BILLS DIGEST NO. 46, 2016–17              24 November 2016

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

Luke Buckmaster and Anna Dunkley
Social Policy Section

Date introduced:  13 October 2016

House:  House of Representatives

Portfolio:  Social Services

Commencement: Schedule 1, Part 1 will commence from the first 1 January or 1 July to occur after Royal Assent.

Schedule 1, Part 2 will commence on 1 July 2020.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website

All hyperlinks in this Bills Digest are correct as at November 2016.

Purpose of the Bill

The purpose of the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016 (the Bill) is to provide for the abolition, from 1 July 2020, of Mobility Allowance, an Australian Government payment to help eligible people with disabilities with transport costs associated with work, study or training. As a first step, the Bill seeks to change the eligibility criteria for new applicants for Mobility Allowance from 2017 (either 1 January or 1 July) so that they are similar to the eligibility criteria for the National Disability Insurance Scheme (NDIS).

The Government’s objective is ‘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’.[1]

Structure of the Bill

The Bill has a single Schedule, divided into two parts. Part 1 amends the Social Security Act 1991 and the Social Security (Administration) Act 1999 (Administration Act) to limit the circumstances in which a person may be qualified for the mobility allowance.

Part 2 makes provisions to cease the mobility allowance altogether from 1 July 2020, by amending the Farm Household Support Act 2014, the Income Tax Assessment Act 1997, the National Disability Insurance Scheme Legislation Amendment Act 2013, the Social Security Act and the Administration Act.

An explanation of the operation of each part is outlined at page 1 of the Explanatory Memorandum to the Bill.

Background

This section provides some background to the measures in the Bill. It includes a brief explanation of Mobility Allowance and the NDIS, the relationship between these programs, and why people who receive NDIS supports are not eligible for Mobility Allowance.

Mobility Allowance

Mobility Allowance is an Australian Government payment ‘for people with disability, illness or injury who cannot use public transport without substantial assistance and who participate in approved activities’.[2]

To be eligible for Mobility Allowance, a person must:

•       be 16 years of age or older

•       meet residency requirements

•       be unable to use public transport without substantial assistance because of disability, illness, or injury

•       provide a medical report from a doctor confirming that they cannot use public transport

•       travel to and from home for paid work, voluntary work, study or training, or to look for work.[3]

‘Substantial assistance’ means ‘greater assistance than a recipient might reasonably expect on a casual basis from a member of the public or transport staff’.[4] Assessment of whether substantial assistance is required is on the basis of information supplied by the applicant and, if necessary, a doctor.[5]

Mobility Allowance is paid at a flat rate and indexed annually in line with Consumer Price Index (CPI) increases.[6] Payment is either at the standard rate or a higher rate depending on the type of activities undertaken by the recipient.[7] Currently, the standard rate is $93.20 per fortnight and the higher rate is $130.30 per fortnight.[8] The vast majority (around 89 per cent) of recipients receive the standard rate.[9]

Mobility Allowance recipients who do not already hold a Pensioner Concession Card or Health Care Card are eligible for a Health Care Card.[10]

There are currently around 60,000 recipients of Mobility Allowance.[11] In 2016–17, it is expected to cost around $149 million, falling to $45 million by 2019–20.[12]

Of the 63,912 recipients of Mobility Allowance in December 2013, 53,803 (84 per cent) received Disability Support Pension, with 2,293 receiving Age Pension and 1,123 receiving Newstart Allowance.[13] Only 6,204 Mobility Allowance recipients did not receive an income support payment.[14]

Standard rate versus higher rate

Whether a person is eligible for either the standard rate or higher rate of Mobility Allowance is based on criteria such as income support payments they might receive and the types of activities they undertake. The higher rate was introduced in 2006 as part of the Howard Government’s Welfare to Work reforms. The main thrust of these reforms was the extension of mutual obligation and activity testing to new groups of income support recipients: sole parents, partnered parents and people with disabilities who were assessed as able to work part-time.[15]

Standard rate

A person may be eligible for the standard rate of Mobility Allowance, if they:

•       do paid or voluntary work, are self-employed, undertake vocational training or independent living or life skills training, or any combination of these for at least 32 hours every four weeks on a continuing basis

•       look for work under an agreement with an Employment Services Provider such as Disability Employment Services, Community Development Programme, or jobactive

•       participate in a Disability Management Service program with a Disability Employment Services provider or

•       receive Newstart Allowance, Youth Allowance or Austudy and satisfy the activity tests associated with these payments.[16]

Higher rate

A person may be eligible for the higher rate of Mobility Allowance, if they receive Disability Support Pension, Parenting Payment, Newstart Allowance or Youth Allowance as a job seeker and one of the following:

•       work for 15 hours or more a week on wages that are at, or above, the relevant minimum wage or

•       work for 15 hours or more a week on productivity based wages under the Supported Wage System or

•       look for work 15 hours or more a week under an agreement with an Employment Services Provider such as Disability Employment Services, Community Development Programme or jobactive.[17]

National Disability Insurance Scheme (NDIS)

The NDIS provides support to people with disability aged under 65, their families and carers.[18] It is jointly governed and funded by the Australian and participating state and territory governments. The NDIS is being introduced across Australia from July 2016, except in Western Australia where it is still being trialled.

