Brinkley and Secretary, Department of Social Services (Social services second review)
[2018] AATA 743
•21 March 2018
Brinkley and Secretary, Department of Social Services (Social services second review) [2018] AATA 743 (21 March 2018)
Division:GENERAL DIVISION
File Number: 2017/4211
Re:Simon Brinkley
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member R W Dunne
Date:21 March 2018
Place:Adelaide
The decision under review is set aside. In substitution, the Tribunal decides that the preclusion period ends upon the date of delivery of this decision.
....................[Sgd].............................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – lump sum compensation payment – preclusion period – whether special circumstances exist to justify the exercise of the discretion to disregard all or part of the compensation payment made – ill-health – unwise financial decisions and gambling – decision under review set aside.
LEGISLATION
Social Security Act 1991(Cth), s 17 and 1184K
CASES
Secretary, Department of Family and Community Services v Pearce (2003) 78 ALD 771, [2003] AATA 972
Secretary, Department of Social Security v Hales (1997) FCA 1565
Re O’Neill v the Secretary of Education, Employment and Workplace Relations [2009] AATA 619Males v Secretary, Department of Family and Community Services (1999) 57 ALD 793,[1999] AATA 863
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Senior Member R W Dunne
21 March 2018
INTRODUCTION
The decision under review in this proceeding is a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal at first review (“AAT1”) made on 23 June 2017.
The decision of AAT1 involved the length of the preclusion period relating to a lump sum compensation payment received by the applicant. AAT1 was reviewing a decision of an authorised review officer (“ARO”) of the respondent who found that the lump sum preclusion period started on 9 August 2010 and ended on 15 October 2023. In its decision, AAT1 found that the lump sum preclusion period started on 9 August 2010 and ended on 24 July 2024, which was approximately eight months longer than the lump sum preclusion period calculated by the ARO.
On 18 July 2017, the applicant applied to this Tribunal for review of the decision of AAT1.
At the hearing before me, the applicant was represented by Ms Higgins from the Legal Services Commission and the respondent was represented by Mr Morris from the Department of Human Services.
I admitted into evidence the T-Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
·statement of the applicant dated 1 December 2017;[1]
·various documents of the applicant;[2]
·copy of letter from Chief Prosthetist/Orthotist at OPSA dated 27 May 2010 to Slater & Gordon, the applicant’s previous lawyers;[3]
·DSM-5 Diagnostic Criteria: Gambling Disorder;[4]
·copy of letter from the applicant to Mr Shaun Capper dated 18 July 2016;[5] and
·copy of letter from Dr Donna Weckert at Kangaroo Island Medical Clinic dated 4 December 2017.[6]
[1] Exhibit A1.
[2] Exhibit A2.
[3] Exhibit A3.
[4] Exhibit A4.
[5] Exhibit A5.
[6] Exhibit A6.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal are:
(a)whether the AAT1 decision, made on 23 June 2017 setting aside the decision of the ARO, was the correct or preferable decision: and particularly
(b)whether the applicant has demonstrated special circumstances which enliven s 1184K of the Act such that part of the lump sum compensation payment may be treated as not having been made.
LEGISLATION
Provisions of the Social Security Act 1991 (“Act”) deals with the receipt of compensation. Section 1169 of the Act deals with compensation payments during a lump sum preclusion period. Subsection 1169(1) relevantly provides:
“(1) If:
(a) a person receives or claims a compensation affected payment; and
(b) the person receives a lump sum compensation payment;
the compensation affected payment is not payable to the person in relation to any day or days in the lump sum preclusion period.”
Section 17 of the Act contains the definition of compensation, which is defined to include a payment for damages or a payment in settlement of a claim for damages. Section 17 also contains the law in relation to how much of the compensation payment is to be applied to the calculation of the preclusion period. As AAT1 indicated in its decision, the applicant was awarded damages after a hearing in the District Court of Western Australia. Based on the Court’s decision, AAT1 indicated that the lump sum compensation amount was $564,559.00. After the application of an income cut-out amount, the lump sum preclusion period was 729 weeks, which started on 9 August 2010 and ended on 24 July 2024.
