You are here: NTLawHbk » VeteransEntitlements

Veterans' entitlements

31 Aug 2016 - 16:26 | Version 8 |

Contributed by AndrewGeorge and current to 1 May 2016

The Federal Government has legislative schemes that both provide pensions for, and compensate, eligible defence and ex-defence service members and their dependants.

The Department of Veterans' Affairs (DVA) administers claims for pension, compensation and other benefits (see Contact points).

This section outlines the pensions available to current and ex-Australian Defence Force (ADF) members. There is also a small section on workers compensation for injuries that occur in the course of military service.

Veterans' entitlements are governed by three very different pieces of legislation. These are the:
  1. Military Compensation and Rehabilitation Act 2004 (Cth);
  2. Safety, Rehabilitation and Compensation Act 2008 (Cth); and
  3. Veterans' Entitlement Act 1986 (Cth).
These Acts are complex and it is common for people to be eleigible for different rehabilitation and compensation benefits from more than one of these Acts. This is particularly so for those who have rendered warlike service prior to 2004. The Department of Veterans' Affairs provides a Military Rehabilitation and Compensation Information Booklet that broadly explains the differences in qualifying service and entitlements between these Acts. This booklet is available from their website (se http://www.dva.gov.au/sites/default/files/files/benefits%20and%20payments/myp/mrcinfobook.pdf).

Types of pensions

The main types of veteran's pension can be divided into:
  • service pension
  • war widow pension
  • disability pension.
In addition, as outlined below, there are:
  • Other benefits.

Service pension

This is an income support pension that is paid five earlier than the Age Pension paid by Centrelink. Like the social security age and disability support pensions paid by Centrelink, it is income and assets tested.

Applying

A claim form is available from branch offices of the Department of Veterans' Affairs, or can be accessed from their website (see http://www.dva.gov.au/dvaforms/documents/d0503-4b.pdf).

Supporting documents

The form states what documents are needed to support the application (for example, marriage certificate, birth certificate, evidence of income).

Who can receive a service pension

The service pension is paid to:
  • male veterans who have qualifying service (see below), and
    have reached the age of 60, or
    are permanently incapacitated for work
  • female veterans who have qualifying service (see below), and
    have reached the age of 60, or
    are permanently incapacitated for work
  • the partner of a service pensioner
  • certain people who provide constant care and attention to severely handicapped veterans receiving the service pension.

Qualifying service

Working out just what service qualifies a person for the service pension can sometimes be a complex matter and will often require referring to the Military Compensation and Rehabilitation Act 2004 (Cth), Safety, Rehabilitation and Compensation Act 2008 (Cth), and the Veterans' Entitlement Act 1986 (Cth). You should get specialist from a Veterans' Advocate at the Darwin sub-branch of the RSL to establish what qualifying service you may have. The primary contact is:

Mr Mark Keynes
Ph: (08) 8941 5861
Email: Mark.Keynes@rslsa.org.au

Eligible veterans from other countries

The service pension may be paid not only to veterans who served in the Australian Forces, but in certain circumstances to:
  • veterans of British Commonwealth and allied forces who have been Australian residents for a continuous period of at least ten years
  • Australian and Allied mariners who served in World War II.

Residence requirements

To be granted a service pension, a person must live in their usual and settled place in Australia. However, once entitlement has been established, the pension (but not supplementary assistance) may be paid anywhere in the world.

Spouses and partners of service pensioners

The partner of a service pensioner is eligible to receive a service pension.

Widowed partners

If the service pensioner dies, their partner can continue to receive the married rate of pension, subject to the income and assets tests. However, if the person is qualified to receive an age or disability support pension or a widow allowance from Centrelink, it is usually to their advantage to transfer to the social security payment, as they will receive a higher single rate.

Rates of payment

The rates of payment are the same as for the age pension. Pensions are paid to a bank, credit union or building society account fortnightly in arrears.

Income and assets test

The service pension is subject to the same income and assets tests as the age pension, including the test applying to pensioners who have reached 70 (see Age pension in Pensions, benefits and allowances, this chapter), except that for service pension purposes, any income received from a disability pension is disregarded.

Medical benefits

A service pensioner is entitled to medical benefits under the same terms as a social security age or disability support pensioner.

War widow pension

This is a compensatory payment to the partner and dependent children of a veteran:
  • whose death has been accepted as service-related
  • who died from other causes but at the time of death was receiving, or was entitled to, a pension at either:
-the special rate,
- the intermediate rate,
- the general rate if their pension's had also been increased in respect of incapacity,
-the extreme disablement adjustment rate (see Disability pension below), or
  • who was blind or a double amputee.

