Carabott; Secretary, Department of Employment and Workplace Relations
[2006] AATA 79
•2 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 79
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/603
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
CHRISTOPHER CARABOTT
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date2 February 2006
PlaceSydney
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that the preclusion period in respect of eligibility for a compensation affected payment ended on 15 December 2005. [SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
Social Security - lump sum compensation - preclusion period – ineligibility for compensation affected payments – SSAT reduced preclusion period – circumstances of Applicant – financial hardship – special circumstances not found – decision set aside - preclusion period ends 15 December 2005
Social Security Act 1991 – sections 17, 1169, 1170, 1184K
Guide to Social Security Law Part 4.13.2.30
Beadle v Director-General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Dranichnikov and Another v Centrelink and Another (2003) 75 ALD 134
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Groth and Secretary, Department of Social Security (1995) 37 ALD 797
REASONS FOR DECISION
2 February 2006 Rear Admiral A R Horton AO, Member 1. This is an application by the Secretary, Department of Employment and Workplace Relations (“the Applicant”) for review of a majority decision by the Social Security Appeals Tribunal (“the SSAT”) which set aside a decision of Centrelink that Mr Christopher Carabott (“the Respondent”) was precluded from receiving any compensation affected payment until 15 December 2005, substituting an alternate decision that the preclusion period ended on 30 March 2005.
2. At the hearing before the Administrative Appeals Tribunal (“the Tribunal”), Ms Hanna Schuster, an advocate of the Centrelink Legal Service Branch, represented the Applicant. Mr Carabott was self represented. I took into evidence the documents provided by the Applicant under section 37 of the Administrative Appeals Tribunal Act 1975, these being at TA, TB and TC. A number of other documents were taken into evidence, these being as listed in the attachment to this decision.
ISSUE AND DECISION
3. The issue in this matter is whether the circumstances of Mr Carabott were such as to warrant the exercise of the discretion in section 1184K of the Social Security Act 1991 (“the Act”), such that his preclusion period following the receipt of a lump sum compensation payment should be shortened from 15 December 2005 to 30 March 2005 as determined by a majority decision of the SSAT.
4. Having considered the extensive documentation, the submissions of the Applicant and the evidence of Mr Carabott, I concluded that special circumstances in accordance with section 1184K of the Act were not evidenced. Accordingly, the majority decision of the SSAT is set aside, and in substitution thereof the Tribunal decides that the preclusion period in respect of the lump sum compensation payment received by Mr Carabott ended on 15 December 2005.
LEGISLATION
5. Section 1169 of the Act provides that recipients of lump sum compensation payments are not to be entitled to compensation affected payments, the definition of which is at section 17 of the Act, for certain periods. This preclusion period is calculated in accordance with section 1170 of the Act.
6. Section 1184K(1) states:
“For the purpose 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.”
BACKGROUND
7. Mr Carabott was injured in the workplace in 1999. He was subsequently variously in receipt of sickness allowance, newstart allowance and periodic compensation payments. On 31 May 2002, a compensation claim was settled for $300,000. On 9 July 2002, Centrelink advised Mr Carabott of a preclusion period, which would make him ineligible for any compensation affected payment from 3 July 2001 until 15 May 2006, and his newstart allowance was accordingly cancelled. Mr Carabott received a cheque for $219,737.14 on 1 August 2002, the differential having been disbursed to cover medical, periodic compensation payments and legal fees (including $44,241.60 paid through his solicitor’s (Lamrocks) trust account). The cheque was deposited in a previously held Streamline Account with the Commonwealth Bank of Australia (“CBA”), access to which was by both “over the counter” and electronic key card.
8. By early March 2003, that is some 7 months later, the account balance was down to about $90,000, at which point Mr Carabott transferred $70,000 to another account, and in due course some of this amount was further transferred to his solicitor’s trust account. Streamline Account statements (T4 pp 20 – 38) show that whilst some $20,000 was subsequently transferred in four transactions back into that account, the account was closed with a nil balance on 20 June 2003.
