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6.2 Attendant Allowance
"Allowances are constantly under review. The information contained in the Consolidated Library of Information and Knowledge (CLIK) does not replace legislation and any relevant decisions that have been determined by the courts."
Attendant Allowance is covered by S98 of the Veterans' Entitlement Act 1986 (VEA)
What is the purpose of attendant allowance?
The purpose of attendant allowance is to assist an eligible veteran, Member of the Forces, or a Member of a Peacekeeping Force with the cost of an attendant to help with such things as feeding, bathing, dressing and other activities of daily living. The allowance is paid to the veteran and not the attendant.
Eligibility criteria and rates of attendant allowance
To be eligible for attendant allowance the person must be in receipt of a disability pension for incapacity for certain specified war?caused or defence?caused injuries or diseases. Attendant allowance is payable at a higher or a lower rate depending on the type of injury or disease accepted under the VEA.
Eligibility for the higher rate of attendant allowance
- is blinded in both eyes together with total loss of speech or total deafness, or
- has both arms amputated.
Eligibility for the lower rate of attendant allowance
The lower rate of attendant allowance is payable where the person:
- is blinded in both eyes,
- has both legs amputated and one arm amputated,
- has both legs amputated at the hip,
- has one leg amputated at the hip and the other amputated in the upper third,
- has an injury or disease affecting the cerebro?spinal system and the Commission believes that the person has a need for an attendant to assist the person, or
- has an injury or disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro?spinal system and the Commission believes that the person has a need for an attendant to assist the person.
Meaning of 'amputation'
For the purposes of attendant allowance, a leg, foot, hand or arm that has been rendered permanently and wholly useless is deemed to be amputated.
When is attendant allowance not payable?
Attendant allowance is not payable to a person:
- while he or she is an in?patient at 'public expense' in a hospital or other institution, or
- where a carer payment (previously known as carer pension) from Centrelink is payable (or would be payable but for certain deductions under the Social Security Act 1991 to recover debts and overpayments).
Interpretation of 'public expense' by the Federal Court
The term 'public expense' has been considered by Neaves J in the Federal Court case re: Wilma Gloria O'Donnell v. Repatriation Commission (No. ACTG23 of 1993 FED No. 742 Administrative Law - Veterans' Affairs (1993) 117 ALR 680 (1993) 18 AAR 285 (1993) 30 ALD 479 (1993) 48 FCR 548).
Justice Neaves (at paragraph 13) said; “In my opinion, having regard to the beneficial nature of the legislative provision in question, a veteran can properly be said to be a veteran who is being cared for, at public expense, in a hospital or other institution only if it can be said of him that the expense of his care in the hospital or other institution, that is to say the whole of that expense, is being met from the public purse."
Essentially, if the veteran is having to pay for any part of their care or accommodation in the hospital or other institution (including an aged care facility), then they are not considered to be there “at public expense”.
Attendant allowance and Centrelink payments
There are two Centrelink payments that relate to attendant care: carer payment and carer allowance (formerly known as the Domiciliary Nursing Care Benefit).
- Carer payment is an income support payment for people who are unable to support themselves through substantial employment due to the demands of their caring role.
- Carer allowance recognises the care provided to a person with a disability or medical condition, without reference to the impact on the carer's working life.
DVA's attendant allowance is not payable where the veteran's carer is receiving a carer payment in relation to their care for the veteran, but can be payable where the carer is receiving carer allowance.
Assessment of attendant allowance payments
For the purposes of Part VI of the VEA, a reference to a veteran is taken to be a reference to:
- a veteran as defined in subsection 5C(1) of the VEA;
- a member of the Forces as defined in subsection 68(1) of the VEA; or
- a member of a Peacekeeping Force as defined in subsection 68(1) of the VEA.
For the purposes of Part VII of the VEA, according to subsection 5C(1), veteran means a person (including a deceased person):
- who is taken to have rendered eligible war service, or
- in respect of whom a pension is, or pensions are, payable under subsection 13(6) and
- in Part III and Part VIIC of the VEA includes a person who is:
- a Commonwealth veteran, or
- an allied veteran, or
- an allied mariner.
A member of the forces is a person who served in the defence force for a continuous period that commenced after 7 December 1972 and has the type of service required in sections 69, 69A and 69B of the VEA.
“Member of a Peacekeeping Force means a person who is serving, or has served, with a Peacekeeping Force outside Australia as an Australian member, or as a member of the Australian contingent, of that Peacekeeping Force."
Disability pension, for the purposes of service pension and income support supplement, means:
- a pension paid for incapacity from war caused conditions, or peacetime, peacekeeping or hazardous service caused conditions (other than a war widow's or orphan's pension); or
- temporary incapacity allowance; or
- any other payment in respect of incapacity or death resulting from war or war-like operations in which the Crown has been engaged [usually paid by another Commonwealth country].
According to subsection 5D(2), incapacity from a war or defence-caused disease or injury is a reference to the effects of that injury or disease, and not a reference to the injury or disease itself.
According to subsection 5D(1), an injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
- a disease, or
- the aggravation of a physical or mental injury.
According to subsection 5D(1), disease means:
- any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development), or
- the recurrence of such an ailment, disorder, defect or morbid condition,
but does not include:
- the aggravation of such an ailment, disorder, defect or morbid condition, or
- a temporary departure from:
the normal physiological state, or
the accepted ranges of physiological or biochemical measures,
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
The purpose of attendant allowance is to assist an eligible Veterans, Members of the Forces, or a Member of a Peacekeeping Force with the cost of an attendant to help with such things as feeding, bathing, dressing and other activities of daily living. The allowance is paid to the veteran and not the attendant.
To be eligible for attendant allowance the person must be in receipt of a Disability Pension for Incapacity for a war-caused or defence-caused injury or Disease that severely affects a persons' ability to care for themselves. Attendant allowance is payable at a higher or a lower rate depending on the type of Injury or disease accepted under the Veterans' Entitlements Act.
Veterans' Entitlements Act 1986.
A person may be regarded as permanently blinded in both eyes where:
- there is a total loss of sight; or
- visual acuity after correction with suitable lenses is less than 6/60 in both eyes on the Snellen Scale; or
- where, in the written opinion of an ophthalmologist, the visual field deficits and/or combination of deficits results in a visual impairment which is the equivalent of a corrected visual acuity measure of less than 6/60 in both eyes.
The Commission Guideline CM5829: Determining 'permanently blind', 'no useful sight' and 'blinded in both eyes' may be instructive in making a blinded/blindness determination.
Centrelink is a Government service delivery agency responsible for delivering a range of Commonwealth Government services (including social security pensions and allowances) to the Australian community through a network of more than 400 Centrelink offices.
According to section 5H of the VEA income is:
- an amount earned, derived or received by a person for the person's own use or benefit;
- a periodical payment by way of gift or allowance; or
- a periodical benefit by way of gift or allowance.