Rate of payment

The rate is slightly higher than the standard social security pension rate.

Income and assets test

The war widow pension is not subject to an income or assets test.

Remarriage

The pension is not affected by the widow's remarriage, although in these circumstances the widow must have been in receipt of the pension prior to her remarriage. Her right to claim the pension is then extinguished after marriage if she had not previously applied for the pension prior to remarriage.

Medical treatment

Complete medical coverage is provided for war widows and their children.

Children's pension

A children's pension is payable to the parent or guardian of an eligible child.

Disability pension

The disability pension is a compensatory payment for incapacities resulting from injury or disease that have been accepted as being:
  • war-caused
  • defence-caused.

Applying

A claim for a disability pension should be made on a form available from the DVA.

Medical examination

Generally, a claimant for a disability pension will have to undergo a medical examination by a repatriation local medical officer, and may be referred to a specialist for examination.

Supporting information

The department will normally require the following information:
  • their own records of the applicant's service, including service medical records
  • reports from doctors who have treated the applicant since discharge
  • where appropriate, medical reports from employers and insurance companies.

Repatriation Medical Authority criteria

A veteran is eligible for a disability pension only if the circumstances surrounding the cause or aggravation of their injury or disease satisfy criteria set out in a statement of principle issued by the Repatriation Medical Authority.

The authority will decide that certain factors related to a veteran's war or defence service can cause injury or disease only if there is sound scientific medical evidence to support the link.

The standard of proving the connection between the condition and service is only 'reasonable hypothesis' where the condition is alleged to have arisen out of operational or other eligible service (most overseas service is covered by these expressions), or 'on the balance of probabilities' in respect of all other service. In addition to medical support for the connection between any condition and service, regard needs to be had to factors contained in the statement of principles issued for any particular condition by the Repatriation Medical Authority. These can be found at http://www.rma.gov.au/.

Who decides?

Decisions are made by a determining officer of the Repatriation Commission, (in the Department of Veterans' Affairs) who decides:
  • whether there is a disability
  • whether it is service-related
  • if it is, the appropriate rate of pension.

Rate of payment

The amount of pension is assessed using the Guide to the Assessment of Rates of Veterans' Pension. The pension is payable at:
  • from 10% to 100% of the general rate, according to the degree of impairment and its effect on the veteran's lifestyle, or
  • above the general rate at:
    - the special rate pension, or
  • above the general rate at the extreme disablement adjustment rate, if the veteran:
    - is not receiving the total and permanent incapacity pension, and
    - is over 65, and
    - is suffering substantial incapacity because of their war or defence-caused disabilities.

The special rate of disability rate, or 'TPI', as it is generally known, is mostly available where a veteran is unable to work more than eight hours per week by reason of their service-related disabilities only, and where the application is made before the applicant turns 60 years of age, or 55 for females. However, it is possible to apply for a special rate of service pension over these ages. If the veteran is over the age of 65, more onerous criteria apply, for example the veteran must have been doing work continually for at least 10 years before turning 65.

Income and assets test

There is no income or assets test for the disability pension.

Other benefits

In addition to the above, veterans' entitlements legislation provides for a range of other benefits and allowances.

Medical and hospital treatment

Medical and hospital treatment through the repatriation system is provided for all disabilities accepted as related to service. In the case of TPI recipients, a 'Gold Card' is issued, enabling free access to medical services for both service and non-service-related health care.

A gold card is also issued to veterans with extreme disablement adjustment pensioners, war widows and eligible dependants of the deceased whose death has been accepted as war caused, intermediate rate pensioners, veterans receiving a disability pension at or above 50% of the general rate and receiving any amount of service pension. This list is not exhaustive.

Special needs

Any veteran who has special needs as a consequence of service related disabilities should make enquiries with the DVA. There are provisions requiring the DVA to consider any special needs a veteran may have.

Appeals

Service pensions

Internal review

If a claim for a service pension is rejected, the claimant has the right to seek an internal review of the initial decision by a more senior officer of the DVA.

The Administrative Appeals Tribunal

A claimant who is unhappy with the outcome of an internal review can appeal to the Veterans' Division of the Administrative Appeals Tribunal (AAT). The AAT does not have a registry located in the Northern Territory, and NT matters are administered from Queensland (see Contact points).

