41Payment of part of surviving spouse’s pension attributable to eligible children of invalid or covered ADF member

41 Payment of part of surviving spouse’s pension attributable to eligible children of invalid or covered ADF member

(1) This section applies if: (a) apart from this section: (i) a pension would be payable to the surviving spouse of an invalid or covered ADF member; and (ii) the rate of the pension would be increased by the spouse pension child supplement percentage for one or more eligible children of the invalid or member; and (b) CSC considers it appropriate that a pension at the rate of all or part of that increase be paid to a person other than the surviving spouse for the welfare of one or more of those children (for example because the person cares for one or more of those children). (2) CSC may determine that: (a) a pension is payable to a specified person other than the surviving spouse for the welfare of one or more of those children, at a specified rate not more than that increase; and (b) the rate of the pension payable to the surviving spouse (apart from this section) is reduced by that specified rate. The rate may be specified as a proportion (including 100%) of the increase. (2A) Without limiting paragraphs (1)(b) and (2)(a), the person mentioned in that paragraph may be: (a) one of the eligible children; or (b) another surviving spouse of the invalid or member. (2B) Without limiting when CSC may make a determination under subsection (2), CSC must consider whether to make such a determination in relation to a pension payable to a surviving spouse if CSC becomes aware that one or more of the eligible children of the invalid or member are not wholly or substantially dependent on the surviving spouse. (3) The determination has effect according to its terms, despite any other provision of this Act. Effect of death of surviving spouse (4) If CSC makes a determination under subsection (2) in relation to a surviving spouse and one or more eligible children mentioned in paragraph (1)(a), and the surviving spouse dies: (a) a pension payable under the determination as mentioned in paragraph (2)(a) ceases to be payable to the extent that it is payable for the welfare of any of those eligible children who were wholly or substantially dependent on the spouse immediately before the spouse died; and (b) a pension payable under the determination is not otherwise affected by the death of the spouse; and (c) if the sum of: (i) the rate of any pension payable under the determination after the death of the spouse; and (ii) the rate of any pension (the dependants’ pension) payable to or for one or more eligible children because of the death of the surviving spouse; would otherwise exceed the maximum rate of the pension that could be payable because of the death of the surviving spouse (i.e. the rate that would be payable if the maximum eligible children pension percentage applied)—the rate of the dependants’ pension is reduced by the amount of the excess.