Delegates may only determine an entitlement to incapacity payments where the Commonwealth has already accepted liability for the injury that caused (or contributed to) that incapacity.
Investigation of the incapacity may commence without liability but no payments in relation to the claim can be made until such time as liability is accepted and for those with liability under the MRCA, a Needs Assessment has been undertaken in accordance with S325(2). Such payments are not lawful.
2.2.1 What is the effect on incapacity payments if liability is revoked?
Where liability for a condition for which incapacity has been paid is revoked, recovery is the default position of DVA and overpayment policy should be applied.
Consideration should be given to whether the person was appropriately briefed on the potential for overpayment before proceeding with the liability reassessment. There must be good reasons to apply either a write-off or waiver, noting the former is preferred as this allowas for future recovery in the event that the persons circumstances change. How to proceed will depend on the individual circumstances of the case.