This section contains information about non-compliance with the rehabilitation process. This occurs where a client fails to meet their obligations to fully participate in their rehabilitation program.
Under sections 36(4) of DRCA [3] and section 50(1) of MRCA [4], a client can be found to be non-compliant if they fail or refuse, without reasonable excuse, to undergo an examination or assessment to determine their capability of undertaking a rehabilitation program.
Under sections 37(7) of DRCA and section 52(1) of MRCA, a client can be found to be non-compliant if they fail or refuse to undertake a rehabilitation program, without reasonable excuse.
Non-compliance under DRCA can lead to suspension of compensation entitlements (but not compensation for medical treatment). The authority to make a decision to suspend compensation under DRCA is delegated at the level of APS3 and above.
Non-compliance under MRCA can lead to suspension of compensation entitlements (but not compensation for medical treatment). The decision to suspend compensation under MRCA is delegated at the level of EL1 and above.
Rehabilitation providers are expected to liaise with the DVA Rehabilitation Coordinator as soon as practicable, where a client is non-complaint with their rehabilitation or unable to be contacted at any stage of the rehabilitation process.
It is the responsibility of the DVA Rehabilitation Coordinator to proactively manage and communicate with clients about any issues that may arise during the rehabilitation process. Rehabilitation providers must not be asked to inform clients of any concerns that a Rehabilitation Coordinator may have, or communicate any decisions that a Rehabilitation Coordinator may have made about the client’s compliance with their rehabilitation obligations. This is because DVA Rehabilitation Coordinators have the authority and responsibility under the legislation to discuss such issues with the client. The primary responsibility of the Rehabilitation Provider, is to facilitate the provision of rehabilitation support and services to the client.
A decision that a client has been non-compliant should be an option of last resort only. Good communication is the key to resolving any issues that may arise before suspension of a client's compensation payments is considered. It is expected that the rehabilitation provider will discuss any concerns that the client may have about meeting any of their rehabilitation obligations and expectations, and offer flexible solutions as appropriate. This is particularly important where a client has been experiencing ongoing barriers to their rehabilitation, or has experienced a change in their health status or their personal circumstances. It is essential that a client is not found to be non-compliant where there is a reasonable excuse for their actions.
Non-compliance may be considered as an option of last resort in situations where a client fails to undertake the following actions, without reasonable excuse:
Please note that this is not an extensive list but includes many of the key activities that a rehabilitation client would be expected to participate in as part of their rehabilitation program.
Under sections 50 and 52 of the MRCA [4] and sections 36 and 37 of the DRCA [3]clients are obliged to:
attend medical or other assessments of their capacity to undertake a rehabilitation program when DVA requests that they do so; and
fully participate and cooperate in their rehabilitation program.
If the client fails to meet these obligations without reasonable excuse, their compensation payments may be suspended. The client’s entitlements to medical treatment will not be affected, even if the compensation payments are suspended.
Suspension of compensation payments should be an option of last resort and should only take place where all reasonable steps have been taken to resolve the issue of non-compliance with the rehabilitation process.
It is important that the Rehabilitation Coordinator takes a whole-of-person approach when working to resolve issues of non-compliance. This includes being aware of other issues that may be impacting on the client’s willingness to undertake a rehabilitation assessment or their ability to participate in their rehabilitation program in a positive way. For example, the client may have lodged a claim for permanent impairment payments, which is taking some time to resolve, and may be impacting on their ability to focus positively on working towards their rehabilitation goals, or to engage positively with the department. Where there are concerns raised about a client’s participation in the rehabilitation program, it is important that the Rehabilitation Coordinator develops a clear understanding of the client’s circumstances by:
Where a client presents a reason for their non-compliance, the Rehabilitation Coordinator must consider whether the client had a reasonable excuse for their failure for meet their obligations. Any reasons provided by the client should be acknowledged, and if not considered valid, a warning letter with clear information as to why the reason is not considered valid, and the potential consequences of their non-compliance must be sent to the client.
It is mandatory that R&C ISH standard letters are used when communicating with clients about potential non-compliance. Letters generated from R&C ISH will automatically attach to the client’s UIN folder in TRIM.
