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Defence, Veterans' and Families' Acute Support Package Bill 2022



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ISSN 1328-8091

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BILLS DIGEST NO. 008, 2022-23 25 AUGUST 2022

Defence, Veterans’ and Families’ Acute Support Package Bill 2022 Michael Klapdor Social Policy Section

Key points

• The Bill proposes to expand eligibility for and the services available under the Department of Veterans’ Affairs Family Support Program.

• The Family Support Program provides access to counselling, child care and other support services. It is currently limited to veterans and the families of veterans with warlike service since July 2004 who are in receipt of certain incapacity payments, and to the widows of veterans with warlike service since July 2004.

• A similar Bill was introduced by the Coalition Government in the 46th Parliament but was not passed before the 2022 Election.

• The main changes to the program are:

- removing the eligibility requirement for the veterans to have warlike service - removing a requirement for eligible veterans to be participating in a rehabilitation program - allowing veterans and the families of veterans with service prior to July 2004 to access the program

- increasing the amount of assistance available and removing limits for specific services so families have flexibility in what assistance they access. • A key eligibility criterion, that individuals or a family member be in crisis or at risk of a crisis, is not defined in the Bill.

• The Bill also places a new age cap of 65 years for access to the program. The current program provides access to veterans aged up to Age Pension eligibility age (currently 66 years and 6 months).

• According to Minister for Veterans’ Affairs Matt Keogh, 49 widowed partners and their families and 120 veterans and their families have been assisted by the Family Support Package since it commenced in 2018. The Minister stated that approximately 430 families and 450 widowed partners will benefit from the expanded program in its first year.

• The changes are expected to cost $36.8 million over 4 years.

• Key differences between this Bill and the Bill in the previous Parliament are that the current Bill proposes to rename the program as the Defence, Veterans’ and Families’ Acute Support Package, the current Bill includes merit review provisions, and the current Bill provides for recovery of overpayments in certain circumstances.

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Contents

Purpose of the Bill ........................................................... 3

History of the Bill ............................................................ 3

Background ..................................................................... 3

Family Support Package ........................................... 3

Expanded eligibility announced in the 2021-22 Budget ..................................................................... 4

Committee consideration ................................................ 5

Senate Selection of Bills Committee ......................... 5

Senate Standing Committee for the Scrutiny of Bills .......................................................................... 5

Policy position of non-government parties/independents...................................................... 5

Position of major interest groups..................................... 5

Financial implications ...................................................... 5

Statement of Compatibility with Human Rights................ 5

Parliamentary Joint Committee on Human Rights ..... 5 Key issues and provisions ................................................ 5

Differences between the Bill and the Enhanced Family Support Bill ................................................... 5

Key changes ............................................................. 6

Expanded eligibility ................................................... 6

New requirement will limit program to those in ‘crisis’ ......................................................................... 6

Limited to veterans aged under 65 years ................. 7 Expanded services and greater flexibility ................. 7 Numbers affected .................................................... 8

Key provisions .......................................................... 8

Amendments to the Military Rehabilitation and Compensation Act 2004 ............................................ 8

Amendments to the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 ........................................................................... 9

Amendments to the Veterans’ Entitlements Act 1986 ........................................................................... 9

Date introduced: 3 August 2022

House: House of Representatives

Portfolio: Veterans' Affairs

Commencement: The day after the end of a 7-day period beginning on the day of Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2022.

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Purpose of the Bill The Defence, Veterans’ and Families’ Acute Support Package Bill 2022 (the Bill) proposes amendments to the Military, Rehabilitation and Compensation Act 2004 (the MRCA), the Safety, Rehabilitation and Compensation (Defence-related claims) Act 1988 (the DRCA) and the Veterans’ Entitlements Act 1986 ( the VEA) to:

• rename the Department of Veterans’ Affairs’ (DVA) Family Support Package as the Defence, Veterans’ and Families’ Acute Support Package

• expand eligibility for the Package

• provide for the program to deliver new forms of assistance to eligible families

• allow for merits review of decisions made in relation to the Acute Support Package.