The main component of the NDIS is individualised packages of support to eligible people with disability. When the NDIS is fully implemented in 2019, it is expected that around 460,000 Australians (known as NDIS participants) will receive individualised supports.[19]

NDIS supports may be funded in areas such as education, employment, social participation, independence, living arrangements and health and wellbeing.[20] They may include funding for transport to enable participation in community, social, economic and daily life activities.[21] As such, there is clear overlap between the NDIS and Mobility Allowance.

Mobility Allowance and the NDIS

Recipients of NDIS individualised supports are not eligible for Mobility Allowance.[22]

In 2011, in its report recommending the introduction of the NDIS, the Productivity Commission argued that NDIS participants should not be able to also receive Mobility Allowance:

… a flat rate of Mobility Allowance is inconsistent with the individualised approach of the NDIS. Where people were entitled to a funded package in the NDIS, they would not be eligible for the Mobility Allowance, but instead would have their reasonable assessed mobility needs met by the NDIS (but they would retain the health care card were they to meet the Mobility Allowance eligibility criteria). This change would provide more funding for necessary transport requirements. Others outside the NDIS would still get the Mobility Allowance if they were eligible for it.[23]

Further, the Productivity Commission said that ‘some people outside the proposed NDIS would be likely to receive Mobility Allowances, and the Australian Government should preserve those arrangements’.[24]

The Bill introducing the NDIS, the National Disability Insurance Scheme Bill 2013, passed the Parliament on 21 March 2013.[25] This was followed in May 2013 by the passage of 13 Bills which introduced the funding arrangements for the NDIS. One of these Bills, the National Disability Insurance Scheme Legislation Amendment Bill 2013, included amendments to the Social Security Act, which provided that Mobility Allowance would not be payable when a person is an NDIS participant (section 1038 of the Social Security Act, inserted by item 14 of Schedule 2 of that Bill ).[26]

According to the Explanatory Memorandum for that Bill, the purpose of this amendment was:

… to ensure that NDIS participants do not receive double funding of mobility assistance through the NDIS and social security systems.[27]

The Statement of Compatibility with Human Rights for the Bill further noted:

The amendment to the mobility allowance provisions, so that an NDIS participant who, before joining the scheme, was receiving a mobility allowance is no longer eligible, is made on the basis that they will be receiving this level of support as part of their plan. This ensures the more efficient allocation of resources and, in some cases, there will be more funding allocated for NDIS participants who require assistance with transportation.[28]

The changes in the current Bill were foreshadowed in the 2016–17 Budget measure to ‘provide continuity of support for recipients of the Mobility Allowance as the National Disability Insurance Scheme is rolled out and to revise the eligibility requirements’.[29]

Proposed changes

This section explains the measures contained in the Bill. It includes a brief outline of proposed changes, with reference to relevant provisions. It also includes some contextual information to assist in understanding the changes.

The Bill seeks to make four main changes in relation to Mobility Allowance.

Schedule 1, Part 1 proposes:

•       new, more stringent eligibility criteria for Mobility Allowance

•       a reduction of the period a person may continue to receive Mobility Allowance while they have ceased to undertake a qualifying activity from 12 weeks to four weeks and

•       removal of the option to receive Mobility Allowance as a lump sum payment in advance.

Schedule 1, Part 2 proposes abolition of Mobility Allowance from 1 July 2020.

Changed eligibility criteria

The Bill proposes a number of changes to the eligibility criteria relating to new applicants for Mobility Allowance. Outlined in more detail below, these include:

•       making people aged 65 and above ineligible for Mobility Allowance

•       requiring that a person’s disability be permanent or likely to last for at least 12 months in order to qualify for Mobility Allowance and

•       reducing the range of activities that would make a person eligible to receive Mobility Allowance to ‘gainful employment’ and ‘vocational training’.

According to the Minister for Social Services, the purpose of this is to make the eligibility criteria for Mobility Allowance more like those of the NDIS:

NDIS eligibility requires that a person's disability is likely to be permanent and substantially affect an individual's capacity for social and economic participation. Mobility Allowance eligibility requirements are far broader, requiring merely a disability that affects an individual's ability to use public transport for an extended period of one year or more.[30]

That is, the changes in this part of the Bill are intended to ‘ensure that those who become eligible for the payment from 1 January 2017 are people who are more likely to be eligible for NDIS support’.[31]

The number of new applicants for Mobility Allowance likely to be affected by this change is not known. However, the Minister estimates that around 30 per cent (18,000) of those currently receiving Mobility Allowance would be ineligible for NDIS supports because they are aged 65 or older (around 4,000 recipients), or their disability is ‘mild to moderate or non-permanent’.[32]

Age and disability criteria

The Bill seeks to amend the Social Security Act to make people aged 65 and above ineligible for Mobility Allowance. This will be the same as the upper age limit for eligibility for the NDIS. Currently, there is no upper age limit for access to Mobility Allowance. The only reference to age is that a person must have turned 16 (see the definition of ‘handicapped person’ in section 19 of the Social Security Act).

The Bill also seeks to add to the criteria relating to a person’s disability. Under the new criteria, a person’s physical or mental disability would need to be either permanent or judged to be likely to last for at least 12 months in order for that person to be eligible for Mobility Allowance. This is more stringent than the current provision in the Social Security Act, which makes no mention of the permanency or duration of the disability (see the definition of ‘handicapped person’ in section 19). The proposed criteria are closer to that of the NDIS, which specifies that a disability must be permanent in order for person to qualify for individualised support.[33]

While the current provisions do not impose requirements on the expected duration of a person’s disability, they do require the person’s inability to use public transport without substantial assistance to be either permanent or expected to last for an ‘extended period’.[34] These requirements will be retained in the amended provisions, in addition to the new timing requirements relating to the person’s disability.

