Australia Covid Vaccine NFCS

Introduction

Australia created a no fault compensation for covid-19 vaccines on 22 February 2021, effective immediately. This scheme was created under federal legislation, the Financial Framework (Supplementary Powers) Regulations 1997 (Cth), Schedule 1AB, Part 4, Item 506.

It is administered by the Australian Government Department of Health and Aged Care. The funding for the scheme comes from the Federal Government.

Vaccines Covered

This NFCS covers nationally approved (Therapeutic Goods Administration approved) covid vaccines. It includes vaccines approved for emergency use and standard approvals.

Injuries Covered

This NFCS covers both temporary and permanent injuries. Generally claimants need to have received inpatient treatment for the vaccine adverse effect, but there is a waiver for this requirement in certain circumstances.

Under this NFCS only eligible injuries are covered. Eligible injuries are those which are fulfil all three of these requirements:-

a. Diagnosed by a treating practitioner, and

b. Included in

i. The product information; and

ii. Table 1 where the condition in column 1 results from a vaccine listed in column 2, and,

c. was most likely caused by the COVID-19 Vaccine and less likely caused by any of the COVID-19 Vaccine Recipient’s other circumstances

Table 1 of the Scheme Policy reads

	Column 1	Column 2
Item	Clinical condition	Person in whose name the relevant COVIC-19 Vaccine(s) is included in the Register
1	Anaphylactic reaction	AstraZeneca Pty Limited Pfizer Australia Pty Limited Moderna Australia Pty Limited Biocelect Pty Ltd (for registration of Novavax vaccine)
2	Thrombosis with Thrombocytopenia Syndrome	AstraZeneca Pty Limited
3	Myocarditis	Pfizer Australia Pty Limited Moderna Australia Pty Limited
4	Pericarditis	Pfizer Australia Pty Limited Moderna Australia Pty Limited
5	Capillary Leak Syndrome	AstraZeneca Pty Limited
6	Demyelinating disorders including Guillain Barre Syndrome (GBS)	AstraZeneca Pty Limited
7	Thrombocytopenia, including immune Thrombocytopenia, identified as a final diagnosis	AstraZeneca Pty Limited

Charges for making a claim

There is no upfront charge for making a claim under this scheme, but a medical report from the treating doctor or hospital physician with the treating doctor’s opinion on the diagnosed condition or injury and likely link to vaccination is required.

Claimants

Under this scheme claim are categorised into three Tiers

Tier 1 – losses, not including any amount claimed for Pain & Suffering, of

$1,000-$19,999 if a claim for Pain & Suffering is being made or
losses of $1,000-$15,999 if Pain & Suffering is not being claimed.

Tier 2 – losses, not including any amount claimed for Pain & Suffering, of

in excess of $16,000 if a claim for Pain & Suffering is being made or
losses in excess of $20,000 if Pain & Suffering is not being claimed.

Tier 3 – death claims.

The following categories of individuals are permitted to make a claim.

Tier 1 Claims

Live vaccine recipient
their authorised representative (a lawyer or otherwise authorised representative)
their legal representative (for example a parent of a minor, someone who holds Enduring power of attorney, etc)

Tier 2 Claims

Live vaccine recipient
their authorised representative (a lawyer or otherwise authorised representative)
their legal representative (for example a parent of a minor, someone who holds Enduring power of attorney, etc)

Tier 3 Claims

Authorised representative (defined as a lawyer retained by a Tier 3 Estate)
An Estate representative (an executor or administrator of the deceased’s estate)
A Family Representative (a close relative of the deceased, ordinarily a spouse or someone in a de facto relationship with the deceased, a parent, sibling, child, grandchild, uncle, aunt, nephew, niece (biological or through adoption or otherwise)) who can demonstrate they have notified the Estate Representative that they intend to make a claim under the scheme.

Under this scheme the claimant is allowed to nominate a legal representative to make their claim. Funding for legal representation is not provided by the scheme.

Losses covered

There is a minimum claim value of $1,000. This scheme pays the following

Live Vaccine Recipient	Dependants of Vaccine Recipient	Estate of Deceased Vaccine Recipient
Both eligible economic and non-economic losses are compensated.	Compensation payments are for general categories and are not broken down into economic and non-economic losses	Compensation payments are for general categories and are not broken down into economic and non-economic losses

The following categories of reimbursement are available:-

Tiers 1 & 2 Claims

Out of pocket expenses
Lost earnings
Pain & Suffering
Gratuitous Attendant Care Services
Paid Attendant Care Services
Loss of Capacity to Provide Domestic Services

Tier 3 Claims

Funeral Expenses
Tier 3 Dependant Lump Sum Payment or Tier 3 Non-Dependant Lump Sum Payment

Tier 3 Non-Dependent Lump sums are only available if the deceased had no surviving Dependants at the time of death but had at least one surviving Parent, Non-Dependant Child or Sibling at the time of death.

Payments consist of a lump sum payment.

Funeral expenses are available under this NFCS.

Compensation under this scheme calculated on an individual basis using maximum compensation guidelines set out in Schedule 1 of the Policy to assist with quantification. The Average Weekly Earnings specified in the Schedule is $1,7367.10.