History of the Bill A Bill with similar, but not identical, provisions was introduced in the 46th Parliament on 16 February 2022 but lapsed at the end of that parliament. The Veterans’ Affairs Legislation Amendment (Enhanced Family Support) Bill 2022 (the Enhanced Family Support Bill) proposed to extend eligibility and the services provided under the Family Support Package but did not propose to change the name of the Package and did not include provisions providing for merits review.1 For further information on this Bill, see the Parliamentary Library FlagPost, ‘Veterans’ Affairs Legislation Amendment (Enhanced Family Support) Bill 2022’.2

Background

Family Support Package The DVA Family Support Package was introduced in 2018 and provides access to counselling and other support services to the families of eligible veterans receiving incapacity payments and to some widowed partners of veterans.3 The Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 1) Act 2018 p rovided the legislative framework to establish the Package. It was established in response to a recommendation of the 2017 Senate Foreign Affairs, Defence and Trade Committee’s report, The Constant Battle: Suicide by Veterans.4 The Senate Committee recommendation was for DVA to review the support for partners of veterans and identify further assistance including services such as advice, counselling, and options for family respite care.5

Currently, the Family Support Package supports veterans and the families of veterans where the veteran’s service is covered under the Military Rehabilitation and Compensation Act 2004 (the MRCA)—this Act covers service from July 2004. To be eligible, the veteran must:

• have rendered warlike service6

• be in receipt of or eligible for incapacity payments (for service-related injuries or illnesses) and

• be actively participating in a rehabilitation program.7

1. Australian Parliament, Veterans’ Affairs Legislation Amendment (Enhanced Family Support) Bill 2022 homepage. 2. Michael Klapdor, ‘Veterans’ Affairs Legislation Amendment (Enhanced Family Support) Bill 2022’, FlagPost (blog), Parliamentary Library, 24 March 2022. 3. Department of Veterans’ Affairs (DVA), ‘6.5.3 Family Support Package’, Rehabilitation Policy Library, DVA website,

17 September 2018. 4. DVA, ‘6.5.3 Family Support Package’, Rehabilitation Policy Library; Senate Foreign Affairs, Defence and Trade References Committee, The Constant Battle: Suicide by Veterans, August 2017, 130. 5. Senate Foreign Affairs, Defence and Trade References Committee, The Constant Battle: Suicide by Veterans, 130. 6. DVA, ‘Determinations of Warlike Service’, Compensation and Support Policy Library, DVA website. All operations that have

been declared warlike for the purposes of the Military Rehabilitation and Compensation Act 2004 are listed in the Military Rehabilitation and Compensation (Warlike Service) Determination 2019. 7. DVA, ‘6.5.3.1 Eligibility for Family Support Package’, Rehabilitation Policy Library, DVA website, 17 September 2018.

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Widowed partners are also eligible for the Family Support Package where:

• they were the partner of the veteran at the time of their death

• the veteran had rendered warlike service and

• the veteran’s death was a suicide related to their service, or was a service death.8

Supports available include help with the costs of child care and life skills/counselling support. Widows may also receive home help assistance such as cooking, cleaning, gardening, and maintenance.9

Expanded eligibility announced in the 2021-22 Budget An ‘Enhanced Family Support Package’ was announced in the 2021-22 Budget.10 The budget measure included the eligibility changes proposed in the Bill and the Enhanced Family Support Bill but proposed lower amounts of support than in the measures proposed in both Bills.11 The 2021- 22 budget measure was expected to cost $5.1 million over the forward estimates.12 The 2022-23 Budget also included a Family Support Package measure: a proposal to increase the eligibility age for widowed partners from 60-65 and to increase the value of services offered. The 2022-23 measure was expected to cost $36.8 million over the forward estimates.13 The measures proposed in the Enhanced Family Support Bill were estimated to cost $30.2 million while the measures in the Bill are estimated at $36.8 million over four years.14

