Aydin; Secretary, Department of Social Services and (Social services second review) - [2022] AATA 2823

Aydin; Secretary, Department of Social Services and (Social services second review) [2022] AATA 2823 (29 August 2022)
Division:GENERAL DIVISION
File Number(s): 2020/5753
Re:Secretary, Department of Social Services

APPLICANT

Deniz Aydin And
RESPONDENT

Decision
Tribunal:Mr S Evans, Member
Date:29 August 2022
Place:Sydney

The reviewable decision is set aside and remitted to the Applicant’s delegate
........................................[Sgd]................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – Jobseeker Payment – refusal of benefits – imposition of compensation preclusion period – where the applicant received compensation via settlement judgment – whether the applicant is subject to a compensation preclusion period – whether special circumstances exist such that the compensation preclusion period can be disregarded in whole or in part – decision under review set aside and remitted.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Brian Lewis Growth v Secretary, Department of Social Security (1995) 40 ALD 541
Director General of Social Services v Hales [1983] FCA 81
Gartside and Secretary, Department of Social Services [2017] AATA 45
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re John Clinton Alver and Secretary, Department of Social Security [1992] AATA 333
Re Latour and Secretary, Department of Social Security (1988) 16 ALD 279
Secretary, Department of Family and Community Services v Chamberlain [2022] FCA 67
Secretary, Department of Social Security and Winterbotham [1990] AATA 808
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
[XX] August 2022
Introduction

