Annetta and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 874

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 874

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2582

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		DOMENICO ANNETTA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date9 December 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..................[signed]…...............

Member

DISABILITY SUPPORT PENSION – periodic compensation payments – payment reduced by amount of periodic compensation – nil payment – whether person single – whether special circumstances - decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security Act 1991 (Cth) s 17, s 1173, s 1184K

Vernon and Secretary, Department of Education, Employment and Workplace Relations, Re [2008] AATA 513

REASONS FOR DECISION

9 December 2011 Mr C. Ermert, Member       

INTRODUCTION

1.      In July 1993 Mr Annetta, the applicant in this case, claimed workers compensation for a workplace injury.  As a result of that claim he receives $642 per week.  Mr Annetta is married, although his wife lives in Thailand.  Mr Annetta lives with his son.

2.      On 31 December 2010 Mr Annetta lodged a claim for disability support pension (DSP) with Centrelink. Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs.  Centrelink rejected the claim.  On 1 March 2011 an authorised review officer (ARO) of Centrelink affirmed the decision to reject the claim.  Mr Annetta sought a review of the decision by the Social Security Appeals Tribunal (SSAT). On 6 June 2011 the SSAT affirmed the decision of the ARO.  This matter is an application for a review of the SSAT decision.

THE HEARING

3.      

Mr Annetta appeared in person at the hearing and represented himself. 

Ms A Bramley, a Centrelink advocate, represented the respondent. The Tribunal had before it the documents provided by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  The Tribunal also had before it the respondent’s Statement of Facts and Contentions.

THE ISSUES

4.      The issues to be determined are:

a)whether Mr Annetta is entitled to be paid DSP having regard to the effect of his periodic compensation payments; and

b)whether there are special circumstances in this case.

THE EVIDENCE

5.      Mr Annetta testified that he first received Workcover payments on 23 July 1993.  The payments stopped in 2004, 2005 and 2006 and that caused him to lose his house.  Around Christmas 2010 Mr Annetta telephoned Centrelink and was told that he may be eligible for part payment of DSP.  He subsequently completed and lodged the application forms. 

6.      Mr Annetta said he had a friend overseas who received superannuation payments from ComSuper.  This friend does not pay tax and yet receives a DSP.  Mr Annetta feels that he is being discriminated against. 

7.      When the Tribunal asked Mr Annetta whether any special circumstances might apply to his situation, Mr Annetta said that he had no money to live on.  He had to pay for medications and bills and that he had to support his wife in Thailand.  Mr Annetta said that, contrary to an assertion in the respondent’s Statement of Facts and Contentions, he does pay rent to his son, with whom he is living.

8.      In his answers to questions from Ms Bramley, Mr Annetta said that his wife owned her house in Thailand, which was worth approximately $65,000.  He said also that he has travelled to Thailand on three occasions.

CONSIDERATION

9.      There was no dispute over the key facts in this case:

a)that Mr Annetta is receiving weekly compensation payments of $642 per week;

b)that the payments are from CGU Workers Compensation, made under the Victorian Workcover scheme, which is a State-legislated compensation scheme; and

c)the calculations of the DSP that would be payable to Mr Annetta, either at the married or single rate. 

10.     The relevant legislation is contained in the Social Security Act 1991 (the Act).  Section 17 defines DSP as a compensation affected payment.  Section 1173 of the Act provides for a person’s daily rate of compensation affected payment to be reduced by the amount of the person’s periodic compensation.  Mr Annetta’s daily rate of compensation is $91.71.  This exceeds the married rate of DSP, which is $38.56 per day; and the single rate of DSP, which is $51.15 per day.  Hence, regardless of whether Mr Annetta is treated as married or single, his DSP is reduced to zero and is therefore not payable.

11.     Section 1184K of the Act provides the Secretary with discretion to disregard some or all of the compensation where there are special circumstances.  Ms Bramley submitted that the discretion could not be exercised if it frustrated the intentions of the Parliament.  She contended that the Act was clear in providing the dollar for dollar reduction in DSP where the recipient was also receiving compensation payments. 

12.     In her Statement of Facts and Contentions, Ms Bramley referred the Tribunal to Re Vernon and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 513. There, the Tribunal said, at [25], In my opinion, that there is a dollar for dollar deduction of periodic compensation when calculating the DSP payable ... is the clear and intended consequence of the legislation.  It is therefore not a matter which I consider is a special circumstance in Mr Vernon’s case.  This Tribunal adopts the same reasoning and finds that the consequences of the dollar for dollar reduction are not a special circumstance that applies in this case.

13.     In regard to Mr Annetta’s financial situation, the Tribunal notes his evidence that, despite having to pay for medications, rent and other expenses he still had sufficient funds for three trips to Thailand, where his wife owns a house worth $65,000.  The Tribunal notes also that his compensation is significantly more than the rate of DSP.  The Tribunal is satisfied that Mr Annetta is not suffering financial hardship to the extent that it could be considered a special circumstance under the provisions of the Act.  Accordingly, the Tribunal finds that there are no special circumstances in this case that might warrant the exercise of the discretion in section 1184K of the Act. 

14.     The Tribunal finds that the decision to reject Mr Annetta’s claim for DSP has been correctly made and that there are no special circumstances to warrant the exercise of the discretion.

DECISION

15.     The Tribunal affirms the decision under review

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, Member

Signed:................................[signed]........................................
  Clerk              Y Maker

Date of Hearing  28 November 2011
Date of Decision  9 December 2011
Advocate for the Applicant             Self-represented

Advocate for the Respondent        Ms A. Bramley, Centrelink Advocacy Branch