Commonwealth Numbered Regulations - Explanatory Statements

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AUSTUDY REGULATIONS (AMENDMENT) 1997 NO. 83

EXPLANATORY STATEMENT

Statutory Rules 1997 No. 83

Issued by the authority of the Minister for Employment, Education, Training and Youth Affairs

Student and Youth Assistance Act 1973

AUSTUDY Regulations (Amendment)

The Student and Youth Assistance Act 1973 (the Act) provides the legislative authority for the AUSTUDY scheme. Section 56 of the Act provides that the GovernorGeneral may make regulations for the purposes of the Act.

OUTLINE OF REGULATIONS

The Attachment contains more details about the amendments to the AUSTUDY Regulations made by these regulations. In summary, these amendments implement 1996-97 Budget measures to introduce a new maximum weekly rate of rent assistance to apply to single people who share accommodation and to exclude full-time apprentices and trainees from AUSTUDY. They also make a consequential amendment as a result of the 1996-97 Budget measure to increase the age of independence to 25 years, align the current weekly rate of rent assistance with the DSS rate, make changes that align the regulations with recent changes to the Social Security Act 1991, and make other minor changes. More specifically, the regulations:

*       increase the current maximum weekly rate of rent assistance to $37.30 (regulation 10) and introduce a new maximum weekly rate of rent assistance for single people who share accommodation (regulation 11). The new maximum rate of rent assistance for single people who share accommodation is $24.90 per week (ie two thirds of $37.30). This does not change the basic eligibility criteria to get rent assistance which are.

-        the student must be getting AUSTUDY at:

*       the independent rate under regulation 72 (because he or she is an orphan), regulation 73 (because his or her parents cannot exercise responsibilities because they are serving a prison sentence of at least 10 years or are missing, in a nursing home or mentally incapacitated), regulation 74 (because he or she cannot live with his or her parents due to physical or sexual abuse or extreme family breakdown), regulation 75 (because he or she is a refugee) or regulation 76 (became he or she is a state ward); or

*       the away from home rate under subregulation 77(3) because he or she is in an approved care arrangement and is living away from his or her carer's home to study or stopped being in the arrangement only because of his or her age;

- the student must be paying rent;

- the student must be under 25 years of age; and

- the student must not have a dependent child;

*       as a consequence of the amendments made by regulation 11, provide that a person can only get the maximum amount of rent assistance to which the person is entitled (regulation 12). The regulations formerly provided that a person can, subject to the income test in regulation 102G, get maximum rent assistance. With the introduction of a second rate of rent assistance this is inappropriate. The amendment clarifies the matter;

*       exclude full-time apprentices and trainees from AUSTUDY (regulation S) and require students t tell the Department when they begin a full-time apprenticeship or traineeship (regulation 13);

*       standardise the descriptions of amounts of maintenance to be included in student income with the descriptions used in the parental and spouse income tests (regulation 8);

*       provide that a student cannot get an increased living allowance (known as Dependent Spouse Allowance) for a dependent spouse if the spouse is getting partner allowance (regulation 7), and Change carer pension references to "carer payment" (regulations 6 and 14). These amendments ensure that the AUSTUDY Regulations are consistent with relevant provisions within the Social Security Act 1991 which have been amended with effect from 20 March 1997 and 1 My 1997 respectively,

*       provide that a student assistance overpayment for the purposes of Part 6 of the Act includes an overpayment made to a parent of a student for the student. The amendments also standardise expressions between regulations 12D (What happens if AUSTUDY has been underpaid?) and 12E (What happens if AUSTUDY has been overpaid?) as far as possible and correct an error in regulation 12E (regulations 3 and 4); and

*       increase from 22 years to 25 years the age at which a deduction from parental and spouse income is available for a dependent child who is undertaking W-time study. (Parental and spouse income is reduced by amounts specified in the regulations for each dependent full-time student child in the family (apart from the student applying for AUSTUDY) under the age of 25.) This brings the parental and spouse income testing provisions into line with amendments in Statutory Rules 1996 No. 261, which commenced on 4 December 1996, to increase the age at which a person is considered independent because of his or her age Corn 22 to 25 years (regulation 9).