The Respondent, Deniz Aydin, was involved in a motor vehicle accident for which he received a lump sum compensation payment. In 2020 Mr Aydin made two applications for Job Seeker Payment (JSP). The applications were refused by the Department of Social Services (the Agency) as he was subject to a compensation preclusion period. Mr Aydin appealed the decision of the Agency to the Social Services and Child Support Division of the Tribunal (AAT1). On 13 August 2020 the AAT1 found that special circumstances existed and used its discretion to disregard part of the compensation payment so that Mr Aydin became eligible to receive income support including JSP. The Secretary of the Department of Social Services (the Secretary) contends that Mr Aydin’s circumstances do not warrant a finding of special circumstances and has appealed the AAT1 decision at the General Division of the Tribunal.
For the reasons which follow, the reviewable decision will be set aside and remitted to the Secretary.
Background
On 10 May 2012 Mr Aydin was involved in a motor vehicle accident for which he received lump sum payments of $6,820 and $31,200 in 2012 and 2014 respectively, before being awarded $850,000 for his accident injuries in a settlement with the Victorian Transport Commission dated 23 March 2015 (the Compensation Payment).
Owing to the nature of Mr Aydin’s injuries the compensation payment he received was initially managed on his behalf by the Supreme Court of Victoria.
Whilst the compensation payment was being managed by the Supreme Court of Victoria, Mr Aydin asked that some of the funds be used to purchase a property at Mickleham, on which he had built a residential home (the Mickleham property).
On 22 March 2018 the Supreme Court of Victoria determined that Mr Aydin had the capacity to manage his own funds and transferred the $340,000 which remained of the compensation payment to Mr Aydin.[1]
[1] T17/88
On 27 March 2020 and 25 May 2020 Mr Aydin applied for JSP. Both applications were rejected as Mr Aydin was subject to a compensation preclusion period from 23 March 2015 through to 28 April 2024 (the preclusion period).
Mr Aydin sought review of the decisions to reject his applications as he did not believe the decision was fair and reasonable as he had ‘used any and all of [the] compensation payment to purchase a brand new home, car and furniture and all the maintenance that goes with it’.[2] On 14 April 2020 he informed the Agency he had $186,117 owing on his home loan for which he was required to continue to make payments, as well as costs including car insurance, phone and utility bills. He was also required to provide financial support for his young daughter and make child support payments to his ex-wife.
[2] T13/77
Whilst Mr Aydin was working his financial commitments were manageable, but he was made redundant and ceased working on 16 March 2020.[3] Because of the COVID-19 pandemic (the pandemic), he claimed it was ‘almost impossible’ to find a job. He concluded that he did not know how he would survive and pay his bills and was fearful he would be forced into bankruptcy.[4]
[3] T15/82
[4] T19/98
On 30 April 2020 Mr Aydin again wrote to the Agency. With reference to section 1184K of the Social Security Act 1991 (Cth) (the Act), he stated that he was experiencing ‘unusual, unforeseen or exceptional circumstances’ on account of the pandemic. He explained that he was working full time but lost his job and was made redundant when the pandemic began. He wrote that whilst he was continuing to apply for work, in the meantime he was ‘in urgent need of government assistance’.[5]
[5] T14/78-79
In a letter to the Agency dated 12 June 2020, Mr Aydin detailed his personal circumstances.[6] He confirmed the purchase of the Mickleham property and that he had lived there from mid-2017. He claimed to have spent the remainder of the compensation payment on the Mickleham property including fencing, concreting, landscaping, decking, creating an outdoor living area, building a ‘large’ pergola, interior design and furniture.
[6] T19/97-98
Mr Aydin also detailed his financial circumstances and provided further information regarding the expenditure of the compensation payment. He explained he was required to pay for general maintenance on the Mickleham property, in addition to living costs and medical and legal expenses. He wrote in part:
I have had large medical expenses as well as a costly legal battle with hefty charges while fighting for custody over my daughter as I have disputes with her mother which is still ongoing to this date. So far since my divorce I have paid close to $40,000 in divorce legal costs and these costs are still on going as I have communication problems with my ex partner which require legal intervention.
After a few financial hiccups I ended up with a mortgage of $175,000, I had lost my job at the ATO as I was dependant on work now to survive and get by.
After loosing my job at the ATO call centre when COVID-19 came into the picture; I was let go and made redundant.
Since loosing my job at the ATO my only chance of survival was to sell one of two cars I had. I made the decision to sell the MAZDA in order to get by as it was my last resort in getting financial support.
This car was sold for $75,000 in May 2020 - I used the funds I got from the sale and applied it to my homeloan; bringing the balance down to $112,000. (See statements from CBA for reference)
So up to date as of June 2020 I have a debt to commonwealth bank of $112,000 after making payment to my debt.
With the mortgate that I need to continue to pay, car insurance, child support, and any and all general living expenses. I also have a 8 year old daughter 2-3 days of the week over the weekend period to look after.[7]
[Errors in original]
[7] T19/97
Mr Aydin submitted that being unable to secure paid employment without access to JSP had placed him in a precarious financial position:
No work means no food. No water no electricity; nothing. and with work being extremely and almost impossible/difficult to find I have no alternative but to pray for government assistance; I feel I shouldn't have to feel punished because of this virus; if it never came into the picture I would be working and also would be able to financially provide for myself; I cannot do this right now due to lockdown laws and I have little to no financial reserves to use up, no alternatives, no family or friend support either. (please see letter from my parents when I had requested financial support) as they are unable to assist me also; they are also suffering because of this pandemic and have financial issues of there own to address.
