Adam Tayler’s podcast on 2GB discussion TPD claims

Adam Tayler Superannuation, Disability and Insurance Solicitor

Chris:              Well, we’re talking all things disability today, all things disability. If you’ve got questions to ask, it won’t cost you as much here as it will if you have to walk into a solicitor somewhere. 131 873 is the telephone number and from Turner Freeman Lawyers this afternoon, I’ve got Adam Tayler on the line. Hi there Adam.

Adam:             Good afternoon Chris.

Chris:              Good to have you on the line. Um, stacks to talk about today and no doubt you will get plenty of questions, but just reminding our listeners, thanks to Turner Freeman Lawyers and their legal matters segment here we’ve got a $100 Westfield voucher to give away to the question of the afternoon, $100 Westfield voucher to give away and remember to pick up your newspaper, this is your local newspaper each week, to read the Turner Freeman legal matters column and their lawyers cover a range of legal topics including compensation and negligence law, family and employment law, wills and estate law and superannuation and disability claims. And that’s where we’re up to today. Just before we get to some of our questions and our listeners, can I start with one of the major issues around at the moment which is the disability support pension. Now, it’s simply too easy in the current climate for people to gain access to the pension so as part of changes being mooted by government is to introduce what’s called a government contracted doctor. Now, do you expect there will be much change in the number of eligible people, in other words I guess I’m asking how much of a rip off is occurring under the eyes of tax payers at the moment.

Adam:             Well, Chris, the disability support pension is meant to be an income replacement benefit. So where people can’t work because of a disability they receive the pension. As you say there’s concern in the community that people are accessing that pension too easily and in circumstances perhaps where they could work or work in a reduced capacity. I certainly think it’s an issue that’s on the table with government, we’ve got a budget coming up, depending on the appetite of the government for change then certainly we can expect to see some paring back of eligibility criteria.

Chris:              I wonder what the legal ramifications are though. If I have been on a disability support pension for say, a couple of years, a government contracted doctor has a look at me and says “no, no, no, you can work, all very good” I think there might be a few people going to their lawyer and suggesting some kind of appeals process. Is that something you expect?

Adam:             Absolutely. I think people are going to, certainly people who have been on the pension for a long time and being on the pension doesn’t mean that you just sit back and do nothing, these people are being examined by doctors all the time, they’re undergoing medical treatment, etc. If a doctor comes in and provides an opinion that goes against the weight of all of the other medical opinion that’s been obtained then people will have rights to dispute that. And I expect that disputes will increase.

Chris:              Ok. Today we’ve had an update on the National Disability Insurance Scheme. The Premier Mike Baird has announced if his government is re-elected the NDIS will be delivered to Penrith and the Blue Mountains one year ahead of schedule, the rest of the state will begin to access the scheme from July 2016. There will be impacts associated no doubt with the way those who are disabled are cared for once this comes into fruition. What do you see changes, how do you see the changes occurring?

Adam:             I think this is good news Chris. The NDIS is a scheme that is long overdue. The aim of the scheme is to give people some independence and some choice in how they are cared for and how they access service providers so I think the biggest win for New South Wales residents is the expansion of this program and the ability to have that independence in their decision making as to who treats them and how often they access that.

Chris:              A lot of people out there have income protection and disability insurance. But apparently your insurer can very quickly reduce your payments if you are receiving income from another source. Explain that for us.

Adam:             Chris, a lot of people have insurance generally through their superannuation for either income protection or total and permanent disablement, so that is where they can’t work because of a serious injury or illness. Quite often an insurer will seek to reduce the payments by offsetting any other income that the person may be receiving because of the illness.

Chris:              But is that fair? Like, or is it one of those things written under, you know, clause 53 in that very small print that we should have read when we took out the insurance policy 40 years ago.

Adam:             It’s generally in the fine print. As to whether it’s fair or not I think the primary function for those sorts of clauses is to make sure that people don’t double dip. So they’re not receiving benefits twice.

Chris:              So what kind of benefits are we talking about? What kinds of income can prompt your insurer to reduce these payments?

Adam:             So it could be for example payments you’re receiving from Centrelink. So a disability support pension. It could be a common law lump sum payment that you receive or it could be a workers’ compensation payment.

Chris:              Ok. You also specialise in superannuation. If you’ve been given bad advice from a financial advisor and lose a big chunk of your super, do you have any legal recourse? Are lawyers asked by superannuation policy holders to come and help them save the money they lost because of crook advice?