Disability and widows pensions

The Veterans' Review Board

If a claim for a disability pension is rejected, the applicant can appeal to the Veterans' Review Board, an independent statutory authority (see Contact points ), by completing and lodging an appeal form (available from the DVA).

Time limits in medical assessment decisions

Medical assessment decisions must be appealed within three months of the initial decision.

Time limits in entitlement decisions

Entitlement decisions may be appealed up to 12 months after receiving the initial decision. However, payments for disability pensions are backdated three months from the date of application, and appeals must be lodged within three months of receiving the decision in order to receive this backdating if the appeal is successful. If a successful appeal is lodged after this, it is only backdated six months from the date it is lodged.

Veterans' Review Board proceedings

The Veterans' Review Board is a three-member tribunal consisting of:
  • a senior member (usually a lawyer)
  • a nominated representative of an ex-services organisation
  • another member.
The board's decisions are binding.

Hearings

Hearings of the board are private and informal. The applicant has the right to attend the hearing, as does the DVA if it so wishes although this seldom occurs as a matter of policy.

The board can request additional information, and can adjourn proceedings if necessary.

Representation

The applicant may be represented at the hearing by a person who is not a lawyer.

Ex-services organisations provide advocates who help in preparing and presenting appeals, without charge. The DVA can provide you with a list of advocates who may assist.

The Legal Aid Commission provide initial legal advice.

The Administrative Appeals Tribunal

If an applicant is dissatisfied with the decision there is a right of appeal (funded by the Legal Aid Commission if there is merit) to the Veterans' Division of the Administrative Appeals Tribunal.

Further appeal

On matters of law only, there is a further possibility of appeal in both disability and service pension cases to the Federal and High Courts.

Other Compensation

Where a serving or ex-ADF member suffers from a medical condition related to service, they may be entitled to workers compensation.

How to claim

Workers compensation forms are available from DVA. For advice on workers compensation generally, see Work-related injury . For specific advice on military workers compensation, contact the DVA or see a solicitor if there are any specific issues of concern that cannot be resolved through the DVA.

Benefits

Benefits available include regular payments to compensate for loss of ability to earn income, and compensation for medical expenses and rehabilitation costs. In some circumstances there may be an election as to whether a lump sum is claimed for permanent impairment or 'general damages' (pain and suffering). The laws on military workers compensation vary according to when the injury occurred or disease arose. If in doubt as to your benefits, seek legal advice.

Dual entitlement

A member or ex-member of the ADF may be entitled to both workers compensation and a pension. Where there is dual eligibility, one benefit may be reduced as a set-off against the liability of the Commonwealth to pay the other form of benefit. If in doubt as to which to pursue, it is recommended that claims for both workers compensation and pension benefits be made with the DVA. Once the DVA has issued its determination, a member may seek further advice if uncertainty remains.

Appeals

Appeals against decisions of the DVA in respect of workers compensation will initially involve internal review. If the applicant remains dissatisfied, the next point of appeal is the AAT. Legal representation is desirable at this level. Legal Aid can be contacted for assistance in finding an appropriate lawyer. As with pension matters, further appeals can be made to the Federal Court and High Court, but such appeals are limited to points of law.

Further Assistance

The laws concerning military pensions and compensation vary according to when an injury or disease arose, whether it was in connection with normal defence service in Australia, or 'operational service' (normally meaning overseas service), and other factors. The Federal Government attempted to bring the laws together into the one piece of legislation, the Military Rehabilitation and Compensation Act, which commenced on 1 July 2004. While all injuries and diseases arising after that date should be covered by this new legislation, the issues referred to above remain relevant for injuries or diseases occurring before or after that date.

The key issues to remember are to consult your doctor and give as full a history as practicable regarding any conditions that could relate to service; notify the DVA of any such conditions as soon as possible and seek from them forms for claiming such benefits as may be available in your circumstance; and, if you are a serving member, notify your direct employer as soon as practicable of any injury or disease occurs.

Administration of veterans' claims is the responsibility of the DVA. Further information can be obtained by calling their office on the free-call number listed in Contact points . You may also find information on their website at http://www.dva.gov.au/.

Assistance can also be obtained from ex-service organisations. In the Northern Territory, the Darwin sub-branch of the RSL has a Veteran' Advocate who may be able to assist, particularly in the event of uncertainty as to the correctness of any initial decisions of the DVA. The primary contact is:

Mr Mark Keynes
Ph: (08) 8941 5861
Email: Mark.Keynes@rslsa.org.au

This site is powered by FoswikiCopyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors.
Ideas, requests, problems regarding AustLII Communities? Send feedback