Commonwealth Numbered Regulations - Explanatory Statements

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VETERANS' ENTITLEMENTS (SPECIAL ASSISTANCE) REGULATIONS 1999 1999 NO. 319

EXPLANATORY STATEMENT

Statutory Rules 1999 No. 319

Issued by the Authority of the Minister for Veterans' Affairs

Veterans' Entitlements Act 1986

Veterans' Entitlements (Special Assistance) Regulations 1999

Section 216 of the Veterans' Entitlements Act 1986 (the Act) enables the Governor-General to make regulations prescribing matters that are required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Veterans' Entitlements (Special Assistance) Regulations 1999 prescribe a set of circumstances in which the Repatriation Commission may grant special assistance to certain pensioners entitled to benefits under the Veterans' Entitlements Regulations 1986.

The special assistance will take the form of 'crisis payments'.

A crisis payment will be a 'one-off payment to assist new and existing clients in financial hardship when they are forced to leave their home and establish a new one due to a limited number of circumstances, such as fleeing domestic violence or in the event of a house fire. The amount of the payment will be a flat rate of one week's full entitlement without 'add-ons'.

The regulations are based on virtually identical legislation prepared by the Department of Family and Community Services (Further 1998 Budget Measures Legislation Amendment (Social Security) Act 1999).

Details of each of the regulations are set out in the attachment.

The regulations will commence on the date that Schedule 4 to the Further 1998 Budget Measures Legislation Amendment (Social Security) Act 1999 prepared by the Department of Family and Community Services commences. Schedule 4 is taken to have commenced on 1 July 1999.

The fact that the regulations take effect before gazettal will not cause the regulations to be ineffective by virtue of subsection 48(2) of the Acts Interpretation Act 1901 because the rights of a person at gazettal would not be affected so as to disadvantage the person nor will a liability be imposed on any person in respect of anything done or omitted to be done before gazettal.

ATTACHMENT

Veterans' Entitlements (Special Assistance) Regulations 1999

Regulation 1       refers to the name of the regulations - the Veterans'

       Entitlements (Special Assistance) Regulations 1999.

Regulation 2       provides for the regulations to commence on the date that

       Schedule 4 to the Further 1998 Budget Measures Legislation

       Amendment (Social Security) Act 1999 submitted by the

       Department of Family and Community Services commences.

Regulation 3       inserts the following definitions:

       Act, being the Veterans' Entitlements Act 1986.

       claim, a claim for a crisis payment

       claimant, a person who makes a claim or on whose behalf a claim is made.

       contacted the Department, is defined in regulation 4.

       crisis payment, this is the payment to be made to people eligible for it.

       home, a person's principal place of residence.

       lawful custody, detention in gaol or psychiatric confinement, due to being

       charged with an offence.

       liquid assets, cash, readily realisable assets of a person

       and any partner,

       shares and debentures, amounts with a bank or other financial institution,

       outstanding debts owed by a former employer or partner but not termination payments.

       pension entitlement, age service pension, invalidity service pension, partner

       service pension or the income support supplement.

       severe financial hardship, is where the value of a single person's liquid assets is

       less than the maximum fortnightly pension payable to the person.

       A member of a couple is in severe financial hardship where the value

       of the person's liquid assets is less than twice the maximum fortnightly

       pension payable to the person.

       Some expressions used in the regulations, such as 'Commission',

       'member of a couple' and 'partner' are defined in the Veterans' Entitlements

       Act 1986 and are to have the same meaning.

       maximum payment rate, of a person's pension entitlement is to be

       worked out by using the Rate Calculator in the Act with reference to

       the procedure in the regulations. The maximum payment rate of a

       pension is relevant to working out if a person is in severe financial hardship.

Regulation 4       defines contacted the Department as being where:

       * a person or someone on their behalf contacts the Department of Veterans' Affairs;

       * the contact is about claiming a crisis payment;

       * on the day of contact, the person is in Australia;

       * 14 days after the contact, a crisis payment is claimed; and

       * the contact has been recorded by the Department of Veterans' Affairs.

       Contact may be by post, telephone or facsimile message.

       This regulation is to enable contact about claiming a

       crisis payment to be treated as an informal claim that will

       assist those claimants who have difficulty lodging a formal

       claim within 7 days of their particular crisis.

Regulation 5       sets out the circumstances where an ex-prisoner or ex

       psychiatric patient is eligible for a crisis payment, namely:

       * must be released from prison after spending at least 14

       days there;

       * crisis payment is claimed formally or informally (contact)

       within 7 days of release;

       * claimant is in severe financial hardship (which is defined)

       on day of formal or informal (contact) claim; and

       * claimant receives a pension entitlement (which is defined)

       on day of formal or informal (contact) claim.

Regulation 6       sets out the circumstances where a person other than an ex

       prisoner or ex-psychiatric patient is eligible for a crisis

       payment, namely:

       * person forced from home (which is defined) due to fire or

       violence etc;

       * unreasonable for person to remain in or return home.

       * a new home is planned;

       * person was in Australia when the crisis occurred.

       * person claims formally or informally (contact) crisis

       payment within 7 days of crisis;

       * on claim day the person is in severe financial hardship

       and has claimed a pension entitlement, on the same day or

       earlier, and the person is eligible for the pension

       entitlement and

       * person has not been paid more than 3 crisis payments in

       the 12 months before the payment is claimed.

