Advisory from Veterans' Compensation Branch
No 7/2004
This is an advisory note only. Veterans' Compensation Branch and Legal Services Group have agreed this policy view. It is not a Repatriation Commission Guideline or a Departmental Instruction. The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts. It may be subject to change as a result of further interpretation by the Courts of the legislation. Nevertheless it represents a considered view that should be taken into account by all delegates.
APPLICATION OF GARP V NON REDUCTION PROVISION IN SUBSEQUENT ASSESSMENTS
Purpose
To advise staff on the application of the non-reduction provision in the current Guide to the Assessment of Rates of Veterans' Pensions (GARP V) in subsequent assessments.
GARP V Provisions
Under sub-sections 21A(1), 29(4) and 5Q(1) of the Veterans' Entitlements Act 1986 assessments of incapacity must be made in accordance with GARP. GARP is defined as the GARP 'for the time being in force'. Therefore, when either assessing or re-assessing the extent of the incapacity of a veteran resulting from war-caused injury or disease, the provisions of the approved GARP are binding.
However, non-reduction provisions apply as outlined in clause 3 of the revocation instrument contained at the front of GARP V (Instrument No.8 of 1997). It directs that:
In the course of re-assessing or reviewing the assessment or re-assessment of the rate at which a pension is payable, the degree of incapacity of the person to whom that pension is payable shall not be a percentage that is less than the percentage of the general rate of pension constituted by the rate at which that pension was, immediately before 18 April 1998, payable unless:
- the degree of incapacity of that person from war-caused or defence-caused injury or disease has decreased (as assessed under the old Guide) since the rate of pension was previously assessed or last assessed; or
- The previous assessment or last assessment would not have been made but for a false statement or misrepresentation of a person.
This provision ensures that a veteran is protected from the effect of a re-assessment that establishes a degree of incapacity at less than his or her assessment under a previous version of GARP, and correspondingly preserves their financial benefits.
Subsequent Assessments
There is a view that the protection afforded by the transitional provisions applies only to the first assessment under GARP V of the veteran's general rate of pension and not to second and subsequent assessments.
However, it is clear from reading clause (3) that the qualification (protection) mentioned is not limited and should apply to all subsequent re-assessments. That is, unless the veteran's incapacity either decreases in accordance with the relevant previous GARP or was the result of a false or misleading statement, the veteran cannot be re-assessed at a lower rate under GARP V.
Conclusion
Where a veteran's disability pension rate was in place prior to 18 April 1998, the existing rate of a veteran's disability pension cannot be reduced by applying the current GARP unless the specific circumstances set out in clause 3 (Instrument No.8 of 1997) apply.
This applies to all subsequent re-assessments of a veteran's disability pension not just to the first assessment.
Signed
Carolyn Spiers
Branch Head
Veterans Compensation Branch
16 November 2004