These regulations are the Social Security (Long-term Residential Care) Regulations 2005.

These regulations come into force on 1 July 2005.

(1) In these regulations, unless the context otherwise requires,—

(2) Terms used in these regulations that are defined in section 136 of the Act have the meanings given to them by that section.

(1) Every example used in these regulations is part of these regulations.

(2) An example used in these regulations is only illustrative of the provision to which it relates. It does not limit the provision.

(3) If an example and the provision to which it relates are inconsistent, the provision prevails.

For the purposes of Part 4 of the Act, a resident assessed as requiring care is an exempt person if that resident is a person who—

• (a) received long-stay geriatric care in a geriatric hospital before 1 July 1993; or

• (b) was receiving long-stay care in one of the following hospitals prior to the closure of the hospital:

  • (i) Kimberley Hospital (Levin):

  • (ii) Templeton Hospital (Christchurch):

  • (iii) Mangere Hospital (Manukau City):

  • (iv) Braemar Hospital (Nelson); or

• (c) has intellectual disabilities and was receiving long-stay care in a psychiatric hospital (not being a hospital specified in paragraph (b)) prior to the closure of the hospital; or

• (d) is subject to a compulsory treatment order made under section 30 of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

• (e) is declared a restricted patient under section 55 of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

• (f) is a special patient, whether or not that person has been granted leave of absence from a hospital—

  • (i) under section 50 of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

  • (ii) under section 52 of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

• (g) is subject to a compulsory care order; or

• (h) is removed to any hospital or rest home under section 79 of the Health Act 1956; or

• (i) is committed to any hospital or rest home under section 126 of the Health Act 1956; or

• (j) was receiving continuing hospital care in a rest home or hospital before 1 July 1993.

(1) For the purposes of Part 4 of the Act, a person is an elderly victim of crime if that person—

• (a) is a victim of an offence under the Crimes Act 1961 that—

  • (i) is specified in the Schedule; and

  • (ii) was committed after 1 May 1997; and

• (b) has suffered personal injury as a result of the commission of that offence; and

• (c) has had a claim in respect of the personal injury accepted by the Accident Compensation Corporation; and

• (d) has within 12 months of the date of the personal injury been needs assessed as having an injury-related need for long-term residential care; and

• (e) continues to have an injury-related need for long-term residential care.

(2) For the purposes of Part 4 of the Act, every person who immediately before 1 July 2005 had been notified as being, or had been treated as having been, an elderly victim of crime, must, on and after the commencement date, be treated as a person assessed in accordance with subclause (1) as an elderly victim of crime.

(3) For the purposes of Part 4 of the Act,—

• (a) a person who is assessed as an elderly victim of crime under subclause (1) is no longer an elderly victim of crime on the date on which the person is needs assessed as having no injury-related need for long-term residential care; and

• (b) a person who is treated as an elderly victim of crime under subclause (2) is no longer an elderly victim of crime on the date on which the person is needs assessed as having no injury-related need for long-term residential care.

(1) A clothing allowance is payable on, or as soon as is practicable after, 1 April each year to both classes of persons specified in section 154(1) of the Act.

(2) The clothing allowance is $246.91.

For the purpose of paragraph (b) of the definition of assets in clause 4 of Part 2 of Schedule 27 of the Act, the gifting period is the period that commences 5 years before the date of means assessment.

(1) For the purpose of paragraph (b) of the definition of assets in clause 4 of Part 2 of Schedule 27 of the Act, allowable gifts are gifts of real or personal property (for example, money) gifted during the gifting period that—

• (a) are gifted by any of the following persons:

  • (i) the person being means assessed:

  • (ii) the spouse or partner of the person being means assessed:

  • (iii) the person being means assessed and that person's spouse or partner jointly; and

• (b) have a total value—

  • (i) not exceeding $5,500 each year (the gifting amount); or

  • (ii) exceeding the gifting amount but which may be offset as prescribed in subclause (2).

(2) If during any year of the gifting period the person being means assessed makes gifts of real or personal property that have a total value exceeding the gifting amount, then the difference in value between the total value of the gifts gifted in that year and the gifting amount may be offset against the balance of the gifting amount in each of the remaining subsequent years of the gifting period, if any.

(3) For the purpose of subclause (2) balance of the gifting amount in each of the remaining subsequent years of the gifting period is the total of the gifting amounts for each of those years less the total value of allowable gifts gifted in those years.

(4) If the person being means assessed and that person's spouse or partner are both in long-term residential care, then the value of any gift made jointly by that person and that person's spouse or partner is to be apportioned equally between that person and that person's spouse or partner.