9. On 12 June 2003, that is shortly before the closure of the streamline account, Mr Carabott requested the Mt Druitt branch of the bank to investigate transactions that he considered to be fraudulent. The bank denied liability. Mr Carabott referred the matter to the Banking and Financial Services Ombudsman (“BFSO”) in November 2004. The BFSO issued a finding on 21 March 2005 – the file being closed, that is the finding was confirmed, on 21 April 2005 - that on balance, the disputed withdrawals (by this stage only electronic transactions were in dispute), were not unauthorised transactions.
10. In the meantime, Mr Carabott had referred the matter to the police, the most recent correspondence from the Mt Druitt police (Anti-theft) advising that the reported fraud was considered “doubtful”, and “there was no formal investigation” taking place. Mr Carabott further indicated that he had referred some correspondence to the media.
11. Mr Carabott had also served three periods of detention, the initial sentence arising from incidents in mid 2002, that is, after the closure of the streamline account, the charges including assault, intimidation of a bank teller and possession of firearms.
12. Mr Carabott sought review of the preclusion period in July 2004, and based primarily on unforeseen legal costs incurred by Mr Carabott in seeking resolution of the disputed transactions, the discretion pursuant to section 1184K of the Act was exercised by Centrelink, whereby the preclusion period was reduced by 20 weeks to conclude on 15 December 2005. This decision was affirmed by an Authorised Review Officer (“ARO”). On review, the SSAT by majority decision, and based primarily on “severe financial hardship” and “social disruptions resulting from …significant periods of imprisonment” further reduced the preclusion period under the provisions of section 1184K of the Act, to 30 March 2005. The finding of the BFSO was not available to the SSAT.
EVIDENCE
Documentary
13. On 12 June 2003, that is, shortly before the closure of the streamline account, Mr Carabott requested the Mt Druitt branch of the CBA investigate “Unauthorised Card/Pin Generated Transactions”, listing a number of transactions that month (T57 p194), and noting that neither the card nor the pin number had been stolen. On 28 July 2003, the bank denied liability. A series of letters (Exhibits R2 – R6 and T15 p63) to and from Lamrocks attest to the fact that Mr Carabott instructed that firm to act on his behalf in pursuing investigations of disputed transactions. A letter from Lamrocks to CBA dated 13 October 2003 (Exhibit R4) referred to a “large number of transactions between 6 August 2002 and 11 June 2003, which are disputed”, and enclosed a copy of the account transactions list with disputed withdrawals being highlighted, the total of such disputed transactions being in the order of $116,000.
14. On 15 November 2003, Mr Carabott completed a Card Fraud Investigation/Liability Assessment (T62 p203). Of particular relevance he noted that he became aware of a discrepancy in his account balance on 15 May 2003, that he received no statements for 12 months, that he had at all times control of his card and his pin number, and nor had he authorised any other person to carryout any transactions. He made no entry in response to the question as to whether he informed police. On 5 December 2003 (T16 p64) the CBA provided photocopies of “over the counter” withdrawal vouchers (which generally related to withdrawals in excess of $800, this being the maximum through an Automatic Teller Machine (“ATM”)) to Lamrocks, and advised that electronic transactions were still being investigated.
15. The above issues with the CBA occurred whilst Mr Carabott was serving the first sentence of imprisonment, and Lamrocks letter of 15 September 2003 (T13 pp53-55) describes the circumstances and the charges. The imposed sentence was from 1 July 2003 to 30 March 2004, although the dates of this sentence were referred to in a letter from the John Morony Correction Centre (Exhibit A2) as being from 1 July 2003 to 29 February 2004. Suffice that the correspondence, of which there is much, between Mr Carabott, his solicitor and the bank occurred whilst the former was in prison.
16. The BFSO received a request from Mr Carabott to investigate his complaint on 29 November 2004 (T56 pp191-193). On 1 February 2005 the BFSO sought additional information (T28 pp93-98) from Mr Carabott, this being provided in a hand written letter received by the BFSO on 4 March 2005. Where relevant, the paraphrased question and the detailed response provided by Mr Carabott are as follows (T40 pp 135-138 and T28 pp93-98:
“Q1/2. What if any signature-authorised withdrawals are still disputed? Ans. I do not dispute the over the counter withdrawals... I lost my card for about 36 hours. I paid for fuel by keycard and it was not returned to me by the service station (at Popendecta Road Emerton 2770). I didn’t realize for about 36 hours… so they could of got my pin number and made a duplicate card.