I was self sufficient and everything was going good until COVID-19 put the country in lockdown and myself and more than half the country were immediately put out of work.
I kindly ask you to approve my claim as a JOBSEEKER to help me have a fighting chance of getting through this very difficult situation and I am able to find work again. I am actively seeking work but at this stage I'm in urgent need of government assistance.
This whole situation has brought me to my knees…[8]
[errors in original]
[8] T19/98
As referenced, on 26 May 2020 Mr Ayden’s parents had written a letter confirming they were unable to assist Mr Aydin as their business had suffered during the pandemic.[9]
[9] T19/99
On 1 July 2020 an Authorised Review Officer (ARO) affirmed both of the Agency’s decisions to reject Mr Aydin’s application for JSP on the basis of the preclusion period and having found that his circumstances did not warrant shortening of the preclusion period.
On 16 July 2020 Mr Aydin lodged an application to appeal the ARO’s decision at the AAT1.
The reviewable decision
On 13 August 2020 the AAT1 agreed that Mr Aydin was subject to the compensation preclusion period as calculated by the Agency. The AAT1 also found that Mr Aydin had at that time spent in excess of $16,000 on litigation in relation to the care of his daughter with ‘more litigation and expenditure on the horizon’. The AAT1 also acknowledged that Mr Aydin was paying for activities for his daughter on the weekends.
The AAT1 accepted that Mr Aydin was trying, but unable, to obtain work and his parents were unable to provide assistance as their business had failed and they were required to sell their property to raise funds. The AAT1 took into account that Mr Aydin had purchased two vehicles including a sports car, but noted he had sold the sports car and a television to raise funds. The AAT1 concluded that Mr Aydin was experiencing financial hardship that warranted exercise of the special circumstances provisions contained in section 1184K of the Act and determined that the preclusion period would cease from 13 August 2020 (the reviewable decision).
The Secretary’s appeal
On 21 September 2021 the Secretary applied to the General Division of the Tribunal for review and stay of the reviewable decision. On 2 October 2020 the Tribunal decided not to grant a stay of the reviewable decision and Mr Aydin was granted JSP backdated to 13 August 2020.
The matter was originally listed for hearing on 21 February 2021 to be held via MS Teams. At the commencement of proceedings, Mr Aydin informed the Tribunal he had scheduled a medical appointment that morning. By agreement of the parties the matter was adjourned to be relisted at an alternative date.
On 7 March 2022 the matter was listed for an in-person hearing to be held on 4 May 2022. On 31 March Mr Ayden expressed concern that he did not have the Section 37 Documents (T-documents) which the Secretary arranged to be re-sent to Mr Aydin. On 21 April 2022 both the Secretary and Mr Aydin were sent a pre-hearing check by the Tribunal. On 27 April the Tribunal contacted Mr Aydin by telephone regarding the hearing scheduled for 4 May 2022. Mr Aydin indicated that he would attend the hearing but that he had had disposed of the T-documents sent by the Secretary. A reminder email was sent to Mr Aydin on 3 May 2022 regarding the hearing the following day. When contacted by telephone, Mr Aydin confirmed to the Tribunal that he would attend the hearing.
On 4 May 2022 Mr Aydin did not attend the hearing and was not able to be contacted by telephone.
Subsection 40(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that the AAT may proceed in the absence of a party who has had reasonable notice of the proceeding. At the request of the Secretary’s representative, the matter was heard ex-parte.
On 10 May 2022, Mr Aydin sent by email a copy of a letter dated 4 May 2022 from Dr Anoma Bandara of the Blacktown Family Medical Centre stating he was seen on 4 May 2022 for a medical condition and ‘will be unfit for work on Wednesday 4 May 2022’. Mr Aydin provided no comment or further explanation.
After receiving Dr Bandara’s letter, availability was sought from both parties for a directions hearing. Mr Aydin was unable to be contacted and the matter was listed for a directions hearing on 28 June 2022. Mr Aydin was again unable to be contacted, and the directions hearing proceeded in his absence.
Having made all reasonable attempts to contact Mr Aydin, the Tribunal has proceeded to determine the matter having regard to the evidence provided by both parties. The evidence considered includes documents submitted subsequent to the reviewable decision, and the oral evidence provided on behalf of the Secretary.
IssueS
The issues to be determined by the Tribunal are:
(a)whether Mr Aydin is subject to a lump sum preclusion period and if so for what period;
(b)whether special circumstances exist which would justify treating part or all of Mr Aydin’s compensation payment as not having been made for the purpose of determining the preclusion period.
Relevant legislation
The relevant law in relation to compensation payments is set out in the Act (Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Additional relevant information is set out in the Social Security Guide (the Guide). Unless there are cogent reasons not to do so, government policy will usually be applied by the Tribunal.
Part 3.14 of the Act deals with compensation affected social security payments. The general effect of the part is set out in section 1160, which relevantly provides that where a person or their partner receives a compensation payment, the person’s social security payment is not payable or, if the social security benefit is paid out, requires the repayment of the benefit.
Section 1169 of the Act applies to people who have received lump sum compensation payments. It provides that a person cannot receive a compensation affected payment during a compensation preclusion period. Subsection 1169(1) of the Act stipulates that a preclusion period applies when a person receives a lump sum compensation payment and is receiving, or seeks to claim, a compensation affected payment. A preclusion period is a period during which a person cannot receive a relevant social security payment. The subsection states:
(1) If:
(a) a person receives or claims a compensation affected payment; and
(b) the person receives a lump sum compensation payment;

