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5.12 Additional Payment for Severe Impairment
5.12.1 Eligibility for additional compensation payments
Section 80 makes provision for severely impaired people to be considered for additional amounts of compensation. Additional amounts of compensation can be considered where all of the following criteria is met in relation to s 80(1);
- The impaired person has been paid, or is entitled to be paid, MRCA PI (this means the claim must first meet the required thresholds for compensation to be paid, including for transitional clients, the 5IP threshold requirement at step 2(a) of Chapter 25 of GARP M); and
- The degree of impairment suffered constitutes at least 80 impairment points (for transitional clients this can be from a combination of MRCA, VEA and/or DRCA total impairment points as assessed at Step 1 of Chapter 25 of GARP M), and
- The impaired person has received any amount of compensation under MRCA in respect of their impairment, or
- They would be entitled to receive compensation in respect of their impairment, but because of the transitional arrangements that apply at Step 7 of Chapter 25 of GARP M, the actual compensation paid is nil.
Where a veteran pursues a common law action under s 389, decision makers must contact Benefits and Payment Policy for tailored guidance on these individual cases.
5.12.2 Eligibility for additional compensation
Once this criteria is met, s 80(2) specifies that the claimant is entitled to receive an additional lump sum payment for each person who is both a dependant of the impaired person and an eligible young person. The amount payable is indexed annually. The current amount can be found in the Comp and Support Library under current payment rates. The applicable payment rate for the additional lump sum payment will be as of the date we determine compensation is payable and advise the client they are eligible for the payment.
This additional amount is payable for each person who was both an eligible young person and a dependant of the impaired person at the later of:
- the date determined by the delegate to be the date that the claimant's impairment constituted at least 80 IPs; or
- the date on which the claim for liability was made; or
- where more than one injury or disease resulted in the person reaching 80 impairment points, the date on which the most recent claim for liability for one of those injuries or diseases was made.
For the purposes of s 80(2), a ‘dependant’ means any person mentioned in s 15(2) (for example, a child, spouse or other dependant of the impaired person) who is wholly or partly dependent on the impaired person, or would be but for that person’s relevant incapacity (s 15(1)). ‘Eligible young person’ means a person who is under 16 or certain persons who are 16 or more but under 25 (broadly, persons receiving full-time education and not engaged in full-time employment or work) (s 5).
In summary, an impaired person is entitled to additional compensation under s 80 in respect of each dependant of that person, provided that the dependant is:
- an eligible young person at the time referred to in s 80(2) (the ‘relevant time’) – broadly, the later of the date of determination by the Commission that the impairment threshold was met or the date a relevant claim was made under s 319 of the MRC Act; or
- born alive after the ‘relevant time’ but conceived before that time (s 80(3)(a)); or
- adopted on or after the ‘relevant time’ but in respect of whom adoption proceedings were begun before that time (s 80(3)(b)).
In a determination dated 25 June 2017, a client is advised they have 80 impairment points and is entitled to receive PI compensation at the maximum rate. The date at which they met the 80 point threshold was 1 April 2016. The date of effect for the purposes of PI compensation and calculating the arrears payable is from 1 April 2016. On 5 July 2018 DVA receives the relevant information required to establish each dependant meets the criteria of an eligible young person and processes the payment for additional lump sum/s to the client. The following dates apply for additional lump sum payment purposes:
1 April 2016 – the date the former member met 80 impairment points, is the date that the criteria for dependency and EYP must be met by any child, spouse or other dependant of the veteran; and
5 July 2018 – is the date utilised when determining the applicable rate of payment for the additional compensation under section 80 of MRCA. This date will also be the date the payment is processed and paid to the veteran.
Therefore in this example, a child, spouse or other dependant of the veteran who meets the criteria for section 80 payment as at April 2016 will attract an additional lump sum payment payable to the veteran as at the rates in July 2018, being the 2018/19 indexed rate.