Q3. Did you live at Boulderwood Road Blackett for the entire period from August 2002 to June 2003?
Ans. Yes
Q4. Were you living with Michelle Johnson or any other girlfriend or partner during that period?
Ans. No
Q5. Have you ever allowed a partner or girlfriend to use your card and pin?
Ans. No
Q6. This question sought details of the basis upon which Mr Carabott decided which withdrawals were made by him and which were unauthorised. viz, (1) did you keep receipts, (2) did you make an estimate of money being spent and thence dispute excessive withdrawal transactions, (3) did you dispute transactions that seemed to exceed daily limit, and (4) was there some other reason for disputing transactions?
Ans. I kept no receipts (2) no (3) yes (4) I looked at a balance from an ATM and then I knew money was missing.
Q7 The list of transactions shows use of the card for undisputed transactions at least every couple of days. How is it then possible that an unauthorised person could have obtained your card, used it, then returned it to your possession – not irregularly but three or four times a week?
Ans. I believe that a fake card has been made reason (1) the petrol station kept my card for 36 hours, (2) a sporting shop at Penrith made me swipe my card more than once. I later found out off an ex worker from that shop that he was in the practice of excpting [?] stolen credit cards from well known junkies in the area. There was also a few of the same things happened at Bensons archery Parramatta double swipes more than once.
Q9. How many other people knew that you had received this substantial amount of money (compensation lump sum)?
Ans. About 20 one of which may be under investigation by police. So may bank manager of CBA Mt Druitt. I was jailed for making a threat to manager of CBA Mt Druitt due to the fact I was going there and asking for my bank statements for about 4 weeks also asking why police have not been informed. There is also an investigation into the threat on my life in jail over this money missing and an attempt on my family’s life in the way of a bomb under our car around the same time one was made on me in jail…
Q10. You say you did not receive bank statements for a one year period. The bank has pointed out that every time you made a cash withdrawal the receipt showed the bank balance. Why did you wait until June 2003, when there was no money left in the account, before you disputed any of the withdrawal transactions?
Ans. I didn’t make many withdrawals and didn’t notice until I looked at an ATM balance and there was a lot missing. So I changed a lot of money to a pass book account.
Q11. You transferred $70,000 to a Savings Investment Account on 4 March 2004. Transaction logs show that, before making the transfer, you made an undisputed withdrawal of $200 at an ATM and also a balance enquiry. Why did you not raise a concern about unauthorised withdrawals on this day?
Ans. I put $70,000 in a different account because I got no statements for about 12 months and I started to get suspicious and not long after realised something was wrong. So I went to the bank to find out why I was not getting my statements. It took 4 weeks to get them and it was not from CBA Mt Druitt but from Victory [?]. I asked why the police were not involved every day for about 4 weeks, some by phone some in person.
Q12. Why did you not raise concerns about unauthorized withdrawals on each of the days you transferred funds from your Savings Investment Account back to the Streamline Account (4 occasions totally $20,000 in May/June 2003)?
Ans. I did nearly every day for about 4 weeks no one wanted to listen”
By way of additional comment, Mr Carabott referred to approaching the media in respect of the failings of CBA, and Mr John Brogden (then leader of the State opposition).
17. The BFSO finding of 21 March 2005 was subject to acceptance or rejection by both CBA and Mr Carabott (T51 p158). This finding was accepted by the bank and Mr Carabott did not respond (T40 p132) and the file was closed on 21 April 2005.