Under s 1184K of the Act, the Secretary may disregard some payments. Section 1184K(1) relevantly reads:
“(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.”
MATERIAL FACTS
The material facts in this case are largely not in dispute. For the most part, they have been extracted from the applicant’s statement of facts, issues and contentions. Nevertheless, I am satisfied of the material facts on the balance of probabilities.
On 6 April 2006 the applicant was injured in a forklift fire. He suffered serious injuries when he jumped from the burning forklift. The forklift had effectively exploded into flames because of sprayed hydraulic fluid and the applicant’s cabin was filled with flames. He jumped outwards from the cabin in an attempt to clear the flames, but when he hit the ground his right leg “exploded”. As a result of the accident, the applicant sustained burns to 30-40 per cent of his body. He also sustained a compound fracture to his right ankle and a fracture to his right knee. In July 2010, he was awarded damages by the District Court of Western Australia and in November 2010 he received $896,843.05 in damages. As AAT1 indicated in its decision, the District Court specified sums for past loss of earning capacity and future loss of earning capacity and the sum of these amounts was $742,629.00. After discounts in lieu of acceptance of liability, this sum was reduced to $564,559.00. This resulted in a lump sum preclusion period of 729 weeks which started on 9 August 2010 and ended on 24 July 2024. As AAT1 indicated, this was approximately eight months longer than the lump sum preclusion period calculated by the ARO. The ARO had found that the preclusion period started on 9 August 2010 and ended on 15 October 2023.
In its decision, AAT1 then considered whether there were any grounds on which part or all of the compensation should be disregarded. The issue was whether a part or all of the compensation payment could be treated as not having been made if it was appropriate to do so in the special circumstances of the applicant’s case.
After the AAT1 decision was handed down, the applicant applied to this Tribunal for second review of the AAT1 decision. In the application for second review, the applicant’s representative was his sister, Ms Sheryl Brinkley.
EVIDENCE
Evidence of the Applicant
The applicant was referred to the AAT1 decision. He said he thought the decision was wrong, but he could not remember parts of it that jumped out to him as being wrong. As to his health, he said he felt he had serious mental issues, he suffered from depression and was affected by PTSD. He gambled in Adelaide for three years after coming back from Perth. Away from gambling, he said his health deteriorated rapidly, but there were friends on Kangaroo Island to help him. He said he played poker machines in hotels. This took his mind off the pain and everything. He realised it was not right, but he was drawn back to it without thinking.
He made loans to different people. In 2010 and 2011, he lent about $200,000 all up to Mark Milland who had a boat he wanted to sell and he was to repay the applicant from the proceeds. There was no agreement in writing, it was verbal. However, when the boat was sold Milland bought his girl-friend a $100,000 motor vehicle. The boat disappeared and so did Mr Milland.
In relation to the compensation, he did not receive any financial advice. Before moving back to Adelaide, he bought a house for $350,000 in South Perth, but extras were installed because of his injuries to make it suitable for him to live in. He held the house for two years, then sold it at a loss. He had no friends in Western Australia and he had to sell the house because he was missing his family in Adelaide.
In questioning by Ms Higgins about the compensation, the applicant said he bought a motor vehicle in Western Australia, but it was destroyed while it was travelling on the train from Perth. A second car was then to come from WA, but the applicant flew to Perth instead to collect it. It was a CDS HSV, top of the Holden range, super charged and modified. The applicant said he had a VE utility too. He said he had never had money and did not think the compensation would run out. He said the car he bought was the car of his dreams and it was comfortable for his conditions. In relation to the preclusion period, he did not know how long it was. He did not read all the papers he had received from his lawyers, Slater & Gordon, which had apparently told him. He said he had gambled in Adelaide before going to Perth and he thought he would get away from the pokies when he went there.
