Superannuation and HIV

A guide for People Living with HIV/AIDS (1997 Update)

The following information has been written by John Berrill, partner Maurice Blackburn and Co, Solicitors, (03) 9 345 2742 and a member of the Steering Committee of the HIV/AIDS Legal Centre (HALC).

If you are unable to get to HALC or if you have any questions, call John for free advice.

Contents

1. Introduction
2. What about personal superannuation and life insurance?
3. What are my superannuation payments?
4. How do I find out what payments I can get from my fund?
5. When can I claim my contribution payments?
6. Can everyone who gets ill get a disability payment?
7. I have HIV - at what point do I become totally and permanently disabled?
8. I receive a Disability Support Pension from the Department of Social Security. Does this guarantee me a disability payment from my superannuation fund?
9. I am still healthy and able to work, but I want to quit my job to do other things. What should I do?
10. I can still work, but I want to cut down my hours. Will this affect my superannuation?
11. Do I have a choice of superannuation funds?
12. I belong to my employer's superannuation fund. My employer wants to change to another fund. Is this a problem?
13. How do I get a disability payment?
14. What about confidentiality?
15. How long will the claim take?
16. What if the claim is accepted?
17. What if the claim is rejected?
18. My superannuation fund says they only pay HIV disability or death claims if I have been in the fund for two years. What should I do?
19. I was paid out a disability benefit but now I'm feeling better. Can I go back to work?
20. What about death payments?

Leaving Work Step By Step

Contact Point

Back to Contents

1. Introduction

These days everyone who is in a job is a member of a superannuation fund. Superannuation is now an important part of everyone's employment package.

If you are HIV positive and get too sick to work you might be able to get a payment from your superannuation fund. The payment can be large or small, depending on:

Because superannuation is so complex, the following pamhlet may not answer all your questions. There is general information about how to make a claim for your payment and how much your payment might be. To get exact answers about your own situation, you should get advice from someone knows about superannuation (see Contact Point).

Back to Contents

2. What about personal superannuation and life insurance?

Some people also have personal superannuation policies, or various kinds of insurance. These can include life insurance, disability insurance, income protection insurance, mortgage protection insurance or credit insurance. The following information does not deal with these issues, but you should check all your insurance and get expert advice.

3. What are my superannuation payments?

There are several types of benefits you may be able to get if you leave work:

Not all funds have all of these payments. Most funds have total and permanent disability payments. These are the payments of most interest to people with HIV. When this pamphlet now talks about "disability payments", it means total and permanent disability payments.

Back to Contents

4. How do I find out what payments I can get from my fund?

Superannuation funds must send all members a benefit statement every twelve months. This should show which payments you can get and how much the payments are. Your superannuation fund may also give you a booklet explaining how your fund works.

If you have not received a benefit statement or if you want to know what payments are owed to you, you can ring or write to your superannuation fund for an explanation.

The rules of your superannuation fund are usually written into a Trust Deed, including a statement of the payments you can get from your fund. Trust Deeds are complex documents and you will need legal advice to understand them.

5. When can I claim my contribution payments?

Usually, employees can only get employer contribution payments when they retire after the age of 55 or 60. An exception to this is if you are totally and permanently disabled. You can then get the contribution payments when you leave work, whatever your age.

In the past, people with HIV usually had no problem getting their contribution payments when they left work. However, with improvements in treatments, people with HIV are working longer and may not necessarily quality as totally and permanently disabled.

If you want to claim your contribution payments, you should speak to your doctors, get them to give you certificates saying that you are totally and permanently disabled and then write to the superannuation fund, claiming the contribution payments.

If your fund also offers a disability payment, you should claim the contribution payments and the disability payment at the same time.

Back to Contents

6. Can everyone who gets ill get a disability payment?

This depends on what type of fund you are in. The two main types of funds are automatic acceptance funds and individual assessment funds.