18. The earliest documents before me in respect of police matters are that from Lamrocks to Mr Carabott on 15 September 2003 (T13 pp53 – 58), which details the circumstances of his appearance at the Penrith Court in respect of various charges, and the judgments that followed, and a letter of 17 October 2003 (T14 p59) which states that a letter – which I assume was in respect of disputed transactions – had been forwarded to Mt Druitt detectives on 25 September 2003. A Centrelink file note (T20 p69) of 2 August 2004 refers to the incident that led to his sentencing to a gaol term, namely “a/n feels that the Commonwealth Bank stole money from his account, approx $112,000, he has spoken to the bank manager about this which ultimately resulted in threats and a gaol sentence. A/n has not lodged a police report as yet but intends to do so in the next 14 days”.
19. A letter from Superintendent D. Hudson, Local Area Commander, Mt Druitt Area of 24 March 2005 (T30 p101) refers to a “recent complaint” being resolved on the understanding following discussions that “your concerns have been resolved to your satisfaction”. (The acting duty officer at Mt Druitt advised in a letter dated 1 December 2005 (Exhibit A1) that the complaint by Mr Carabott was made on 18 August 2004 – this being almost one year later than the Lamrocks letter referred to above.) In a letter (in response to a Centrelink request) of 22 June 2005 (T39 p130) Superintendent Hudson stated that in the light of discussions with Lamrocks and the bank, and in the knowledge that the matter had been referred to the BFSO, Mr Carabott had been advised on 14 September 2004 that NSW police would not be investigating the matter. On 29 July 2005 following a preliminary conference at the Tribunal, Centrelink advised Superintendent Hudson (T42 p140) that Mr Carabott disputed that his complaint was resolved, considering that it was still being investigated by NSW police. The reply from Superintendent Hudson on 17 August 2005 (T44 p142) is to the effect that information had been provided to Mr Carabott by telephone from the officer responsible for the investigation, with the main concern of Mr Carabott being lack of feedback, and that Mr Carabott was now satisfied with the outcome. However, as became evident in oral evidence, Mr Carabott remains dissatisfied with the outcome.
20. Reverting to financial transactions, mention has been made of the decision by Mr Carabott to transfer $70,000 from his Streamline Account into a Savings Investment Account on 4 March 2003, from which some moneys were subsequently transferred into his solicitors trust account and $20,000 returned to the Streamline account in four transactions between 1 May 2003 and 6 June 2003, the final deposit occurring two weeks before the closure of the account. In March 2004, Mr Carabott set up a further account (Westpac Cash Management Account at Mt Druitt (T22 p73)) into which he deposited some $10,000, which in oral evidence he stated came from the $70,000 transferred from the Streamline Account to the Savings Investment Account or from his solicitors trust account. The Westpac account showed a near nil balance on 22 June 2004.
Oral Evidence
21. Mr Carabott confirmed that he had no dispute with the details before the Tribunal in respect of the date of the accident, weekly workers compensation, settlement date and the amount, and that he had been advised by his solicitor that a preclusion period would result from receiving a lump sum settlement. He accepted that the original preclusion period was correctly calculated on an amount of $300,000, but he vehemently disagreed with the concept whereby the compensation preclusion period is calculated on 50 % of the gross lump sum payment (as applied vide the Guide to Social Security Law Part 4.13.2.30) rather than the amount actually received by the claimant, in his case $219,737.14. He further took exception to the cancellation of his newstart allowance from 3 July 2002, some 4 weeks prior to his actual receipt of the lump sum payment on 1 August 2002.
22. He confirmed that he had lived alone at Boulderwood Road, Blackett during the relevant period of consideration of transactions in his Streamline Account from August 2002 until June 2003, moving in mid 2004 to his girlfriend’s home at Emerton, then returning to Blackett for a short period before taking up residence in a granny flat attached to a property in which his brother resides at Rooty Hill. His evidence is that he had usually been employed as a process worker however he was fully qualified as a cocktail barman. He had been working for about 9 months prior to his injury; he agreed that prior to that and since 1991, he had mainly been in receipt of newstart allowance. He considered that he could have resumed work after recovering from his injury had it not been for the stress he was now suffering, which had resulted from the loss of his money and his attempts, including further financial costs, at recovery. Nonetheless, he stated he had been applying for jobs but not at present. He sees his general practitioner every couple of weeks and has a health concession card. He stated he is on a single medication to alleviate his stress; there are no medical reports before me. He is in financial hardship, and relies on his brother, friends and charity to provide financial assistance.