COMMENCEMENT

Subregulation 1.1 provides that regulation 9 is taken to have commenced on 4 December 1996. Subregulation 1.2 provides that regulation 10 is taken to have commenced on 1 January 1997. As these changes benefit clients, their retrospective commencement does not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Subregulation 13 provides that regulations 6, 11, 12 and 14 commence on 1 May 1997.

The remainder of the regulations commence on gazettal in accordance with subsection 48(1) of the Acts Interpretation Act 1901.

APPLICATION

Subregulation 9.2 provides that the amendment made by subregulation 9.1 does not apply to applications for AUSTUDY for a period that ended before 1 January 1997. The remaining amendments apply immediately they commence.

The Attachment contains a detailed explanation of the amendments.

ATTACHMENT

DETAILS OF THE AUSTUDY REGULATIONS (AMENDMENT)

Regulation 1        Commencement

Subregulation 1.1 provides that regulation 9 is taken to have commenced on 4 December 1996, the day of commencement of provisions contained in Statutory Rules 1996 No. 261 which amended the day on which a student is independent because of his or her age from his or her 22nd birthday to his or her 25th birthday. Subregulation 1.2 provides that regulation 10 is taken to have commenced on 1 January 1997. As these changes benefit clients, their retrospective commencement does not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Subregulation 1.3 provides that regulations 6, 11, 12 and 14 commence on 1 July 1997, the day relevant changes to the Social Security Act 1991 will commence.

The remainder of the regulations commence on gazettal in accordance with subsection 48(1) of the Acts Interpretation Act 1901.

Regulation 2        Amendment

Subregulation 2.1 provides that the AUSTUDY Regulations are amended as set out in these regulations.

Regulation 3

Regulation 12D

What happens if AUSTUDY has been underpaid?

Regulation 4

Regulation 12E

What happens if AUSTUDY has been overpaid?

Background

Subregulation 12A(2) provides that AUSTUDY is payable to a parent of a student who is studying secondary course at a secondary school, has not turned 18 and is not independent for AUSTUDY purposes.

Regulation 12D provides that where an AUSTUDY payment to a person has been a lesser amount than the amount to which the person is entitled, an amount equal to the difference between the amount properly payable and the amount actually paid will be added to a fortnightly AUSTUDY payment as soon as practicable.

Regulation 12E provides that if the amount of AUSTUDY payments to a student under determinations of entitlement is greater than the amount that would have been payable if, when the first of the determinations was made, all information relevant to the student's entitlement had been known to the Department and, acting on that information, the determination had correctly decided the student's entitlement, the difference between the amount paid and the amount that would have been properly payable is taken to be a student assistance overpayment for the purposes of Part 6 of the Student and Youth Assistance Act 1973.

At least two Social Security Appeals Tribunals have determined that an overpayment made to a parent under subregulation 12A(2) cannot be taken to be a student assistance overpayment under regulation 12E because the amount was not paid to a student. It is proposed to amend regulations 12D and 12E to prevent this interpretation.

The expression in paragraph 12E(b) "the determination had correctly decided the student's entitlement for the whole yea? is incorrect as it is the Department that decides a student's entitlement. Additionally, regulation 12E refers to an amount -payable under paragraph (by'. This too is incorrect as no amount is payable under paragraph (b). The amendments, made to correct these errors, are not expected to change the effect of regulation 12E.

Amendments made by these regulations

Subregulation 3.1 omits regulation 12D and substitutes a new regulation 12D. The resultant changes:

*       omit "persons" where it first occurs in regulation 12D and substitute "student, or to a parent of a student for the student"; and

*       make other minor changes to bring regulations 12D and 12E into alignment.

