Note: Part 4.2 of the Aged Care Act 1997

Part 4.2 of the Aged Care Act 1997 is about the responsibilities of an approved provider to the users and proposed users of the provider’s aged care service.

The Part sets out a number of user rights, and the provider’s related responsibilities. Other rights and responsibilities are set out in these Principles.

An approved provider’s failure to meet its responsibilities may lead to sanctions being imposed under Part 4.4 of the Act.

Part 1 Preliminary

23.1 Citation [see Note 1]

These Principles may be cited as the User Rights Principles 1997.

23.2 Commencement

These Principles commence on 1 October 1997.

23.3 Definitions

(1) In these Principles:

Act means the Aged Care Act 1997.

agreed fee, for a care recipient and an approved provider, means a fee, charge or other payment that is:

(a) agreed between the care recipient and approved provider; and

(b) not prohibited under the Act.

annual prudential compliance statement, of an approved provider, means the annual prudential compliance statement required to be given under section 23.40.

authorised body means:

(a) for Division 4 of Part 2 — a body that has been paid an advocacy or community visitors grant; or

(b) for Division 2 of Part 3 — a body that has been paid an advocacy grant.

bond means:

(a) an accommodation bond; or

(b) an entry contribution.

bond balance means:

(a) in relation to a bond that is an accommodation bond — an accommodation bond balance; or

(b) in relation to a bond that is an entry contribution — an entry contribution balance.

bond register, of an approved provider, means the register established and maintained by the approved provider in accordance with Subdivision 3.3 of Part 4.

due date has the meaning given by section 57-18 of the Act.

entry day, for a care recipient, means the day when the care recipient enters the residential care service or, if the care recipient is transferred from respite care to permanent accommodation, the day of the transfer.

general interest charge rate has the same meaning as in subsection 8AAD (1) of the Taxation Administration Act 1953.

interest equivalent means the amount an approved provider could have been expected to have derived from investment of a care recipient’s accommodation bond balance.

key personnel has the same meaning as in paragraph 9-1 (2) (a) of the Act.

lump sum equivalent, for a care recipient who has elected to pay an accommodation bond wholly or partly by periodic payments, means an amount equal to the amount of the lump sum that the care recipient would have paid if the care recipient had not elected to pay the accommodation bond by periodic payments.

minimum permissible asset value has the meaning given by section 57‑12 of the Act.

multi‑purpose service has the meaning given by section 15.3 of the Flexible Care Subsidy Principles 1997.

Prudential Standard means a Prudential Standard set out in Division 3 of Part 4.

transfer, of a care recipient from respite care to permanent accommodation, means the entry by the care recipient to the residential care service concerned on a permanent basis after having received respite care.

(2) For these Principles, the maximum permissible interest rate, for a day that is an entry day, means the annual rate worked out in accordance with the following steps:

Step 1	Find the general interest charge rate for the entry day.
Step 2	Round the general interest charge rate in accordance with subsection 8AAD (4) of the Taxation Administration Act 1953.
Step 3	Multiply the result worked out under Step 2 by the number of days in the calendar year in which the day falls.
Step 4	Subtract 3 percentage points from the amount worked out under Step 3.

The result is the maximum permissible interest rate for that day.

Note: Definitions

A number of expressions used in these principles are defined in the Aged Care Act 1997 (see Dictionary in Schedule 1), including:

· accommodation bond

· accommodation bond agreement

· accommodation bond balance

· accommodation charge

· accommodation charge agreement

· advocacy grant

· aged care

· approved provider

· assisted resident

· care

· charge exempt resident

· community care

· community care agreement

· community visitors grant

· concessional resident

· dependent child

· extra service agreement

· income support payment

· personal information

· place

· resident agreement

· residential care

· residential care service

· respite care.

Part 2 User rights and responsibilities for residential care

Division 1 Security of tenure

23.4 Purpose of Division (Act, s 56-1)

This Division specifies the arrangements for providing security of tenure for a care recipient’s place in the residential care service.

23.5 Leaving residential care service

(1) The approved provider may ask the care recipient to leave the residential care service only if subsection (2), (3) or (4) applies.

(2) The approved provider may ask the care recipient to leave if the residential care service:

(a) is closing; or

(b) no longer provides accommodation and care suitable for the care recipient, having regard to the care recipient’s long-term assessed needs (see subsection (4)), and the approved provider has not agreed to provide care of the kind that the care recipient presently needs.

(3) The approved provider may ask the care recipient to leave if the care recipient:

(a) no longer needs the care provided through the residential care service (see subsection (5)); or

(b) has not paid any agreed fee to the approved provider within 42 days after the day when it is payable, for a reason within the care recipient’s control; or

(i) serious damage to the residential care service; or

(ii) serious injury to the approved provider (if the approved provider is an individual); or

(iii) serious injury to an employee of the approved provider, or to another care recipient; or

(d) is away from the residential care service for a continuous period of at least 7 days for a reason other than:

(i) a reason permitted by the Act; or

(ii) an emergency.

(4) For paragraph (2) (b), the long-term needs of the care recipient must be assessed by:

(a) an aged care assessment team; or

(b) at least 2 medical or other health practitioners who meet the following criteria:

(i) 1 must be independent of the approved provider and the residential care service, and must be chosen by the care recipient or the care recipient’s appropriate representative;

(ii) both must be competent to assess the aged care needs of the care recipient.

(5) For paragraph (3) (a), the needs of the care recipient must be assessed by an aged care assessment team.

23.6 Requiring care recipient to leave residential care service

(1) If the approved provider decides to require the care recipient to leave the residential care service, the approved provider must give the care recipient a written notice that includes the following information:

(a) the decision;

(b) the reasons for the decision;

(d) the care recipient’s rights about leaving, including the right of access to:

(i) the complaints resolution mechanisms; and

(ii) independent complaints processes; and

(iii) 1 or more representatives of an advocacy service.

Note For complaints resolution mechanisms, see s 56-4 of the Act.

(2) The approved provider must give the notice to the care recipient at least 14 days before the care recipient is to leave.

(3) The approved provider must not take action to make the care recipient leave, or imply that the care recipient must leave, before suitable alternative accommodation is available that meets the care recipient’s assessed long-term needs and is affordable by the care recipient.

(4) For subsection (3), the long-term needs of the care recipient must be assessed by:

(a) an aged care assessment team; or

(b) at least 2 medical or other health practitioners who meet the following criteria:

(i) 1 must be independent of the approved provider and the residential care service, and must be chosen by the care recipient or the care recipient’s representative;

(ii) both must be competent to assess the aged care needs of the care recipient.

(5) The approved provider must give the care recipient a notice stating that the care recipient is no longer required to leave if:

(a) the decision to require the care recipient to leave was based on the care recipient’s behaviour; and

(b) the approved provider has, since giving the original notice, agreed with the care recipient that, because of a change in the behaviour, the care recipient should stay.

Division 2 Access by representatives of care recipients

23.7 Purpose of Division (Act, s 56-1)

This Division specifies the arrangements for allowing people acting for care recipients to have access to an approved provider’s residential care service.

23.8 Access

If a care recipient, or a care recipient’s representative, has asked a person acting for care recipients to assist the care recipient, the approved provider must allow the person to have access to the residential care service at any time.

Division 3 Access by advocates and community visitors

23.9 Purpose of Division (Act, s 56-1)

This Division specifies the arrangements for allowing people acting for authorised bodies to have access to an approved provider’s residential care service.

23.10 Access

The approved provider must allow a person acting for an authorised body to have access to the residential care service:

(a) during normal business hours; or

(b) if a care recipient, or a care recipient’s representative, has asked for a person acting for the authorised body to assist the care recipient — at any time.

Division 4 Consistency with rights and responsibilities

23.11 Purpose of Division (Act, s 56-1)

This Division specifies rights and responsibilities of care recipients who are receiving residential care.

23.12 Rights and responsibilities

The rights and responsibilities of care recipients include the rights and responsibilities under the Charter of Residents’ Rights and Responsibilities set out in Schedule 1.

Division 5 Other responsibilities of approved providers of residential care

23.13 Purpose of Division (Act, s 56-1)

This Division specifies other responsibilities that an approved provider has in relation to a care recipient to whom the approved provider provides, or is to provide, residential care or, for section 23.17, flexible care through a multi‑purpose service in a residential setting.

23.14 Information to be given to new care recipient about rights and obligations etc

(1) When a care recipient enters a residential care service, the approved provider must give information to the care recipient, or his or her representative, about:

(a) the care recipient’s rights and obligations in relation to the service under:

(i) the Charter of Residents’ Rights and Responsibilities set out in Schedule 1; or

(ii) this Part; and

(b) if the care recipient has not entered into a resident agreement — the matters mentioned in paragraphs 59-1 (1) (b) to (h) of the Act.

(2) The approved provider must assist the care recipient, or his or her representative, to understand the information.

23.15 Restrictions on moving care recipient within residential care service

A care recipient may be moved to another bed or room in the residential care service only if:

(a) the move is at the care recipient’s request; or

(b) the care recipient agrees to move after being fully consulted and without being subject to any pressure; or

(i) an aged care assessment team; or

(ii) at least 2 medical or other health practitioners who meet the following criteria:

(A) 1 must be independent of the approved provider and the residential care service, and must be chosen by the care recipient or the care recipient’s appropriate representative;

(B) both must be competent to assess the aged care needs of the care recipient; or

(d) the place occupied by the care recipient becomes an extra service place and the care recipient elects not to pay the extra service fee; or

(e) the move is necessary to carry out repairs or improvements to the premises where the residential care service operates and the care recipient has the right to return to the bed or room, if it continues to exist as a bed or room for care recipients when the repairs or improvements are finished.

23.16 Booking fees — respite stays

(1) A booking fee for respite care must not exceed the lesser of:

(a) 1 week’s fee for the respite care; and

(b) 25% of the fee for the proposed period of respite care.

(2) The booking fee must be deducted from the fee for the respite care.

(3) The booking fee must be refunded if the care recipient enters hospital or dies:

(a) before entering respite care; or

(b) after entering respite care and before the end of the booked period.

(3A) If a care recipient cancels a booking more than 7 days before the proposed day for entry into respite care, the booking fee must be refunded within 14 days after the approved provider was notified that the care recipient cancelled the booking.

(3B) If a care recipient cancels a booking within 7 days before the proposed day for entry into respite care and the reason for the cancellation is other than the care recipient entering hospital or the death of the care recipient before the proposed day for entry into respite care, the whole or part of the booking fee may be retained.

(4) The booking fee must also be refunded if the approved provider requires the care recipient to leave the respite care before the end of the booked period.

(5) If a care recipient chooses to leave the respite care before the end of the booked period, the whole or part of the fee for the unused part of the booked period may be taken from the booking fee.

23.17 Statement of audited accounts

(1) An approved provider that is responsible for the operation of an aged care service that is a residential care service or a flexible care service (other than an approved provider to whom Division 3 of Part 4 of these Principles applies) must, if asked, give a care recipient (or the care recipient’s representative) a copy of:

(a) the most recent statement of the service’s audited accounts; or

(b) if the service is operated as part of a broader organisation — the most recent statement of the audited accounts of the organisation’s aged care component.

Note For the disclosure requirements applying to an approved provider to whom Division 3 of Part 4 of these Principles applies, see Subdivision 3.4 of Part 4.

(2) An approved provider to whom Division 4 of Part 10 of the Residential Care Subsidy Principles 1997 applies is taken to have satisfied the requirement in subsection (1) if the approved provider gives the care recipient (or the care recipient’s representative) a copy of the most recent audited financial report prepared under section 21.26F of those Principles.

23.17A Refund of overpaid resident fee

If the amount of a resident fee mentioned in section 58-1 of the Act paid by a care recipient to an approved provider is more than the amount of the resident fee that is properly payable, the approved provider must give back to the care recipient the amount by which the fee paid is more than the fee properly payable.

Division 6 Access to aged care services for complaints resolution

23.18 Purpose of Division (Act, s 56-4)

This Division specifies the access that an approved provider must allow people authorised by the Secretary to investigate and assist in the resolution of complaints.

23.19 Approved provider to allow necessary access

The approved provider must allow the access necessary to investigate and assist in the resolution of the complaint.

Part 3 User rights and responsibilities for community care

Division 1 Security of tenure

23.20 Purpose of Division (Act, s 56-2)

This Division specifies the arrangements for providing security of tenure for a care recipient’s place in a community care service.