If a decision is made to suspend compensation entitlements, this must be communicated to the client in writing, outlining the reasons for the decision. It is mandatory that R&C ISH standard letters are used when communicating with clients about non-compliance with their rehabilitation participation. Letters generated from R&C ISH will automatically attach to the client’s UIN folder in TRIM.
The power to suspend compensation payments (but not access to treatment) due to non-compliance is delegated to different APS levels under the MRCA and DRCA. It is vital that the determination letter to the client is signed by a DVA delegate at the appropriate APS level.
Section 2.9.2 of the Rehabilitation Policy Library [6] explains who has the power to suspend a client's compensation payments under sections 50(1) and 52(1) of the MRCA.
Section 2.9.1 of the Rehabilitation Policy Library [7] explains who has the power to suspend compensation payments under sections 36 and 37 of the DRCA.
The incapacity delegate will receive an alert through R&C ISH when a plan is closed due to non-compliance. It is essential that the Rehabilitation Coordinator liaise with the client’s compensation delegates, particularly the incapacity delegate, to ensure that they are fully aware of any actions that must be taken.
Once a decision is made to suspend compensation entitlements, a client loses the right to claim retrospective entitlements for the period of suspension. Entitlements can only be reinstated on and from the date upon which the person actually becomes compliant with their rehabilitation obligations.
A determination to reinstate benefits following suspension must be provided, by the incapacity delegate, to the client in writing, outlining the reasons for the determination. Delegates are asked to refer to information in chapter 11.2 of the Incapacity Policy Manual [8]for specific information about reinstatement about incapacity payments. Section 2.9.2 of the Rehabilitation Policy Library [6] explains who has the power to reinstate a client's compensation payments under the MRCA.
It is essential that all actions are clearly documented in R&C ISH and any relevant documentation is uploaded as an attachment to the client’s R&C ISH case.
The importance of thorough and complete documentation is imperative in this process. If an activity is not documented it will be seen as not having occurred. The chain of evidence is broken and the activity cannot be substantiated. It is mandatory that R&C ISH standard letters are used when communicating with clients about suspension and reinstatement of compensation payments. Letters generated from R&C ISH will automatically attach to the client’s UIN folder in TRIM and any other relevant correspondence should be uploaded as an attachment to the client’s R&C ISH case.
Following suspension of benefits it is not sufficient for a client to merely agree to comply, for benefits to be reinstated. The client is required to demonstrate their compliance by their actions.
If a client's benefits have been suspended because they failed to attend a rehabilitation assessment or other appointments arranged as part of their rehabilitation program, then they must attend that appointment before benefits can be reinstated. On the day the client attends the appointment, benefits should be reinstated. If the client and or the rehabilitation provider are unable to reschedule the appointment for several days, then the suspension remains in place until the appointment takes place.
In some instances a client's non-compliance may have longer term implications. For example, where a person fails to undertake a training course and the rehabilitation program is delayed for up to a semester of study. Each case must be considered on its own facts.
However, the general principle is that once a person recommences their rehabilitation program then their benefits should be reinstated. Where a client repeatedly frustrates the rehabilitation process, consideration may be given to whether using the deeming provisions, outlined in section 2.7 [10] of this manual, is appropriate.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/21110%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=comment/reply/21094%23comment-form
[3] https://www.legislation.gov.au/Series/C1988A00156
[4] https://www.legislation.gov.au/Series/C2004A01285
[5] https://clik.dva.gov.au/user/login?destination=comment/reply/21108%23comment-form
[6] https://clik.dva.gov.au/rehabilitation-policy-library/2-legislative-provisions/29-delegations/292-delegations-rehabilitation-powers-under-mrca
[7] https://clik.dva.gov.au/rehabilitation-policy-library/2-legislative-provisions/29-delegations/291-delegations-rehabilitation-powers-under-drca
[8] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/incapacity-policy-manual/11-reduction-suspension-and-cessation-incapacity-payments/112-suspension-benefits
[9] https://clik.dva.gov.au/user/login?destination=comment/reply/21109%23comment-form
[10] https://clik.dva.gov.au/rehabilitation-policy-library/2-legislative-provisions/27-deeming-client-able-earn