The changes to the Family Support Package were announced as part of the Government’s response to the Productivity Commission’s 2019 report on support for veterans, A Better Way to Support Veterans.15 Recommendation 19.2 identified specific changes to expand eligibility for the Family Support Package including:

• removing the warlike service requirement

• expanding the program to those with service covered under the VEA and DRCA (that is, service prior to July 2004)

• expand eligibility to those receiving the Veteran Payment (an interim payment paid under the VEA to some individuals awaiting compensation claims)

• expand eligibility for counselling services to the parents and eligible children of veterans who have suffered a service death or a suicide related to their service

• expand eligibility for counselling services to the families of veterans not participating in a rehabilitation plan

• removing counselling session limits and a requirement for an identified need, to be replaced with a cap on total payments available.16

8. ‘Family Support Package for widowed partners’, DVA website. 9. ‘Family Support Package for widowed partners’, DVA website. 10. Australian Government, Budget Measures: Budget Paper No. 2: 2021-22, 195. 11. DVA, Enhanced Family Support Package, Budget 2021-22 Information Sheet, (Canberra: DVA, 2021). 12. Australian Government, Budget Measures: Budget Paper No. 2: 2021-22, 195. 13. Australian Government, Budget Measures: Budget Paper No. 2: 2022-23, 176; DVA, Enhanced Family Support Package,

Budget 2022-23 Information Sheet, (Canberra: DVA, 2022). 14. Explanatory Memorandum, Veterans’ Affairs Legislation Amendment (Enhanced Family Support) Bill 2022, iv; Explanatory Memorandum, D efence, Veterans’ and Families’ Acute Support Package Bill 2022, iv. 15. DVA, Enhanced Family Support Package, Budget 2021-22 Information Sheet and DVA, Enhanced Family Support Package,

Budget 2022-23 Information Sheet. 16. Productivity Commission (PC), A Better Way to Support Veterans: Inquiry Report, vol. 2, (Canberra: PC, 27 June 2019), 840.

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Committee consideration

Senate Selection of Bills Committee In its report on 4 August 2022, the Senate Selection of Bills Committee stated that it had deferred consideration of the Bill until its next meeting.17

Senate Standing Committee for the Scrutiny of Bills At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not considered the Bill. The Scrutiny of Bills Committee had no comment on the Enhanced Family Support Bill.18

Policy position of non-government parties/independents As noted in the ‘History of the Bill’ section, many of the amendments proposed in the Bill were contained in the Enhanced Family Support Bill introduced by the previous Coalition Government but not passed prior to the 2022 Election.

The Australian Greens proposed amendments to the Enhanced Family Support Bill to remove the age cap on access to the Family Support Package and require legislative instruments made in relation to the Package to provide for merits review of decisions made under the instrument. 19

Position of major interest groups At the time of writing, major interest groups and stakeholders do not appear to have commented on the Bill.

Financial implications The measures have an ‘indicative cost’ of $36.8 million over 4 years.20

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.21

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights had not commented on the Bill. The Committee had no comment on the Enhanced Family Support Bill.22

Key issues and provisions

Differences between the Bill and the Enhanced Family Support Bill The key differences between the Bill and the previous government’s Enhanced Family Support Bill are:

17. Senate Standing Committee for the Selection of Bills, Report, 3, 2022, 4 August 2022: 3. 18. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 2, 2022, 18 March 2022: 60. 19. Jordon Steele-John, Proposed amendments to the Veterans’ Affairs Legislation Amendment (Enhanced Family Support) Bill 2022, Sheet 1572, 28 March 2022.

20. Explanatory Memorandum, Defence, Veterans’ and Families’ Acute Support Package Bill 2022, iv. 21. The Statement of Compatibility with Human Rights can be found at page v of the Explanatory Memorandum to the Bill. Explanatory Memorandum, Defence, Veterans’ and Families’ Acute Support Package Bill 2022, v-viii. 22. Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report, 2, 2022, 25 March 2022: 65-66.

