BERYL COLLING and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 520
•10 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 520
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0842
GENERAL ADMINISTRATIVE DIVISION ) Re BERYL COLLING Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S Karas, AO, Senior Member Date10 July 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............[Sgd]................................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Daily rate of periodic compensation exceeds daily rate of disability support pension – No special circumstances exist – Periodic compensation payments treated as liable to be made – Disability support pension not payable – Applicant not qualified for pensioner concession card – Decision under review affirmed.
Social Security Act 1991 (Cth), ss 17(1), 94, 1061ZA(1), 1064, 1173, 1184K(1)
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690
Re Secretary, Department of Social Security and Winterbotham (AAT 6499A, 11 December 1990)
Re Zaccardi and Secretary, Department of Social Security (1995) 40 ALD 760
REASONS FOR DECISION
10 July 2009 Mr S Karas, AO, Senior Member BACKGROUND
1. In 1992, Ms Beryl Colling (the applicant) suffered a work-related accident. She was not in receipt of any income support payments or social security benefits at that time. She presently receives a gross compensation payment of $342 per week ($318 after tax). That amount represents an increase from her earlier compensation payments, which were $335 per week.
2. On 28 October 2008, the applicant lodged a claim for disability support pension. On 16 December 2008, Centrelink decided to reject that claim because the applicant’s income from her compensation payments exceeded the allowable limit. That is, although the applicant was qualified for disability support pension due to ill‑health, her rate of payment would be $0 because of the offsetting effect of her compensation payments.
3. The original decision maker reviewed and affirmed that decision on 18 December 2008, as did an authorised review officer on 14 January 2009.
4. On 22 January 2009, the applicant applied to the Social Security Appeals Tribunal (“SSAT”) for review. The SSAT affirmed Centrelink’s decision on 16 February 2009, and on 27 February 2009 the applicant applied for review to this Tribunal.
ISSUES AND LEGISLATION
5. The first issue for the Tribunal to determine is the daily rate of disability support pension the applicant is entitled to on the basis of her compensation payments. The Tribunal must then decide whether “special circumstances” make it appropriate to treat the whole or part of her compensation payments as not liable to be made.
6. The Social Security Act 1991 (“the Act”) is relevant to this appeal. Section 94 of the Act sets out the qualification criteria for disability support pension. The rate of pension is calculated according to the rate calculators found in s 1064 of the Act. However, that rate is affected by s 1173 of the Act, which details the effects of periodic compensation payments on a “compensation affected payment”. Section 17(1) of the Act defines “compensation affected payment” as meaning a disability support pension. Section 1184K(1) of the Act allows the whole or part of the applicant’s compensation payments to be treated as not having been made, or not liable to be made, if it is appropriate to do so in the “special circumstances” of the case.
EVIDENCE
7. The hearing of this matter was held on 30 June 2009. The applicant was not represented and gave evidence to the Tribunal by telephone.
8. The applicant submitted that she was entitled to “receive a reduction” of $60 from her compensation payments due to “special circumstances”, and that she was therefore entitled to a pensioner concession card. Her health and financial situation constitute, she says, the “special circumstances”.
9. The applicant stated that she did not want to receive money; she only wanted a pensioner concession card to enable her to access benefits such as reducing her rates, telephone and medical bills. She struggles to pay such expenses. She still maintains her private health insurance to help with hospital bills. She is on medication. She would like a pensioner concession card to enable her to cancel her health insurance and save money, especially now that she has to “pay out all the time”. She stated she is “going backwards” and selling “stuff to make ends meet”.
10. The applicant is unable to work and earn money like some other pensioners due to her ill-health, especially relating to her right arm. Her right arm is in such a bad condition that she described it as “gone”.
11. The applicant noted that she had moved to Queensland from Victoria for health reasons, that she was now alone without family support and that her 28 year marriage “had gone down the drain”. She has “no life” and has lost contact with family and “everything”.
12. The applicant stated she received compensation payments as recorded in the T documents. She paid tax on these payments but the tax refund was not a large amount, as she did not get all her tax payments back. Her bank account has reduced to $50. She wants to “keep a roof” over her head but fears she might lose her house, the mortgage on which has been paid off. She is awaiting an operation that she feels will confine her to a wheelchair. She says she is stuck in her house and has to pay for her lawn to be mowed and for other outgoings. She is unable to leave her house without getting “panic attacks” and so must be accompanied outside.
13. The applicant confirmed the facts as set out in the respondent’s Statement of Facts and Contentions dated 4 June 2009.
14. The respondent’s advocate, Ms Forsyth, submitted that although the applicant had medical conditions, these were not out of the ordinary. Ms Forsyth also submitted that the applicant was better off than other pension recipients even though she could not work and earn extra money: the applicant came to Queensland for health reasons, has private medical insurance and is in receipt of a “low income card” that allows her to get medication at a low rate.
