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2002 – 2003 - 2004
HOUSE OF REPRESENTATIVES
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Family and
Community Services, Senator the Hon Kay
Patterson)
FAMILY AND COMMUNITY SERVICES AND
VETERANS’ AFFAIRS LEGISLATION AMENDMENT (2004 BUDGET MEASURES) BILL
2004
This Bill gives effect to two Family and Community Services and
Veterans’ Affairs 2004 Budget measures that require legislation.
Schedule 1 amends the Social Security Act 1991 and the
Veterans’ Entitlements Act 1986 to exempt fee waiver and fee pay
scholarships (and such components of any scholarships) from the income tests for
income support payments.
Date of Effect: Schedule 1 commences on
Royal Assent.
Financial Impact: The costs associated with Schedule
1 are:
Department of Family and Community
Services
2004-05 $1.048m;
2005-06 $0.846m;
2006-07 $0.976m;
2007-08 $1.131m;
Total $4.001m.
Department
of Veterans’
Affairs
2004-05 $0.123m;
2005-06 $0.099m;
2006-07 $0.114m;
2007-08 $0.129m;
Total $0.465m.
Currently, to be qualified for carer allowance under the Social
Security Act 1991, a carer is required to live in the same private home as
the person for whom they provide care (care receiver). This Bill expands the
eligibility criteria for carer allowance under the Social Security Act
1991 by allowing a new group of carers to be qualified for carer allowance
if they provide certain care for an adult with a disability, even if they do not
live with that adult. Under this measure, the required care must be provided on
a daily basis for at least 20 hours per week.
Schedule 2 also makes
one technical amendment to correct a minor drafting error.
Date of
Effect: Parts 1 and 2 of Schedule 2 commence on the later of
the day on which this Act receives the Royal Assent, and
1 September 2004.
Part 3 of Schedule 2 is taken to have
commenced on 20 March 2000, immediately after the commencement of
item 147 of Schedule 1 to the Social Security (Administration and
International Agreements) (Consequential Amendments) Act
1999.
Financial Impact: The costs associated with Schedule 2
are:
2004-05 $26.331m;
2005-06 $29.676m;
2006-07 $32.054m;
2007-08 $34.722m;
Total $122.783m.
FAMILY AND COMMUNITY SERVICES AND VETERANS’ AFFAIRS LEGISLATION AMENDMENT (2004 BUDGET MEASURES) BILL 2004
Clause 1 of the Family and Community Services and
Veterans’ Affairs Legislation Amendment (2004 Budget Measures) Bill
2004 sets out how the Act is to be cited.
Subclause 2(1) sets
out a table containing information about the commencement of each provision of
the amending Act. Each provision in column 1 of the table will commence on the
day or at the time specified in column 2.
Subclause 2(2) specifies
that column 3 of the table contains additional information about the
commencement of specified items. This subclause provides that such information
is not part of the amending Act, but may be included in any published version of
the Act.
Clause 3 provides that each Act that is specified in a
Schedule to the amending Act is amended or repealed as set out in the applicable
items in those Schedules. Any other item in a Schedule to the amending Act has
effect according to its terms.
1. Summary of proposed changes
Schedule 1 amends the Social Security Act 1991 (the Act) and the
Veterans’ Entitlements Act 1986 to give effect to a 2004 Budget
measure to exempt fee waiver and fee pay scholarships (or such components of any
scholarships) from the income tests for income support payments.
2. Background
Currently, scholarships are required to be taken into account as income
unless specifically exempted from the income test for income support payments.
As announced in the 2004 Budget, all fee waiver and fee pay scholarships (or
such components of any scholarships) will no longer be included as income under
the income tests for income support payments under the Social Security Act
1991 and the Veterans’ Entitlements Act 1986.
3. Explanation of the changes
Amendments to the Social Security Act 1991
Item 1
inserts new subparagraphs 8(8)(zjb) and (zjc), which exempt from the income
test any amount covered by new subsection 8(8B) and any payment covered by
subsection 8(8C).
Item 2 inserts new subsections 8(8B) and
(8C).
New subsection 8(8B) identifies amounts, referred to in new
paragraph 8(8)(zjb), that are not income for the purposes of the Act. The new
subsection covers the amount of a reduction (by discount, remission or waiver)
of certain specified amounts that would otherwise be payable by a person.