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• the Bill proposes to change the name of the Family Support Package to the Defence, Veterans’ and Families’ Acute Support Package

• the Bill includes provisions for merits review of decisions made regarding Acute Support Package entitlements or services

• the Bill proposes that amounts provided through the Acute Support Package be subject to overpayment recovery provisions where amounts are paid because of a false or misleading statement or representation, or a failure or omission to comply with the legislative requirements.

As noted in the ‘Policy position of non-government parties/independents’ section, the Australian Greens had proposed amendments to the Enhanced Family Support Bill relating to merits review.

Key changes

Expanded eligibility The Bill proposes to extend eligibility for supports under the renamed Defence, Veterans’ and Families’ Acute Support Package in three ways:

• eligibility will be extended to veterans with service prior to July 2004 by including the Family Support Package in the VEA and the DRCA

• it removes the requirement for the veterans to have undertaken ‘warlike’ service and

• it removes the requirement for injured veterans to be participating in a rehabilitation program.

Veterans covered by the VEA and the DRCA will need to be in receipt of disability compensation, incapacity payments or the interim Veteran Payment under those schemes to be eligible for the Family Support Package.

New requirement will limit program to those in ‘crisis’ While removing some of the current eligibility requirements, the Bill proposes that the Acute Support Package be limited to veterans or the families of veterans who are experiencing a crisis or are at risk of experiencing a crisis. ‘Crisis’ is not defined in the proposed amendments but additional criteria may be set out in a legislative instrument. The proposed crisis criteria would not apply to widowed partners of veterans.

The current criteria for the Family Support Package do not limit the supports to veterans and families experiencing a crisis, only to those the Military Rehabilitation and Compensation Commission is satisfied are ‘in need of the assistance or benefits’.23

The Productivity Commission recommended that the ‘requirement for an identified need’ for support be removed but did not include any recommendation for the supports to be limited to those facing a crisis.24

The Explanatory Memorandum does not provide any further information on what kind of event, circumstance or situation would meet the definition of crisis. Minister Keogh gave a few examples of situations where a person would be eligible for the program in his second reading speech: partners of veterans who have left the relationship due to domestic violence, children of veterans experiencing mental health issues, veterans whose health conditions have worsened and are unable to work.25 However, there was no clear definition of when a circumstance would reach the crisis threshold. The lack of definition of what constitutes a crisis is a key issue for the Bill given

23. Section 8, Military Rehabilitation and Compensation (Family Support) Instrument (No.2) 2018. 24. PC, A Better Way to Support Veterans: Inquiry Report, vol. 2, (Canberra: PC, 27 June 2019), 840. 25. Matt Keogh, Second Reading Speech: Defence, Veterans' and Families' Acute Support Package Bill 2022, House of Representatives, Debates, 3 August 2022, 13.

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this criterion limits eligibility for the program and is counter to the Productivity Commission’s recommendation.

Limited to veterans aged under 65 years The Bill will introduce a new criterion to limit eligibility for the Acute Support Package to veterans or the family of veterans aged under 65 years of age at the time the assistance is provided. A similar age limit applies in practice to the current Package as incapacity payments under the MRCA can only be paid up to Age Pension qualifying age (currently 66 years and six months but increasing to 67 from 1 July 2023).26 The age limit will target the support at the families of working-age veterans but it is unclear why 65 years is used as the limit rather than Age Pension age.

Australian Greens Senator Jordon Steele-John proposed amendments to the Enhanced Family Support Bill to remove the age cap on access to the Family Support Package.27

Expanded services and greater flexibility The Bill provides for services provided under the Acute Support Package to be set out in legislative instruments. The Bill inserts into the three legislative schemes a list of the kind of assistance and benefits that may be specified in these instruments: child care, counselling, household assistance, services to build capacity, academic support and extra-curricular support for children. The Explanatory Memorandum states that services to build capacity could include financial literacy, relationship skills, cooking lessons and mental health first aid.28

The current scheme caps the level of assistance available in different ways depending on the kind of service (either a monetary limit or a limit to a certain number of sessions of counselling). New caps or limits will be included in a legislative instrument, but the Minister for Veterans’ Affairs Matt Keogh stated that a total cap will apply rather than specific limits for different categories of assistance.29 This will provide flexibility to families in choosing the supports they need.

