Purpose

The purpose of this departmental instruction is to outline the procedures for making and revoking or amending an illness separated couple determination.

VEA reference

Sub-section 5R(5) of the Veterans' Entitlements Act 1986 (VEA) states that the Commission may make a written determination that 2 people are members of an illness separated couple for the purpose of the VEA if the Commission is satisfied that:

• 2 people are members of a couple, and
• 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

• because of that inability to live together, their living expenses are, or likely to be greater than when they would otherwise be, and

• that inability is likely to continue indefinitely.

Written determination

Once a couple has been established to be illness separated, a determination must be made in writing and recorded on the file.

Writing and filing the determination is a crucial step.  Failure to do so can have serious repercussions should the couple's circumstances change.

Power to revoke or vary a determination

There is no explicit power under the VEA to revoke or vary an illness separated determination.  Such a power exists under the Acts Interpretation Act 1901 sub-section 33(3).  However, this only applies if there is an instrument, in this case a written determination.

This means that in order to revoke or vary an illness separated determination, a written determination MUST be made in the first instance.

Acts Interpretation Act reference

Sub-section 33(3) of the Acts Interpretation Act 1901 states that:

Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Obligations

When a person is notified that they have been determined to be part of an illness separated couple, they must also be provided with their obligations.  These obligations include notifying the department if their personal circumstances change, including entering a de facto relationship.  This occurs through the automatic advices and is also broadly stated in You and Your Pension.

New relationship

If the delegate becomes aware that a client's family situation has changed, for example that the partner has entered another marriage-like relationship, then a review may be necessary.  Investigate the family situation in the usual way with regards to section 11A.  See Attachment A for an explanation of the treatment of some relationships under the VEA.  Refer also to CLIK Policy Library Part 9, Chapter 3 'Marital Status'.  Once the delegate is satisfied that the family situation has changed and the members of the initial couple are living separately and apart for reasons other than illness, the delegate may revoke the illness separated determination and treat the couple as non-illness separated.

Advices

Obligation paragraphs will be amended to ensure that medically separated people receive an obligation that specifically identifies the need to tell the department if one member of the couple enters a new relationship with another person.

Determination

When determining an illness separated couple follow these steps.

Step

Action

1

Determine that 2 people are part of an illness separated couple according to s 5R(5) of the VEA.

2

Write a determination and place it on file.

3

Update addresses on VIEW.

4

Process case through PIPS to update
Adult Details and Residential Situation.

The PIPS advice will inform clients of their new payments and obligations.  The advices free text facility should be used to advise clients of their new status and the reasons.

Amend/revoke determination

When amending/revoking an illness separated couple determination follow these steps.

Step

Action

1

When you become aware that circumstances may have changed the illness separated status according to s 5R(5), proceed in the usual manner to investigate this.  That is, the delegate must be satisfied of the current residential and marital status.  This may include an interview or a domestic situation questionnaire to ascertain that there is a new marriage-like relationship (s 11A).

2

If the couple is no longer illness separated according to s 5R(5), you may choose to revoke the determination and record this on file, or amend the determination on file, eg with an end date.

3

Update VIEW and process case through PIPS/PC.

The PIPS advice will inform clients of their new payments and obligations.  The advices free text facility should be used to advise clients of their new status and the reasons.

Contact

For further information please contact Georgina Dudzinski on 02 6289 4895.