Cole and Secretary, Department of Social Services (Social services second review)

[2023] AATA 398

Cole and Secretary, Department of Social Services (Social services second review) [2023] AATA 398 (16 March 2023)

Division:General Division 

File Number(s):2021/1271      

Re:Anita Cole  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member R Bellamy

Date:16 March 2023

Place:Brisbane

The decision under review is affirmed.

........................[SGD]...........................

Senior Member R Bellamy

Catchwords

Social Security – Disability Support Pension – Australian foreign aid worker – post traumatic stress disorder – Lump sum workers compensation settlement – obligation to repay compensation affected benefits received during preclusion period – whether to exercise discretion to exempt Applicant from having to pay – whether appropriate to treat compensation payment as not having been made.

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

Cases

Beadle v. Director-General of Social Security (1985) 7 ALD 670

Secondary Materials

Social Security Guide – Version 1.304 - Released 6 March 2023

REASONS FOR DECISION

Senior Member R Bellamy

16 March 2023

1. This is an application by Ms Cole to set-aside a decision made by the Social Services and Child Support Division of this Tribunal (“SSCSD”) on 24 February 2021. This is, in effect, a second review by the Tribunal, conducted pursuant to s 179 of the Social Security (Administration) Act 1999.

2. The SSCSD decided that there were not special circumstances that made it appropriate to treat a lump sum workers’ compensation payment received by Ms Cole in November 2020 as never having been made. That decision affirmed a decision made by Centrelink which had the effect that Ms Cole was required to pay a total of $59,081.94 to Centrelink.

3. Ms Cole has been suffering severe, debilitating Post Traumatic Stress Disorder (“PTSD”) since 2013.[1] She represented herself in this proceeding. Ms Cole provided documentary evidence and submissions prior to the hearing and she furnished some written submissions and audio recordings of telephone calls with Centrelink after the hearing. She gave evidence at the hearing. Centrelink provided documentary evidence and furnished written submissions prior to and following the hearing but did not call any witnesses. Ms Cole had an opportunity to reply to the post hearing submissions furnished by the Respondent.

   [1] A10

4. Ms Cole feels very much aggrieved by the reviewable decision and by Centrelink’s dealings with her in general. She exhibited distress, anger and frustration during the hearing, although to her credit she kept her composure for the most part. I am grateful to Ms Gerhke who appeared on behalf of the Respondent for her kind, sensitive manner in the hearing.  

5. Ms Cole is an intelligent, educated woman. The last 20 years have not been easy on her. She is seeking, through this process, acknowledgement of the wrongs that she believes have been done to her and to other Australians who are injured overseas in foreign aid work and/or who have psychological injuries and need income support. She feels she does not have another avenue for redress but that reimbursement of the $59,081.94 would somewhat alleviate her financial hardship. She urged me to take a very expansive view of what constitutes “special circumstances” under the Social Security law and “send a message” to the Government. She foreshadowed an appeal if she did not achieve a favourable outcome. She put forward reasoned arguments as to why I should find in her favour.

6. In the hearing I explained the Tribunal’s role and powers which are essentially to apply the law (having regard to relevant policy) to the facts within the scope of the reviewable decision. Ms Cole felt that, so far, her truth has not been acknowledged. That is a very legitimate concern. It is important that parties engaged in merits review feel that they have had a fair opportunity to present their case and that their case has been duly considered.

7. I have carefully considered Ms Cole’s evidence and her reasoning. However, I have not found in her favour. That is, in part, because some key claims Ms Cole made about her dealings with Centrelink seem to be without rational foundation. That is not to say these claims were not honestly made: they appear to be based on beliefs that Ms Cole genuinely holds, and that cause her substantial distress. Unfortunately, I think this decision will be perceived by Ms Cole as yet another instance of injustice and the system letting her down. I hope that giving detailed reasons that acknowledge Ms Cole’s subjective experience might be beneficial to her. Providing this level of detail, after considering all of the matters she raised and arguments she made, has resulted in this decision taking considerably longer than expected and I apologise for that.   

   THE ISSUES AND RELEVANT SOCIAL SECURITY LAW 

8. The relevant legislation is found in the Social Security Act 1991 (“the Act”). There is also a Social Security Guide (“the Guide”) containing the Government’s policy on the implementation of the legislation. It is not mandatory to follow this particular policy but I should be guided by it unless there are cogent reasons against that.

9. The compensation recovery provisions of the Act aim to prevent those receiving compensation payments for loss of income from receiving social security payments at the same time, colloquially referred to as double dipping. Section 1169 of the Act provides that where a person receives a compensation-affected payment and receives a lump sum compensation payment, the compensation-affected payment is not payable to that person during the preclusion period. Disability Support Pension is a compensation affected payment.[2]

   [2] Section 17 of the Act.

10. Where the lump sum compensation payment in the form of a settlement includes a component for economic loss, section 17(3) of the Act deems that 50% of the lump sum is taken to be for lost earnings or lost capacity to earn. The Respondent submitted that this rule was designed to avoid manipulation of the social security system by obscuring the economic loss component of a settlement. This 50% is the amount Centrelink uses to work out the preclusion period, which is the period of time when the person is not entitled to receive compensation affected payments. There is a statutory formula in section 1170 of Part 3.4 of the Act that does that.

11. In March 2013 Ms Cole became unable to work due to a workplace injury. Her employer’s insurer paid temporary disability payments for two years from that date. Payments then ceased. In November 2020, Ms Cole received a lump sum workers’ compensation payment of $497,420.79. Half of that amount is $248,710.39. Application of s 1170 of the Act results in a preclusion period of 240 weeks starting on the day following the last day of the temporary disability payments. Ms Cole’s preclusion period went from 22 March 2015 to 26 October 2019. Once she received the compensation payment, she was no longer entitled to have received the compensation affected payments that she received during the preclusion period. She had received a total of $59,081.94 in compensation affected payments in that period. The amount is a lot lower than one might expect because she was away from Australia, and therefore not entitled to receive benefits, for much of the preclusion period.

12. If, during the preclusion period, a person has received a compensation affected payment, the Act creates a compensation charge due to the Commonwealth over the settlement funds, to the extent of the payments that the person received in that period. Normally the insurer is obliged to pay Centrelink the amount of the compensation charge out of the compensation payment before releasing the rest of the funds. Where Centrelink cannot recover the amount from the insurer, it recovers it from the recipient.

13. The Secretary has a discretion to disregard the whole or part of the compensation payment if it is appropriate to do so in the special circumstances of the case with the effect that there is a shorter or no preclusion period. “Special circumstances” is not defined in the Act, but it has generally been accepted that they are “unusual, uncommon or exceptional” or “markedly different from the usual run of cases”.[3]

    [3] Beadle v. Director-General of Social Security (1985) 7 ALD 670.

14. The Guide contains information about what sort of factors, or combination of factors, could warrant the exercise of this discretion, although it is not possible to provide a finite list – each case requiring consideration on its own merits.

15. According to the Guide, which refers to a number of Tribunal and Federal Court decisions, my assessment should be based on a holistic view of Ms Cole’s circumstances. Special circumstances could include situations where the compensation provisions could lead, or have led, to extreme hardship or created an inequitable, unjust or unreasonable situation. The special circumstances provision should generally not be applied where:

    ·the person has sufficient liquid assets to support themselves, and their family if applicable, for the duration of the preclusion period; or

    ·the person acquired realisable assets after the person was advised of the preclusion period, and there is no impediment to the realisation of those assets.

