13.2.2 Eligibility under the MRCAETS
See paragraph 2.1 of Instrument
A person is eligible for MRCAETS benefits under section 258 of the MRCA if they are an eligible young person as defined in section 5 of the MRCA.
An eligible young person is someone who is:
under 16 years old; or
between the ages of 16 and 25, undertaking full-time education (including undertaking an Australian Apprenticeship, Traineeship or cadetship) and who is not ordinarily engaged in full-time work on his or her own account;
* Note: A student or eligible young person aged between 16 and 25 and engaged in full-time work on his or her own account is not eligible for MRCAETS benefits. The VCES eligibility does not preclude students who are also employed full-time.
and
a dependant of an eligible Australian Defence Force (ADF) deceased member, member or former member, namely:
*Note: A person who "satisfies the eligibility criteria in section 199 (persons who are eligible for Special Rate Disability Pension)" is a person who is eligible to make the choice between SRDP payments and incapacity payments, but who has not yet advised the Department of their choice. A person who "has satisfied those criteria during some period of his or her life" is a person who was at some point in their life eligible to make the decision between SRDP payments and incapacity payments and who has made that decision.
*Note: A person who has 80+ impairment points will be receiving the maximum amount of permanent impairment compensation.
Under section 259 of the MRCA, a child who is 25 years or older is still an ‘eligible child’ where:
Unlike under the VCES, the student must be enrolled and have actually commenced the course prior to turning 25. This provision does not apply if the student changes courses after commencing.
For more information on the eligible young person definition, see section 7.9 of the MRCA Policy Manual.
Eligibility exemptions under MRCAETS
A child of a person in receipt of Temporarily Totally Incapacitated (TTI) Pension is not eligible to be classified as special rate pensioners when considering eligibility under MRCAETS. A person receiving section 258 of MRCA (eligibility for MRCAETS) requires the veteran parent to satisfy section 199 of the MRCA (eligibility for the Special Rate Disability Pension)..at some period of his/her life - but section 199 states a veteran is only eligible for the Special Rate if ...the person has suffered an impairment that is likely to continue indefinitely.
13.2.2.1 Who is a Dependant under MRCAETS
Unlike under the VCES, all students must be a dependant of an eligible ADF member, former member or deceased member to be eligible for MRCAETS benefits.
Under the VEA, only children who are not the biological or adoptive child of the eligible veteran must prove dependency to receive benefits.
Under the MRCA children are defined in s 5 but are also listed in the definition of ‘dependant’ provided at s 15. It is necessary to satisfy the definition of a ‘dependant’ to meet the definition of ‘Eligible Young Person’ under MRCAETS.
Under section 15 of the MRCA, a dependant means a related person of the member:
who is wholly or partly dependent on the member; or
who would be wholly or partly dependent on the member but for an incapacity of the member that resulted from an injury or disease or an aggravation of an injury or disease.
In practice, this can be:
a child, step child, grandchild, brother, sister, half-brother or half-sister of a deceased member, member or former member; or
a child or step child of the member’s partner;
a person in respect of whom the member stands in the position of a parent; or in unusual circumstances
the member's partner
However, they must also be an eligible young person wholly or partly dependent on the deceased member, member or former member for economic support (or would have been wholly or partly dependent but for the incapacity of the member as a result of an injury or disease for which liability has been accepted under the MRCA).
Under section 17 of the MRCA, an eligible young person is automatically considered to be wholly dependent on the member or former member if he or she lives with the member or former member or would be living with the member or former member but for a temporary absence of the member or the young person.
An eligible young person may continue to be considered dependent on an eligible member where the young person or former member are permanently absent from the home for reasons of illness or where the absence is due to family and domestic violence.
Further guidance on the application of section 17 of the MRCA, including where a person is temporarily or permanently absent from the family home can be found in Chapter 7.5 [1].
Schedule 6 of the Veterans’ Affairs Legislation Amendment (Mental Health and Other Measures) Act 2014 amended the circumstances in which an eligible young person is considered to be wholly dependent on a member under section 17 of the MRCA. An eligible young person is now also automatically considered to be wholly dependent if the member or former member is liable to provide child support under the Child Support (Assessment) Act 1989 for the young person. Where child support is provided other than under a Child Support Agency arrangement, a level of dependency can still be established on a case-by-case basis.
Where a child is not automatically deemed as dependent under section 17 of the MRCA, additional documentation may be required to establish dependency. Suitable evidence could take the form of a statutory declaration by the veteran or applicant, a guardianship order, evidence of payment by Centrelink of FTB to the member of member’s spouse on behalf of the child, a custody order, etc.
Who is a child under MRCAETS?
As of 1 July 2009, the definitions of children under the VEA and the MRCA were amended so that terms relating to dependants extend to include same sex relationships. The Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Same Sex Act) removed differential treatment of same sex couples and their children from Commonwealth legislation, including the VEA and the MRCA.
Section 5 of MRCA defines child as a child of a person within the meaning of the Family Law Act 1975. This includes adoptive children and step-children.
Step children under MRCAETS
The list of dependants in section 15(2) includes a step-child. The child must also be wholly or partly dependent (this refers to economic dependency) on the member. If the step-child’s parents separate, the child will lose entitlements to MRCAETS benefits unless the child remains wholly or partly dependent on the member of former member.
If the child continues to live with the member or former member after the separation, the child is eligible to receive MRCAETS benefits because of section 17 of the MRCA.
Links
[1] https://clik.dva.gov.au/75-who-may-be-entitled-compensation-following-death-under-mrca