B65/1993 RESPITE CARE AND ILLNESS SEPARATED COUPLES

DATE OF ISSUE: 22 NOVEMBER 1993

RESPITE CARE AND ILLNESS SEPARATED COUPLES

INTRODUCTION

The purpose of this instruction is to provide direction for the investigation and determination of respite care and illness separated couple cases.

BACKGROUND

2.  On 2 February 1993 the Administrative Appeals Tribunal (AAT) heard an appeal against the decision of a delegate of the Repatriation Commission in relation to the date of effect for an increase in service pension.  The grounds for the appeal were that the date of effect for the increase should have been the date of admission of the veteran to a nursing home rather than the pay-day after the advice of the change in circumstances.  The delegate's decision was that the couple were an illness separated couple and the increase in pension was made having regard to ss56G(2) of the VEA.  The AAT upheld the decision of the delegate but remitted the case back to the Department to investigate if the couple could be considered to be members of a respite care couple as defined in ss5R(6) of the VEA.  Such a determination would allow for an increase in the pension from an earlier date.

3.  This DI clarifies the investigation procedures to be followed in determining such cases.

LEGISLATION (Illness Separated)

4.  Illness Separated Couple Determination - ss5R(5) of the VEA.

If the Commission is satisfied that:

(a)2 people are members of a couple; and

(b)they are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them; and

(c)because of that inability to live together, their living expenses are, or are likely to be greater than they would otherwise be; and

(d)that inability is likely to continue indefinitely;

the Commission may make a written determination that the 2 people are members of an illness separated couple for the purposes of this Act.

EFFECT OF DETERMINATION

5.  The effective date for an increase in pension for an illness separated couple is set in accordance with ss56G(2), which states:

Subject to subsections (2A), (2B) and (2C), if:

(a)the favourable determination is made following a person having advised the Department of a change in circumstances; and

(b)the change is not a decrease in the rate of the person's maintenance income;

the determination takes effect on the first pay-day after the day on which the advice was received or on the day the change occurred, whichever is the later.

6.  This means that where there is a determination that a couple is an illness separated couple for the purposes of the VEA then the effective date for an increase in pension is the later of, either the day the couple commenced to live separately as a result of the illness, or the date of the advice of the change in circumstances.  There is no discretion to apply any other date.

INVESTIGATION

7.  When, on receipt of an advice that a member of a couple's admission to care is of a permanent nature, and a determination is made that the couple is an illness separated couple for the purposes of the VEA, a search should be made of all files to ensure that the Department has not received notification from the institution at the time of the admission.  Where this is the case the increased rate of service pension may be paid from the date of that advice, otherwise the increased rate is paid from the time the later advice is received.

LEGISLATION (Respite Care Couple)

8.  Respite Care Couple Determination - ss5R(6) of the VEA states:

If the Commission is satisfied that:

(a)2 people are members of a couple; and

(b)one of the members of the couple has entered approved respite care; and

(c)the member who has entered approved respite care has remained, or is likely to remain, in that care for at least 14 consecutive days;

the Commission may make a written determination that the 2 people are members of a respite care couple for the purposes of this Act.

9.  Approved Respite Care Determination - ss5R(8) of the VEA states:

For the purposes of Part III, a person is in approved respite care if:

(a)the person is a benefits respite care patient as defined in the National Health Act 1953 (as modified by the National Health (Nursing Home Respite Care) Regulations; or

(b)the person is a leave respite care patient as defined in the National Health Act 1953 (as modified by the National Health (Nursing Home Respite Care) Regulations; or

(c)the person is an eligible person as defined in the Aged or Disabled Persons Home Act 1954 and is occupying a respite care place as defined in that Act.

INVESTIGATION

10.  To make a determination that a couple is in approved respite care it is essential to establish that the person and/or their care fits one of the criteria in ss5R(8).  If this cannot be established from the advice provided to the Department, it is essential to check with the institution to confirm the details of the admission.

EFFECT OF DETERMINATION

11.  Where a couple is determined to be a respite care couple, and the person is in approved respite care, ss5R(7) of the VEA states:

A determination (that 2 people are members of a respite care couple) takes effect from the day specified by the Commission in the determination, being a day not earlier than 3 months before the Commission is notified that the person has entered approved respite care.

ILLNESS SEPARATED/RESPITE CARE COUPLE

12.  It is possible that a couple may be determined to be an illness separated couple but also may fit the criteria for a respite care couple, or may be illness separated for part of the period and respite care for part of the period.  Where this is the case, each period of separation must be determined to be either an illness separation or a respite care separation, by application of the aforementioned sections of the legislation, and payment made for the periods and at the rates, as determined.

CONTACT OFFICER

13.  If you have any queries regarding any aspect of this DI please contact Jeanette Ricketts on (06) 289 6416.

NATIONAL PROGRAM DIRECTOR

BENEFITS