       A crisis (extreme circumstance) that is a continuing crisis is

       taken to have happened when the crisis first occurred.

       A person is not eligible for a crisis payment where the person

       creates the crisis in order to obtain a crisis payment.

Regulation 7       provides that a crisis payment is not payable if a claimant is

       eligible for a disaster relief-type payment in respect of the

       relevant crisis.

Regulations       refer to the steps to be followed if a claim for a crisis payment

8, 9 and 10       is to be regarded as a proper claim, namely:

       * claim must be in writing and in the approved form;

       * any relevant and reasonably available evidence must

       accompany the claim;

       * claim must be lodged at an office of the Department of

       Veterans' Affairs in Australia or at a place in Australia

       approved by the Repatriation Commission or lodged with

       a person in Australia approved by the Repatriation

       Commission. A claim may be made on behalf of a person;

       and

       * claimant must be in Australia when making a claim.

Regulation 11       governs the situation relating to withdrawing a claim for a

       crisis payment, namely that:

       * a claim that has not been decided may be withdrawn by

       the claimant or a person on the claimant's behalf,

       * once withdrawn, the claim is taken to have not been

       made;

       * a withdrawal may be made orally or in writing to the

       Department of Veterans' Affairs; and

       * a person withdrawing a claim on behalf of a claimant

       must have been authorised by the claimant to act on the

       claimant's behalf.

Regulation 12       provides that a claim for a crisis payment will not be taken to

       have been made if the claim is based on the eligibility

       requirements set out in regulation 6 and at the time of making

       the claim the person is not eligible for the payment.

Regulation 13       imposes duties on the Secretary of the Department of

       Veterans' Affairs in relation to investigating a claim for a

       crisis payment. Those duties are as follows:

       * where a proper claim is lodged the Secretary must

       investigate it;

       * upon the completion of the investigation the Secretary

       must submit the claim to the Repatriation Commission for decision; and

       * a claim submitted to the Commission must be accompanied

       by any evidence submitted by the claimant and by any documents

       relevant to the claim under the control of the Department of

       Veterans' Affairs, including any relevant evidence or documents

       obtained during the investigation.

Regulations 14       impose duties on the Repatriation Commission in relation to.

to 16       deciding a claim for a crisis payment submitted to it by the

       Secretary of the Department of Veterans' Affairs. Those

       duties are as follows:

       * to decide the claim and to record its decision in writing;

       * at its discretion, to grant a claim if the claimant is eligible

       for a crisis payment and the crisis payment is payable; and

       * to notify the claimant, in writing, of the decision and of the

       claimant's rights of review by the Repatriation

       Commission.

Regulation 17       specifies that a decision on a claim for a crisis payment or a

       decision made in the review process is to take effect on the day

       specified in the decision which may be the day the decision is

       made or a later or earlier day.

Regulation 18       sets out the formula for determining the amount of a crisis

       payment, namely it is to be half the fortnightly amount, at the

       maximum basic rate, of the pension entitlement that is payable

       to the person.

       The phrase 'maximum basic rate' means the rate of pension

       entitlement worked out by using Module B of the Rate

       Calculator in the Veterans' Entitlements Act 1986.

Regulation 19       governs the situation where the Repatriation Commission has

       decided under section 122 of the Veterans Entitlements Act

       1986, that a person's crisis payment is to be paid into the

       person's bank account. In these circumstances, the account

       may be kept by the person alone, jointly or in common with

       another person.

Regulation 20       allows the Repatriation Commission to make deductions from a

       crisis payment to pay tax if the recipient of the crisis payment

       agrees. (note the crisis payment is not taxable).

Regulation 21       exempts crisis payments, in an account in a financial

       institution, from garnishee and similar orders if the crisis

       payment was paid into the account in the 4 weeks before the

       order was effective and the crisis payment was payable to

       he holder of the account

Regulation 22       prohibits the payment of a crisis payment to a person in lawful

       custody.

Regulation 23       establishes an internal-review procedure for claimants

       dissatisfied with a Commission decision under Part 4 of the

       regulations. Part 4 deals with the Repatriation Commission

       deciding claims for crisis payments. A request for review

       must:

       * be in writing;

       * set out the grounds for review; and

       * be lodged with the Repatriation Commission within 3

       months of the aggrieved person being notified of the

       relevant decision.

Regulation 24       sets out the Repatriation Commission's duties when it receives

       a request under proposed regulation 23 to review a decision,

       those duties being:

       * to review the decision within 3 months after the request was

       received or within such time as agreed in writing;

       * affirm or set aside the decision under review; and

       * substitute a decision for any decision set aside.

       This regulation also prohibits a Commission delegate from

       hearing a review if that delegate was the person who made the

       decision being reviewed.

Regulation 25       imposes a duty on the Repatriation Commission, when it makes

       a decision reviewing a decision to grant or reject a claim for a

       crisis payment, to make a written record of its decision and to

       give a copy to the aggrieved person. That record must:

       * set out the Commission's findings on relevant questions of

       fact;

       * refer to the material on which the findings are based; and

       * give reasons for the Commission's decision.

Regulation 26       provides for a right of appeal to the Administrative Appeals

       Tribunal from a decision of the Repatriation Commission made

       on an internal review. The appeal must be made within 3

       months after the person making the appeal was given a copy of

       the Repatriation Commission's decision on the internal review.


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