the compensation affected payment is not payable to the person in relation to any day or days in the lump sum preclusion period.
(2) In this section:
lump sum compensation payment does not include a lump sum payment:
(a) to which section 1164 applies; or
(b) that relates only to arrears of periodic compensation payments.
…
(emphasis in original)
Section 17 of the Act provides definitions relevant to compensation recovery. Subsection 17(2) of the Act defines ‘compensation’ to include, among other things, a payment of damages, a payment under a scheme of insurance or compensation under a Commonwealth or State law, a payment in settlement of a claim of damages under such a scheme or any other compensation or damages payment.
In cases where a lump sum payment is received as settlement of claim, including as a consent judgement, subsection 17(3)(ab) provides that the compensation part of the payment is deemed to be 50 percent of the lump sum payment (the 50 percent rule).
Section 1170 of the Act sets out how a lump sum compensation preclusion period is calculated, including the applicable formula.
Is Mr Aydin subject to a lump sum preclusion period?
The Secretary has calculated a preclusion period using section 1170 of the Act. As Mr Aydin was receiving periodic compensation payments until 22 March 2015, the Secretary has determined the start date to be the 23 March 2015.
In accordance with subsection 17(3) of the Act the Secretary has determined that Mr Aydin’s compensation part of the lump sum payment is $444,010,00, which amounts to 50 percent of the gross settlement of $888,020. Applying the formula in section 1170 and using the divisor in place at the time the lump sum payment was received results in a preclusion period of 475 weeks.[10] Mr Aydin has not indicated that he disputes the Secretary’s calculation of the preclusion period. I am satisfied that Mr Aydin was subject to a preclusion period, and that the preclusion period as calculated by the Secretary is correct.
[10] T23/109
Do special circumstances exist?
Subsection 1184K of the Act allows the Secretary to treat the whole or part of a compensation payment as not having been made or not liable to be made if the Secretary thinks it is appropriate to do so in the special circumstances of the case:
(1)For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.
The purpose of section 1184K and the preconditions for enlivening the discretion were outlined by Kiefel J in Secretary, Department of Family and Community Services v Chamberlain in relation to the previous iteration of the provision. After acknowledging that the provision was inserted into the Act to ameliorate the harshness of the arbitrary assumptions underlying Part 3.14, she outlined the preconditions for exercise of the discretion:
Pursuant to it the decision-maker is entitled to treat the compensation payment, or part of it, as if it had not been made, which is to say in a manner different from that required by the formulae. This is undertaken only if the requisite opinions are formed, namely that "special circumstances" exist and it is considered appropriate to treat the compensation payment such that there will either be no period when double payment is assumed to have been made, or there will be a shorter period.
The Act does not define what constitutes ‘special circumstances’ but the meaning of the term has been considered by both the courts and in previous decisions of the Tribunal, including in the context of other social security legislation.
Notably, in Re Beadle and Director-General of Social Security (Beadle) the Tribunal observed that ‘[a]n expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition’.[12] Special circumstances are by definition expected to be ‘unusual, uncommon or exceptional’. They need not be unique, but ‘they must have a particular quality of unusualness that permits them to be described as special’.
[12] (1984) 6 ALD 1, 3
In Brian Lewis Groth v Secretary, Department of Social Security Kiefel J, referring to the case of Beadle, stated that what is required to establish special circumstances is something which distinguishes a person’s case from others ‘to take it out of the usual or ordinary case’.[13]
[13] (1995) 40 ALD 541, 545
The Guide at 4.13.4.20 provides a list of factors to consider when determining special circumstances which relevantly include ill health, emotional state, decision making capacity, financial circumstances and changed circumstances.
Consistent with Beadle, the Guide also states that the circumstances must be either ‘unusual, unforeseen or exceptional’ or that the operation of the Act would result in circumstances that are unfair, unjust, or unreasonable.
In considering the application of the special circumstances provision, I am mindful one of the objects of the compensation preclusion provision is that recipients of lump sum compensation payments are expected to support themselves before seeking support from the taxpayer. With reference to the compensation provisions the Tribunal observed in Secretary, Department of Social Security and Winterbotham[14]:
This particular piece of legislation … was aimed specifically at preventing those people receiving compensation for loss of income because of incapacity for work, from being able also to receive benefit from the public purse … Primary responsibility for the payment of such [compensation] lies at the feet of those responsible for the compensable injury. Once that responsibility has been met, by way of a settlement sum agreed to by both parties, it is inequitable for the recipient to seek supplementary funds from the tax-payment.[15]
[Emphasis added]
[14] [1990] AATA 808
[15] Secretary, Department of Social Security and Winterbotham [1990] AATA 808, [19]
Evidence relating to Mr Aydin’s financial circumstances