He had worked at the rubbish dump in Adelaide and was spending $300 per week on the pokies, but they were not in in Perth, other than the casino, and he wanted to get away from gambling. Once the money had gone, he went fishing and borrowed from his mother. When he was asked if he could borrow more from her, he said he could not do that now. She was nearly 94 years old and there were seven children in the family. When asked whether he could stay where he was presently living without paying rent, he said no. He would have to leave and live in his car. He only had about $200 in his name. He could not go back to fishing. He was in too much pain and his body was not flexible enough. When Ms Higgins asked him what would happen if the preclusion period was not shortened, he said with his health he would not be around very long. He has had enough of the pain, it is too much. When he was asked whether he could recover loan money owed to him by Shaun Capper, he said Capper was a drug addict and he had threatened the applicant’s life.
When Mr Morris cross-examined him about his house in Perth and whether he had been pushed to buy it, he said he paid $350,000 for the house and he thought that price was reasonable in 2010. When asked about the pain from his injuries, he said the medication would wear off and he did not like taking it because medication would often mask the pain. He said he had severe burns, his inside was hurting and he did not expect to live long. When referred to paragraph 5 of his statement, he acknowledged his belief that he was much worse than what the doctors were telling him. When questioned about his motor vehicles, the applicant said the dream car was a treat and was put away to avoid it being stolen. His other vehicles were for travel to and from Perth during the Court hearing and their costs were necessary. Travel over the Nullarbor Plain required strong vehicles and the applicant preferred to use them to sleep in rather than hotels. Also, he said he would not fly by plane.
Mr Morris also cross-examined the applicant about other items. He said he bought his boat and made it seaworthy, life was boring without it, he likes fishing and it takes his mind off other things. In relation to his gambling, he said it had been a problem since 2005 or even earlier. He earned $800 - $900 at the dump and would spend $300 at the pokies. After a while he said he felt it was not right. He did not ask for help from anyone, he was a loner and he always looked after himself. He thought he was strong enough to walk away from gambling. He said he obviously was not. In summer, it was cool in the pub because of air-conditioning. He said he was a non-drinker, the pokies were a large distraction and they took his mind away from what had happened. He said playing the pokies almost became a hobby. It was not a business and could not be characterised as an addiction. He said he doesn’t do it anymore. He said he banned himself from playing the pokies. He was too embarrassed about gambling.
Mr Morris questioned the applicant about many entries in his bank statements. He was able to identify a few of the entries. But for the most part, he was unsure about the entries and was unable to make any useful comments about their authenticity. He did acknowledge that there appeared to be entries that were loans from his mother and repayments of loans, and there were also entries representing transfers from other bank accounts.
Evidence of Dr Weckert
In giving her evidence, Dr Weckert said that she is a GP Registrar at the Kangaroo Island Medical Clinic. She was referred to a letter to her from Ms Higgins dated 13 October 2017 and to her response dated 24 October 2017. When asked how she would assess the applicant’s current physical and mental health, she said they are not particularly good at the moment. The applicant has had a very serious injury and it has affected a large part of his body. Also, he has got degenerative changes all the way down his spine and that was because of a pre-existing injury that has not got any better in the last 11 years. He gets flares of lower back pain and has a very poor-fitting prosthesis. With his right leg amputation, the stump of his leg has changed. His prosthesis does not fit very well and as one of his lateral muscles is rubbing, he gets a significant amount of pain from that.
Dr Weckert said he definitely has post-traumatic stress disorder (“PTSD”) and has been referred to one of the Clinic’s Community mental health nurses. In relation to his current work capacity, he is now limited to using crutches. He is also quite depressed and he is not capable for work at this time. Dr Weckert said she could not give a foreseeable future when he would be suitable for work and he needs a lot of help. When Ms Higgins asked whether she had referred him to the Mental Health Team recently, she said he had only been seen earlier this week. When asked whether the applicant could undertake litigation to recover a debt interstate, she said he had quite low motivation and energy and it would be quite stressful for him to do that. As to his mental health situation with PTSD and depression, there is a fight/flight mode that controls decision-making and people often will make decisions without fully thinking through the implications. People with PTSD and depression do not have motivation and they tend to isolate themselves in keeping away from situations that might trigger unpleasant memories. The applicant’s situation was like this.