23. Upon receiving the lump sum payment, Mr Carabott bought a car for about $19,000, which he sold, probably in 2004 for about $2,500 - $3,000, as he needed the money to cover his living expenses. On 12 August 2002 he withdrew $20,000 to loan to his brother, a loan that he does not expect, nor want, to be repaid. He affirmed that he had received no bank statements in the year from August 2002, that he did not keep track of expenditure, “I didn’t need to as I did not expect anything to happen”, and that whilst he was monitoring ATM recorded balances “to a degree”, he had not noticed his reducing bank balance. He withdrew money to pay for his living and other expenses either over the counter, by eftpos or by ATM. When he ascertained that money was being taken from his Streamline Account, which he considered to be about mid May 2003, as recorded in his Fraud Investigation Assessment report (T62 p203), he took steps to move the $70,000 into another account. (I note that this transaction occurred on 4 March 2003, some two months earlier.)
24. Whilst the records show that he requested an investigation by the bank on 12 June 2003, he stated in evidence that he had made an earlier request, and had gone to the bank in October 2002 because of his concern at money disappearing from his account. He stated he had not further spoken with the bank in the ensuing couple of months. There is no documentary evidence before me as to any dates prior to 12 June 2003. His evidence as to when he did notice money gone from the account is contradictory, another response being that he first noticed money gone from his account “about 2 to 3 weeks” before the 4 March 2003 transfer of the $70,000. As noted above, his original claim for a significant range of disputed transactions ($90,000 to $110,000) was modified in early 2005 when he informed the BFSO that he did not dispute the over the counter transactions. In evidence Mr Carabott stated that he had originally disputed “the lot” as advised by his solicitor – he nonetheless still considers that $90,000 to $100,000 had been fraudulently taken from his account. He affirmed that no other person had access to his account or his keycard and pin; he denied that Ms Michelle Johnson, with whom he has a de facto relationship and assists in supporting her three children, and who recently had his child, could have accessed his account. The only evidence before me in this regard is that Ms Johnson received various small payments from the solicitor’s trust account vide his instructions or to pay for car repairs and the like (T14 p62).
25. Mr Carabott further stated that he was disputing withdrawals from his Saving Investment Account, but there are no details in respect of that account before me. When questioned as to the extent of payments that might have been made into and out of his solicitor’s trust account, he stated that they would have reflected legal costs including recourse to a barrister when charged with the various offences in August 2003. Those charges initially arose through his frustration with the failure of the bank to properly investigate the disputed transactions, when he confronted the manager, and as a result, police searched his home and took possession of various firearms. He remains adamant that the bank, or at least an employee therein, has been involved in fraudulently taking money from his accounts, and that the investigation by the bank has been less than optimum, including the denial of photos which he believes were taken at ATMs. He considered the investigation by the BFSO failed to address the possibility of a counterfeit card being used. He remains adamant that the police have failed to properly investigate the circumstances, recognition of that failure being reflected in the relocation of some police from Mt Druitt.
CONSIDERATION AND DECISION
26. The Applicant conceded at the outset that the August 2004 decision by Centrelink to reduce the preclusion period from 15 May 2006 to 15 December 2005 was not challenged. Whilst the Applicant sought in the hearing to question whether the estimated legal costs of $12,000, which led to that decision, were indeed expended, Mr Carabott saw this (and some other questions in respect of money expended from the trust account) as being a “red herring” and I would agree, given the Applicant’s concession.
27. In final submission, the Applicant referred to the finding of the BFSO that supported the bank’s position that there was no evidence of fraud or another person having access to Mr Carabott’s account. The Applicant submitted that the withdrawal of the claim relating to the over the counter transactions had resulted in a residual of some $50,000 being disputed. In effect some $169,000 had been spent recklessly, it was submitted. It was submitted that Mr Carabott knew the rules in respect of ineligibility to access compensation affected payments, and hence it was incumbent upon him to control his spending. Even when he established the Westpac account in 2004, the funds were expended in a month, that is, at the same rate as had occurred in the Streamline Account. Such a pattern reflected deliberate expenditure. In a submission in the Applicant’s Statement of Facts and Contentions, it was accepted that at the time of the SSAT hearing Mr Carabott was in severe financial hardship, however it was through his own actions.
