Last updated: 24 August 2011
Special Note: This Commission Guidelines amplifies Commission Guideline number CM5569
REPATRIATION COMMISSION GUIDELINES
CM5574 - Temporary Special Rate
These Guidelines are not directives and should not be used as a substitute for the proper application of the law to the particular circumstances of each case. They set out the Repatriation Commission's position on determining whether impairment affecting ability to work should be considered permanent or temporary. They are based on the words of the legislation. The Guidelines indicate the way in which the Commission considers the legislation should be applied.
Purpose
To clarify certain issues relating to the Temporary Special Rate, including:
- the circumstances under which inability to work due to incapacity from accepted conditions may be considered temporary rather than permanent;
- setting the period of temporary payment;
- the reversionary rate following temporary payment;
- extension of Temporary Special Rate pension where veteran is at risk self-harm;
To provide the Commission's guidance on the period of temporary payment at the Special Rate and on setting a reversionary rate at the end of this period.
Background
In the past, the determination of permanent as compared with temporary incapacity was not always consistent with previous Advisory No 10/2000, which indicated that “permanency (of incapacity) should be conceded unless the weight of evidence points to the probability of an improvement”.
Further examination of this issue indicates that this is being interpreted by some delegates as meaning that an opinion of a specialist that a veteran:
- may be able to return to work after a period of time, or
- should be re-assessed for their ability to work at some future time
falls short of stating that the veteran will probably be able to return to work after a stated period and that, short of this degree of certainty, he/she should be granted Special Rate.
It is the Commission's view that the legislation provides an evidence-based test to determine whether a veteran's incapacity to work more than 8 hours per week is permanent and that there is no legal presumption that can be applied in favour of either permanent or temporary incapacity.
A decision maker is required to properly investigate a claim and to apply the correct legislative test. The Commission reminds its delegates that the standard of proof required in determining assessment of rates of pension, including the Special and Intermediate Rates, is reasonable satisfaction or, as more commonly known, the balance of probabilities.
As stated in Commission Guideline CM5011, Special Rate of Pension:
For the 'degree of incapacity' to be permanent, it must be likely to continue indefinitely.
If there is a clear expectation of improvement, for example following surgical correction, other treatment or lifestyle change, the degree of incapacity would not be considered permanent. If the evidence is not clear, then a decision maker should seek further clarification from the author of any medical reports or seek a second opinion.
If, after giving due weight to the medical evidence available (including the specialist's report) there is a reasonable basis for doubt as to whether the incapacity is likely to be permanent, then a grant of Temporary Special Rate should be made.
Setting the period of temporary payment
Subsection 25(1) provides that the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue. This period should be set when a delegate of the Commission makes a decision to grant a disability pension at the Temporary Special Rate.
The period may be as short as several months, but it would be unusual for it to be longer than 2 years. The period should take account of the available medical advice on when the veteran should expect to review their circumstances with their medical adviser.
Cases in which there have been repeated grants of disability pension at the Temporary Special Rate should be subject to particularly close examination.
Reversionary Rate following temporary payment
The rate of pension payable at the expiration of the Temporary Special Rate period must be determined after medical evidence has been gathered by the delegate as part of a scheduled review process advised to the veteran in the original decision letter. The only exception to this rule is when there is clear material available at the time of the original decision which allows for a proper determination to be made of the reversionary rate payable at the end of the Temporary Special Rate period and the Temporary Special Rate pension is only being paid for a period of less than one month.
In cases where the veteran has been granted a Temporary Special Rate pension for more than several months, a review of the veteran's circumstances should be conducted within the month before payment of the Temporary Special Rate of pension is due to expire as stipulated to the veteran in the original decision letter. This will ensure that the rate of pension payable at the end of the Temporary Special Rate period is appropriate to the veteran's circumstances at that time given the medical evidence. This may result in the rate of pension reverting back to the rate prior to Temporary Special Rate, an extension of Temporary Special Rate or a move to 'permanent' Special Rate of some other rate of pension. If a review is not conducted the rate will continue at Temporary Special Rate until a review is conducted. This is because the existing Temporary Special Rate determination is the only legal determination of the rate of pension which can be paid without further review.
A veteran may at any time lodge an application for increase to a Special Rate pension or other rate of pension greater than the reversionary rate of pension.
Extension of Temporary Special Rate pension where veteran is at risk self-harm
A period of payment of Temporary Special Rate pension may be extended for a wide variety of reasons. Suicide risk may be a valid reason, provided it is related to a veteran's Accepted Disabilities (ADs). There is no legislative basis for extending payment of a Temporary Special Rate pension if this is not directly related to a veteran's accepted ADs.
In all circumstances, it is imperative that evidence provided by any individual relating to the suicide risk of a veteran must be taken seriously and dealt with in accordance with the relevant Departmental policies and procedures. Where evidence has been provided from a veteran's representative other than a doctor, this evidence must be followed up with the veteran's doctor or other healthcare professional as a matter of urgency.
The Commission can legally request medical information about a veteran's suicidal tendencies, where the information is related to the veteran's ADs. The Commission also has the discretion under subsection 34(3) to withhold any decision or reassessment if harmful. In these circumstances it would be appropriate for the delegate to provide a reassessment to the veteran's nominated representative. In any case, delegates must refer to the relevant Departmental policies and procedures prior to communicating any decision made in respect of a veteran's pension and the reasons for it.
Action
It is not unusual for a specialist to be in a position to provide precise information regarding the likelihood of future employability. If the delegate is not satisfied that the specialist has adequately addressed this point, it requires clarification.
Notwithstanding that a grant of Special Rate may allow other benefits to be granted (eg, Invalidity Service pension), these possibilities are not relevant considerations in the assessment of the appropriate rate of disability pension.
S24 determinations are to be made only on the basis of the criteria stated in the VEA. If a veteran fulfils each of the criteria set down in S24, then he or she should be granted a Special Rate pension. Otherwise such a grant would be an unlawful one.
When granting temporary payment at the Special Rate, a period during which it is to be paid should be determined, a reversionary rate specified following a scheduled review (within a month prior to expiration of the Temporary Special Rate) or at the time of the original decision where the period of Temporary Special Rate is for one month or less and the evidence available at the time indicates the appropriate 'reversionary rate. Any decision made in respect of a veteran's pension, and the reasons for it, must be communicated in writing and in accordance with the relevant protocol referred to in this guideline where applicable.
If the delegate is notified that the veteran is at risk of self-harm, the temporary special rate may be extended if the risk can be linked to accepted disabilities. This risk and any action should be undertaken in accordance with the relevant Departmental policies and procedures.
signed
Ian Campbell
PRESIDENT
August 2011