C31/1999 EFFECTIVE DATE FOR CANCELLATION OF PARTNER SERVICE PENSION WHEN OVERSEAS WAR WIDOW/ER PENSION IS GRANTED RETROSPECTIVELY

Purpose

The purpose of this DI is to provide advice relating to the effective date for cancelling partner service pensions (PSP) when an overseas war widow/er pension is granted retrospectively.

Background

Recently, Legal Services Group provided advice relating to the correct date for cancelling PSP when an overseas war widow/er pension is granted.

There is concern that the “Recovery of overpayment by deduction from other pension, benefit or allowance” rules contained in section 205AA of the Veterans' Entitlements Act 1986 (VEA) may be incorrectly applied to determine the effective date for the termination of PSP formerly paid to recipients of overseas war widow pension.

Overseas war widow/ers

Subsection 38C(2) of the VEA precludes the payment of PSP to all war widows and widowers.

Part IIIA of the VEA containing the provisions relating to Income Support Supplement (ISS) are applicable to recipients of war widows pensions granted under Part II or IV of the VEA only.  That is, Part IIIA does not apply to war widow/er pensions paid by an overseas authority.

No income support pension is payable under the VEA to an overseas  war widow/er unless he/she also:

• is a veteran in his/her own right with qualifying service; or

• has dual eligibility for Australian war widow pension.

It is important to note that the ceiling rate rules applicable to income support pensions paid to Australian war widow/ers are not applicable generally

Relevant Legislative references

Subsection 38C(2) of the Veterans' Entitlements Act 1986 (VEA) specifically excludes war widow/ers from PSP eligibility.

Although the grant of overseas war widower pension may be made retrospectively, and the person receives a lump sum to cover retrospective assessment, section 205AA

Division 13 of Part IIIB of the VEA, provides the notification obligations for income support pensions paid under the VEA.

Subsection 54(5) VEA requires that generally a person must notify the Department within 14 days of the change to their circumstances.  Subsection 54(5A) however, extends the 14 day notification period in certain circumstances to 28 days.  If a person is residing overseas ss54(5A) may be applicable.

The provisions contained in Division 15 of Part IIIB of the VEA are to be used to determine the date of termination of DVA PSP paid to a recipient of an overseas war widow pension.  The effective date will depend on whether a person complies with their section 54 notification obligations or not.

Date of effect

When a person actually commences to receive the overseas war widow/er pension, the relevant date of effect for termination PSP is dependent on whether the person complied with the section 54 notification obligations or not.

• If the event causing the change is notified within the notification period, (ie within 14 or 28 days after the event) the change is effective from the day after the end of the notification period (section 56 refers).

• If the person does not notify the Department of the event, or notifies the Department of the event after the notification period, the cancellation of PSP applies from the day of the event (section 56A refers).  In the case of an overseas war widow/er pension this would need to be the date that the overseas pension first commences to be received.

Even if a person has complied with their section 54 notification obligations pension amounts may need to be recovered as a result of delays in processing the cancellation.

It should be noted that the transfer from a DVA income support pension to a Centrelink payment cannot be treated in the same way as transfer of other income support pensions.  That is, it is not legislatively possible to arrange a “cut off” date for termination of PSP and grant of Centrelink payment.

Grant of Centrelink payment

If the overseas war widow/er pension recipient is eligible for an income support payment under the SSA, the earliest possible date of grant would be the date that the application for a social security payment is lodged with Centrelink.

Generally, this would be following:

• notification of the grant of the war widow/er pension; and
• DVA income support pension is terminated.

It is therefore important for income support officers to be aware of the PSP termination rules relating to this group and where at all possible warn the war widow/er that he or she must apply to Centrelink for income support assistance without delay.   That is, as soon as possible following the receipt of notification of grant of overseas war widow/er pension.

Failure to do this may result in disruption of income support pension that the person may otherwise be entitled to.

Contact officer

The contact officers for this issue is Oona O'Beirne at Sydney on 02 9213 7771.