The above two changes are to be made by:

•       repealing the definition of handicapped person (current section 19 and subsection 23(1) of the Social Security Act, repealed by items 1 and 2 of the Bill)

•       repealing references to ‘handicapped person’ (which rely on the definition in section 19 that is repealed by item 1) in sections relating to eligibility for the standard rate (section 1035, items 4, 5 and 7) and higher rate (section 1035A, item 16) of Mobility Allowance and

•       inserting text providing that a person must be ‘aged 16 or over and under 65’, and have ‘a physical or mental disability’ and that the Secretary of the Department of Social Services must be ‘of the opinion that the disability is either permanent or likely to last for at least 12 months’ in sections 1035 and 1035A (items 3–5, 7 and 16).

Activity criteria

The Bill seeks to reduce the range of activities that would make a person eligible to receive Mobility Allowance.

Standard rate

First, it seeks to restrict eligibility for the standard rate of Mobility Allowance (as set out in subsection 1044(1) of the Social Security Act). Currently subsections 1035(1) and (2) describe a number of circumstances in which a person may qualify for the standard rate of Mobility Allowance. People must meet the requirements in both subsections to qualify for the payment.

Subsection 1035(1) specifies that a person must be ‘a handicapped person’ and meet various qualifying activities and/or be a recipient of Newstart Allowance, Youth Allowance or Austudy. As discussed above, items 4, 5 and 7 will remove references to ‘handicapped person’ and replace with a requirement for a person to have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months. Item 6 will remove the ability to qualify for the standard rate of Mobility Allowance on the basis of being a recipient of Newstart Allowance, Youth Allowance or Austudy.

Subsection 1035(2) specifies qualifying activities for satisfying what is known as the ‘travel test’. Currently a person can meet this test if they need to travel to and from their home to undertake gainful employment, vocational training, job search activities, voluntary work, or a vocational rehabilitation program (paragraphs 1035(2)(a) to (e)). Items 6, 9, 11 and 13 amend subsections 1035(1) and (2) to remove references to activities other than ‘gainful employment’ and ‘vocational training’.

The effect 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) for at least 32 hours each four weeks in order to qualify for the standard rate of Mobility Allowance.

The impact of the changes to the eligibility criteria are illustrated in Table 1 at Appendix A of this Digest.

Higher rate

Second, the Bill seeks to restrict eligibility for the higher rate of Mobility Allowance (as specified in subsection 1044(1A)). Currently, section 1035A of the Social Security Act provides that a person may qualify for the higher rate if they receive Disability Support Pension (DSP), Parenting Payment, Newstart Allowance or Youth Allowance as a job seeker and meet certain activity criteria. Broadly, these criteria require a person to either be working or undertaking job search activities.

Subsection 1035(A)(1) sets out the preliminary criteria for receiving the higher rate of Mobility Allowance. Currently these criteria require a recipient to be a handicapped person aged 16 or over, who is unable to use public transport without substantial assistance (either permanently or for an extended period) and who is an Australian resident. As discussed above, item 16 will amend subsection 1035A(1) to remove the reference to a ‘handicapped person’ and replace with a requirement for a person to have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months. Item 16 will also require the person to be at least 16 and under 65 years old. The requirements for the person to be unable to use public transport without substantial assistance (either permanently or for an extended period) and to be an Australian resident are not affected by the amendments.

If a person meets the preliminary requirements in subsection 1035A(1) they then need to meet the criteria in one of subsections 1035A(2) to (9) to qualify for the higher rate of Mobility Allowance. Subsections 1035A(2) to (5) set out circumstances in which DSP recipients are eligible. Subsections 1035A(6) to (7) set out circumstances in which recipients of Newstart Allowance, Youth Allowance (but not as a student or new apprentice) or Parenting Payment are eligible. Subsections 1035A(8) to (9) set out circumstances in which recipients of all of these payments are eligible.

Subsections 1035A(3) and (6) set out circumstances in which a person receiving DSP or a person receiving Parenting Payment, Newstart Allowance or Youth Allowance (but who is not undertaking full-time study and is not a new apprentice) is eligible for the higher rate of Mobility Allowance. Currently, the person would be entitled to the higher rate of Mobility Allowance if they are:

•       working for at least 15 hours per week on wages that are at, or above, the relevant minimum wage or

•       undertaking job search activities under an agreement with the Secretary or an employment pathway plan, for work of at least 15 hours per week on a wage that is at least equivalent to the minimum wage

•       and are required to travel to and from their home for the purpose of performing that work or job search activity.

Items 17 and 18 would amend subsections 1035A(3) and (6) to remove job search as a qualifying activity. That is, a person would need to be working for at least 15 hours per week on wages that are at, or above, the relevant minimum wage to qualify under these subsections. Job search activities or participation in an employment pathway plan will no longer be part of the qualifying criteria for the higher rate of Mobility Allowance.

The impact of the changes to the eligibility criteria are illustrated in Table 2 at Appendix 1 of this Digest.

As noted above, the Government has explained the measures in this part of the Bill in terms of making the eligibility criteria for Mobility Allowance more like those of the NDIS. However, it is notable that the new criteria proposed for Mobility Allowance narrow the focus of the payment to work or training activities, while (as noted above) the NDIS has a broader focus which includes community, social, economic and daily life activities.

