Borio and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 915

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 915

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600870

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROSE BORIO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date13 October 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Compensation recovery – Lump sum preclusion period – Whether special circumstances exist – No special circumstances – Decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth), s 35

Social Security Act 1991 (Cth), ss 1169, 1184K

Australian Securities and Investments Commission and PTLZ [2008] FCAFC 164

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 Hanrahan and Secretary, Department of Families and Community Services [2002] AATA 1128

Re Maloney and Department of Families and Community Services [2002] AATA 320

REASONS FOR DECISION

13 October 2008 Senior Member Bernard J McCabe         

1.      Ms Rose Borio, the applicant, injured her knee in a fall in 2004. She subsequently commenced legal proceedings to recover compensation for her injuries. She ultimately settled these proceedings and was paid compensation in a lump sum. At the time of her injury, Ms Borio was receiving a disability support pension for medical conditions unrelated to her knee injury. The Secretary to the Department of Education, Employment and Workplace Relations, the respondent, made a decision that Ms Borio repay some of the disability support pension payments when she received the lump sum compensation. She did so. Ms Borio has now made an application to the Tribunal to review that decision.

2. Before proceeding to the substance of the application, I must first address Ms Borio’s request that my decision disclose no identifying details of the applicant or the applicant’s family members. The Tribunal may restrict publication of such details, pursuant to a confidentiality order under s 35(2) of the Administrative Appeals Tribunal Act 1975, when it is satisfied that it is appropriate to do so. When deciding whether to make such an order the Tribunal’s must start from the proposition that it is desirable that proceedings before the Tribunal be held in public: s 35(3); see also Australian Securities and Investments Commission and PTLZ [2008] FCAFC 164. The Tribunal will also have regard to the reasons given by a party why publication should be restricted: s 35(3). Here, the applicant argued that personal and health circumstances justify making an order. I disagree. I think the balancing of public and private interests is best served by not making an order but disclosing only so much of the applicant’s details as is necessary to determine the decision under review.

3.      I turn now to the substance of the application. The Social Security Act 1991 (“the Act”) sets up a regime for the recovery of social security payments made to a person who receives a lump sum compensation payment in circumstances such as these. The Act also confers a discretion on the Secretary to disregard the whole or part of a compensation payment as not having been made if he or she thinks it appropriate in the special circumstances of the case.

4. Ms Borio is not appealing the application of the regime in the Act. Rather she has asked the Tribunal to determine whether special circumstances exist such that the whole or part of her compensation payment should be treated as not having been made.

5.      The applicant and the respondent agreed that I decide this application on the papers. On the material provided to me by the parties, I am not satisfied that special circumstances exist such that the whole or part of the Ms Borio’s compensation payment should be treated as not having been made. For the reasons given below, I affirm the decision under review.

The applicant’s background

6.      Ms Borio has received a disability support pension since 1999 for various medical conditions. She was receiving the disability support pension at the time she injured her knee in a fall at her residence in December 2004. She commenced legal proceedings and sought compensation for her injury. In June 2006 she settled her claim for $45,000, inclusive of all costs, fees and disbursements. Part of the compensation, approximately $11,250, was apportioned for economic loss.

7.      Centrelink contacted Ms Borio and her lawyers both during and after her compensation claim about repaying some of the disability support pension payments she had received in the period following her knee injury. In May 2006 Centrelink wrote to Ms Borio’s lawyers informing them of the potential amount Ms Borio would need to repay if she ultimately succeeded in her compensation claim. In July 2006 Centrelink wrote to Ms Borio notifying her of the amount, namely $7735.77, she would have to refund Centrelink. That was equal to the amount of the disability support pension payments she received between December 2004 and July 2005. Ms Borio repaid the money to Centrelink in August 2006. After Ms Borio had paid her costs, fees and disbursements, she was left with $9830.74 of the compensation – a sum that represents less than one quarter of her overall settlement.

8.      The applicant’s knee does not appear to have fully recovered since her fall. She now requires surgery. According to the applicant’s Statement of Facts and Contentions, she requires between $6000 and $9000, possibly more, to have an arthroscopy performed in the private system. The applicant says the remainder of the settlement money will not cover the cost of that surgery. The applicant’s Statement of Facts and Contentions also states that the waiting list for the surgery in the public system is a minimum of two years.

