Subsection 17(10) of the SRCA requires that in the case where there are several claimants who are claiming compensation for a death, delegates must make one determination only in respect of all of those claims. Additionally, Section 56 of the SRCA requires that once the determination for death benefit has been issued and paid, no other claimant can be included. This issue has been dealt with in more detail at 2.4 [4].
The Defcare standard letter database contains two death determination templates. The first relates to the general case involving SRCA/ADB issues only, payable specifically to a 'spouse' and the second differs only in appending advice on 'offsetting arrangements' i.e. where a claimant may have an additional entitlement to a VEA widow's pension or other VEA benefits. The second version (i.e. including advice on offsetting) is a determination to the effect that compensation is payable but this SRCA amount will not be paid unless the client signifies consent by returning an attached form.
Both of these standard-letter death determination templates relate to only the simplest death case, i.e. where the deceased ADF member left a wholly dependent spouse living with wholly dependent children. Neither form of determination is appropriate where the delegate may be dealing with a dependant other than a spouse, more than one wholly dependent adult dependants, dependants now living apart from each other, or (e.g.) several partly dependent dependants etc.
These standard templates will therefore, in many cases, require some modification to be useful or valid forms of determination. To meet the requirements of Ss17(10) over a very wide range of possible circumstance, plus the need to properly advise all parties to the determination (including those applicants who did not achieve a payment) and the need to allow an applicant to exercise options under the VEA, delegates should construct a determination tailored to the circumstances, as follows:
(and furthermore there were no other applicants) the basic 'Death Determination' template in the Defcare database may suffice.
(and furthermore there were no other applicants) the basic 'Death Determination' template in the Defcare database may be modified to suit the circumstances:
Ss17(10) requires that the whole matter be resolved by a single determination. This does not, however, mean that information about amounts payable to all dependants should be made available to all. Therefore, unless an adult has claimed on behalf of both themselves and a child under 18, where the delegate determines that more than one person is entitled to share a lump sum under subsection 17(3) or 17(4), the standard Defcare template is not an appropriate template. Instead an alternative letter is being included in Defcare that relates specifically to this situation.
Using the alternative letter, the delegate will advise each of the entitled persons separately of the amount payable to them. If the partner has claimed on behalf of a child under 18, information about the amount payable to that child will be sent to the partner.
A different version of this determining instrument is to be sent to each of the adult dependants.
Letters to persons who applied for compensation but who did not receive payment should give reasons for the decision.
Letters to partly dependent persons who did achieve a share in the lump sum, should explain how the amount payable was quantified, i.e. the formula used for calculating 'loss', and the data entered into that formula.
In summary, each letter should set out the reason for the decision and should also attach the DVA Factsheet about Reconsideration/Appeal Rights.
Reimbursement of the costs of medical attention to the dying employee, transport of his/her body and the costs of a funeral are payable not to any particular dependant on the basis of relationship, but to the person who actually paid that cost. This may of course be a person other than a spouse or child or even someone other than a 'dependant' of any description. Furthermore where those S16/S18 services remain unpaid, the appropriate amount as allowed by the SRCA may be paid by directly to the provider (i.e. doctor, ambulance service, undertaker).
Ss17(10) requires a single determination only where the claim is for compensation under Section 17. Thus, there is no reason why S16 and S18 entitlements need to be dealt with in the same determination that awards the S17 lump sums. In fact, it is more efficient and convenient in most cases to determine such matters separately.
The existing Defcare standard letter/determination with respect to Section 17 death entitlements (i.e. a determination format which assumes a spouse and joint children as the only entitled persons) includes, as the 'default' entitlement, provision for S16 and S18 determinations. These may be retained if convenient but in most cases – and no matter who may be entitled under S17 – the service providers will be pressing for payment well before the S17 matter is ready for determination. In this case it is recommended that the delegate make a separate determination in respect to these reimbursements.
Where paying the service provider direct, it is not enough to simply pay the account via Defcare/Dolars. Delegates will also need to raise a formal determination under S16 or S18. This should take the form of a letter to the claimant/provider. Where the claimant is also the service provider, delegates should make a separate determination for each service, i.e. as many determinations as there are providers, in order to preserve privacy and the business confidentiality of those providers.
Occasions may arise when one of the persons eligible to receive compensation under S17 of the SRCA also has a potential entitlement under the Veterans' Entitlements Act (VEA). This may occur, for instance, if the ADF member dies while on declared Operational Service overseas.