NDIS status

As noted above, Mobility Allowance is not payable to a person who is an NDIS participant. This Bill proposes amendments to the Social Security Act (section 1038, items 19 to 21) ensuring that a person will not be eligible for Mobility Allowance if they cease being an NDIS participant. This would prevent a person from becoming an NDIS participant and then opting out of the scheme in order to again receive Mobility Allowance.[35]

Reduced continuation period

Currently, Mobility Allowance recipients may continue to receive the payment for 12 weeks after they have ceased participating in a qualifying activity. Item 34 of the Bill proposes reducing this period to four weeks by amending subsection 1046(3) of the Social Security Act.

According to the Minister for Social Services, ‘the existence of the 12-week continuation period has not led to any appreciable increase in the level of workforce participation of mobility allowance recipients’.[36] It could be asked, though, whether the reduction of the continuation period to four weeks could potentially result in worse outcomes in terms of workforce participation.

Repeal of advance payments

Currently, as with some other Australian Government payments, Mobility Allowance recipients can request to receive an advance of their payment. As the Department of Social Security Guide to Social Security Law explains:

The primary objective of advance payments is to make payments more flexible to the needs of recipients. An advance is NOT an additional payment. It is a lump sum payment of a social security entitlement.[37]

Mobility Allowance recipients can claim an advance, equal to 13 fortnightly payments, if they are likely to be qualified for the payment throughout the advance payment period, and if they have not received an advance in the previous 12 months.[38]

The Government says that the repeal of the Mobility Allowance advance payment is unlikely to result in hardship for those who might have wished to claim it:

The Mobility Allowance advance is intended to assist recipients with any large or upfront transport-related costs associated with undertaking qualifying activities. Unlike advances for other income support and family assistance payments, the Mobility Allowance advance is not intended to be used for general costs of living expenses and is not made on the basis of hardship. There is no assessment made of a person’s ability to pay back the advance and there is no discretion to change the rate of repayment.

Importantly, 90 per cent of Mobility Allowance recipients are also receiving another income support payment and will continue to have access to advance payments under their primary payment. The remaining 10 per cent have other means of support which preclude them from receiving a means-tested income support payment, therefore hardship is unlikely to be an issue.[39]

The above does indicate, though, that the repeal of advance payments would mean that Mobility Allowance recipients would no longer have access to assistance with large or upfront transport-related costs associated with undertaking qualifying activities.

The Bill proposes repeal of Mobility Allowance advance payments through repeal of Division 3 of Part 2.21 (item 26) and related provisions of the Social Security Act.

Abolition of Mobility Allowance

The Bill seeks to repeal Mobility Allowance from 1 July 2020. This is to be done by repealing Part 2.21 (Mobility Allowance) and other related provisions and references to Mobility Allowance in the Social Security Act, and making consequential changes to the Farm Household Support Act 2014, the Income Tax Assessment Act 1997, the National Disability Insurance Scheme Legislation Amendment Act 2013, and the Administration Act (items 45 to 72).

As noted above, the Minister estimates that around 30 per cent (18,000) of those currently receiving Mobility Allowance would be ineligible for individualised supports under the NDIS. Consequently, it is likely that a substantial number of people who currently receive Mobility Allowance would not be eligible for NDIS supports and hence not receive support from either program from 1 July 2020.

As the Minister notes, this would mean that such people were ‘not being provided with continuity of support as agreed by [participating] governments [in the NDIS].’[40] As explained on the NDIS website:

Governments have committed to ensuring people with disability who are currently receiving services are not disadvantaged in the transition to the NDIS. This means that if you are currently receiving a disability service, but do not become a participant in the NDIS, you can continue to have access to your current support consistent with your current arrangements. Each government is responsible for providing continuity of support within the programs that government funds. [41]

According to the Minister:

This government is working to ensure that those not expected to transition into the NDIS continue to receive the support they need.

This Bill presents amendments to the Social Security Act 1991 and related legislation as part of the transitioning of Mobility Allowance to the NDIS. It will ensure that continuity of support is provided to current recipients of Mobility Allowance who may not be eligible for the NDIS.

As a first step, the government has provided $46½ million in the 2016-17 budget to ensure that such people continue to receive support through the Mobility Allowance program in the short to medium term.

The government is also considering how such people, including participants in any of the other transitioning programs who are assessed to be ineligible for an NDIS package, will be supported over the long term under continuity of support arrangements.[42]

Given that this funding is for the period prior to abolition of Mobility Allowance, it is not clear how the $46.5 million allocated in the budget will be spent. Is it to be provided to those found ineligible for NDIS supports as areas throughout Australia gradually transition to the scheme and/or those found ineligible for Mobility Allowance under the new criteria proposed by this Bill? What form would any such support take?

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Committee made no comment on this Bill.[43]

Senate Community Affairs Legislation Committee

The Bill has been referred to the Senate Community Affairs Legislation Committee for inquiry and report by 21 November 2016. The Senate granted an extension to 24 November 2016.[44] Details of the inquiry are at the inquiry webpage.