23.21 Security of place

The approved provider may reallocate the care recipient’s place to another care recipient only if:

(a) the care recipient cannot be cared for in the community with the resources available to the approved provider; or

(b) the care recipient tells the approved provider, in writing, that the care recipient wishes to move to a location where community care provided by the provider is not available; or

(c) the care recipient tells the approved provider, in writing, that the care recipient no longer wishes to receive the care; or

(d) the care recipient’s condition changes to the extent that:

(i) the care recipient no longer needs community care; or

(ii) the care recipient’s needs, as assessed by the Secretary, can be more appropriately met by other types of services or care.

Division 2 Access by advocates

23.22 Purpose of Division (Act, s 56-2)

This Division specifies the arrangements for allowing people acting for authorised bodies to assist a care recipient to have access to an approved provider’s community care service.

23.23 Access

If the care recipient, or the care recipient’s representative, has asked for a person acting for an authorised body to assist the care recipient, the approved provider must allow the person to have access to the provider’s community care service.

Division 3 Consistency with rights and responsibilities

23.24 Purpose of Division (Act, s 56-2)

This Division specifies the rights and responsibilities of care recipients who are receiving community care.

23.25 Rights of care recipients

(1) A care recipient has the following rights:

(a) to be involved in deciding the community care most appropriate for the care recipient’s needs;

(b) to be given enough information to help the care recipient make an informed choice;

(d) to be given a written community care plan of the community care that the care recipient will receive;

(e) to receive community care that takes account of the care recipient’s lifestyle and cultural, linguistic and religious preferences;

(f) to be able to take part in social activities and community life as the care recipient wishes;

(g) to be treated with dignity, with the care recipient’s privacy respected;

(h) to complain about the community care being received, without fear of losing the care or being disadvantaged in any other way;

(i) to choose a person to speak on the care recipient’s behalf for any purpose.

(2) The approved provider must not act in a way inconsistent with the care recipient’s right to enter into a community care agreement with the provider.

23.26 Rights of prospective care recipients

(1) An approved provider must give written advice to a prospective care recipient, or the care recipient’s representative, about the rights, responsibilities and entitlements of the care recipient and provider, including the care recipient’s rights and responsibilities about payment of community care charges.

(2) The advice must be given before confirmation of the date for the start of the community care.

Part 4 Accommodation bonds

Division 1A Purpose of Part

23.27A Purpose of Part (Act, s 57-1)

This Part (including the Prudential Standards) is, with the provisions of the Act, intended to deal with all requirements about payment and protection of accommodation bonds.

Division 1 Information

23.27 Purpose of Division (Act, s 57-2)

This Division specifies the information about accommodation bonds that an approved provider must provide to a care recipient before the care recipient enters the provider’s residential care service or flexible care service.

23.28 Information about accommodation bonds

(1) The approved provider must tell the care recipient whether the residential care service or flexible care service charges an accommodation bond if the person is eligible to pay an accommodation bond.

(2) If the service charges, or intends to charge, an accommodation bond and the person is eligible to pay an accommodation bond, the approved provider must give the care recipient the following information about the accommodation bond:

(a) the requirement, if the care recipient has given the provider enough information to decide the value of the care recipient’s assets, for the care recipient to be left, after paying the accommodation bond, with assets having a value of at least the care recipient’s minimum permissible asset value;

(b) details of the interest rate to be charged on amounts owed under the accommodation bond agreement, resident agreement or extra service agreement, and the capacity for amounts and accrued interest on them to be deducted from the balance of the bond before it is refunded;

(d) the retention amount of the bond;

(e) the interest rate on the bond if there is a delay in payment of the lump sum or the bond is paid wholly or partly by periodic payments;

(f) the periods when the retention amount and interest are charged;

(g) payment options (that is, by lump sum, periodic payments, or a combination of lump sum and periodic payments);

(h) refund arrangements;

(i) the prudential arrangements applying to the accommodation bond balance;

(j) when an accommodation bond is not required or, if paid, is refundable.

(3) The approved provider must give each care recipient who has paid the provider an accommodation bond a written guarantee that the accommodation bond balance will be refunded to the care recipient (or his or her representative) in accordance with the Act.

Note Section 57-2 of the Act sets out basic rules about accommodation bonds. In particular, paragraphs 57-2 (a) and (h) deal with circumstances when an accommodation bond is not required or, if paid, is refundable.

Division 2A When an accommodation bond must not be charged

23.28A Purpose of Division (Act, s 57‑2)

This Division specifies when an accommodation bond must not be charged.

Note The Act specifies additional circumstances in which an accommodation bond must not be charged (see, for example, paragraphs 57‑2 (1) (h) and (o) of the Act).

23.28B Flexible care services

An approved provider must not charge an accommodation bond for the entry of a person to a flexible care service if, at the time of entry:

(a) the flexible care service is not a multi‑purpose service; or

(b) the care to be provided through the service to the person will be provided other than in a residential setting.

Division 2 Other rules about accommodation bonds

23.29 Purpose of Division (Act, s 57-2)

This Division specifies other rules about accommodation bonds.

23.30 Accommodation bond agreement required even if waiver is sought

(1) This section applies if:

(a) the care recipient is not a concessional resident; and

(b) the approved provider or care recipient has applied to the Secretary for a determination, under subsection 57-14 (1) of the Act, that the care recipient must not be charged an accommodation bond because paying the accommodation bond would cause the care recipient financial hardship.

(2) An accommodation bond agreement must still be made if:

(a) the application has not been decided; and

(b) the approved provider intends to charge an accommodation bond if the application is refused.

(3) The agreement must state that the accommodation bond is payable if:

(a) the Secretary declines to make the determination; or

(b) the determination is made but later ceases to be in force.

(4) If the care recipient has a physical incapacity, a person nominated by the care recipient may sign the agreement for the care recipient.

(5) If the care recipient has a cognitive impairment, a person who is authorised to sign documents for the care recipient may sign the agreement for the care recipient.

23.30A Matters relevant to extending time limit

For subsection 57-2 (2) of the Act, the Secretary may have regard to any matters the Secretary considers relevant in extending the time mentioned in paragraph 57-2 (1) (e) of the Act.

23.31 Payment if agreed accommodation bond not paid

(1) This section applies to a care recipient who:

(a) has agreed to pay the accommodation bond wholly or partly as a lump sum; and

(b) leaves the residential care service after being provided with care for more than 2 months; and

(2) The care recipient may be required to pay the interest equivalent to the approved provider.

(3) The interest equivalent is the amount worked out in accordance with the following formula:

where:

IR is:

(a) the interest rate mentioned in the accommodation bond agreement; and

(b) not more than the maximum permissible interest rate for the entry day.

LS is the amount of the lump sum.

ND is the number of days in the period:

(a) beginning on the first day of the month in which the due date happens; and

(b) ending on the last day of the month in which the care recipient leaves the service.

Division 3 Prudential Standards

Subdivision 3.1 Purpose and application of Division

23.32 Purpose of Division (Act, s 57‑4)

This Division sets out Prudential Standards providing for:

(a) protection of bond balances of care recipients (the Liquidity Standard); and

(b) sound financial management of approved providers (the Records Standard); and

23.33 Application of Division 3

This Division applies to an approved provider:

(a) if, on or after 1 July 2006, an accommodation bond is paid, wholly or partly as a lump sum, for entry to an aged care service through which residential care or flexible care is provided by the approved provider; or

(b) if:

(i) before 1 July 2006, a bond was paid, wholly or partly as a lump sum, for entry to an aged care service through which residential care or flexible care is provided by the approved provider on or after that date; and

(ii) as at 1 July 2006, the bond balance in respect of that bond had not been refunded.

Note For bond and bond balance — see subsection 23.3 (1).

23.34 Definitions

In this Division:

2005‑2006 financial year, in relation to an approved provider, means:

(a) the period of 12 months ending on 30 June 2006; or

(b) if another period has been determined by the Secretary under paragraph 21.26B (2) (c) of the Residential Care Subsidy Principles 1997 for paragraph (b) of the definition of relevant financial year in subsection 21.26B (1) of those Principles — that other period.

financial year, in relation to an approved provider, means:

(a) a period of 12 months commencing on 1 July; or

23.35 Requirements for annual prudential compliance statements

An annual prudential compliance statement:

(a) must be in writing in a form approved by the Secretary; and

(b) must include all the statements and information required by the form; and

(d) must be signed by a person who:

(i) is one of the approved provider’s key personnel; and

(ii) is authorised by the approved provider to sign the statement.

Subdivision 3.2 Liquidity Standard

23.36 Requirement for sufficient liquidity

Whenever an approved provider holds bond balances, the approved provider must maintain sufficient liquidity to ensure that the approved provider can refund, in accordance with the Act and these Principles, any bond balances that can be expected to fall due in the following 12 months.

Note For bond balance — see subsection 23.3 (1).

23.37 Requirement to implement, maintain and comply with liquidity management strategy

(1) An approved provider that holds one or more bond balances must implement and maintain a written liquidity management strategy that sets out:

(a) the amount (expressed as an amount of whole dollars) required to ensure that the approved provider has sufficient liquidity for the purposes of section 23.36 (the minimum level of liquidity); and

(b) the factors that the approved provider had regard to in determining the minimum level of liquidity; and

Note For bond balance — see subsection 23.3 (1).

(2) An approved provider must:

(a) maintain, in the form specified in the provider’s liquidity management strategy, the minimum level of liquidity; and

(b) ensure that the provider’s liquidity management strategy is up to date and complies with the requirements set out in subsection (1); and

(c) modify, or replace, its liquidity management strategy if the provider becomes aware that the liquidity management strategy no longer complies with the requirements set out in subsection (1).

Subdivision 3.3 Records Standard

23.38 Bond register

(1) An approved provider must establish and maintain a register (the bond register) that sets out information in relation to bonds.

Note For bond — see subsection 23.3 (1).

(2) The bond register must include, but is not limited to, the following information:

(a) for each care recipient in respect of whom an accommodation bond is paid to the approved provider on or after 1 July 2006, or in respect of whom the approved provider holds an accommodation bond balance on or after 1 July 2006:

(i) the name of the care recipient; and

(ii) the Resident Identification Number allocated by the Department in respect of the care recipient; and

(iii) the date on which the care recipient entered the aged care service through which the care recipient is provided with care by the approved provider on or after 1 July 2006; and

(iv) if, immediately before entering the aged care service mentioned in subparagraph (iii), the care recipient was provided with care through an aged care service (the original aged care service), and an accommodation bond was paid for the care recipient’s entry to the original aged care service — the date on which the care recipient entered the original aged care service; and

(v) the date on which the whole or each part of an accommodation bond paid by lump sum was paid for entry to the aged care service mentioned in subparagraph (iii); and

(vi) the amount of each payment mentioned in subparagraph (v); and

(vii) the amount of any deduction made from the accommodation bond on or after 1 July 2006; and

(viii) the date of any deduction mentioned in subparagraph (vii); and

(ix) the reason for any deduction mentioned in subparagraph (vii); and

(x) the accommodation bond balance as at 1 July 2006 (if applicable); and

(xi) the accommodation bond balance as at the end of each calendar month (being a month commencing no earlier than 1 July 2006 and during which the approved provider held an accommodation bond balance in respect of the care recipient);

(b) for each care recipient in respect of whom the approved provider holds an entry contribution balance on or after 1 July 2006:

(i) the name of the care recipient; and

(ii) the Resident Identification Number allocated by the Department in respect of the care recipient; and

(iii) the date on which the entry contribution was paid; and

(iv) the amount of the entry contribution; and

(v) the entry contribution balance as at 1 July 2006;

(i) if the accommodation bond balance was refunded because the care recipient died — the date on which the care recipient died and, if applicable, the date on which the approved provider is shown the probate of the will of the care recipient or letters of administration of the estate of the care recipient; and

(ii) if the accommodation bond balance was refunded because the care recipient ceased to be provided with care through the aged care service — the date on which the care recipient ceased to be provided with that care; and

(iii) if subparagraph (ii) applies and the care recipient notified the approved provider, before the date mentioned in that subparagraph, that the care recipient was to enter another aged care service to receive residential care — the date on which the care recipient notified the approved provider; and

(iv) if the accommodation bond was paid for entry to a residential care service, and the accommodation bond balance was refunded because the residential care service ceased to be certified — the date the residential care service ceased to be certified; and

(v) the date on which, or by which, the approved provider was required to refund the accommodation bond balance to the care recipient, worked out, subject to subsection (3), in accordance with Subdivision 57‑G of the Act; and

(vi) the date on which the accommodation bond balance was refunded; and

(vii) the amount of the accommodation bond balance refunded; and

(viii) the amount of base interest paid (if any) under Division 14; and

(ix) the amount of maximum permissible interest paid (if any) under Division 14;

(d) for each care recipient in respect of whom an entry contribution balance is refunded on or after 1 July 2006:

(i) the date on which the care recipient ceased to be provided with care through the aged care service; and

(ii) the date on which the approved provider was required to refund the entry contribution balance to the care recipient, worked out in accordance with the formal agreement applying in respect of the entry contribution balance; and

(iii) the date on which the entry contribution balance was refunded; and

(iv) the amount of the entry contribution balance refunded; and

(v) the amount of maximum permissible interest paid (if any) under Division 15;

(e) any other information determined, by legislative instrument, by the Secretary.

