TAC dependency claim process and entitlements
When a family member or loved one dies in a transport accident, certain family members will be entitled to payments from the TAC.
This is the case whether or not the deceased was at fault for the accident.
The first and most obvious payment that can be made by the TAC is covering funeral and related expenses.
Other than establishing someone died in a transport accident there are no other requirements to claiming funeral expenses.
The TAC will cover the cost of the funeral (up to a certain fixed amount) as well as paying for related expenses such as a headstone or cremation, and in some cases, travel for some family members to attend the funeral.
Currently TAC will pay up to $16,410 (inclusive of GST) for funeral expenses, with the amount changing at the end of each financial year.
Once the claim for funeral expenses is accepted this also creates an entitlement for family members to have counselling paid for by the TAC.
There are caps on the amount of counselling that can be obtained, but in most cases it will be sufficient to cover the counselling required following the death of the family member.
Family members include spouses whether married or in de facto relationships, parents, children, grandparents, brothers and sisters of the person who has died.
To be eligible, a doctor, a registered psychologist or qualified social worker must provide the counselling service.
The TAC will pay up to $17,410 per family.
Other benefits – dependency payments
Other benefits that are available in these situations include a dependency lump sum payment for dependent family members, as well as potentially a fortnightly payment for dependents.
What does this mean?
Well, there are many different situations that can apply in terms of family dynamics and reliance upon the deceased for income.
Let’s look at the most straightforward example – of a spouse dying in a car accident.
Let’s say that the deceased worked full-time and earned $1000 per week.
The couple shared their finances and had joint bank accounts and paid for their everyday living expenses and bills jointly.
The surviving spouse would be entitled to a lump sum from the TAC. The lump sum is calculated based upon the age of the deceased.
The older the deceased was at the time of death the lower the payment will be.
The reasoning for this is because the payment replaces lost income that would have been earned by the deceased.
The older the deceased, the lower amount of future earnings they would have made.
The surviving dependent is also entitled to a fortnightly weekly payment.
The calculations surrounding this payment will be complex, but they are generally based upon the average earnings of the deceased which are then paid at a 20% reduction.
In circumstances where the deceased was earning over the threshold amount for the TAC, then the payment will not exceed the TAC cap.
The current maximum fortnightly payment is $2,980 gross, or $1,490 gross per week.
Those payments can continue for up to five years or until the recipient of the payments reaches the age where they would be entitled to a pension from Centrelink.
There are more complex situations such as where the deceased had more than one partner or where there is a dispute between two or more people who say that they were the sole partner of the deceased.
These situations are dealt with according to the facts of each case.
If you have been affected by a decision made by the TAC in these circumstances, you should contact a lawyer.
If the deceased was caring for children or responsible for housework the TAC can pay some part of the cost of paying someone to help with childcare or household chores that the deceased did.
As with all TAC payments, there is a cap on how many hours per week will be paid as well how long the benefit will go for.
Example:
Greg and Tina were married and did not have any children.
Tina died in a car accident where another driver was at fault as they went through a red light and hit Tina’s car.
Tina was a high earner, bringing in $3000 per week.
She was 35 years old.
The TAC would pay for Tina‘s funeral and associated expenses. The TAC would also pay for counselling for Greg and any other family members (such as Tina’s brothers and sisters) of up to $17,410.
Greg would also be entitled to a fortnightly payment of $2980 gross.
This is obviously significantly lower than Tina’s weekly earnings.
As noted above, the TAC fortnightly payment is capped and that is why Greg will not receive Tina’s full wage.
Greg would also receive a lump sum of $195,190 (the maximum payable up until July 2022).
Greg should then get legal advice as to whether it is worthwhile bringing a claim for common law damages against the TAC.
Greg has already received $195,190.
He will receive five years of fortnightly payments of around $3000 per fortnight.
The question becomes what Tina‘s earnings would have been over her working life compared to the payments referred to above that Greg will receive.
Given Tina was such a high earner it is obvious that the TAC payments that Greg is entitled to will not cover the loss of wages that would have been earned over the remainder of Tina’s working life.
