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2.4 Need for ACCURACY in Death Claims - S56 Prohibits 2nd Determinations


Nothing in the above Part 2.3 about the urgency of claims for recent deaths should be taken to imply that speed is preferred to accuracy in cases where there is a conflict between the two. In fact, the correctness of the final determination is absolutely vital to Death cases and should be regarded as paramount to all other considerations.

Subsection 17(10) of the SRCA says:

Ss17(10) Where claims for compensation under this section are made by or on behalf of 2 or more dependants of a deceased employee, Comcare shall make one determination in respect of those claims

Claims made by or on behalf of 2 or more dependants of a deceased employee may be made on 1 or more Claim for compensation of Funeral expenses and/or Death Benefits for Dependants of deceased members and former members of the Australian Defence Force Forms but must all be determined at one time and in the same determination.

Section 56 of the SRCA also says:

S56 Where an amount is paid to, or in accordance with the directions of, a relevant authority under Subsection 17(3) or (4), for the benefit of a dependant of a deceased employee, by whom, or on whose behalf, a claim was made for compensation under Section 17, no other dependant of that employee is entitled to claim compensation under that section after the day on which that amount is so paid.

In fact the scheme of the Act is rather, that S17(3) and (4) provides a single lump sum only, and the delegate is constrained to make a single determination which makes a once-only division of that lump sum between all claimants.

However the reverse side of S56 is that, where the claim of a particular dependant with a good case for entitlement is not made known to the delegate before that once-only determination, there is no legislative basis to pay that person should they emerge at a later date. This situation has practical effect as instances have occurred in the past, particularly in relation to ex-nuptial dependent children.

Delegates should exercise particular care in determining who was financially dependent upon the deceased, to the extent of requiring details of persons to whom the deceased made pay allotments, or in respect of whom did the deceased contribute child support through the Child Support Agency etc.

In cases such as the above or in other cases involving the division of the SRCA lump sum between persons on the basis of claimed loss, delegates should guard against sacrificing the completeness of an investigation for the need to make an urgent determination. In cases of 'error' or where new claimants unexpectedly emerge, the only available corrective action is to withdraw and re-determine the original determination as a 'reconsideration on own motion' under S62. There is no prospect of awarding any more than the single maximum lump sum amount. Adjustments therefore inevitably require the recovery of funds from the earlier-known individuals who may have already spent that lump-sum share, thus causing a high degree of hardship and distress.