(3) For subparagraph (2) (c) (v), if the refunding event occurred before 31 May 2006, the date on which, or by which, the approved provider is required to refund the accommodation bond balance to the care recipient is worked out in accordance with Subdivision 57‑G of the Act as in force immediately before 31 May 2006.

(4) In this section:

refunding event means an event mentioned in paragraph 57‑21 (1) (a), (b) or (c) of the Act as in force immediately before 31 May 2006.

Subdivision 3.4 Disclosure Standard

23.39 Disclosure to the Department — 2006

By 31 October 2006 the approved provider must give the Secretary a written statement that sets out:

(a) the total number of bond balances held by the approved provider as at 1 July 2006; and

(b) the total value of bond balances held by the approved provider as at 1 July 2006.

Note 1 An approved provider may also have disclosure requirements in respect of the 2005‑2006 financial year under section 23.40B of these Principles as in force immediately before 31 May 2006 (see section 4 of the User Rights Amendment Principles 2006 (No. 1)).

Note 2 For bond balance — see subsection 23.3 (1).

23.40 Annual prudential compliance statement

(1) Within 4 months after the end of each financial year for an approved provider (other than the 2005‑2006 financial year), the approved provider must give the Secretary a written statement (the annual prudential compliance statement) that includes:

(a) the following information:

(i) the total number of bond balances held by the approved provider as at the end of the financial year;

(ii) the total value of bond balances held by the approved provider as at the end of the financial year;

(iii) if, during the financial year, bond balances were not refunded in accordance with subsection 57‑21 (3) of the Act (other than an accommodation bond balance in relation to which the approved provider has made an agreement as mentioned in subsection 57‑22 (1) of the Act) or an applicable formal agreement — the information specified in subsection (2);

(iv) if, for the whole or a part of the financial year, the approved provider was not permitted to charge an accommodation bond for entry by a care recipient to any aged care service that the approved provider is responsible for operating — the period or periods during which the approved provider was not permitted to charge an accommodation bond, and the aged care service in respect of which each period specified applies;

(v) any other information determined, by legislative instrument, by the Secretary; and

(b) a statement about whether the approved provider has, during the financial year, complied with:

(i) Subdivision 3.2 of Division 3 of Part 4 of these Principles (the Liquidity Standard); and

(ii) Subdivision 3.3 of Division 3 of Part 4 of these Principles (the Records Standard); and

(iii) Subdivision 3.4 of Division 3 of Part 4 of these Principles (the Disclosure Standard); and

(iv) paragraph 57‑2 (1) (e) and section 57‑21 of the Act; and

(v) subsection 23.28 (3), and Divisions 2 and 5 of Part 4, of these Principles; and

(c) if the approved provider has not complied with the Records Standard — a statement about why the approved provider has not complied with the Standard; and

(d) if the approved provider has not complied with the Disclosure Standard — the information specified in subsection (3); and

(e) an audit opinion, provided by the person who provides the independent audit mentioned in section 23.41, on whether the approved provider has complied with this Division in the relevant financial year.

Note 1 For bond balance — see subsection 23.3 (1).

Note 2 The annual prudential compliance statement must be supported by an independent audit — see section 23.41.

(2) For subparagraph (1) (a) (iii), the approved provider must include the following information in the annual prudential compliance statement:

(a) the total number of accommodation bond balances (if any) not refunded in accordance with subsection 57‑21 (3) of the Act;

(b) the total number of entry contribution balances (if any) refunded after the last day for the entry contribution balance to be refunded under the formal agreement applying in respect of the entry contribution balance;

(d) in respect of each reason provided — the total number of instances of delay attributable to the reason.

Note For bond balance — see subsection 23.3 (1).

(3) For paragraph (1) (d), the approved provider must include the following information in the annual prudential compliance statement:

(a) the total number of occasions on which the approved provider did not comply with the Disclosure Standard;

(b) the reason or reasons for the approved provider’s failure to comply with the Disclosure Standard;

23.41 Audit of annual prudential compliance statement

An annual prudential compliance statement must be supported by an independent audit provided by:

(a) a registered company auditor within the meaning of the Corporations Act 2001; or

(b) a person approved by the Secretary under subsection 21.26F (6) of the Residential Care Subsidy Principles 1997.

23.42 Disclosure to care recipients

(1) Within 7 days of an accommodation bond agreement being entered into between an approved provider and a care recipient, the approved provider must give the care recipient (or the care recipient’s representative):

(a) a copy of the agreement; and

(b) if an accommodation bond has been paid, or will be paid, for the care recipient’s entry into the aged care service operated by the approved provider — a copy of the written guarantee of refund of the accommodation bond balance.

(2) Within 4 months after the end of each financial year for an approved provider, the approved provider must give to each care recipient (or to the care recipient’s representative) in respect of whom a bond has been paid for entry to the aged care service operated by the approved provider a written statement that includes:

(a) information about the number of bond balances that, in the financial year, were not refunded in accordance with subsection 57‑21 (3) of the Act or a formal agreement: and

(b) a statement about whether the approved provider complied with this Division in the financial year; and

(i) the entry in the bond register that relates to the care recipient, as at the end of the financial year (if applicable); and

(ii) the audit opinion mentioned in paragraph 23.40 (1) (e), in respect of the financial year.

Note For bond and bond balance — see subsection 23.3 (1).

(3) The approved provider must, if requested by a care recipient in respect of whom a bond has been paid for entry to the aged care service operated by the approved provider, or by the care recipient’s representative, give the care recipient (or the representative), within 7 days of the request being made, a copy of:

(a) the entry in the bond register that relates to the care recipient, as at the time of the request; and

(b) either:

(i) the most recent statement of the aged care service’s audited accounts; or

(ii) if the aged care service is operated as part of a broader organisation — the most recent statement of the audited accounts of the organisation’s aged care component.

Note For bond — see subsection 23.3 (1).

23.43 Disclosure to prospective care recipients

The approved provider must, if requested by a prospective care recipient or a prospective care recipient’s representative, give the prospective care recipient (or the representative), within 7 days of the request being made:

(a) the following information in relation to the preceding financial year:

(i) the number of bond balances that, in the financial year, were not refunded in accordance with subsection 57‑21 (3) of the Act or a formal agreement;

(ii) whether the approved provider complied with this Division in the financial year; and

(b) a copy of:

(i) the audit opinion mentioned in paragraph 23.40 (1) (e), in respect of the preceding financial year; and

(ii) either:

(A) the most recent statement of the aged care service’s audited accounts; or

(B) if the aged care service is operated as part of a broader organisation — the most recent statement of the audited accounts of the organisation’s aged care component.

Note For bond balance — see subsection 23.3 (1).

Division 5 Contents of accommodation bond agreements

23.47 Purpose of Division (Act, s 57-9)

This Division specifies additional matters that must be set out in an agreement for it to be an accommodation bond agreement.

23.48 Amount of accommodation bond — no financial hardship

(1) This section applies if the care recipient is not a concessional resident and an accommodation bond is not paid because the approved provider or care recipient has applied to the Secretary for a determination, under subsection 57-14 (1) of the Act, that the care recipient must not be charged an accommodation bond because paying the accommodation bond would cause the care recipient financial hardship.

(2) The accommodation bond agreement must state the amount of accommodation bond payable by the care recipient if:

(a) the Secretary declines to make the determination; or

(b) the determination is made but later ceases to be in force.

23.49 Retention amounts and interest, or interest equivalent, charges

(1) The accommodation bond agreement must state, in dollar terms, the amount of each retention amount that will be deducted from the accommodation bond balance.

Note For retention amounts, see s 57-20 of the Act, and for maximum retention amounts, see s 23.71 of these Principles.

(2) The agreement must state:

(a) the rate of interest or interest equivalent payable if the accommodation bond:

(i) is paid wholly or partly as a lump sum after the due date; or

(ii) is paid by periodic payments; or

(iii) has not been paid when it was due to be paid; and

(b) the way interest, or interest equivalent, charges are calculated; and

(i) if it can be calculated when the agreement is made; and

(ii) assuming that the care recipient will make all payments when they are due; and

(d) the retention amounts payable if the care recipient is provided with care for not more than 2 months; and

(e) the frequency at which interest, or interest equivalent, charges will be debited.

23.50 Periodic payments

(1) This section applies if the care recipient elects to pay the accommodation bond wholly or partly by periodic payments.

(2) The accommodation bond agreement must state:

(a) the amount of the lump sum equivalent; and

(b) the amount and frequency of the periodic payments; and

(i) retention; and

(ii) interest.

23.51 Conversion from periodic payments to payment by lump sum

(1) This section applies if the care recipient elects to pay the accommodation bond wholly or partly by periodic payments.

(2) The accommodation bond agreement must state that the care recipient may, at any time, pay as a lump sum all or part of the lump sum equivalent.

23.52 Providing information to third parties

(1) The accommodation bond agreement must state that, if a care recipient wishes to move from one residential care service (the original service) to another residential care service (the new service), the approved provider of the original service may ask the care recipient for permission to provide the information mentioned in subsection (2) to the approved provider of the new service.

(2) The information is:

(a) whether the care recipient has agreed to pay an accommodation bond; and

(b) if so, the amount agreed and, if the care recipient has agreed to pay amount wholly or partly by periodic payments, the lump sum equivalent; and

(c) the period remaining during which, under section 57-20 of the Act, retention amounts may be deducted from the care recipient’s accommodation bond balance; and

(d) amounts that may be deducted from the accommodation bond balance.

Division 6 Making financial hardship determinations

23.53 Purpose of Division (Act, s 57-14)

This Division specifies:

(a) matters relevant to the making of a determination by the Secretary that a person must not be charged an accommodation bond because payment of an accommodation bond would cause the person financial hardship; and

(b) some circumstances constituting financial hardship.

23.54 Income assessment required before determination made

The Secretary may make a determination for a care recipient only if the care recipient’s income has been assessed under the Social Security Act 1991 or Veterans’ Entitlements Act 1986.

23.55 Effect of determination

A determination may be expressed to take effect from a date before it is made.

23.56 Circumstances constituting financial hardship

(1) In this section:

unrealisable asset has the meaning given by subsections 11 (12), (13) and (14) of the Social Security Act 1991.

(2) Payment of an accommodation bond would cause a person financial hardship if, for example:

(a) the payment would cause hardship to the person’s partner or a dependent child of the person; or

(b) the value of the person’s assets, other than unrealisable assets, is less than the minimum permissible asset value.

(3) In working out if the person is a concessional resident, payment of an accommodation bond would cause a person financial hardship if:

(a) the person has been a homeowner; and

(b) a carer of the person has occupied the home for the past 2 years and, at the applicable time, was eligible to receive an income support payment; and

(i) the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 2.5 times the basic age pension amount at that time; or

(ii) such other amount as is specified in, or worked out in accordance with, these Principles.

(4) For paragraph (3) (b), applicable time has the meaning given by subsections 44-7 (1A) and (2) of the Act.

Division 7 Revoking financial hardship determinations

23.57 Purpose of Division (Act, s 57-15)

This Division specifies the circumstances in which the Secretary may revoke a determination under section 57-14 of the Act.

Note For provisions about determinations under section 57-14 of the Act, see Division 6 of this Part.

23.58 Revocation of a determination

The Secretary may revoke a determination if the Secretary is satisfied that:

(a) the circumstances of the care recipient have changed; and

(b) paying an accommodation bond would not cause the care recipient financial hardship.