Position of major interest groups

The most common concern expressed in submissions to the Senate Community Affairs Legislation Committee inquiry into the Bill related to the lack of detail about how the ‘continuity of support’ will be provided for people with transport needs who will not be NDIS participants. This includes people 65 and over, people whose level of disability does not allow them to qualify as NDIS participants and people who choose not to become NDIS participants.[45]

The loss of Health Care Card eligibility for those who get Mobility Allowance but not an income support payment was raised by Spinal Cord Injuries Australia.[46]

Several submissions expressed concerns about the adequacy of transport assistance under the NDIS and whether it would be as good as that provided by the Mobility Allowance.[47]

The narrowing of eligibility criteria to exclude participation in voluntary work and job search as criteria for receiving Mobility Allowance was criticised in a number of submissions.[48] It was felt that this would adversely affect the ability of those affected to secure employment.

Financial implications

As noted elsewhere in this Bills Digest, the financial impact over the forward estimates of the measure is expected to be $46.5 million. This is intended to ensure continuity of support for ‘current recipients of Mobility Allowance who may not be eligible for the NDIS’.[49] The specific form that this support will take is not clear.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[50]

Parliamentary Joint Committee on Human Rights

The Committee commented on the proposal to make people aged 65 and over ineligible for Mobility Allowance. It said that there were questions regarding the compatibility of the proposal with the right to equality and non-discrimination on the basis of age.[51]

The Committee sought the advice of the Minister for Social Services ‘as to whether the “continuity of support” arrangements for existing recipients of mobility allowance provides (sic) for the same level of support as that existing under the current allowance’.[52]

The Committee also sought the advice of the Minister regarding:

… whether there is comparable assistance under the aged care system for persons aged 65 and older to participate in work and other approved activities (given there may be persons who are not currently receiving the allowance and who, if the program were not closed, would otherwise be eligible to receive mobility allowance).[53]

Concluding comments

This Bill proposes to make various changes to Mobility Allowance, including tightening the eligibility criteria for new applicants from 1 January 2017 or 1 July 2017 (depending on when Royal Assent is received). The Bill also seeks to repeal Mobility Allowance altogether from 1 July 2020. These measures are intended to ensure that 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’.[54] They are broadly consistent with the position taken by the Productivity Commission in its report recommending the introduction of the NDIS that a person receiving NDIS supports should not also be able to receive Mobility Allowance.

However, the Bill raises a number of matters worthy of further discussion.

First, it is not clear why it is necessary to repeal Mobility Allowance altogether. The Productivity Commission argued that Mobility Allowance should be retained in order to provide assistance to those ineligible for NDIS supports. Wouldn’t retaining Mobility Allowance do away with the need to provide ‘continuity of support’ to those found ineligible for NDIS supports?

Second, it is not clear why it is necessary to align the eligibility criteria for Mobility Allowance with those of the NDIS. The proposed new age, disability and activity criteria amount to fairly substantial changes to Mobility Allowance. While the various changes to Mobility Allowance are expected to result in budget savings, the policy rationale for the eligibility changes is not clear.

Third, the proposed changes to the activity criteria for Mobility Allowance, restricting the payment to work or training activities, appear to be narrower than the NDIS criteria, which include community, social, economic and daily life activities.

Finally, the specific form that ‘continuity of support’ ($46.5 million over the forward estimates) for those who will be ineligible for NDIS supports following the repeal of Mobility Allowance will take is not clear.

Appendix A:

Table 1: Eligibility for standard rate of Mobility Allowance

Current eligibility criteria

(words in italics do not appear in proposed criteria)

Proposed eligibility criteria

(words in italics indicate changed criteria)

Person is eligible if they are:

·          handicapped

·          engaged in gainful employment

·          unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          engaged in gainful employment for at least 32 hours in every four weeks on a continuing basis

·          an Australian resident (1035(1)(a)) and

·          required to travel from their home to undertake the gainful employment (1035(2)).

Person is eligible if they:

·          are aged 16 or over and under 65

·          have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          are engaged in gainful employment

·          are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          are engaged in gainful employment for at least 32 hours in every four weeks on a continuing basis

·          are an Australian resident (1035(1)(a)) and

·          are required to travel from their home to undertake the gainful employment (1035(2)).

Person is eligible if they are:

·          handicapped

·          undertaking vocational training

·          unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          engaged in vocational training for at least 32 hours in every four weeks on a continuing basis

·          an Australian resident (1035(1)(b))

·          required to travel from their home to undertake the vocational training (1035(2)).

Person is eligible if they:

·          are aged 16 or over and under 65

·          have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          are undertaking vocational training

·          are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          are engaged in vocational training for at least 32 hours in every four weeks on a continuing basis

·          are an Australian resident (1035(1)(b)) and

·          are required to travel from their home to undertake the vocational training (1035(2)).

Person is eligible if they are:

·          handicapped

·          receiving Newstart Allowance, Youth Allowance or Austudy

·          unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          required to satisfy the activity test

·          an Australian resident (1035(1)(c))

·          required to travel from their home to undertake the job search activities (1035(2)).

No equivalent. No eligibility for basic rate on basis of receipt of Newstart Allowance, Youth Allowance or Austudy.

Person is eligible if they are:

·          handicapped

·          unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          undertaking job search activities under an agreement between the Secretary and a service provider

·          an Australian resident (1035(1)(d)) and

·          required to travel from their home to undertake the job search activities (1035(2)).

No equivalent.

Person is eligible if they are:

·          handicapped

·          unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          undertaking job search activities under the Competitive Employment Placement and Training Program

·          an Australian resident (1035(1)(e))

·          required to travel from their home to undertake the job search activities (1035(2)).

No equivalent.

Person is eligible if they are:

·          handicapped

·          unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          engaged in voluntary work for at least 32 hours in every four weeks on a continuing basis

·          an Australian resident (1035(1)(f))

·          required to travel from their home to undertake the voluntary work (1035(2)).

