Bloye and Secretary, Department of Family and Community Services

[2002] AATA 455

DECISION AND REASONS FOR DECISION [2002] AATA 455

ADMINISTRATIVE APPEALS TRIBUNAL      )           
  )           No Q2002/195
GENERAL ADMINISTRATIVE DIVISION        )

Re      JUDITH BLOYE     
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES            COMCARE  
  Respondent

DECISION

Tribunal       Mr R G Kenny, Member    

Date14 June 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.

..................(Sgnd)......................
  R G Kenny
  Member

CATCHWORDS
SOCIAL SECURITY – lump sum compensation payment – compensation affected payment – lump sum preclusion period and calculation thereof – whether amount received - special circumstances

Social Security Act 1991 (Cth) – ss 17(1),(2),(3),(4); s1165(2AA),(5),(8),(9); 1184(1)

Beadle v Director-General of Social Security (1985) 60 ALR 225
Department of Social Security v Banks (1990) 20 ALD 19
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Haidar v Secretary, Department of Social Security (1998) 28 AAR 288
Kertland v Secretary, Department of Family and Community Services (1999) 57 ALD 600
Males v Secretary, Department of Family and Community Services (1999) 57 ALD 793
Re Ivovic and Director-General of Social Services (1981) 3 ALN 95
Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
Secretary Department of Social Security v Ellis (1997) 46 ALD 1
Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75
Secretary, Department of Family and Community Services v Mourilyan [2001] FCA 1583

REASONS FOR DECISION

14 June 2002           Mr R G Kenny, Member                

The Application

1. On 18 June 2001, Judith Bloye (the applicant) settled a compensation claim with Workcover Queensland (WorkCover) in relation to an injury sustained by her on 14 July 1997. In accordance with that settlement, she was to receive a lump sum payment of $131,971.48.

2. The applicant had been paid periodic compensation payments by WorkCover after her injury and then disability support wife pension, in accordance with the terms of the Social Security Act 1991 (the Act), by Centrelink. On 22 June 2001, Centrelink claimed recovery of an amount of $18,727.55 from WorkCover, representing the pension payments paid by Centrelink to the applicant in the preclusion period of 112 weeks from 25 July 1998 until 15 September 2000. Centrelink's calculations of that recovery amount were based on 50% of a total of $126,972.12 which was the total settlement amount after the periodic WorkCover payments of $4,999.36 had been deducted.

3. Centrelink's decision was affirmed by an authorised review officer on 29 August 2001 and, in turn, by the Social Security Appeals Tribunal on 30 January 2002. On 25 February 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
   Appearances

4. The applicant attended the hearing and was represented by Mr Paul Smith of counsel. Mr Tim Ffrench appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).

5. At the hearing, the following material was taken into evidence from

• the respondent:

  exhibit T1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1 – T23);

  exhibit T2 – supplementary T documents (S1-S5);

  exhibit R1 – a pension payment summary;

  exhibit R2 – statements of the applicant's earnings;

  exhibit R3 –applications for advance payments of wife pension, dated 14 February 2002, and disability support pension, dated 3 January 2002, respectively;

• the applicant:

  exhibit A1 – an outline of submissions;

  exhibit A2 – a statement, dated 4 June 2002, from the applicant;

  exhibit A3 – a statement, dated 5 June 2002, from Sebastion Miano with annexed medical reports;

  exhibit A4 – a statement, dated 28 May 2002, of removal expenses.

Issues, Legislation and Background

1. The Act makes provision for Centrelink to impose a period of preclusion from receipt of income support payments in certain situations where a person has received lump sum compensation for injury. The relevant provisions of the Act were amended by Act No 71 of 2001 with effect 20 September 2001, but did not materially change the provisions which were operative at the time of the the initial decision and that of the authorised review officer. These provisions were also relied upon by the Social Security Appeals Tribunal and are set out below. The provision relevant to the determination of a preclusion period reads:

   "1165(2AA) If:

   (a) a person receives or claims a compensation affected payment; and

   (b) the person is a member of a couple; and

   (c) the person receives a lump sum compensation payment (whether before or after the person receives or claims the compensation affected payment) on or after 20 March 1997;

   no compensation affected payment is payable to the person for the new lump sum preclusion period."