16. Factors that a decision-maker should consider include:

    ·Ill health, such as unforeseen and unexpected medical expenses for the person or an immediate family member or dependant, which results in financial self-support plans being thwarted. The state of ill health should be more severe than the majority of Disability Support Pension (“DSP”) recipients;

    ·Emotional state that has become a significant factor in the person’s behaviour or the state of their health. However, where the emotional state is related to or resulted from the injury that the person received compensation for, it cannot generally be regarded as a special circumstance;

    ·Whether the person’s injury contributed to a loss in capacity to make rational decisions;

    ·Whether the person sought financial advice on the consequence of a particular course of action, and what that advice was;

    ·Whether the person has realisable asset/s that could be used to solve their current financial dilemma;

    ·Whether the realisation of the asset would impact on other circumstances;

    ·Whether the person is likely to face financial hardship, or a risk of becoming homeless, in the near future. The person’s financial circumstances would have to be severe and worse than the majority of social security recipients. There would need to be truly compelling reasons as to why the person should not realise their assets. Where a person uses compensation proceeds to purchase a house or pay off the balance of a home loan, special circumstances would generally not be found; and

    ·Whether the person had a telephone or face-to-face interview with Centrelink where the details of their preclusion period and the impacts their compensation payment will have on their income support payments or future entitlements to income support was explained to them.

17. Ms Cole has not challenged Centrelink’s method of assessing the preclusion period although she previously wanted Centrelink to deduct her legal fees from the compensation amount used. She is asking the Tribunal to find that there are special circumstances that make it appropriate to treat the whole of the compensation payment as never having been made. The Respondent contended that it is not appropriate to treat any of the compensation payment as not having been made.

18. In written submissions the Respondent summarised Ms Cole’s key contentions in support of her position (in order to respond to them) and I adopt that summary here with some alterations:

    (a)    The Australian Federal Government, through AusAID, funded some of the overseas aid work which led to Ms Cole developing PTSD which rendered her unable to work. Also, her housemate was murdered while she lived in Australian Government funded accommodation and worked on an Australian government funded aid project. Therefore, the Australian government should take some responsibility for her. Instead, the Australian Government has denied her assistance, including the “Australian Government Victim of Terrorism Overseas Payment”. There is inadequate provision of accessible workers’ compensation for Australian citizens injured on AusAID funded programs. International insurance policies are “sham insurance”;

    (b)    Centrelink initially denied her claim for the DSP on medical grounds. It subsequently denied a claim on residency grounds. This, and other behaviour by Centrelink, amounts to systems abuse and has caused her conditions to worsen;

    (c)    Centrelink required her to pursue a claim for workers’ compensation and this exacerbated her PTSD and physical health;

    (d)    The workers’ compensation payment of $497,420.79 eventually paid to her was inadequate. She was forced to accept the offer “to escape the insurance fraud” and because Centrelink threatened that if she did not, her benefits would be stopped;

    (e)    There were errors and delays in the implementation of a determination that she be treated as a single person so her husband’s assets would not be taken into account in the determination of her rate of DSP. These errors and delays, among other action by Centrelink, led to her making a rushed decision to use her compensation payment of $497,420.79 to purchase a home in Toowoomba where she is now surrounded by drug use and crime;

    (f)     Special circumstances should apply because during the preclusion period, she and her children did not have enough money to support themselves;

    (g)    She paid the $59,081.94 to Centrelink, while believing she should not have to, because the Tribunal told her that Centrelink could send debt collectors after her; and

    (h)    Her income from Centrelink is not enough to meet her needs.

19. Some of these contentions go beyond the scope of what would normally be considered relevant to special circumstances. However, Ms Cole urged the Tribunal to widen that scope so I have had regard to them.  

    FACTS

20. Ms Cole has a long history of foreign aid work. Some of the projects she worked on received funding from AusAID. In 1999 while she was working on one such project in Pakistan, her housemate died. Three weeks later an autopsy revealed arsenic poisoning. Ms Cole presumed this lady was poisoned by her ex-husband.[4] According to Ms Cole, she suffered acute stress disorder when she “witnessed the murder of a housemate – in accommodation paid for by an Ausaid (sic) grant to the Australian Volunteers abroad organisation”.[5]

    [4] T18

    [5] A9.

21. In 2002 Ms Cole married a Pakistani man and they were largely based in Pakistan in the years that followed. She and her husband had two children, in 2004 and 2006. She indicated that her income supported his family.

22. In March 2010, Ms Cole was employed by World Vision International (“World Vision”) with, according to her, 10% of her salary funded by AusAID. Terrorists stormed a World Vision office in Pakistan with grenades and guns, killing six staff. Some staff there used mobile phones to report the incident to the office where Ms Cole worked while the attack was occurring. Ms Cole was part of the trauma response team and a few weeks later a seventh victim died of his injuries while Ms Cole was sitting with his wife. After the attack World Vision increased security measures – something Ms Cole described as hypervigilance. Death threats were made against employees in 2012 which Ms Cole indicated was the last straw that led to the onset of PTSD. By March 2013, she was unable to work and she claimed workers compensation. World Vision’s American insurer, AIG, commenced paying her temporary total disability payments of $1,010.85 USD per week (“temporary disability payments”) from 24 March 2013.

23. Ms Cole continued to spend most of her time in Pakistan. She spent around five months in Australia in 2013, followed by one month in 2014, and around six weeks between 26 February 2015 and 14 April 2015.[6]   

    [6] T30.

24. On 4 March 2014, an AIG claims examiner wrote an email to Ms Cole that said:

    “I am writing to let you know of the severance of your weekly benefits effective 3-21-15. As I mentioned to you originally, our policy covers the equivalent of State of California in the USA and that statute allows for 104 weeks of disability. I believe we spoke about it sometime in late 2013 as well. We will continue to provide any medical that are deemed reasonable and necessary for your related work condition and once you have reached MMI there may be an additional benefit that we will owe you based on a final impairment rating.

    It appears that you have been issued payments that pay through 2-21-15 and so we will owe you an additional 4 weeks or two payments of TTD.

    Please let me know if you have any questions about this.”[7]

    (Underlining added)

    [7] T5.

25. Ms Cole indicated that AIG did not follow through on the underlined section of the email.[8]

    [8] T5.

26. In addition to the temporary disability payments, AIG paid medical benefits and travel related costs totalling $485.46 USD, and psychological treatment costs totalling $9,820.64 USD for the period between May 2013 and May 2015.[9]  

    [9] T6, page 122.

27. Ms Cole claimed that by December 2014, AIG was trying to deny her disability. She said an Australian assessor confirmed her PTSD and said that if she was not improving within another year she should be considered for settlement and permanent disability, yet AIG flew in a “biased evaluator from overseas to come up with a differential diagnosis and cut off all payments”. She blames the Australian government for allowing the “sham psychologist” to come here.[10] She said at that point she applied for Centrelink payments.

    [10] Transcript, page 32, lines 20 to 46.

