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:
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).
A claim for compensation under S54 does NOT constitute an 'Application' for compensation for permanent impairment for the purposes of S27(3).
Rather, the client must have made a specific, written application for compensation for permanent impairment under S24 and/or for non-economic loss under S27. Such an application would usually be in one of the following forms:
A general enquiry about possible entitlements, or a request for compensation without mentioning 'permanent impairment', 'Section 24', 'Section 27', 'non-economic loss' or some other explicit, equivalent term should not be accepted.
An application must be in written form. This includes applications received by facsimile or by e-mail.
For the purposes of S27(3), policy is that an application is 'made' when it is actually received by DVA or, if the application is given to Comcare or the ADF, when it is actually received by those bodies.
In most cases, a date stamp on the document, or its entry in a register, should be taken as best evidence of the date of receipt, however this presumption about date of receipt may be set aside by other evidence in the particular circumstances of the case.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20902%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20762%23comment-form
[3] https://clik.dva.gov.au/user/login?destination=node/20773%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20723%23comment-form
[5] http://www.comcare.gov.au/Forms_and_Publications/publications/our_lists/jurisdictional_policy_advice/january_1999_-_december_2006/jpa_200113
[6] http://www.comcare.gov.au/Forms_and_Publications/publications/our_lists/jurisdictional_policy_advice/january_1999_-_december_2006/jpa_200104
[7] https://www.legislation.gov.au/Series/C2004A00920
[8] http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/1994/974.html?stem=0&synonyms=0&query=title(Schlenert%20and%20Australian%20and%20Overseas%20Telecommunications%20Corporation%20)