1. The term "compensation affected payment" is defined in sub-section 17(1) of the Act and includes disability support wife pension. The term "lump sum compensation payment" is not defined in the Act but the term "compensation" is defined in sub-section 17(2) which reads:

   "17(2) For the purposes of this Act, compensation means:

   (a) a payment of damages; or

   (b)   a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or

   (c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or

   (d) any other compensation or damages payment;

   (whether the payment is in the form of a lump sum or in the form of a series of periodic payments) that is:

   (e) made wholly or partly in respect of lost earnings or lost capacity to earn; and

   (f)   made either within or outside Australia."

1. The component of the lump sum that may be taken into account in calculating a preclusion period is referred to as the "compensation part of a lump sum" which term is defined in the Act as follows:

   "17(3) For the purposes of this Act, the compensation part of a lump sum compensation payment is:

   (a)          50% of the payment if the following circumstances apply:

   (i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and

   (ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or

   (ab) 50% of the payment if the following circumstances apply:

   (i) the payment represents that part of a person's entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and

   (ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and

   (iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or

   (b) if those circumstances do not apply—so much of the payment as is, in the Secretary's opinion, in respect of lost earnings or lost capacity to earn."

2. Pursuant to sub-section 1165(5) of the Act, where periodic payments, as that term is defined in sub-section 17(1) of the Act, have been made, a lump sum preclusion period begins on the day after the last day of the periodic payment period. The length of that preclusion period is determined in accordance with the formula in sub-sections 1165(8) and (9) of the Act which read:

   "1165(8) If a compensation lump sum is received on or after 20 March 1997, the number of weeks in the preclusion period is the number worked out under the following formula:

   Compensation part of lump sum
   Income cut-out amount

1165(9) If the number worked out under subsection (4) or (8) is not a whole number, the number is to be rounded down to the nearest whole number."

10. The term "income cut-out amount" is defined in sub-sections 17(1) and (8) of the Act. Also, where periodic payments have been paid and then a lump sum is paid, sub-section 17(4) of the Act applies to remove the periodic payments from the calculation of the preclusion period. It reads:

"17(4) Where a person:

(a) has received periodic compensation payments; and

(b) after receiving those payments, receives a lump sum compensation payment (in this subsection called the LSP ); and

(c) because of receiving the LSP, becomes liable to repay an amount (in this subsection called the Repaid Periodic Compensation Payment — RPCP ) equal to the periodic compensation payments received;

then, for the purposes of subsection (3), the amount of the lump sum compensation payment is:           

LSP – RPCP"

11. There is provision for part of a compensation payment to be disregarded where sub-section 1184(1) of the Act applies. It reads:

"1184(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."

12. Where income support has been given during the period of preclusion, as in this case, the charge monies are able to be recovered directly from the insurer, in this case WorkCover, pursuant to the operation of the provisions in Part 3.14 of the Act.

13. The following facts are not in dispute.

14. The applicant received periodic compensation payments from WorkCover from the time of her injury in the amount of $4,999.36. She received income support in the form of disability support wife pension from Centrelink thereafter and these payments were continuing as at 15 September 2000.

15. On 18 June 2001, a solicitor acting for WorkCover (see T4) advised Centrelink that the State of Queensland was to pay the applicant the sum of $120,000 clear of the Workcover refund of $11,871.48. That latter amount comprised payments for such matters as medical and hospital expenses as well as the periodic payment amount of $4,999.36. The total effective gross settlement sum was given as $131,971.48. On 22 June 2001, Centrelink advised that it calculated a repayment amount on the basis of those sums of $18,727.55, representing the pension payments paid by Centrelink to the applicant in the preclusion period of 112 weeks from 25 July 1998 until 15 September 2000. In making that calculation, Centrelink used a lump sum divisor (income cut-out amount) of $562.75 (see T6).