Subregulations 4.1 and 4.2 amend regulation 12E by:

*       inserting ", or to a parent of a student for the student" after "to a student"; and

*       omitting paragraph 12E(b) and replacing it with a new paragraph which clarifies that the Department determines the student's entitlement

Commencement and application

The amendments commence on gazettal and apply immediately they commence.

Regulation 5

Regulation 23

Excluded; (c) students who are
full-time apprentices or trainees

Regulation 13

Regulation 109

What changes in circumstances must
the Department be told about?

Background

Under current arrangements, apprenticeships and traineeships are developed under industry based awards and apprentices and trainees are paid for the time spent on the job and m training. An apprentice or trainee can get AUSTUDY if they are accepted as a full-time student.

Changes flowing from the Workplace Relations Act 1996 provide for apprenticeships and traineeships to be developed under Australian Workplace Agreements (AWA) and Certified Agreements (CA). Apprentices and trainees employed under existing award based agreements will not be transferred to, or otherwise required to enter into, AWAs of CAs.

Under the new arrangements, the amount of time spent by apprentices and trainees on the job (i.e. not in training) and in training will be negotiable and may involve higher proportions of training time than current apprenticeships and traineeships. Apprentices and trainees will be paid by their employers only for the time they spend on the job- There may, therefore, be cases where their wage falls below specified minimum levels

The Government has decided to introduce a wage top-up scheme for full-time apprentices and trainees employed under AWAs and CAs whose weekly wage is reduced below specified minimum levels because they are doing increased amounts of training. The Government has also decided that AUSTUDY will be an inappropriate form of income support for full-time apprentices and trainees.

Amendments made by these regulations

Regulation 5 inserts new regulation 23 to exclude from AUSTUDY students who are:

* employed as full-time apprentices or trainees (new paragraphs 23(a) and (c)); and

* undertaking an apprenticeship or traineeship in accordance with a training agreement (new paragraph 23(b)).

To support this, regulation 13 amends regulation 109 (What changes in circumstances must the Department be told about?) by adding a requirement for a student to advise the Department when he or she begins a full-time apprenticeship or traineeship.

Commencement and application

The amendments commence on gazettal and apply immediately they commence

Regulation 6

Regulation 52

Recognition of students with disabilities and students
getting certain pensions

Regulation 14

Schedule 1

Pensions and Allowances - Group B - Item 1.

Background

Subparagraph 52(1)(c)(i) provides, relevantly, that students getting carer pension do not have to meet the usual workload requirements to get AUSTUDY. Subregulation 98(2) provides that a student getting a payment listed in Group B of Schedule 1 can get a pensioner education supplement. Carer pension is listed in Group B of Schedule 1.

The Social Security Legislation Amendment (Budget and Other Measures) Act 1996 provides, in Schedule 2, that references in the Social Security Act 1991 to "carer pension" are to be changed to "carer payment" from 1 July 1997.

Amendments made by these regulations

Subregulation 6.1 omits "carer pension" from subparagraph 52(1)(c)(i)and substitutes "carer payment".

Subregulation 14.1 omits "Carer pension" from Item 1 in Group B in Schedule 1 and substitutes "carer payment".

Commencement and application

The amendments commence on 1 July 1997, to coincide with the commencement of relevant amendments to the Social Security Act 1991, and apply immediately they commence.

Regulation 7

Regulation 64

Is there additional allowance for a spouse?

Background

Regulation 64 provides an increase in the independent living allowance for a student who has a spouse who is dependent on the student, and at least one dependent child (who can be over 16 years of age). Paragraph 64(1)(c) provides that the increased allowance, known as the "Dependent Spouse Allowance" or DSA, is payable in a period if, in the period, the spouse does not get newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991, or youth training allowance under the Student and Youth Assistance Act 1973.

