedule.

 

This means section 1158 will apply to a claim in respect of a day prior to the commencement of Part 2 of this Schedule, even if that claim is not made or granted until after that commencement.

 

Subitem 72(5) preserves the application of current Chapter 5 of the Social Security Act to a payment of mobility allowance whether made before, on or after the commencement of Part 2 of this Schedule.

 

This preserves the application of overpayments and debt recovery provisions under Chapter 5 to a payment of mobility allowance.

 

Subitem 72(6) preserves the application of current Part 3 of the Social Security Administration Act to the making of claims for mobility allowance and making payments of mobility allowance in respect of days occurring before the commencement of Part 2 of this Schedule, and to determinations made under Part 3 in relation to mobility allowance on or after that commencement.

 

This means Part 3 of the Social Security Administration Act will continue apply to a claim for or payment of mobility allowance, or a determination under Part 3 in relation to mobility allowance, in respect of a day prior to the commencement of Part 2 of this Schedule, even if the claim, payment or determination does not occur until after that commencement. 

 

Subitem 72(7) provides that current sections 63 and 64 of the Social Security Administration Act continue to apply on and after the commencement of Part 2 of this Schedule, to a person receiving or claiming mobility allowance before, on or after that commencement.

 

This means the Secretary may continue to exercise the powers under sections 63 and 64 in relation to a person receiving or claiming mobility allowance.

 

Subitem 72(8) provides for existing Parts 3B and 3D of the Social Security Administration Act to continue to apply after the commencement of Part 2 of this Schedule in relation to a payment of mobility allowance made before, on or after commencement. This preserves the operation of the income management regime in relation to a payment of mobility allowance.

 

Subitem 72(9) provides for the continued application of existing Parts 4 and 4A of the Social Security Administration Act to a decision under the social security law in relation to mobility allowance before, on or after the commencement of Part 2 of this Schedule.

 

This subitem preserves the operation of the internal review and Administrative Appeals Tribunal review provisions contained in Parts 4 and 4A.

 

Subitem 72(10) preserves the application of current table item 18.1 of the table in section 52-10 of the Income Tax Assessment Act to a payment of mobility allowance whether before, on or after the commencement of Part 2 of this Schedule.

 

The effect of this subitem is that income tax treatment of a payment of mobility allowance will continue as currently provided for by the Income Tax Assessment Act, after the commencement of Part 2 of this Schedule.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SERVICES LEGISLATION AMENDMENT

(TRANSITION MOBILITY ALLOWANCE TO THE NATIONAL DISABILITY INSURANCE SCHEME) BILL 2016

 

 

This Bill 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 the Bill

This Bill amends the Social Security Act 1991 to support the transition of mobility allowance funding to the National Disability Insurance Scheme and the movement of eligible recipients to a package of support with the National Disability Insurance Scheme. As part of the transition, the Bill will tighten eligibility for mobility allowance and close the mobility allowance program after the National Disability Insurance Scheme has been rolled out nationally. Mobility allowance is a payment designed to assist with transport costs for people with a disability who participate in work and certain approved activities and who are unable to use public transport without substantial assistance.

Mobility allowance recipients found to be ineligible for a package of support with the National Disability Insurance Scheme will receive alternate means of support under continuity of support arrangements. The amendments made by the Bill are consistent with changes made in other Commonwealth programs where funding is transitioning to the National Disability Insurance Scheme.

To support these changes, the Bill also proposes to make consequential amendments to the Social Security (Administration) Act 1999, National Disability Insurance Scheme Legislation Amendment Act 2013, Farm Household Support Act 2014 and the Income Tax Assessment Act 1997 to remove reference to mobility allowance once the program has closed.

Tighten eligibility for mobility allowance

This Bill will amend the eligibility criteria for mobility allowance from 1 January 2017 to limit the payment to new claimants who are aged under 65 years with a permanent or significant disability, who are not able to use public transport without substantial assistance and who are undertaking gainful employment or vocational training. These changes will not impact existing mobility allowance recipients, unless they are cancelled off payment, in which case they will then be assessed under the new rules if they reclaim.

Amendments will also be made to ongoing entitlement for all mobility allowance recipients. The grace period during which a recipient continues to receive mobility allowance while no longer engaged in a qualifying activity will be reduced from 12 weeks to four weeks. In addition, these amendments include provisions to stop recipients who have transitioned to the National Disability Insurance Scheme from reclaiming mobility allowance.

Abolish mobility allowance

This Bill will close the mobility allowance program after the National Disability Insurance Scheme has been rolled out nationally to ensure that the National Disability Insurance Scheme is the main program of support for people with a disability who need assistance to enable them to fully engage in the workforce and other economic activities. It is expected that the program will close from 1 July 2020.