16. The matters that are in issue are:

(a)what amount of lump sum compensation was received by the applicant; and

(b)whether there are special circumstances in the case whereby any amount of the lump sum received by the applicant should be disregarded.

Applicant's Case
17. The applicant said that she only received a total of $59,000 after the settlement because of deductions that were made. These comprised the $18.727.55 paid to Centrelink, a HIC refund of $9,000 and legal costs of $35,000. She had used $16,000 of this to repay loans to her children and purchased a Holden Commodfore for $14,000. She spent $9,500 on household items and $10,000 on two speedway motor-cycles and parts. The motor-cycles were to be renovated by her husband. She said that these were readily saleable and that they were earmarked as the source of funds to pay for her husband's funeral.
18. She said that her husband's health was failing badly and that they were in a difficult financial position. One factor that they were about to change was the amount of rent they were paying. They were soon to move from Caboolture, where they were paying $170 per week rent, to Chinchilla, where the rent would be only $125 per week.  She said that she had obtained quotes for the removal process and that the overall amount would be about $2,800.
19. In her statement, the applicant gave the following as her present "financial position" and confirmed, in her evidence, that it was correct:
Item     $ per fortnight         
Rent    340.00
Electricity       30.00  
Telephone      20.00  
Groceries       200.00
Chemist         30.50  
car registration          16.87  
Petrol   50.00  