Example of change of circumstances for paragraph (a):

Assets of the care recipient that were unrealisable assets are no longer assets of that kind.

Division 8 Periodic payments

23.59 Purpose of Division (Act, s 57-17)

This Division specifies matters relating to payment of an accommodation bond wholly or partly by periodic payments.

23.60 Frequency of periodic payments

(1) The care recipient must agree with the approved provider on the frequency of periodic payments.

(2) The frequency of periodic payments cannot be more often than weekly.

23.61 Agreement on periodic payments

(1) The amount of a periodic payment, worked out in accordance with section 23.62, must be agreed between the care recipient and approved provider.

(2) A periodic payment for the month when the care recipient leaves the service may be charged at a rate for the full month.

23.62 Amount of periodic payments

(1) In this section:

IR, for a care recipient, means the interest rate stated in the care recipient’s accommodation bond agreement.

LSE, for a care recipient, means amount of the care recipient’s lump sum equivalent.

NPP, for a care recipient, means the number of periodic payments payable by the care recipient in the relevant year.

RC, for a care recipient, means the amount of the retention component stated in the care recipient’s accommodation bond agreement.

(2) The amount of a periodic payment must be worked out in accordance with the following formula:

(3) The accommodation bond agreement must state:

(a) an interest rate that is not more than the maximum permissible interest rate for the entry day; and

(b) the amount of the retention component worked out in accordance with:

(i) if no part of the accommodation bond is paid as a lump sum — subsection (4); or

(ii) if part of the accommodation bond is paid as a lump sum — subsections (4) and (5) and, if applicable, (6).

(4) The amount of the retention component must not exceed the maximum retention amount that may be deducted under section 23.71, during the year beginning on the entry day, from the amount that would have been the accommodation bond balance if the care recipient had paid the whole of the accommodation bond as a lump sum.

(5) If part of the accommodation bond is paid as a lump sum, the amount of the retention component of the periodic payments is reduced, on a proportionate basis, in accordance with the ratio of the lump sum equivalent to the amount of the accommodation bond.

(6) However, if the lump sum is sufficient to cover the total of the retention amounts for the period of 5 years for the whole of the bond, including the lump sum equivalent, and the care recipient elects:

(a) the amount of the retention component is nil; and

(b) the total of the retention amounts, including the retention component that would otherwise be payable on the lump sum equivalent, may be deducted from the amount paid as a lump sum.

(7) For subsection (6):

(a) the period of 5 years begins on the entry day; and

(b) the care recipient’s election must be made in writing and given to the approved provider.

23.63 Respite care periods to be disregarded

Periodic payments are not payable for any period when the care recipient is in respite care.

23.64 Minimum amount of periodic payments

(1) The minimum amount of periodic payments payable by the care recipient is the amount representing the periodic payments that would have been payable for 3 calendar months.

(2) The approved provider may charge the full amount of a periodic payment that is payable for the month in which the care recipient leaves the service.

Division 9 Rights of approved providers to retention of income

23.65 Purpose of Division (Act, s 57-18)

This Division:

(a) specifies a method for working out, in certain circumstances, the interest equivalent; and

(b) provides that, in specified circumstances, an approved provider must not retain income derived, from the investment of the balance, in respect of a specified period.

23.66 Working out of amounts

(1) If the care recipient pays the accommodation bond wholly or partly as a lump sum after the due date, the interest equivalent is the amount worked out in accordance with the following formula:

where:

IR is:

(a) the interest rate mentioned in the accommodation bond agreement; and

(b) not more than the maximum permissible interest rate for the entry day.

LS is the amount of the lump sum.

ND is the number of days in the period:

(a) beginning on the due date; and

(b) ending on the day when the accommodation bond was paid wholly or partly as a lump sum.

(2) If:

(a) the care recipient is provided with care for 2 months or less; and

(b) the care recipient pays the accommodation bond wholly or partly as a lump sum; and

the interest equivalent is the amount worked out in accordance with the following formula:

where:

IR is:

(a) the interest rate mentioned in the accommodation bond agreement; and

(b) not more than the maximum permissible interest rate for the entry day.

LS is the amount of the lump sum.

ND is the number of days in the period:

(a) beginning on the day when the lump sum was refunded; and

(b) ending 3 months after the entry day.

(3) If the care recipient:

(a) leaves the residential care service within 2 months after entering the service; and

(b) has agreed to pay the accommodation bond wholly or partly as a lump sum; and

the interest equivalent is the amount worked out in accordance with the following formula:

where:

IR is:

(a) the interest rate mentioned in the accommodation bond agreement; and

(b) not more than the maximum permissible interest rate for the entry day.

LS is the amount of the lump sum.

ND is the number of days in 3 calendar months from the day the care recipient entered the residential care service.

(4) If subsections (1) and (2) both apply, the interest equivalent is the total of the amounts worked out in accordance with those subsections.

(5) The maximum period for which a retention component may be included in periodic payments is 5 years.

(6) The approved provider may require payment of an amount less than the interest equivalent.

23.67 Respite care periods to be disregarded

If the care recipient is transferred from respite care, the approved provider must not retain income derived, from investment of the care recipient’s accommodation bond balance, in respect of the period when the care recipient is in respite care.

23.67A Financial hardship — period to be disregarded

If a determination under subsection 57-14 (1) of the Act is in force for a care recipient, an approved provider must not retain income derived, from the investment of the care recipient’s accommodation bond balance, in respect of the period beginning on the date of effect of the determination and ending on the day when the determination ceases to be in force under subsection 57-4 (3) of the Act.

Division 10 Deduction from accommodation bond balance of interest on amounts owed

23.68 Purpose of Division (Act, s 57-19)

This Division provides for the working out of amounts, representing interest on amounts owed to an approved provider by a care recipient under an accommodation bond, resident or extra service agreement, that the approved provider may deduct from the care recipient’s accommodation bond balance.

23.69 Interest on amounts owed

(1) The maximum rate of interest that the approved provider may charge must not be more than the maximum permissible interest rate for the entry day.

(2) Interest may only be charged for the period that:

(a) begins on the day after the day 1 month after the day when the amount becomes payable under the accommodation bond, resident or extra service agreement; and

(b) ends on the day when the amount owed to the approved provider is paid or the residential care service ceases to provide care to the care recipient (whichever is earlier).

Division 11 Rights of approved providers to retention amounts

23.70 Purpose of Division (Act, s 57-20)

The purpose of this Division is to state the method of working out the maximum retention amount that may be deducted by an approved provider from a care recipient’s accommodation bond balance.

23.71 Maximum retention amount

(1) The maximum retention amount that may be deducted, from an accommodation bond balance, during a year (the first year) beginning on the day, or a year (a later year) beginning on the anniversary of the day, when the care recipient enters the residential care service for an accommodation bond is:

(a) if the accommodation bond is not more than X — 10% of X; or

(b) if the accommodation bond is more than X but not more than Y — 10% of the accommodation bond; or

(2) However, despite subsections (3) and (4), the maximum retention amount for a care recipient for a later year is the same as the maximum retention amount for the first year.

(3) In subsection (1):

X is:

(a) for a year beginning in the financial year beginning on 1 July 1997 — $13,500; or

(b) for a year beginning in a later financial year — the amount declared under subsection (4) for the financial year.

Y is:

(a) for a year beginning in the financial year beginning on 1 July 1997 — $26,000; or

(b) for a year beginning in a later financial year — the amount declared under subsection (4) for the financial year.

(4) Before or as soon as practicable after the beginning of each later financial year, the Secretary must, by notice in the Gazette and in accordance with section 23.72, declare the amounts of X and Y for the financial year.

23.72 Calculation of indexation increase

(1) In this section:

CPI number means the All Groups Consumer Price Index number (that is, the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

earlier CPI number, for a financial year, means:

(a) the CPI number for the last March quarter before the beginning of the financial year (the most recent earlier CPI number); or

(b) if the CPI number for the March quarter of an earlier financial year that started after 30 June 1997 is higher than the most recent earlier CPI number — the higher CPI number.

indexed element means the element X or Y mentioned in subsection 23.71 (3).

latest CPI number, for a financial year, means the CPI number for the March quarter in the financial year.

relevant amount, for an indexed element in a financial year, means the amount of the element in the financial year.

(2) If, for a financial year, the latest CPI number is more than the earlier CPI number, the amount of each indexed element is increased on 1 July of the next financial year.

(3) The amount of the increased indexed element is the amount worked out in accordance with the formula:

(4) If, apart from this subsection, the amount of an indexed element increased under this section would not be a multiple of $60, the amount is rounded to the nearest multiple of $60 (rounding $30 upwards).

(5) If, at any time, whether before or after the commencement of these Principles, the Australian Statistician publishes a CPI number for a March quarter in substitution for a CPI number previously published for the quarter, the publication of the later CPI number is to be disregarded for this section.

(6) However, if, at any time, whether before or after the commencement of these Principles, the Australian Statistician changes the reference base for the Consumer Price Index, then, in applying this section after the change is made, regard is to be had only to numbers published in terms of the new reference base.

23.73 Maximum monthly retention amount

(1) The maximum monthly retention amount is worked out in accordance with the following formula:

where:

MRA is the maximum retention amount worked out in accordance with section 23.71.

Division 12 Restriction on deduction of amounts

23.74 Purpose of Division (Act, s 57-20)

The purpose of this Division is to specify circumstances in which an approved provider must not deduct any amounts from a care recipient’s accommodation bond balance in respect of specified periods.

23.75 When amounts must not be deducted from accommodation bond balance

If the certification of the approved provider’s residential care service is suspended under paragraph 66-1 (i) of the Act, the approved provider must not deduct any amounts from the accommodation bond balance in respect of the period when the suspension is in force.

23.75A Financial hardship — period to be disregarded

If a determination under subsection 57-14 (1) of the Act is in force for
a care recipient, an approved provider must not deduct any retention amounts from the care recipient’s accommodation bond balance, in respect of the period beginning on the date of effect of the determination and ending on the day when the determination ceases to be in force under subsection 57-14 (3) of the Act.

Division 13 Period for deduction of retention amounts

23.76 Purpose of Division (Act, s 57-20)

The purposes of this Division are to specify:

(a) another period during which retention amounts may be deducted from a care recipient’s accommodation bond balance; and

(b) the method of working out another starting day for the period during which retention amounts may be deducted.

23.77 Period of suspension of certification to be disregarded

(1) This section applies if the certification of the approved provider’s residential care service is suspended under paragraph 66-1 (i) of the
Act during the period that, apart from this section, applies under subsection 57-20 (4) of the Act.

(2) For that subsection, the period is specified that consists of 2 or more periods (subsidiary periods) worked out in accordance with subsections (3) and (4).

(3) A subsidiary period starts:

(a) for the first period — the day that, apart from this section, applies under section 57-20 (4) of the Act; or

(b) for a later period — the first day after the last subsidiary period when the certification ceases to be suspended.

(4) A subsidiary period ends when:

(a) the certification is suspended; or

(b) the subsidiary periods total 5 years.

23.78 Entry date if care recipient is transferred from respite care to permanent accommodation

(1) This section applies if the care recipient is transferred from respite care to permanent accommodation.

(2) The day of the transfer is the starting day of the period during which retention amounts is deducted from the care recipient’s accommodation bond balance.

Division 14 Payment of interest on accommodation bond balance

23.79A Purpose of Division (Act, s 57‑21A)

This Division:

(a) provides the method for working out amounts representing interest on the accommodation bond balance that an approved provider must pay a care recipient; and

(b) specifies the circumstances in which, and the way in which, the approved provider must pay that amount.

23.79B Definitions

In this Division:

base interest rate means a rate, expressed as a percentage, that is the sum of the below threshold rate and 2%.

below threshold rate means the below threshold rate determined by the Minister for Family and Community Services under subsection 1082 (1) of the Social Security Act 1991.

refunding event means:

(a) an event mentioned in paragraph 57‑21 (1) (a), (b) or (c) of the Act that occurred on or after 31 May 2006; or

(b) an event mentioned in paragraph 57‑21 (1) (a), (b) or (c) of the Act as in force immediately before 31 May 2006 that occurred before 31 May 2006.

refund period means:

(a) in relation to a refunding event that occurred on or after 31 May 2006 — the period specified in paragraph 57‑21 (3) (aa) or (b), or subparagraph 57‑21 (3) (a) (ii) or (iii), of the Act within which the accommodation bond balance must be refunded; or

(b) in relation to a refunding event that occurred before 31 May 2006 — the period specified in subparagraph 57‑21 (3) (a) (ii) or (iii) or paragraph 57‑21 (3) (b) of the Act as in force immediately before 31 May 2006 within which the accommodation bond balance must be refunded.