15. Ms Forsyth noted that the applicant’s compensation payments had increased and that further increases were possible. As well, if the applicant’s situation changed by, for example, not having a house in the future, she could apply to Centrelink for benefits and for a review of her situation. Ms Forsyth submitted that the circumstance of the applicant were not “special” in the sense contemplated by s 1184K(1) of the Act. Ms Forsyth referred to Re Secretary, Department of Social Security and Winterbotham (AAT 6499A, 11 December 1990) to support the submission that the applicant was seeking to frustrate legislative intent and receive taxpayer funds to which she was not entitled.
16. Ms Forsyth submitted that the decision under review should be affirmed because the applicant is not entitled to receive disability support pension.
CONSIDERATION
17. The essential facts of this matter are not in dispute. The applicant concedes that at the time she lodged her claim, her compensation payments ($342 per week) exceeded the maximum rate of pension payable ($281.05 per week), thereby making her rate of disability support pension payment $0. However, she wants to receive a pensioner concession card for the benefits it gives. She submitted that her ill-health and financial position constituted “special circumstances”, entitling her to the pensioner concession card. In evidence, the applicant asserted that the law would allow her compensation payments to be reduced by $60 for the purposes of the Act, thus entitling her to the card she seeks.
18. The Tribunal finds that the daily rate of the applicant’s periodic compensation payments exceeds the daily rate of disability support pension. Thus, although she is qualified for disability support pension under s 94 of the Act, she is precluded from receiving any amount of that pension by operation of s 1173 of the Act. Furthermore, because disability support pension is not payable to her, she is not qualified for a pensioner concession card: s 1061ZA(1) of the Act.
19. Section 1184K(1) of the Act allows the whole or part of the applicant’s compensation payments to be treated as not having been made, or not liable to be made, if it is appropriate to do so in the “special circumstances” of the case. If “special circumstances” exist, the applicant’s periodic compensation payments might no longer exceed the daily rate of pension, in which case an amount of disability support pension would be payable to her.
20. The Act does not define “special circumstances”, but it has been generally accepted as meaning circumstances that are “unusual, uncommon or exceptional” and that make the case “markedly different from the usual run of cases”: Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, the Federal Court noted that for “special circumstances” to be present there would need to be something that distinguishes a case from the usual or ordinary case.
21. As mentioned above, the applicant described her ill-health which, she submitted, constituted “special circumstances”. After considering the nature and extent of her ill-health, the Tribunal finds that it does not constitute “special circumstances” as contemplated by the Act.
22. For financial hardship to qualify as “special circumstances”, such hardship must go beyond “straitened” circumstances and be truly exceptional: see Re Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690 and Re Zaccardi and Secretary, Department of Social Security (1995) 40 ALD 760.
23. Although the Tribunal notes the applicant’s statement that she is struggling to live on her compensation payments and pay her bills, it also notes she has no debts and continues to maintain her private health insurance. Also, the applicant has stated that she does not desire payment of disability support pension and that she only seeks the pensioner concession card, to receive the benefits it provides. The Tribunal notes that such benefits involve taxpayer monies and is a “burden” on the taxpayer and a “benefit” for the recipient.
24.As stated in the respondent’s Statement of Facts and Contentions:
“The intent underpinning the relevant compensation provisions in the Act is that those who receive a lump sum compensation payment are expected to support themselves from their own available resources for a period before seeking support from the taxpayer. In Re Secretary [Department of] Social Security and Winterbotham … [AAT 6499A, 11 December 1990], the Tribunal observed:
‘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 settlement agreed to by both parties, it is inequitable for the recipient to seek supplementary funds from the tax-payer’ ”.
25. There is nothing unfair, unintended or unjust about the applicant’s situation that would warrant the exercise of the discretion in s 1184K(1) of the Act in her favour. Her periodic compensation payments are greater than the disability support pension, she enjoys the benefits of a “low income card”, she owns her own home, and is debt free. Previous decisions (see above) have discussed what is required for circumstances to be seen as “special”. The applicant’s circumstances do not fall within that category.
26. Although the Tribunal has some sympathy for the applicant’s plight (she stated that she is without family in Queensland, that her marriage is at an end and that she experiences financial difficulties from time to time), her circumstances do not satisfy the requirements of s 1184K(1) of the Act.
DECISION
27. The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.
Signed:........................[Sgd]......................................................
AssociateDate of Hearing 30 June 2009
Date of Decision 10 July 2009
Applicant was self-represented
Solicitor for the Respondent Jasmine Forsyth, Departmental Advocate
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