Under the current scheme, the following limits apply:

• child care assistance of up to $10,000 per financial year for each child under school age, and up to $5,000 per financial year for each primary-school aged child

• access to up to four counselling sessions per year per family group for five years

• for widows, access to four counselling sessions per calendar year for the two years following the veteran’s death

• for widows, household services worth up to $482.50 per week for the two years following the veteran’s death.30

Minister Keogh stated in his second reading speech that under the enhanced Package up to $7,500 worth of supports could be accessed in the first year and $5,000 in the second year. Any kind of approved service or assistance could be accessed through the Package up to these limits. Families with children will be able to access a further $10,000 a year for each child under school age and

26. ‘How we calculate incapacity payments’, DVA; DSS, ‘3.4.1.10 Qualification for Age’, Social Security Guide, version 1.297, released 15 August 2022, DSS, 22 March 2021. 27. Jordon Steele-John, Proposed amendments to the Veterans’ Affairs Legislation Amendment (Enhanced Family Support) Bill 2022, Sheet 1572, 28 March 2022. 28. Explanatory Memorandum, Defence, Veterans’ and Families’ Acute Support Package Bill 2022, 4. 29. Matt Keogh, Second Reading Speech: Defence, Veterans' and Families' Acute Support Package Bill 2022, House of

Representatives, Debates, 3 August 2022, 13. 30. Sections 11, 12, 16, 17 and 18 of the Military Rehabilitation and Compensation (Family Support) Instrument (No.2) 2018.

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$5,000 for each child at primary school age but these additional amounts will not have to be used for child care.31

Widowed partners would be able to access up to $27,835 per year for two years following the date their claim is accepted (rather than date of death) as well as the additional $10,000/$5,000 amounts for children until those children reach high school-age.32

Numbers affected According to Minister Keogh, 49 widowed partners and their families and 120 veterans and their families have been assisted by the Family Support Package since it commenced in 2018. The Minister stated that approximately 430 families and 450 widowed partners will benefit from the expanded Acute Support Package in its first year.33

Key provisions

Amendments to the Military Rehabilitation and Compensation Act 2004 Items 3 and 4 substitute the word ‘Family’ with ‘Acute’ at the headings of Chapter 5A and Part 1 of Chapter 5A of the MRCA, respectively. Chapter 5A is currently titled ‘Family and employment support’ and Part 1 of that Chapter allows for the provision of the Family Support Program.

Item 5 removes a reference to the warlike service requirement at the simplified outline of Part 1 at section 268A.

Item 6 repeals and replaces section 268B to set out the main provisions for the Acute Support Package. The proposed section provides for the Military Rehabilitation and Compensation Commission to make a legislative instrument for granting an acute support package of assistance and benefits to eligible individuals. Proposed subsections 268B(2)-268(6) set out eligibility criteria that will apply:

• for members or former members of the Australian Defence Force (ADF):

- the person is under 65 years at the time their eligibility for a package is determined - the person is receiving compensation for an incapacity (for service-related injuries or illnesses) or a Special Rate Disability Pension under the MRCA

- the Commission is satisfied the person, or a related person, is experiencing or is at risk of experiencing a crisis • for related persons of a member or former member of the ADF:

- the member or former member is under 65 years of age at the time eligibility for a package is determined - the member or former member is receiving compensation for an incapacity or a Special Rate Disability Pension under the MRCA - the Commission is satisfied the person is experiencing or is risk of experiencing a crisis • for a wholly dependent partner of a deceased member of the ADF:

- the partner is under 65 years of age at the time their eligibility for a package is determined - the deceased member’s death occurred no more than 2 years before the partner’s eligibility for a package is determined - the deceased member’s death was related to their service or the Commission is satisfied

their death was a suicide related to their service

31. Matt Keogh, Second Reading Speech: Defence, Veterans' and Families' Acute Support Package Bill 2022, House of Representatives, Debates, 3 August 2022, 13. 32. Matt Keogh, Second Reading Speech: Defence, Veterans' and Families' Acute Support Package Bill 2022, House of Representatives, Debates, 3 August 2022, 13. 33. Matt Keogh, Second Reading Speech: Defence, Veterans' and Families' Acute Support Package Bill 2022, House of

Representatives, Debates, 3 August 2022, 13.