23.79C Application

(1) This Division applies to an approved provider responsible for the operation of an aged care service if:

(a) on or after 1 July 2006, the approved provider is required under Subdivision 57‑G of the Act to refund an accommodation bond balance to a care recipient; and

(b) either:

(i) the approved provider has not made an agreement with the care recipient as mentioned in subsection 57‑22 (1) of the Act; or

(ii) such an agreement has ceased to be in effect between the approved provider and the care recipient.

(2) If this Division applies to an approved provider in relation to a refunding event that occurred on or after 31 May 2006 and before 1 July 2006, this Division applies to the approved provider as if the refunding event had occurred on 1 July 2006.

(3) Subject to subsection (4), if this Division applies to an approved provider in relation to a refunding event that occurred before 31 May 2006 and to which subsection 57‑21 (3) of the Act as in force immediately before 31 May 2006 applies, section 23.79D applies to the approved provider as if:

(a) a reference in that section to subparagraph 57‑21 (3) (a) (i), (ii) or (iii) or paragraph 57‑21 (3) (b) of the Act were a reference to that provision as in force immediately before 31 May 2006; and

(b) each reference to paragraph 57‑21 (3) (aa) of the Act were omitted; and

(4) If this Division applies to an approved provider in relation to a refunding event mentioned in paragraph 57‑21 (1) (a) of the Act as in force before 31 May 2006 and the conditions set out in subsection (5) are satisfied:

(a) the amount representing interest on the accommodation bond balance is worked out:

(i) in accordance with the formula set out in subsection 23.79D (1); and

(ii) as if the refunding event had occurred on 1 July 2006; and

(b) subsection 23.79D (2) does not apply to the approved provider.

(5) For subsection (4), the conditions that must be satisfied are the following:

(a) the refunding event mentioned in subsection (4) occurred before 31 May 2006;

(b) the accommodation bond balance is refunded to the care recipient after the last day in the refund period;

(c) the reason that the accommodation bond balance is refunded to the care recipient after the last day in the refund period is that neither the probate of the will of the care recipient, nor letters of administration of the estate of the care recipient, were shown to the approved provider before the last day of the refund period.

23.79D Working out of amounts of interest on accommodation bond balances

Amount of interest (base interest) — balance refunded on or before last day of refund period

(1) If the approved provider refunds the accommodation bond balance on or before the last day of the refund period, the amount representing interest on the accommodation bond balance is the amount worked out in accordance with the following formula:

where:

BIR is the base interest rate.

ABB is the amount of the accommodation bond balance.

ND is the number of days in the period beginning on the day after the day on which the refunding event occurred and ending on the day on which the accommodation bond balance is refunded.

Note Subsection (1) does not apply in the situation described in subparagraph 57‑21 (3) (a) (i) of the Act because that subparagraph does not specify a refund period.

Amount of interest (base interest plus maximum permissible interest) — balance refunded after last day of refund period

(2) If the approved provider refunds the accommodation bond balance after the last day of the refund period, or after the day mentioned in subparagraph 57‑21 (3) (a) (i) of the Act, as applicable, the amount representing interest on the accommodation bond balance is the amount worked out in accordance with the following formula:

where:

BIR is the base interest rate.

ABB is the amount of the accommodation bond balance.

ND(RP) is equal to:

(a) the number of days in the period beginning on the day after the day on which the refunding event occurred and ending on the last day of the refund period, if:

(i) paragraph 57‑21 (3) (aa) of the Act applies and the last day of the refund period occurred on or after 1 July 2006; or

(ii) paragraph 57‑21 (3) (b) or subparagraph 57‑21 (3) (a) (ii) or (iii) of the Act applies; or

(b) 0, if:

(i) paragraph 57‑21 (3) (aa) of the Act applies and the last day of the refund period occurred before 1 July 2006; or

(ii) subparagraph 57‑21 (3) (a) (i) of the Act applies.

MPIR is the maximum permissible interest rate worked out under subsection 23.3 (2) as if a reference to ‘entry day’ in that subsection were a reference to:

(a) if paragraph 57‑21 (3) (aa) or (b), or subparagraph 57‑21 (3) (a) (ii) or (iii) of the Act applies — the day after the last day in the refund period; or

(b) if subparagraph 57‑21 (3) (a) (i) of the Act applies — the day after the day mentioned in that subparagraph.

ND(PP) is the number of days in the period:

(a) beginning on:

(i) if paragraph 57‑21 (3) (aa) or (b), or subparagraph 57‑21 (3) (a) (ii) or (iii) of the Act applies — either:

(A) the day after the last day of the refund period; or

(B) 1 July 2006;

whichever occurs later; or

(ii) if subparagraph 57‑21 (3) (a) (i) of the Act applies — either:

(A) the day after the day mentioned in that subparagraph; or

(B) 1 July 2006;

whichever occurs later; and

(b) ending on the day on which the accommodation bond balance is refunded.

23.79E The person to whom, and the way in which, amounts of interest are to be paid

An approved provider must pay an amount of interest worked out in accordance with section 23.79D to a care recipient on the day on which the approved provider refunds the accommodation bond balance to the care recipient.

Division 15 Payment of interest on entry contribution balance

23.80A Purpose of Division (Act, s 57‑21B)

This Division:

(a) provides the method for working out amounts representing interest on the entry contribution balance that an approved provider must pay a care recipient; and

(b) specifies the circumstances in which, and the way in which, the approved provider must pay that amount.

23.80B Definition

In this Division:

refund day means the last day for the entry contribution balance to be refunded by the approved provider under a formal agreement applying in respect of the entry contribution balance.

23.80C Application

(1) This Division applies to an approved provider responsible for the operation of a residential care service or a flexible care service if:

(a) on or after 1 July 2006, the approved provider is required under a formal agreement to refund an entry contribution balance to a care recipient; and

(b) either:

(i) the approved provider has not made an agreement with the care recipient to delay refunding the balance to secure re‑entry to the service; or

(ii) such an agreement has ceased to be in effect between the approved provider and the care recipient.

(2) If this Division applies to an approved provider and the conditions set out in subsection (3) are satisfied, section 23.80D applies to the approved provider as if a reference in subparagraph (a) (i) of the definition of ND(PP) in that section to ‘the day after the refund day’ is a reference to ‘the day after the day on which probate of the will of the care recipient is, or letters of administration of the estate of the care recipient are, shown to the approved provider’.

(3) For subsection (2), the conditions that must be satisfied are the following:

(a) the approved provider is required, under the formal agreement, to refund the entry contribution balance because the care recipient in relation to whom the entry contribution was paid has died;

(b) the entry contribution balance is refunded after the refund day;

(c) the reason that the entry contribution balance is refunded after the refund day is that neither the probate of the will of the care recipient, nor letters of administration of the estate of the care recipient, were shown to the approved provider before the refund day.

23.80D Working out of amounts of interest on entry contribution balances

If the approved provider refunds the entry contribution balance after the refund day, the amount representing interest on the entry contribution balance is the amount worked out in accordance with the following formula:

where:

MPIR is the maximum permissible interest rate worked out under subsection 23.3 (2) as if a reference to ‘entry day’ in that subsection were a reference to the day after the refund day.

ECB is the amount of the entry contribution balance.

ND(PP) is the number of days in the period:

(a) beginning on:

(i) the day after the refund day; or

(ii) 1 July 2006;

whichever occurs later; and

(b) ending on the day on which the entry contribution balance is refunded.

23.80E The person to whom, and the way in which, amounts of interest are to be paid

An approved provider must pay an amount of interest worked out in accordance with section 23.80D to a care recipient on the day on which the approved provider refunds the entry contribution balance to the care recipient.

Part 4A Accommodation charges

Division 1 Purpose of Part

23.81A Purpose of Part (Act, s 57A-1)

This Part is, with the provisions of the Act, intended to deal with all requirements about payment and protection of accommodation charges.

Division 2 Information for care recipients

23.81B Purpose of Division (Act, s 57A-2)

This Division specifies the information about accommodation charges that an approved provider must provide to a care recipient before the care recipient enters the provider’s residential care service.

23.81C Information about accommodation charges

(1) The approved provider must tell the care recipient whether the residential care service charges an accommodation charge if the care recipient is eligible to pay an accommodation charge.

(2) If the residential care service charges an accommodation charge and the care recipient is eligible to pay an accommodation charge, the approved provider must give the care recipient the following information about the accommodation charge:

(a) the requirement, if the care recipient has given the provider enough information to decide the value of the care recipient’s assets, for the care recipient to be left, after paying the accommodation charge, with assets having a value of at least the care recipient’s minimum permissible asset value;

(b) details of the interest rate to be charged on amounts owed under the accommodation charge agreement or resident agreement;

(d) when an accommodation charge is not required or, if paid, is refundable.

Note Section 57A-2 of the Act sets out basic rules about accommodation charges. In particular, para 57A-2 (1) (h) and (i) deal with circumstances when an accommodation charge is not required or, if paid, is refundable.

Division 3 Other rules about accommodation charges

23.81D Purpose of Division (Act, s 57A-2)

This Division specifies other rules about the accommodation charge.

23.81E Accommodation charge agreement required even if waiver is sought

(1) This section applies if:

(a) the care recipient is not a concessional resident or a charge exempt resident; and

(b) the approved provider or care recipient has applied to the Secretary for a determination, under subsection 57A-9 of the Act, that the care recipient must not be charged an accommodation charge because paying the accommodation charge would cause the care recipient financial hardship.

(2) An accommodation charge agreement must still be made if:

(a) the application has not been decided; and

(b) the approved provider intends to charge an accommodation charge if the application is refused.

(3) The agreement must state that the accommodation charge is payable if:

(a) the Secretary declines to make the determination; or

(b) the determination is made but later ceases to be in force.

(4) If the care recipient has a physical incapacity, a person nominated by the care recipient may sign the agreement for the care recipient.

(5) If the care recipient has a cognitive impairment, a person who is authorised to sign documents for the care recipient may sign the agreement for the care recipient.

23.81F Matters relevant to extending time limit

For subsection 57A-2 (2) of the Act, the Secretary may have regard to any matters the Secretary considers relevant in extending the time mentioned in paragraph 57A-2 (1) (e) of the Act.

Division 4 Periods when accommodation charge not payable

23.81G Purpose of Division (Act, s 57A-2 and 96-1)

The purpose of this Division is to specify periods for which an approved provider must not charge the daily accommodation charge.

23.81H Period of respite care

If the care recipient is transferred from respite care, the approved provider must not charge the daily accommodation charge for the period when the care recipient is in respite care.

23.81I Period of suspension of certification of service

If the certification of the approved provider’s residential care service is suspended under paragraph 66-1 (i) of the Act, the approved provider must not charge the daily accommodation charge for the period when the suspension is in force.

23.81J Period of prohibition on charging accommodation charge

If charging of accommodation charge for a residential care service conducted by an approved provider is prohibited under paragraph 66-1 (j) of the Act, the approved provider must not charge the daily accommodation charge for the period when the prohibition is in force.

23.81K Period of financial hardship

If a determination under subsection 57A-9 (1) of the Act is in force for a care recipient, an approved provider must not charge the daily accommodation charge for the period beginning on the date of effect of the determination and ending on the day when the determination ceases to be in force under subsection 57A‑9 (7) of the Act.

Division 5 Contents of accommodation charge agreements

23.81L Purpose of Division (Act, s 57A-3)

This Division specifies additional matters that must be set out in an agreement for it to be an accommodation charge agreement.

23.81M Amount of accommodation charge — no financial hardship

(1) This section applies if the care recipient is not a concessional resident or a charge exempt resident and an accommodation charge is not paid because the approved provider or care recipient has applied to the Secretary for a determination, under section 57A-9 of the Act, that the care recipient must not be charged an accommodation charge because paying the accommodation charge would cause the care recipient financial hardship.

(2) The accommodation charge agreement must state the amount of accommodation charge payable by the care recipient if:

(a) the Secretary declines to make the determination; or

(b) the determination is made but later ceases to be in force.

