This chapter outlines the effect of imprisonment on a person's pension instalment.
VEA ? [2]
Imprisonment
Chapter 3.1 Service Pension Eligibility [3]
Chapter 3.2 Income Support Supplement [4]
Chapter 5.1 Rent Assistance [5]
Chapter 5.2 Remote Area Allowance [6]
Imprisonment in gaol or psychiatric confinement following criminal charge
Service pension, income support supplement and veteran payment are not payable on a day on which the person is in gaol or in psychiatric confinement because they have been convicted of an offence. If a person has been charged with, but not convicted of an offence, service pension, income support supplement and veteran payment are not payable unless the person is undertaking a course of rehabilitation.
VEA ? [12]
A person is 'in gaol' if the person is lawfully detained in prison or elsewhere, either:
VEA ? [14]
A person is 'in psychiatric confinement' if the person is confined in:
It is necessary that the psychiatric confinement arises because the person has been charged with an offence. If a person is confined to a psychiatric institution while undertaking a rehabilitation course they are taken not to be in psychiatric confinement.
The circumstances in which a person will be regarded as being in psychiatric confinement because they have been charged with an offence include the following situations:
Charges do not need to be pending for a person to be precluded from receiving income support. In cases where the person is found not guilty of an offence or unfit to stand trial because of their psychiatric condition, but they are ordered to confinement in a psychiatric institution, it may still be considered that the person is in psychiatric confinement because they have been charged.
For a person to be undertaking a 'course of rehabilitation' they must be undertaking a planned series of activities that may include medical or other treatment directed towards improving the person's physical, mental and/or social functioning. This course may change over time to meet the changing needs of the person. However in order to be considered a course of rehabilitation, it must be structured in such a way that it could lead to a release from confinement.
If the person is merely undertaking ad hoc rehabilitation activities, or their treatments cannot be said to be directed towards improving their physical, mental and/or social functioning, then service pension or income support supplement cannot be paid.
In order to decide whether a person is undertaking a course of rehabilitation decision makers will need to obtain details of the treatment plan or rehabilitation plan for that person. This may be achieved by obtaining a copy of the approved plan or a letter from the institution indicating details of the approved plan. The delegate must then decide whether the plan is a planned series of activities that may include medical or other treatments directed toward improving the person's physical, mental and/or social functioning, with an eventual aim of release. A plan that is largely comprised of monitoring of functioning does not meet the definition of a 'course of rehabilitation'.
VEA ? [16]
A prisoner's pension payments will not be affected in the following circumstances:
Service pension, income support supplement and veteran payment are not payable on any day to a person who is in gaol or in psychiatric confinement (after having been charged with a criminal offence), apart from the day of admission and the day of release. The purpose of an income support payment is to cover a person's day to day needs. During imprisonment these needs are met by the State.
A person lawfully detained in a psychiatric institution in connection with a conviction for an offence is 'in gaol' and cannot be paid even during a period when the person may be undertaking a course of rehabilitation.
Imprisonment has no effect on DVA's assessment of a person's marital status, unless one member of a couple [18] has formed an intention to separate and has acted upon that intention.
More ? [19]A claim for income support pension [18] or application for veteran payment lodged prior to entering gaol or while in gaol will still be investigated by the Commission [18] following normal procedures. However, the pension or benefit will not be payable until the person is released from gaol.
More ? [20]Imprisonment of a person does not preclude the person's partner from being eligible for partner service pension.
Upon release from gaol, a person may receive a crisis payment in addition to their regular service pension or income support supplement payment. The gaol term must have been 14 or more days in length and other criteria must be met for a pensioner to be eligible for a crisis payment.
Recipients of veteran payment are not eligible for crisis payment.
More ? [21]
According to Section 5E(2) [27]of the VEA [27]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
Income support pension is:
According to Section 179 [28]of the VEA [28], the Commission is a body corporate under the name of Repatriation Commission.
For the purpose of imprisonment, a pension instalment includes:
Other payments that may be affected include:
VEA → [30]
Entitlement to the PCC is lost if the pensioner's pension is suspended. If the pension instalments are redirected to the person's partner [18] or child/ren, the payment is taken to be a payment made to the person in gaol. As a result, the person in gaol remains eligible for fringe benefits. The PCC cannot be redirected to another person.