20. The applicant said that her right shoulder problem which constituted her initial injury was getting worse and that she was now experiencing difficulty with her left arm. She said that she was getting frequent headaches and she had recently expericed a sensation of numbness down her left side but that tests had revealed that it was probably due to stress.
21. In relation to the settlement sum, the applicant said that she had retained a sum of $10,000 but that much of that would be used up in legal fees and the move to Chinchilla. She said that references in earlier documentation to the need for money to be put aside for surgical treatment for her husband were no longer relevant as she had been advised that there was now no point in subjecting him to any further procedures.
22. The applicant was questioned by Mr Ffrench about her estimates of household expenses. She said that, in addition to her husband and herself, she had the responsibility of looking after two grand-daughters. Crystal, aged 10 years, lives in Toowoomba, and stayed with the applicant every second week-end and she said that this necessitated a trip to Toowoomba to collect her and another trip to return her. Emma, aged 13 years, lives in Redcliffe and the applicant looks after her each weekend and for all of the school holidays. She has to drive to and from Redcliffe to collect and return her each week-end. She said that the car she drives is a V6 Holden Commodore and that her husband accompanies her on the various trips. The amount of driving means that fuel bills are high. She said that she fills the tank with about $50 of petrol on pension day and topped it up as needed. She also said that the fuel bill for a week-end involving a trip to Toowoomba amounted to $50 and that the bill for the week-end involving a trip to Redcliffe was $20.
23. She also said that food was an expensive item because her husband required a special array of meals of the low fat/low sugar variety which were more expensive than usual products. She also paid for the food consumed by the children. She said that she spent about $150 per week on food.
24. The applicant was referred to a claim for an advance of disability support pension claimed by her husband on 3 January 2002 (see exhibit R3) and she confirmed that the amount of social security payments referred to in that document, of $780 per fortnight, and the level of expenses, of $550, was "about right" as at that time. However, she said that costs had increased a little since then because of her husband's dietary needs. She was also referred to the claim for an advance of wife pension lodged by her on 14 February 2002 (exhibit R3) and confirmed that the income level of $740 and costs of $570 were "about right" for that time.
Applicant's Submission
25. Mr Smith submitted that Centrelink calculations should be made on the basis of the amount actually received by the applicant, which was $59,000, rather than the settlement amount of $126,972.12. He conceded that he could find no direct authority on the matter but referred to obiter in Secretary, Department of Family and Community Services v Mourilyan [2001] FCA 1583 to support his submission.
26. Mr Smith further submitted that there were special circumstances applicable to the applicant which required that part of the sum received by her to be treated as not having been made in accordance with section 1184 of the Act. The first of those circumstances was the relatively small proportion of the overall settlement amount that the applicant actually received. The second circumstance was the difficult financial position of the applicant. The third circumstance was the applicant's state of health and the fourth circumstance was the state of health of her husband.
27. While conceding that a situation needed to be "unusual, uncommon or exceptional" to be "special" under the Act, Mr Smith submitted that the small amount of the payment received met those requirements.
28. Mr Smith referred to the cash amount of $10,000 available to the applicant as being barely sufficient to cover her outstanding legal costs and the costs she will face in her relocation to Chinchilla. He also referred to the high costs associated with the purchase of special foods for her husband. Whilst noting the availability of the motor-cycle asset, he submitted that this was to be used for the specific purpose given by the applicant in her evidence. It was submitted that the applicant would not be able to find employment. Mr Smith accepted that financial difficulties alone were not sufficient to justify the application of the discretion under section 1184 but submitted that this should be taken into account with the other matters raised by him.
29. Mr Smith referred to medical reports to show that the applicant's shoulder injury had been superimposed on a pre-existing degenerative state in the shoulder. He also referred to the purpose of the legislative scheme in Part 3.14 of the Act as one which was designed to protect against "double dipping". He submitted that there was no such process by the applicant when her present state can be attributed, in some degree, to the effects of the degenerative changes to the shoulder rather than only to the effect of the injury for which she was compensated.
30. Finally, Mr Smith identified the grave state of health of the applicant's husband as a special circumstance. He referred to the medical reports of cardiologists at Prince Charles Hospital where he is described as having "end stage coronary artery disease" and where it is stated that there would be no further surgical intervention for his condition.
Respondent's Case
31. Mr. Ffrench submitted that Centrelink had properly applied the formula under Part 3.14 of the Act to the sum of $126,972.12 and that this was the amount of the settlement to be used for that purpose. He submitted that the observations of Dowsett J in Secretary, Department of Family and Community Services v Mourilyan [2001] FCA 1583 were obiter dicta and unrelated to the issue raised by the applicant.
32. In relation to the question of special circumstances, Mr Ffrench noted that the current provision is section 1184K of the Act which is identical to sub-section 1184(1) of the Act that was relied on in this matter. He addressed each of the matters raised by the applicant.
33. He submitted that the amount of the settlement sum that the applicant actually retained was not one which could be taken into account on the basis that the items which reduced it were usual outgoings in matters of this kind.
34. Mr Ffrench submitted that the applicant had cash available to her as well as readily realisable assets in the motor cycles totalling some $20,000. He also noted that advances of income support payments had been lodged by both the applicant and her husband in 2002 and that with each of them it had declared an excess of income over expenditure. He also observed that an advance will not be given unless there is a capacity to repay it.  He referred to the pension payment schedule in exhibit R1 and submitted that the advances had almost been repaid and this would lead to an improvement in their financial position. That would also be enhanced by the lower rental the applicant expected to be paying after her move to Chinchilla.
35. Mr Ffrench also submitted that the applicant had stated in evidence that the income-expenditure summaries in the two claims for cash advances had been "about right" and that these revealed an excess of income for them.
36. In relation to the fuel and food expenses for her grand-children, Mr Ffrench submitted that the applicant had been given the opportunity at the beginning of his cross-examination to deny the accuracy of the summary she had given of her financial position in her statement. He said that she had confirmed it as being correct.

