Chi and Secretary, Department of Family and Community Services

[2004] AATA 697

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 697

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/196

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHNY CHI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J A Shead, Member

Date30 June 2004

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] Ms J A Shead
  Member

CATCHWORDS

SOCIAL SECURITY – recovery of debt in respect of Newstart Allowance – whether debt entitled to be recovered – whether special circumstances exist – decision under review affirmed.

Social Security Act 1991 – section 1173

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Secretary, Department of Social Security and Hales (1998) 51 ALD 695

REASONS FOR DECISION

30 June 2004    Ms J A Shead, Member   

1.   This is an application by Mr Johny Chi (“Mr Chi”) for review of a decision by the Social Security Appeals Tribunal ("the SSAT") dated 19 January 2004. That decision affirmed a decision of an authorised review officer ("ARO") dated 8 October 2003. This decision, in turn, affirmed a decision made by a delegate of the Secretary of the Department of Family and Community Services (“the Respondent”) to raise and recover an amount of $13,908.79 paid to Mr Chi in respect of Newstart allowance and whether his ongoing weekly workers compensation payments are to be treated as a direct deduction from his Austudy benefit.

2.   A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") on 18 June 2004. Mr Chi was present at the hearing and gave evidence.  Mr L Carter, represented the Respondent.  

3. Documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") were taken into evidence. The following documents were also tendered to the Tribunal:

Number	Description of Exhibit
R1	Respondent’s Statement of Facts and Contentions
A1	Personal Statement of the Applicant
A2	Tafe Letter dated 8 June 2004
A3	Letter from Dr Sullivan, Psychiatrist dated 15/6/04
A4	Copy of Applicant’s vehicle registration
A5	Letter from Dr Tonkin dated 1 June 2004
A6	Further letter from Dr Law
A7	Document entitled “Delivery Plan for 3671A Database Group”

BACKGROUND

4.   Mr Chi was born on 11 April 1957.  His qualifications were a Diploma of Mechanical Engineering and he had worked as a mechanical engineer for a manufacturer.  He arrived form Taiwan in 1985.  In 1985 he commenced work in Lane Cove as a shop assistant and within a year was a departmental manager. 

5.   He last worked on 8 November 2000.  On 11 June 2003 Mr Chi received an award in the Compensation Court of New South Wales.  Briefly his case there was that his former employer’s “unreasonable treatment of him between 1 April 1999 and 8 November 2000, including harassment, discrimination, threats, lack of support, verbal and emotional abuse, culminating in his demotion, caused his psychological injury and incapacitates him” (per O’Toole J) (T40).

6.   His workers compensation award comprised the payment of $661.29 per week between 9 November 2000 and 9 May 2001, $291.10 per week between 10 May 2001 and 30 September 2001, $296.20 per week between 1 October 2001 and 31 December 2001. From 1 January 2002 to 15 March 2002 he was to be paid $100 per week and thereafter, for an indefinite period, $80 per week.

7.   In the Application to the Tribunal for review of the SSAT decision, Mr Chi’s reasons for the Application were:

“financial hardship, unfair treatment and others, etc decision was wrong.” (T1)

8.      The Tribunal had to determine the application having regard to the written material, the evidence and the case law.

ISSUES BEFORE THE TRIBUNAL

9.The issues before the Tribunal were whether:

1.the Respondent was entitled to recover $13,908.79 from Mr Chi’s award of compensation;

2.whether the Respondent was entitled to deduct the amount of Mr Chi’s ongoing workers’s compensation from his Austudy; and

3.if so, whether special circumstances existed in this case.

SUBMISSIONS BY RESPONDENT

10.      It was submitted the decision of the SSAT dated 19 January 2002 be affirmed for the reasons set out in the Statement of Facts and Contentions (Exhibit # R1) .  

CONSIDERATION OF THE ISSUES

11.      It was not in dispute that Mr Chi last worked in November 2000.  From about 15 March 2001 until 26 August 2003 Mr Chi received Newstart allowance.  It was not disputed that during that period he received $13,908.70. 

12.      He continues to receive weekly workers compensation of $80 and that amount is deducted form his current social security benefit, Austudy. 

13. Under section 1173 of the Social Security Act 1991 (“the Act”) an award of workers compensation affects social security payments. Relevantly section 1173(1) provides:

“If:

(a)       a person receives period compensation payments; and

(b)the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, qualified for, and receiving, a compensation affected payment; and

(c)the person receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;

The rate of the person’s compensation affected payment in relation to that day or those days is reduced in accordance with subsection (2).”

14. Also section 1173(2) of the Act provides that a person’s daily rate of compensation affected his Austudy.

15.      It remains for the Tribunal to consider whether the circumstances are such that the overpayment should be waived pursuant to subsection 1184K, namely whether "there are special circumstances (other than financial hardship alone) that make it desirable to waive" the debt.  The Tribunal considered Re Beadle and Director-General of Social Security (1984) 6 ALD 1, in which the meaning of "special circumstances" was considered.  That case held that for "special circumstances" to have arisen, some "unusual, uncommon or exceptional" event must be identified to warrant a waiving of the debt. (Re Beadle (supra) at 3)  In Secretary, Department of Social Security and Hales (1998) 51 ALD 695 French J discussed Beadle’s case and the application of section 1237AAD of the Act which is couched in similar terms. French J stated:

"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."

16.      There was no such evidence. Briefly Mr Chi stated he suffered financial hardship, and he found it difficulty to complete his TAFE course because he did not have resources such as books and a computer.  He lived with his 83 year old mother in a residence which he stated was registered in his name because she did not understand or write English.  His care of his mother included household chores, shopping and taking her to the doctor.  Mr Chi paid his share of household expenses and his motor vehicle expenses.  He suffered depression. He found it all very difficult to manage financially, academically and emotionally.

17.      The Tribunal accepts that the Mr Chi’s financial circumstances are straitened, however the section specifically excludes waiver on the basis of financial hardship alone. In respect to his other circumstances, he has chosen to pursue full-time studies rather than to obtain work and better support himself. 

18.      For the reasons set out above, the Tribunal finds that there are no grounds on which the recovery of the $13,908.79 should be waived. For similar reasons, the direct deductions of his Austudy benefit from his ongoing weekly compensation payments is correct.  Therefore, the Tribunal affirms the decision under review.

CONCLUSION

19.      The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.

Signed:         Neil Glaser
  Associate

Date of Hearing  18 June 2004
Date of Decision  30 June 2004

Applicant   Self-represented

Solicitor for the Respondent     Mr L Carter