Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017)

Administered by Department of Veterans' Affairs

Legislation au F2017L01050 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

BENIGN PAROXYSMAL POSITIONAL VERTIGO

(REASONABLE HYPOTHESIS) (NO. 56 OF 2017)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017).

Background

2.             The Repatriation Medical Authority (the Authority) has determined, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the VEA), Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017).

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates that benign paroxysmal positional vertigo and death from benign paroxysmal positional vertigo can be related to particular kinds of service.  The Authority has therefore determined this Statement of Principles concerning benign paroxysmal positional vertigo pursuant to subsection 196B(2) of the VEA.

Purpose and Operation

4.             The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

5.             The Statement of Principles sets out the factors that must as a minimum exist, and which of those factors must be related to the following kinds of service rendered by a person:

 operational service under the VEA;

 peacekeeping service under the VEA;

 hazardous service under the VEA;

 British nuclear test defence service under the VEA;

 warlike service under the MRCA;

 non-warlike service under the MRCA,

before it can be said that a reasonable hypothesis has been raised connecting benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo, with the circumstances of that service.  The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

6.             The Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans' Review Board or Administrative Appeals Tribunal cannot accept any claim for pension; or a claim for liability or compensation relating to benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo that was lodged on or after 1 June 1994 in the case of the VEA, or 1 July 2004 in the case of the MRCA respectively, unless this Statement of Principles upholds that claim (subsection 120A(3) of the VEA or subsection 338(3) of the MRCA).

7.             This new Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 10 January 2017 concerning benign paroxysmal positional vertigo in accordance with section 196G of the VEA.  The investigation involved an examination of the sound medical-scientific evidence available to the Authority.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to benign paroxysmal positional vertigo in the Government Notices Gazette of 10 January 2017, and circulated a copy of the notice of intention to investigate to a wide range of organisations representing veterans, service personnel and their dependants.  The Authority invited submissions from the Repatriation Commission, organisations and persons referred to in section 196E of the VEA, and any person having expertise in the field.  No submissions were received for consideration by the Authority during the investigation.

Human Rights

9.             This instrument is compatible with the Human Rights and Freedoms recognised or declared in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  A Statement of Compatibility with Human Rights follows.

Finalisation of Investigation

10.         The determining of this new Instrument finalises the investigation in relation to benign paroxysmal positional vertigo as advertised in the Government Notices Gazette of 10 January 2017.

References

11.         A list of references relating to the above condition is available to any person or organisation referred to in subsection 196E(1)(a) to (c) of the VEA.  Any such request must be made in writing to the Repatriation Medical Authority at the following address:

The Registrar

Repatriation Medical Authority

GPO Box 1014

BRISBANE    QLD    4001

 


Statement of Compatibility with Human Rights

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

 

Instrument No.:   Statement of Principles No. 56 of 2017

Kind of Injury, Disease or Death: Benign paroxysmal positional vertigo

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

1. This Legislative Instrument is determined pursuant to subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).  Part XIA of the VEA requires the determination of these instruments outlining the factors linking particular kinds of injury, disease or death with service such being determined solely on the available sound medical-scientific evidence.

2. This Legislative Instrument:-

  • facilitates claimants in making, and the Repatriation Commission in assessing, claims under the VEA and the MRCA respectively, by specifying the circumstances in which medical treatment and compensation can be extended to eligible persons who have benign paroxysmal positional vertigo;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal; and
  • outlines the factors which the current sound medical-scientific evidence indicates must as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting benign paroxysmal positional vertigo with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement.

3. The Instrument is assessed as being a technical instrument which improves the medico-scientific quality of outcomes under the VEA and the MRCA. 

Human Rights Implications

4. This Legislative Instrument does not derogate from any human rights. It promotes the human rights of veterans, current and former Defence Force members as well as other persons such as their dependents, including:

  • the right to social security (Art 9, International Covenant on Economic, Social and Cultural Rights; Art 26, Convention on the Rights of the Child and Art 28, Convention on the Rights of Persons with Disabilities) by helping to ensure that the qualifying conditions for the benefit are 'reasonable, proportionate and transparent'[1];
  • the right to an adequate standard of living (Art 11, ICSECR; Art 27, CRC and Art 28, CRPD) by facilitating the assessment and determination of social security benefits;
  • the right to the enjoyment of the highest attainable standard of physical and mental health (Art 12, ICSECR and Art 25, CRPD), by facilitating the assessment and determination of compensation and benefits in relation to the treatment and rehabilitation of veterans and Defence Force members;
  • the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD); and
  • ensuring that those rights "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Art 2, ICESCR).

Conclusion

This Legislative Instrument is compatible with human rights as it does not derogate from and promotes a number of human rights.

