4Existing pensions, other than service pensions

4 Existing pensions, other than service pensions

(1) In this section, unless the contrary intention appears: (a) pension means pension other than service pension; (b) a reference to a member of the Forces (including a deceased member of the Forces) shall be read as a reference to a member of the Forces within the meaning of: (i) Division 1, 6, 7, 8 or 9 of Part III of the Repatriation Act; (ii) the Repatriation (Far East Strategic Reserve) Act 1956; or (iii) the Repatriation (Special Overseas Service) Act 1962; and as including a reference to: (iv) a member of the Interim Forces within the meaning of the Interim Forces Benefits Act 1947; and (v) a person the incapacity or death of whom is deemed, by section 7A of the Repatriation (Special Overseas Service) Act 1962, to have resulted from an occurrence that happened during a period of special service of the person as a member of the Forces; (c) a reference to a dependant of a member of the Forces (including a deceased member of the Forces) shall be read as a reference to a person who is, within the meaning of the Division or Act specified in paragraph (b) that is applicable to that member, a dependant of that member, including, but without limiting the generality of the foregoing, a person to whom a pension was, immediately before the commencing date, payable under section 44 of the Repatriation Act; and (d) widow has the same meaning as in section 5E of the Veterans’ Entitlements Act. (2) Where a person who was a member of the Forces was, immediately before the commencing date, in receipt of a pension under a repealed Act in respect of incapacity from an injury suffered, or disease contracted, by the person, the Veterans’ Entitlements Act applies to and in relation to the person as if: (a) that pension had been granted to the person under Part II of the Veterans’ Entitlements Act; (b) that person had been determined, under the Veterans’ Entitlements Act, to be a veteran as defined by paragraph (a) of the definition of veteran in subsection 5C(1) of that Act; and (c) that injury had been determined, under the Veterans’ Entitlements Act, to be a war‑caused injury, or that disease had been so determined to be a war‑caused disease, as the case may be. (3) Where a person who was a dependant of a deceased member of the Forces, being a person who was the widow or a child of that member of the Forces, was, immediately before the commencing date, in receipt of a pension under a repealed Act in respect of the death of that member of the Forces, the Veterans’ Entitlements Act applies to and in relation to the person as if: (a) that pension had been granted to the person under Part II of the Veterans’ Entitlements Act; (b) the person had been determined, under the Veterans’ Entitlements Act, to be a dependant of a deceased veteran; and (c) the death of that member of the Forces had been determined, under the Veterans’ Entitlements Act, to be war‑caused. (4) Where a person who was a member of the Forces, or a member of a Peacekeeping Force, as defined by section 107J of the Repatriation Act was, immediately before the commencing date, in receipt of a pension under that Act in respect of an injury suffered, or disease contracted, by the person, the Veterans’ Entitlements Act applies to and in relation to the person as if: (a) that pension had been granted to the person under Part IV of the Veterans’ Entitlements Act; (b) that person had been determined, under the Veterans’ Entitlements Act, to be a member of the Forces, or a member of a Peacekeeping Force, as the case may be, as defined by subsection 68(1) of that Act; and (c) that injury had been determined, under the Veterans’ Entitlements Act, to be a defence‑caused injury or that disease had been so determined to be a defence‑caused disease, as the case may be. (5) Where a person who was a dependant of a deceased member of the Forces, or of a deceased member of a Peacekeeping Force, as defined by section 107J of the Repatriation Act, being a person who was the widow or a child of that deceased member, was, immediately before the commencing date, in receipt of a pension under that Act in respect of the death of that member, the Veterans’ Entitlements Act applies to and in relation to that person as if: (a) that pension had been granted to the person under Part IV of the Veterans’ Entitlements Act; (b) that person had been determined, under the Veterans’ Entitlements Act, to be a dependant of a deceased member of the Forces, or of a deceased member of a Peacekeeping Force, as the case may be; and (c) the death of that member of the Forces, or of that member of a Peacekeeping Force, as the case may be, had been determined, under the Veterans’ Entitlements Act, to be defence‑caused. (6) Subject to section 6 of this Act, where a person was, immediately before the commencing date, in receipt of a pension under a repealed Act by virtue of the operation of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, that pension continues to be payable to the person under and in accordance with the provisions of the repealed Acts as if those Acts had not been repealed by the Veterans’ Entitlements Act and the amendments and repeals referred to in that subsection had not been made, and, without limiting the generality of