28. Ms Cole’s evidence of payments being cut off because of an attempt to deny that she was disabled does not seem consistent with the fact that back in March 2014 AIG had foreshadowed that the temporary disability payments would end after the statutory period and that there could be final payment based on permanent disability.    

29. Ms Cole returned to Australia on 17 June 2015 and she applied for DSP two days later. The SSCSD decision, made in February 2021, accurately stated that the “claim did not proceed smoothly but was eventually granted”.[11] The Statement of Facts, Issues and Contentions filed by Services Australia in March 2022 incorrectly stated that “On 19 June 2015 the Applicant was granted a disability support pension”. No, she was not. Indeed, Centrelink’s initial rejection of Ms Cole’s DSP claim is one of her key complaints against Centrelink. She emphasised how difficult it was for her, with PTSD, to go through the process of proving her disability. She likened it to a person with an injured leg being required to hop up and down on it. Unfortunately, an incorrect statement made in a key document by a Government agency that is expected to act in accordance with the Model Litigant standards and assist the Tribunal is the sort of thing that is likely to cause despair and distrust of Government in an unrepresented Applicant’s mind. Ms Cole was very distressed leading up to the hearing and one of the first things she said was that her truth was being denied. I am grateful to Ms Gehrke for furnishing the Tribunal with correct information about that claim and for clarifying when other decisions were made and implemented.

    [11] T2, page 19.

30. When Ms Cole’s claim for DSP was refused, she was granted Newstart Allowance (“Newstart”) instead. In her written evidence, Ms Cole said she was forced into separation from her emotional and physical support, being her husband (in Pakistan), when she was denied DSP. She sought support from him, but the stress of extreme poverty caused a serious decomposition in her functional and mental states. To ensure her children were adequately fed and had access to medical care she returned to Australia when her temporary disability support payments ceased, which effectively made her a single mother and left her unsupported by her extended family in Pakistan.

1. I am unable to make sense of this claim as Ms Cole returned to Australia before unsuccessfully applying for DSP. The objective evidence indicates that Ms Cole’s temporary disability payments ran out in March 2015 and she returned to Australia in June 2015 before applying for DSP. I do not accept that Centrelink was in any way responsible for Ms Cole returning to Australia. 

2. Ms Cole did not precisely explain why her DSP application was initially rejected. She complained that:

   “The government of Australia introduced an impairment table to try and deny as many disability claims as possible”

   and

   “they failed to make treating [doctors] aware of the impairment tables and their need to address them in supporting letters for disability actions.” 

3. This complaint echoes assertions made in a publication that Ms Cole furnished entitled “Disability Support Pension: The Impact of Institutional Abuse and Neglect on People with Disability”, 2021 by the Australian Federation of Disability Organisations (“ADFO”). That publication claimed that the impairment tables were introduced in 2011, and that it has been reported that the largest non-medical reason given for rejection of claims is the failure to supply the correct information.

4. The impairment tables in fact existed before 2011 but they were overhauled in 2012. In their current form they are used to classify the severity, in terms of function, of a physical, intellectual or psychiatric impairment arising from a medical condition. The condition must be fully diagnosed, treated and stabilised and result in a continuing inability to work for the purpose of DSP. It is uncontroversial that it can be quite difficult to work out what evidence is required to adequately address the impairment tables. However, Ms Cole did not put forward any evidence to support her contention that the motivation behind the impairment tables was to deny legitimate claims for DSP.      

5. Ms Cole did not consider herself able to work and she was unable to cope with the Newstart job search requirements. However, she did not indicate that she was unable to provide medical certificates to excuse her from mutual obligation activities.        

6. On 29 January 2016 Ms Cole returned to Pakistan with her sons[12], according to her, for the limited support she could get from extended family in Pakistan to avoid continuing to spiral downwards from “system abuse”. She said she was going to kill herself and she needed her children to be with somebody who could look after them.[13]

   [12] T30, page 286.

   [13] Transcript, page 49, lines 43 to 46.

7. On 19 February 2016, Centrelink reviewed the decision to reject Ms Cole’s DSP claim and set is aside. On 18 April 2016, while she was still in Pakistan, Ms Cole was paid DSP arrears for the period 19 June 2015 to 25 February 2016. Her benefits were cancelled from 26 February 2016 because, by that time, she had been overseas for more than 28 days.[14]

   [14] T30, page 274.

8. Despite being granted DSP, and only having her payments stopped because she was outside Australia, Ms Cole remained in Pakistan until July 2017. She claimed she stayed because she could not deal with Centrelink. However, receiving DSP involves minimal contact with Centrelink. In the hearing, she conceded that she stayed in Pakistan because her children had commenced school there, they were settled and they had their father.[15] She said she managed on the Centrelink back-payment, and that she and her children “ate clover for two years” because Centrelink denied her DSP claim[16]. 

   [15] Transcript, page 50, lines 1 to 5.

   [16] Transcript, page 30, lines 1 to 6.

9. While Ms Cole was in Pakistan, she suffered from a medical condition that she said arises from PTSD. It caused her to experience some physical trauma in the context of her marriage due to cultural expectations. I am using vague language because it is a private matter. Ms Cole became distraught when giving evidence about it and blamed Centrelink. She said she endured it because she could not live with the stress of dealing with Centrelink and she was in financial need and needed help with her children.

10. It is relevant to note that, at that time, Ms Cole’s problem with Centrelink was that she had been on Newstart rather than DSP before her DSP application was successful. Her reaction to that – staying in Pakistan and enduring a lower standard of living and physical trauma rather than returning to Australia – therefore seems extreme and is suggestive of other factors being involved including mental health issues. The disadvantage and trauma Ms Cole endured in Pakistan after she had been granted DSP cannot reasonably be blamed on Centrelink.   

11. Ms Cole was not sure of the timing, but at some point, she tried to get a lump sum compensation payment from World Vision. Using the internet, she found a no-win no-fee lawyer in America. Her evidence was not clear about whether she sued World Vision or whether she was unable to do that because it was in a foreign jurisdiction. She said she had no chance to go to a court and there were no Australian lawyers who had expertise in dealing with a foreign insurer.[17] At one point she said:

    “Eventually it got to the point where World Vision was saying it doesn’t apply here because it’s an overseas contract even though the guiding principles were Californian law. The insurance company had withdrawn and World Vision had applied their local insurance company, which, you know, I wasn’t covered under their insurance policy, so it was against World Vision.  My lawyer at that point said that - this is when it went from zero to 50,000, and they said you should accept the 50,000 otherwise you lose everything and which point I said “I’ve got a permanent lifelong disability, how is 50,000 going to help me?”  And so I withdrew and that is when I managed to go and see an endocrinologist in Pakistan because this had all happened after Centrelink’s disability denial, so I was in Pakistan. I went and saw an endocrinologist because an endocrinologist in Pakistan costs $25 and I can afford to go and see one with my husband’s limited income or whatever I had at that point.”

    [17] T17.

12. Ms Cole believes that the insurance policy taken out by World Vision is known to be unenforceable and a sham. Further, she claimed that AusAID was aware that the foreign voluntary workers compensation insurance taken out by non-government organisations is “basically unenforceable”, therefore she was not afforded the same protection as people employed in Australia. Further, her PTSD made it harder to pursue a claim than it would otherwise have been.