9.      Ms Borio has worked as a nurse at the Cairns Base Hospital since 2007, although I note that she is not originally from Queensland. Apart from Ms Borio’s parents, all of her family reside in New South Wales. She appears to have settled into life in Queensland in any event. Statements annexed to her submissions show that she has purchased and is in the process of paying off a home and a car.

Whether the applicant’s circumstances are special circumstances

10. The Act does not define the expression “special circumstances”. However, it has been widely accepted that special circumstances are those which are unusual, uncommon or exceptional: Re Beadle and Director-General of Social Security (1984) 6 ALD 1, at 3. To qualify as special circumstances, there must be something about the person’s circumstances to mark them as different from the usual run of cases.

11. In this case, Ms Borio identified several matters that may amount to special circumstances within the meaning of the Act. I will deal with each of these in turn.

Applicant’s financial circumstances

12.     Ms Borio’s financial circumstances are discussed in two statements annexed to her submissions and her Statement of Facts and Contentions. Those statements provide an insight into her income and expenditure over a single fortnightly period as well as her assets and liabilities. According to her income and expenditure statement, Ms Borio appears to earn an above average income but spends more than she earns. Her assets and liabilities statement shows that she has two major assets, namely, a house and a car. The assets and liabilities statement indicates that her payments for debts and land rates are in arrears by $1226. The applicant contends that she is under financial stress, but she acknowledges that her circumstances may not amount to financial hardship.

13.     To qualify as special circumstances, a person’s financial circumstances must be more than strained. It is, after all, not unusual for a person receiving social security benefits to be suffering financially. It is therefore not enough for the person to show that she is under financial pressure: see, for example, Re Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690. The circumstances must make the financial burden unusual or extreme.

14. I am of the view that the applicant’s financial circumstances now and at the time of the accident do not amount to special circumstances within the meaning of the Act. While Ms Borio was clearly under financial pressure at the time she repaid Centrelink in August 2006, that is not unusual for a person who receives social security benefits. Similarly, while the statements she annexed to her submissions show that she is currently spending more than she earns and that her loan repayments and rates are in arrears, her burden is neither unusual nor extreme.

15.     Ms Borio earns a reasonable income. She has no dependants. She has assets, albeit that they are encumbered. The income and expenditure statement shows some areas of discretionary spending, such as take-away meals, internet and mobile phone.

Applicant’s health circumstances

16.     Ms Borio contends that her general ill health amounts to special circumstances. The applicant’s Statement of Facts and Contentions chronicles her history of poor health. In addition to her knee troubles, she suffers from a variety of other physical and mental health afflictions. There is no need here to specify these afflictions. Some of these are chronic and others were isolated periods of ill health. Most of the health concerns identified in Ms Borio’s Statement of Facts and Contentions pre-date her knee injury.

17.     I accept that Ms Borio has suffered poor health over a long period of time and has laboured under a disability. Ill health may be enough for the Tribunal to find special circumstances exist: see, for example, Re Hanrahan and Secretary, Department of Families and Community Services [2002] AATA 1128; see also Re Maloney and Secretary, Department of Families and Community Services [2002] AATA 320. Ms Borio’s ill health must be viewed in the global context of her life.

18.     On the material provided to me, it does not appear Ms Borio’s ill health, viewed in the global context of her life, amount to special circumstances. Her health problems do not appear to have prevented her from taking care of herself and pursuing a relatively normal life or activities; for example, she has returned to work and she owns and drives a car. She does not appear to be spending money on the other conditions from which she suffers.

Applicant’s compensation circumstances

19.     Ms Borio contends that the paucity of the compensation may constitute special circumstances. Of the $45,000 settlement she received, only $9830.74 remained once she had repaid Centrelink and her other costs, fees and disbursements. That sum represents less than a quarter of the overall settlement. She notes in her submissions that she would receive less than half of her settlement even if I were to exercise the discretion so that Centrelink refunded to her any or all of the money she repaid to it.

20.     I accept that Ms Borio’s settlement was relatively small and that she was left with an even smaller sum upon repaying all her debts. However, that is not unusual in actions for personal injuries. I am not satisfied that Ms Borio’s circumstances in this respect are special.

Conclusion

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:...............................[Sgd]...............................................
  Michael Buckingham, Associate

Date of Decision  13 October 2008 
Application heard on the papers
Solicitors for the applicant        Townsville Community Legal Centre    
Advocate for the respondent     Mr B Hamilton, Centrelink