The offsetting provisions in the VEA [3] are self-executing and there is no discretionary power, either not to apply these provisions or to lessen the amount that is to be offset against future pension entitlements. The offsetting provisions function by operation of law, therefore there is no right of review by the Veterans' Review Board or the Administrative Appeals Tribunal. As soon as dual compensation is paid, the amount of pension is deemed to have been reduced by the relevant amount, and the action of DVA [3] officers is to implement a change in payment of a pension that is already deemed to have occurred. This means there is no decision of the Repatriation Commission and thus no reviewable decision.
Veterans' Entitlements Act 1986.
The Department of Veterans' Affairs.
The Department takes the view that a person affected by compensation offsetting may ask that a senior officer re-examine the calculation of the amount offset and to consider any additional information provided. This is to be undertaken according to the relevant delegate structure in place at the time..
The calculation of an amount to be offset against Disability Compensation Payment under the VEA [3] is an administrative decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977 and can be appealed to the Federal Court under the provisions of that Act. A veteran considering this course of action is to be advised to seek independent legal advice.
Veterans' Entitlements Act 1986.
Claims assessors should ensure that they check the claim form when initially granting pension to establish whether the veteran or member has declared that they have either lodged a claim for compensation from another source or received compensation from another source. In some cases it may be years before a third party claim is finalised and the veteran/member should be clearly and separately advised of their obligation to advise the Department of any future compensation payment. Disability compensation payment recipients are obliged to notify the Department within 14 days if they receive or become entitled to receive any payment by way of compensation or damages from another source for a disability accepted by the Repatriation Commission as service related.
In all cases where a veteran has eligible service after 7 December 1972, VEA [3] Delegates are to access VIEW – MRCA [3]/SRCA [3] Tabs, to establish whether liability has been accepted. If liability has been allowed for a condition affecting the same body system VEA Delegates must contact a SRCA Delegate to establish whether any monies have been paid under the SRCA. If any money has been paid, the payment of pension must be proessed manually, not via CCPS.
Section 25A:] requires particular attention. Where this section applies to a VEA claim, the Delegate must check whether any lump sum payment has been received under the SRCA. The Stateline, Procedures For Processing Disability Claims Affected By S25A Offsetting Provisions circulated on 1 December 2005, sets out the procedures in detail (TRIM reference: 0590783E).
Veterans' Entitlements Act 1986.
Military Rehabilitation and Compensation Act 2004
Safety, Rehabilitation and Compensation Act 1988
Any given veteran may have one or more accepted conditions and individual conditions may have different effective dates, that is, within any period where compensation offsetting is being applied there may have been a number of Repatriation Commission determinations. A separate notional assessment [3] will be needed for each Disability Compensation Payment effective date. This applies when a pension is increased or when a rate is continued as the apportionment between the accepted conditions may have changed even if the pension rate did not change. For example a further condition may be accepted without the overall pension rate being increased. Any GARP [3] points awarded for the new condition may reduce the pension paid in respect of the compensable condition [3] and affect the amount to be offset. Where a decision is made (other than an entitlement reject alone) which results in Disability Compensation Payment being continued at the same rate, the case is to be referred to the officer responsible for calculating notional assessments, to consider whether an adjustment to the current offset amount is required.
The portion of the Disability Compensation Payment [3] paid in respect of the compensable condition.
Guide to the Assessment of Rates of Veterans' Pensions.
Compensation Delegates must refer certain cases to Income Support, as the compensation recovery provisions under Part IIIC of the VEA may effect the following DVA [3] income support payments, known as Compensation Affected Pensions (CAP's);
Commencing from 1 January 1995 compensation paid wholly or partly in respect of loss of earnings or lost capacity to earn can either reduce the above compensation affected pensions dollar for dollar or the above payments are not payable during a preclusion period.
The Department of Veterans' Affairs.
The following types of compensation payments are not included under the Part IIIC compensation recovery rules;
Note - The compensation recovery provisions apply only to recipients under pension age, excepting age pension paid under social security law.
In circumstances where the compensation recovery rules do not apply, the method of the lump sum disposal (ie invested or otherwise) will determine what, if any, effect it has on the payment of service pension. The Veterans' compensation clearance officer is to liaise with Income Support where necessary. Departmental Instruction no. C16/2005 refers
More detail concerning the Part IIIC recovery rules is available on CLIK:CSREF/DI/C16/2005 [10] under Compensation and Support/Policy/Part 9/Chapter 11 [11].
Details of compensation offsetting are to be recorded on VIEW in the electronic minutes under the Comments tab. Sufficient information is to be stored to allow general inquiries to be answered and to highlight to Delegates of the VEA [3], DRCA [3] and MRCA [3] that compensation offsetting is in place or has been considered. The VIEW entries are to be to the point, easy to understand by all and not contain irrelevant information.
DCP offsetting:
DCP granted at/increased to *** with effect from *** (folio ***).
N/A for ***condition*** is ***% (folio ***).
L/S awarded on *** is *** (folio***).
Initial fortnightly equivalent is *** (folio ***).
Or
Fortnightly equivalent is *** (folio ***).
DCP offset commenced/varied to *** (indexed) or ceased from ***.
DCP offsetting (section 25A):
DCP granted at/increased to *** with effect from *** (folio ***).
L/S awarded on *** is *** (folio***).
Initial fortnightly equivalent is *** (folio ***).
or
Fortnightly equivalent is *** (folio ***).
DCP offset commenced/varied to *** (indexed) or ceased from ***.
DCP offsetting:
DCP granted at/increased to *** with effect from *** (folio ***).
N/A for ***condition*** is ***% (folio ***).
DRCA [3] incapacity payments for ***condition*** are $*** per fortnight (folio ***).
DCP offset commenced/varied to *** (indexed/non-indexed) or ceased from ***.
DCP offsetting - VVRS:
Veteran commenced/varied work at/to average *** hours per week from *** (folio ***).
DCP offset commenced/varied to *** (indexed) or ceased from ***.
Veterans' Entitlements Act 1986.
Safety, Rehabilitation and Compensation Act 1988
Military Rehabilitation and Compensation Act 2004
Safety, Rehabilitation and Compensation Act 1988
Abbreviations in the above examples:
L/S = lump sum
F/E = fortnightly equivalent
DCP = Disability Compensation Payment
N/A = notional assessment
VVRS = Veterans' Vocational Rehabilitation Scheme
Some locations refer to the initial fortnightly equivalent as AR, being Actuary Rate. The preferred description is "F/E" for fortnightly equivalent, as the Actuary Rate provides a formula only to calculate the fortnightly equivalent of the lump sum.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/24449%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=comment/reply/24483%23comment-form
[3] https://clik.dva.gov.au/%23
[4] https://clik.dva.gov.au/user/login?destination=comment/reply/24441%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=comment/reply/24438%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=comment/reply/24456%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=comment/reply/24447%23comment-form
[8] https://clik.dva.gov.au/user/login?destination=comment/reply/24481%23comment-form
[9] https://clik.dva.gov.au/user/login?destination=comment/reply/24494%23comment-form
[10] https://clik.dva.gov.au/clik
[11] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/911-compensation-recovery
[12] https://clik.dva.gov.au/user/login?destination=comment/reply/24440%23comment-form
[13] https://clik.dva.gov.au/user/login?destination=comment/reply/24420%23comment-form
[14] https://clik.dva.gov.au/user/login?destination=comment/reply/24480%23comment-form