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• for former partners of a member or former member of the ADF:

- the former partner is under 65 years of age at the time eligibility for a package is determined - the person ceased being the member’s or former member’s partner within the previous 12 months OR a child (aged under 18 years) of the member or former member lives with the person

- the Commission is satisfied the person is experiencing or is at risk of experiencing a crisis. Related person is already defined at subsection 15(2) of the MRCA and includes partners, parents/step-parents, grandparents, children and step-children, grandchildren, brothers, sisters and half-brothers and half-sisters, those for whom the member stands in the position of a parent, and those who stand in the position of a parent to the member.

Proposed subsection 268B(7) provides for the Commission’s legislative instrument to set out additional eligibility criteria, the kinds of assistance that may be granted, conditions, limits (such as caps on the total amount of assistance available), and arrangements for the payment of assistance or benefits.

Item 7 adds section 345B which means that the reconsideration and review provisions in Chapter 8 of the MRCA apply to decisions by the Commission under an instrument made under section 268B (regarding acute support packages) as if references to a ‘claimant’ in Chapter 8 refer to the person to whom an Acute Support Package decision relates and as if references to ‘a claim’ were omitted (as there are no specific claim requirements or procedures set out in section 268B). The proposed amendments will mean that decisions by the Commission in relation to acute support packages are subject to the merits review process including reviews by the Veterans’ Review Board where requested by the person to whom the package related, or Commission-initiated reconsiderations.34

Part 3 of Chapter 11 of the MRCA sets out provisions for the recovery of overpayments, including that certain amounts are recoverable via a court process as a debt due to the Commonwealth or via a deduction from another amount payable to the person under the MRCA. Item 8 inserts proposed paragraph 415(1)(aa) so that amounts paid as part of an acute support package are subject to the recovery provisions where the amount was paid as a result of:

• a false or misleading statement or representation or

• a failure or omission to comply with the Act or an instrument made under proposed section 268B.

Amendments to the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 Items 10-15 propose similar amendments to the DRCA as are proposed for the MRCA to provide for acute support packages to be available to those whose service is covered under the DRCA and their relatives. The amendments also provide for a legislative instrument to be made for granting acute support packages and the eligibility criteria are essentially the same as those set out above in relation to the MRCA amendments. Eligible compensation payments will be those paid under Division 3 of Part II of the DRCA, which covers injuries resulting in incapacity for work.

Amendments to the Veterans’ Entitlements Act 1986 Item 16 adds proposed paragraph 5H(8)(zze) to the VEA which provides for payments made as part of an acute support package under the VEA, MRCA or DRCA to be exempt income for the purposes of the income tests that apply to some VEA payments (such as the Service Pension).

34. See Appeals, DVA, for further information on the review and reconsideration process.

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Items 17-24 propose similar amendments to the VEA as are proposed for the DRCA and MRCA to provide for acute support packages to be available to those whose service is covered under the VEA and their relatives. The amendments also provide for a legislative instrument to be made for granting acute support packages and the eligibility criteria are essentially the same as those set out above in relation to the MRCA amendments. Eligible compensation payments will be a Disability Pension under section 23, 24 or 25 of the VEA or the Veteran Payment.

Existing provisions under section 205 of the VEA will cover recovery of overpayments under an Acute Support Package where the overpayment was:

• in consequence of a false or misleading statement or representation or

• a failure or omission to comply with the VEA or an instrument made under the Act.35

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35. Section 205, Veterans’ Entitlements Act 1986.