 

Repatriation Medical Authority

 

 

 

 

 

 

[1] In General Comment No. 19 (The right to social security), the Committee on Economic, Social and Cultural Rights said (at paragraph 24) this to be one of the elements of ensuring accessibility to social security.

Overview

The Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017) was determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This Statement of Principles was enacted to address the gap in recognising the relationship between benign paroxysmal positional vertigo, a specific form of vertigo, and service rendered by veterans, including operational, peacekeeping, hazardous, and British nuclear test defence services, as well as warlike and non-warlike services. It aims to ensure that claims for pension or compensation related to this condition are evaluated against the sound medical-scientific evidence that links the condition to the service circumstances. The objective is to facilitate the assessment and review of claims by specifying the minimum factors that must exist to establish a reasonable hypothesis connecting the condition with the service, thus ensuring that benefits and compensation are awarded appropriately. This legislative instrument, which was finalised following an investigation into the condition, is designed to improve the quality of medico-scientific outcomes under the VEA and the MRCA. It promotes the human rights of veterans, current and former Defence Force members, and their dependents by ensuring that the qualifying conditions for benefits are reasonable, proportionate, and transparent. The instrument facilitates the assessment and determination of social security benefits, adequate living standards, and the highest attainable standard of physical and mental health, while ensuring these rights are exercised without discrimination.

Scope and Application

The Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017), determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), sets out the minimum factors that must exist to establish a reasonable hypothesis linking benign paroxysmal positional vertigo or death from this condition with the service rendered by a person in certain categories of military service. These include operational, peacekeeping, hazardous, and British nuclear test defence service under the VEA, as well as warlike and non-warlike service under the MRCA. The principles apply to claims for pension or compensation related to benign paroxysmal positional vertigo or death from this condition lodged on or after 1 June 1994 under the VEA and 1 July 2004 under the MRCA, ensuring these claims can only be upheld if the Statement of Principles supports the claim. The Authority's determination is based on sound medical-scientific evidence, and the instrument is compatible with human rights, promoting the rights of veterans, current and former Defence Force members, and their dependents by facilitating the assessment and determination of social security benefits, ensuring an adequate standard of living, and promoting physical and mental health. This instrument enhances the medico-scientific quality of outcomes under the VEA and MRCA, ensuring the qualifying conditions for benefits are reasonable, proportionate, and transparent.

Key Provisions

The main operative sections of the Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017) are set out in sections 4 to 6, and they define the circumstances in which a reasonable hypothesis can be raised connecting benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo with service rendered by a person. Specifically, section 4 establishes that the Statement of Principles will apply in determining claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). Section 5 outlines the factors that must exist for a reasonable hypothesis to be raised, and section 6 provides that no claim for pension or compensation relating to benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo can be accepted unless it is upheld by the Statement of Principles. These sections are intended to ensure that claimants and the relevant authorities have a clear understanding of the circumstances in which compensation and benefits may be awarded. The obligations and requirements imposed by the Statement of Principles concern benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017) are primarily aimed at ensuring that claimants and the relevant authorities have access to accurate and up-to-date information about the factors that must exist for a reasonable hypothesis to be raised connecting benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo with service rendered by a person. Specifically, the Statement of Principles sets out the factors that must exist for a reasonable hypothesis to be raised, and it provides guidance on how these factors should be assessed in the context of a claim for pension or compensation. Additionally, the Statement of Principles requires that any claim for pension or compensation relating to benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo be lodged on or after the relevant date (1 June 1994 for the VEA, and 1 July 2004 for the MRCA) and be upheld by the Statement of Principles. The Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017) does not impose any specific offences, penalties, or civil or criminal consequences for breach. However, it does provide that any claim for pension or compensation relating to benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo that is not upheld by the Statement of Principles will not be accepted by the relevant authorities. This means that claimants who are unable to demonstrate that the factors set out in the Statement of Principles exist in their case may be ineligible for compensation or benefits. Additionally, the Statement of Principles may have implications for the assessment and determination of claims, as it provides guidance on how the factors that must exist for a reasonable hypothesis to be raised should be assessed in the context of a claim for pension or compensation. Failure to follow the guidance provided in the Statement of Principles may result in a claim being rejected or delayed. In summary, the Statement of Principles concerning benign paroxysmal positional vertigo (Reasonable Hypothesis) (No. 56 of 2017) sets out the factors that must exist for a reasonable hypothesis to be raised connecting benign paroxysmal positional vertigo or death from benign paroxysmal positional vertigo with service rendered by a person, and it provides guidance on how these factors should be assessed in the context of a claim for pension or compensation. The Statement of Principles imposes obligations and requirements on claimants and the relevant authorities, and it does not impose any specific offences, penalties, or civil or criminal consequences for breach. However, failure to follow the guidance provided in the Statement of Principles may result in a claim being rejected or delayed.

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