23.81N Providing information to third parties

(1) The accommodation charge agreement must state that, if a care recipient wishes to move from one residential care service (the original service) to another residential care service (the new service), the approved provider of the original service may ask the care recipient for permission to provide the information mentioned in subsection (2) to the approved provider of the new service.

(2) The information is:

(a) whether the care recipient has agreed to pay an accommodation charge; and

(b) if so, the amount agreed; and

Division 6 Maximum daily accommodation charge

23.81O Purpose of Division (Act, s 57A-6)

This Division specifies an amount as the maximum daily amount at which accommodation charge accrues under section 57A-6 of the Act.

23.81P Specified amounts for maximum daily accommodation charge

(1) For paragraph 57A-6 (1) (c) of the Act, the following amounts are specified for a pre‑2008 reform resident who first entered a residential care service for the provision of residential care (other than respite care) before 1 July 2004:

(a) for an assisted resident — X;

(b) for any other care resident — Y.

Note The specified amount applies only if para 57A-6 (1) (a) or (b) does not apply.

(2) In subsection (1):

X is:

(a) for the financial year starting on 1 July 1999 — $6; or

(b) for a later financial year — the amount worked out under section 23.81Q for the financial year.

Y is:

(a) for the financial year starting on 1 July 1999 — $12; or

(b) for a later financial year — the amount worked out under section 23.81Q for the financial year.

(3) For paragraph 57A-6 (1) (c) of the Act, the following amounts are specified for a pre‑2008 reform resident who first entered a residential care service for the provision of residential care (other than respite care) on or after 1 July 2004 but before 20 March 2008:

(a) for an assisted resident — A;

(b) for any other care resident — B.

Note The specified amount applies only if paragraph 57A-6 (1) (a) or (b) does not apply.

(4) In subsection (3):

A is:

(a) for the financial year starting on 1 July 2004 — $9.30; or

(b) for a later financial year — the amount worked out under section 23.81Q for the financial year.

B is:

(a) for the financial year starting on 1 July 2004 — $16.25; or

(b) for a later financial year — the amount worked out under section 23.81Q for the financial year.

(5) For paragraph 57A‑6 (1) (c) of the Act, $15.76 is specified for a post‑2008 reform resident who:

(a) first entered a residential care service for the provision of residential care (other than respite care) before 1 July 2004; and

(b) re‑enters care after 19 March 2008 and before 20 September 2008.

(6) For paragraph 57A‑6 (1) (c) of the Act, $19.56 is specified for a post‑2008 reform resident who:

(a) first entered a residential care service for the provision of residential care (other than respite care) after 30 June 2004; and

(b) receives an income support payment; and

(7) For paragraph 57A‑6 (1) (c) of the Act, $26.88 is specified for a post‑2008 reform resident who:

(a) first entered a residential care service for the provision of residential care (other than respite care) after 30 June 2004; and

(b) does not receive an income support payment; and

(d) is receiving care through a service that meets the building requirements mentioned in section 21.11B of the Residential Care Subsidy Principles 1997.

(8) For paragraph 57A‑6 (1) (c) of the Act, $24.37 is specified for a post‑2008 reform resident who:

(a) first entered a residential care service for the provision of residential care (other than respite care) after 30 June 2004; and

(b) does not receive an income support payment; and

(d) is receiving care through a service that does not meet the building requirements mentioned in section 21.11B of the Residential Care Subsidy Principles 1997.

23.81Q Calculation of indexation increase

(1) In this section:

CPI number means the All Groups Consumer Price Index number (that is, the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

earlier CPI number, for a financial year, means:

(a) for the purpose of working out an amount under subsection 23.81P (2):

(i) the CPI number for the last March quarter before the beginning of the financial year (the most recent earlier CPI number); or

(ii) if the CPI number for the March quarter of an earlier financial year that started on or after 1 July 1998 is higher than the most recent earlier CPI number — the higher CPI number; and

(b) for the purpose of working out an amount under subsection 23.81P (4):

(i) the CPI number for the last March quarter before the beginning of the financial year (the most recent earlier CPI number); or

(ii) if the CPI number for the March quarter of an earlier financial year that started on or after 1 July 2003 is higher than the most recent earlier CPI number — the higher CPI number.

indexed element means:

(a) for the purpose of working out an amount under subsection 23.81P (2) — the element X or Y mentioned in that subsection; or

(b) for the purpose of working out an amount under subsection 23.81P (4) — the element A or B mentioned in that subsection.

latest CPI number, for a financial year, means the CPI number for the March quarter in the financial year.

March quarter means the period of 3 months that ends on 31 March.

relevant amount, in a financial year, means the amount of the indexed element for the financial year.

(2) For the purpose of working out an amount under subsection 23.81P (2) for a financial year, if the latest CPI number is more than the earlier CPI number, the amount of each indexed element is increased on 1 July of the next financial year.

(2A) For the purpose of working out an amount under subsection 23.81P (4) for a financial year, if the latest CPI number is more than the earlier CPI number, the amount of each indexed element is increased on 1 July of the next financial year.

(3) The amount of the increased indexed element is the amount worked out in accordance with the formula:

Division 7 Making financial hardship determinations

23.81R Purpose of Division (Act, s 57A-9)

This Division specifies:

(a) matters relevant to the making of a determination by the Secretary that a person must not be charged an accommodation charge because payment of an accommodation charge would cause the person financial hardship; and

(b) some circumstances that, for section 57A-9 of the Act, constitute financial hardship.

23.81S Income assessment required before determination made

The Secretary may make a determination for a care recipient only if the care recipient’s income has been assessed under the Social Security Act 1991 or Veterans’ Entitlements Act 1986.

23.81T Effect of determination

A determination may be expressed to take effect from a date before it is made.

23.81U Circumstances constituting financial hardship

(1) In this section:

unrealisable asset has the meaning given by subsections 11 (12), (13) and (14) of the Social Security Act 1991.

(2) Payment of an accommodation charge would cause a person financial hardship if, for example:

(a) the payment would cause hardship to the person’s partner or a dependent child of the person; or

(b) the value of the person’s assets, other than unrealisable assets, is less than the minimum permissible asset value.

(3) In working out if the person is a concessional resident, payment of an accommodation charge would cause a person financial hardship if:

(a) the person has been a homeowner; and

(b) a carer of the person has occupied the home for the past 2 years and, at the applicable time, was eligible to receive an income support payment; and

(i) the amount obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 2.5 times the basic age pension amount at that time; or

(ii) such other amount as is specified in, or worked out in accordance with, these Principles.

(4) For paragraph (3) (b), applicable time has the meaning given by subsections 44-7 (1A) and (2) of the Act.

Division 8 Revoking financial hardship determinations

23.81V Purpose of Division (Act, s 57A-10)

This Division specifies the circumstances in which the Secretary may revoke a determination made under section 57A-9 of the Act.

Note For provisions about making of determinations under s 57A-9 of the Act, see Div 7 of this Part.

23.81W Revocation of a determination

The Secretary may revoke a determination made under section 57A-9 of the Act if the Secretary is satisfied that:

(a) the circumstances of the care recipient have changed; and

(b) paying an accommodation charge would not cause the care recipient financial hardship.

Example of change of circumstances for paragraph (a):

Assets of the care recipient that were unrealisable assets are no longer assets of that kind.

Division 9 Interest on accommodation charge

23.81X Purpose of Division (Act, s 57A-12)

For subsection 57A-12 (2) of the Act, this Division specifies the maximum rate at which interest may be charged under an accommodation charge agreement on the outstanding balance of an accommodation charge.

23.81Y Interest if accommodation charge not paid when due

The maximum rate is a rate not more than twice the below threshold rate determined by the Minister for Family and Community Services under subsection 1082 (1) of the Social Security Act 1991.

Part 5 Resident fees

Division 1 Amounts additional to maximum daily amount

23.82 Purpose of Division (Act, s 58-1)

This Division specifies amounts that may be added to the maximum daily amount of resident fees set under section 58-2 of the Act.

23.83 Remote area — amount to be taken into account

(1) For a residential care service located in a remote area, the amount worked out in accordance with the following formula is specified:

(2) In this section:

remote area has the meaning given by section 14 of the Social Security Act 1991.

remote area amount means the amount mentioned in column 4 (basic allowance per fortnight) of item 1 (a person whose family situation is ‘Not a member of a couple’) of Table H (remote area allowance) set out in section 1064-H2 of the Social Security Act 1991.

Note Paragraph 58-1 (a) of the Act refers to the resident fee in respect of any day, and the remote area amount is a fortnightly amount. The amount worked out using the formula in subsection 23.83 (1) is an amount equal to 85% of the daily equivalent of the fortnightly amount of remote area allowance at the rate in force immediately before the commencement of the A New Tax System (Compensation Measures Legislation Amendment) Act 1999.

Division 2 Maximum daily amount — other agreed amounts

23.83B Purpose of Division (Act, s 58-2)

This Division specifies the circumstances in which an amount agreed between a care recipient and an approved provider may be included at step 5 of the resident fee calculator in working out the maximum daily amount of resident fees for the care recipient.

23.83C Approved care recipients in unfunded places

(1) For step 5 of the resident fee calculator in section 58‑2 of the Act, the maximum daily amount of resident fees (the maximum daily fee) payable by the care recipient may include an amount agreed between the care recipient and the approved provider if:

(a) the approved provider complies with subsections (2) and (3) as applicable to the care recipient; and

(b) the care recipient agrees to pay the amount before it is incurred; and

(i) the care recipient is an approved care recipient; and

(ii) the place in the service through which residential care is provided to the care recipient (the care recipient’s place) is unfunded.

(2) If the approved provider seeks an agreement, from an approved care recipient receiving care through the service in an unfunded place, to charge the care recipient an amount under step 5 (an additional amount), the approved provider must, before the care recipient so agrees, inform the care recipient (or his or her representative) in writing that:

(a) the proposed maximum daily fee payable by the care recipient is more than the maximum that would have been payable if the care recipient’s place were funded; and

(b) the approved provider cannot ask the care recipient to leave the service merely because the care recipient does not agree to pay the additional amount.

Note After the care recipient has agreed to the additional amount, the approved provider may ask the care recipient to leave the service if the care recipient has not paid the agreed amount in the circumstances mentioned in paragraph 23.5 (3) (b).

(3) If the approved provider seeks an agreement, from an approved care recipient proposing to enter the service to receive care in an unfunded place, to charge the care recipient an additional amount, the approved provider must, before the care recipient so agrees, inform the care recipient (or his or her representative) in writing that the proposed maximum daily fee payable by the care recipient is more than the maximum that would have been payable if the care recipient’s place were funded.

(4) In this section:

(a) approved care recipient means a person who is approved under Part 2.3 of the Act as a recipient of residential care; and

(b) a care recipient’s place is funded if residential care subsidy is payable under Chapter 3 of the Act for the provision of care to the care recipient through the service; and

(c) a care recipient’s place is unfunded if residential care subsidy otherwise payable under Chapter 3 of the Act for the provision of care to the care recipient through the service is not payable because of paragraph 42‑1 (2) (a) of the Act.

Note Under paragraph 42‑1 (2) (a) of the Act, an approved provider is not eligible for residential care subsidy in respect of a care recipient if residential care provided to the care recipient is excluded (see section 42‑7 of the Act) because the approved provider exceeds the approved provider’s allocation of places for residential care subsidy.

Part 6 Requirements for resident agreements

23.84 Purpose of Part (Act, s 59-1)

This Part sets out requirements that a resident agreement entered into between a care recipient and an approved provider must comply with.