13. In the period between 9 November 2011 and 26 July 2017, Ms Cole was present in Australia for a total of around 17 months, made up of the following periods:

    ·1 July 2021 – 22 July 2012 (21 days)

    ·2 September 2012 – 27 September 2012 (25 days)

    ·22 April 2013 – 1 October 2013 (five months, nine days)

    ·22 June 2014 – 22 July 2014 (30 days)

    ·26 February 2015 – 14 April 2015 (47 days)

    ·17 June 2015 – 29 January 2016 (seven months, 12 days)[18]

    [18] T31, page 286.

14. On 26 July 2017 Ms Cole returned to Australia with one of her sons. She did not feel able to care for them both and also deal with Centrelink. The following day, she applied for DSP and on 31 July 2017 she claimed family tax benefit. On 7 August 2017, Centrelink rejected both claims on the basis that she was not an Australian resident. On 9 August 2017, Ms Cole claimed Newstart and on 18 August 2017, Centrelink rejected that claim on residence grounds. The decisions were ultimately overturned by the SSCSD on the basis of evidence Ms Cole gave about her connection to Australia. However, the decisions do not seem unreasonable given Ms Cole had spent the vast majority of the last seven (or more) years in Pakistan, she was married to a Pakistani and her husband and one of her sons remained in Pakistan, and she had barely been in Australia for two weeks when she lodged her applications.  

15. According to Ms Cole, the decisions negatively impacted her emotional state, and affected her ability to feed, clothe and get dental care for her children[19] as well as pay for schooling resources and the like. She said they had to survive for six months in Australia with “zero financial support”[20] and that “no one checked on my child or my welfare or cared whether I lived or died.”[21]

    [19] Her use of the word “children” appears to be an error as only one of her sons was in Australia during this period. 

    [20] A11, page 8, line 12.

    [21] A9, page 3.

16. Ms Cole claimed that during this period, as she had no income support, she tried to access the Australian Victims of Overseas Terror fund but the relevant Minister changed the wording to specifically exclude Australians who worked on AusAID funded grants affected by terror attacks.[22] She said:

    “I’m better off being in a bar in Bali than I am working for the aid organisations. I would – I’m – you know, I had hoped I can drink in a bar and get blown up because it’s going to be better than what I’ve been put through.”[23]

    [22] Ibid.

    [23] Transcript, page 66, lines 1 to 8.

17. She made that comment despite having received two years of generous temporary disability payments and a lump sum of nearly half a million dollars. She produced no evidence to support her claim about the eligibly criteria. The current eligibility criteria of that fund are publicly available on the internet. A person who meets the eligibility criteria can receive up to $75,000 in aid. The criteria include that a person was an Australian resident living permanently in Australia on the day a declared overseas terrorist act occurred, and that the person was in the place where the attack occurred and was harmed as a direct result of the declared overseas terrorist act. Ms Cole does not meet those general criteria. Nor is there an exclusion specifically for Australians who worked on AusAID funded projects.

18. In the period when Centrelink did not accept that Ms Cole was a resident, she and her son relied on her “aged-pensioner mother” and “disability-pensioner brother” to support them.[24] She lived rent-free in her mother’s home and her mother paid bills. She accessed some of her superannuation in October 2017 to help with living expenses.[25] 

    [24] Transcript, page 47, lines 10 to 19.

    [25] Attachment B to the Respondent’s closing submissions, page 3 [14].

19. Ms Cole challenged the decisions and in the SSCSD hearing on 24 October 2017, she told the Tribunal she regards Australia as her home. She said she purchased an empty block of land in Islamabad for $45,000 USD in 2012 which she paid an annual sewage fee for, and she planned to sell it and use the money, along with any inheritance she receives from her mother’s (future) passing, to purchase a home in Australia. She said her long-term hope was that her compensation dispute would finally resolve and that she would have sufficient funds to financially support her family and to purchase either a small unit in Kelvin Grove or a larger, cheaper home in Toowoomba.[26] The SSCSD set the decisions aside and remitted the applications to Centrelink for reconsideration in accordance with the direction that Ms Cole is an Australian resident.[27]

    [26] Attachment A to the Respondent’s closing submissions, page 7 [31].

    [27] Attachment A to the Respondent’s closing submissions, page 8.

20. I am satisfied that living without income was very hard and demoralising for Ms Cole but in circumstances where she was able to draw on her superannuation and she owned land in Pakistan that, according to her, she was able to liquidate, I am not satisfied that she and her son were forced to suffer the level of financial deprivation that she claims.  

21. The Guide indicates that a matter that is relevant to special circumstances is whether the person is able to support themselves during the preclusion period. That appears to refer to the present and future tense. However, Ms Cole submitted that it is relevant that she was not able to support herself during the preclusion period because her residency was denied. The period in which she was not considered to be a resident was around five months. For the reasons I have given, I am not satisfied that Ms Cole did not have sufficient financial support available during that period.  

22. On 29 November 2017, Ms Cole received Newstart Allowance plus arrears from 26 July 2017. Her claim for DSP was ultimately granted, and on 5 June 2018, she was paid DSP arrears for the period 27 July 2017 to 28 May 2018. She then commenced receiving fortnightly DSP. She was paid the partnered rate which is lower than the single rate.

23. On 22 January 2019, Centrelink made a decision pursuant to s 24 of the Act to pay Ms Cole’s DSP at the single rather than the partnered rate, back dated to 4 June 2018, on the basis that there was a “special reason” to treat her as single. Ms Cole applied for review of this decision, contending that the s 24 determination should have been backdated to 27 July 2017.

24. Ms Cole went to Pakistan on 30 June 2019 for a holiday and her DSP was suspended. She returned on 28 July 2019 and her DSP was reinstated.

25. On 15 August 2019, the SSCSD decided that the s 24 decision should have been applied in two periods prior to 4 June 2018, being 27 July 2017 to 2 October 2017 and 29 May 2018 to 3 June 2018 based on Ms Cole’s financial situation in those periods.[28] The SSCSD decision makes no mention of Ms Cole’s land in Pakistan. Centrelink paid arrears (the difference between the single and partnered rate of DSP) for those two periods with that process being completed by 10 October 2019.

    [28] Attachment B to the Respondent’s closing submissions, page 5 [26].

26. On 19 August 2020, Ms Cole contacted Centrelink about an offer of settlement she had received from AIG in the amount of $350,000 USD. She wanted to know if it was enough and how it would affect her DSP.

27. Leading up to this offer being made, according to Ms Cole, she had sought advice from a local lawyer but stopped dealing with him when he increased the fee for a medical assessment the night before. Her uncle then found her a lawyer that worked for insurance companies who was a friend of his. That lawyer gave her advice about the settlement offer such as to specify that the settlement money was in US dollars.[29] As to why AIG offered $350,000 USD, after offering zero and then $50,000 USD, she claimed that she “bluffed that the Australian Government cared”, telling AIG “You’re not defrauding me, you’re defrauding the Australian Government. The Australian Government will pay my disability pension”. She said much the same thing to Centrelink[30], i.e. that she had copied AIG into emails she sent to Centrelink because the only way to get them to pay was by making them think they were defrauding the Australian government rather than a disabled person because they have no scruples.