The Department of Social Security introduced the partner allowance in September 1994. The allowance is currently payable to a person who:

* is the partner of a recipient of a pension or allowance.,

* was born on or before 1 July 1955;

* has no dependent children under the age of 16; and

* has no recent workforce experience

The Social Security Legislation Amendment (Budget and Other Measures) Act 1996 extends partner allowance to partners of AUSTUDY recipients from 20 March 1997. However, the Social Security Act 1991 does not prevent a person whose partner is getting an AUSTUDY DSA for them from getting partner allowance. Therefore, it would be possible from 20 March 1997 for a student to get the DSA in respect of a dependent spouse who is Setting partner allowance.

Amendment made by these regulations

Subregulation 7.1 inserts ", partner allowance" into paragraph 64(1)(c) to provide that a student cannot get DSA in a period for a spouse who is getting partner allowance under Chapter 2 of the Social Security Act 1991 for that period.

Commencement and

The amendment commences on gazettal and applies immediately it commences.

Regulation 8

Regulation 83

What is a student's income?

Background

The provisions governing the treatment of maintenance paid or received vary between the student income test and the parent and spouse income tests:

*       paragraph 86(2)(c) currently provides that an amount received by, or on behalf of a parent for the maintenance of the parent or of a dependent of the parent is included as parental income. Subparagraph 94(1)(a)(1) contains a similar provision for the purposes of the spouse income test, and

*       paragraph 83(1)(c) provides that a student's income includes an amount paid for the student's maintenance if the student is independent. Paragraph 83(1)(d) provides that a student's income includes an amount for the maintenance of a dependent child of the student if the student is independent and the child is not also dependent on the student's spouse.

Regulation 83 has been amended to standardise the expressions used to describe the amounts of maintenance to be included in the student income test with those used in the parental and spouse income tens. The amendments are not intended to change the effect of regulation 83.

Amendments made by these regulations

Subregulation 8.1 omits paragraphs 83(1)(c) and (d) and substitutes new paragraphs 83(1)(c) and (d) to provide that maintenance received by, or on behalf of the student is included in student income. This brings regulation 83 into line with regulations 86 and 94.

Commencement and application

The amendments commence on gazettal and apply immediately they commence.

Regulation 9

Regulation 87

What are the deductions for children?

Background

Regulation 87 provides a deduction from parental income for a child (other than the student) who:

(a) is wholly or substantially dependent on a parent; and

(b) is

(i) under 16 years old; or

(ii) 16 years or over; but under 22 years, and is undertaking full-time study; and

(c) is not:

(i) independent under regulation 67; or

(ii) getting a payment listed in Schedule 1.

Subregulation 94(2A) provides that the same deductions are available in the spouse income test.

The significance of the person being under 22 years was that a person was independent (i.e. no longer dependent on his or her parents) because of his or her age on and from a birthday specified in regulation 68. For 1996, this was the person's 22nd birthday.

The Government announced in the 1996-97 Budget that it would, from 1 January 1997, increase the age at which a person became independent to 25 years. Amendments to regulation 68 (Independent student: (a) age) to give effect to this policy were contained in Statutory Rules 1996 No. 261 (SR 261). However, regulation 87 was not amended at the time

Amendment made by these regulations

Subregulation 9.1 omits "22 year" from subparagraph 97(1)(b)(ii) and substitutes "25 year" to be consistent with the increase in the age at which a person becomes independent.

Commencement and application

The amendment commences on 4 December 1996, the day of commencement of amendments contained in SR 261. Subregulation 9.2 provides that it does not apply to applications for AUSTUDY for a period that ended before 1 January 1997.

Regulation 10

Regulation 102F

What is the amount of rent assistance?

Regulation 11

Regulation 102F

What is the amount of rent assistance?