First, it covers amounts otherwise payable to an educational institution (as
defined in subsection 23(1) of the Act) for enrolment or tuition of the person
in a course that:
• is determined to be a secondary or tertiary
course under section 5D of the Student Assistance Act
1973;
• is a Masters or Doctoral degree course accredited as a
higher education course by an appropriately authorised authority;
or
• is a course of vocational training (as defined in section 19
of the Act).
Second, it covers amounts otherwise payable to the
Commonwealth as a result of the person’s enrolment in, or undertaking of,
such a course at an educational institution.
New subsection 8(8C)
identifies payments, referred to in new paragraph 8(8)(zjc), that are not income
for the purposes of the Act. The new subsection covers any payment that
satisfies four conditions. First, it must be made to discharge, or to prevent
from arising, a person’s actual or anticipated liability to either
an educational institution for enrolment or tuition in a course described in
paragraph 8(8B)(a) or to the Commonwealth resulting from the
person’s enrolment in, or undertaking of, such a course at an educational
institution. Second, it must be made by someone other than the person. Third,
it must be made to the institution or the Commonwealth. This condition would
prevent a payment being exempt from the income test if, for example, the
recipient used the payment for other purposes. Fourth, it must not be made at
the direction of the person.
Items 3 and 4 insert, respectively, new subparagraphs 5H(8)(hc) and (hd), and new subsections 5H(8A) and (8B), which correspond to the new provisions inserted into the Social Security Act 1991 (see items 1 and 2 above), to exempt certain specified amounts and payments from the income test for income support payments.
4. Commencement
Schedule 1 commences on the day on which this Act receives the Royal
Assent.
1. Summary of proposed changes
Schedule 2 amends the Social Security Act 1991 to give effect to a
2004 Budget measure aimed at expanding the eligibility criteria for carer
allowance. Under this measure, a carer providing care to an adult with a
disability may be qualified for carer allowance if they provide certain
care, even if they do not live in the same private home as the adult. The
required care must be provided on a daily basis for at least 20 hours per
week.
The existing qualification requirements for carer allowance
(sections 953 and 954 of the Social Security Act 1991), which do contain
the coresidency requirement, will not be affected by these amendments. Instead,
this measure will allow a new group of carers to become qualified for carer
allowance.
Schedule 2 also makes one technical amendment to correct a
minor drafting error.
Schedule 2 is divided into 3 parts: main amendment,
related amendments and technical correction.
2. Background
The Social Security Act 1991 currently requires a carer to live
with the person for whom they are providing care in order to qualify for carer
allowance. This coresidency requirement recognises that people with
disabilities who have significant care needs traditionally share a residence
with their carer, and that a significant level of care and attention can be
assumed to be given by the carer when the carer and care receiver reside in
the same home.
However, this coresidency requirement has been subject to
criticism for not recognising the diversity of caring situations in the
community, or the valuable contribution made by non-coresident carers to
providing care. In many cases this care allows the care receiver to continue to
live in their own home, rather than going into alternative care. This measure
is intended to respond to community concern by removing the coresidency
requirement for a new group of carers and allowing them to be qualified for
carer allowance if they provide certain care.
3. Explanation of the changes
Part 1 – Main amendment
Amendments to the Social Security Act 1991
Item 1 inserts a new qualification provision for carer allowance
in relation to caring for a disabled adult, which does not require the carer and
the disabled adult to share the same home. The new subsection 954A(1) provides
that a carer will be qualified for carer allowance in respect of a disabled
adult (care receiver) if:
• both the carer and the care receiver
are Australian residents;
• the care receiver is a “family
member” of the carer or is a person approved by the Secretary in writing
for this purpose;
• the care receiver has been assessed and rated under
the Adult Disability Assessment Tool (ADAT) and given a score under the ADAT of
at least 30, which was calculated on the basis of a professional questionnaire
score of at least 12;
• the care receiver receives care and attention
as described in the new subsection 954A(2);
• the carer’s
efforts in providing the care and attention does not attract payment at award
wages or above; and
• neither the carer nor any other person is
qualified for carer allowance in respect of the same care receiver under the
coresidency provision in section 954.
Some of these qualification
requirements are the same as those that already exist for coresident carers
under section 954. However, the “care and attention” required to be
provided by a non-coresident carer is defined (see new subsection 954A(2),
described below).