Human rights implications

Right to social security

This Bill engages the rights to social security contained in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system.  The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.

The amendments in this Bill initially tighten the eligibility criteria for mobility allowance and later close the program. These amendments are compatible with the right to social security as mobility allowance is not a social security payment to meet the regular costs of living, rather it is a supplementary payment designed to assist with transport costs for people with a disability who are undertaking approved activities. Eligibility for social security pensions or benefits will be unaffected by these amendments. The assistance provided by mobility allowance is being replaced with individualised supports, including assistance with transportation, which will be provided under the National Disability Insurance Scheme. Therefore tightening eligibility rules, and then closing the program ensures the more efficient allocation of resources.

To the extent that the changes in this Schedule may limit the right to social security , those limitations are reasonable and proportionate to the policy objective of ensuring a sustainable and well-targeted payment system.

The principle of non-discrimination

The Convention on the Rights of Persons with Disabilities (CRPD) recognises the barriers that persons with disabilities may face in realising their rights. While the rights under all human rights treaties apply to everyone, including persons with disabilities, the CRPD applies human rights specifically to the context of persons with disabilities.

Article 3(b) of the CPRD provides that non-discrimination is a general principle in relation to all rights in the CRPD.  As noted by the Human Rights Committee in General Comment No. 18 on equivalent rights in the International Covenant on Civil and Political Rights (ICCPR), the rights to equality and non-discrimination in the ICCPR sometimes require nation states ‘to take affirmative action in order to diminish or eliminate conditions which cause or help perpetuate discrimination’.  In this context, the amendments made by this Bill promote and advance the rights of persons with disabilities in Australia by strengthening support for them to exercise their social, economic and cultural rights through their participation in the National Disability Insurance Scheme.

Non-discrimination ensures that no-one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth. In addition to those grounds, discrimination on certain other grounds may also be prohibited. These grounds include age, nationality, marital status, disability, place of residence within a country and sexual orientation.

Differential treatment will not constitute discrimination if the differences in treatment are aimed at achieving a legitimate purpose and are reasonable and proportionate to this purpose.

The Bill limits access to mobility allowance to persons under the age of 65. This amendment is intended to provide consistency with access requirements for the National Disability Insurance Scheme. Existing mobility allowance recipients will not be affected by this change and both new and existing recipients can continue to be paid mobility allowance if they turn 65 while receiving the payment. Once the mobility allowance program is closed, any remaining recipients will either transition to the National Disability Insurance Scheme or be supported under continuity of support arrangements. Funding for continuity of support arrangements includes current recipients aged 65 or over who will be ineligible to transition to the National Disability Insurance Scheme.

The National Disability Insurance Scheme is part of a broader system of support available in Australia and persons over the age of 65 who are not eligible for assistance through the National Disability Insurance Scheme can access support through the aged care system. This limitation is reasonable and necessary because it supports the broader intent of an integrated system of support operating nationally and providing seamless transition through different phases of life.

Rights of persons with disabilities

This Bill engages article 28 of the Convention of the Rights of Persons with Disabilities , which recognises the right to an adequate standard of living and social protection for those with disability. The amendments recognise that mobility allowance is a poorly targeted supplementary payment and therefore funding is being transitioned to the National Disability Insurance Scheme to ensure that people with disability are better assisted to fully engage in the workforce and other economic activities.

Right to work and right to education

Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right to work, including the right to the opportunity to gain a living by work which the person freely chooses or accepts, and which is considered an inherent part of human dignity [1] , and article 13 of the ICESCR recognises the right of everyone to education .

The amendments in the Bill initially enable new recipients to be paid mobility allowance for participation in gainful employment, which includes self-employment and supported employment, and vocational training, which includes study and life skills training. The Bill recognises that these activities and outcomes are better supported through participation in the National Disability Insurance Scheme. Additional assistance for work, study and training also continues to be available through Government-funded employment service providers and through the FEE HELP and VET FEE HELP tuition loan program. As such, this Bill does not prevent affected persons from entering the workforce, or undertaking further study to enhance their employment prospects, rather directs them through more appropriate channels.

Conclusion

This Bill is compatible with human rights because it does not limit access to social security and it advances the protection of the rights of people with disability in Australia, consistent with the Convention of the Rights of Persons with Disabilities , by ensuring that the National Disability Insurance Scheme is the main program of support for those who need assistance to fully engage in the workforce and other economic activities.

 

 

 

[Circulated by the authority of the Minister for Social Services, the Hon Christian Porter MP]




[1] Committee on Economic, Social and Cultural Rights, General Comment 18, paragraphs 1 and 2.