3.4.9.10 Qualification for BVA

Qualification (1.1.Q.10) criteria

To qualify for BVA, a person must meet the criteria listed in the following table. Where more detail about a criterion is required, the second column indicates where you will find this.

Act reference: SSAct section 315 Qualification for BVA

Member of a couple

De facto relationships are not required to have existed for any particular length of time before the death of the person's partner.

If either member of the couple has previously been determined as not being a member of a couple for the purposes of a social security payment, eligibility for BVA would not usually be accepted. However, where the couple received a payment on a single basis because of a special precluding provision, they may still qualify for BVA where they satisfy the general definition of member of a couple under section 4(2).

Example: Where a YA recipient is in a de facto relationship they may not be considered to be a member of a couple for YA purposes unless the relationship has existed for 12 months. For the purposes of BVA the relationship does not have to have existed for 12 months.

Children under the age of consent in the particular state or territory where they reside, CANNOT be regarded as members of a couple, and therefore CANNOT qualify for BVA.

If the couple were physically living apart due to the ill health of either one or both of the partners, they CAN still be considered a couple, and CAN satisfy this provision.

Example: One person was in hospital or a nursing home.

Recognition of same-sex relationships

It is important to note that same-sex de facto relationships were not recognised under social security and family assistance law prior to 1 July 2009. Recognition of same-sex relationships is a significant social change. Many people in gay or lesbian relationships will be keen to declare their relationship to Centrelink. Others may find discussing their relationship with Centrelink staff confronting, due to fears regarding disclosure of sexual preference and or a same-sex relationship, stigmatisation or discrimination. Particular care should be taken in conducting de facto assessments for older people in same-sex relationships, and for other vulnerable groups, e.g. people from diverse cultural and linguistic backgrounds and young people who have been assessed to be independent on 'unreasonable to live at home' grounds.

Note: If the existence of a pre 1 July 2009 same-sex relationship is relevant for a claim for a benefit or payment payable for a period 1 July 2009 onwards, this relationship can be taken into account in the assessment of the claim. However, this is limited to qualifying for benefits and payments, and rates payable from 1 July 2009 onwards. The existence of a same-sex relationship prior to 1 July 2009 cannot be the basis for backdating qualifications and rates of payment for a pre 1 July 2009 period, as the legislation gives legal effect to changed rates of payment from 1 July 2009. This may be relevant to bereavement payments and BVA.

Act reference: SSAct section 4(2) Member of a couple-general

Policy reference: SS Guide 2.2.5 Verifying Membership of a Couple, 2.2.5.10 Determining a De Facto Relationship, 2.2.5.13 Registered Relationships, 2.2.5.14 Overseas Same-Sex Marriage

Partner missing, presumed dead

If a person's partner is missing, but presumed dead, the person MAY still qualify for BVA if there:

• are no suspicious circumstances, AND
• is evidence which supports that the person's partner has died.

Example: The partner is alleged to have met with a fatal accident such as death by drowning, and the body has not been recovered. If a police report supports the circumstances, the person may still qualify for BVA.

Explanation: The courts will generally not presume death until a period of 12 months has elapsed.

If the person's partner has simply disappeared, it CANNOT be accepted that the partner is dead for BVA purposes.

Residence criteria

To satisfy the residence criteria for BVA, at least ONE of the following must be satisfied. The person:

• and their partner, were BOTH Australian residents (section 7(2)) at the time of the partner's death, OR
• has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks, OR
• has a QRE for BVA, OR
• is female, and:
  • WP was payable immediately before the partner died, or
  • partner service pension under the Veterans' Entitlements Act was payable immediately before the partner died, and
  • was not in Australia when her partner died.

Act reference: SSAct section 315(1) A person is qualified for a BVA on a day, if ..., section 7(2) Australian residence definitions

Time limit for claim

To qualify for BVA, a person must lodge their claim within the periods explained in the following table:

Person can choose BVA or another pension/benefit

A person who is receiving another pension, allowance or benefit can elect to receive BVA instead.

Example: A person in receipt of NSA, SA or PP may be better off receiving BVA because of the higher rate and less stringent income test. Also, BVA is activity test exempt.

In the circumstances where a person chooses to transfer to BVA and claims bereavement assistance, the assistance is calculated in relation to the payment they were receiving at the time their partner died.

Policy reference: SS Guide 3.1.5 Bereavement Payment Provisions

Qualification during overseas travel

A former resident is disqualified from receiving BVA when overseas. However in the remainder of cases overseas travel does not disqualify a person from receiving BVA, if they:

• have lodged a claim and qualified before leaving Australia, AND
• continue to qualify for BVA during the overseas absence.

Act reference: SSAct section 1217 Meaning of maximum portability period, allowable absence and portability period

Policy reference: SS Guide 7.1 Conditions for Payment Outside Australia

Comparable foreign payment (1.1.C.230)

If a person claims BVA when they would be entitled to a CFP, their claim can be rejected if they fail to seek that payment.

Act reference: SS(Admin)Act section 66 Notice to obtain foreign payment, section 40 Rejection of claim for failure to obtain foreign payment

Policy reference: SS Guide 7.3.1.20 Reasonable Action Requirements

Proper claim

A person must lodge a proper claim before BVA can be granted.

Policy reference: SS Guide 8.1.1.20 Claim Lodgement - General Provisions

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Last reviewed: 3 January 2012