Preclusion of professional carers – new
paragraph 954A(1)(f)
A non-coresident carer must not be paid at award
wages or above for the activities that they undertake in providing care to the
care receiver. This means that a non-coresident carer who is receiving award
wages or above for the care that they provide to the care receiver (whether this
is actually under a relevant award or equivalent), will not be able to qualify
for carer allowance under section 954A. The intention of this requirement is to
exclude certain carers, including professional carers whose work already
requires them to provide care as part of their employment. This exclusion also
extends to similar arrangements (including informal arrangements), in situations
where they are already being paid at least the equivalent of award wages for the
care that they provide.
Example 1: A professional carer who works for
a government or non-government organisation at award wages, and cares for a
disabled adult in the adult’s home every day, will not be able to qualify
for carer allowance under section 954A, even if the disabled adult is a family
member of the carer or other approved person.
Example 2: A
professional carer who cares for other disabled adults during the day, who also
provides unpaid care to his mother every day, of at least 20 hours per week, may
be able to qualify for carer allowance under section 954A for the care that he
provides to his mother.
Example 3: In a private care arrangement
between two sisters where one sister pays the other sister the equivalent of
award wages to care for their father in their father’s home, for at least
20 hours per week, the sister providing the care would not qualify for carer
allowance under section 954A.
Example 4: In a private care
arrangement where a daughter cares for her mother in her mother’s home for
at least 20 hours a week, and receives token payments to cover her expenses, but
these are less than the equivalent of award wages, the daughter may still be
able to qualify for carer allowance under section 954A.
Coresident
carer qualified for same care receiver – new paragraph
954A(1)(g)
If a person who is a coresident carer is qualified for
carer allowance under section 954 for a care receiver, it is not possible for
that person to be qualified for carer allowance as a non-coresident carer under
section 954A in respect of the same care receiver. In this situation the carer
will only qualify for carer allowance for the care receiver under section
954.
In addition, if a coresident carer is qualified for carer allowance
under section 954, it will not be possible for any other person, who is a
non-coresident carer, to be qualified for carer allowance under section 954A, in
relation to the same care receiver. This will be the case even if the
non-coresident carer is providing the required care and attention to the care
receiver.
Notes following new subsection 954A(1)
Note 1
following the new subsection 954A(1) explains that the term
“Australian resident” is defined in section 7, and the term
“family member” is defined in subsection 23(1) of the Social
Security Act 1991.
Note 2 refers to section 955, which relates to
situations where a carer may be qualified for carer allowance in circumstances
where the care receiver is in hospital.
Note 3 explains that section 957
deals with the effect of any temporary cessation of care and attention on a
carer’s qualification for carer allowance, including qualification under
the new section 954A.
Note 4 explains that sections 964 and 965 relate to
the effect of two carers being qualified for carer allowance, including
qualification under the new section 954A.
Care and attention –
new paragraph 954A(1)(d) and subsection 954A(2)
The “care and
attention” referred to in new paragraph 954A(1)(d) is defined in the new
subsection 954A(2). This provision requires that the care and attention
provided by the carer to the care receiver must:
• address special
care needs that the care receiver is assessed as having under the Adult
Disability Assessment Tool (ADAT) and that relate to the care
receiver’s bodily functions or to sustaining the life of the care
receiver;
• be received by the care receiver on a daily basis, for a
total of at least 20 hours a week;
• be received by the care receiver
from the carer alone, or from the carer together with another
person;
• be received in a private home that is the residence of either
the care receiver, or the carer, or the other person (if any);
and
• not be care and attention of a kind specified in a written
instrument made by the Secretary for this purpose.
Special care needs
– new paragraph 954A(2)(a)
The special care needs referred to
in new paragraph 954A(2)(a) must be required by the care receiver in terms of
the ADAT. One of the qualification conditions for carer allowance requires
the care receiver to be assessed under the ADAT, and to obtain a certain minimum
score under the professional questionnaire and a certain minimum total score.
The ADAT, which is a disallowable instrument made under section 38C of the
Social Security Act 1991, is designed to determine an adult’s level
of disability through an assessment of their basic activities of daily living.