(1) If all allowable gifts gifted during the gifting period have a total value less than $27,500, a gift in recognition of care that meets the criteria in subclause (2) is to be treated as an allowable gift.

(2) The criteria for a gift in recognition of care are that the gift—

• (a) is a gift of real or personal property (for example, money) gifted by any of the following persons:

  • (i) the person being means assessed:

  • (ii) the spouse or partner of the person being means assessed:

  • (iii) the person being means assessed and the person's spouse or partner jointly; and

• (b) is gifted within the period of 12 months immediately preceding the date of means assessment; and

• (c) is gifted to a person who—

  • (i) for a continuous period of at least 12 months during the gifting period—

    • (A) lived in the same household as the person being means assessed; and

    • (B) provided to the person being means assessed a high level of care that enabled the person being means assessed to remain in the community without receipt of home-based disability support services (as defined in section 69FA of the Act); and

  • (ii) is not the spouse, partner, or dependent child of the person being means assessed; and

• (d) is of an amount up to $5,500 for each 12-month period of care provided; and

• (e) is not of an amount that, together with the amounts of any other gifts in recognition of care, exceeds the difference between $27,500 and the total value of all gifts allowable under regulation 9.

(3) If the person being means assessed and that person's spouse or partner are both in long-term residential care, then the value of any gift in recognition of care gifted jointly by that person and that person's spouse or partner in respect of the care they both received from the same person may be apportioned equally between the person being means assessed and that person's spouse or partner.

For the purposes of section 147A of the Act, instances of deprivation of property or income include, but are not limited to, the following:

• (a) gifts that are gifted in the 12-month period prior to the commencement of the gifting period, or in any 12-month period preceding that period, to the extent that the total value of the gifts in each such period exceeds $27,000:

  Example

  In the year before the commencement of the gifting period the person being means assessed and that person's spouse jointly make gifts having a total value of $100,000.

  The person being means assessed and his or her spouse may be treated as having deprived themselves of $73,000 in respect of the gifts.

• (b) a disposition of property at any time before the commencement of the gifting period for no consideration, or for a consideration less than the market value of the property at the time of disposition, may be treated as a gift for the purposes of paragraph (a):

  Example

  Two years before the commencement of the gifting period the person being means assessed and that person's partner transfer the $300,000 house that they jointly own to a family member for $100,000. One year before the commencement of the gifting period the person being means assessed and that person's partner gift $50,000 to another family member.

  The person being means assessed and his or her partner may be treated as having deprived themselves of $196,000 in respect of the disposition and the gift (being the sum of $200,000 less $27,000 for the disposition of the house and $50,000 less $27,000 for the monetary gift).

• (c) a disposition of property during the gifting period for no consideration, or for a consideration less than the market value of the property at the time of disposition:

  Example

  During the gifting period the person being means assessed sells his or her car for $10,000. The market value of the car at the time of sale was $20,000.

  The person being means assessed may be treated as having deprived himself or herself of property to the extent of $10,000 in respect of the car sale.

• (d) a failure at any time to exercise any right or entitlement to demand a payment:

  Example

  The spouse of the person being means assessed makes a loan to another person with interest on the loan being payable on demand. The spouse of the person being means assessed never makes a demand for the interest.

  The spouse of the person being means assessed may be treated as having deprived himself or herself of interest to the extent of the amount of interest that is payable on demand.

• (e) a waiver of a right at any time to receive any entitlement or payment:

  Example

  The person being means assessed and that person's partner jointly own a rental property. The tenants of that property fail to pay the rent payable under the tenancy agreement. The person being means assessed and that person's partner take no action to recover the unpaid rent.

  The person being means assessed and his or her partner may be treated as having deprived themselves of income to the extent of the unpaid rent.

• (f) an investment at any time in non-income-earning assets:

  Example

  The person being means assessed deposits savings in a non-interest-bearing bank account.

  The person being means assessed may be treated as having deprived himself or herself of income to the extent of income that could have been earned on the savings if the savings had been invested in an interest-bearing bank account.