    [29] Transcript, page 11, lines 22 to 28.

    [30] In a telephone call on 23 September 2020.

28. Ms Cole gave evidence that another reason for the settlement offer was that she did a blood test that disproved the differential diagnosis. She said:

    “And because I did a blood test and I proved their differential diagnosis wrong.  Because if you have major depressive disorder, then you have high cortisol and high cortisol - high cortisol normally and high cortisol under a (sic) overnight dexamethasone suppression test.  Whereas if you have PTSD you have low cortisol generally and severely suppressed cortisol on an overnight dexamethasone suppression test. The endocrinologist then had to rule out other causes of that, so I don’t have pituitary tumours, benign pituitary tumours, I don’t have ovarian cysts, I don’t have Addison’s. All of those things I had to rule out.” [31]

    [31] Transcript page 33, lines 25 to 38.

29. Her evidence implies that major depression would not have been compensable and that it could have been distinguished from PTSD with blood tests rather than a psychiatric assessment. Ms Cole did not put forward any medical or scientific evidence that corroborates her account. She did furnish an academic paper on the stages of PTSD that mentioned cortisol but it does not support there being a method to distinguish between major depression and PTSD by analysing blood.

30. Ms Cole She said she ended up accepting “go away money” in a situation where she said there was no way to legally pursue the case.[32] It is difficult to conceive of such a large amount being “go away money” or that an insurer that was hell bent on denying a claim would offer anything at all where there was no legal avenue for a claimant to pursue a claim. Ms Cole did not provide records of the communications between her and AIG that led to the settlement offer. The reasons she put forward for the offer seem very unlikely. On the whole, Ms Cole’s evidence about her workers’ compensation claim was quite unclear. My strong impression is that Ms Cole fundamentally misunderstood AIG’s dealings with her.        

    [32] A4.

31. The evidence before me includes some contemporaneous file notes of Centrelink’s dealings with Ms Cole[33], provided by Centrelink, and some recordings of telephone calls between Ms Cole and Centrelink that Ms Cole obtained from Centrelink under a Freedom of Information request and provided to the Tribunal[34].

    [33] T31.

    [34] A13.

32. On 31 August 2020, Ms Cole called Centrelink with the same queries as she had on 19 August 2020, and she asked for written confirmation of what the preclusion period and pay back charge would be.

33. On 10 September 2020 Ms Cole spoke with Centrelink and described AIG’s offer as “Low ball”. She said she could not sign anything because she had not received legal advice and indicated that she was having trouble getting legal advice.  

34. On 23 September 2020, Ms Cole telephoned Centrelink asking how much she would be required to repay, stating that she could not make a decision until she knew how it would affect her payments. She indicated there was time pressure from the insurer as they had previously made an offer and then withdrawn it and offered zero.

35. In another call with Centrelink that day, Ms Cole said she would not sign the settlement offer unless Centrelink and Medicare agreed “not to pursue [her] through AIG”. It is apparent from this call and from correspondence Ms Cole sent to Centrelink, AIG and the former Prime Minister and Treasurer[35] that she had become preoccupied with a clause in the settlement offer that indemnified AIG against any claims made against them by third parties in relation to Ms Cole’s matter. She had convinced herself that one day Centrelink and/or Medicare might sue AIG for the benefits those agencies had paid (and would pay in the future) relating to her work injury and that she would then have to re-imburse AIG. Ms Cole was assured that this would not happen because AIG is an overseas company and that Centrelink would pursue her directly for what she owes from her settlement. This did not alleviate her concerns.

    [35] T8.

36. On 2 October 2020, Ms Cole telephoned Centrelink after having provided the unsigned settlement agreement. She repeatedly described the offer as too low. She was told that her preclusion period was likely to be 237 weeks starting on 23 March 2015 and ending in 2019. She spoke at length about her fear that Centrelink would at some point make a two million dollar claim against AIG because Centrelink does not want to support her for the rest of her life. She was again assured that this would not happen, yet she continued to indicate that the indemnity clause gave rise to that threat. She indicated that the clause was put in because she had told AIG that she would be claiming DSP so they knew they were defrauding the government.

37. Ms Cole asked what would happen if she was too scared to sign the settlement because Centrelink would not undertake in writing not to ever pursue AIG. She was gently told there would be an argument that she is no longer taking reasonable action to pursue compensation. The file note is a little misleading in that it gives the impression that it was put more definitively than it was, e.g:

    “Customer has suggested that if we do not give her advice then she will not pursue her compensation. This would result in the cancelation of her DSP for failure to pursue her compensation rights”[36]

    [36] T13, page 289.

1. Ms Cole told the Centrelink officer that if it was put in writing she would “sign it today” but if she was merely being told Centrelink would not sue AIG then she was “calling bullshit”.

2. Ms Cole was told:

   “It doesn’t come down to us. It comes down to if you think 350 US is worth settling for. So that’s it in the first instance. Our recovery is off to the side and we are dependent on the terms of your settlement…being in a foreign jurisdiction, our government isn’t going to chase AIG…”.

3. Ms Cole continued to press for a guarantee from the government. She said the settlement would result in her DSP being cut off, and she was told that would not happen. The Centrelink officer offered to print her payments summaries so she could work out how much would be recovered from the preclusion period. 

4. Ms Cole raised the fact that during the preclusion period she was told that her benefits would be stopped if she left Australia. She characterised it as having been “detained” in Australia in order to receive Centrelink payments. She asked whether, now that she has to pay the money back, she could have four years of freedom back. This displays a different attitude to the one she put forward in the SSCSD hearing when seeking a residence determination.   

5. On 5 October 2020, Ms Cole emailed AIG seeking some changes to the settlement contract after consulting a lawyer. On 13 October 2020, AIG emailed Ms Cole agreeing to some of the changes and explaining why others would not be made.[37]

   [37] T8, pages 132 to 134.

6. On 23 October 2020, Ms Cole signed the settlement contract. It was around this time that she asked her husband to sell her land in Pakistan and send her at least half of the proceeds so she could use it to buy a house. However, he had already sold it without her knowledge and used all the proceeds to build a hotel. He had been able to do that because when Pakistan stopped renewing Pakistan Origin cards, Ms Cole “catastrophised” that the government was going to take her land, so she transferred it to her husband.[38] She indicated that a feature of her PTSD is that she “catastrophises”.

   [38] Transcript, page 18, lines 32 to 38.

7. On 3 or 4 November 2020, Ms Cole told Centrelink that AIG had written to her informing her that due to an administrative error $350,000 in AUD rather than USD had been paid to her and that the balance would be paid the following day. She told the Centrelink officer that this was an attempt to avoid paying the agreed amount. She had not checked her bank accounts online due to her fear that she had been hacked. During the call, Ms Cole said she should be getting millions from AIG and asked for advice about how to get AIG to pay the balance of the settlement money. She was told that Centrelink could not assist her with that. In fact, AIG had paid AUD350,000 and it paid the balance of $147,420.79 the following day. In total Ms Cole received $497,420.79.

8. On 10 November 2020 Ms Cole called Centrelink, concerned that she was recorded as living away from home because her husband had a house in Pakistan. She foreshadowed buying a house to avoid Centrelink denying her residency again and to solve the problem of the home in Pakistan. She was told her concern would be escalated and treated with priority. On 13 November 2020 a note was made to process Ms Cole’s request urgently to reduce stress on her as she was in an extremely vulnerable situation. 

