CM5569 Permanent vs Temporary Incapacity in Decisions on Special Rate or Temporary Special Rate

Special Note:  Please read also Commission Guideline CM5574

REPATRIATION COMMISSION GUIDELINES

permanent vs temporary incapacity in decisions on Special Rate or Temporary Special Rate

Purpose

To clarify the circumstances under which inability to work due to incapacity from accepted conditons may be considered temporary rather than permanent for the purposes of determining a veteran's eligibility for a Temporary Special Rate or Special Rate pension.

Background

A recent examination of the files of Special Rate veterans with psychiatric disabilities has led the Commission to review past guidance to delegates on the determination of permanent as compared with temporary incapacity.

A previous Advisory No 10/2000 indicated that “permanency (of incapacity) should be conceded unless the weight of evidence points to the probability of an improvement”.

An examination of recent cases indicates that this is being interpreted by some delegates as meaning that an opinion of a specialist that a veteran:

• may be able to return to work after a period of time, or
• should be re-assessed for their ability to work at some future time

falls short of stating that the veteran will probably be able to return to work after a stated period and that, short of this degree of certainty, he/she should be granted Special Rate.

It is the Commission's view that the legislation provides an evidence-based test to determine whether a veteran's incapacity to work more than 8 hours per week is permanent and that there is no legal presumption that can be applied in favour of either permanent or temporary incapacity.

A decision maker is required to properly investigate a claim and to apply the correct legislative test. The Commission reminds its delegates that the standard of proof required in determining assessment of rates of pension, including the Special and Intermediate Rates, is reasonable satisfaction or, as more commonly known, the balance of probabilities.

As stated in Commission Guideline CM5011, Special Rate of Pension:

For the 'degree of incapacity' to be permanent, it must be likely to continue indefinitely.

If the evidence is not clear, then a decision maker should seek further clarification from the author of any medical reports or seek a second opinion.

If, after giving due weight to the medical evidence available (including the specialist's report) there is a reasonable basis for doubt as to whether the incapacity is likely to be permanent, then a grant of Temporary Special Rate should be made.

Action

On the evidence of recent cases, it is not unusual for a specialist to be less than precise regarding the likelihood of future employability. If the delegate is not satisfied that the specialist has adequately addressed this point, it requires clarification.

Notwithstanding that a grant of Special Rate may allow other benefits to be granted (eg, Invalidity Service Pension), these possibilities are not relevant considerations in the assessment of the appropriate rate of disability pension.

It should be noted in this regard that the Government's decision to introduce a Defence Force Income Support Allowance (DFISA) means that veterans who are granted a Temporary Special Rate pension and obtain income support from Centrelink will receive broadly comparable benefits to veterans who receive both Special Rate and Service Pension.

S24 determinations are to be made only on the basis of the criteria stated in the VEA. If a veteran fulfils each of the criteria set down in S24, then he or she should be granted a Special Rate pension. Otherwise such a grant would be an unlawful one.

If a decision is made to grant Temporary Special Rate pension, a review period should be set. It would be unusual for this period to be longer than 2 years. Assessments that indicate the need for repeated reviews should be subject to particularly close examination.

Neil Johnston

PRESIDENT

31 March 2004