Military Rehabilitation and Compensation (Clean Energy Advance – Top-Up Payment) Determination 2012

Link to law: https://www.comlaw.gov.au/Details/F2012L00854

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Military Rehabilitation and Compensation (Clean Energy Advance – Top-Up Payment) Determination 2012
 
Military Rehabilitation and Compensation Act 2004
Instrument 2012 No. M3
 
The Military Rehabilitation and Compensation Commission, by its delegates, makes this Determination under subsection 424H(1) of the Military Rehabilitation and Compensation Act 2004.
 
 
 
Dated this 4th                       day of April                          2012
 
 
The Seal of the                               )
Military Rehabilitation                   )
and Compensation Commission ) SEAL
was affixed hereto in the              )
presence of:                                    )
 
 
Ian Campbell                  Shane Carmody                        Major General Mark Kelly
………………………………………………………………………………………....
IAN CAMPBELL      SHANE CARMODY   Major General Mark Kelly
         PSM                                                                                   AO DSC
Chair and Delegate          Member and Delegate            Member and Delegate
 
 
 
 
 
PART 1       PRELIMINARY
1             Name of instrument
This Determination is the Military Rehabilitation and Compensation (Clean Energy Advance – Top-Up Payment) Determination 2012
2          Commencement
This Determination commences, or is taken to have commenced, on 14 May 2012.
3.         Definitions
In this Determination:
above general rate disability pension means disability pension under the VEA at a rate greater than the rate specified in subsection 22(3) of the VEA and includes where the person is paid a percentage, under subsection 22(2) of the VEA, of the rate specified in subsection 22(3) that is increased under section 27 of the VEA such that the total exceeds the rate specified in subsection 22(3).
ABSTUDY has the same meaning as in the Social Security Act 1991.
ABSTUDY Living Allowance means a living allowance under ABSTUDY.
Act means the Military Rehabilitation and Compensation Act 2004.
change day means the day on which a person has a change in circumstances that results in a change to the type or rate of clean energy base payment that the person receives.
clean energy advance has the same meaning as in the Act.
clean energy advance daily rate, for a particular clean energy underlying payment, has the meaning it has in section 424F of the Act for that payment.
clean energy advance eligibility day means:
(a) for a person eligible for a clean energy advance because of a determination made under subsection 424A(1) or 424B(1) of the Act—the day that determination is made; or 
 
(b) for a person eligible for a clean energy advance because of a determination made under subsection 424A(2) or 424B(2) of the Act—the day specified in that determination because of, respectively, subsection 424A(2) or 424B(2) of the Act.
 
Note: The day specified in the determination because of subsection 424A(2) or 424B(2) is the first day during the clean energy advance period for which the person satisfies the eligibility requirements, disregarding any short temporary absence from Australia.
 
clean energy advance period, in relation to a person, means the period comprised of the total number of advance days for the person.
clean energy base payment means:
·         an ABSTUDY Living Allowance; or
·         a clean energy qualifying payment; or
·         a clean energy underlying payment; or
·         a clean energy underlying payment under the MRCAETS; or
·         a clean energy underlying payment under the VCES; or
·         a clean energy underlying payment under the VEA.
Note: the MRCAETS, the VCES and the VEA contain their own definitions of “clean energy underlying payment”.
clean energy bonus has the same meaning as in the Act.
clean energy qualifying payment has the same meaning it has in the Social Security Act 1991.
clean energy underlying payment has the same meaning as in the Act.
disability pension means a pension under Part II or IV of the VEA at a rate determined under or by reference to Division 4 of Part II of the VEA.
most recent change day means the change day that is closest in time to the day the person’s top‑up payment is being calculated.
most recent clean energy advance daily rate means the clean energy advance daily rate that would have been used to calculate a person’s clean energy advance if the person’s clean energy advance eligibility day was the most recent change day.
MRCA means the Military Rehabilitation and Compensation Act 2004.
MRCA permanent impairment payment means, in relation to a person:
 