While the pensioner is in gaol any dependent children [18] are no longer dependants of the pensioner. If the children go into the care of a person who is an income support recipient or who is eligible for the highest rate of Family Tax Benefit Part A, the children will continue to be able to access concessional pharmaceuticals as the dependent children of the pensioner guardian.
If the children go into the care of a person who is not an income support recipient and who is not the biological parent of the children, the person may apply for a Foster Child Health Care Card from Centrelink [18]. Eligibility for the Foster Child HCC is not income or assets tested and the person does not have to have been formally appointed as a foster carer.
VEA → [33]
Eligibility for treatment at Departmental expense
Section 53D(3) [34] VEA
Veterans eligible to be provided with treatment
Section 85(8) [35] VEA
Entitlement to the Gold Card [18] will not be lost, unless the entitlement is derived from the rate of service pension being paid to the person. If entitlement is derived from the rate of service pension, or from receiving greater than 50% disability pension [18] and any amount of service pension, that entitlement is lost when the service pension is suspended, unless Commission [18] makes a determination that the person continues to be eligible for treatment as a Gold Card holder. Any such determination must be made under one of the three provisions below:
Regardless of whether or not the person continues to be a Gold Card holder, any health care needs while in prison are met by the state, not by DVA.
The following entitlements are not affected by imprisonment:
VEA → [40]
If a pensioner receives bereavement payments in respect of an income support pension and is subsequently imprisoned, the bereavement payment may be redirected in the same manner as the income support pension. Bereavement payment is payable in respect of a pensioner who dies while imprisoned if the pensioner's income support pension is being redirected to a partner or child.
A bereavement payment cannot be paid when an income support pension has been suspended or forfeited due to imprisonment, as the definition of pensioner has not been met.
If a pensioner receives bereavement payments in respect of a disability pension, the bereavement payment continues to be payable to the pensioner while imprisoned.
Eligibility for treatment at Departmental expense
Section 53D(3) [34] VEA
Veterans eligible to be provided with treatment
Section 85(8) [35] VEA
A service pension is an income support payment broadly equivalent to the social security age and disability support pensions. It may be paid once a veteran or partner has reached the nominated age or is incapacitated for work.
ISS is an income support payment that may be paid to eligible war widows and widowers under the VEA and persons receiving wholly dependent partners' compensation under the MRCA, and who satisfy the means tests. It is an indexed rate, increased twice-yearly in March and September in line with changes to the cost of living and/or average wages. Income Support Supplement (ISS) legislation commenced on 20 March 1995. It is a payment created to replace the ceiling rate income support age, carer, wife and disability support pensions, paid to war widows/widowers by Centrelink.
Rent Assistance is an allowance which may be paid to a service pensioner, income support supplement (ISS) or veteran payment recipient to assist in meeting the cost of rental accommodation.
To receive rent assistance a pensioner must be paying rent (other than Government rent) for accommodation in Australia, and the amount paid must exceed a certain threshold.
Remote area allowance is a supplementary payment added to the rate of income support pension where the pensioner's usual place of residence is situated in a remote area, and where the pensioner is physically present in the remote area.
The pension supplement is added to a person's maximum basic rate [18]. The pension supplement is calculated as a 'combined couple' rate. The 'not a member of a couple' rate is 66.33% of the 'combined couple' rate. The member of a couple rate is 50% of the combined couple rate. From 1 July 2010, the minimum pension supplement amount [18] will be able to be claimed on a quarterly basis rather than on a fortnightly basis.
The energy supplement is an ongoing, regular payment designed to help recipients meet the cost of living impact of the carbon price.
The veterans supplement was introduced on 20 September 2009 as part of the Government's Secure and Sustainable Pension Reform package. It is a fortnightly payment that replaces pharmaceutical allowance [18] and/or telephone allowance [18] for compensation recipients who are not in receipt of an income support supplement [18]. There are two rates, the veterans supplement low rate and the veterans supplement high rate. The low rate replaces one of the allowances and the high rate replaces both. The low rate is indexed every January to the Consumer Price Index [18] (CPI). The high rate is always twice the amount of the low rate.
