10Recovering past payments of residential care subsidy or home care subsidy from judgments and settlements

#### 10 Recovering past payments of residential care subsidy or home care subsidy from judgments and settlements (1) Subject to subsections (2), (3), (6) and (9), if: (a) an amount of compensation is fixed under a judgment or settlement made in respect of an injury to a compensable person; and (b) residential care or home care has been provided to that person in the course of treatment of, or as a result of, the injury; and (ba) residential care subsidy or home care subsidy has already been paid in respect of that residential care or home care; and (c) a liability has not already arisen under section 9 in respect of that payment of residential care subsidy or home care subsidy; there is payable to the Commonwealth an amount equal to the residential care subsidy or home care subsidy. (2) Subject to subsection (3), if: (a) the judgment or settlement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the compensable person and the compensation payer; and (b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned; the amount payable to the Commonwealth under subsection (1) is reduced by the proportion corresponding to the proportion of liability for the injury that is apportioned to the compensable person by the judgment or settlement. (3) If: (a) the amount of compensation is fixed by a judgment that specifies an amount (the past care component), being a portion of the amount of compensation, to be a component for the residential care expenses or home care expenses already incurred relating to the injury; and (b) the amount that, apart from this subsection, would be payable to the Commonwealth under this section exceeds the past care component; the amount payable under subsection (1) is taken to be the past care component. (4) The amount is payable by the compensable person. (5) This section has effect only so far as it is not a law imposing taxation within the meaning of section 55 of the Constitution. > Note: So far as this section would be a law imposing taxation, see section 8 of the Health and Other Services (Compensation) Care Charges Act 1995. (6) Subject to subsections (7) and (8) and section 37, this section does not apply if: (a) the notifiable person in relation to the claim for compensation concerned has entered into a bulk payment agreement with the Chief Executive Medicare; and (b) the notifiable person has complied with all the conditions of the bulk payment agreement; and (c) an amount of compensation is fixed under the judgment or settlement during the period of the bulk payment agreement; and (d) the judgment or settlement determines all the outstanding liability of the compensation payer in relation to the claim. (7) Subsection (6) does not apply in relation to a judgment or settlement of a kind referred to in that subsection if: (a) an amount of compensation is fixed under the judgment or settlement during the period of the bulk payment agreement; and (b) at the time the judgment or settlement was made, it purported to determine all the outstanding liability of the compensation payer in relation to the claim; and (c) another judgment or settlement in respect of the claim is made after the end of the period of the bulk payment agreement. (8) Subsection (6) does not affect the validity of a payment of money pursuant to a notice under section 24 if the payment occurred before the amount of compensation was fixed under the judgment or settlement referred to in that subsection. (9) This section does not apply if: (b) the amount of compensation fixed by the judgment or settlement is a small amount; and (c) the amount of compensation so fixed is the entire amount of compensation for the injury to which the claim relates. > Note: For small amount see section 38.