7. Obtaining information and giving advice
7.1 NDIA may give advice to a person who has suffered an injury
A person who has suffered an injury and is considering a compensation settlement or other agreement that might be relevant to the NDIS may seek advice from the NDIA on the likely compensation reduction amount (External website) (external), or elements of the likely compensation reduction amount that would apply to the settlement or agreement.
No action lies against the NDIA or any officer in respect of advice given as outlined above (rules 3.8 and 3.9 of the Compensation Rules).
7.2 NDIA has power to obtain information
For the purpose of undertaking the functions set out in this Operational Guideline, it is important for the NDIA to obtain information relating to compensation received or given up by a participant or prospective participant.
The NDIA has power to require persons, including participants, prospective participants and third parties to provide this information under the NDIS Act (sections 36, 53 and 55). See also Operational Guideline – Information Handling.
In some situations a participant will have received a compensation settlement under an agreement that requires the parties to keep the terms of the settlement confidential. If the NDIA requests information from a person about a compensation settlement and they resist responding because of a confidentiality clause the NDIA staff member must consult the Legal Services Branch for assistance. It is the NDIA’s general position that these non-disclosure and confidentiality clauses do not prevent the person from complying with the NDIA’s request.
7.3 Obtaining the required information
The NDIA will ask a prospective participant or participant with a compensation award or entitlement the following questions in order to obtain the basic information required to assess the effect of the compensation on reasonable and necessary supports.
Where compensation may have been awarded in the past the questions are:
- Have you received compensation?
- If the answer is ‘yes’, what event or injury occurred to bring about the compensation payment or payments? When did the injury occur?
- Can you provide a diagnosis of functional assessment?
- When was the compensation paid, or if was paid by way of regular payments, when did these payments start?
- How much was the compensation or, if paid on a regular basis, how much is paid and how frequently?
- Can you provide a breakdown of the proportion of the compensation amount which relates to future attendant care, equipment, therapy, loss of income, pain and suffering etc.?
- What papers can you provide describing the compensation and what it covers?
- If you have no papers, would there be a lawyer or other person who knows about the compensation? If so, would you be prepared to sign a paper asking the lawyer or other person to assist you by answering our questions and requests?
- If there are no papers and no lawyer or other person involved, what did you understand the compensation to cover? How was it supposed to be used?
- If the compensation was paid as a lump sum what has become of the funds? How have they been spent? How was the money invested?
- Has Centrelink or any other organisation taken your compensation into account to reduce or suspend any social security or other government payments you would have otherwise been paid or to require a repayment of any kind?
- Have you yourself paid for any supports or services because of your accident?
Where compensation has not yet been claimed the questions are:
- What event or injury occurred to bring about the possible compensation payment?
- What steps, if any, have you taken to obtain compensation?
- If no steps have been taken as yet do you intend to claim compensation?
- If the prospective participant or participant does not know, ask ‘Do you need more information in order to make a decision or would you rather just not pursue the matter?’
- If the person does not intend to claim compensation ask ‘Why do you not intend to claim?’
- If the matter is in the hands of a lawyer or other person will you sign an authority that allows the NDIA to discuss the matter with them?
If the reason for not claiming is an agreement between the prospective participant or participant and another person where the prospective participant or participant agrees not to claim, refer to NDIA may require a participant or prospective participant to take action to claim compensation and assess whether it was reasonable for the prospective participant or participant to enter into the agreement.