37. Mr Ffrench submitted that the applicant had an excess of income over expenditure and an available source of assets and that her financial situation did not justify the operation of the special circumstances provision.
38. In relation to the applicant's health, Mr Ffrench observed that, in almost all cases where there had been a settlement of the kind that occurred here, there would be an element of ill-health in the recipient. He submitted that this was the precise reason that she received the settlement in the first place and was not a special circumstance.
39. Mr Ffrench accepted that the applicant's husband had a significant health problem but he noted that he was in receipt of disability support pension and that this was the case with the spouse of many persons who received a lump sum compensation settlement. He submitted that there was money available to the applicant in the event that an emergency arose with his health in the future.
Consideration

The Sum Received

40. It is not disputed that the applicant received by way of settlement of her compensation claim a lump sum from WorkCover. The overall amount of that sum was $131,971.48, from which $4,999.36 for periodic payments is to be disregarded in accordance with sub-section 17(4) of the Act. Centrelink applied the formula in Part 3.14 of the Act to the difference in those two sums, ie $126,972.12. The applicant did not actually get the benefit in her hands of that amount but, rather, got $59,000 after such items as the Centrelink lump sum and legal fees were also deducted. The submission of the applicant is that the formula should have been applied to that residual amount of $59,000.
41. Paragraph 1165(2AA)(c) refers to a person who "receives a lump sum compensation payment". Under sub-section 17(5) of the Act, the term "receives compensation" is defined to mean:

"a person receives compensation whether he or she receives it directly or whether another person receives it, on behalf of, or at the direction of the first person."

42. The primary focus of that definition would seem to be situations such as where a person receives an amount on trust for another who has been injured whereby the injured party is deemed to have received the amount. It would not be applicable in this case because the total sum was allocated to the applicant and amounts were then deducted because they were deflected from her due to obligations she had incurred. I can not accept that the notion of "receipt" is to bear the narrow meaning submitted by Mr Smith. The purpose behind the introduction of the application of a formula to lump sum payments made in the settlement of a claim, as in this case, for common law damages, has been frequently stated and, in Department of Social Security v Banks (1990) 20 ALD 19, von Doussa J referred to the abuses of earlier compensation recovery provisions by the manipulation of settlements to obscure the economic loss component in the compensation payment. The effect of the provisions of the Act outlined above is to deem 50% of a lump sum payment to be the compensation part and to have been made in respect of lost earnings or capacity to earn. One of the components that would be ignored, if Mr Smith's submission were to be accepted, is the very amount that Centrelink seeks to recover in giving effect to the scheme. To exclude that from the calculations would be to cast the burden of compensating the applicant on the public purse. As noted above, the other amounts that were deducted from the amount of the settlement were deflected from the applicant because of obligations she had incurred and, again, if they were not included in applying the statutory formula, the purpose behind it would be defeated.
43. The observation of Dowsett J in Secretary, Department of Family and Community Services v Mourilyan[2001] FCA 1583 which was relied upon by Mr Smith appears at paragraph 11 and reads:

"Both subss 17(2) and (3) focus upon a payment to the person in question. I make this point because it seems that both SSAT and the Tribunal rather focused upon amounts used by the Judge in calculating damages. I consider that the word 'payment' in par 17(3)(b) means an actual transfer of money to the relevant person (including payments to a person receiving on his or her behalf). The amount of a judgment is not itself a payment; nor is any amount allowed for lost earnings or lost capacity to earn which may be included in that judgment. The exercise contemplated by par 17(3)(b) must commence with the identification of an amount actually paid to the relevant person. Where the judgment has been reduced for some statutory reason, only the reduced amount will be paid to the plaintiff. That reduced amount will be the starting point for the purposes of par 17(3)(b). The Secretary must then determine the part of that payment which is in respect of lost earnings or lost capacity to earn. The reference to 'lost earnings' is presumably to past earnings, whilst the reference to 'lost capacity to earn is to future earnings. I should add that the 'charge' referred to above may also, arguably, have reduced the amount paid to the plaintiff, but that question has not been argued. A successful counter-claim or plea of contributory negligence might raise similar problems."

