The Life Time Care and Support Scheme (LTCS) was introduced in New South Wales to provide no fault treatment and care benefits to all people who sustain catastrophic injuries as a result of motor vehicle accidents in New South Wales.
The Scheme applies to children under the age of 16 from 1 October, 2006 and for adults from 1 October, 2007.
Anyone catastrophically injured before those dates is not entitled to any benefits under the Scheme.
On the 1st of October, 2006 a no fault scheme for children was also established. The scheme entitles a claim to be made on behalf of a child who was injured in a motor vehicle accident even if the child was at fault. The scheme applies to all injuries suffered by children under 18 years of age at the date of the motor vehicle accident.
What is a catastrophic injury?
To qualify for the Scheme the LTSC Authority must be satisfied that there is a catastrophic injury which is defined as follows: –
- Spinal cord injury;
- Brain injury;
- Multiple amputations;
- Burns greater than 40% of the body;
- Permanent blindness in both eyes.
If you qualify then there are three ways to become part of the scheme: –
1.You can elect to become a participant in the scheme;
2.The insurer can nominate you for inclusion in the scheme;
3.The Motor Accident Authority can direct an insurer to nominate you for inclusion in the scheme.
A person who is accepted as a permanent participant in the Scheme remains a participant for life. There is also a provision for acceptance as an interim participant for a period of two years. This is designed to cover cases of traumatic brain injury where initial care and medical need may be extensive but recovery can be anticipated.
The scheme is therefore mandatory for persons with catastrophic injuries and the reality is that the insurer is likely to nominate every possible person for participation in the Scheme. By nominating a person for participation in the Scheme the insurer escapes any further liability to pay any treatment or care expenses.
This means that the catastrophically injured will have no choice but to be part of the Scheme.
The benefits
The LTCS Authority is required to pay all treatment and care needs of the members of the scheme. Benefits include medical, dental, rehabilitation, domestic assistance, aides, prosthesis, education, vocational training and care (including respite and attendant care).
Disputes
All disputes in relation to the Scheme are determined by an assessor appointed by the Authority. There is no provision for participants to appeal to a Court.
The LTCS Authority will make decisions in relation to the future care and treatment and disputes. If you do not agree with the assessment the Authority must refer the dispute to an assessor for determination. The only right of appeal from an assessor’s decision is to a panel of three other assessors all appointed by the Authority.
No legal costs are payable by the Authority in respect of any assistance in dealing with any dispute in relation to the Scheme. You will have to pay all legal costs that you incur.
Benefits of the LTCS scheme
The Scheme will provide benefits to those who have sustained catastrophic injury by their own fault or contributed heavily to the circumstances of their own injuries. Previously such injured persons were unable to claim any compensation at all. If you can satisfy the eligibility criteria for the Scheme then you are entitled to benefits for treatment and care irrespective of who was at fault.
Disadvantages of the LTCS scheme
The disadvantage of the Scheme is that it is mandatory. This means that all catastrophically injured persons will have to take part in the Scheme. Therefore future treatment and care costs will be paid by the LTCS Authority. An injured person however will need to go to the Authority each time they require approval for any treatment or care. This will create its own anxiety and stress having to deal with such a bureaucracy on a frequent basis.
Participants of the Scheme are not allowed to obtain a lump sum amount direct from the CTP insurer so they can look after their future treatment and care needs themselves. If you are eligible for the Scheme then you have no other option but to participate. A lump sum payment for future needs will not be payable.
The catastrophically injured are also prohibited from recovering against the CTP insurer any compensation for voluntary domestic assistance provided by friends or family members. The Scheme is meant to cover all care needs on a paid basis of the injured person so it is thought that no voluntary domestic assistance should be required.
This approach however overlooks the reality that family members always provide significant voluntary assistance particularly to injured children. That assistance will not be compensated even if the parent has to give up work.
If you have a dispute with the scheme you will not be entitled to the cost of a lawyer to help you with that dispute. It is likely that most people will not be able to afford legal help and will be on their own to deal with the Authority.
Conclusion
The LTCS Scheme only applies to the catastrophically injured otherwise the rights of those injured in a motor vehicle accident remain the same as in the Motor Accidents Compensation Act. However those catastrophically injured must now be part of the LTCS Scheme for all treatment and care needs. Unfortunately it may be that members of the Scheme will receive a lower level of care and treatment than they may have otherwise have been able to obtain had they received a lump sum amount through the Court. The scheme takes away the ability to personally decide what treatment is in the best interest of the injured person.
The Scheme would be much more attractive if participants could elect to either utilise the benefits of the Scheme or obtain lump sum compensation direct from the CTP Insurer should they be able to prove fault.
The Daily Telegraph reported on 17 March 2008 that motorists are paying up to $200.00 a year extra for Green Slips to cover the LTCS which is 10 times the rate the Government first promised it would cost.
By Matthew Garling
Publish Date: March 23, 2008
Reference Article: http://www.actuaries.asn.au/Library/p.4_ACS07_paper_Stone_LTCS.pdf