Aged Care Legislation for the Commonwealth

ALRC Report 72 was the second of three reports, which resulted from a series of inquiries into Acts administered by the Department of Health and Family Services. This reference was received in August 1992.

ALRC Report 72 identifies problems with the outdated and complicated legislation dealing with aged care services, in particular the National Health Act 1953 (Cth) and the Aged and Disabled Persons Care Act 1954 (Cth). The terms of reference required the Commission to report on how new legislation could reflect Commonwealth obligations and policies under international human rights laws.

A discussion paper, Aged Care: Nursing Homes, Hostels, Community Aged Care Packages and the Domiciliary Nursing Care Benefit (DP 57), was released in 1994 and the final report was tabled in March 1995.

Key recommendations

• A single Aged Care Act should be introduced that is accessible both in structure and language.
• The assessment of eligibility for receipt of services should be a reviewable decision, first by the Minister, and then by the Administrative Appeals Tribunal (AAT).
• Service providers should establish appropriate internal complaints procedures. An independent external body should also be established to deal with complaints made by older people or their representatives.
• Aged people and their carers should be provided with information about the services and programs available to them and their rights in relation to those services. Programs should be flexible enough to meet the varying needs of older people.
• The approval, withdrawal and receipt of funding for all service types should be a more transparent and accountable process, and subject to review. Records should be kept by all service providers as a condition of receipt to ensure accountability.

Implementation

While ALRC Report 72 was not mentioned as a source, the Aged Care Act 1997 (Cth), which commenced operation in October 1997, the legislation implements many of the report’s recommendations, particularly the recommendation to introduce one Act covering aged care services in a logical and plain English format.

However, the legislation does not capture the essence of ALRC Report 72’s recommendations to improve consultation and consumer participation in the determination and regulation of aged care services. No independent external complaints mechanism was established, although recommendations to require service providers to establish internal complaints mechanisms were implemented.

Recommendations to require provision of certain information to consumers by service providers were not implemented.

The domiciliary nursing care benefit (discussed in Chapter 8 of ALRC Report 72 was not covered by the Aged Care Act, but was left under the National Health Act 1953 (Cth). Under the Assistance for Carers Legislation Amendment Act 1999 (Cth), the domiciliary nursing care benefit was repealed. It has been replaced with the ‘carer’s allowance’, defined under the Social Security Act 1991 (Cth). The carer’s allowance combined the domiciliary nursing care benefit and child disability care allowance. Family members caring for a ‘disabled adult’ residing in the same home are eligible. Simplification of the name and eligibility criteria are consistent with ALRC Report 72 recommendations, but most recommendations to widen eligibility have not been implemented. The focus has moved away from aged care to ‘disability’ care.

A national Complaints Resolution Scheme, based on dispute resolution principles and provided by an office within the Department of Health and Aged Care, was established in 1997. In 2000, a Commissioner for Complaints was appointed to review complaints from people who believe they have been unfairly treated by the Complaints Resolution Scheme. While a welcome initiative, the appointment did not go as far as the ALRC’s recommendations for an external and independent body to deal with complaints.

The Aged Care Amendment (Security and Protection) Act 2007 (Cth) gave legislative basis to the Aged Care Complaints Investigation Scheme and changed it to an investigation model, underpinned by published investigation principles. The Act also established the Aged Care Commissioner to replace the Commissioner for Complaints, with a stronger role in the handling of complaints about the Aged Care Complaints Investigation Scheme.