In automatic acceptance funds, all applicants are accepted for disability cover without any health tests or questions. Even if you had HIV when you started your job, you should be able to get a disability payment. However, some superannuation funds have an "HIV exclusion clause" which may cause a problem (see Question 18) and some superannuation funds offer higher disability cover with a health test or questions.

In individual assessment funds, each person is questioned when joining the fund to work out if they have any health risks. You would have to fill out a questions sheet and maybe have a medical check up. If you know that you have HIV, the law says that you must tell them. They will probably refuse to cover you for disability payments or reduce the amount of the payment.

If you knew that you had HIV when you joined the fund but did not tell them, they may refuse to give you a disability payment - but not always.

If you had not tested HIV positive when you joined the fund, and if you answered all health questions honestly, you should be covered for disability payments.

7. If I have HIV - at what point do I become totally and permanently disabled?

There is no clear line - it depends on the person. Most people who have developed AIDS may be able to prove they are totally and permanently disabled, but some will still be able to work. On the other hand, some people with HIV who have not suffered and AIDS-defining illness may still be able to show that they are disabled.

With the improvements in treatments, many people with HIV who would previously have been thought to be disabled, may not now be able to prove they are permanently unfit for work.

If you think you are too ill to work and your doctors agree, this will still usually be enough to claim your disability payment. You may also be able to claim your total and permanent disability payment even if you are able to work part time.

Back to Contents

8. I receive a Disability Support Pension from the Department of Social Security. Does this guarantee me a disability payment from my superannuation fund?

No, the rules are different. You can get a Disability Support Pension from the Department of Social Security whenever a disability stops you from working, including situations where you are able to back to work in the future. Superannuation is different. To get a disability payment from your superannuation fund, you must show that you will probably not be able to work again in a suitable job.

9. I am still healthy and able to work, but I want to quit my job to do other things. What should I do?

Generally, if you quite your job for reasons other than illness, you stop being a member of your superannuation fund. That means, if you later become ill, you cannot then get a disability payment,unless you have joined another superannuation fund

Some superannuation funds give you a continuation option - this means you can keep your cover for death and disability payments even after leaving your job, as long as you keep paying your premiums. You should check out whether there is a continuation option before you leave your job, or very soon after. There are strict time limits - if you leave it too long, you may lose the option.

Back to Contents

10. I can still work, but I want to cut down my hours. Will this affect my superannuation?

It depends on which fund you are in. If you cut down your hours some funds will reduce your disability payment when you finally claim it. Other funds will give you the full disability payment. You should get expert advice before you cut your working hours.

11. Do I have a choice of employment superannuation funds?

It is basically up to your employer to nominate your employment superannuation fund although, if you are covered by an award, you may be able to choose a fund specified in the award.

However, from 1998, your employer will have to offer the choice of at least five superannuation funds.

Before deciding on which superannuation fund to pick, it is very important that you find out the benefits offered by all the funds for disability and death payments and whether there are any restrictions on the payments such as health questions or HIV exclusions.

Back to Contents

12. I belong to my employer's superannuation fund. My employer wants to change to another fund. Is this a problem?

If you have HIV, this could be a bad move, depending on how the new fund works. On the other had, the disability payment may be better and it could be a good move. Get expert advice before you agree to change funds.

13. How do I get a disability payment?

Usually you make a claim any time after you leave work, but do it as soon as possible. You can even make a claim after your employment has been terminated or after you have been paid out your contribution payments.

You should tell your employer that you are stopping work for medical reasons and ask the superannuation fund for a claim form for the disability payment. You do not have to tell your employer that you have HIV or AIDS.

When you are filling in your claim form you must say that you cannot work any more and you must explain why. You must provide medical reports saying that you have HIV/AIDS, and that you cannot work any more.

Back to Contents

14. What about confidentiality?

You send the claim form and the medical reports to your superannuation fund, not to your employer. The superannuation fund should not tell your employer the details of your claim. Sometimes superannuation funds have employers and employees on their committee. It is against the law for anyone who works for a superannuation fund to break your confidentiality. If you are worried that they might break your confidentiality, you should write to them saying that you do not want anyone at your work to know that you have HIV/AIDS.