No equivalent. Cannot qualify for Mobility Allowance on basis of voluntary work.

Person is eligible if they are:

·          handicapped

·          unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          undertaking a combination of gainful employment, vocational training and/or voluntary work for at least 32 hours in every four weeks on a continuing basis

·          an Australian resident (1035(1)(g)) and

·          required to travel from their home to undertake the combination of activities (1035(2)).

Person is eligible if they:

·          are aged 16 or over and under 65

·          have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          are undertaking a combination of gainful employment and vocational training for at least 32 hours in every four weeks on a continuing basis

·          are an Australian resident (1035(1)(g)) and

·          are required to travel from their home to undertake the combination of employment and vocational training activities (1035(2)).

Person is eligible if they are:

·          handicapped

·          undertaking a vocational rehabilitation program

·          unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          an Australian resident (1035(1)(h)) and

·          required to travel from their home to undertake the vocational rehabilitation program (1035(2)).

No equivalent. Cannot qualify for Mobility Allowance on basis of participation in a vocational rehabilitation program.

Sources: section 1035 of the Social Security Act 1991 and items 3 to 15 of Schedule 1 to the Parliament of Australia, ‘Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016 homepage’, Australian Parliament website.

Table 2: Eligibility for higher rate of Mobility Allowance

Current eligibility criteria

(words in italics do not appear in proposed criteria)

Proposed eligibility criteria

(words in italics indicate changed criteria)

Person is eligible if:

·          they are handicapped

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          at a particular time, the person’s hours of work increase to at least 30 hours per week on a wage that is at least equivalent to the minimum wages

·          immediately before that time they were receiving Disability Support Pension (DSP) as a result of a claim made before 1 July 2006

·          they ceased to be qualified for DSP due to their increased hours of work

·          since the relevant time they have worked at least 30 hours per week and have not received another income support payment and

·          they are required to travel from their home to undertake the work (1035A(1) and (2)).

Person is eligible if:

·          they are aged 16 or over and under 65

·          they have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          at a particular time, the person’s hours of work increase to at least 30 hours per week on a wage that is at least equivalent to the minimum wages

·          immediately before that time they were receiving Disability Support Pension (DSP) as a result of a claim made before 1 July 2006

·          they ceased to be qualified for DSP due to their increased hours of work

·          since the relevant time they have worked at least 30 hours per week and have not received another income support payment and

·          they are required to travel from their home to undertake the work (1035A(1) and (2)).

Person is eligible if:

·          they are handicapped

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          they are receiving DSP

·          they are:

o         working for at least 15 hours per week on a wage that is at least equivalent to the minimum wage and/or

o         undertaking job search activities under an agreement with the Secretary or an employment pathway plan, for work of at least 15 hours per week on a wage that is at least equivalent to the minimum wage and

·          they are required to travel from their home to undertake the work or job search activities (1035A(1) and (3)).

Person is eligible if they:

·          are aged 16 or over and under 65

·          have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          they are receiving DSP

·          they are working for at least 15 hours per week on a wage that is at least equivalent to the minimum wage and

·          they are required to travel from their home to undertake the work (1035A(1) and (3)).

Person is eligible if:

·          they are handicapped

·         they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          they are working for at least 30 hours per week on a wage that is at least equivalent to the minimum wage

·          immediately before starting that work they were receiving DSP

·          they ceased to be qualified for DSP because of their hours of work

·          since starting work they have worked at least 30 hours per week and have not received another income support payment and

·          they are required to travel from their home to undertake the work (1035A(1) and (4)).

Person is eligible if:

·          they are aged 16 or over and under 65

·          they have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          they are working for at least 30 hours per week on a wage that is at least equivalent to the minimum wage

·          immediately before starting that work they were receiving DSP

·          they ceased to be qualified for DSP because of their hours of work

·          since starting work they have worked at least 30 hours per week and have not received another income support payment and

·          they are required to travel from their home to undertake the work (1035A(1) and (4)).

Person is eligible if:

·          they are handicapped

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          at a particular time they start to earn income from work or their work income increases

·          immediately before that time they were receiving DSP

·          they ceased to be qualified for DSP because of their income

·          since the relevant time they have worked at least 15 hours per week on a wage that is at least equivalent to the minimum wage and have not been eligible for an income support payment and

·          they are required to travel from their home to undertake the work (1035A(1) and (5)).

Person is eligible if:

·          they are aged 16 or over and under 65

·          they have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          at a particular time they start to earn income from work or their work income increases

·          immediately before that time they were receiving DSP

·          they ceased to be qualified for DSP because of their income

·          since the relevant time they have worked at least 15 hours per week on a wage that is at least equivalent to the minimum wage and have not been eligible for an income support payment and

·          they are required to travel from their home to undertake the work (1035A(1) and (5)).

Person is eligible if:

·          they are handicapped

·         they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·         they are receiving Newstart Allowance, Youth Allowance (but not as a student or new apprentice) or Parenting Payment

·          they are:

o         working at least 15 hours per week on a wage that is at least equivalent to the minimum wage and/or

o         undertaking job search activities under an agreement with the Secretary or an employment pathway plan, for work of at least 15 hours per week on a wage that is at least equivalent to the minimum wage and

·          they are required to travel from their home to undertake the work or job search activities (1035A(1) and (6)).