(1) For the purpose of paragraph (f) of the definition of exempt assets in clause 4 of Part 2 of Schedule 27 of the Act, the following assets are exempt assets:

• (a) household furniture and effects:

• (b) personal belongings such as clothing and jewellery:

• (c) personal collectables or family treasures or taonga such as artworks, books, stamps, and antiques:

• (d) any interest in one car or similar vehicle that is for the personal use of the person's dependent child; but this exemption does not apply—

  • (i) where an election has been made under clause 2 of Part 1 of Schedule 27 of the Act; or

  • (ii) where the exemption in paragraph (b) of the definition of exempt assets in clause 4 of Part 2 of Schedule 27 of the Act applies:

• (e) the value of any compensation or ex gratia payment made by the Government of any country to the person or his or her spouse or partner because the person or his or her spouse or partner—

  • (i) was a prisoner of war, civilian internee, or victim of persecution of any country during the Second World War; or

  • (ii) was a dependant child of a person who was a prisoner of war, civilian internee, or victim of persecution of any country during the Second World War:

• (f) any ex gratia payment made to the person, on or after 15 December 2006, by or on behalf of the Crown, and made because the person suffered a personal injury that is, or was caused by, hepatitis C infection contracted through the New Zealand blood supply:

• (g) any ex gratia payment—

  • (i) made to the person, on or after 27 April 2007, by the Crown; and

  • (ii) made in accordance with the MoU on measures related to veterans:

• (h) any compensation payment or ex gratia payment—

  • (i) made to the person, on or after 26 October 2007, by or on behalf of the Crown; and

  • (ii) made because the person is a former patient of the Lake Alice Psychiatric Hospital:

• (i) where the person or the person's spouse or partner is a member of a specified non-KiwiSaver scheme,—

  • (i) any contributions made to that scheme on or after 1 May 2008 by, or in respect of, the member; and

  • (ii) any interest that the member has in that scheme on or after 1 May 2008 except—

    • (A) a withdrawal that the member has received from the scheme:

    • (B) a withdrawal that the member is entitled to receive from the scheme on reaching the expected time of retirement:

    • (C) a withdrawal that the member is entitled to receive from the scheme on leaving the employment in respect of which the scheme was constituted or established, or any employment covered by the scheme, before reaching the expected time of retirement:

    • (D) a withdrawal that the member has applied to receive from the scheme that the member is permitted to receive under the provisions of the scheme:

• (j) any payment made to the person by the trust established under the trust deed dated 16 August 2007 and known, on that date, as the Viet Nam Veterans and Their Families Trust, other than a payment of the kind referred to in any of paragraphs (a) to (d) of clause 14.2 of that trust deed:

• (k) any compensation or ex gratia payment of the kind described in regulation 6(2) of the Social Security (Income and Cash Assets Exemptions: Ex Gratia and Compensation Payments Made by the Crown) Regulations 2008.

(1A) The exemptions in subclause (1)(f), (h), (j), and (k) apply only in respect of the first 12 months after the payment concerned is made.

(1B) In subclause (1)(f), Crown, New Zealand blood supply, and personal injury have the meanings given to them by regulation 3 of the Social Security (Income and Cash Assets Exemptions: Personal Injury from Hepatitis C Infection Contracted Through New Zealand Blood Supply) Regulations 2006.

(1C) In subclause (1)(g), MoU on measures related to veterans means the memorandum of understanding—

• (a) signed on 6 December 2006 for and on behalf of the following (the parties):

  • (i) the Ex-Vietnam Services Association; and

  • (ii) the Royal New Zealand Returned and Services Association; and

  • (iii) the Crown; and

• (b) not intended to be legally binding on the parties, but recording their intentions on a package of measures related to Vietnam veterans and other veterans.

(1D) In subclause (1)(i),—

(2) For the purpose of paragraph (f) of the definition of exempt assets in clause 4 of Part 2 of Schedule 27 of the Act, exempt assets include an amount of assets that represents the total increase in value of the non-exempt assets since the date of the last means assessment.

(3) For the purpose of subclause (2), non-exempt assets means the non-exempt assets that have earlier been determined, by a means assessment as to assets, to be equal to or less than the applicable asset threshold.

(4) Subclause (2) does not apply in respect of a review of a means assessment under section 150(1)(b) or section 150(1)(c) of the Act.

For the purpose of paragraph (k) of the definition of income in clause 5 of Part 3 of Schedule 27 of the Act, the following types of income are not to be included in a means assessment as to income:

• (a) any compensation or ex gratia payment made by the Government of any country to the person or his or her spouse or partner because the person or his or her spouse or partner—

  • (i) was a prisoner of war, civilian internee, or victim of persecution of any country during the Second World War; or

  • (ii) was a dependant child of a person who was a prisoner of war, civilian internee, or victim of persecution of any country during the Second World War:

• (b) any interest derived from compensation or an ex gratia payment referred to in paragraph (a):

• (c) any interest derived from any pre-paid funeral of the person or of the person's spouse or partner that is referred to in paragraph (d) of the definition of exempt assets in clause 4 of Part 2 of Schedule 27 of the Act.

The personal allowance defined in section 136 of the Social Security Act 1964 is $34.87 per week.