44. As I understand the decision in the Mourilyan case, it was concerned with the characterisation of an award of interest and whether or not it constituted a payment related to lost earnings or lost capacity to earn. The Tribunal, in that case, had determined that it was not so related and no error of law was found by Dowsett J in relation to that finding. The case is not concerned with the concept of "receiving" payments. In any event, the dicta is directed to the application of paragraph 17(3)(b) of the Act which relates to situations where neither paragraph 17(3)(a) or (ab) of the Act operate. The facts in this case fall within paragraph 17(3)(a) because the payment was made to the applicant in settlement of her claim.
45. I find that, for the purposes of paragraph 1165(2AA)(c) of the Act, the applicant received lump sum compensation payment of $131,971.48. When the amount of periodic payments is deducted, this leaves an amount of $126,972.12 to which the formula in Part 3.14 of the Act is to be applied and it was this process that was undertaken in the decision under review. The preclusion period was correctly calculated in that decision.
Special Circumstances
46. The Act provides no definition of "special circumstances" but the phrase has been judicially considered on many occasions. In Haidar v Secretary, Department of Social Security(1998) 28 AAR 288, Hill J referred to the purpose of the scheme under consideration here as being the avoidance of a situation where a claimant is entitled both to social security benefits and to compensation benefits in the nature of income through lump sum payments. Hill J then considered the discretion in sub-section 1184(1) of the Act and said (at 297):

"However, the legislature was conscious of the possible harshness of a rule structured in an arbitrary way. Section 1184, therefore, provided  the means whereby the Secretary or, in the event ultimately of an appeal to the Administrative Appeals Tribunal, that Tribunal, could alleviate the harshness of the statutory provision in an appropriate case but only where there were special circumstances. The question of what constitutes special circumstances has been the subject of a number of decisions of this Court. It suffices here to say no more than that something is required which would take the matter out of the usual ordinary case: Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at545 per Kiefel J, Secretary Department of Social Security v Ellis (1997) 46 ALD 1 at 5 per Carr J."

47. That approach was adopted by Merkel J in Kertland v Secretary, Department of Family and Community Services (1999) 57 ALD 600 at 608. There, His Honour referred to several decisions in relation to the meaning of the term "special circumstances" including Re Ivovic and Director-General of Social Services (1981) 3 ALN 95 where the Tribunal had stated that use of the word "special" is intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case; and Beadle v Director-General of Social Security(1985) 60 ALR 225 where the Full Federal Court observed (at 228) that the phrase "special circumstances", although lacking precision, is sufficiently understood so as "not to require judicial gloss" and also that special circumstances would usually include events that rendered the operation of the statute in a particular case "unfair or inappropriate".
48. In Males v Secretary, Department of Family and Community Services (1999) 57 ALD 793, the Tribunal commented that the decision of Beadle (above) continues to be the most useful starting point in considering the concept of "special circumstances" noting:

"that the Full Federal Court acknowledged that circumstances need not be unique to be 'special' but 'they must have a particular quality of unusualness that permits them to be described as special'. The court also said that the word 'special' in its context 'looks to circumstances which are unusual, uncommon or exceptional' and whether those circumstances exist will be dependent upon the context where a determination needs to be made as to whether the circumstances are different from 'the usual run of cases'."

