The entitlement to NEL for pre-1/12/1988 clients was contrary to the original intention of the 1988 Act and was expressly excluded by the insertion of new S27(3) into the SRCA by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 which commenced on 1 October 2001. Subsection 27(3) states:
27(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
The date of introduction of the Bill was 7 December 2000. Accordingly, an application for PI lump sum compensation made on or after Thursday 7 December 2000 is affected by the new NEL rules. An application is 'made' when it is received by DVA or another relevant authority.
The new rule that NEL is not payable under S27 applies to clients whose compensable impairment became permanent before 1 December 1988 and who made an application for compensation for permanent impairment (under S24 and/or S27) on or after 7 December 2000 (either as new claim or as a reassessment).
The new NEL rule does NOT apply to clients in the following circumstances:
- the client's date of injury is on or after 1 December 1988, or
- the client's pre-1988 impairment became permanent on or after 1 December 1988, or
- the client made a written application for compensation for permanent impairment before 7 December 2000.
Note that, where a person applied for compensation for permanent impairment before 7 December 2000 and an interim payment under S25 was made because the impairment was not yet stable, the client is entitled to a NEL payment when a final assessment is made, whether or not the request for reassessment was made before or after 7 December 2000. In this case, the original application for compensation is taken to preclude the effect of S27(3).