Background

Rent assistance is payable under Chapter 6A. of the AUSTUDY Regulations, Subregulation 102A(1) provides that rent assistance is payable to a student who pays rent and:

(a) he or she:

(i) is under 25 years, and

(iii) receives the independent living allowance under regulation 72, 73, 74, 75 or 76, and

(iii) does not have a dependent child, or

(b) he or she

(i) receives the away from home living allowance under subregulation 77(33); and

(ii) lives away from his or her carer's home to study.

Regulation 102E provides that a student can only get rent assistance if he or she pays rent of more than $33.20 per week. Regulation 102F provides that rent assistance is payable at the rate of 75 cents for every $1 of rent the student pays above $33.20 per week, and that the maximum amount Of rent assistance is $37.20 per week.

The Government announced in the 1996-97 Budget the introduction of a new reduced rate of AUSTUDY rent assistance to apply to single people living in shared accommodation. These regulations implement that decision

Regulation 102F provides that the maximum amount of rent assistance is 53 7.20 per week. This rate is to be increased to $37.30 to bring it into line with the DSS rate. The change will be taken to have commenced on 1 January 1997. As this change benefits clients, its retrospective commencement will not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Amendments made by these regulations

Regulation 10 omits subregulation 102F(2) and substitutes new subregulation 102F(2) to provide for the increase in maximum rent assistance to $37.30.

Regulation 11 omits subregulation 102F(2) and substitutes new subregulation 102F(2) to implement the Government's reduced rate of rent assistance for single people in shared accommodation.

A student is a single person who shares accommodation if the student;

*       does not have a spouse (as defined in subregulation 93(2)) (new paragraph 102F(3)(a)); and

*       has, in common with one or more other people, the right to use at least one major area of accommodation (new paragraph 102F(3)(b)).

A major area of accommodation is a bathroom, a bedroom or a kitchen whether identifiably separate from other areas of accommodation or not (new subregulation 102F(7)).

A student is not taken to be a single person sharing accommodation if:

*       the student pays, or is liable to pay, amounts for his or her board and lodgings (new paragraph 102F(4)(a))-,

*       the accommodation is in a nursing home (new paragraph 102F(4)(h));

*       the student has the exclusive right to use a major area of accommodation (such as a student who fives in self contained accommodation) and also has the right to use, in common with one or more other people, at least one other major area of accommodation (new subregulation 102F(5)); or

*       the student lives alone in a caravan or mobile home or on board a vessel and has the right, in common with one or more other people, to use a major area of accommodation in a caravan park or marina (new subregulation 102F(6)).

The new weekly maximum rate of rent assistance to apply to single persons sharing accommodation is 2/3rds of the maximum rate of rent assistance available to students who are not single persons daring accommodation. So, for 1997, the new weekly rate is $37.30 x 2/3 = $24.90 (new paragraph 102F(2)(a)).

The maximum amount of rent assistance available to a person who is not a single person who shares accommodation, the amount of weekly rent a student must pay to be eligible for rent assistance under regulation 102E and the amount of rent for the purposes of subregulation 102F(1), do not change as a result of this measure. There are not intended to be any changes to the operation of the income test in regulation 102G as a result of this measure.

Commencement and application

The amendment made by regulation 10 commences on 1 January 1997 and applies immediately it commences.

The amendments made by regulation 11 commence on 1 July 1997 and apply immediately they commence.

Regulation 12

Regulation 102G

What is the effect of the student
income test on rent assistance?

Background

As a result of the amendments made by regulation 11, subregulation 102G(1) has been amended to make it clear that a student who is eligible for rent assistance can get the maximum assistance he or she is entitled to under regulation 102F only if his or her relevant income is not more than the amount calculated under the formula in subregulation 102G(l). The current wording (i.e. the student can get the maximum rent assistance) is unqualified in this way because there is only one rate, of rent assistance

Amendment made by these regulations

Subregulation 12.1 inserts "to which he or she is entitled" after "maximum assistance" in subregulation 102G(1) to clarify the matter.

Commencement and application

This amendment commences on 1 July 3997 and applies immediately it commences.


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