What happens if you are in lawful custody
This page explains the effect that lawful custody following a criminal charge may have on income support pensions, payments, allowances, supplements and the use of the DVA cards.
It also provides information about redirection of payments and a brief description of crisis payments.
On this page
What is lawful custody?
For the purposes of this page, imprisonment and psychiatric confinement is defined as lawful custody.
What is imprisonment?
The Veterans’ Entitlements Act 1986 (VEA), (s55), defines a person as being in gaol if the person is either of the following:
- being lawfully detained (in prison or elsewhere) while under sentence for the conviction of an offence and not on release on parole or license
- 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.
The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not considered to be psychiatric confinement.
Back to topWhat pensions and benefits are affected?
The following income support payments and benefits will be affected if you are in lawful custody:
- Service Pension (age, partner, invalidity)
- Social Security Age Pension
- Veteran Payment
- Pension supplement
- Income Support Supplement
- Rent assistance
- Remote area allowance
- Pensioner Concession Card
- Bereavement payments
- Dependent child add on.
Energy supplement is also affected for Service Pension.
| If you are in lawful custody and receive: | Then |
|---|---|
including rent assistance and remote area allowance |
|
| Pension Supplement |
|
| Energy Supplement paid for services pension |
|
| it is likely that these allowances will be suspended or forfeited, as you would have difficulty meeting the eligibility conditions. |
How does lawful custody effect my partner and dependents?
Your income support pension or payment will be suspended or forfeited while you are in lawful custody unless it is redirected to an eligible person. Your income support pension or payment may be redirected to one of the following:
- your partner
- your child
- another person, provided the pension or payment is used for the benefit of your partner or child.
The following table indicates the circumstances required to have pension or payment instalments redirected:
| If you are in lawful custody and | Then | And |
|---|---|---|
| your partner is receiving a Service Pension, Income Support Supplement or Veteran Payment from DVA | your pension or 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 can not exceed the single rate of that pension or payment |
| 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. |
| your partner is receiving a Social Security Age Pension from DVA | your pension 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 and a portion of your pension for up to 13 weeks. However, the total fortnightly payment can not exceed the single rate of pension. |
Lawful custody does not affect the way the DVA assess your relationship status . You and your partner are still regarded as a couple for pension or payment assessment purposes unless you have actually separated.
If you or your partner are in lawful custody and either of you are receiving a payment from Services Australia, you should contact Services Australia directly.
How does lawful custody effect income support new claims
A new claim for income support pension or payment prior to being detained in lawful custody will be investigated following normal procedures. However, the pension, payment or benefit will not be payable until you are released from lawful custody.
Lawful custody of a person does not preclude the person’s partner from being eligible for a Service Pension, Income Support Supplement or Veteran Payment.
Back to topWhen are payments not affected?
Your Service Pension, Social Security Age Pension, Income Support Supplement or Veteran Payment will not be affected by lawful custody if any of the following apply:
- your sentence is suspended
- you are undertaking a community service order
- you are undergoing home detention
- you are on parole
- you are in a psychiatric institution undertaking a course of rehabilitation.
If you are confined in a psychiatric institution because you have been charged with an offence, pension or payment 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 wellbeing. The course of rehabilitation must be structured in such a way that it could lead to a release from confinement.
Back to topHealth care entitlements
While in lawful custody, you can continue to hold either a Veteran Gold Card or a Veteran White Card, and your entitlement to health care services remains unchanged.
An entitled person in lawful custody has the same rights to medical treatment as other people in lawful custody. In most instances treatment services for eligible persons would be provided by the correctional facility on the same terms and conditions that apply to other people in lawful custody.
If you wish to seek approval for treatment outside the lawful custody system, any approvals would be conditional on all of the following:
- prior approval being obtained from both DVA and the correctional facility
- all costs incidental to the provision of the treatment, in particular the cost of security escorts are met separately (are not covered by DVA)
- the service provided must be medically necessary
- the correctional facility being satisfied that DVA funded treatment would not interfere with the correctional facility management functions
- the health provider must be willing to provide the service and accept the relevant DVA fee for the service.
Bereavement payments
If you receive income support bereavement payments and are subsequently in lawful custody, 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.
Back to topPensioner Concession Card (PCC) entitlement
The Pensioner Concession Card may be affected if you are in lawful custody. If your income support pension are not redirected, you are not entitled to the benefits of the PCC while your pension or payment is suspended.
If your partner already holds a PCC with details of children, those children are eligible for any medical or pharmaceutical concessions available with that card.
Your PCC cannot be redirected to a partner. Your partner needs to qualify for a pension or payment from DVA or Services Australia in their own right to be issued with a PCC.
Back to topCrisis Payments
A Crisis Payment is immediate financial assistance that can be paid to people released 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. A Crisis Payment is payable in addition to a regular pension or 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.
Back to topCan I request a review of a decision?
If you disagree with a decision to suspend your pension payment or benefit you can request a review. 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 Review 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.
Back to topYour obligations
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 lawful custody
- your marital status changes
- the number of your dependent children changes.