What happens if you are in lawful custody

Last updated: 
17 January 2020

This page explains the effect that imprisonment or psychiatric confinement following a criminal charge may have on:

  • income support claims;

  • income support pensions, payments, allowances and supplements; and

  • the use of DVA cards.

It also provides information about redirection of payments and a brief description of crisis payments.

What is imprisonment?

The Veterans’ Entitlements Act 1986 (VEA), (s55), defines a person as being in gaol if the person is:

  • being lawfully detained (in prison or elsewhere) while under sentence for the conviction of an offence and not on release on parole or license; or
  • undergoing a period of custody pending trial or sentencing for an offence.

What is psychiatric confinement?

The VEA defines a person as being in psychiatric confinement if confined to a psychiatric section of a hospital, or any other place, where persons with psychiatric disabilities are confined, following a criminal charge.

*Note: - The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be psychiatric confinement.

When are payments not affected?

Your service pension, income support supplement or veteran payment will not be affected by imprisonment or psychiatric confinement if:

  • your sentence is suspended;
  • you are undertaking a community service order;
  • you are undergoing home detention;
  • you are on parole; or
  • you are in a psychiatric institution undertaking a course of rehabilitation.

Effect of confinement in a psychiatric institution

If you are confined in a psychiatric institution because you have been charged with an offence, then your service pension, veteran payment or income support supplement payments can only continue if you are undertaking a course of rehabilitation. A course of rehabilitation is defined as a specifically planned series of activities including medical or other treatments directed towards improving your functioning. The course of rehabilitation must be structured in such a way that it could lead to a release from confinement.

Effect of imprisonment on income support claims

A claim for income support pension or payment prior to entering prison, or while in prison will still be investigated following normal procedures. However, the pension, payment or benefit will not be payable until you are released from prison.

Imprisonment of a person does not preclude the person’s partner from being eligible for a partner service pension or veteran payment paid to a partner.

Effect of imprisonment (or psychiatric confinement) on an income support pension or benefit

Your income support pension or payment will be suspended or forfeited while you are imprisoned unless it is redirected to an eligible person. Your income support pension or payment may be redirected to:

  • your partner;
  • your child; or
  • another person, provided the pension or payment is used for the benefit of your partner or child.

The following table indicates the circumstances and actions required to have pension or payment instalments redirected:

If Then And Contact
you are imprisoned/confined and your partner is receiving a service pension, veteran payment or income support supplement from DVA your payment is suspended, however; an amount of your pension or payment may be redirected to your partner or another person for the benefit of your partner your partner may receive both their own pension or payment and a portion of your pension or payment, however; the total amount MUST NOT exceed the single rate DVA
you are imprisoned/confined and have a dependent child, and your pension or payment instalments have not been redirected to a partner your payment is suspended, however; an amount may be redirected to another person to care for the child another person may receive a limited amount of your pension or payment to maintain the child on your behalf, provided the child is not placed in a State Authority. DVA

If you or your partner are imprisoned/confined and either of you are receiving a payment from Centrelink, you should contact Centrelink directly.

What pensions and benefits are affected?

The following income support pensions and benefits will be affected by imprisonment/confinement:

  • Age, invalidity and partner service pension;
  • Age pension;
  • Veteran payment;
  • Pension supplement;
  • Income support supplement;
  • Rent assistance;
  • Remote area allowance;
  • Pensioner Concession Card (PCC);
  • Bereavement payments;
  • Defence Force Income Support Allowance (DFISA); and
  • Dependent child add on.

* Note: Energy supplement is also affected for age, invalidity and partner service pension.

If you are imprisoned, or in psychiatric confinement following a criminal charge, and receive:

Then
 

Service pension, veteran payment or income support supplement, including rent assistance and remote area allowance

  • any pension or payment payable after the first day of imprisonment will be suspended or forfeited, unless the payment is redirected to your partner or child; and
  • pension or payment is payable from the day of release.
Pension Supplement
  • your pension supplement will be suspended. If you retain a gold or white treatment card you may be eligible for veteran supplement and energy supplement.
Energy Supplement paid for service pension
  • your energy supplement will be suspended.
Veterans Supplement
  • your supplement will be suspended or forfeited unless you are in receipt of extreme disablement adjustment, special rate disability pension, war widow’s/widower’s pension, or an additional amount of disability pension for double amputations.
  • loss of earnings allowance
  • vehicle assistance scheme
  • recreation transport allowance
  • remote area allowance
  • attendant allowance
  • it is likely that these allowances will be suspended or forfeited, as you would have difficulty meeting the eligibility conditions.
Defence Force Income Support Allowance (DFISA)
  • if your income support payment is suspended or forfeited due to your imprisonment, no amount of DFISA is payable.