Education Entry Payment (EdEP) is a payment to assist eligible pensioners with the costs of enrolling in a course of study in order to develop their skills, obtain a qualification and improve their employment prospects. It is paid once a year in accordance with section 118AAC of VEA [28].
Section 5F(1) of the VEA defines dependent child as having the same meaning as in the Social Security Act 1991. For income support purposes, dependent child is defined as:
Child under 16 years
A child under 16 years cannot be considered a dependent child if:
Child 16 years or older
A young person who has turned 16 years but is under 22 years can still be a dependent child of the pensioner if:
A child over 16 years cannot be considered a dependent child if:
Income includes earning from casual, part-time or full-time earnings.
Note: the meaning of a dependent child for DVA income support pension purposes is not the same as the meaning for Family Tax Benefit purposes.
A bereavement payment is an amount payable in respect of a deceased pensioner that represents a continuation of the pensioner's entitlement for a period following the death (the bereavement period).
The payment can be made as:
A service pension is an income support payment broadly equivalent to the social security age and disability support pensions. It may be paid once a veteran or partner has reached the nominated age or is incapacitated for work.
ISS is an income support payment that may be paid to eligible war widows and widowers under the VEA and persons receiving wholly dependent partners' compensation under the MRCA, and who satisfy the means tests. It is an indexed rate, increased twice-yearly in March and September in line with changes to the cost of living and/or average wages. Income Support Supplement (ISS) legislation commenced on 20 March 1995. It is a payment created to replace the ceiling rate income support age, carer, wife and disability support pensions, paid to war widows/widowers by Centrelink.
The purpose of attendant allowance is to assist eligible Veterans [46], Members of the Forces [47], or a Member of a Peacekeeping Force [48]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 [18] for Incapacity [49]for a war-caused or defence-caused injury or Disease [50]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 [51]or disease accepted under the Veterans' Entitlements Act.
Loss of earnings allowance can be paid where a veteran [18] or a member of the forces [18], member of a peacekeeping force [18] or Australian Mariner [18] is employed and has lost salary due to:
A person's 'partner' is someone who is a member of a couple with that person.
Section 5F(1) of the VEA defines dependent child as having the same meaning as in the Social Security Act 1991. For income support purposes, dependent child is defined as:
Child under 16 years
A child under 16 years cannot be considered a dependent child if:
Child 16 years or older
A young person who has turned 16 years but is under 22 years can still be a dependent child of the pensioner if:
A child over 16 years cannot be considered a dependent child if:
Income includes earning from casual, part-time or full-time earnings.
Note: the meaning of a dependent child for DVA income support pension purposes is not the same as the meaning for Family Tax Benefit purposes.
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.
The Repatriation Health Card - For All Conditions is gold in colour and frequently referred to simply as the “Gold Card”. The card entitles its holder to obtain health care and related services for all the person's identified health care needs, whether they are war-caused or not.
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 Section 179 [28]of the VEA [28], the Commission is a body corporate under the name of Repatriation Commission.
A Delegate of the Commission [18] is a decision-maker who has been delegated authority to exercise the Commission's powers for the administration of pensions under the VEA [18].
The Repatriation Health Card - For Specific Conditions is white in colour and frequently referred to simply as the “White Card”. The card entitles its holder only to treatment for accepted service-related conditions, or where eligibility has been granted by DVA for treatment of pulmonary tuberculosis, malignant conditions (cancer) and post traumatic stress disorder.
The CSHC is intended to assist those retirees and other eligible veterans, war widow(er)s and their partners of pension age [18] who fail to qualify for an income support pension from DVA or a pension or benefit from Centrelink. The card entitles the holder to pharmaceuticals listed on the PBS [18] at a concessional rate and seniors supplement [18].
A bereavement payment is an amount payable in respect of a deceased pensioner that represents a continuation of the pensioner's entitlement for a period following the death (the bereavement period).
The payment can be made as:
A form of pension that is paid to the partner of a veteran where the veteran has died as a result of war service or eligible Defence Service [18]. War widow's/widower's pension is also paid to the partner of a veteran whose death was not war caused if the veteran was a ex-prisoner of war or if the veteran was receiving Extreme Disablement Adjustment (EDA) Rate [18], Special Rate (T&PI) [18] or a rate increased in respect of certain war-caused injury or disease.
