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11.7.1 Overview of Imprisonment
Last amended: 22 January 2009
Imprisonment in gaol or psychiatric confinement following criminal charge
Service pension or income support supplement is not payable on a day on which the person is in gaol or in psychiatric confinement because they have been convicted of an offence. If a person has been charged with, but not convicted of an offence, service pension or income support supplement is not payable unless the person is undertaking a course of rehabilitation.
Definition of 'in gaol'
A person is 'in gaol' if the person is lawfully detained in prison or elsewhere, either:
- while under sentence for conviction of an offence, or
- in custody pending trial or sentencing for an offence.
Definition of 'in psychiatric confinement'
A person is 'in psychiatric confinement' if the person is confined in:
- a psychiatric section of a hospital, or
- any other places where persons with psychiatric disabilities are, from time to time, confined.
It is necessary that the psychiatric confinement arises because the person has been charged with an offence. If a person is confined to a psychiatric institution while undertaking a rehabilitation course they are taken not to be in psychiatric confinement.
The circumstances in which a person will be regarded as being in psychiatric confinement because they have been charged with an offence include the following situations:
- the person's mental fitness to stand trial is being assessed, or
- the person was found unfit to stand trial due to mental impairment, or
- the person was found not guilty on the grounds of mental impairment, or
- the person was found guilty but has not been convicted as their mental fitness to be sentenced is being assessed, or
- the person was found guilty but no conviction was recorded due to their mental impairment.
Charges do not need to be pending for a person to be precluded from receiving income support. In cases where the person is found not guilty of an offence or unfit to stand trial because of their psychiatric condition, but they are ordered to confinement in a psychiatric institution, it may still be considered that the person is in psychiatric confinement because they have been charged.
Definition of a 'course of rehabilitation'
For a person to be undertaking a 'course of rehabilitation' they must be undertaking a planned series of activities that may include medical or other treatment directed towards improving the person's physical, mental and/or social functioning. This course may change over time to meet the changing needs of the person. However in order to be considered a course of rehabilitation, it must be structured in such a way that it could lead to a release from confinement.
If the person is merely undertaking ad hoc rehabilitation activities, or their treatments cannot be said to be directed towards improving their physical, mental and/or social functioning, then service pension or income support supplement cannot be paid.
Guidelines for decision makers
In order to decide whether a person is undertaking a course of rehabilitation decision makers will need to obtain details of the treatment plan or rehabilitation plan for that person. This may be achieved by obtaining a copy of the approved plan or a letter from the institution indicating details of the approved plan. The delegate must then decide whether the plan is a planned series of activities that may include medical or other treatments directed toward improving the person's physical, mental and/or social functioning, with an eventual aim of release. A plan that is largely comprised of monitoring of functioning does not meet the definition of a 'course of rehabilitation'.
When imprisonment does not affect payment of pension
A prisoner's pension payments will not be affected in the following circumstances:
- the pensioner is undertaking a community service order, or
- the pensioner is serving periods of home detention (home detention is not considered to be imprisonment), or
- the pensioner is on parole, or
- the pensioner has been charged, is in psychiatric confinement and is undertaking a course of rehabilitation.
When imprisonment does affect payment of pension
No service pension or income support supplement is payable on any day to a person who is in gaol or in psychiatric confinement (after having been charged with a criminal offence), apart from the day of admission and the day of release. The purpose of income support payments is to cover a person's day to day needs. During imprisonment these needs are met by the State.
A person lawfully detained in a psychiatric institution in connection with a conviction for an offence is 'in gaol' and cannot be paid even during a period when the person may be undertaking a course of rehabilitation.
Effect of imprisonment on DVA's assessment of marital status
Imprisonment has no effect on DVA's assessment of a person's marital status, unless one member of a couple has formed an intention to separate and has acted upon that intention.
Claims lodged prior to imprisonment or while imprisoned
A claim for income support pension lodged prior to entering gaol or while in gaol will still be investigated by the Commission following normal procedures. However, the pension or benefit will not be payable until the pensioner is released from gaol.
Imprisonment of a person does not preclude the person's partner from being eligible for partner service pension.
Eligibility for crisis payment on release from gaol
Upon release from gaol, a pensioner may receive a crisis payment in addition to their regular payment. The gaol term must have been 14 or more days in length and other criteria must be met for a pensioner to be eligible for a crisis payment.
- legally married to another person and is not living separately and apart from the other person on a permanent basis; or
- living in a prescribed registered relationship with the other person (whether of the same sex or a different sex) and is not living separately and apart from that other person on a permanent basis; or
- all of the following conditions are met:
- living with another person, whether of the same sex or a different sex;
- not legally married to that person;
- in a de facto relationship with that person; and
- not in a prohibited relationship
The term “partnered” is also commonly used.
Income support pension is:
- a social security pension
- a service pension;
- an income support supplement.