In the reviewable decision the AAT1 accepted that Mr Aydin would continue to have significant legal fees to pay, was experiencing difficulty securing employment during the pandemic and had ongoing costs relating to his home including mortgage and rates. The AAT1 found that Mr Aydin’s circumstances were in many ways out of his control. Consequently, the hardship he was experiencing was sufficient to justify exercising the discretion provided in subsection 1184K to disregard part of the compensation received in calculating the preclusion period such that it would cease on 13 August 2020.
The Secretary submits that Mr Aydin has not demonstrated his circumstances warrant the exercise of the discretion. special circumstances provisions, arguing in the first instance that the evidence does not support Mr Aydin’s claim to be experiencing financial hardship.
In a Compensation Recovery Statement of Financial Circumstances form dated 12 June 2020, Mr Aydin lists as assets the Mickleham property valued at $640,000, a Mazda vehicle valued at $40,000 and $3,856.91 held in a Commonwealth Bank of Australia (CBA) bank account.[16]
[16] T19/92-93
On 18 February 2022 Mr Aydin submitted additional evidence to the Tribunal along with an email in which he claimed his expenditure and personal circumstances had changed since the reviewable decision. Specifically, he had married and was required to support not only his daughter, but his new wife, Ms White. He claimed his cost of living had doubled as Ms White did not have work rights in Australia. He was also burdened with the requirement to pay ‘significant ongoing costs in order to get [Ms White’s] visa application which is currently in process’.
Mr Aydin has provided a certificate of marriage dated 4 November 2021 confirming that he and Ms White were married in California on 12 October 2021.
A cost agreement between Ms White and a law firm indicates that she paid $6,626 in fees in November and December 2021 for the firm to arrange a bridging visa and to submit a partner visa application on her behalf. As of 16 February 2022 the estimate of professional fees Ms White was required to pay the firm was a total of $8,530.50.
In addition to the fees for Ms White’s visa applications, Mr Aydin has provided an estimate of professional fees from a law firm dated 7 March 2022 in respect to possible legal proceedings in the family court. A Legal Trust Account Statement dated 5 October 2020 provides a balance of $30,000 following three transfers from Mr Aydin in September and October 2020. There is no indication that the funds have been used as of 5 October 2020. However, a statement of fees from another law firm identifies fees of $20,858 incurred between March 2020 August 2020.
Mr Aydin is required to support his daughter and has provided evidence of having transferred money to his ex-wife for his daughter including:
·15 November 2020 $480 for child support
·19 May 2020 $360 for child support
·24 March 2019 $100 ‘book money’
·8 April 2019 $195 for gymnastics
Also in evidence are various utility bills relating to the Mickleham property and evidence of insurance and other expenditures related to his vehicles.
Sale of the Mickleham property
The Secretary has submitted a CoreLogic property report confirming the Mickleham property was sold for $680,000 on 19 March 2021.
Correspondence from the Supreme Court of Victoria confirms that Mr Aydin purchased the land for the Mickleham Property for $210,000 in August 2016 and constructed a residence on it for a total cost of $509,000. On the basis of these sums the Secretary calculates that Mr Aydin has made a profit of $170,000 from the sale of the property.
Mr Aydin claims to be living with his parents to whom he is paying $400 a week in rent. Though his parents had previously stated they were unable to support Mr Aydin, his bank statements show a transfer of $10,000 from ‘Ozcan Aydin’, which appears to be from his father.[17]
[17] ST7/369
Discretionary spending and bank accounts
Mr Aydin’s more recent bank account statements were provided by the CBA following request by the Secretary. The statements detail transactions made between 21 October 2020 through to 3 February 2022, in addition to the statements covering the period 12 August 2014 to 19 October 2020 which were already in evidence.[18]
[18] ST19/491-620, ST2-ST10/5-411
The Secretary contends that between September 2016 and June 2020 Mr Aydin spent over $270,000 on the purchase and maintenance of vehicles and vehicle modifications and parts. Examples include:
·7 October – 8 October 2019 Mazda RX7 motor rebuild $25,000[19]