Adam:             We do get a number of enquiries Chris from people who have put their faith in financial advisors and followed that advice in circumstances where the advisor has not really been advising but has more been selling. In those circumstances where they’re trying to push a particular product on someone and not taking into account their circumstances there is recourse for that.

Chris:              How do you prove that?

Adam:             Sometimes it’s a matter of their word against yours but quite often it’s pretty obvious Chris. If someone is, you know, middle aged, married with a couple of young kids and a large mortgage, margin loans probably aren’t in their interest and if advisors are recommending that, there are warning bells sounding.

Chris:              And are any of those legal moves effective? Have they been successful from your experience?

Adam:             Yes. Certainly there are cases that have gone through the courts. There are other tribunals and bodies set up by the government that look at complaints about these sorts of things including the Financial Ombudsman Service. But people have successfully sued and recovered their lost investment.

Chris:              Ok. Let’s go to callers now that we’ve got all of this on the agenda. We’ve already discussed the disability support pension, the National Disability Insurance Scheme. Those with income protection and disability insurance through their superannuation fund and just general advice from financial advisors and whether there is legal recourse. So a stack to talk about and no doubt you’ve got a question or two to ask of Adam Tayler. 131 873 is the telephone number.

Isaac good afternoon.

Isaac:               Yeah hi Chris, thanks a lot for taking my call.

Chris:              That’s ok.

Isaac:               The question I really wanted to ask is that I’ve actually got a self managed super fund and I’ve had it for about five years now and what I done was utilise the capital within that fund to purchase a buy and hold, it was a land banking strategy. Now I don’t know if our expert has ever heard of that before. It’s called a free hold land option. Now what that is is a buy and hold strategy and I was just wondering if he had any type of advice or has heard of anybody else that is actually doing it.

Adam:             Isaac it’s not something that I’ve got any personal experience in. Certainly those sorts of investments can be good in developing areas where land is at a premium and the market wants to buy, so it’s something that you should obviously take some financial advice on and do your research, do your homework.

Isaac:               Yes Adam I’ve actually got another five years left before I can actually see a return on the investment, it’s actually using a land banking strategy as a free hold option land option and I was just wondering if you haven’t heard of anything within that type of industry or that type of strategy could you give me a bit of advice on if I was to divert another, say another amount of my super into another type of strategy. Have you ever heard of anything else?

Adam:             Along those lines of land banking, no as I say I haven’t had any personal experience with that Isaac. I think probably the best advice I could give you is to try and diversify. Don’t have all your eggs in one basket.

Chris:              And Isaac you might need a little bit of financial planning advice by the sound of the thing you’re getting into but we’ll leave that with you.

Aaron, go right ahead.

Aaron:             Hello, how are you going?

Chris:              We’re well and Adam’s listening.

Aaron:             Yeah, I’ve been on a disability pension for about 15 years. Unable to work due to my accident, work accident that I had and I’m currently still under a situation with the insurance company. Look, they make a voluntary payment of $50.00 a week and basically just quite happy to leave me on the support pension. I want to know why aren’t these insurance companies liable for the cost of the accident and basically either pay me out or fix me up. And be done with it.

Adam:             The income that you are receiving Aaron, are you also getting something through a workers’ compensation claim?

Aaron:             Well, they, look I’m on the pension and like I said I can’t work due to my, the severity of my back. I’ve tried to work and no one wants to take you on. As soon as you say back claim, well, no see you later.

Adam:             There are ways Aaron…

Aaron:             I’ve lost a very big percentage of movement to my nerve and everything and it’s been a major fight to even get back surgery. And like I said they make a voluntary payment of $50.00 a week just to make Centrelink happy that they’re paying me something where I feel they should be making a bigger payment. Then again I lose my benefits and my, whatever I supposed to get with my Centrelink thing. And they’re not liable for it. You know they’re not, what’s the word, contributing anything else towards money wise and are just happy to let the tax payers pay my benefit.

Adam:             Probably the first thing I’d say Aaron is they’re either liable or they’re not. So voluntary payments don’t make any sense to me so they should either be paying it or they shouldn’t. If it is a workers’ compensation insurer then there are entitlements under the legislation to other benefits such as medical expenses ongoing and the like.

Aaron:             Well I’ve had all that. I’ve had numerous doctors. I’ve seen just about every doctor in the country.

Chris:              Have you had a lawyer Aaron?