In cross-examination by Mr Morris, Dr Weckert was referred to her letter dated 17 August 2017. She was asked about the applicant’s ability to work. She said the issues about motivation, energy and flashbacks affecting the applicant were all a result of his injuries and they made it difficult for him to get up, to get moving, and to go to work. She said the applicant had a strong case for a disability support pension because of his mental and physical impairments. As to technological issues, she said the applicant could sit down and surf the internet with appropriate stretching and breaks. When Mr Morris asked her specifically about the applicant’s health, she said his mental health had certainly worsened dramatically over the last few months. When questioned by Ms Higgins on re-examination, Dr Weckert said the applicant was suffering from a major depressive disorder and her records on this went back to early 2015.
Evidence of Sheryl Brinkley
Ms Brinkley is the applicant’s sister and in her witness statement she said he is her younger brother by three years. He is the seventh child and the youngest in their family. They grew up on a farm on Kangaroo Island and their father was a soldier settler. Her mother was a homemaker and former nurse and is now 93 years old and she worries about the applicant a great deal. In her statement she said the applicant attended Parndana Area School and left it in about first year high school as it was thought it was not worth him attending any longer. She said the applicant did odd jobs around the farm and he and her father were not close. Over his working life he had a diverse range of jobs including a tuna fisherman, a paver, a forklift driver and a truck driver. She said he had been continually employed on a casual basis for most of his working life. With an irregular income it had either been feast or famine money-wise for the applicant, so he never had the opportunity or need to make long-term plans financially. When he had money he spent it with no regard for the future. In her statement she said she would describe him as being fairly naïve.
In December 2005, the applicant moved to Perth and gained employment as a fork-lift driver on the Fremantle Docks. She said it was the best job he had had in his life and he loved it. She was not aware at the time, but he later told her, that he made this move to get away from the pokies. She knew he had enjoyed the pokies for many years. He would occasionally say he had had a win, but she was not aware that he had a problem. But it is apparent in retrospect. In 2006 when his fork-lift ignited he sustained burns to 40 percent of his face and body, he broke his ankle (to the extent that his lower leg was amputated three years later), he damaged his eyesight and he burnt his lungs and throat. She and her parents and other family members flew to Perth as they were told to come and say goodbye, as the applicant was not expected to live. In 2009, his lower leg was amputated and after a time he was fitted with a prosthetic limb. She said she urged him to use some of the money from his damages to buy a house, so at least he could have somewhere to live and something to show for his money. He bought a house and had work done on it so it suited his disabilities. However, eventually he sold the house at a loss and drove home to Adelaide.
He rented a house and, being unable to do much, was lured to the pokie lounge of a hotel where the staff greeted him like an old mate and told him which machines were set to pay out. She said this was apparently going on for a couple of years and the family was unaware. She said he eventually realised that he needed to get away from the city and the pokies and he moved back to Kangaroo Island, where he found a very basic shack at American River. She said he needed money to live on, so he applied for a Centrelink payment. He was told he could not access any benefits until 2023 as he had received damages for his injuries. She said this was the first time he recalls being told this information.
In her statement she said the applicant’s current health is not great. By going without a new leg, it had affected his walking and spine and hip. He has also recently had a hernia operation and is still recovering. He was diagnosed with PTSD and has ongoing issues with confined spaces and flames. He is unable to fly due to his PTSD and his injuries to his lungs and throat. Before his accident, the applicant was quite a different person to the person you see now.
CONSIDERATION
Has the applicant demonstrated special circumstances which enliven section 1184K of the Social Security Act 1991 such that part of the compensation payment may be treated as not having been made?
