Barker and Secretary, Department of Social Services (Social services second review)

This matter concerned a review of decisions regarding compensation recovery by the Secretary, Department of Social Services, from the applicant. The dispute centred on whether payments made to the applicant under the *Workers Compensation Act 1987* (NSW) constituted "lump sum compensation payments" for the purposes of the *Social Security Act 1991* (Cth), and whether there were special circumstances warranting the exercise of discretion to disregard these payments. The case was heard by Mrs J C Kelly, Senior Member, of the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine two primary legal issues. Firstly, whether the payments received by the applicant, which were described as weekly compensation and medical expenses under a settlement of a workers' compensation claim, should be treated as "lump sum compensation payments" under section 17 of the *Social Security Act 1991* (Cth). Secondly, if the payments were considered compensation, the Tribunal had to consider whether "special circumstances" existed under section 1184K of the Act to allow the Secretary, or the Tribunal acting in that capacity, to treat all or part of the compensation payment as not having been made.

The Tribunal found that the calculation of the compensation charge was appropriately made pursuant to section 1173 of the *Social Security Act 1991* (Cth). While the applicant raised numerous complaints about the agency's conduct, the Tribunal identified an error in the initial calculation of the compensation charge, specifically concerning the length of the period and the consequent amount. This error had been subsequently corrected by the compensation insurer. The Tribunal considered the definition of "special circumstances" as outlined in *Beadle and Director General of Social Security* (1984) 6 ALD 1, requiring circumstances that are uncommon, unusual, or exceptional. The Tribunal concluded that no administrative error had occurred that would warrant a waiver under section 1237A of the Act, nor did the identified errors constitute "special circumstances" under section 1184K that would justify disregarding the compensation payments.

In relation to the Disability Support Pension (DSP) compensation charges, the AAT1 decision was set aside. The Tribunal substituted a decision that the applicant was liable to repay compensation charges of $45,636.34 for the period 23 May 2014 to 4 June 2016, and $57,897.73 for the period 5 June 2016 to 30 November 2018. For the Newstart compensation charge, the AAT1 decision for the period 28 December 2013 to 22 May 2014 was affirmed.