Aaron:             Yes, I have got a lawyer and it’s still going on. It’s still pending that’s why I can’t, well yeah it’s still pending. I just wanna know what your view was on it and basically why aren’t the insurance companies liable for the accident and why does the tax payer have to pay me as a disability support pension? I’m quite happy get off that, let them be liable or pay me a proper wage or pay me out or give me my back surgery that I’ve been longing for 25 years this year.

Adam:             Aaron I think the question you do need to ask is of either your lawyers or the insurer is whether they can commute the payments. And that is they basically acknowledge that there is going to be a future liability to pay you money and they convert it into a lump sum now. That’s a possibility under a lot of different policies. It will come down to what has the insurer agreed to cover.

Aaron:             Yeah, yeah.

Chris:              Yeah, I gotta leave it there Aaron, but it’s a situation he needs a little bit more legal advice on I think by the sound of it and it needs to be expedited so he can move on.

131 783 the telephone number. We’re here courtesy of Turner Freeman. Our expert today is Adam Tayler and a stack to talk about. $100.00 Westfield voucher to give away to the best caller this afternoon. We’ll take some more of your questions straight after the break.

131 873 the telephone number. A $100.00 Westfield voucher to our callers this afternoon in legal matters brought to you by Turner Freeman Lawyers and Adam Tayler is from Turner Freeman. He’s on the line and taking your calls.

Darren, Adam is listening. Go ahead.

Darren:            Oh, G’day Chris. Thanks Adam for taking my call. I’m what’s called an incomplete paraplegic. I had a motorbike accident three years ago and I’m on the disability support pension. Contrary to what people believe it’s not very easy to get on. I would have been homeless had I not had savings. I’ve got numerous superannuation funds and they all got total and permanent disability on them. I was wondering how I go about claiming some of them and I also do four and a half hours a week work which is pretty well pity work for a friend of mine just to help me get by a little bit. And I was wondering if that affects it.

Adam:             Darren you certainly have rights to a TPD payment through those super funds. If you’ve got more than one policy you can generally bring more than one claim because you have been paying premiums for both. The fact that you are able to do some supported work in what I’m going to call a special light duties role because it’s effectively something that someone couldn’t walk in off the street and get that work that you are doing, that would be ignored for the purposes of a TPD claim. So the fact that you are able to do that is great but it’s not an ongoing occupation or a job that someone would be able to get commercially off the street and therefore we would not take that into account in a TPD claim.

Darren:            Ok, yeah I just wondering about that because that’s sort of held me back a bit from having a go at it. I even got a letter from one of the superannuation funds that I’d lapsed, that I had no money left in it and if I made a payment all my insurances would be up to date. Well if they’re still taking fees they won’t put it dormant. So I’m under the opinion that if they’re all taking fees from me I’m ineligible for the insurance.

Adam:             You can make the claim now Darren even though the account may have lapsed or been closed provided you had coverage at the time that you became disabled. So at the time that you suffered the incomplete paraplegia, then you can still make the claims now.

Darren:            Ok. Alright thank you. Where do you think would be the best way? Would legal aid be able to help me in this matter.

Adam:             Legal aid won’t support these sorts of claims. There are lawyers, and dare I say it Turner Freeman does these sorts of claims on a no win no fee basis. So that’s probably the best avenue for you if you’re not able to fund legal costs.

Darren:            Ok. Cool.

Chris:              Alright. Good on you Darren. Thank you very much for your question. It’s five minutes away from two o’clock.

Scott, go ahead.

Scott:              Yeah, I’m a franchisee and the head franchisor I’ve had some issues with my customers in which I followed the procedure set out by them, for over six months and now all my customers are leaving and the head franchisor has done nothing to resolve the issues. They’ve also done it with numerous other franchisees. Is there a case of negligence against them?

Adam:             You could probably look at it from two angles. Negligence is one, the other is your actual franchise agreement with them as well and if they haven’t met their obligations under that agreement you would have rights to pursue a claim for any loss you’ve suffered because of that breach. Certainly a franchisor needs to take care in its dealings with customers of a franchisee and if they treat them poorly or don’t live up to their obligations then they can be exposed and liable for any loss.

Scott:              Yep, no worries. Thank you very much.

Chris:              Good on you Scott. And thank you Adam Tayler. I’ve run out of time right now. I was going to give that $100.00 voucher to Darren who rang before and spoke about his accident after a motorcycle crash and the topic that he was talking to Adam about was interesting. So we’ll give that $100.00 Westfield voucher to Darren. Thank you. And Adam Tayler thank you very much for your time this afternoon.

Adam:             Thanks Chris, my pleasure.

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