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

This matter concerned an appeal by Kathy Bolewski against a decision by the Secretary of the Department of Social Services regarding the recovery of compensation payments. Ms Bolewski had been receiving a Disability Support Pension (DSP) when she sustained a foot injury and subsequently received a lump sum compensation settlement for this injury. A delegate of the Secretary determined that a lump sum preclusion period applied to her compensation, resulting in the recovery of DSP paid to her during that period from her settlement sum. Ms Bolewski sought a review of this decision, arguing that she had not been adequately informed about the potential recovery amount by Centrelink at the time of settlement.

The Tribunal was required to determine whether special circumstances existed that would justify treating a portion of Ms Bolewski's compensation payment as not having been paid, thereby reducing the amount subject to recovery by the Department. This involved considering the adequacy of the legal advice Ms Bolewski received regarding the implications of her compensation settlement on her DSP entitlements, particularly in relation to the lump sum preclusion period and the potential Centrelink recovery.

The Member found that Ms Bolewski had agreed to a fixed legal cost of $69,922.99 and that while she understood some amount would be refundable to Centrelink, she was not informed of the actual recovery amount until after settlement. The amount actually recovered by Centrelink was $35,699.64, significantly exceeding the up to $10,000 she was led to believe might be recovered. The Tribunal concluded that these circumstances warranted intervention, finding it appropriate to treat $25,000 of the compensation payment as not having been paid due to the deficiencies in information provided to Ms Bolewski.

Consequently, the decision under review was set aside. The matter was remitted to the Secretary to recalculate Ms Bolewski's entitlements, effectively reducing the duration of the lump sum preclusion period and resulting in a back payment to Ms Bolewski.