Amends DI No.

Replaces DI No.

Purpose

The purpose of this DI is to inform staff about changes to partner service pension eligibility for separated spouses that came into effect on 1 July 2009.

Legislative changes

The legislative amendments relating to partner service pension are contained in Schedule 2 of the Families, Housing, Community Services and Indigenous Affairs Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008 No.143 (the Act) which received Royal Assent on 9 December 2008.

PSP for separated spouses

Eligibility for partner service pension (PSP) for a spouse who is legally married to, but separated from, their veteran spouse is limited to a maximum of 12 months from date of separation.

The passed legislation provided the following amendments:

• the measure commenced on 1 July 2009;
• loss of eligibility for PSP only applies to separated spouses who are under age pension age at the date 12 months from separation;
• there are exemptions for separated spouses who satisfy the criteria for special domestic circumstances; and
• the veteran forming a new de facto relationship does not impact on the 12 month grace period for the separated spouses.

Special Domestic Circumstances

A legislative instrument has been created under section 38(2AD) of the Act, that will provide exemption from cancellation in specified circumstances.

Special domestic circumstances should be accepted where all three circumstances apply at the date of the separation of the veteran and spouse.

Criteria 1: Psychological or mental health issues

The delegate must be satisfied that the veteran has a psychological or mental health condition that is recognised by DVA.

This is based on information already on record, so the veteran should not be contacted.

Recognition by DVA includes:

• accepted disabilities under the VEA or MRCA, and
• disabilities accepted for treatment only under the VEA or MRCA, and
• disabilities accepted by a foreign government for which DVA provides treatment.

It does not include mental health conditions associated only with claims for Invalidity Service Pension.

In certain circumstances, where DVA has evidence of a mental health condition (e.g. a doctor's report), it can be considered that the veteran would be eligible for treatment at Departmental expense for the condition even though the veteran has not made an application for treatment entitlement.

Accepted disabilities

Any disability that can reasonably be considered to be a psychological or mental health issue is included.  These are conditions that would be assessed under Chapter 4 Emotional and Behavioural in the Guide to the Assessment of Veterans' Pensions (GARP).  This includes “substance abuse” or “substance dependence” in relation to drugs, including alcohol.

Criteria 2:     Living Separately

The veteran and spouse must be living separately and apart in different residences.  Claims of special domestic circumstances from spouses who are considered to be separated under one roof will not be accepted, except where the premises has been modified so there are two separate and secure living areas.

  Criteria 3:

Unsafe Domestic Environment

The delegate must be satisfied that prior to living in different residences the domestic environment was unsafe or abusive.  An unsafe or abusive domestic environment is one where the separated spouse and/or their children:

• are fearful for their safety
• were subjected to physical abuse or violence
• were subjected to psychological or emotional abuse or social isolation
• felt they were threatened or oppressed.

This list is not exhaustive nor prescriptive.

Supporting evidence of domestic situation

In many cases documented evidence will not exist, or not be available.

In all cases the matter needs to be dealt with in a compassionate and confidential manner, recognising that the affected spouse may be distressed or uncomfortable about describing very sensitive situations. The delegate should record the specific circumstances of the case.

Apprehended Violence Order

Apprehended Violence Orders (AVO) have different names depending on the jurisdiction but in general terms they are a court produced document that places restrictions on a particular person.  The restrictions are usually about contact with a second person, or conduct such as harassing and intimidating the person in need of protection.  They apply for a certain period of time.

If the delegate is satisfied that a declaration by a separated spouse that an AVO or equivalent protection order was taken out is true, then it will be sufficient to prove an unsafe or abusive domestic environment existed even if the person no longer has a copy of the document.

  Statement by Spouse

In order to establish whether special domestic circumstances apply, separated spouses may be asked to complete a Statement of Domestic Circumstances questionnaire to outline their situation.  They may include any available supporting information such as AVOs, police reports, or advice from medical practitioners.

If the delegate is satisfied that a written statement describing an unsafe or abusive domestic environment by a separated spouse is true, then it will be sufficient to prove an unsafe domestic environment existed even if there is no other supporting evidence.

Claims and re-commencement of PSP for separated spouses

Delegates must be particularly careful when dealing with:

• Claims for partner service pension from separated spouses; and
• Reviews which re-commence payment of partner service pension for separated spouses.

In all cases it will be necessary to ensure that the separated spouse has not lost eligibility for partner service pension due to the 1 July 2009 eligibility changes.

To retain eligibility for partner service pension a separated spouse must be:

• age pension age at the date 12 months from the separation; or
• covered by special domestic circumstances.

Where a claim or re-commencement case involves a separated spouse who is over age pension age:

• ensure that the spouse was age pension age at the date 12 months from the separation before granting or re-commencing payment.

Claims and re-commencement of PSP for separated spouses (cont)

Where a Claim or re-commencement case involves a separated spouse who has not reached age pension age at the date 12 months from the separation:

• special domestic circumstances must apply if payment is to be granted or re-commenced.

Where a Claim or re-commencement case involves a separated spouse who has separated within the last 12 months and will not be over age pension age at the date 12 months from the separation:

• partner service pension may be granted or re-commenced.

However, if special domestic circumstances do not apply, the spouse must be advised that partner service pension will cease 12 months from the date of separation.

Recording of special domestic circumstances

Separated spouses who meet the special domestic circumstances criteria will have this recorded by PIPS Worksheet. The "Special Domestic Circumstances" indicator in the Adult Details screen is to be ticked where special domestic circumstances apply.

If the Special Domestic Circumstances indicator has been ticked in PIPS, this will display in VIEW, Personal Details tab, Personal Details folder. No "Special Domestic Circumstances" field will appear for a client in VIEW if the indicator is not ticked in PIPS.

Policy updates – CLIK

Policy in relation to changes to the qualifying age for partner service pension has been updated in the following areas of CLIK Policy Library:

P3/C1/S4 – Partner Service Pension

P9/C3/S3 – Relationship Status

Glossary terms

Fact sheets and other information products

The fact sheets listed below have been updated to reflect the changes to the eligibility for partner service pension:

• IS01 – Service pension overview
• IS02 – How to claim Service Pension
• IS09 – Personal Circumstances
• IS45 – Partner Service Pension

The online version of You & Your Pension has been updated.  These changes will be incorporated in the next annual bulk print.

Forms

The following form booklet will be updated:

• D — 503/4B – About Claiming Service Pension

Standard Letters

Changes are being made to existing letters and new letters are being developed where necessary for IS Standard Letters in the Relation tab.

Contact

Contact Anastasia Davy, Income Support Policy Implementation, on (02) 6289 6562 or by email for further information on this DI.