28. The Applicant submitted that the majority decision of the SSAT should be discounted as that tribunal did not have before it the finding of the BFSO, which found no evidence of fraud or unauthorised access to the account. Further the periods in gaol could not be considered as a relevant factor in the consideration of special circumstances, postulating that expenses in those periods were less than might otherwise have been the case, and criminal acts cannot be condoned as being appropriate to special circumstances. “Double dipping” was contrary to the intent of the legislation. As to his ability to work in order to financially support himself, the Applicant acknowledged that Mr Carabott suffered stress, but submitted that this did not preclude him from seeking appropriate work. In summary, 15 December 2005 remained the correct date for the cessation of the preclusion period.
29. Mr Carabott submitted that the Tribunal must look at all the evidence, which affirmed his financial hardship. There was no evidence that he had lived extravagantly, nor could it be argued that he would have chosen to incur additional expenses in legal costs, as well as time and energy leading to a stressful condition, if he had himself expended all the money in his account. That is, why waste more money if he had spent it himself. He repeated that he considered the bank was covering up the real situation, and that his circumstances clearly were relevant to consideration under the provisions of special circumstances. As to his ability to work, he re-affirmed his position given in evidence that his condition of stress precluded any return to work for the present.
30. The term “special circumstances” is not defined in legislation. In Re Beadle and Director- General of SocialSecurity (1984) 6 ALD 1, the Tribunal with Toohey J presiding, provided a definition of ‘special circumstances’ which has been widely followed, namely (at 3):
“An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
31. The Full Federal Court in Beadle v Director-General of Social Security (1985) 7 ALD 670, in dismissing an appeal against this decision, supported the notion that all circumstances in a particular case must be considered. This view was again endorsed by the Full Federal Court in Dranichnikov and Another v Centrelink and Another (2003) 75 ALD 134; in that decision, Hill J at 148 observed that the Full Court in Beadle (supra) did not actually endorse (or otherwise) the words “unusual, uncommon or exceptional”.
32. It is appropriate to also consider the matter of Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 where Kiefel J, in dismissing an appeal against the Tribunal decision in Re Groth and Secretary, Department of Social Security (1995) 37 ALD 797, further observed :
“…would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case… It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary…”
33. This view by Kiefel J is particularly pertinent to the matter before me. The majority decision of the SSAT in effect prescribed to the notion of unfairness or unjustness both in the circumstances in which Mr Carabott was placed in severe financial hardship and in the privations and implications of being imprisoned. The dissenting Member took the view that even if his funds had been misappropriated, he had himself contributed to that loss through his own inaction, and the sentencing to imprisonment was not particularly relevant as “all except one of the offences …were unrelated to either his compensation claim or his dispute with the bank”. In effect, the dissenting Member did not seemingly conclude that there was something unfair, unintended or unjust in Mr Carabott’s circumstances.
34.On the evidence before me, I subscribe to that latter view. I am assisted in forming that opinion by having available to me, unlike the SSAT, the findings of the BFSO. His view is quite clear, viz, “the disputed transactions are authorised transactions, for which the disputant is liable”, and “it is not appropriate that any compensation should be paid by the bank…” In the absence of dispute of over the counter transactions, the disputed transactions total almost $50,000 as submitted by the Applicant and tabulated in Attachment A to the BFSO report. Thus it must be accepted on the evidence that Mr Carabott remains responsible, at the least, for the expenditure of some $170,000 in a 10 month period. That is not to deny that some of that expenditure (i.e. from the $70,000 withdrawal in March 2003) was transferred to another bank account or to his solicitor’s trust account.
