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AN10 PAYMENT OF TEMPORARY SPECIAL RATE (TTI) AND INVALIDITY SERVICE PENSION (ISP)
Advisory from Disability Compensation Branch
This is an advisory note only. Disability Compensation Branch, Income Support Branch and Legal Services Group have agreed this policy view.
It is not a Repatriation Commission Guideline or a Departmental Instruction. The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.
It may be subject to change as a result of further interpretation by the Courts of the legislation.
It represents the considered and agreed view of all three Branches and should be taken into account by all delegates.
TEMPORARY SPECIAL RATE (TTI)
INVALIDITY SERVICE PENSION (ISP)
Two payments that cannot be made concurrently
This advisory is for the information of delegates of the Repatriation Commission who are responsible for determining a veterans' rate of Disability Pension or payability for an Invalidity Service Pension.
2.It outlines the relationship between Invalidity Service Pension (ISP) and the Temporary Special Rate, commonly referred to as the Temporary Total Incapacity (TTI) rate of disability pension. Although there is no specific legislative bar, the effect of the rules for these pensions mean that veterans should not be able to receive both at the same time.
3.This document contains:
- a discussion of the reasons leading to the conclusion that ISP and TTI cannot be concurrently paid;
- general advice on assessing permanent incapacity; and
- guidance on dealing with claims for ISP when TTI is in payment (and vice versa).
Criteria for ISP & TTI
4.The criteria for ISP contained in the Repatriation Commission determination, made under subsection 37AA(1) of the Veterans' Entitlements Act 1986 (the VEA), include the requirement that a veteran's impairment is permanent. Permanency was also a requirement for ISP prior to the introduction of these new criteria on 1 January 2000.
5.There is no provision in the VEA to grant ISP on a temporary basis, although there may have been a practice some time in the past to grant ISP to temporarily disabled veterans. It is clear that such veterans are now obliged to go to Centrelink for appropriate income support.
6.It follows that a veteran who has been correctly assessed as TTI cannot receive an ISP. TTI implies that the veteran satisfies the 'alone' test in s.24 - that is, there are no significant disabilities other than accepted conditions affecting employment. TTI also implies that the incapacity from these is temporary.
7.Conversely, a veteran who is correctly receiving an ISP should not qualify for TTI because the payment of ISP implies that the veteran suffers permanent incapacity.
If the permanent incapacity for ISP is from accepted conditions alone the veteran may be eligible for the Special Rate, Totally & Permanently Incapacitated (TPI) pension. If the permanent incapacity includes a significant non-accepted condition, then the 'alone' requirement probably cannot be met where required for a TPI pension. However, the operation of subsection 24(2)(b) may still enable a TPI pension grant if the veteran has been genuinely seeking to obtain work and accepted conditions are the substantial cause preventing further job search. In either case, the presence of permanent incapacity at a level that satisfies the ISP incapacity criteria would preclude a TTI pension grant.
8.Commission Guideline CM 5011 discusses the section 24 criteria in detail.
9.The notion of permanency suggests that a veteran's incapacity will last forever with little prospect of improvement. However, the existence of the Veterans' Vocational Rehabilitation Scheme, which includes special pension preservation entitlements for ISP and TPI, reflects that some motivated 'permanently incapacitated' veterans can hope to benefit from appropriate rehabilitation and support and possibly re-enter the work force.
10.So decision-makers must decide, to their reasonable satisfaction, whether the present evidence means that it is likely or not likely that a veteran's level of incapacity will continue indefinitely or for the foreseeable future.
General advice on assessing Permanent Incapacity
11.Commission Guideline CM5011 on the criteria for special rate pensions states (on page 7), “for the 'degree of incapacity' to be permanent, it must be likely to continue indefinitely. (Emphasis added.)
Decisions must be based on evidence
12.Determining the outcome of a veteran's claim is the responsibility of the delegate of the Repatriation Commission after critically examining all of the material available.
13.The best material to assist in determination of permanency will vary, but in many cases would be a report from the veteran's general practitioner who may have a good knowledge of the veteran's medical and work history, complimented by a report from an occupational physician or similar professional. For cases where the veteran suffers a significant psychiatric disease, the current opinion of a treating psychiatrist, if not already held, should be sought.