23.85 Requirements for a resident agreement

A resident agreement must comply with the following requirements:

(a) the agreement must be signed by the approved provider and by the care recipient or care recipient’s representative;

(b) the agreement must provide that if, within 14 days after signing, the care recipient or his or her representative tells the provider, in writing, that the care recipient wishes to withdraw from the agreement:

(i) the agreement becomes void; and

(ii) the care recipient is liable for the fees and charges payable for any period when the care recipient was in the residential care service under the agreement; and

(iii) the provider is liable to refund any other amount paid by the care recipient under the agreement;

(i) that the agreement may be varied:

(A) by the approved provider, if the variation is necessary to implement the A New Tax System (Goods and Services Tax) Act 1999; or

(B) in any other case, by mutual consent, following adequate consultation, of the care recipient and approved provider; and

(ii) that the agreement must not be varied under sub‑ subparagraph (i) (A) unless the approved provider has given reasonable notice in writing about the variation to the care recipient; and

(iii) that the agreement must not be varied in a way that is inconsistent with the A New Tax System (Goods and Services Tax) Act 1999, the Aged Care Act 1997 or the Extra Service Principles 1997;

(d) the agreement must provide for its termination on 7 days’ written notice given by the care recipient to the provider;

(e) the care recipient or his or her representative must be told of, and helped to understand, the terms of the agreement, including the care recipient’s rights and obligations, the services to be provided, and the fees and other charges;

(f) the agreement must treat the care recipient and provider as equals and clearly set out the rights and obligations of each party;

(g) the agreement must provide for the care recipient’s right to occupy a place at the residential care service, beginning on the day of the agreement or a stated later day, for the period stated in the agreement or for the remainder of the care recipient’s lifetime;

(h) the agreement must include any other matters negotiated between the approved provider and the care recipient (including, if applicable, costs);

(i) the agreement must be expressed in plain language and be readily understandable.

Note An agreement between a person and the proprietor of an approved nursing home, or an approved operator of a hostel, may be taken to be a resident agreement — see sections 69 and 71 of the Aged Care (Consequential Provisions) Act 1997.

Part 7 Responsibilities relating to community care fees

Division 1 Refund of community care fees

23.86 Purpose of Division (Act, s 60-1)

This Division specifies the provisions applying to the refund of fees if the care recipient dies or provision of community care ceases.

23.87 Cessation of eligibility as a care recipient for community care

Any refundable fee must be paid as soon as practicable to:

(a) the care recipient or his or her representative; or

(b) a person authorised to receive it for the care recipient’s estate.

Examples of authorised persons for paragraph (b):

The care recipient’s executor or legal personal representative.

Division 2 Maximum daily amounts

23.88 Purpose of Division (Act, s 60-2)

This Division specifies matters for determining the maximum daily amount of community care fees payable by a care recipient.

23.89 Determination of levels of maximum daily amounts of community care fees

(1) This section applies if an approved provider requires a care recipient to pay ongoing community care fees.

(2) If the care recipient’s income does not exceed the amount of the maximum basic rate of pension payable from time to time under Part 2.2 of the Social Security Act 1991 to persons classed as ‘Not a member of a couple’, the fees must be determined so that they do not exceed 17.5% of that maximum basic rate of pension, unless subsection (4) applies.

(3) If the care recipient’s income exceeds the amount of maximum basic rate of pension, the fees must be determined so that they do not exceed an amount equal to the amount of fees permitted under subsection (2) plus 50% of the amount by which the care recipient’s income exceeds the amount of maximum basic rate of pension, unless subsection (4) applies.

(4) If:

(a) the care recipient receives a pension under the Social Security Act 1991 and the care recipient’s family situation under Part 2.2 of that Act is classified as ‘Partnered (partner getting pension or benefit)’; or

(b) the care recipient receives an equivalent pension under the Veterans’ Entitlements Act 1986;

the fees must be determined so that they do not exceed an amount equal to the amount of fees permitted under subsection (2) plus 50% of the amount by which the care recipient’s income exceeds the amount of maximum basic rate of pension payable to the care recipient.

(5) For this section:

income:

(a) means income after income tax and medicare levy; and

(b) does not include:

(i) pharmaceutical allowance, rent assistance or telephone allowance payable under the Social Security Act 1991 or the Veterans’ Entitlements Act 1986; or

(ii) a pension supplement payable under the Social Security Act 1991 or the Veterans’ Entitlements Act 1986; or

(iii) in relation to a pension payable under the Veterans’ Entitlements Act 1986 (except a service pension), an amount equal to 4% of the amount of the pension.

Note 1 From 1 July 2000 the A New Tax System (Compensation Measures Legislation Amendment) Act 1999 introduced pension supplement for some kinds of pensions (including service pensions under the Veterans’ Entitlements Act 1986).

Note 2 A pension mentioned in subparagraph (iii) is payable at a rate that may be determined under or by reference to any of the following provisions of the Veterans’ Entitlements Act 1986:

· subsection 22 (3) (which deals with the general rate of disability pension)

· subsection 23 (4) (which deals with the intermediate rate of disability pension)

· subsection 24 (4) (which deals with the special rate of disability pension)

· subsection 27 (1) (which deals with disability pension for tabled injuries)

· subsection 30 (1), including a pension payable because of Part IV (known as a widow’s or widower’s pension)

· subsection 30 (2) (which deals with disability pension for orphans).

Division 3 Community care fees and services

23.90 Purpose of Division (Act, s 56-2)

This Division specifies other responsibilities of approved providers about community care fees.

23.91 Nature and level of community care fees for care and services

(1) An approved provider may charge a care recipient only the following kinds of fees:

(a) ongoing fees;

(b) fees for the provision of major home maintenance services (including major home modification);

(2) The approved provider must not levy or impose community care fees for the care recipient on anyone else, but someone else may choose to pay the care recipient’s community care fees.

(3) The approved provider must suspend the provision to the care recipient of community care services for a period (the suspension period) that is longer than the period permitted under the Act for the suspension of community care services, if the care recipient gives the provider written notice:

(a) stating the length of the suspension period; and

(b) asking for the suspension of the services during the suspension period mentioned in the agreement; and

(4) The approved provider must not charge the care recipient, during the suspension period, an ongoing fee that exceeds:

(a) the care recipient’s usual ongoing fee; or

(b) if another care recipient receives the services of the care recipient during all or part of the suspension period — the amount of any difference (while the services are being provided to the other care recipient) between the first-mentioned care recipient’s usual ongoing fee and the amount of fees and recurrent subsidy that the approved provider receives for the other care recipient.

(5) The care recipient may, by written notice to the approved provider, extend or shorten the suspension period.

(6) However if the suspension period is shortened to a period not longer than the period permitted under the Act, subsection (4) does not apply.

23.92 Community care fees — inability to pay and reduction for financial hardship

(1) An approved provider must not refuse a community care service to a care recipient because of the care recipient’s inability to pay a community care fee.

(2) In deciding the care recipient’s capacity to pay, regard must be had to any exceptional and unavoidable expenses of the care recipient.

Example of exceptional and unavoidable expense:

High pharmaceutical bills.

(3) The amount of the care recipient’s expenses must be reviewed at least annually, or at such shorter intervals as the care recipient reasonably asks.

(4) The approved provider need not seek information about the care recipient’s income to work out the amount of the care recipient’s ongoing fees, but the approved provider must:

(a) take account of all information given by the care recipient; and

(b) tell the care recipient about the effect of this subsection.

Part 8 Requirements for community care agreements

23.93 Purpose of Part (Act, s 61-1)

This Division specifies requirements that a community care agreement entered into between a care recipient and an approved provider must comply with.

23.94 Entry into a community care agreement

(1) A community care agreement must be offered to a prospective care recipient before a date for the start of community care services is agreed.

(2) The approved provider must provide the care recipient with guidance (and, if appropriate, interpreter services) to understand the terms and effect of the proposed agreement.

23.95 Provisions of a community care agreement

A community care agreement must comply with the following requirements:

(a) the agreement must include a clear statement of the charges payable by the care recipient and how amounts of each charge are to be worked out;

(b) the agreement must allow the care recipient to suspend provision of community care;

(d) the agreement must provide conditions under which either party may terminate the community care services;

(da) the agreement must provide:

(i) that the agreement may be varied:

(A) by the approved provider, if the variation is necessary to implement the A New Tax System (Goods and Services Tax) Act 1999; or

(B) in any other case, by mutual consent, following adequate consultation, of the care recipient and approved provider; and

(ii) that the agreement must not be varied under sub‑subparagraph (i) (A) unless the approved provider has given reasonable notice in writing about the variation to the care recipient; and

(e) the agreement must provide for the giving of financial information to the care recipient;

(f) the agreement must state the community care that the care recipient has been assessed as requiring;

(g) the agreement must state the care recipient’s rights in relation to decisions about the kind of community care that the care recipient is to receive;

(h) the agreement must include a guarantee that all reasonable steps will be taken to protect the confidentiality, so far as legally permissible, of information provided by the care recipient, and details of use to be made by the provider of the information;

(i) the agreement must state that the care recipient is entitled to make, without fear of reprisal, any complaint about the provision of community care, and state the mechanisms for making such a complaint;

(j) the agreement must provide for the provision by the provider, within 7 days after the care recipient asks, of:

(i) a clear and simple presentation of the financial position of the community care service, including the costs of community care, that explains any ongoing fees payable by the care recipient; and

(ii) a copy of the most recent version of the provider’s audited accounts;

(k) the agreement must be expressed in plain language and be readily understandable.

Notes to the User Rights Principles 1997

Note 1

The User Rights Principles 1997 (in force under subsection 96-1 (1) of the Aged Care Act 1997) as shown in this compilation are amended as indicated in the Tables below.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Under the Legislative Instruments Act 2003, which came into force on 1 January 2005, it is a requirement for all non-exempt legislative instruments to be registered on the Federal Register of Legislative Instruments.

Table of Instruments

Title	Date of notification in Gazette or FRLI registration	Date of commencement	Application, saving or transitional provisions
User Rights Principles 1997	29 Sept 1997 (see Gazette 1997, No. S380)	1 Oct 1997
User Rights Principles Amendment (No. 1) 1997	29 Sept 1997 (see Gazette 1997, No. S380)	1 Oct 1997	—
User Rights Principles Amendment (No. 2) 1997	3 Nov 1997 (see Gazette 1997, No. S445)	1 Oct 1997	—
User Rights Principles Amendment (No. 3) 1997	6 Nov 1997 (see Gazette 1997, No. S453)	6 Nov 1997	—
User Rights Principles Amendment (No. 4) 1997	10 Nov 1997 (see Gazette 1997, No. S456)	10 Nov 1997	—
User Rights Principles Amendment (No. 5) 1997	21 Nov 1997 (see Gazette 1997, No. S477)	21 Nov 1997	—
User Rights Principles Amendment (No. 6) 1997	3 Dec 1997 (see Gazette 1997, No. S502)	Ss. 1–3 and 4.1: 6 Nov 1997 Remainder: 3 Dec 1997	—
User Rights Principles Amendment (No. 7) 1997	24 Dec 1997 (see Gazette 1997, No. S559)	24 Dec 1997	—
User Rights Amendment Principles 1998 (No. 1)	28 Aug 1998 (see Gazette 1998, No. S427)	28 Aug 1998	—
User Rights Amendment Principles 1999 (No. 1)	1 June 1999 (see Gazette 1999, No. S225)	1 June 1999	—
User Rights Amendment Principles 1999 (No. 2)	22 Oct 1999 (see Gazette 1999, No. S501)	21 Oct 1999 (see s. 2 and Gazette 1999, No. S496)	—
User Rights Amendment Principles 1999 (No. 3)	19 Jan 2000 (see Gazette 2000, No. GN2)	19 Jan 2000	—
User Rights Amendment Principles 2000 (No. 1)	29 May 2000 (see Gazette 2000, No. S272)	29 May 2000	—
User Rights Amendment Principles 2000 (No. 2)	30 June 2000 (see Gazette 2000, No. S361)	30 June 2000	—
User Rights Amendment Principles 2000 (No. 3)	30 June 2000 (see Gazette 2000, No. S361)	1 July 2000	—
User Rights Amendment Principles 2000 (No. 4)	31 July 2000 (see Gazette 2000, No. S419)	31 July 2000	—
User Rights Amendment Principles 2000 (No. 5)	31 July 2000 (see Gazette 2000, No. S419)	31 July 2000	—
User Rights Amendment Principles 2001 (No. 1)	29 June 2001 (see Gazette 2001, No. S245)	30 June 2001 (see s. 2)	—
User Rights Amendment Principles 2001 (No. 2)	16 Oct 2001 (see Gazette 2001, No. S436)	16 Oct 2001	S. 4
User Rights Amendment Principles 2003 (No. 1)	29 Aug 2003 (see Gazette 2003, No. S332)	1 Sept 2003	—
User Rights Amendment Principles 2004 (No. 1)	30 June 2004 (see Gazette 2004, No. S252)	1 July 2004	—
User Rights Amendment Principles 2005 (No. 1)	30 June 2005 (see F2005L01885)	1 July 2005	—
User Rights Amendment Principles 2006 (No. 1)	16 May 2006 (see F2006L01469)	Ss. 1–5 and Schedule 1: 31 May 2006 Remainder: 1 July 2006	S. 4
User Rights Amendment Principles 2008 (No. 1)	19 Mar 2008 (see F2008L00905)	20 Mar 2008	—