Health care entitlements

If, while imprisoned, you continue to hold either a Veteran Gold Card or a Veteran White Card, then your entitlement to health care services at Veterans’ Affairs expense remains unchanged.

However, an entitled person serving a prison sentence has the same rights to medical treatment as other prisoners. In most instances treatment services for imprisoned eligible persons would be provided by the prison authorities on the same terms and conditions that apply to other prisoners.

Should imprisoned entitled persons seek approval for treatment outside the prison system, any approvals would be conditional on:

  1. prior approval being obtained from both DVA and the prison authorities;
  2. all costs incidental to the provision of the treatment, in particular the cost of security escorts are met separately (ie are not covered by DVA); and
  3. the service provided must be medically necessary;
  4. the prison being satisfied that DVA funded treatment would not interfere with the authority’s management functions;
  5. the health provider must be willing to provide the service and accept the relevant DVA fee for the service.

Bereavement payments in respect of income support pensions

If you receive income support bereavement payments and are subsequently imprisoned/confined, the bereavement payment may be redirected in the same way as the income support pension for the duration of the bereavement period. If your income support payments are not redirected, then you are not entitled to bereavement payments in respect of an income support pension.

Bereavement payment is payable in respect of your death if you die while imprisoned and your payments are being redirected to a partner or child.

Effect of imprisonment/confinement on DVA assessment of marital status

Imprisonment does not affect the way the Department of Veterans’ Affairs assesses and records your marital status. You and your partner are still regarded as a couple for pension or payment assessment purposes unless you have actually separated.

Effect of imprisonment/confinement on Pensioner Concession Card (PCC) entitlement

This card is a fringe benefits card that may be affected by imprisonment. If your income support payments are not redirected, you will not be entitled to a PCC while your payments are suspended or forfeited.

If your income support payments are redirected to a pensioner partner to care for dependent children, your partner will already hold a PCC with details of those children. Those children are eligible for any medical or pharmaceutical concessions available with that card.

The PCC cannot be redirected to a non-pensioner partner. Your non-pensioner partner needs to qualify for a pension from DVA or Centrelink in their own right to be issued with a PCC.

Crisis payments

A crisis payment is immediate financial assistance that may be paid to people in severe financial hardship and suffering from extreme circumstances, or release from lawful custody where the custody has been 14 days or more. The payment is a ‘one-off’, non-taxable, non-refundable payment, designed to assist in establishing a new residence. Crisis payment is payable in addition to the person’s regular payment.

To claim a crisis payment, you will need to complete the Form D0567 Application for Crisis Payment – Prison/Hospital Release. You must lodge the completed form with DVA, or make an informal claim, within 7 days of release from lawful custody.

Veteran payment recipients are not eligible for a crisis payment.

Refer to Crisis Payments for more information.

Can I request a review of a decision?

If you are dissatisfied with a decision to suspend or forfeit your service pension, income support supplement or veteran payment you have the right to ask that we review that decision. You may apply to have the decision reviewed by a Review Officer. If you decide to apply for a review, you must do so within 3 months of receiving the letter notifying you of our decision. Your request for a review must set out in writing your reasons for seeking a review.

If you are dissatisfied with any aspect of the Review Officer’s decision, you may apply in writing to the Administrative Appeals Tribunal for a review of that decision. Your application should set out the reasons for your appeal and should be lodged with the Tribunal within 3 months of the date you receive the Review Officer’s decision.

Your obligations

As a service pensioner, income support supplement recipient or veteran payment recipient you have a responsibility to keep us informed of changes that may affect the amount of pension or payment you receive. These responsibilities are described in our letters to you as ‘obligations’.

You are required to tell DVA within 14 days (28 days if you live overseas or receive remote area allowance) of changes to your circumstances that might affect the rate of payment you receive or your eligibility to receive that payment. In relation to imprisonment/confinement you must tell us if:

  • you are imprisoned/confined;
  • your marital status changes; or
  • the number of your dependent children changes.

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