·26 July 2019 Import Monster Pty Ltd $7,400[20]
·1 July 2019 the purchase of a Mazda RX7 Lip Kit for $6,035[21]
·26 June 2019 Mazda RX7 for $79,000[22]
·1 September 2018 a purchase from ProSpeed Racing for $12,367.65[23]
·26 March 2018 a new car purchased for $69,500[24]
·12 December 2017 purchase from Ichiban Imports for $13,000[25]
[19] ST4/280-281
[20] ST4/264
[21] ST4/257
[22] ST4/254
[23] ST4/164
[24] ST10/390
[25] ST4/96
In the year ended 22 April 2022 the Secretary contends that Mr Aydin spent over $10,000 across 73 transactions purchasing hydroponic equipment. In the same period Mr Aydin spent over $22,200 on jewellery and $15,000 on Uber Eats.
Mr Aydin’s immigration movement records confirm he was overseas between 31 July 2021 and 12 January 2022. Based on the marriage certificate and Mr Aydin’s submissions it appears that he spent most of the time in the United States.
Transaction records from Mr Aydin’s travel money card detail his expenditure between 4 August 2021 and 9 December 2021. They indicate he transferred over $90,000 which was converted into US dollars and spent whilst in the United States.
Crypto-trading
In February 2022 the Secretary requested transaction records for Mr Aydin’s CoinSpot cryptocurrency trading platform accounts between 20 October 2020 to 3 February 2022.
The Secretary has submitted into evidence an asset log for CoinSpot which shows Mr Aydin opened a trading account on 28 April 2019.[26] The CoinSpot account records deposits of more than one million dollars into the cryptocurrency trading account since May 2021. As of 3 February 2022, Mr Aydin had readily accessible funds in Australian dollars and various cryptocurrencies valued at over $14,000.[27]
[26] ST20/628
[27] ST20/629
Mr Aydin’s health and decision-making capacity
When considering whether it is appropriate to exercise the special circumstances provision, the Guide sets out that a compensation recipient’s health, emotional state and decision making capacity are some of the factors to be considered.
As mentioned above, the nature of the injuries Mr Aydin sustained in the accident meant that his compensation was initially managed by the Supreme Court of Victoria. However, by 22 March 2018 the Supreme Court had formed a view that Mr Aydin had recovered from his injuries and was capable of managing his own finances.
In evidence is a medical report dated 17 October 2020 from Mr Aydin’s general practitioner stating that Mr Aydin has various medical conditions which affect his capacity to work including kidney and liver damage. The report also states Mr Aydin was ‘in financial hardship due to unemployment and sickness’.
For a person who has received compensation following an accident, ill health is neither unusual or uncommon or exceptional. Whilst Mr Aydin was seriously injured in the motorcycle accident for which he was compensated, the evidence indicates that his condition has improved markedly in the years since.
I take into account Mr Aydin’s submissions and the report of his general practitioner, but as the Supreme Court of Victoria determined in 2018 that Mr Aydin was capable of managing his finances, I am satisfied Mr Aydin was of sound decision making capacity from that time.
Having regard to the factors identified in the Guide, I am satisfied that Mr Aydin’s health, emotional state or decision making capacity cannot be regarded as factors which are in themselves, or contributed to, special circumstances.
Consideration
Based on the evidence, I am satisfied that Mr Aydin has not accounted for the expenditure of considerable funds which were known to have been available to him. Notably, he received $346,089 in unspent compensation which he claims to have spent requiring him to draw a $175,000 mortgage on his freeheld home.[28] Based on Mr Aydin’s submissions, it would appear that he spent the remainder of the compensation payment along with the $175,000 mortgage, totalling some $521,089, between 17 August 2016 and 27 March 2020 when he lodged his first application for JSP due to financial hardship.[29] In his submissions Mr Aydin has accounted for some of this expenditure, but I accept the Secretary’s contention that much of this money has not been accounted for.
[28] T19/97
[29] Respondent’s Statement of Facts, Issues and Contentions, [38]
At the time of the reviewable decision Mr Aydin was still residing in the Mickleham property, which he sold for $680,000 in March 2021. Consistent with his claim, he appears to have resided with his parents since March 2021. Based on the initial costs of the land and building, Mr Aydin profited some $170,000 from its sale. Some allowance should be made for the additional works identified by Mr Aydin, meaning the net profit may well be significantly less. Regardless of the profit on the sale of the property, there is no reason to doubt that the funds realised by the sale were not available to him.
