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30.4.7 1971 Act - client partly incapacitated and was in receipt of superannuation

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Where a client was partly incapacitated for work during the currency of the 1971 Act, S46 of that Act applies. Subsection 46(3) provides that where a partly incapacitated client was also receiving a superannuation pension during that same period, the compensation payable is:

AWE – (amount able to earn + employer portion of the super pension)

Attribution of super pension to client or employer contributions

S46(3)(d) distinguishes between amounts of superannuation pension which may be directly attributed to the client's contributions to the scheme, and that portion of the pension which is employer funded.

Note, that for the purposes of S46(3)(d) the benefits paid by the military superannuation schemes are deemed to include a self-funded component of 20%. This 20% is the amount to be disregarded when calculating compensation under S46(3).

Note: This 20% is to be deducted initially, but once only. It does not apply to subsequent indexation pension increases.

'able to earn in suitable employment or business'

The phrase 'able to earn' etc. used by the 1971 Act is essentially the same as the quantity 'AE' defined and used by the SRCA for the purposes of S19 of that Act. Delegates should also note, that in common with S19(4) of the SRCA, S46(4A) of the 1971 Act discusses matters which the decision maker must 'have regard to' in deciding how much the client is able to earn in suitable employment. In fact, these subsections are direct counterparts and virtually identical.

Therefore, in determining the amount per week the client is 'able to earn...' for the purposes of Ss45 and 46 of the 1971 Act, delegates should apply the guidance at chapter 32.

Given the equivalence of the 'able to earn' amount for purposes of both the 1971 Act and the SRCA, chapter 32 applies equally to both Acts.