The Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 amended the special rate criteria for persons over the age of 65 years and who had made their claim or application for increase on or after 1 June 1994.
The criteria for persons under 65 at any time during the assessment period remained unchanged. Therefore, everything within the first part of this paper still applies to those cases.
The only amendments to the provisions relating to persons under 65 are the two paragraphs, (aa) and (aab), which set out to whom these provisions apply: namely persons who have made a claim or application for increase and who were under 65 at the time of making the claim or application.
Section 3 of the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 provides that the new special rate provisions apply to claims for pension or applications for increase that are made on or after 1 June 1994. Subsection 2(2) of that Act provides that the amendments are taken to have commenced on 1 June 1994.
The effect of the amendments is that subsections (1) and (2) apply to those who are under 65 years on the application day and subsections (2A) and (2B) apply to those who are 65 years or over on the application day.
Subsections (2A) and (2B) provide as follows:
(2A) This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she was receiving; and
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ("last paid work") that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person-had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was the working on his or her own account in any profession, trade, employment, vocation or calling-had been so working in that profession, trade, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
It is important to note that where a veteran turns 65 after making a claim or application but before the claim or application is determined, subsections (1) and (2) continue to apply to that person for the entire assessment period and not subsections (2A) and (2B)-this is why there remains a reference to age 65 in paragraph (2)(b).
For a person who is 65 or over at the application day, all of the paragraphs in subsection (2A) must be met. In
Re Cowper and Repatriation Commission, the Administrative Appeals Tribunal said:"Section 24(2A) has eight heads, (a) - (h), and it is clear that each of those headings must be satisfied by an applicant if a special rate pension is to apply to that person. It is not sufficient to satisfy six out of eight or even seven out of eight. The criteria are made quite stringent and quite limiting and that clearly was the intention of the legislature, for better or for worse."