This matter involves an application for review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) made on 23 June 2017.
On 6 April 2006, the applicant suffered horrific injuries when a 42 tonne forklift he was driving, caught fire from sprayed hydraulic fluid. The forklift effectively exploded and the cabin was filled with flames. The applicant suffered burns to 30-40 per cent of his body. When he jumped from the cabin to clear the flames his right leg was seriously injured. The applicant was awarded damages after a hearing in the District Court of Western Australia. The Court specified sums for past loss and future loss of earning capacity and the total of these sums was $742,629.00. After a 10 per cent reduction in lieu of acceptance of liability, after applying the income cut-out amount, the preclusion period was calculated by the respondent’s ARO to be 688 weeks, being a period from 9 August 2010 to 15 October 2023. When this determination was analysed by AAT1 the lump sum preclusion period was recalculated as 729 weeks, being the period starting on 9 August 2010 and ending on 24 July 2024. This was approximately eight months longer than the lump sum preclusion period calculated by the ARO.
The AAT1 Decision
In the AAT1 decision, the Member considered whether there were any grounds on which part or all of the lump sum compensation payment received by the applicant should be disregarded. Following the receipt of the compensation payment, the applicant made various payments (including $50,008 to his mother), he bought a house and made improvements to it, he bought and sold several motor vehicles and he bought a boat for fishing. A large proportion of the compensation was used in playing poker machines. At its height he was drawing up to $2,000 every two or three days. He moved to Kangaroo Island to get away from the poker machines. The AAT1 Member described the applicant’s income as appearing erratic, but not insignificant. The Member also said that in June 2017 the applicant was working and his income, while not regular, was not insubstantial. She then said:
“This matter is finely balanced. Mr Brinkley has no money left and no further assets he can sell. …
It would not be in any one’s interests for him to be left homeless or without any means to provide for basic necessities of life.
…
Having carefully considered all of the information before me, I have concluded it is premature to end Mr Brinkley’s lump sum preclusion period when he is still working and has not provided medical evidence to show he cannot work….”
Special Circumstances
In this case, the issue primarily turns upon the interpretation of the expression “special circumstances” set out in s 1184K of the Act and the application of that section to the applicant’s particular circumstances. Mr Morris, acting for the respondent Secretary, has submitted that the applicant’s circumstances are not special. He has submitted that the applicant’s current circumstances are precarious; however, this does not distinguish the case from that of the majority of social security claimants.
Mr Morris has structured the submissions for the Secretary in accordance with the table provided at clause 4.13.4.20 of the Guide to Social Security Law (“Guide”). In adopting that structure, he has sought to address relevant factors involving the applicant’s circumstances. I have referred to these as:
(a) ill-health;
(b) emotional state;
(c) decision-making capacity;
(d) difficult financial circumstances;
(e) addictions;
(f) changed circumstances, and
(g) other circumstances (such as incorrect or insufficient advice).
If the factors outlined in paragraph 33 are taken together, Mr Morris has asked whether the applicant’s circumstances are such that they are so outside of the ordinary as to warrant the exercise of the discretion in s 1184K.
Ill Health
The Guide appears to say that the circumstances of the applicant must be that his position is even worse than that of the ordinary DSP recipient. Mr Morris submits that the applicant does not meet the test. In my view he does. He was in the cabin of a forklift that exploded into flames and he had difficulty in jumping out of the cabin. He broke his ankle resulting in the amputation of his lower leg, and he damaged his eye sight and burned his lungs and throat. As a consequence of the amputation, the applicant must wear a prosthetic leg. It seems to me that the applicant’s ill health is, and has been, continually more severe than the majority of DSP recipients.