9. On 16 November 2020, Centrelink issued a notice informing Ms Cole that her preclusion period was 22 March 2015 to 26 October 2019 and that she was required to pay back $59,081.94 in payments that she received in that period.

10. The next day, Ms Cole called Centrelink to clarify the amount she owed. She also said she was separated from her husband in Pakistan and that Centrelink would not pay her DSP because he owns a family home there. There was no evidence at that time that her DSP was going to be cut off for that reason.  

11. On 18 November 2020, Ms Cole telephoned Centrelink to dispute the amount of compensation that had been used to calculate the preclusion period. She said it should be reduced by the money she had paid to lawyers to get the settlement. She was told Centrelink does not do that and she asked for the decision to be reviewed. She claimed that she had paid the lawyer to get money “for Centrelink”. She asked for the due date for payment of the compensation charge to be pushed back to 31 January 2021 because she would need to wait for her superannuation to be released to pay it as she needed all of the compensation payment to buy a house.   

12. On 19 November 2020 Ms Cole spoke with Centrelink again about these issues. She claimed to have worked against her disability and incurred legal costs to “get money back for Centrelink and myself”. She said it is harder for her than for a person injured in Australia. She said she has not had acceptable housing in three years and complained that Centrelink had not assisted her to find affordable housing.

13. On 23 November 2020, Centrelink reviewed and affirmed the compensation charge.

14. A key part of Ms Cole’s case is that she was threatened by Centrelink first to pursue compensation, then not to accept an inadequate offer, and finally to settle her compensation claim for an inadequate amount. She said she made extraordinary efforts to get the maximum compensation payment because the DSP application form threatens legal action for failure to do so, and this meant she had to engage with AIG who she described as an abuser, which worsened her PTSD and her physical health.

15. The Compensation and Damages (MOD C) forms completed by Ms Cole[39] contained a number of declarations that applicants were obliged to sign. One of those was:

    “under Section 1166 of the Social Security Act 1991, if Centrelink believe I have an entitlement to compensation, I will be required to take reasonable action to obtain that compensation.”

    [39] E.g. T5, page 111; T11, page 146.

16. Section 1166 of the Act relevantly states:

    (1) If:
    (a) a person receives or claims a compensation affected payment; and
    (b) the person…is, or, in the Secretary’s opinion, may be, entitled to compensation; and
    (c) the person…:

    (i) has taken no action to claim or obtain the compensation; or
    (ii) has taken no action that the Secretary considers reasonable to claim or obtain the compensation;
    the Secretary may require the person…to take the action specified by the Secretary.

    (2) The action specified by the Secretary is to be the action that the Secretary considers reasonable to enable the person to claim or obtain the compensation.

17. Section 1167 of the Act relevantly states:

    (1) If the Secretary, under section 1166, requires a person who receives or claims a compensation affected payment to take action to claim or obtain compensation, the compensation affected payment is not payable to the person or is not to be granted, as the case may be, unless the person complies with the requirement.

18. There is no evidence that Ms Cole was issued a notice pursuant to s 1166 of the Act or otherwise given a direction requiring her to pursue workers’ compensation. It was apparent from the totality of Ms Cole’s evidence that she sought compensation because she felt entitled to it.

19. Ms Cole claimed that on multiple occasions she asked Centrelink if she could stop pursing the claim due to the stress but the requirement was always reinforced with a threat of cessation of benefits. There is no evidence to corroborate that any such conversations occurred. Nor is there any evidence of Ms Cole’s communications with AIG that substantiate her assertion that AIG was difficult or abusive. In fact, the scant evidence of email communication gives the impression that AIG was co-operative.       

20. On the evidence before me I do not accept that Ms Cole pursued compensation for the benefit of Centrelink or because she was afraid that Centrelink would cut off her DSP if she did not.  

21. Of the settlement offer that Ms Cole accepted, she said:

    “and in the last instance when a written lowball offer was shared but not agreed – centrelink (sic) staff even threatened application of the preclusion period and compensation recovery liability even if no agreement was reached”. [40]

    [40] Applicant’s final submission, page 2.

22. Ms Cole said she was explicitly told that if she did not accept the offer she might be liable for the money related to the preclusion period calculated on the offer anyway and lose her DSP “even without receiving the settlement”. She added that “the fact that the Centrelink spokesperson did not record the conversation nor note it correctly does not mean it did not happen”.[41] She claimed she “had to sign the insurance fraud and legal threats by Centrelink should I not settle on the inadequate settlement offer”.[42]

    [41] Ibid, page 7.

    [42] A3, page 2, lines 21 to 23.

23. In the hearing she said Centrelink had told her “You have to accept it because you’re not going to get any more”. When asked how Centrelink would have known she could not get any more, she said Centrelink’s position was that she had been made an offer and if she did not accept it she might be liable for the money Centrelink had already paid to her. This contradicts her assertion that she was pressured not to accept an offer that was too low. When it was put to her that she did not feel pressure to accept zero or $50,000, she said that was because she did not tell Centrelink because the value of a permanent disability is not zero or $50,000. I take this to mean that she felt at liberty to decide what was acceptable to her and to decide what information to share with Centrelink.

24. Further, the audio recordings and file notes indicate that Centrelink merely wanted to be told if she accepted an offer. She was not threatened, but politely warned that if she did not accept the settlement offer, in the context of her refusing to sign for an irrational reason, it could be argued that she was no longer taking reasonable steps to obtain compensation. She was also told that it was a matter for her to decide if the amount was enough for her. Before she accepted the settlement offer, Centrelink gave a reasonably accurate estimate (which was contingent on the fluctuating exchange rate between USD and AUD) of how long her preclusion period would be and offered to print out her payments summaries so she could work out how much would be recovered. It is apparent that any pressure she felt to accept the offer was time pressure that she thought she was under from AIG, not Centrelink. Moreover, she did not yield to any pressure: she refused to accept the offer until she knew the financial implications and AIG had made some of amendments she requested to the settlement offer.

25. The audio recordings and file notes show that Ms Cole initiated a lot of contact with Centrelink, often asking Centrelink to help her with matters that are outside Centrelink’s functions or raising the same issue on multiple occasions despite having been given answers and assurances. Some conversations lasted over ten minutes. In every audio recording, the Centrelink officer who dealt with Ms Cole treated her with courtesy and patience. They all tried to help her and some of the file notes indicate genuine concern about her wellbeing. 

26. On 25 November 2020, Ms Cole signed a contract for the purchase of a house in Toowoomba.

27. On 4 December 2020, Ms Cole lodged this appeal.

28. On 10 December 2020 Ms Cole withdrew her superannuation balance of $62,558.68. The following day she purchased the house for $480,000 using her compensation funds. She spent the rest of the money on furniture and rates. 

29. On 14 December 2020, Centrelink advised Ms Cole in a telephone call that due to COVID, recovery of the compensation charge had been automatically paused until 28 February 2021.[43] Despite this, on 23 December 2020, Ms Cole paid the charge using her superannuation funds.

    [43] FOI, page 28.

