Veterans’ Entitlements (Transition Care/Home Care Package – Co Payment for Ex POW/Victoria Cross Recipients) Eligibility Determination 2021

EXPLANATORY STATEMENT

Veterans’ Entitlements (Transition Care/Home Care Package – Co Payment for Ex POW/Victoria Cross Recipients) Eligibility Determination 2021

EMPOWERING PROVISION

Paragraph 88A(1)(a) of the Veterans’ Entitlements Act 1986 (the Act).

PURPOSE

The attached legislative instrument (Instrument 2021 No. R10) specifies:

• a class of entitled persons (certain veterans); and
• the treatment a person within that class is eligible to receive under the Treatment Principles (No. R52/2013).

The class is:

• a veteran who is a former prisoner of war or the recipient of the Victoria Cross.

The treatment is:

• a Home Care Package;
• transition care;

and is provided under the Treatment Principles made under section 90 of the Act.

The impact of being a member of a class of persons eligible for a form of specified treatment is that the financial responsibility for the cost of the treatment will be accepted by the Repatriation Commission.

Home Care Packages are provided under Aged Care Act 1997 and the Subsidy Principles 2014.  Home Care Packages provide assistance with a range of different services.  The three main categories of services are those that:

• encourage independence - personal care, nursing services and allied health;
• provide safety in your home – cleaning, home maintenance and modifications and assistive technology;
• connect persons to their community – including transport and social support services.

Transition Care is also provided under the Aged Care Act 1997 and the Subsidy Principles 2014 and provides short-term care for older people to help them recover after a hospital stay.

Under the applicable legislation the recipients of Home Care and transition care are required to pay a co-payment to the provider of the service.  The amounts of the co-payments will vary according to the circumstances of the recipient.

The attached Determination does two things. 

• It confers eligibility for all of the relevant treatment on a person who might not otherwise be eligible for all of the treatment because the person is only eligible for treatment of a specific condition (s) whereas the relevant treatment tends to be applied as whole-of-person treatment.

• It confers eligibility for the relevant treatment on a person who is otherwise only eligible for treatment of an injury or disease.  The person is then eligible for the treatment even though it is not necessarily being applied to an injury or disease but to the effects of frailty or to the person’s recuperative needs.

Normally under the Act a person is eligible for treatment for a particular service-condition (called the holder of a White Card) or is eligible for treatment of any condition (called the holder of a Gold Card).

Accordingly, strictly speaking, a white-card holder would only be eligible for the relevant treatments as they were applied to the condition in respect of which the person was eligible to be treated.

However the relevant treatments are more whole-of-person treatments than treatments applied to a particular condition and therefore, prima facie, a white-card holder could miss out on a significant part of a relevant treatment because the person would not be eligible to receive it.

To prevent this situation, the attached Determination makes an entitled person within the class in question eligible for the relevant treatment irrespective of whether the person is otherwise only eligible for treatment under the Act of a particular condition.  Accordingly the treatments could be applied to the person generally, including to their service-condition. 

Under the Act, treatment must generally be for an injury or disease.  However the relevant treatments tend to be applied more to the effects of frailty or to a person’s recuperative needs than to any injury or disease albeit a person may have an injury or disease to which the treatments could be applied.  Prima facie, therefore, if a person did not have an injury or disease, as required by the Act, but was frail or was recuperating from an operation, then the person could not receive the relevant treatments.

To prevent this situation, the attached determination makes a person eligible for the relevant treatments even though the person does not have an injury or disease.  The person is simply eligible for the treatments as they may be applied to the person, including as they may be applied to any injury or disease of a person.

RETROSPECTIVE

No.

CONSULTATION

As the proposed instrument is being made on the basis that the former instrument would sunset on 1 April 2020, the Department undertook the required review of the need for the instrument to be remade and after consulting with the Wellbeing Policy Branch had concluded that the existing instrument was to be remade with some minor changes to the titles of the programs under which the assistance is being provided.

Information concerning the remaking of the instrument has been provided  to the Ex-Service Organisation Round Table (ESORT).

The ESORT is a forum intended to enhance the capacity of the Repatriation Commission and Military Rehabilitation and Compensation Commission by addressing issues of strategic importance to the ex-service and defence communities and assist in setting directions for the medium to long term.

DOCUMENTS INCORPORATED-BY-REFERENCE

No.

REGULATORY IMPACT

OBPR: 43814 - The instrument does not have more than a minor regulatory impact on business, community organisations or individuals.

FURTHER EXPLANATION

Attachment A.

Attachment A

Item 1.1 sets out the name of the determination as the Veterans’ Entitlements (Transition Care/Home Care Package – Co Payment for Ex POW/Victoria Cross Recipients) Eligibility Determination 2021.

Item 1.2 provides that the determination will commence the day after it is registered.

Item 1.3 revokes the current instrument, the Veterans’ Entitlements (Transition Care/Community Care at Home Package – Co Payment for Ex POW/ Victoria Cross Recipients) Eligibility Determination 2011.

Item 1.4 is a definitions section.

Item 1.5 sets out the purpose of the Determination, namely to grant eligibility for the treatment provided under a Home Care package or as transition care to veterans who are former prisoners of war or who are recipients of the Victoria Cross.

The instrument specifies, for the purposes of paragraph 88A(1)(a) of the Act respectively, a class of veterans and the kind of treatment a veteran within a relevant class is eligible to be provided under the Act.

Once the relevant class and the treatment to be provided have been specified in the Determination, the Repatriation Commission may accept financial responsibility for the specified treatment provided to a person in the class.

Section 88A of the Act enables the Repatriation Commission to extend treatment-eligibility in the Act so that a person may be provided with treatment for any injury/disease, irrespective of whether it is service-related and may be provided with treatment where no injury/disease exists (e.g. frailty).

In the Act, eligibility for treatment is generally (but not always) dependent on whether a person’s injury/disease is service-related and is always dependent on the person suffering from an injury/disease.

Section 88A is used in this situation to confer eligibility for treatment (either transition care or care received under a Home Care Package) on a veteran who is a former prisoner of war or the recipient of the Victoria Cross who may not be suffering from an injury/disease that is service-related or who may not be suffering from an injury/disease at all but who is frail.

Under either scenario the person will, by virtue of the Determination, be eligible for transition care or a Home Care Package, under the Treatment Principles with eligibility for the treatment making the Repatriation Commission liable to accept financial responsibility for the co-payment a former prisoner of war, or an entitled veteran awarded the Victoria Cross has paid, or is liable to pay, for the Home Care Package or transition care.

Part 2 specifies the classes of entitled persons eligible for the relevant treatment, namely veterans who:

•    are former prisoners of war; or
•    are recipients of the Victoria Cross

Part 3 specifies the treatment a veteran in the relevant class is eligible to be provided by the Repatriation Commission namely:

• a Home Care Package; or
• transition care.