Continuation of special rate pension
Section 24A provides for the continuation of pension at the special rate even though the veteran might not continue to meet all of the special rate criteria. This section was introduced into the Act following representations from the veteran community after the Federal Court had held, in
Repatriation Commission v. Smith, M. J. that the special rate of pension continued to be payable only while the veteran continued to meet all of the criteria specified in section 24.Section 24A provides:
Continuation of rates of certain pensions
24A.(1)
Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking-the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies-the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
(2) Paragraphs (b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation scheme under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran.
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Paragraph 24A(1)(a) 24A.(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless: (a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
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false statement or misrepresentation
The first exception to the continuation of the special rate of pension is where the decision to assess pension at the special rate would not have been made but for a false statement or misrepresentation. The provision applies even if that false statement or misrepresentation was not made by the veteran but by some other person. Additionally, the section does not require that the false statement or representation have been intentionally made. In
McAuliffe v. Secretary, Department of Social Security, the Federal Court held that, where the relevant Act provided that where a benefit was paid in consequence of a false statement or representation and the amount would not have been paid but for that false statement or representation:"a statement or representation which is untrue in fact, is 'false'. Liability to the Commonwealth for overpayment of benefit is not dependent on proof that the statement or representation was deliberately or intentionally untrue."
However, the fact that the veteran or some other person has made a false statement or misrepresentation does not necessarily mean that the pension can be reduced or cancelled. It is necessary that the false statement or misrepresentation was essential to the decision to grant pension at the special rate, but it need not be the primary or dominant reason for the pension being granted at the special rate:
McAuliffe v. Secretary, Department of Social Security.A misrepresentation can be made by failing to provide the complete picture and by only providing some of the facts such that a misleading impression of the true situation is provided.
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Paragraph 24A(1)(c) 24A.(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless: ... (c) in the case of a veteran to whom section 24 applies-the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
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capacity to undertaking remunerative work
The second exception to the continuation of the special rate of pension is where the veteran is undertaking or is capable of undertaking remunerative work. It is important to note that section 28 states that the only matters that may be taken into account in determining this issue are:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
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Subsection 24A(2) (2) Paragraphs (b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation scheme under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran.
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Veterans' Vocational Rehabilitation Scheme
Where a veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme or where section 115D applies to the veteran, then even if the veteran is undertaking remunerative work or is capable of undertaking remunerative work, the veteran retains the special rate of pension. Section 115D provides for the rate of the special rate of pension to be reduced over time where a person has completed a rehabilitation program under the Scheme until it reaches a rate equivalent to 100% of the general rate: see section 115D and subsection 24(5).
Subsection 24A(2) does not prevent paragraph 24A(1)(a) applying where the special rate of pension was granted because of a false statement or misrepresentation.