Person is eligible if:

·          they are aged 16 or over and under 65

·          they have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          they are receiving Newstart Allowance, Youth Allowance (but not as a student or new apprentice) or Parenting Payment

·          they are working for at least 15 hours per week on a wage that is at least equivalent to the minimum wage and

·          they are required to travel from their home to undertake the work (1035A(1) and (6)).

Person is eligible if:

·          they are handicapped

·         they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          at a particular time they start to earn income from work or their work income increases

·          immediately before that time they were receiving Newstart Allowance, Youth Allowance (but not as a student or new apprentice) or Parenting Payment

·          they ceased to be qualified for Newstart Allowance, Youth Allowance or Parenting Payment because of their income

·          since the relevant time they have worked at least 15 hours per week on a wage that is at least equivalent to the minimum wage and have not been eligible for an income support payment and

·          they are required to travel from their home to undertake the work (1035A(1) and (7)).

Person is eligible if:

·          they are aged 16 or over and under 65

·          they have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          at a particular time they start to earn income from work or their work income increases

·          immediately before that time they were receiving Newstart Allowance, Youth Allowance (but not as a student or new apprentice) or Parenting Payment

·          they ceased to be qualified for Newstart Allowance, Youth Allowance or Parenting Payment because of their income

·          since the relevant time they have worked at least 15 hours per week on a wage that is at least equivalent to the minimum wage and have not been eligible for an income support payment and

·          they are required to travel from their home to undertake the work (1035A(1) and (7)).

Person is eligible if:

·          they are handicapped

·         they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·         they are receiving Newstart Allowance, Youth Allowance (but not as a student or new apprentice), Parenting Payment or DSP

·          they are working for at least 15 hours per week on a supported wage

·          the work is not performed in the course of employment at a supported employment service and

·          they are required to travel from their home to undertake the work (1035A(1) and (8)).

Person is eligible if:

·          they are aged 16 or over and under 65

·          they have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          they are receiving Newstart Allowance, Youth Allowance (but not as a student or new apprentice), Parenting Payment or DSP

·          they are working for at least 15 hours per week on a supported wage

·          the work is not performed in the course of employment at a supported employment service and

·          they are required to travel from their home to undertake the work (1035A(1) and (8)).

Person is eligible if:

·          they are handicapped

·         they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          at a particular time they start to earn income from work or their work income increases

·          immediately before that time they were receiving Newstart Allowance, Youth Allowance (but not as a student or new apprentice), Parenting Payment or DSP

·          they ceased to be qualified for Newstart Allowance, Youth Allowance, Parenting Payment or DSP because of their income

·          since the relevant time they have worked at least 15 hours per week on a supported wage or at a wage that is at least equivalent to the minimum wage

·          since the relevant time they have not been eligible for an income support payment

·          the work is not performed in the course of employment at a supported employment service and

·          they are required to travel from their home to undertake the work (1035A(1) and (9)).

Person is eligible if:

·          they are aged 16 or over and under 65

·          they have a physical or mental disability that the Secretary considers to be permanent or likely to last for at least 12 months

·          they are unable to use public transport without substantial assistance (either permanently or for an extended period) and that inability is due to the person’s physical or mental disability

·          they are an Australian resident

·          at a particular time they start to earn income from work or their work income increases

·          immediately before that time they were receiving Newstart Allowance, Youth Allowance (but not as a student or new apprentice), Parenting Payment or DSP

·          they ceased to be qualified for Newstart Allowance, Youth Allowance, Parenting Payment or DSP because of their income

·          since the relevant time they have worked at least 15 hours per week on a supported wage or at a wage that is at least equivalent to the minimum wage

·          since the relevant time they have not been eligible for an income support payment

·          the work is not performed in the course of employment at a supported employment service and

·          they are required to travel from their home to undertake the work (1035A(1) and (9)).

Sources: section 1035A of the Social Security Act 1991 and items 16 to 18 of Schedule 1 to the Parliament of Australia, ‘Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016 homepage’, Australian Parliament website.

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[1].              Explanatory Memorandum, Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, p. 1.

[2].              Department of Human Services (DHS), ‘Mobility Allowance’, DHS website, last updated 10 November 2016.

[3].              Ibid.

[4].              This does not include such things as determining the location of a train or bus stop or determining when to get off. Department of Social Services (DSS), ‘1.1.S.380 Substantial assistance (MOB)’, Guide to Social Security Law, version 1.227, DSS website, last reviewed 12 August 2013.

[5].              According to DSS, ‘if the applicant's disability or any other existing evidence clearly indicates they require substantial assistance to use public transport, then no further information needs to be sought’. DSS, ‘3.6.6.30 Assessment of medical criteria for MOB’, Guide to Social Security Law, version 1.227, DSS website, last reviewed 12 August 2013.

[6].              DSS, ‘1.2.5.40 Mobility Allowance (MOB) – description’, Guide to Social Security Law, version 1.227, DSS website, last reviewed 1 July 2016.

[7].              Qualifying activities for each rate are set out at: DSS, ‘3.6.6.10 Qualification for MOB’, Guide to Social Security Law, version 1.227, DSS website, last reviewed 9 November 2015.

[8].              DHS, ‘Mobility Allowance’, op. cit.

[9].              Senate Community Affairs Committee, Answers to Questions on Notice, Social Services Portfolio, Additional Estimates 2013–14, Question 616.

