"Allowances are constantly under review. The information contained in the Consolidated Library of Information and Knowledge (CLIK) does not replace legislation and any relevant decisions that have been determined by the courts."
Attendant Allowance is covered by S98 of the Veterans' Entitlement Act 1986 (VEA) [2]
The purpose of attendant allowance is to assist an eligible veteran [3], Member of the Forces [3], or a Member of a Peacekeeping Force [3] with the cost of an attendant to help with such things as feeding, bathing, dressing and other activities of daily living. The allowance is paid to the veteran and not the attendant.
To be eligible for attendant allowance the person must be in receipt of a disability compensation payment [3] for incapacity [3] for certain specified war?caused or defence?caused injuries [3] or diseases [3]. Attendant allowance [3] is payable at a higher or a lower rate depending on the type of injury or disease accepted under the VEA [3].
More → [4]
Section 98(1) VEA [2]
The higher rate of attendant allowance is payable where the person:
The lower rate of attendant allowance is payable where the person:
Section 98(3) VEA [2]
For the purposes of attendant allowance, a leg, foot, hand or arm that has been rendered permanently and wholly useless is deemed to be amputated.
Attendant allowance is not payable to a person:
The term 'public expense' has been considered by Neaves J in the Federal Court case re: Wilma Gloria O'Donnell v. Repatriation Commission [5] [5](No. ACTG23 of 1993 FED No. 742 Administrative Law - Veterans' Affairs (1993) 117 ALR 680 (1993) 18 AAR 285 (1993) 30 ALD 479 (1993) 48 FCR 548).
Justice Neaves (at paragraph 13) said; “In my opinion, having regard to the beneficial nature of the legislative provision in question, a veteran can properly be said to be a veteran who is being cared for, at public expense, in a hospital or other institution only if it can be said of him that the expense of his care in the hospital or other institution, that is to say the whole of that expense, is being met from the public purse."
Essentially, if the veteran is having to pay for any part of their care or accommodation in the hospital or other institution (including an aged care facility), then they are not considered to be there “at public expense”.
There are two Centrelink payments that relate to attendant care: carer payment and carer allowance (formerly known as the Domiciliary Nursing Care Benefit).
Carer Allowance
http://www.humanservices.gov.au/customer/services/centrelink/carer-allowance [7]
DVA's attendant allowance is not payable where the veteran's carer is receiving a carer payment in relation to their care for the veteran, but can be payable where the carer is receiving carer allowance.
Section 5H(8) (f) VEA [2]
Payment of attendant allowance under the VEA is excluded income [3] for income support [3] purposes.
Section 98(1) VEA [2]
The higher rate of attendant allowance is payable where the person:
Section 98(3) VEA [2]
Carer Allowance
http://www.humanservices.gov.au/customer/services/centrelink/carer-allowance [7]
Section 5H(8) (f) VEA [2]
For the purposes of Part VI of the VEA [11], a reference to a veteran is taken to be a reference to:
For the purposes of Part VII of the VEA [11], according to subsection 5C(1), veteran means a person (including a deceased person):
A member of the forces is a person who served in the defence force for a continuous period that commenced after 7 December 1972 and has the type of service required in sections 69, 69A and 69B of the VEA.
“Member of a Peacekeeping Force means a person who is serving, or has served, with a Peacekeeping Force outside Australia as an Australian member, or as a member of the Australian contingent, of that Peacekeeping Force."
Disability compensation payment (known before 2022 as disability pension), for the purposes of service pension, income support supplement and veteran payment, means:
Please note that the Disability Compensation Payment is legally a pension by way of compensation under the VEA so that concessional benefits under state, territory and local government legislation to pensioners/pensions under the VEA are not denied.
According to subsection 5D(2), incapacity from a war or defence-caused disease or injury is a reference to the effects of that injury or disease, and not a reference to the injury or disease itself.
According to subsection 5D(1), an injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
According to subsection 5D(1), disease means:
but does not include:
the normal physiological state, or
the accepted ranges of physiological or biochemical measures,
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
The purpose of attendant allowance is to assist eligible Veterans [12], Members of the Forces [13], or a Member of a Peacekeeping Force [14]with the cost of an attendant to help with such things as feeding, bathing, dressing and other activities of daily living. The allowance is paid to the veteran and not the attendant.
To be eligible for attendant allowance the person must be in receipt of a Disability Compensation Payment [3] for Incapacity [15]for a war-caused or defence-caused injury or Disease [16]that severely affects a persons' ability to care for themselves. Attendant allowance is payable at a higher or a lower rate depending on the type of Injury [17]or disease accepted under the Veterans' Entitlements Act.
Veterans' Entitlements Act 1986.
A person may be regarded as permanently blind in both eyes where:
The Commission Guideline CM5829: Determining 'permanently blind', 'no useful sight' and 'blinded in both eyes' [18]may be instructive in making a blinded/blindness determination.
According to Section 179 [11]of the VEA [11], the Commission is a body corporate under the name of Repatriation Commission.
Centrelink is a Government service delivery agency responsible for delivering a range of Commonwealth Government services (including social security pensions and allowances) to the Australian community through a network of more than 400 Centrelink offices.
According to section 5H of the VEA [19] income is:
The DVA program area which administers income support payment [3] claims for means tested [3] pensions or benefits is called income support.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/16582%23comment-form
[2] http://www.comlaw.gov.au/Series/C2004A03268
[3] https://clik.dva.gov.au/%23
[4] https://clik.dva.gov.au/book/export/html/16582#tgt-cspol_part6_ftn2
[5] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/1993/504.html?query=
[6] http://www.humanservices.gov.au/customer/services/centrelink/carer-payment
[7] http://www.humanservices.gov.au/customer/services/centrelink/carer-allowance
[8] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/101-ordinary-income/1013-income-exempt-assessment
[9] https://clik.dva.gov.au/compensation-and-support-policy-library/part-4-disability-compensation-eligibility/41-disability-compensation-payment-eligibility
[10] https://clik.dva.gov.au/book/export/html/16582#ref-cspol_part6_ftn2
[11] http://clik.dva.gov.au/legislation-library
[12] http://clik/glossary/veteran
[13] http://clik/glossary/member-forces
[14] http://clik/glossary/members-peacekeeping-force
[15] http://clik/glossary/incapacity
[16] http://clik/glossary/disease
[17] http://clik/glossary/injury
[18] http://clik.dva.gov.au/compensation-and-support-reference-library/commission-guidelines/cm5829-determining-permanently-blind-no-useful-sight-and-blinded-both-eyes#
[19] http://clik/health-procedure-library/health-information-and-management-notes-himn/vhc/072014-vhc-veterans-home-care