Chen and Secretary, Department of Social Services (Social services second review)
[2021] AATA 5280
•22 November 2021
Chen and Secretary, Department of Social Services (Social services second review) [2021] AATA 5280 (22 November 2021)
Division: GENERAL DIVISION
File Number: 2021/2113
Re:Yan Chen
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
REASONS FOR DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date of decision: 22 November 2021
Date of written reasons: 3 March 2022
Place:Melbourne
The decision under review is affirmed.
.............................[SDG]....................................
Dr Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY – compensation preclusion period – whether preclusion period applies – whether special circumstances – decision affirmed
Legislation
Social Security Act 1991(Cth)
Social Security (Administration) Act 1999 (Cth)
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
3 March 2022
Introduction
The Applicant, Ms Chen, seeks review of a decision by the Social Services & Child Support Division of this Tribunal (Tier 1) dated 26 March 2021 which affirmed a decision dated
9 October 2020 to recover a charge of $33,488.94 for compensation affected payments received by the Applicant during part of the period applying to her from 6 February 2016 to 20 June 2025.
That decision had already been affirmed by an Authorised Review Officer on 28 October 2020.
This was a decision made under the Social Security Act 1991 (Cth) (“1991 Act”) and the Social Security(Administration) Act 1999 (Cth).
The Applicant now seeks review of the decision by this Tribunal.
Hearing
The Applicant represented herself at the hearing on 22 November 2021 and the Respondent was represented by Mr Sparkes, lawyer.
The Applicant gave affirmed evidence and was cross-examined.
LEGISLATION
Section 1170 of the 1991 Act relates to preclusion periods and provides as far as material:
(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:
(a) begins on the day following the last day of the periodic payments period or, where there is more than one periodic payments period, the day following the last day of the last periodic payments period; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(2) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:
(a) begins on the first day on which the person’s periodic compensation payment is a reduced payment because of that choice; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(3) If neither of subsections (1) and (2) applies, the lump sum preclusion period is the period that:
(a) begins on the day on which the loss of earnings or loss of capacity to earn began; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:
Compensation part of lump sum
Income cut-out amount(5) If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.
Of relevance to this provision is s 1169 of the 1991 Act which relates to the commencement of a preclusion period:
(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
(2) In this section:
"lump sum compensation payment" does not include a lump sum payment:
(a) to which section 1164 applies; or
(b) that relates only to arrears of periodic compensation payments.
The term “compensation affected payment” is defined in s 17(1) of the 1991 Act to include, relevantly, a “disability support pension” and a “social security benefit”.
Section 1184K of the 1991 Act relates to special circumstances and provides:
(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.
(2) If:
(a) a person or a person’s partner receives or claims a compensation affected payment; and
(b) the person receives compensation; and
(c) the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person’s or the person’s partner’s receipt of, or claim for, the compensation affected payment;
the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1).
ISSUES AND CONTENTIONS
The Applicant contends that the decision under review should be set aside.
She contends that she is entitled under the 1991 Act to a finding in her case that the preclusion period should run from the date of her injury in about January 2012 rather than the later date of 5 February 2016.
I did not understand her to be questioning the actual length of time of the preclusion period of 489 weeks.
The Applicant also raised an issue of special circumstances in her case.
In support of her case, she lodged written submissions and I have duly considered those.
The Respondent contends that the decision under review should be affirmed and that no provision exists in the 1991 Act to go further back in time to a date before 5 February 2016.
CONSIDERATION
I agree with the Respondent.
I tried to explain this to the Applicant at the hearing when I gave my oral decision.
The 1991 Act contains no provision which would enable me to backdate the commencement of the preclusion period in her case to a date in about January 2012.
Under the 1991 Act, the preclusion period in her case must start on 5 February 2016 for the reasons advanced by the Respondent in its Submissions and in accordance with s 1169 of the 1991 Act.
The Tribunal simply cannot override the provisions of an Act of Parliament and make up its own law.
I have already noted that the Applicant does not question the actual length of time of the preclusion period.
Turning to the question of “special circumstances” under s 1184K of the 1991 Act, I was unable to see anything in the material supplied by the Applicant or in any of her evidence which would make this matter unusual or out of the ordinary as the authorities require in order to constitute circumstances which are “special”.
In other words, I reject the Applicant’s contentions in their entirety.
The Applicant cannot expect to reduce the amount to be repaid to the Respondent simply because it is a lot of money or because it seems unfair. She cannot receive compensation and benefits together at the same time unless allowed by law.
No provision of the 1991 Act supports the Applicant’s contentions.
CONCLUSION
My reasoning leads inevitably to the conclusion that the decision under review must be affirmed.
Accordingly, I affirm the decision under review.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the written reasons for the decision herein of Dr Damien Cremean, Senior Member
...........................[SDG]............................................
Associate
Dated: 3 March 2022
Date of hearing:
22 November 2021
Applicant:
Self-represented
Solicitor for the Respondent:
Brian Sparkes
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Jurisdiction
-
Procedural Fairness
-
Statutory Construction
0
0
0