4.3.1 Section 10 transfer of rehabilitation authority

Transfers of Rehabilitation Authority under section 10 of the MRCA are currently being evaluated and are thus not taking place at this time. DVA delegates are asked to contact rehabilitation@dva.gov.au if they have any queries about section 10 transfers.

While an ADF member is still serving, the Chief of the Defence Force (CDF) is their rehabilitation authority. Section 10 of the MRCA enables a transfer of rehabilitation authority from the CDF to the MRCC so that rehabilitation services can be provided by DVA. MRCA section 10 can only be used to transfer rehabilitation authority for part-time reservists and cadets.

The key features of a section 10 transfer of rehabilitation authority are:

• that the CDF advises a delegate of the MRCC that a part-time Reservist or cadet is unlikely to return to defence service as a result of their incapacity;
• that if DVA is provided with this advice, the part-time Reservist or cadet is taken to have ceased to be a member for the purpose of the MRCA; and
• that the advice must specify the date (which must not be retrospective) from which the person is taken to have ceased to be a member for the purposes of the MRCA.

A section 10 transfer of rehabilitation authority means that the person is regarded as a former member for the purposes of the MRCA, and DVA automatically becomes their rehabilitation authority.

Being regarded as a former member for the purposes of the MRCA does not change the person’s ADF service status. That is, the person is still a serving ADF member, unless they actually go through the formal ADF separation process. This means that the ADF is able to:

• re-activate that person to carry out their Reserve duties, at any point of time in the future;
• transfer that person between types of Reserve service (Active/Standby) at any point of time in the future; or
• transfer that person on to Continuous Full Time Service.

Implications of a section 10 transfer of rehabilitation authority

There are a number of implications that result when a person becomes a former member for the purposes of the MRCA. These are outlined below:

• DVA becomes responsible for all services

Once a section 10 transfer of rehabilitation authority has occurred, DVA is responsible for all of a client’s treatment, compensation and rehabilitation support and services. Furthermore, as DVA adopts a whole-of-person rehabilitation approach, clients will be able to receive a broader range of psychosocial, medical management and vocational support and services they require, to establish a new life outside the ADF.

• Incapacity payments

Incapacity payments represent the difference between a person’s normal earnings (NE) and their ability to earn when they are incapacitated for service or work. For former members, after the first 45 weeks of incapacity payments at 100 per cent of a person’s NE, a step down in incapacity payments will occur. Therefore, once a section 10 transfer of rehabilitation authority occurs and a person becomes a former member, the incapacity “step-down” can be applied. Further information about the “step down” can be found in Chaper 7 of the Incapacity Policy Manual.

• Special Rate Disability Pension (SRDP)

SRDP provides an alternative form of periodic compensation, instead of incapacity payments, for people whose capacity for work has been severely restricted because of conditions due to military service. SRDP is not automatically granted.  Eligibility for SRDP can only be assessed and considered once a person is regarded as a former member for the purposes of the MRCA.

When a section 10 transfer of rehabilitation authority is appropriate

A section 10 transfer of rehabilitation authority should only be considered when:

• the person is a non-CFTS Reservist – this includes part-time, inactive and standby Reservists or a cadet;
• DVA has accepted liability for a service injury or disease;
• the person has separated from the ADF and remains on the ADF standby/inactive reserve list, but is not parading and has no active involvement in the Reserves;
• there is medical evidence that the person is unlikely to be able to return to Defence service due to the incapacity resulting from their accepted conditions;
• a determination has been made that the person is eligible for incapacity payments; and
• the ADF/R4R rehabilitation consultant has an assurance that the person is fully informed about the implications of a section 10 determination, and understands the impact that the transfer of rehabilitation authority will have on their rehabilitation, compensation and treatment.

Where these circumstances are met, a transfer of rehabilitation authority can be considered. To enable the transfer to occur, a delegate of the CDF must provide a written determination to the MRCC that the non-CFTS Reservist is unlikely to be able to perform their defence duties in the future as a result of their incapacity. It is important that consideration of the person’s capacity to perform the duties of a Reservist is not limited to their pre-injury employment. A transfer of rehabilitation authority under MRCA section 10 should only be considered when it is clear that the person has no capacity to perform any Defence duties, due to their accepted conditions.

Process for transferring rehabilitation authority under section 10

A section 10 determination must be made in accordance with section 10(4) of the MRCA. Section 10(4) requires that the determination includes the date from which the person to have ceased to be a member of the ADF for the purposes of the MRCA. The date must not be retrospective and a determination must be made separately for each client. Upon receiving the determination, the MRCC will automatically become the rehabilitation authority on and from the date specified in the determination.

A transfer of rehabilitation authority without the consideration or consent of a client can create barriers to the person fully participating, and being committed to, a DVA whole-of-person rehabilitation program. For this reason, it is important that the person understands the implications of a section 10 transfer of rehabilitation authority, and that DVA receives assurance from the ADF Rehabilitation consultant that the person has been fully informed about the implications of request for a transfer of rehabilitation authority. An information sheet has been prepared to assist with this process.

Revoking a section 10 determination 

If a section 10 transfer of rehabilitation authority occurs, there is no impact, legislatively or otherwise, on the ADF’s ability to re-activate a  person to perform defence duties at any time in the future. This may include a transfer to the Active Reserves or to CFTS. For example, there may be instances where a person recovers from their injuries to an extent that they are able to perform Reservist duties again. Under these circumstances, Defence may revoke the section 10 determination

If a person is transferred back to active ADF duties, and/or a section 10 determination is revoked, the person will automatically become a member again for the purposes of the MRCA and the CDF will becomes their rehabilitation authority again. This will apply from the date that the person returns to their defence duties, or DVA receives notification that the section 10 determination has been revoked. It is important that DVA is kept informed in all instances where this is being considered. This is because the DVA Rehabilitation Coordinator and the client’s rehabilitation provider will need to be able to answer any queries that the person may have.