Emotional State
Mr Morris has referred to statements made by the applicant’s GP, Dr Weckert. She referred to the applicant’s grief, his depression and his PTSD, all of which would have influenced his emotional state. Dr Weckert said that people with PTSD and depression do not have motivation and they tend to isolate themselves in keeping away from situations that might trigger unpleasant memories. Dr Weckert maintained that the applicant’s situation was like this. Mr Morris submitted that Dr Weckert’s remarks constituted a loose hypothesis. In my view, having heard the evidence of Dr Weckert by telephone, I am satisfied that her remarks were quite accurate when she said he had quite low motivation and energy and it would be stressful for him to do many things. As a result, the applicant turned to the poker machines.
Decision-making Capacity
The discussion by Mr Morris under this heading is brief. The fact that the applicant’s compensation has not lasted the preclusion period has nothing to do with the applicant’s poor decision-making capacity. He simply did not know how long the preclusion period was because at the time he had been involved with litigation and was not able to interpolate the papers he had received from his lawyers. I agree with Mr Morris that the applicant has demonstrated some ability to control himself and look after himself and to move to Kangaroo Island to remove himself from the pokies temptation.
Difficult Financial Circumstances
Under this heading, the submissions made by Mr Morris form the majority of the relevant factors he sees that involve the applicant’s circumstances. He has referred to many Tribunal decisions relating to straightened financial circumstances. However, as Mr Morris would understand, each case must be examined on its own particular circumstances, and where an applicant is seeking exercise of the special circumstances discretion, the use of the word “exceptional” may not be appropriate. However, in relation to financial circumstances, in Secretary, Department of Social Security v Hales,[7] French J (as he then was) said:
“The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion.
...
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.”
[7] [1997] FCA 1565.
The Guide states that the decision to apply the special circumstances provisions should be based on an holistic view of the applicant’s circumstances and the decision would not usually be based on just one factor, but a combination of factors. The special circumstances provisions should only be applied in unusual, unforeseen or exceptional circumstances. In order for special circumstances to exist, it must be possible to say that the circumstances in the case in question “are markedly different from the usual run of cases.”
In the applicant’s case, he has demonstrated straightened financial circumstances. As Ms Higgins asserted:
“…it cannot be seen that he ‘chose’ to wantonly or irresponsibly spend his compensation proceeds. His gambling addiction, for which he was more vulnerable after the accident, his lack of education and financial management skills are not factors for which he can be blamed or for which he should be punished”.
Addictions
It has been suggested that the applicant suffered from a gambling addiction. In my view, having seen the applicant and hearing his story, his playing of the pokies was not an addiction. I have to disagree with what Ms Higgins has said on this in paragraph 40 above. I believe it was a “lifestyle choice” of the applicant. Mr Morris mentioned that the applicant had never sought professional help for his gambling. He was embarrassed to gamble and play the pokies, so much so that he was unable to seek professional help from any one. The applicant’s SoFIC’s explained his behaviour in the following way:
“The applicant spent the money on the pokies. The applicant was lonely, lacking an occupation and it provided a distraction. The applicant always thought he would come out ahead (‘strike it lucky’). The applicant was particularly vulnerable as he was (and is) suffering from PTSD, depression, feeling disfigured, in pain and grieving for his loss of function.”
Changed Circumstances
As outlined in the applicant’s SoFIC’s, the applicants failing physical health has meant that he is no longer able to work fishing. As his sister has explained in giving her oral evidence, it would be mad for him to continue fishing. With his injuries and his prosthesis, it is physically impossible for the applicant to continue fishing. It follows that, because of the forklift accident, the applicant’s circumstances have changed, unfortunately for the worse.
Other Circumstances
The applicant loaned money to two of his friends, Mark Milland and Shawn Capper. The Guide points out that a relevant question is what legal action has been taken to recover the funds loaned. In my view, the applicant has done everything possible to recover the outstanding monies payable by Mr Milland. On the evidence, Mr Milland has been declared bankrupt and is currently being sought by the police. As Mr Milland cannot be located now, even if he was able to institute proceedings against him, it is unlikely that the applicant could recover any of the money still payable to him. In relation to Mr Capper, the applicant has recovered some amounts from him in repayment. However, the applicant has sent him letters of demand as late as October 2017 and he does not believe (I think reasonably) that he can recover any more from the debtor.
