Section 12 of the MRCA requires that in order for compensation following death to be payable, the member must have met at least one of the following criteria:
- the MRCC has accepted liability for the death; or
- the member satisfied the eligibility criteria in section 199 of the MRCA at some period of his or her life; or
- the MRCC has determined that the impairment suffered by the deceased member before his or her death as a result of one or more defence-related injuries constituted 80 or more impairment points. The 80 points can be made of a combination of impairment points from the MRCA and other legislation as per the transitional methodology contained in the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004.
Section 12(2)
If a person has been made SRDP eligible prior to their death they satisfy section 12(2). If the person has not already been made SRDP eligible, the Commission is able to retrospectively consider whether the deceased person would have met the eligibility criteria under seciton 199 during some period prior to their death. In this case a SRDP determination is not required and instead a determination can be made under section 12(2).
While each section 12(2) determination is assessed on the evidence, there are some general scenarios to consider. Should a case arise that requires additional assistance, please direct your queries to Benefits and Payments Policy.
Examples:
Following the death of a veteran, their dependants have lodged a claim for dependent compensation. The veteran's death could not be accepted as service related. The veteran had not been assessed as SRDP eligible prior to their death and does not have 80 or more impairment points.
The delegate is now considering whether the deceased veteran would have met the eligibility criteria under seciton 199 during some period prior to their death.
In each of the examples below the person satisfied the criteria prior to their death around receiving incapacity payments (or would have been if not for receiving a superannuation amount or having their payments redeemed) and were assessed as 50 or more impairment points.
Example 1
The veteran had a terminal illness that caused their death. Prior to their death they had continued to work more than 10 hours per week.
In this case the veteran would not meet the SRDP eligibility criteria during some period of their life (as they were able to work more than 10 hours per week up until their death) and section 12(2) was not satisfied.
Example 2
The veteran had a terminal illness that caused their death. Prior to their death the veteran had been unable to work at all due to their illness. This was supported by evidence (a medical certificate and closure of the return to work rehabilitation plan). The veteran had been previously denied SRDP eligibility as an assessment a number of years prior to their diagnosis indicated the veteran may be able to return to work.
In this case, as the veteran was unable to work more than 10 hours per week (and rehabilitation was unlikely to increase that capacity as evidence by rehabilitation plan closure), it would be reasonable to consider the person would have met criteria 199(1)(d) and would have satisfied the SRDP eligibility criteria at some point in their life (and 12(2) is satisfied).
Example 3
The veteran had been consistently working 25 hours per week, when they died suddenly. As the veteran was able to work more than 10 hours per week, they would not satisfy 199(1)(d) and would not have been SRDP eligible during some period of their life (and 12(2) would not be satisfied).
Example 4
The veteran was participating in a rehabilitation plan with a return to work focus when they died suddenly. Medical evidence current at the time of the death indicated the veteran was capable of working more than 10 hours per week or would have been following rehabilitation. In this case the veteran would not satisfy 199(1)(d) and would not have been SRDP eligible during some period of their life (and 12(2) would not be satisfied).
Example 5
The veteran had several accepted conditions but had previously been assessed as not eligible for SRDP following a rehabilitation assessment. The accepted disabilities deteriorated significantly until the veteran was no longer able to work or participate in vocational rehabilitation. This was supported by evidence (a medical certificate and closure of the return to work rehabilitation plan). The veteran died suddenly, and the cause is under coronial investigation. Whether or not the death is ultimately found to be service related, it would be open to find the person satisfied the SRDP eligibility criteria during some period of their life, and 12(2) is satisfied.