30. Ms Cole said she did that, while believing she should not have to pay it, because she was not aware that the debt was on hold and she was threatened with debt collectors. Some probing in the hearing revealed that she was not threatened with debt collectors. What had occurred, according to her, was that she had telephoned the Tribunal and asked if Centrelink could pursue the debt while her application for review of the decision was pending, and she was told that Centrelink could pursue her with debt collectors. I find it implausible that a Tribunal officer speculated that Centrelink might engage debt collectors. I doubt the accuracy of Ms Cole’s recollection. The appropriate agency for her question was Centrelink, not the Tribunal, and Ms Cole knew that. Here is another example of Ms Cole making unreasonable requests of government agency staff and then perceiving that they threatened her. Ms Cole’s payment of the compensation charge did not prejudice her prospects of success in this application.        

31. Ms Cole claimed that when she spoke with a Centrelink financial advisor in November 2020, she was told that Centrelink had listed her as owning a home (her husband’s in Pakistan) but being away from it, so she would likely not be eligible for DSP because of the lower asset limit for home owners, and she was advised to use the settlement to purchase a property and live in it. There is no corroborating evidence of such a conversation or that she was treated as having a home in Pakistan at that time. 

32. Ms Cole gave evidence at the hearing that there were a number of factors influencing her decision to purchase the property, including the desire to acquire a home to ensure future financial security, that she considered it more financially sound to own than rent, and to give herself an opportunity to live away (at least part time) from her children in Brisbane, with whom she has a strained relationship at times. Moreover, she had plans as far back as 2017 to use a compensation payout to buy a home.  

33. Ms Cole bought the property subject to a lease so she was paid weekly rent of $450 until 26 February 2021 when the tenants vacated. She complained that her DSP should not have been reduced due to the rental income because the rent paid for costs associated with purchasing the house.

34. Ms Cole described her home as a low maintenance brick single story home with solar panels to reduce electricity bills. She gave evidence that she is surrounded by methamphetamine users and there was an attempted home invasion after she moved in. I do not doubt that there are drug and crime problems in Toowoomba. Ms Cole also said she loves her home and will not move from there. She has purchased CrimSafe screening, deadlocks, security cameras and flood lights. She receives $200 from a charity every six months which she indicated she would use for further security upgrades[44]. She has use of her sister’s car.

    [44] Applicant’s final submission, page 12.

35. Ms Cole currently receives DSP at the single rate, in the amount of $967.50 per fortnight and family assistance in the amount of $362.32 per fortnight. Her only debt is possibly $6,000 in legal fees charged by her second lawyer but it has not been pursued.    

36. Ms Cole’s two children reside in Brisbane. Her eldest son graduated Year 12 in 2021 and he has a job that pays $15.50 per hour. Her younger son is in Year 12 this year and he got a part-time job because Ms Cole was unable to pay all of his expenses, being mainly food, clothes and the cost of participating in sports which he uses as therapy. 

37. Ms Cole continues to see the same psychologist who diagnosed her PTSD.

    CONSIDERATION

38. Ms Cole stated that she lives a small life because she is poor. That, unfortunately, is not exceptional in the context of social security recipients. The social security system is a safety net intended to protect people from sever financial hardship. Persons who are legitimately in receipt of social security payments, as Ms Cole is, subsist on a relatively low income.

39. I am satisfied that Ms Cole does not receive any financial support from her husband and likely never will. She owns her own home which is not subject to a mortgage, so her accommodation expenses are limited to rates which are around $3,000 per annum. She is unable to work, and due to her PTSD she could not cope with letting a room of her home to earn some additional income. She considers that selling her home and renting is not financially sound, and it would remove much needed stability from her life. Given her mental health issues, that seems a reasonable stance. I accept that her only realistic source of money is Centrelink payments. She does not have any debts.    

40. Ms Cole receives a total of $1,329.82 per fortnight from Centrelink which will reduce to around $970 per fortnight when neither of her sons are considered her dependents. Last year she was paying the living costs of her younger son, who lived rent free in her mother’s home. She foreshadowed that her mother’s home would be sold in early 2023 to pay for her to go into an aged care facility. Her sons would then have to find alternative accommodation. If they are studying such that they do not have income they can apply for Youth Allowance.

41. Ms Cole has a psychological condition that is debilitating, although that does not make her exceptional in the context of DSP recipients. She has type 2 diabetes, and her gall bladder was removed leading to a fatty liver. She has gained a lot of weight due to stress, and she has problems with her plantar fascia. Ms Cole also developed obstructive sleep apnoea, said to be correlative of her PTSD. Her current medical expenses are very limited. Her psychologist bulk bills. She wants to see an endocrinologist through the public health system and there might be medication prescribed. She finds swimming to be good for her and the nearby pool charges a $6 entry fee. She has not looked into some types of medical treatment like gastric band surgery because she does not think she can afford it. She will not engage with the National Disability Insurance Scheme (“NDIS”) because she thinks the NDIS will abuse her like she believes AIG and Centrelink did. She said “I can’t. It will kill me. The bureaucratic process and the denial would kill me.”[45] However, the option is there and as she has pursued this claim through to the General division of the Tribunal, I think she is capable of at least seeing what sort of funding she could get.     

    [45] Transcript, page 61, lines 15 to 20.

42. If Ms Cole is refunded the compensation charge, she will place it back into her superannuation account and withdraw $150 per fortnight (which is low enough not to affect her rate of DSP) to effectively supplement her income and afford things like acne cream for her children (approximately $115 per month to avoid permanent scarring), thrush medication, bras that are decent, repairs around her home, installation of hardwired security cameras (as she thinks the wifi cameras have been hacked), a mobile phone plan with data, driving lessons and sporting fees for her sons, and gardening equipment so she can grow vegetables as gardening is a therapy for her. She would consider obesity injections and adjunct therapies for PTSD too.[46]

    [46] A11, page 10.

43. Ms Cole considers her income inadequate. However, she is being paid DSP at the full rate for a single person, with family payment on top of that. Owning her own home, without a mortgage, puts her in a better position that a lot of others who rely on social security payments. I am not satisfied that Ms Cole is suffering financial hardship or that her PTSD and medical conditions make her an exceptional case in the context of social security recipients who have received compensation for permanent incapacity for work.

44. Ms Cole claims that Centrelink required her to engage with AIG in order to receive DSP and this is a factor that exacerbated her PTSD and led to deterioration of her physical health. The general obligation conveyed in the application form was to make reasonable efforts to pursue an entitlement to compensation. That is appropriate, and the duty applies to all recipients of a compensation affected payment. It serves to place the obligation to support an injured employee on the employer (and their insurer) rather than the public purse. There is scant intelligible evidence about exactly what Ms Cole needed to do to obtain compensation for permanent disability and that would have gone beyond what was reasonable given her specific circumstances. Further, I am not satisfied that Centrelink threatened her, that she was issued with a notice that required her to pursue her claim, that Centrelink insisted that she had to pursue her claim, or that it had any active interest in her claim until she sought advice about the $350,000 offer.  