A form of pension that is paid to a child of a veteran where the veteran has died as a result of war service [18] or defence service [18]. The child may be the natural or adopted child of the veteran or any other child who was wholly or substantially dependent [18] on the veteran.
Veterans' Children Education Scheme provides financial assistance and guidance in the education and training of eligible children as defined under section 116 of the VEA [28]. Eligible children must be full-time students and be under 25 years of age at the time of application.
The VCES aims to encourage and assist eligible children to achieve their educational potential and prepare for suitable careers. The education allowance is not means tested, however, benefits cannot be paid to a student who is receiving other Commonwealth education assistance (including Youth Allowance), income support or assistance from any other similar scheme.
An underlying payment means any pension, payment, supplement or allowance under the VEA or MRCA that attracts a clean enrgy advance [18] and an energy supplement [18]
VEA ? [53]
When a pensioner is imprisoned in connection with his or her conviction for an offence, the Commission [18] has discretion to order the prisoner's pension instalments to be either suspended or redirected.
VEA ? [55]
The Commission has discretion to redirect all or part of an imprisoned person's pension instalments if the person has a partner [18] or child. Any pension instalment, or portion thereof, that is not redirected for the benefit of a partner or child may be suspended or forfeited. The redirection of pension can be paid to:
VEA ? [57]
The amount of pension instalments redirected from the prisoner to the partner or child will continue to be regarded as a payment to the prisoner and will be included in the payment summary issued at the end of the financial year [18]. As a result, the pensioner continues to be eligible for fringe benefits where entitled.
The following table demonstrates under which circumstances a prisoner's pension instalments can be redirected.
If the prisoner has a... | Then the prisoner's pension instalments... | And that person will... |
partner who is receiving social security payment [18] from Centrelink [18] | are suspended, and not redirected to the partner | need to apply to Centrelink for additional pension for themselves and any children |
partner who is receiving service pension [18], veteran payment or income support supplement [18](ISS [18]) | may be fully or partially redirected to the partner | have their pension or payment increased by an amount from the redirection, so that the total payment can equal but not exceed the single rate [18] (service pension or veteran payment) or ceiling rate [18] (ISS). Note - the maximum single rate of service pension and veteran payment for redirection purposes includes all those components of pension, such as pension supplement, energy supplement [18] (not payable with veteran payment) and rent assistance, which comprise the rate of service pension or veteran payment in the Rate Calculators. |
child, but no partner | may be fully or partially redirected to a person caring for the child | receive an amount through the redirection that is necessary to maintain the child. Note: Redirection is not applicable if the child is maintained by a State Authority |
According to Section 179 [28]of the VEA [28], the Commission is a body corporate under the name of Repatriation Commission.
A person's 'partner' is someone who is a member of a couple with that person.
Financial year, in relation to a company, means:
A Social Security payment refers to the following:
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.
A service pension is an income support payment broadly equivalent to the social security age and disability support pensions. It may be paid once a veteran or partner has reached the nominated age or is incapacitated for work.
ISS is an income support payment that may be paid to eligible war widows and widowers under the VEA and persons receiving wholly dependent partners' compensation under the MRCA, and who satisfy the means tests. It is an indexed rate, increased twice-yearly in March and September in line with changes to the cost of living and/or average wages. Income Support Supplement (ISS) legislation commenced on 20 March 1995. It is a payment created to replace the ceiling rate income support age, carer, wife and disability support pensions, paid to war widows/widowers by Centrelink.
ISS is an income support payment that may be paid to eligible war widows and widowers under the VEA and persons receiving wholly dependent partners' compensation under the MRCA, and who satisfy the means tests. It is an indexed rate, increased twice-yearly in March and September in line with changes to the cost of living and/or average wages. Income Support Supplement (ISS) legislation commenced on 20 March 1995. It is a payment created to replace the ceiling rate income support age, carer, wife and disability support pensions, paid to war widows/widowers by Centrelink.
Most income support pensions and many of the associated allowances are paid at different rates depending on whether the recipient is partnered [18] or single. Typically, the single rate is higher than the partnered rate since single persons do not benefit from the economies of pooling their resources with another person.