The special care needs provided by the carer to the care receiver must have been
expressly described as being required by that care receiver under the ADAT, that
is, the care receiver must have been assessed under the ADAT as having need
for assistance with the basis activities of daily living. In addition, those
needs must relate to the care receiver’s bodily functions or to
sustaining their life. This means that the required “care and
attention” to be provided by the carer is specific to the relevant care
receiver in each particular situation.
The types of “care and
attention” that are intended to satisfy the new subsection 954A(2),
which are also special care needs addressed in the ADAT, may include the carer
personally providing assistance to the care receiver with the basic
activities of daily living, such as feeding, dressing, showering, hygiene,
including grooming and toileting, mobility, communication, or administering
medication and/or treatment etc. These activities are special care needs
required by the care receiver that relate to the care receiver’s
bodily functions or to sustaining their life. “Care and attention”
may also include supervising or prompting the care receiver with any of these
activities in person. In addition, “care and attention” may also
include preventing and/or protecting the care receiver from undertaking harmful,
damaging, aggressive or other inappropriate behaviour.
Example 1: A
daughter goes to her elderly mother’s home to care for her mother every
day. As her mother has chronic arthritis, she has difficultly getting around
and undertaking basic tasks as her hands and feet are affected. Her daughter
assists her with showering and dressing in the morning, feeding her breakfast
and lunch, and helping her get around the house. All of these activities
address her mother’s special care needs and meet the requirements of the
“care and attention” definition, so they may be counted towards the
daughter’s minimum of 20 hours a week for carer allowance
qualification under section 954A.
Example 2: Activities
undertaken by the daughter such as travelling to her mother’s house,
reading a book aloud to her mother and making afternoon tea for her mother do
not address her mother’s special care needs as defined in new subsection
954A(2) because they do not relate to her bodily functions or to sustaining her
life. This means that these activities would not be sufficient “care and
attention” that could be counted towards the daughter’s minimum 20
hours a week for carer allowance qualification under section
954A.
See new paragraph 954A(2)(e) and subsection 954A(3) (discussed
below) regarding what is not regarded as “care and attention”
for the purposes of section 954A.
One carer - new paragraph 954A(2)(b)
and subparagraph 954A(2)(c)(i)
In order to provide the required level
of care for carer allowance qualification under section 954A, a carer must
provide at least 20 hours of “care and attention” to the
care receiver per week. At least some of this care must be provided to the
care receiver by the carer on a daily basis, that is, each and every day.
If only one carer is qualified for carer allowance, care may be provided to the
care receiver by someone else besides the carer, but this will not count towards
the carer’s requirement to undertake at least 20 hours of care a week.
Section 957 deals with situations where the carer temporarily ceases to provide
care to the care receiver for one or more days.
See discussion on new
paragraph 954A(2)(e) and subsection 954A(3) below about the kinds of care and
attention that will not be counted towards the carer’s requirement
to provide such care and attention on a daily basis for a minimum of 20 hours
per week.
Two carers – new paragraph 954A(2)(b) and subparagraph
954A(2)(c)(ii)
It is possible for two non-coresident carers to both
be qualified for carer allowance under section 954A in respect of the same care
receiver. In such a shared care situation, either or both of those carers must
provide care to the care receiver every day. It is possible for one carer to
provide the required care on some days, and for the other carer to provide the
required care on the other days of the week, as long as at least one of them is
caring for the care receiver on a daily basis, ie. every day. However, the
total number of hours of care provided by the two carers together must add up to
at least 20 hours a week. Each carer may then receive a proportionate rate of
carer allowance (see sections 964 and 965 and subsections 974(4) and
981(1)).
Example: Two adult daughters share the care of their elderly
father, who lives on his own. One daughter provides the required care and
attention for three hours a day for three days per week, and the other daughter
provides the required care and attention for three hours a day for the remaining
four days per week. This combined care is provided every day of the week, and
in total it adds up to more than 20 hours a week. In this situation each of the
daughters may receive a proportionate rate of carer allowance based on the
amount of care that they each provide.
If care is provided to the
care receiver by anyone else besides the two qualified carers, this will not be
counted towards the total of 20 hours a week required to be provided by both
qualified carers combined.
As is the case with all non-coresident carers,
including a shared care situation involving two carers, neither carer can be
paid at award wages or above for the care and attention that they provide to the
care receiver, in order to qualify for carer allowance under section
954A.