the foregoing but subject to subsections (7) and (8) of this section, action by way of: (a) reviewing a decision with respect to that pension whether made before, on or after the commencing date; (b) re-assessing the rate of that pension; or (c) suspending or cancelling that pension; may be taken in accordance with the provisions of the repealed Acts as if they had not been repealed and the amendments and repeals previously referred to had not been made. (7) Where a pension is payable by virtue of subsection (6), the rate at which it is payable is, subject to subsections (7A) and (8), the rate at which it was payable immediately before the commencing date. (7A) Where a pension is payable by virtue of subsection (6) and, immediately before the commencing date, the pension was payable at a rate that had been reduced, but had not been reduced to nil, in consequence of the operation of section 107R of the Repatriation Act, the rate at which that pension is payable is: (a) subject to paragraph (b) of this subsection, the rate at which, immediately before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, that pension would have been payable but for the operation of section 107R of the Repatriation Act; or (b) if that section did not then apply to the rate of that pension, the rate at which, immediately before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, that pension was payable; reduced to the extent (if any) required from time to time by reason of the operation of section 107R of the Repatriation Act. (8) Subsections (7) and (7A), and paragraph (8B)(b), do not apply to a pension the rate of which was, immediately before the commencing date, fixed by reference to the provisions of the Social Security Act 1947. (8A) Subsection (8B) applies to a pension that had been granted to a person as a dependant of a member of the Forces or of a member of a Peacekeeping Force before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985 if, immediately before the commencing date, the dependant would have been in receipt of that pension but for the fact that the rate of that pension had been reduced to nil, whether before or after the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, in consequence of the operation of section 107R of the Repatriation Act. (8B) Where this subsection applies to a pension, then, notwithstanding the repeals effected by subsection 3(1) of the Veterans’ Entitlements Act: (a) that pension continues to be payable under and in accordance with the provisions of the Repatriation Act as if the amendments and repeals referred to in subsection 66(2) of the Repatriation Legislation Amendment Act 1985 had not been made; (b) the rate at which the pension is so payable shall not exceed: (i) except where subparagraph (ii) applies—the rate at which that pension was payable immediately before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985; or (ii) if, immediately before the commencement of subsection 66(2) of the Repatriation Legislation Amendment Act 1985, the rate of that pension had been reduced (including reduced to nil) by reason of the operation of section 107R of the Repatriation Act - the rate at which that pension would, immediately before the commencement of that subsection, have been payable but for the operation of section 107R of the Repatriation Act; reduced to the extent (if any) required from time to time by reason of the operation of section 107R of the Repatriation Act; and (c) without limiting the generality of the foregoing, action by way of: (i) reviewing a decision with respect to that pension whether made before, on or after the commencing date; (ii) reassessing the rate of that pension; or (iii) suspending or cancelling that pension; may be taken in accordance with the provision of the Repatriation Act as if they had not been repealed and the amendments and repeals referred to in subsection 66(2) of the Repatriation Legislation Amendment Act 1985 had not been made. (8C) The Veterans’ Review Board continued in existence by section 134 of the Veterans’ Entitlements Act 1986 continues, notwithstanding the repeals effected by section 3 of that Act, to have, in relation to decisions made under the repealed Acts with respect to pensions to which subsection (6) or (8B) of this section applies, all the powers, and may exercise the jurisdiction, conferred on it by the repealed Acts. (9) Where: (a) a pension had been granted to a person under a repealed Act from a date before 1 November 1978 in respect of incapacity caused by pulmonary tuberculosis; and (b) that pension continues to be payable to the person on and after the commencing date as if it had been granted under the Veterans’ Entitlements Act; the rate of that pension shall not be less than the general rate. (10) Where: (a) a veteran dies on or after the commencing date; (b) the widow of the veteran does not become eligible, by reason of the death of the veteran, to receive a pension under Part II of the Veterans’ Entitlements Act; and (c) the widow continues, after the death of a veteran, to be paid a pension by virtue of subsection (6) of this section as the widow of the veteran; the widow shall, forthwith after she re‑marries or marries, notify the Secretary, in writing, that she has married or re‑married and the date of the marriage or re‑marriage.