Where a spouse or child may have a dual entitlement, offsetting provisions of the VEA may reduce or eliminate that VEA entitlement to pension, should the spouse or child accept a S17 lump sum under the SRCA. It is therefore the delegate's duty of care to ensure that a dependant with potential for establishment of a dual entitlement is aware that these offsetting provisions exist.
The 'death' section of the Defcare standard letter database contains in fact, two determination letters, both identifying only the employee's spouse (and their joint children) as a lump sum recipient. One of those alternative letters contains an additional section entitled 'Important Offsetting Provisions' which informs the spouse or guardian of the potential for SRCA lump sums to affect VEA pensions, and advises the spouse or guardian or guardian to contact the Department for more detail, if required. The letter tells the spouse or guardian that although the delegate has formally determined that compensation is payable, actual payment will not be made till the spouse or guardian completes and returns an enclosed form accepting the payment.
That method of providing advice may still suffice, but only in those specific circumstances i.e. where the dependant is the only claimant. Where several adult individuals are involved in a joint determination as required by S17(10) the matter of whether the spouse is to refuse payment should be resolved well before the joint determination is issued.
Delegates should therefore write to the spouse after the amounts payable are known but prior to issuing any determination. This advisory letter should list only those amounts which may be payable to that spouse (i.e. not include amounts payable to others) and it should be clearly stated that this is a preliminary advice of amounts which will become payable shortly, and it is not itself a determination. Note: Payments made under the Defence Act 1903 are not part of any offsetting arrangements hence this advice should relate only to payments made under S17 of the SRCA. The letter should then insert the form of words used under the heading 'important offsetting arrangements' in the current Defcare letter. This section advises the widow to seek financial advice prior to making any decision regarding compensation. The letter should also enclose the form 'Election to receive compensation under S17...'
The spouse should be given 14 days to return the election form. The letter should tell the spouse that if the entitlement is not declined by means of that form within 14 days, the amount indicated would be paid. Nevertheless, in practice no payment can be made until the spouse provides his/her bank account details so that the money can be deposited therein. This may well extend the 14 days.
Note: This section is only about the advice to be provided to persons inquiring about the possibility of taking legal action against the Commonwealth for the death. The actual interaction of S17 and S44 is dealt with in more detail at 9.1 [11] to 9.12 [12].
Section 44 of the SRCA prevents persons taking legal action against the Commonwealth in respect to any circumstance for which the SRCA provides compensation, EXCEPT that an employee's dependent does retain a residual right to sue the Commonwealth in the case of death only. The relevant court would determine the matter on the basis of the dependant's demonstrated financial losses due to the death. The court would also take the Commonwealth's negligence and the employee's contributory negligence into account.
Persons who claim to have been financially dependent upon the deceased but who are not entitled to S17 SRCA compensation may be advised to seek legal advice with respect to S44. Delegates should also advise persons who themselves initiate the matter, i.e. ask about alternatives to an SRCA claim. Delegates should state clearly that a common law case is possible under law but must refrain from expressing an opinion about the wisdom of such action or any perceived likely outcome. Clients should be advised to seek professional legal advice on such matters.
Delegates should always inform such an inquirer that, were such a legal action against the Commonwealth (or against a third party) to be successful, this would, with but for those exceptions outlined in 9.4.1 [13] end the litigant's SRCA entitlements (if any). Any lump sum already paid would have to be repaid. These consequences are discussed at 9.3 [14] and 9.4 [15]. Furthermore, under all circumstances inquirers should always be told to seek professional legal advice with respect to any legal action they may be contemplating.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20596%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20591%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20654%23comment-form
[4] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-2-claims/24-need-accuracy-death-claims-s56-prohibits-2nd-determinations
[5] https://clik.dva.gov.au/user/login?destination=node/20644%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20587%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/20671%23comment-form
[8] https://clik.dva.gov.au/user/login?destination=node/20667%23comment-form
[9] https://clik.dva.gov.au/user/login?destination=node/20655%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/20641%23comment-form
[11] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/91-s44-inapplicable-re-death-cases-ie-legal-action-vs-commonwealth-possible
[12] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/912-commonwealth-may-take-over-proceedings-against-third-parties-s50
[13] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/941-action-aginst-third-parties-instituted-or-taken-over-mrcc
[14] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/93-actions-against-commonwealth-limitation-s48
[15] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/94-actions-against-third-parties-ie-recovery-damages-and-s48