(a) weekly compensation under Part 2 of Chapter 4 of the MRCA that:
                                        (i)        is payable to the person; or
                                      (ii)        would be payable to the person apart from paragraph 398(3)(b) of the MRCA and the offsetting described in subsection 13(4) of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004;
(b)  lump sum compensation under Part 2 of Chapter 4 of the MRCA.
MRCA Special Rate Disability Pension means compensation payable to a person under Part 6 of Chapter 4 of the MRCA or compensation that would be payable to the person under Part 6 of Chapter 4 of the MRCA apart from section 204 and paragraph 398(3)(b) of the MRCA.
MRCA wholly dependent partner payment means the payment payable to a person under Division 2 of Part 2 of Chapter 5 of the MRCA.
MRCAETS means the Military Rehabilitation and Compensation Act Education and Training Scheme made under subsection 258(1) of the MRCA.
MRCAETS payment means a payment of education allowance under the MRCAETS.
multiple entitlement exclusion has the same meaning as in subsection 424H(4) of the Act.
new change day, in relation to a person, means a change day that occurs after the person has previously been eligible for a top‑up payment under this Determination.
new clean energy advance daily rate means the clean energy advance daily rate that would have been used to calculate a person’s clean energy advance if the person was first eligible for a clean energy advance on the change day.
new clean energy advance period, in relation to a person, means the clean energy advance period that applies to the person from the change day.
number of advance days means the days worked out under section 424G of the Act.
original change day, in relation to a person, means the first change day for the person.
original clean energy advance daily rate, in relation to a person, means the clean energy advance daily rate that was used to calculate the person’s original payment.
original payment, in relation to a person, means the clean energy advance (advance) originally paid to the person in respect of a clean energy underlying payment, for the clean energy advance period in respect of that advance.
original payment start day, in relation to a person’s original payment, means the later of the start of the clean energy advance period for the original payment or the person’s clean energy advance eligibility day.
top-up payment means a payment calculated under Part 3.
top‑up qualifying condition has the meaning given by subsection 4(2).
VCES means the Veterans’ Children Education Scheme made under section 117 of the VEA.
VCES payment means a payment of education allowance under the VCES.
VEA means the Veterans’ Entitlements Act 1986.
Part 2     When a person is eligible for a top-up payment
4.            Eligibility for top-up payment
(1)       If:
(a)      the Commonwealth pays a clean energy advance (the original payment) to a person; and
(b)      the person’s circumstances change on a day (the change day) and the person satisfies any top‑up eligibility condition in relation to that change of circumstances as set out in subsection 4(2); and
(c)       either
(i)    the change of circumstances means that a higher clean energy advance daily rate would be used to calculate the original payment if the person’s clean energy advance eligibility day were the change day; or
(ii)  except for the provisions of a multiple entitlement exclusion the person would be eligible for a clean energy bonus under the Act, another Act or a Commonwealth scheme;
the person is eligible for a top-up payment calculated in accordance with Part 3.
(2)       For the purposes of paragraph 4(1)(b) a person satisfies a top‑up qualifying condition if:
(a)      the person was paid an original payment under Division 1 of Part 5A of Chapter 11 of the Act in respect of a clean energy underlying payment of MRCA permanent impairment payment and:
(i)    as a result of the change in circumstances the person commences to receive a MRCA special rate disability pension in relation to the change day and the change of circumstances occurs before 20 March 2013; or
(b)      the person was paid an original payment under Division 1 of Part 5A of Chapter 11 of the Act in respect of a clean energy underlying payment of MRCA permanent impairment payment and:
(i)    as a result of the change in circumstances the person commences to receive above general rate disability pension in relation to the change day and the change of circumstances occurs before 20 March 2013; or
(c)       the person was paid an original payment under Division 2 of Part 2 of Chapter 5 of the Act in respect of a clean energy underlying payment of MRCA wholly dependent partner payment and:
(i)   as a result of the change in circumstances the person commences to receive a MRCAETS payment or VCES payment in relation to the change day and the change of circumstances occurs before 20 March 2013.
Part 3     Method of working out the top-up payment
5    Top-up payment for first change of circumstances
(1)       Subject to subsection 5(2), if the person has not previously been eligible for a top-up payment under section 4, the amount of top-up payment is to be calculated in accordance with the Method Statement 1 at the end of subsection (2).
(2)       For the purposes of subsection 5(1) the top‑up payment is to be worked out as follows:

Method Statement 1
 
Step 1: Multiply the original clean energy advance daily rate by the number of days from the original payment start day until the day before the change day.
 
Step 2: Multiply the new clean energy advance daily rate by the number of days remaining in the new clean energy advance period from the change day.
 
Step 3: Work out the sum of the amounts in steps 1 and 2.
 
Step 4: Round the result from Step 3 up to the nearest $10.
 
Step 5: Deduct the original payment from the result of Step 4.  If the result is greater than zero the result becomes the top‑up payment that is payable to the person. 
 
 
 
 
 
6    Top-up payment for subsequent change of circumstances
(1)    If a person has previously been paid a top-up payment calculated in accordance with section 5 and the person has a further change in circumstances any additional top-up is to be calculated in accordance with this section.
(2)    If the person has previously been eligible for a top‑up payment calculated under Method Statement 1 in section 5 the method for calculating any further top‑up payment is as follows:



Method Statement 2
 
Step 1: Multiply the original clean energy advance daily rate by the number of days from the original payment start day until the day before the first change day.
 
Step 2: Calculate the number of days from the first change day until the day before the second change day and multiply by the second clean energy advance daily rate.  Repeat this step as needed for subsequent changes, excluding the most recent change day, multiplying the number of days between change days by the clean energy advance daily rate that applies as a result of the particular change in circumstances.
 
Step 3: Calculate the number of days from the most recent change day until the end of the new clean energy advance period and multiply by the most recent clean energy advance daily rate. 
 
Step 4: Add up the amounts obtained in Steps 1, 2 and 3.
 
Step 5: Round the result from Step 4 up to the nearest $10.
 
Step 6: Calculate the sum of the original payment and any previous top-up payments paid to the person under this Determination. 
 
Step 7: Deduct the result of Step 6 from result of step 5.  If the result is greater than zero this becomes the top‑up payment that is payable to the person.