One carer and one professional carer – new paragraphs
954A(2)(b) and 954A(2)(c)
In a situation where a non-coresident carer
and a professional carer are both providing care to a disabled adult, the care
provided by the professional carer (who is precluded from being qualified for
carer allowance if they are paid at award wages or above) will not count towards
the carer’s requirement to provide at least 20 hours a week of care and
attention. In order to be qualified for carer allowance under
section 954A, the non-coresident carer must still provide care and
attention on a daily basis, that is, every day, and this must be for a minimum
of 20 hours per week in itself. This care is over and above any other care that
is provided by the professional carer.
Private home – new
paragraph 954A(2)(d)
The required care and attention may be provided
to the care receiver in a private home that is the residence of either the carer
or the care receiver. There is no coresidency requirement for
qualification under section 954A, so that home does not have to be
the residence of the both the carer and the care receiver. It is intended that
the person’s home will be regarded as the dwelling in which the person
actually lives or resides. This excludes situations where care is provided
outside the carer or the care receiver’s private home, such as in an
institution or hospital (although a non-coresident carer may still receive carer
allowance in situations where the care receiver goes into hospital, the carer
and care receiver travel outside Australia, or the carer temporarily ceases to
provide care to the care receiver on a daily basis – see
sections 955, 956 and 957). Therefore, the carer may go to the
care receiver’s home to provide care, or the care receiver may go to
the carer’s home to receive care.
If there are two non-coresident
carers caring for the same care receiver, the required care and attention may be
provided in either the care receiver’s home, or in the home of either
carer.
Disallowable instrument – new paragraph 954A(2)(e) and
subsection 954A(3)
The new subsection 954A(3) allows the Secretary to
make a written instrument, which is a disallowable instrument, specifying the
kind of care and attention that will not be sufficient for the purposes
of paragraph 954A(2)(e). It is intended that any such disallowable instrument
would allow the Secretary to provide further, more specific information about
the actual kinds of “care and attention” that is not intended to be
included for the purposes of carer allowance qualification under
section 954A. This includes activities that do not address the
care receiver’s special care needs, as assessed under the ADAT, and
which do not relate to the care receiver’s bodily functions or to
sustaining their life, for example, shopping, housework and travel
time.
Two care receivers – new subsections 954A(4) and
954A(5)
The effect of new subsection 954A(4) is that if a carer is
qualified for carer allowance in respect of a disabled adult, the disabled adult
themselves cannot be qualified for carer allowance in respect of another
disabled adult.
Example: If A receives carer allowance under section
954A in respect of B, a disabled adult, B cannot qualify for carer allowance in
respect of C, another disabled adult.
The new subsection 954A(5)
provides that a carer may only be qualified for carer allowance for one or
two disabled adults, but no more than two disabled adults. This includes
qualification under either or both of sections 954 and 954A. This means that a
carer caring for two disabled adults may be qualified for the care and attention
they provide to two disabled adults, both under section 954, both under section
954A, or one disabled adult under section 954 and one disabled adult under
section 954A. It is not possible for a carer to be qualified for up to two
disabled adults under section 954, as well as up to another two disabled
adults under section 954A. A maximum of two disabled adults applies under
either or both provisions (also see item 7 below which amends
subsection 954(3)).
Example 1: A daughter who provides care to her
mother and father, but does not live with them, may be qualified for carer
allowance under section 954A in respect of two disabled adults. However, if the
daughter also has to care for her disabled grandmother, she could not be
qualified for additional carer allowance under either section 954 or 954A in
respect of her grandmother regardless of whether or not she lives with her
grandmother.
Example 2: A son who provides care to his mother and
grandmother, but only one of them lives with him, may be qualified for carer
allowance in respect of one disabled adult under section 954, and one disabled
adult under section 954A. However, if the son also has to care for his disabled
grandfather, he could not receive additional carer allowance under either
section 954 or 954A in respect of his grandfather regardless of whether or not
he lives with his grandfather.
Amendments to the Social Security Act 1991
Items 2 to 5 amend subsections 731J(4), 731J(5) and 731J(7) to
insert a special benefit activity test exemption for carers qualified for
carer allowance under the new section 954A. The intention is to exempt a
nominated visa holder from the special benefit activity test where, but for
the residence requirements, the carer would have satisfied the basic elements of
qualification for carer allowance under section 954A. This is consistent
with the activity test exemptions that already exist in section 731J for carer
allowance and carer payment recipients.