15. How long will the claim take?

Most funds have a waiting period of six months from the time you stopped work, although some funds will speed up the waiting period if you have a life-threatening illness.

The decision on whether to pay a disability claim can take many months and as the improved treatments mean that many people with HIV are enjoying better employment chances, so superannuation funds and insurance companies are having a closer and longer look at HIV disability claims.

It is important to keep chasing up the fund for a decision and you may be able to make a formal complaint or sue the fund if they delay a decision for too long, or if they refuse to make a decision.

Back to Contents

16. What if the claim is accepted?

Check that you get all the payments you have a right to, including the contribution payments and the full disability payments. You should get expert financial advice on what to do with the money, such as investments and taxation.

17. What if the claim is rejected?

The decision of the superannuation fund is not final. You may be able to:

Back to Contents

18. My superannuation fund says they only pay HIV disability or death claims if I have been in the fund for two years. What should I do?

Your fund might be breaking the law. If you have been with the same fund for over two years, then you should have no problems. If you have been in the fund for less than two years, you might be able to sue your fund if your claim is rejected. Get expert legal advice.

19. I was paid out a disability benefit but I'm now feeling better. Can I go back to work?

Yes. Even though a superannuation fund only pays you a disability benefit when they think that you can't ever go back to work, if your health improves and you feel you can go back to work, there is nothing to stop you from doing so.

If you do go back to work, you will not have to repay the contribution or the disability payments you received before and your new superannuation fund may also include new disability and death benefits.

20. What about death payments?

Most superannuation funds include death payments. Usually death payments are the same amount as disability payments. If a member dies while still in a fund, or dies less that six months after leaving a fund, then a death payment may be made. Death payments are given to married and de facto partners or dependents of a fund member. It is legally unclear whether a gay or lesbian partner can claim death payments, unless they are dependent.

When you join a fund, you are usually asked to name someone to get the death payment. Sometimes your death payment is treated like part of what you own and goes to the people you name in your will. That is another good reason to have an up-to-date will.

Usually, if you have already got your disability payment, then you cannot get a death payment as well.

If you think you might have a right to get the death payment from your partner's superannuation policy, get expert advice.

Back to Contents

Leaving Work - Step by Step

1. Do you want to leave work?
   This is a major life decision. Even if you are unwell, would you prefer to continue working? It's your decision. Maybe it's a good idea to discuss your choice with friends, family and counsellor.
2. Are you totally and permanently disabled?
   You should get your doctors' opinions first. Most HIV doctors are experienced in dealing with superannuation claims. If you believe you are ready to leave work, can your doctors back you up with medical evidence?
3. Find out about your superannuation fund.
   Put together all the letters, pamphlets, hand outs and other information from your superann7ation fund.
4. Get advice
   091From someone experienced in superannuation matters. See Contact Point.
5. Make your claim for disability payments.
   You should try to start this before stopping work, although some funds only take claims after you have left work. Get help from some experienced in superannuation matters with your claim.
6. Stop work
   If you resign, make sure you tell your employer you are leaving because you are ill.

Back to Contents

Contact Point

The Victorian AIDS Council has established a free legal service to give advice to people living with HIV/AIDS, their families and friends - the HIV/AIDS Legal Centre (HALC).

HALC is open every Wednesday night between 7 and 9pm
at the VAC, 6 Claremont Street, South Yarra.

Book for an appointment by ringing the VAC on (03) 9 865 6700.

The service can give free advice and assistance on superannuation questions, or they can give you the names of lawyers or financial advisers who know about superannuation.

If you can't get to HALC, or if you have any questions:
Call John Berrill on (03) 9345 2742 for free legal advice.

Send mail to posvic@msn.com.au with questions or comments about this web site.
Copyright © 1998 Positive People Victoria
Last modified: September 24, 1998