49. The first ground relied on by Mr Smith was the relatively small amount the applicant actually received in her hands when compared with the settlement as a whole. In part, the fact that she had only an amount of $59,000 flowed from the application of the statutory formula but that, by itself, does not take the matter outside the ambit of section 1184 because the relevant circumstance need not be something external to the scheme: see Kertland v Secretary, Department of Family and Community Services(1999) 57 ALD 600 at 607. Nevertheless, in all cases where there has been a settlement, deductions of the kind that occurred here will apply to reduce the sum that a person actually gets. There is nothing in the nature of the deductions in this case which would make the situation one of special circumstance.
50. In relation to the financial position of the applicant, the evidence is that there is a capital sum of $10,000 available to her. Some of this will be dissipated in legal fees and removal costs. I note the stated purpose for the retention of the motor cycles as being related to anticipated funeral costs. Cases have arisen in which special circumstances have been found where a person, who has acquired an asset with compensation funds, is not required, either actually or notionally, to sell such an asset in order to alleviate financial difficulty: see Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75 where the asset was the family home. In other cases, where it would not be unreasonable to require the sale of the asset, special circumstances have not been found: see Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464. In the applicant's case, the evidence is that the motor cycles are readily able to be converted into an amount in the order of $10,000. There would seem to be no hindrance to this being done if necessary, thereby establishing a cash resource part of which could be quarantined for the purpose given by the applicant and the remainder utilised for living expenses.
51. The evidence of the applicant in relation to the costs of fuel for her car was not given consistently. Nevertheless, she accepted Mr Ffrench's contention that she would spend about $50 per fortnight and I find that her typical expenditure for fuel is in the amount that she gave in her statement and which is reproduced above in paragraph 19. There was also inconsistency in her evidence concerning the cost of food. She accepted as correct the amount of $200 per fortnight in her initial statement. Yet, she also said that she spent about $150 per week. In the absence of a clear indication from the applicant, I find that cost of the food bill varies and that the typical weekly expenditure on food is $125.

1. The total of the expenses in the initial statement is approximately $687 per fortnight. If the food item is increased from $100 to $125 per week, this rises to $737 per fortnight. The income of the applicant comprises the income support payments provided by Centrelink and these total in the order of $800 per fortnight (see exhibit R1). This means that there is an excess of income over expenditure on the order of $60 per fortnight. The claims for advances referred to above were lodged in January and February 2002 and they also reveal an excess of income over expenditure at those times (see exhibit R3). The fact of an income excess, along with the existence of a cash sum of $10,000 and readily realisable assets of $10,000, leaves me satisfied that the applicant is not in such a level of financial hardship as would justify a finding of special circumstances in her case.

2. The applicant and her husband have health problems. Each of them is unable to work. In the applicant's case, the medical report, dated 28 November 2000, of Dr P Boys, orthopaedic surgeon (see exhibit A3), refers to the applicant's shoulder as having an element of degenerative change which pre-existed her injury in 1997. However, no attempt was made by Dr Boys to differentiate the respective components of the shoulder problem and it was assessed by him as a single condition. There is no evidence before the Tribunal that would indicate that the compensation lump-sum paid to the applicant was not for that shoulder condition as assessed in that global manner.

3. The applicant's husband has serious health problems and this is confirmed in the reports from Prince Charles Hospital (see exhibit A3). That is the reason he is receiving the disability support pension. Apart from the need for a special dietary regimen for her husband, there is no evidence that these have an economic impact on the applicant and it was not submitted to the Tribunal that those needs are unable to be met.

4. I am satisfied that the matters, taken individually or in combination, raised by Mr Smith do not constitute circumstances that are unusual, uncommon or exceptional such that it would be unfair or inappropriate to give effect to the statutory scheme. The applicant and her husband experience hardship but that is commonly the case where a husband and wife are in receipt of pension payments and this is particularly so when one of them is in receipt of disability support pension. I find that there are no special circumstance such as would justify treating some part of the compensation sum as not having been paid.
   Decision

5. The Tribunal affirms the decision under review.

   I certify that the preceding 56 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

   Signed:         Sarah Oliver

   Associate

   Date of Hearing  6 June 2002
   Date of Decision  14 June 2002
   Counsel for the Applicant        Mr P Smith
   Solicitor for the Applicant         Paul Everingham and Co Solicitors
   Solicitor for the Respondent    Mr T Ffrench, Departmental Advocate