1. Ms Cole contends that she should not have been required to pursue compensation because her worker’s compensation insurance was unenforceable, and that the Government, which partially funded the relevant aid projects, did not do enough to assist her. She described being required to pursue a claim that was “unwinnable”.[47] However, there is no evidence World Vision’s insurance was a sham or that Ms Cole’s claim was unwinnable. She did, in fact, obtain compensation. It is not apparent what the Government could have done to assist Ms Cole: it was not her employer and it cannot interfere in a foreign jurisdiction. I accept that her PTSD made the process harder than it otherwise would have been and that she had difficulty finding a lawyer who could help her, however, again, there is no evidence that leads me to conclude that she was required by Centrelink to go to unreasonable lengths to pursue compensation.      

   [47] A3, page 2.

2. The material filed by Ms Cole includes representations that Centrelink should pay for her legal and other costs, and for the work she did, to obtain her settlement which she described as “labour on behalf of the Australian government”. She included items like airfares back to Pakistan after her initial DSP application was denied, parking at the Tribunal and phone calls to Centrelink.[48] Separately, she said she was made to do a job and that “by handing back $60,000 to Centrelink I’m being unpaid for that job, I consider myself a slave”.[49]

   [48] T11.

   [49] Transcript, page 37.

3. There is no provision in the legislation to pay Centrelink recipients for costs incurred or the work they did to progress their compensation claims, and it is quite audacious to seek it. Applying Ms Cole’s reasoning, Jobseeker recipients should be paid for the time, money and effort they put into seeking employment, which they are required to do and which (if they are successful) reduces the amount of benefits Centrelink pays to them. Ms Cole’s legal costs were relatively modest and many of the other items did not relate to her compensation claim. I do not accept that the costs Ms Cole incurred and the work she did to progress her compensation claim provide a basis for cancelling or reducing the compensation charge.       

4. Ms Cole claimed that Centrelink’s initial denial of her DSP application, then her residency status, caused deterioration in her mental and physical health. I do not doubt that these decisions were distressing to Ms Cole, however there is no expert medical concerning a progression of mental and physical health problems, and it is apparent that there were other operative factors including problematic thought processes and difficulties in her marriage.

5. Ms Cole’s psychologist indicated, in a letter dated in April 2022, that the current review process in the Tribunal was deeply distressing to Ms Cole and had resulted in her experiencing further PTSD symptoms, gaining 10kg and suffering panic attacks that required hospitalisation. He urged the Tribunal to:

   “determine a favourable outcome for Ms Cole so that she can heal and move on with her life with a perception of a renewed faith in the processes of social justice from the Australian government”.[50]

   [50] A10, page 2.

6. Ms Cole’s psychologist is a treating psychologist, not a forensic psychologist, and it is apparent that he has accepted Ms Cole’s narrative of her dealings with Centrelink without question which undermines his opinion.         

7. While I accept that the initial DSP and residency decisions were upsetting to Ms Cole and made her life harder, the DSP decision did not leave Ms Cole without income, and she was granted DSP retrospectively some months later upon review. The residency decision did leave Ms Cole without income but she had a realisable asset and superannuation to draw on. Those decisions were disadvantageous to Ms Cole, but she is responsible for the choices she made following each decision. I add the observation that the fact that these decisions were later overturned does not necessarily mean they were wrong or unreasonable at the time they were made. One feature of merits review is that the reviewer can take into account additional evidence, and that can lead to a different decision being made on review. 

8. Ms Cole spent many years working in stressful environments. She was a secondary victim of a terror attack. She suffers severe PTSD which impacts her in many ways. Due to her condition, she has found the compensation process with AIG and the claims process with Centrelink extremely onerous and distressing. Ideally, when Ms Cole first applied for DSP, she and her psychologist would have been in a position to adequately address the qualifying criteria and she would not have felt that Centrelink was an antagonist, trying to deny her disability. I am not persuaded on the evidence before me that Centrelink’s dealings with Ms Cole were abusive, that Centrelink’s decisions forced her engage with AIG or to suffer financial deprivation, or that she now suffers substantial financial hardship. It is evident that a lot of her troubles have more to do with the way her psychological condition influences her thought processes than the actions of Centrelink.

9. The matters Ms Cole has raised do not separately or cumulatively constitute special circumstances that make it appropriate to treat any or all of the compensation payment as not having been made. At the first review stage, the SSCSD found that application of the Act did not give an unfair or inappropriate result, and that Centrelink’s decision was consistent with the meaning and intention of the Act. I agree with that finding. The decision I am tasked with reviewing, being the SSCSD decision, is affirmed.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

.......................[SGD]...........................

Associate

Dated: 16 March 2023

Date of hearing:	3 May 2022
Date last evidence received:	27 June 2022
Applicant:	In person

EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T-Documents (T1 to T33 paged 1 to 316)	R	-	1 April 2021
A1	Email submission dated 19 March 2021 and abstract of article “Compensation Seeking and Disability After Injury: The Role of Compensation-Related Stress and Mental Health”* dated August 2015 (*separately lodged on 3 May 2021)	A	19 March 2021	19 March 2021
A2	Applicant’s Statements re special circumstances (x 2) lodged 26 May 2021 (1 page each)	A	-	26 May 2021
A3	Applicant’s Statement lodged on 15 July 2021 and extract from the Social Security Guide “6.7.3.40 Waiver of Debt on the Basis of Special Circumstance”.	A	-	15 July 2021
A4	Applicant’s Statement lodged 12 October 2021 (6 pages)	A	-	12 October 2021
A5	Applicant’s Statement lodged 18 October 2021 (3 pages)	A	-	18 October 2021
A6	Australian Federation of Disability Organisations (AFDO) Report “Disability support pension: the impact of institutional abuse and neglect on people with disability - Part A: submission to the Senate Inquiry on the purpose, intent and adequacy of the Disability Support Pension” dated September 2021 (83 pages)	A	-	19 October 2021
A7	Email from Alexander McFarlane to Applicant dated 20 October 2021 attaching article “The Need to Take a Staging Approach to the Biological Mechanisms of PTSD and its Treatment” dated 7 February 2017 (9 pages).	A	-	20 October 2021
A8	Applicant’s FOI Information obtained from the Respondent lodged on 19 January 2022 including: ·     Letter to Ms Cole from the Respondent - “Decision on your Freedom of Information Request” dated 2 December 2021 including Attachment A & B. ·     Letter to Ms Cole from the Respondent – “Decision on your Freedom of Information Request – Full Access” dated 18 January 2022 including Attachments A & B and Document List and Documents for period 19 August 2020 to 23 December 2020 provided in response to this FOI request (31 pages).	A	-	19 January 2022
A9	Applicant’s Statement lodged 18 March 2022 (5 pages) and Letter from RBWH dated 18 March 2022	A	-	18 March 2022
A10	Letter from Joseph Riordan, Clinical Psychologist (2 pages)	A	27 April 2022	28 April 2022
A11	Applicant’s final submissions (22 pages)	A	-	6 June 2022
A12	Applicant’s further submissions (6 pages)	A	20 June 2022	20 June 2022
A13	Audio files provided by the Applicant under a Freedom of Information Request (14 audio files)	A	Various	27 June 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16) including attachments: ·     Attachment A – Debt Action Summary customer record ·     Attachment B - Compensation divisors ·     Attachment C – Payment summary customer record	R	18 March 2022	18 March 2022
R2	Respondent’s closing submissions (41 pages)	R	30 May 2022	30 May 2022