B10/1994 APPLICATION FOR ATTENDANT ALLOWANCE - CHANGE IN INTERPRETATION OF "PUBLIC EXPENSE" | Compensation and Support Reference Library, Departmental Instructions, 1994

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B10/1994 APPLICATION FOR ATTENDANT ALLOWANCE - CHANGE IN INTERPRETATION OF "PUBLIC EXPENSE"

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DATE OF ISSUE:  2 MARCH 1994

APPLICATION FOR ATTENDANT ALLOWANCE - CHANGE IN INTERPRETATION OF "PUBLIC EXPENSE"

The purpose of this instruction is to advise Branches of a change in policy following a Federal Court decision on the interpretation of the phrase "at public expense".

2.The current Form D2667 is being updated and the final draft will be circulated for comment shortly.  The new form should be available by June 1994.

PARAGRAPH 3.8.5 - BEING CARED FOR "AT PUBLIC EXPENSE"

3.In the Federal Court decision in the case of Cyril George O'Donnell the court interpreted the phrase "at public expense" to mean that the Commonwealth is the sole contributor.  The Repatriation Commission has decided against appealing this decision further.

4.As a result paragraphs 3.3.3 to 3.3.6 of General Orders Pensions no longer applies, and should be deleted..  A veteran cannot be excluded from receiving AA where he or she is being cared for in a hospital or other institution, and is paying a partial contribution towards that care.

5.For a veteran to receive the Attendant Allowance all other eligibility criteria as set out in the legislation and General Orders Pensions, must be met.

MEDICAL INVESTIGATIONS AND INCURRED COSTS

6.There is no change to the medical investigations required to establish eligibility and degree of disability.

A W ASHFORD

NATIONAL PROGRAM DIRECTOR (BENEFITS)

ATTACHMENT

3.2.10 A medical review must be recorded for any temporary payment at the special rate.

3.3 - ATTENDANT ALLOWANCE

3.3.1An attendant allowance (AA) may be granted by a determining authority upon application. The legislative authority for grant of AA is contained in section 98 of the VEA.

Sub-sections 98(1) and 98(2) specify the eligibility criteria. Under sub-section 98(1), AA is paid to Veterans with certain severe incapacities listed in a table which is part of section 98.

3.3. 2In determining eligibility for AA pursuant to sub-section 98(2) it must be established that there is a need for the services of an attendant to assist the veteran. In this regard, the following guidelines must be adhered to:

(i)the need must stem from or is related to the medical condition specified in sub-section 98(2) (a) i.e. a condition affecting the cerebro-spinal system or a condition similar in effect or severity to a disability of the cerebro-spinal system;

(ii)the condition of the veteran as a result of that disability is such that the veteran is unable to cope with daily activities of normal life i.e. inability to prepare and eat meals, dress, bathe and attend to natural functions;

(iii)there exists a real need for services which can only be provided by an attendant; and

(iv)the services of an attendant are required by the veteran on a continuous and permanent basis.

3.3.3An AA is not payable where a Veteran is cared for, at public expense, in a public hospital or other public institution. Where a Veteran is admitted to a nursing home and pays the patient contribution charged by the nursing home, the Veteran is not being

cared for at public expense. On the other hand, where the Commonwealth pays part or all of the patient contribution, the patient is considered as being treated at public expense.

3.3.4On admission to a public hospital or institution (including return from leave), AA ceases to be payable from the first pension payday occurring after the Veteran commences to be cared for at public expense. If the Veteran commences to be cared for at public expense on a payday, AA will cease to be payable from the following payday (ss.98(4) refers).

3.3.5Where the Veteran ceases to be cared for at public expense (on discharge or leave), AA commences to be payable from the day following discharge, or commencement of leave (ss.98(4) refers).

3.3.6Where a Veteran is reclassified while in a public hospital or institution and, as a result, either commences to pay, or ceases to pay the patient contribution, the AA will commence or cease as if the Veteran was discharged or admitted on that date.

11GAmendment Issue No. 6 - December 1987

Extract from General Orders Pension
3.3.7Similar provisions apply to an AA payable to an Australian mariner under section 21 of the SWP&A Act.

3.4 - DECORATION ALLOWANCE

3.4.1A Branch Office delegate may grant to a Veteran who has been awarded one or more of the decorations specified in GOP 3.4.3 (and ss.l02(5) of the VEA) a decoration allowance of $2.00 a fortnight.

3.4.2To be eligible for payment of a decoration allowance, a Veteran needs to have been granted, or eligible for, payment of a disability pension (ss.102(1) refers) and not in receipt of, or entitled to be paid, an allowance or annuity of a similar kind to decoration allowance from another source (within Australia or overseas) -ss.l02(4) refers.

3.4.3he award of one or more of the following decorations entitles the recipient to a decoration allowance (ss.102(5) refers) -

. the Victoria Cross;.

the Cross of Valour;

the Star of Courage;

the Distinguished Service Order;

the Distinguished Service Cross;

the Military Cross;

the Distinguished Flying Cross;

the Distinguished Conduct Medal;

the Conspicuous Gallantry Medal;

the Distinguished Service Medal;

the Military Medal; and

the Distinguished Flying Medal;

the George Cross;

the George Medal; and .

Member of the Most Excellent Order of the British Empire (Military Division) ? MBE.

provided the decoration was awarded for gallantry during a war to which the VEA applies or during war?like operations.

Note:Details of any decoration awarded for gallantry, which is not included in the above list, should be referred to benefits Division, Central Office for consideration.

3.4.4The Distinguished Service Medal, the Cross of Valour and the Star of Courage became decorations that attract a grant of Decoration Allowance at the time of enactment of the Veterans' Entitlements Act (ie 22 May 1986). The effective date for a grant of a decoration allowance in respect of one of these awards cannot, therefore, be earlier than the effective date for commencement of the Act (ss.16(2) of the VE (Transitional Provisions and Consequential Amendments) Act refers).

3.4.5An application for Dec. A. is not necessary; it will be granted to all eligible disability pensioners from the date upon which they receive a pension, subject to an adjustment in respect of any gratuity received.

3.4.6Decoration allowance is payable at the rate of $2 a fortnight (ss.102(4) refers).

11GAmendment Issue No. 6 - December 1987