Summary of Decisions
In the AAT1 decision, the Member has made no reference to previous decisions of Tribunals and Federal Courts that involve special circumstances. I found this unusual because most cases involving special circumstances contain references to other decisions, particularly decisions of like Tribunals. Ms Higgins drew my attention to three cases, Pearce v Secretary, Department of Family and Community Services,[8] Re O’Neill v Secretary of Education, Employment and Workplace Relations[9] and Males v Secretary, Department of Family and Community Services.[10]
[8] (2003) 78 ALD 771, [2003] AATA 972.
[9] [2009] AATA 619.
[10] (1999) 57 ALD 793, [1999] AATA 863.
In Pearce, the applicant received $157,106.10, the preclusion period was from February 2002 to January 2005 and there were issues with gambling, drugs and alcohol. The applicant there admitted to knowing about the preclusion period. The Tribunal found there was an element of pathology that took the applicant’s spending out of the usual irresponsible or reckless expenditure. The preclusion period was ended by the Tribunal in July 2003 and the hearing was on 8 September 2003. Ms Higgins submitted that there is a similar pathology, based on the evidence that Dr Weckert gave about the effect of the applicant’s PTSD and depression and how these may have affected his decision-making, combined with his belief that he was not going to be surviving very long after the accident in 2010.
In O’Neill, the applicant received $339,570.10 and the preclusion period was March 2005 to May 2012. By February 2008, the applicant had spent all the money. He repaid loans, spent money and engaged in drinking and gambling. He did not seek any assistance for his gambling. The Tribunal noted that the applicant had been made aware of the preclusion period, but he did not receive any financial advice. The applicant did not have a diagnosed mental health condition, but the preclusion period was shortened, such that it ended on the date of the decision in August 2009.
In Males, the preclusion period was August 1996 to April 2001. The applicant was penniless within six months because he gambled the money on poker machines. He had had an issue with pokies prior to the injury he suffered, but he did not play compulsively. In the decision of the Tribunal, the 165 week preclusion period, which had 77 weeks left, was ended on the date of delivery of the Tribunal’s decision in November 1999.
In the present case, after over seven years, the applicant is being currently refused access to benefits from the Department of Social Services. He has struggled to support himself after the money ran out, despite his failing physical and mental health. He is now no longer able to do that and we have heard from Dr Weckert that he does not have any work capacity. He is at risk of homelessness if he fails to pay his rent. Had the applicant taken financial advice and invested the compensation wisely, he should have had sufficient funds to tide him over at a reasonable standard of living until the completion of his preclusion period. In the AAT1 decision, the Member found that the matter was finely balanced and it would not be in anyone’s interests for him to be left homeless or without any means to provide for basic necessities of life. The Member concluded that it was premature to end the applicant’s lump sum preclusion period when he was still working and could not provide medical evidence to show he could not work.
Conclusion
In my view, there is now evidence from Dr Weckert that clearly shows that the applicant is no longer working and is simply unable to work. The AAT1 Member proposed that the applicant’s present situation does not mean that he could not reapply for social security benefits in the future. In my view after evaluating the applicant’s current financial, health and living situations I have come to the view that, when considered together, they possess that particular quality of unusualness that permits them to be described as special. Hence, there are circumstances which justify treating part of the compensation payment as not having been made.
DECISION
The decision under review is set aside. In substitution, the Tribunal decides that the preclusion period ends upon the date of delivery of this decision.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Dunne
..................[Sgd]......................................................
Administrative Assistant
Dated: 21 March 2018
Date(s) of hearing: 7 & 14 December 2017 Advocate for the Applicant: Ms K Higgins Solicitors for the Applicant: Legal Services Commission of SA Advocate for the Respondent: Mr O Morris Solicitors for the Respondent: Department of Human Services
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