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Part 1
S. 23.3...................................	am. Nos. 3, 4, 5 and 7, 1997; No. 1, 1999; No. 2, 2000; No. 1, 2001; No. 1, 2006
Note to s. 23.3.....................	rs. No. 1, 1998
	am. No. 2, 1999
Part 2
Div. 1 of Part 2 Renumbered Div. 6......... of Part 2	No. 2, 1999
S. 23.4
Renumbered s. 23.18.....	No. 2, 1999
S. 23.5
Renumbered s. 23.19.....	No. 2, 1999
Division 1
Div. 2 of Part 2
Renumbered Div. 1......... of Part 2	No. 2, 1999
S. 23.6
Renumbered s. 23.4.......	No. 2, 1999
S. 23.7
Renumbered s. 23.5.......	No. 2, 1999
S. 23.8
Renumbered s. 23.6.......	No. 2, 1999
Division 2
Div. 3 of Part 2
Renumbered Div. 2......... of Part 2	No. 2, 1999
S. 23.9
Renumbered s. 23.7.......	No. 2, 1999
S. 23.10
Renumbered s. 23.8.......	No. 2, 1999
Division 3
Div. 4 of Part 2
Renumbered Div. 3......... of Part 2	No. 2, 1999
S. 23.11
Renumbered s. 23.9.......	No. 2, 1999
S. 23.12
Renumbered s. 23.10.....	No. 2, 1999
Division 4
Div. 5 of Part 2
Renumbered Div. 4......... of Part 2	No. 2, 1999
S. 23.13
Renumbered s. 23.11.....	No. 2, 1999
S. 23.14
Renumbered s. 23.12.....	No. 2, 1999
Division 5
Div. 6 of Part 2
Renumbered Div. 5......... of Part 2	No. 2, 1999
S. 23.15
Renumbered s. 23.13.....	No. 2, 1999
S. 23.13.................................	am. No. 1, 2006
S. 23.16
Renumbered s. 23.14.....	No. 2, 1999
S. 23.17
Renumbered s. 23.15.....	No. 2, 1999
S. 23.18.................................	am. No. 1, 1999
Renumbered s. 23.16.....	No. 2, 1999
S. 23.19
Renumbered s. 23.17.....	No. 2, 1999
S. 23.17.................................	am. No. 1, 2006
	rs. No. 1, 2006
S. 23.17A..............................	ad. No. 1, 2000
Division 6
Div. 6 of Part 2......................	No. 2, 1999
(formerly Div. 1 of Part 2)
S. 23.18.................................	No. 2, 1999
(formerly s. 23.4)
S. 23.19.................................	No. 2, 1999
(formerly s. 23.5)
Part 4
Division 1A
Div. 1A of Part 4...................	ad. No. 2, 1999
S. 23.27A..............................	ad. No. 2, 1999
	am. No. 1, 2006
Division 1
S. 23.27.................................	am. No. 1, 2006
S. 23.28.................................	am. Nos. 5 and 7, 1997; No. 1, 2006; No. 1, 2008
Division 2A
Div. 2A of Part 4...................	ad. No. 1, 2006
S. 23.28A..............................	ad. No. 1, 2006
S. 23.28B..............................	ad. No. 1, 2006
Division 2
S. 23.30.................................	am. No. 1, 1997
S. 23.30A..............................	ad. No. 2, 1999
S. 23.31.................................	am. Nos. 1 and 2, 1999; No. 2, 2000
Division 3
Div. 3 of Part 4......................	rs. No. 1, 2006
Subdivision 3.1
S. 23.32.................................	rs. No. 1, 2006
S. 23.33.................................	am. Nos. 5 and 7, 1997
	rs. No. 1, 2006
S. 23.34.................................	am. No. 7, 1997
	rs. No. 1, 2006
S. 23.35.................................	rs. No. 1, 2006
Subdivision 3.2
S. 23.36.................................	rs. No. 1, 2006
S. 23.37.................................	rs. No. 1, 2006
Subdivision 3.3
S. 23.38.................................	rs. No. 1, 2006
S. 23.38A..............................	ad. No. 5, 1997
	am. No. 7, 1997
	rep. No. 1, 2006
Subdivision 3.4
S. 23.39.................................	rs. No. 1, 2006
S. 23.40.................................	rs. No. 1, 2006
	am. No. 1, 2006
S. 23.41.................................	ad. No. 1, 2006
S. 23.42.................................	ad. No. 1, 2006
S. 23.43.................................	ad. No. 1, 2006
Heading to Div. 3A.............. of Part 4	rs. No. 7, 1997 rep. No. 1, 2006
Div. 3A of Part 4...................	ad. No. 5, 1997
	rep. No. 1, 2006
S. 23.40A..............................	ad. No. 5, 1997
	am. No. 7, 1997
	rep. No. 1, 2006
S. 23.40B..............................	ad. No. 5, 1997
	rs. No. 7, 1997
	am. No. 2, 2001
	rep. No. 1, 2006
Div. 4 of Part 4......................	rep. No. 1, 2006
S. 23.41.................................	rep. No. 1, 2006
S. 23.42.................................	am. No. 7, 1997
	rep. No. 1, 2006
Ss. 23.43–23.46..................	rep. No. 1, 2006
S. 23.46A..............................	ad. No. 5, 1997
	am. No. 7, 1997
	rep. No. 1, 2006
Div. 5A of Part 4...................	ad. No. 3, 1997 rep. No. 2, 1999
S. 23.52A..............................	ad. No. 3, 1997
	rep. No. 2, 1999
S. 23.52B..............................	ad. No. 3, 1997
	am. No. 4, 1997
	rep. No. 2, 1999
Division 6
S. 23.56.................................	am. No. 2, 1997; No. 1, 1998; No. 1, 2005
Division 8
S. 23.62.................................	am. No. 1, 1999; No. 2, 2000
S. 23.64.................................	am. No. 1, 1997
Division 9
S. 23.66.................................	am. No. 1, 1997; No. 1, 1999; No. 2, 2000
S. 23.67A..............................	ad. No. 1, 1998
Division 10
S. 23.69.................................	am. No. 1, 1999; No. 2, 2000
Division 11
S. 23.71.................................	am. No. 3, 1997; No. 2, 1999
S. 23.72.................................	am. No. 2, 1999
S. 23.73.................................	am. No. 2, 1999
Division 12
S. 23.75.................................	am. No. 1, 1998
S. 23.75A..............................	ad. No. 1, 1998
Division 14
Div. 14 of Part 4...................	rep. No. 3, 1999
	ad. No. 1, 2006
S. 23.79.................................	rep. No. 3, 1999
S. 23.79A..............................	ad. No. 1, 2006
S. 23.79B..............................	ad. No. 1, 2006
S. 23.79C..............................	ad. No. 1, 2006
S. 23.79D..............................	ad. No. 1, 2006
S. 23.79E..............................	ad. No. 1, 2006
S. 23.80.................................	am. No. 2, 1999
	rep. No. 3, 1999
Division 15
Div. 15 of Part 4...................	rep. No. 2, 1999
	ad. No. 1, 2006
S. 23.80A..............................	ad. No. 1, 2006
S. 23.80B..............................	ad. No. 1, 2006
S. 23.80C..............................	ad. No. 1, 2006
S. 23.80D..............................	ad. No. 1, 2006
S. 23.80E..............................	ad. No. 1, 2006
S. 23.81.................................	rep. No. 2, 1999
Part 4A
Part 4A ..................................	ad. No. 2, 1999
Division 1
S. 23.81A..............................	ad. No. 2, 1999
Division 2
S. 23.81B..............................	ad. No. 2, 1999
S. 23.81C..............................	ad. No. 2, 1999
	am. No. 1, 2008
Division 3
S. 23.81D..............................	ad. No. 2, 1999
S. 23.81E..............................	ad. No. 2, 1999
S. 23.81F..............................	ad. No. 2, 1999
Division 4
S. 23.81G..............................	ad. No. 2, 1999
S. 23.81H..............................	ad. No. 2, 1999
S. 23.81I................................	ad. No. 2, 1999
S. 23.81J...............................	ad. No. 2, 1999
S. 23.81K..............................	ad. No. 2, 1999
Division 5
S. 23.81L..............................	ad. No. 2, 1999
S. 23.81M..............................	ad. No. 2, 1999
S. 23.81N..............................	ad. No. 2, 1999
Division 6
S. 23.81O..............................	ad. No. 2, 1999
S. 23.81P..............................	ad. No. 2, 1999
	am. No. 1, 2004; No. 1, 2008
S. 23.81Q..............................	ad. No. 2, 1999
	am. No. 1, 2004
Division 7
S. 23.81R..............................	ad. No. 2, 1999
S. 23.81S..............................	ad. No. 2, 1999
S. 23.81T..............................	ad. No. 2, 1999
S. 23.81U..............................	ad. No. 2, 1999
	am. No. 1, 2005
Divison 8
S. 23.81V..............................	ad. No. 2, 1999
S. 23.81W.............................	ad. No. 2, 1999
Division 9
S. 23.81X..............................	ad. No. 2, 1999
S. 23.81Y..............................	ad. No. 2, 1999
	am. No. 1, 2006
Div. 10 of Part 4A.................	rep. No. 3, 1999
Ss. 23.81Z, 23.81ZA...........	ad. No. 2, 1999
	rep. No. 3, 1999
Part 5
Division 1
Heading to Div. 1................. of Part 5	ad. No. 1, 2003
S. 23.82.................................	am. No. 5, 1997
	rs. No. 1, 2003
S. 23.83.................................	am. No. 4, 2000
Note to s. 23.83 (2).............	rs. No. 4, 2000
S. 23.83A..............................	ad. No. 3, 1997
	am. Nos. 4 and 6, 1997
	rep. No. 1, 2008
Division 2
Div. 2 of Part 5......................	ad. No. 1, 2003
S. 23.83B..............................	ad. No. 5, 1997
	rep. No. 2, 1999
	ad. No. 1, 2003
S. 23.83C..............................	ad. No. 1, 2003
Part 6
S. 23.85.................................	am. No. 1, 1997; No. 3, 2000
Part 7
Division 2
S. 23.89.................................	am. No. 5, 2000
Part 8
S. 23.95.................................	am. No. 3, 2000
Schedule 1
Heading to Schedule 1......	rs. No. 2, 1999
Schedule 2...........................	rep. No. 1, 2006

Table A Application, saving or transitional provisions

User Rights Amendment Principles 2001 (No. 2)

4 Transitional

(1) Subsection 23.40B (3) of the User Rights Principles 1997, as in force immediately before the commencement date, continues to apply to a statement by an approved provider if the financial year to which the statement relates ends before that date.

(2) If a statement by an approved provider relates to a financial year that ends on or after the commencement date but covers a period (the earlier period) before that date:

(a) paragraph 23.40B (3) (c) of the User Rights Principles 1997, as in force immediately before that date, continues to apply to the statement as if the reference to the year in that paragraph were a reference to the earlier period; and

(b) paragraph 23.40B (3) (d) of the User Rights Principles 1997, as amended by these Principles, applies to the statement as if the reference to the year in that paragraph were a reference to the part of the financial year that falls within the period commencing on that date.

(3) In this section:

commencement date means the date of commencement of these Principles.

User Rights Amendment Principles 2006 (No. 1)

4 Transitional

(1) Despite the amendments made by Schedule 1:

(a) subsections 23.40B (1), (1A) and (5) of the User Rights Principles 1997 as in force immediately before 31 May 2006 continue to apply to an approved provider, being an approved provider responsible for the operation of a residential care service, in respect of the period beginning on 31 May 2006 and ending on 30 June 2006; and

(b) subsections 23.40B (2) to (4) of those Principles as in force immediately before 31 May 2006 continue to apply to an approved provider, being an approved provider responsible for the operation of a residential care service for the whole or a part of the 2005‑2006 financial year, in respect of that whole or part of the 2005‑2006 financial year.

(2) In this section:

2005‑2006 financial year, in relation to an approved provider, means:

(a) the period of 12 months ending on 30 June 2006; or