5.12.3 Other Dependants who meet the eligibility criteria of EYP
While most payments under section 80 will be paid due to the client having a child who is both a dependant and an eligible young person, it is possible for a wholly dependent partner or other dependant to also meet the eligibility criteria for a section 80 payment to be paid.
This will occur where, at the time of the veteran reaching the 80 point threshold and receiving compensation at the maximum rate, the veteran's partner or other dependant was under the age of 25, in full-time study, and not engaged in full-time work, while being financially dependent on the veteran.
5.12.4 Dependency in context
While guidance on dependency can be found elsewhere on CLIK (Chapter 7.5.2. of this manual is useful), assessing dependency for s80 does not require establishment of a certain level of dependency to calculate a payment. An eligible young person is either financially dependent on, or not financially dependent on, the impaired person for the purposes of this payment.
Practically speaking, 'dependency' requires a consideration of the relationship of economic support between the impaired person and the eligible young person. A practical approach is to consider the financial contribution provided consistently over a period of time towards the total cost of the dependant in maintaining the necessities of life at the standard of living enjoyed. The simplest example is where a dependant relies on the impaired person for 100% of their economic support. In the s 80 context, this would be seen as determinative.
However, a relationship of economic support may exist where the impaired person is only partially responsible for the economic support of the eligible young person. The Commission takes a lenient approach to these cases, such that, where an impaired person provided more than a token proportion of the total economic support provided from all sources to the eligible young person, the payment should be made.
This must be considered in the context of the individual case. For example, where an eligible young person receives $50 per week from his mother (the impaired person) before the 80+ point determination, but the eligible young person lives with his father and step-mother who are otherwise responsible for all economic support to the eligible young person, it would be unrealistic to suggest that the eligible young person is dependent economically on the impaired person.
The question to ask as a delegate is: “Would the eligible young person be impacted in a real sense if the economic support provided by the impaired person was no longer provided?”
Benefits and Payments Policy are happy to consult on any borderline cases, but in line with the MRCA being a beneficial legislation, an interpretation that favours granting the benefit will usually be preferred.
5.12.5 Section 80(3) IVF consideration
The purpose of s 80 is to provide the impaired person with compensation to assist the person with the expenses associated with raising the children they have at the relevant time, as well as any child they might have (barring intervention of some kind) as a result of a pregnancy or adoption proceedings that commenced prior to the relevant time. The impaired person is not, however, entitled to assistance under s 80 in respect of any subsequent child they have where the child is conceived, or adoption proceedings commenced, after the relevant time.
Thus, there is a clear distinction between children of an impaired person who existed, or were on their way or growing into existence, at the relevant time, and children who might come later. The impaired person is entitled to compensation in respect of the former, but not in respect of the latter.
While the reason for this distinction is not made explicit in the MRC Act, it would seem to be because the impaired person should be taken to be compensated in respect of the circumstances they find themselves in at the relevant time (whether those circumstances include a child already born or a child on the way). In other words, it seems that the intention was that the impaired person not be placed in an inferior position merely because they have children or are expecting children (in the sense described above), which, at the relevant time, is a circumstance beyond their control.
It is of course a different situation where an impaired person chooses to have a child at a later date with the knowledge of their impairment (as the relevant circumstances are within the control of the impaired person). That is, the impaired person can be taken to comprehend the situation they are in at that time (including their financial situation), and the consequences of choosing to have a child (or additional children), and can make a decision accordingly.
Therefore, the Military Rehabilitation and Compensation Commission (MRCC) view of the meaning of ‘conceived’ in s 80(3)(a) of the MRC Act is the commencement of pregnancy, which, in the context of in-vitro fertilisation (IVF), broadly equates to implantation of the fertilised egg in the uterus. This interpretation is consistent with authority on the ordinary meaning of the term ‘conceived’, and is the most logical reading of the term for the purposes of s 80 of the MRCA. The MRCC made this determination based on advice from the Australian Government Solicitor (AGS).