14.If the evidence indicates that the permanency of the veteran's 'degree of incapacity' is at issue, the decision-maker should assess whether:
(i)The veteran can reasonably update past skills or undertake a program of retraining within a reasonable time; or
(ii)The veteran's condition would improve following a program of medical rehabilitation or course of treatment.
15.It is important to remember that the decision must be based on the evidence. Hence the decision on permanency can only be made after reasonable investigation of these issues and should be based on the opinion of professionals qualified to make such judgements. In the end permanency should be conceded unless the weight of evidence points to the probability of an improvement. For example, medical or psychiatric opinions that merely leave open a 'possibility' or state that a veteran 'might' be able to improve and again be fit for work should not be taken by themselves to mean a probability or likelihood.
16.On this basis it is not acceptable to classify a veteran as TTI simply on a 'wait and see' basis rather than grant a TPI pension. To do so is poor application of the law; it denies Veterans Children Education Benefits, the assurance of eligibility for an automatic war widows pension grant and incentives that can be provided under the Veterans' Vocational Rehabilitation Program.
17.Conversely, a decision to grant ISP or TPI cannot be made if there is evidence shows a probability of improvement.
18.If later information suggests that the original decision was wrong or that circumstances have changed the case can be reviewed A person returning to work or demonstrating a capacity to do so can always be reviewed under section 31 or sections 54A and 54AA.
Dealing with an ISP claim when TTI is in payment (and vice versa)
19.A common sense approach should be taken and a decision-maker must ensure that one decision is not made without regard to the other. The evidence for a pension claim includes supporting material provided with the claim, information already held and information gathered after the claim is made.
20.In this context a first step may be to identify whether the significant conditions causing the veterans incapacity are the same for both claims.
21.An ISP claim that includes evidence that non-accepted conditions contribute to incapacity for work should be reason to review a veteran's TTI pension if in payment. Additionally, new information on the ISP claim that points to permanent incapacity, should be reason to review the TTI decision with a view to considering TPI.
22.On the other hand, a claim for special rate should have regard to the conditions and incapacity for which an ISP was granted and, if they are the same, the evidence that indicated that no improvement was likely. If the evidence for permanency has changed – that is, there is now evidence that improvement is likely – the ISP decision should be reviewed.
Concurrent claims for Special Rate and ISP
23.Where claims for ISP and Special Rate are made concurrently, it is sensible for the investigation and decision on both claims be coordinated and for the decisions to be made concurrently. This should put the veteran to the least inconvenience in attending medical examinations and should also preclude double medical examinations.
24.Whenever it appears that the issue of permanency may result in refusal of an ISP the veteran (or advocate) should be given the opportunity to provide additional evidence. Similarly the medical practitioners concerned should also have the opportunity to review their opinion.
25.From 1 January 2000, the Repatriation Commission determination under section 37AA(1) provides for assessments using the “Guide to the Assessment of Rates of Veterans' Pensions” (GARP) as part of the criteria for ISP. In these circumstances, any prior GARP assessments made for disability pension purposes are evidence that must be taken into consideration.
26.Significant improvement or decline from the last assessment may be reason to review either a ISP or a TTI determination.
27.Delegates of the Repatriation Commission cannot be instructed to make certain decisions. However, if you as a delegate make a decision either to grant TTI or ISP when the other payment is already in existence without referring the mater to the other Branch then you have not fulfilled the duties of a delegate. You must resolve the conflict in evidence. Whatever decision is made reasons are expected to be clear, precise and easily understood.
28.All decisions that are in contradiction to this joint approach will be reviewed through the normal quality assurance processes.
29.Quality Assurance officers have been instructed to check all cases where TTI and ISP payments co-exist.
30.When it is possible a warning flag will be introduced on both processing systems to notify the existence of the conflicting decisions.
31.In the first instance the normal resources within Sate Offices should be used; Team Leaders, Managers and Delegates working within review areas. If a matter remains unresolved National Office may be contacted for further advice. Present contacts are;
For Income Support questions
For Disability Compensation questions
Robyn del Casale
(08) 8290 0321
Policy Eligibility & Research
(07) 3223 8766
7 June 2000
1 July 2000
Income Support Policy
7 June 2000
Policy, Eligibility and Research
11 July 2000