Loss of earnings are paid under this scheme. They are individualised but with a top cap of three times the Average Weekly Earnings Amount or $5,211.30 ASD.

Some of the compensation elements under this scheme are not capped, including:-

Funeral expenses,
Paid Attendant Care Services
Out of pocket expenses.

Some elements of compensation under this scheme are capped with maximum compensation benchmarks set out in Schedule 1 of the Policy. These maximum compensation values are detailed below. Maximum compensation benchmarks cannot be exceeded in Tier 1 cases, but recommendations for higher awards that exceed these maximums can be made in Tier 2 and 3 cases.

Compensation	Maximum Compensation Benchmark
Lost Earnings	$5,211.30 (3 x the Average Weekly Earnings Amount)
Gratuitous Attendant Care Services	40+ hours of care per week then the benchmark = the Average Weekly Earnings Amount >40 hours care per week then the benchmark = (the Average Weekly earnings/40) x the number of hours of care provided
Loss of Capacity to Provide Domestic Services	= (the Average Weekly earnings/40) x multiplied by the number of hours of lost domestic services (no maximum number of hours)
Pain & Suffering	$693,500
Tier 3 Dependant Lump Sum Payment	$644,640 + a payment for each dependent child*
Tier 3 Non-Dependant Lump Sum Payment	$70,680.00, less any items or amounts paid by or owed by a Third Party Payer other than a life insurance provider, for example this could include a Tier 1 payment

* If all of the dependants of the deceased are children then the additional payment will not apply to the oldest child.

Tier 3 Dependant Lump Sum Payment

Dependants is defined any of the following persons

the person to whom the COVID-19 vaccine recipient was legally married, at the time the deceased COVID-19 vaccine recipient died
a person who was in a de facto relationship (as that term is defined in section 4AA of the Family Law Act 1975 (Cth)) with the COVID-19 vaccine recipient, at the time the deceased COVID-19 vaccine recipient died
a child of the COVID-19 vaccine recipient (whether biological or derived from adoption or otherwise) who was wholly, mainly or partly dependent on the earnings of the COVID-19 vaccine recipient at the time the deceased COVID-19 vaccine recipient died
a child born after the death of the deceased COVID-19 vaccine recipient where the deceased COVID-19 vaccine recipient is that child’s parent (whether biological, derived from adoption or otherwise), and
any other person that was wholly, mainly or partly dependent on the earnings of the COVID-19 vaccine recipient at the time the deceased COVID-19 vaccine recipient died.

The payment for dependent children varies in value as set out below.

Years of age	Amount of Compensation
Under 1	$61,288
Under 2	$57,319
Under 3	$53,368
Under 4	$49,422
Under 5	$45,464
Under 6	$41,509
Under 7	$37,555
Under 8	$33,601
Under 9	$29,655
Under 10	$25,693
Under 11	$21,741
Under 12	$17,782
Not under 12 but under 16	$13,831
Not under 16 but under 21 (full-time students)	$13,831

Tier 3 Non-Dependant Lump Sum Payment

This payment is only available if there are no dependants. The priority for non-dependants is set out in Table 3 of the policy and is as follows:-

Scenario If, at the date of their death, the Deceased COVID-19 Vaccine Recipient was:-	The intended Beneficiary is/the Beneficiaries are
was a Minor with a surviving Parent	All surviving Parents of the Deceased
was not a Minor or was a Minor with no surviving Parents; and had a surviving Non-Dependant Child	All surviving Non-Dependant Children of the Deceased
was not a Minor; did not have any surviving Non-Dependant Children; and had a surviving Parent	All surviving Parents of the Deceased
was not a Minor or was a Minor with no surviving Parents; did not have any surviving Non-Dependant Children or Parents; and had a surviving Sibling.	All surviving Siblings of the Deceased

Time limits for claims

The scheme does not set a time limit between vaccination and the adverse event occurring.

A claim under the scheme must be brought by the close of the scheme which is two years after the Human Biosecurity period specified in the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (created under section 475 the Biosecurity Act 2015). The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 ceased to have effect on 17 April 2022.

Evaluating claims – standard of proof required

The standard of proof required by the scheme is that vaccine related harms are those which are 'most likely caused by the administration of the COVID-19 Vaccine and less likely caused by any of the COVID-19 Vaccine Recipient’s other circumstances'.

All claims are initially assessed by Services Australia. Straightforward Tier 1 claims are then assessed by a Services Australia employee. Tier 2 & 3 claims and more complex Tier 1 claims are evaluated by a medical officer. Claims which are considered valid based on the medical officer’s report are examined by an independent review panel comprising legal services providers with expertise in Personal Injury and/or administrative law. The panel make a recommendation to the decision maker on whether to accept or reject the claim.

Appeals and the right to litigate

The right to litigate is not affected by use of the scheme - A claimant has a free choice to use the scheme or to litigate.

There is an internal appeals process where the NFCS itself reviews the decision. In the event of a request for a review of the decision the review is by a new panel different to the previous panel and the review decision replaces the original decision, regardless of whether it is more or less favourable