Items 2 to 5 insert
references to the new section 954A into subsections 731J(4), 731J(5) and
731J(7).
Item 6 amends the definition of “care receiver” to
include care receivers referred to in the new subsection 954A(1).
As with the new subsection 954A(5) described above, item 7 amends
subsection 954(3) to provide that a carer may only be qualified for carer
allowance for one or two disabled adults, but no more than two disabled adults,
under either or both of section 954 or 954A (also see item 1
above).
The note following item 7 amends the heading to section 954 to
distinguish this provision, which relates to qualification for carers who do
live with the disabled adult in the same private home, with the new section
954A, which relates to qualification for carers who do not live in the
same home as the disabled adult.
Item 8 amends paragraph 955(1)(c) to include situations involving
non-coresident carers. Subparagraph 955(1)(c)(i) will not apply to
non-coresident caring situations because it cannot be said that the disabled
adult will reside in the same home as the carer on leaving hospital. However,
the new subparagraph 955(1)(c)(ii) refers to a situation where the carer, that
is, the person participating in the care of the disabled adult in hospital,
would be qualified for carer allowance under section 954A upon the
hospitalised person leaving hospital. Alternatively, one or more persons,
including a non-coresident carer, may also be qualified for a period where the
disabled adult is in hospital if the adult is terminally ill.
Item
8 ensures that coresident and non-coresident carers may be qualified for
carer allowance under section 955 during a period in which the disabled
adult is in hospital in similar circumstances.
Existing subsection 955(2)
will apply so that a non-coresident carer can be qualified for
carer allowance during a period, or periods, in which the
care receiver is in hospital, for up to a maximum of 63 days in any
calendar year. This is the same hospitalisation qualification period available
to coresident carers.
Item 9 amends section 956 to ensure that it operates in relation
to carers qualified for carer allowance under section 954A. This means that if
Division 2 of Part 4.2 of the Social Security Act 1991 applies to the
carer during a period of absence from Australia, and the carer’s
portability period for carer allowance has not ended, the carer will not cease
to be qualified for carer allowance just because the care and attention that
they provide to the care receiver is not provided in a private home (as is
otherwise required by new paragraph 954A(2)(d)). This is consistent with the
treatment of other carer allowance recipients under section 956 during a period
in which they are overseas.
Amendment to the Social Security Act 1991
Item 10 makes a technical amendment to correct an unintended minor
drafting error in section 958. This item removes the incorrect reference to a
person’s child disability allowance rate and replaces it with a reference
to carer allowance rate.
Child disability allowance was repealed by the Assistance for Carers
Legislation Amendment Act 1999 and replaced with carer allowance from 1 July
1999 (immediately after the commencement of Schedule 1 to the Payment
Processing Legislation Amendment (Social Security and Veterans’
Entitlements) Act 1998, which commenced on that date). That Act correctly
changed the child disability allowance reference in section 958 to carer
allowance. However, the Social Security (Administration and International
Agreements) (Consequential Amendments) Act 1999 inadvertently changed this
back to a reference to the old child disability allowance, on the introduction
of the Social Security (Administration) Act 1999, with effect from 20
March 2000. This was unintentional as child disability allowance no longer
existed.
Item 10 is taken to have commenced on 20 March 2000,
immediately after the commencement of item 147 of Schedule 1 to the Social
Security (Administration and International Agreements) (Consequential
Amendments) Act 1999 (see table item 4 of subclause 2(1)). This will ensure
that the correct reference to carer allowance rate is always taken to have
existed since this payment was first introduced, as originally intended. No
person will be adversely affected by this technical amendment.
4. Commencement
Parts 1 and 2 of Schedule 2 commence on either 1 September 2004, or the day
on which this Act receives the Royal Assent, whichever is the later (see table
item 3 of subclause 2(1)).
Part 3 of Schedule 2 is taken to have
commenced on 20 March 2000, immediately after the commencement of item 147 of
Schedule 1 to the Social Security (Administration and International
Agreements) (Consequential Amendments) Act 1999 (see table item 4 of
subclause 2(1)).