Taking into account Mr Aydin’s expenditure on legal fees, support for Ms White and child support and other expenditure related to his daughter, I am not satisfied that the identified costs and expenditures account for the sums of money he is known to have received. Accordingly, I do not accept that Mr Aydin is experiencing straitened financial circumstances at this time.
Even if I were to accept that Mr Aydin was in straitened financial circumstances (which I do not), I am ‘required to consider all of the matters the evidence admitted produces and straitened financial circumstances is one factor, albeit a very important one’.[30] Other factors to be considered include whether the dispensation of an individual’s compensation payment has been reckless.[31]
[30] Gartside and Secretary, Department of Social Services [2017] AATA 45, [57], see also per Sheppard J, Director General of Social Services v Hales [1983] FCA 81, 321
[31] Gartside and Secretary, Department of Social Services [2017] AATA 45, [58]
As calculated by the Secretary, and supported by the bank statements in evidence, Mr Aydin spent $270,000 on the purchase and maintenance of motor vehicles between September 2016 and June 2020. Further, his spending in the United States, on jewellery and Uber eats leads me to conclude that if he was experiencing financial hardship, he was to a large extent the author of his own misfortune. The Tribunal in Re John Clinton Alver and Secretary, Department of Social Security[32] has previously determined that the cause of an individual’s financial difficulties is relevant when considering the exercise of the special circumstances provisions and the Tribunal has previously ‘tended to take a hard line where someone has, though extravagance or thoughtlessness, brought about their own dilemma’. The evidence strongly supports a finding that any financial difficulties Mr Aydin may have faced when he claimed JSP or subsequently were brought about by his own extravagance.[33]
[32] [1992] AATA 333
[33] Re John Clinton Alver and Secretary, Department of Social Security [1992] AATA 333, [49], see also Re Latour and Secretary, Department of Social Security (1988) 16 ALD 279, 280
For these reasons, I am satisfied that Mr Aydin’s circumstances are not sufficient at this time to be considered “special” for the purposes of section 1184K and the correct and preferable decision is that the compensation preclusion period remains in place until 28 April 2024.
Mr Aydin’s financial and personal circumstances may have changed since August 2020 but any financial difficulties he was experiencing at that time were in large part the consequence of his own decisions. It is also the case that he had not accounted for a significant portion of the compensation payment at that time. The subsequent sale of the Mickleham property in March 2021 indicates the sale of the asset was an option available to him when he claimed JSP and at the time of the reviewable decision. At this time, it is a liquid asset which is largely unaccounted for.
Finally, I am mindful that following the reviewable decision Mr Aydin has been in receipt of JSP for a period of time and will be expected to owe a debt to the Commonwealth as a consequence of this decision. The Secretary has calculated that Mr Aydin received $16,062 in JSP and an additional $5,400 Covid Supplement between 13 August 2020 and 20 July 2021. I do not consider that the quantum of any debt arising as a result of this decision is such that it would significantly alter Mr Aydin’s financial circumstances.
Decision
For the reasons outlined above, the decision of the Social Services and Child Support Division dated 13 August 2020 is set aside. The matter is remitted to the Secretary with the direction that the compensation preclusion period remain until 28 April 2024.

I certify that the preceding 77 (seventy -seven) paragraphs are a true copy of the reasons for the decision herein of

......................................[Sgd]..................................
Associate
Dated: 29 August 2022

Date(s) of hearing: 4 May 2022

Date final submissions received: 28 June 2022

Solicitors for the Applicant: Stephen Thompson

Respondent: In person

[11] [2002] FCA 67, [26].

Date(s) of hearing:	4 May 2022
Date final submissions received:	28 June 2022
Solicitors for the Applicant:	Stephen Thompson
Respondent:	In person