The ceiling rate of service pension and income support supplement (ISS) is applied to all war widows/widowers when assessing the rate of pension. This amount was previously frozen at $124.90 per fortnight, however, since legislation was introduced in September 2002, is now indexed twice yearly in line with percentage increases in the maximum rate service pension. A higher ceiling rate can apply, however, in the following cases:
If a person:
became a war widow/widower-pensioner before 1 November 1986,
has continually received service pension, social security pension or ISS since that date, and
the rate of pension immediately before that date was more than $120.10
in such a case the ceiling rate is equal to the pre-November 1986 rate plus 4%.
If a person:
is a person to whom ISS is payable,
is not permanently blind, and
whose War Widow's/Widower's Pension paid under Part II or IV of the VEA is reduced,
the ceiling rate is the sum of the ceiling rate as calculated above and the amount of the reduction in the Part II or Part IV pension. The maximum ceiling rate cannot exceed the maximum rate of single service pension. For ceiling rates refer to SCH6-A4 to A9 of VEA. The amount of increase to the ceiling rate pension under Part II or Part IV is worked out by using the formula in SCH6-A9 of the VEA.
The energy supplement is a fortnightly or quarterly payment designed to help recipients meet the cost of electricity and gas bills.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/16962%23comment-form
[2] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn189
[3] https://clik.dva.gov.au/compensation-and-support-policy-library/part-3-income-support-eligibility/31-service-pension-eligibility
[4] https://clik.dva.gov.au/compensation-and-support-policy-library/part-3-income-support-eligibility/32-income-support-supplement-iss-eligibility
[5] https://clik.dva.gov.au/compensation-and-support-policy-library/part-5-income-support-allowances-and-benefits/51-rent-assistance
[6] https://clik.dva.gov.au/compensation-and-support-policy-library/part-5-income-support-allowances-and-benefits/52-remote-area-allowance-raa
[7] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status
[8] https://clik.dva.gov.au/compensation-and-support-policy-library/part-3a-veteran-payment/eligibility-requirements-veteran-payment
[9] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-vea
[10] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn189
[11] https://clik.dva.gov.au/user/login?destination=node/16927%23comment-form
[12] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn190
[13] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn190
[14] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn191
[15] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn191
[16] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn192
[17] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn192
[18] https://clik.dva.gov.au/%23
[19] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn193
[20] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn194
[21] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn195
[22] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn193
[23] https://clik.dva.gov.au/compensation-and-support-policy-library/part-2-applying-pension/21-claims
[24] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn194
[25] https://clik.dva.gov.au/compensation-and-support-policy-library/part-3-income-support-eligibility/312-crisis-payment
[26] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn195
[27] http://www.comlaw.gov.au/Series/C2004A03268
[28] http://clik.dva.gov.au/legislation-library
[29] https://clik.dva.gov.au/user/login?destination=node/16958%23comment-form
[30] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn196
[31] clik://LEGIS/VEA/section 55A(3)
[32] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn196
[33] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn197
[34] clik://LEGIS/VEA/section 53D(3)
[35] clik://LEGIS/VEA/section 85(8)
[36] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn197
[37] https://www.comlaw.gov.au/Series/C2004A03268
[38] clik://LEGIS/VEA/Part II
[39] clik://LEGIS/VEA/Part IV
[40] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn198
[41] clik://LEGIS/VEA/section 122A(2)
[42] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn198
[43] https://clik.dva.gov.au/book/export/html/16962#tgt-SSA_ftn1
[44] http://www.comlaw.gov.au/Series/C2004A04121
[45] https://clik.dva.gov.au/book/export/html/16962#ref-SSA_ftn1
[46] http://clik/glossary/veteran
[47] http://clik/glossary/member-forces
[48] http://clik/glossary/members-peacekeeping-force
[49] http://clik/glossary/incapacity
[50] http://clik/glossary/disease
[51] http://clik/glossary/injury
[52] https://clik.dva.gov.au/user/login?destination=node/16950%23comment-form
[53] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn199
[54] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn199
[55] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn200
[56] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn200
[57] https://clik.dva.gov.au/book/export/html/16962#tgt-cspol_part11_ftn201
[58] https://clik.dva.gov.au/book/export/html/16962#ref-cspol_part11_ftn201