As such, Greg would be advised to bring a common law claim and he would receive a further lump sum.
The process for claiming a dependency lump sum from the TAC is relatively straightforward.
Your lawyer will engage with the TAC and a conference will be arranged before any Court proceedings are issued to try and resolve the claim.
In Greg’s matter, it is very likely that the TAC and Greg and his lawyers will be able to agree upon a further lump sum amount that should be paid to Greg.
Once a settlement amount is agreed upon and paid, Greg’s fortnightly benefit will cease.
If no agreement is reached, then Greg’s lawyers will have to issue Court proceedings on his behalf.
Children
While the first place we look for dependency payments is to a surviving spouse, there are certain situations where payments will be made to surviving children of the deceased.
This arises when one of the following three circumstances are met:
- there is no surviving dependent partner benefit payable
- the surviving partner was not the person responsible for taking care of the child
- where the surviving partner dies (due to any cause)
TAC and the Transport Accident Act describe a child in these circumstances as:
- under 16 years of age, or
- has attained the age of 16 years but is under the age of 25 years and is a full-time student or an apprentice, and
- is wholly, mainly or in part dependent on the deceased person for economic support at the date of the death.
If a child fits the above criteria, the TAC will cover:
- a biological child of the person; or
- an adopted child of the person (includes the deceased’s adopted child or their partner’s adopted child but excludes a child adopted by another person); or
- a step- child of the person; or
a child of the person conceived prior to the death and who is born after the transport accident but does not include a child who has a spouse or a domestic partner.
There is also an education allowance payable to dependent children in school or other study.
Common law rights
In circumstances where the lump sum payment and fortnightly payments from the TAC will not replace the future lost income of the deceased, there is the potential to bring a common law claim for damages if there is another party at fault for the accident.
For example, where the deceased fell asleep at the wheel and lost control of the car causing the accident, there would be no entitlement to bring a common law claim.
You should note however that regardless of fault, the fortnightly payment and dependency lump sum are still payable.
In circumstances where there is fault on behalf of another party then a common law claim could be brought.
You will need legal advice as to whether it is worthwhile to bring such a claim has all payments made by the TAC must be taken into account (i.e. deducted from any settlement amount) and it will also cause any future payments from the TAC to cease.
Depending upon the age of the deceased at time of death and their potential future earnings, it may or may not be worthwhile pursuing a common-law claim and this is why legal advice is required.
This situation can be further complicated by circumstances where a child is receiving a dependency payment from the TAC.
This is because let’s say for example there is a spouse and there are children that are also receiving payments from the TAC.
It may be beneficial for the spouse to make a common law claim and be paid a further lump sum, but this would also trigger the termination of the children’s ongoing payments.
Consideration needs to be given to effects like these that a common law claim can bring.
Personal injury claims
Apart from all of the entitlements mentioned above, there is also the potential for a completely separate TAC claim to be brought by any family member for their own psychological injury.
This requires a separate claim to be made by the injured person.
There is not necessarily a requirement that the injured person witnessed the accident or was involved in it in any way.
For example, the surviving spouse of a deceased who was at home when the accident occurred and did not attend the accident scene could still lodge a claim for their own injury.
Any benefits paid through a personal TAC claim are separate and discrete from the dependency claim.
This may result, depending upon the nature of any injuries suffered by the claimant, in additional weekly payments or lump sums being paid.
Conclusion
In nearly all circumstances where someone dies in a car accident, a TAC will pay for funeral and related expenses.
They will also in most cases pay a lump sum and fortnightly payment to a surviving spouse or other dependent as long as the deceased was an earner.
In limited circumstances where the TAC payments do not properly cover the future lost earnings of the deceased, and there is fault on behalf of another party other than the deceased, there may be an entitlement to bring a common law claim.
In addition to the above, if a family member is affected psychologically by the death, they may be able to lodge their own claim for psychological injury, which will have it’s own set of entitlements distinct from those payable under the dependency claim.
