C03/2005 Temporary Rates of Disability Pension

Purpose

This Departmental Instruction outlines the action to take when there is clear evidence that an impairment which results in a grant of a pension under the Veterans' Entitlements Act 1986 (VEA) is of a temporary nature.

Background

On 8 April 2004, a Repatriation Commission Guideline, “CM5574 - Permanent vs Temporary Incapacity Decisions on Special Rate or Temporary Special Rate”, was issued.  This guideline clarified the circumstances under which inability to work due to incapacity from an accepted condition may be considered temporary rather than permanent.  The Guideline also discussed the process to be used for setting a reversionary rate in these circumstances.

Following the release of this Guideline, several State Offices queried whether the Repatriation Commission also has the power to make a grant of Intermediate Rate disability pension for a fixed period of time (ie. on a temporary basis).

Legal Advice

Legal Service Group have confirmed that, unlike the provisions of s. 24(1)(b), a veteran could qualify for the Intermediate Rate of disability pension even if the veteran was not suffering from a permanent incapacity.  However, once granted a pension at the Intermediate Rate, section 24A states that the pension remains payable at that rate unless the veteran becomes eligible for a Special Rate disability pension or unless s. 24A(1)(a) or (b) apply.

Therefore, unlike Special Rate or Temporary Special Rate cases, the Repatriation Commission is unable to grant a disability pension at the Intermediate Rate for a fixed period by applying an automatic reversionary rate when the disability is expected to improve.  Any attempt to limit a grant of Intermediate Rate disability pension in this manner would be contrary to s.24A of the VEA.

Powers of Review

Section 31(6) of the VEA allows the Repatriation Commission wide ranging powers to review decisions regarding the grant of a disability pension or the rate at which the disability pension should be paid.

Section 31(6)(a) enables the Repatriation Commission to cancel, suspend or vary the rate of a pension having regard to any matter affecting the payment of the pension which was not before the decision maker when the decision to grant or vary the amount of pension was made.  In addition, s. 31(6)(d) allows the Commission to cancel or vary the rate of pension payable to a veteran on the basis that s.24A is applicable.

Proposed Action

On the evidence of recent cases, it is not unusual for a specialist to be less than precise regarding the 'permanency' of an incapacity and any impact on a veteran's future employability.

Where claims assessors are reasonably satisfied that the impairment giving rise to the grant of pension is of a temporary nature, the decision letter detailing the rate of pension granted should include a paragraph stating that a review of the rate of pension will occur on a given date.  This includes grants of Intermediate Rate disability pension.  Any such review should be conducted under s.31(6) of the VEA and should determine whether the disability pension should remain payable at the rate initially set.

The process of implementing this review is a matter for each individual State but will depend on whether the initial rate set is at the General Rate or Above General Rate of disability pension.

Effect on the General Rate of Disability Pension

Where claims assessors are reasonably satisfied that the impairment giving rise to the grant of a General Rate of disability pension is of a temporary nature, a similar review process should also be undertaken.