[10].              DSS, ‘1.2.5.40 Mobility Allowance (MOB) – description’, op. cit. The Health Care Card provides access to cheaper medicines under the Pharmaceutical Benefits Scheme and to various concessions from the Australian Government. DHS, ‘Health Care Card’, DHS website, last updated 25 August 2016.

[11].              C Porter, ‘Second reading speech: Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016’, House of Representatives, Debates, 13 October 2016, p. 1849.

[12].              Australian Government, Portfolio budget statements 2016–17: budget related paper no. 1.15a: Social Services Portfolio, p. 37.

[13].              Senate Community Affairs Committee, Answers to Questions on Notice, Question 616, op. cit.

[14].              Ibid.

[15].              Welfare to Work was intended to increase the work force participation of income support recipients such as sole parents, those with disabilities, the long term unemployed and mature age recipients. See M Thomas and D Daniels, ‘Welfare to work: a reform agenda in progress’, Briefing book: key issues for the 43rd Parliament, Parliamentary Library, Canberra, 2010, pp. 28–29.

[16].              DHS, ‘Mobility Allowance’, op. cit. See also: DSS, ‘3.6.6.10 Qualification for MOB’, op. cit.

[17].              Ibid.

[18].              L Buckmaster, The National Disability Insurance Scheme: a quick guide, Research paper series, 2016–17, Parliamentary Library, Canberra, 1 September 2016.

[19].              Ibid.

[20].              National Disability Insurance Scheme (NDIS), ‘What are reasonable and necessary supports?’, NDIS website.

[21].              Ibid.

[22].              DHS, ‘Mobility Allowance’, op. cit.

[23].              Productivity Commission (PC), Disability care and support, Inquiry report, 54, vol. 1, PC, Canberra, July 2011, p. 28.

[24].              Ibid., p. 256.

[25].              National Disability Insurance Scheme Act 2013. See also Parliament of Australia, ‘National Disability Insurance Scheme Bill 2013 homepage’, Australian Parliament website.

[26].              Parliament of Australia, ‘National Disability Insurance Scheme Legislation Amendment Bill 2013 homepage’, Australian Parliament website.

[27].              Explanatory Memorandum, National Disability Insurance Scheme Legislation Amendment Bill 2013, p. 14.

[28].              Ibid., p. 6 of the Statement of Compatibility, which begins after page 23 of the Explanatory Memorandum.

[29].              Australian Government, ‘Part 2: expense measures’, Budget measures: budget paper no. 2: 2016–17, p. 142.

[30].              Porter, ‘Second reading speech: Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016’, op. cit., p. 1850.

[31].              Ibid.

[32].              Ibid.

[33].              NDIS, ‘Operational guideline – access – disability requirements’, version 3.2, NDIS, Canberra, 1 September 2014.

[34].              See, for example, sub-subparagraph 1035(1)(a)(iii)(A) and paragraph 1035A(1)(b) of the Social Security Act.

[35].              DSS, Submission to the Senate Community Affairs Legislation Committee, Inquiry into the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, 3 November 2016.

[36].              Porter, ‘Second reading speech: Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016’, op. cit., p. 1850.

[37].              DSS, ‘5.4 Advance payments’, Guide to Social Security Law, version 1.227, DSS website, last reviewed 12 August 2013.

[38].              DSS, ‘5.4.5 MOB advance payment’, Guide to Social Security Law, version 1.227, DSS website, last reviewed 2 January 2015.

[39].              DSS, Submission to the Senate Community Affairs Legislation Committee, op. cit.

[40].              Porter, ‘Second reading speech: Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016’, op. cit., p. 1849.

[41].              NDIS, ‘Continuity of support’, NDIS website. The commitment to continuity of support is set out in bilateral agreements for transition to the full scheme of the NDIS. See NDIS, ‘Intergovernmental agreements’, NDIS website.

[42].              Porter, ‘Second reading speech: Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016’, op. cit., p. 1849.

[43].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2016, The Senate, 9 November 2016, p. 49.

[44].              Australia, Senate, Journals, 18, 2016–17, 23 November 2016, p. 580.

[45].              For example: Combined Pensioners and Superannuants Association of NSW Inc, Submission, no. 2, to the Senate Community Affairs Legislation Committee, Inquiry into the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, November 2016; National Welfare Rights Network, Submission, no. 10, to the Senate Community Affairs Legislation Committee, Inquiry into the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, 4 November 2016; NSW Council of Social Services, Submission, no. 3, to the Senate Community Affairs Legislation Committee, Inquiry into the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, 4 November 2016.

[46].              Spinal Cord Injuries Australia, Submission, no. 1, to the Senate Community Affairs Legislation Committee, Inquiry into the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, 24 October 2016.

[47].              For example, NSW Council of Social Services, Submission to the Senate Community Affairs Legislation Committee, op. cit.

[48].              Ibid.; Children and Young People with Disability Australia, Submission, no. 14, to the Senate Community Affairs Legislation Committee, Inquiry into the Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, November 2016.

[49].              Porter, Second reading speech: Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016’, op. cit., p. 1849.

[50].              The Statement of Compatibility with Human Rights can be found at pages 11 to 14 of the Explanatory Memorandum to the Bill.

[51].              Parliamentary Joint Committee on Human Rights, Report 8 of 2016, 9 November 2016, pp. 9–11.

[52].              Ibid., p. 10.

[53].              Ibid., pp. 10–11.

[54].              Explanatory Memorandum, Social Services Legislation Amendment (Transition Mobility Allowance to the National Disability Insurance Scheme) Bill 2016, p. 1.