35. Mr Carabott rightly questions why he would incur additional expenditure in pursuit of relief from the bank, having seen his funds virtually exhausted. It would be conjecture to suggest that he reacted that way when he became aware of the rundown state of his account. The evidence is clear that he failed to monitor transactions from his account. Suffice that to pursue the bank was a decision that he took, and then not until the account was virtually exhausted. His evidence is contradictory. His oral evidence is that he approached the bank with his concerns in October 2002, but not immediately thereafter. His initial formal request for investigation by the bank was made 8 months later on 12 June 2003 yet the subsequent Fraud Assessment form completed in November that year shows he was aware of the discrepancy in balance on 15 May 2003. His withdrawal of $70,000 in March 2003, which he attributes to a concern at what was occurring in his account that year, seemingly did not trigger an approach to the bank.
37. Clearly on the evidence before me, Mr Carabott suffers financial hardship. But the evidence is that it has largely, if not completely, resulted from the mismanagement of his financial resources. He has acknowledged that at the outset he was made aware of the implications for compensation affected payments should he receive a lump sum compensation payment. In the face of that advice he has incurred financial hardship.
38. As to the three periods in gaol, all of which followed the expenditure of most of his funds, I do not find that they meet the criteria of special circumstances. Certainly they impacted on his social well being (yet providing a brake on his need for financial resources from which to cover living costs), and clearly such sentencing would have implications for future employment. Whilst Mr Carabott referred to the receipt of compensation as being an inhibitor to gaining subsequent employment, and that is a comment oft made, he made no comment as to the implications for employment resulting from his sentencing. He was quite clear that he did not consider himself fit to seek employment and was not doing so. His gaol terms resulted from his actions and on the evidence, they cannot be considered unjust or unfair, given his problems were of his own making.
39. That the NSW police did not see it appropriate to undertake a full investigation into the complaint by Mr Carabott is not evidence that fraud had not occurred. I assume that after discussions with the CBA and Lamrocks and in the knowledge that the matter had been referred to the BFSO, as stated in documentary evidence, it was assessed that a police investigation was unnecessary. The only comment I would make is that the documentary evidence provided by the NSW police reflects some contradictions as to when a request for investigation was received and a shortfall in the manner in which that complaint was actioned and finalised.
40. In summary, the circumstances of Mr Carabott may have been somewhat different to many other people, but they cannot be considered unusual, uncommon or exceptional in the full context of receiving a substantial compensation payment, being aware of the implications for social security benefits that resulted from that payment, and his subsequent actions. It would be inappropriate in my opinion for Mr Carabott to now receive further compensation by way of early eligibility for any compensation affected payment, or as it is commonly termed “double dipping”.
41. Accordingly, the majority decision of the SSAT is set aside, and in substitution thereof the Tribunal decides that the compensation preclusion period ended on 15 December 2005.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member.
Signed: A. Garcia
AssociateDate of Hearing 12 January 2006
Date of Decision 2 February 2006
Advocate for the Applicant Ms H. SchusterRepresentative for the Respondent self represented
Below is a table listing the exhibits tendered during the Hearing of the proceedings and referred to above in these reasons for decision:
Exhibit No.
Description of Exhibit
Applicant’s Statement of Facts and Contentions
A1
Letter from Paul Tickner of Mt Druitt Anti-theft, NSW Police, to Centrelink dated 1 December 2005.
A2
Facsimile from Sandra Larkin of John Morony Correctional Centre to Centrelink dated 7 December 2005.
A3
Centrelink computer file note dated 9 July 2002.
R1
Letter from the CBA to the Respondent dated 28 July 2003.
R2
Letter from Lamrocks to the Respondent dated 6 August 2003.
R3
Letter from Lamrocks to the Respondent dated 10 October 2003.
R4
Letter from Lamrocks to the CBA dated 13 October 2003.
R5
Letter from Lamrocks to the Respondent dated 11 November 2003.
R6
Letter from Lamrocks to the CBA dated 11 November 2003.
R7
Tax invoice from Lamrocks to the Respondent dated 30 June 2004.
R8
Letter from Australia Post to Michelle Johnson dated 16 March 2005.
2
1
0