Donald and Secretary to the Department of Family and Community Se Rvices

[2003] AATA 936

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 936

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1652

GENERAL ADMINISTRATIVE DIVISION

Re:         RACHEL DONALD

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:             19 September 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review. 

The Tribunal has considered the matter on the papers alone and expresses its concern at the applicant’s failure to attend the hearing, inability to be contacted by the Tribunal or the Department and the lack of evidence since 22 April 2003. 

. . . . (sgd) Miss Shanahan. . . . . .

Member

Social Security - Compensation preclusion period - Disability Support Pension - Special circumstances. 

Social Security Act 1991

The Family and Community Services Legislation Act 2001 ss 17, 1163, 1169, 1170, 1179, 1184

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

Re Ivovic and Director General of Social Security (1981) 3 ALN 95

Re Green and Secretary, Department of Social Security 21 ALD 772 (1990)

Director General of Social Security v Hales (1998) 219 ALN N162

Kulakov and Secretary, Department of Social Security (1991) 63 SSR 879

REASONS FOR DECISION

19 September 2003  Miss E.A. Shanahan, Member

1.      This matter was listed for hearing on 12 December 2002, 19 February 2003, 22 April 2003 and again on 29 July 2003.  The applicant failed to attend except on 22 April 2003.  While the applicant was in attendance, the respondent was not.  The respondent’s failure to attend was entirely due to administrative error by the Tribunal.  At the request of the respondent the Tribunal has proceeded to a decision on the papers. 

2.      This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 21 November 2001 confirming the decision of the primary decision maker, a delegate of the Department, made on 2 March 2000 and affirmed on 19 March 2001 by an Authorised Review Officer (ARO).  The decision calculated a preclusion period from 12 March 1999 until 16 November 2006 with respect to the applicant’s qualification for Disability Support Pension (DSP). 

Background To The Application

3. The applicant suffered a back injury at work on 11 June 1996 and received workcover payments until 11 March 1999. In 1997 she underwent a spinal fusion. On 18 March 1999 she was granted the DSP. On 2 March 2000 she was awarded a compensation payment of $340,000, following which DSP was cancelled pursuant to Part 3.14 of the Social Security Act1991 (the Act).  Centrelink advised her on 6 March 2000 that a preclusion period applied from 6 March 2000 to 16 November 2006.

4.      The applicant repaid approximately $11,000 to Centrlink and Centrelink paid $9,000 to her solicitor.  On 3 June 2000 she purchased a house for $292,000 and on 4 November 2000 she purchased a motor vehicle for $21,150.  The purchase of the house had been recommended by a financial adviser.  The applicant had entered into these expenditures as she was soon to be married and anticipated financial support from her partner who had agreed to contribute 50% of the cost of the house.  In early 2001 the relationship ended. 

5.      The applicant owed her mother $23,000 which had been borrowed to assist in the purchase of the house. 

6.      As the applicant was unable to work due to physical and psychological disabilities she sought review of the preclusion period.  On 21 November 2001 the SSAT affirmed the decision under review on the basis that the applicant had a property which could be utilised to enable her to support herself.  Shortly after the hearing before the SSAT the applicant sold her house in Mont Albert North and took up residence in a rented property. 

7.      This Tribunal was perturbed that the applicant’s failure to attend hearings might be due to hospitalisation for psychiatric treatment for her depression.  A report was requested from her treating psychiatrist, who provided the dates of her inpatient care, which did not coincide with the dates of the hearings she had failed to attend. 

8.      On 22 April 2003 the applicant did attend and informed the Tribunal she was now employed full-time, continued to undergo psychiatric treatment but had not, as requested by Centrelink, updated the details of her employment, earnings and financial status.  The Tribunal instructed her to provide this information to Centrelink.  It appears that no contact with the Tribunal or Centrelink was made by the applicant after 22 April 2003. 

9.      At the adjourned hearing on 22 April 2003, the applicant did indicate that she was unable to recall past events in any detail.  She attributed this to the electroconvulsive therapy she had undergone for treatment of her depression. 

Documentary Evidence Before The Tribunal

SSAT Decision

10.     The applicant had attended the SSAT hearing on 21 November 2001 and had detailed her medical history relating both to her back injury and her psychiatric status.  She had confirmed the expenditure of her lump sum compensation payment.  At the time of the hearing the applicant was unemployed, physically and mentally unwell and still under constant treatment for her depression and back pain.  She was taking a large amount of opiates in the form of Endone and several anti-depressants.  There is no dispute as to the manner in which the applicant had spent her lump sum compensation settlement nor was there any dispute regarding the calculation of the preclusion time. 

11.     While the SSAT noted the applicant’s continuing inability to work they were not able to find that special circumstances existed and suggested to the applicant that she sell or mortgage the house and use the money for her upkeep.  The applicant subsequently advised the Administrative Appeals Tribunal on 21 December 2001 that the property had been sold (T-1, p.2). 

Dr Sharrock Report 14/9/01

12.     Dr Sharrock of Eltham has been the applicant’s General Practitioner for five years and confirmed that she had injured her back in July 1996.  A subsequent CT scan of the spine had revealed an L4-5 disc bulge.  As a result of continuing pain refractory to treatment, a spinal fusion was performed in 1997.  Unfortunately, this did not provide any relief.  The applicant developed severe anxiety and depression, became dependent on analgesics and required frequent inpatient psychiatric treatment.  Dr Sharrock recommended that she undergo a pain management course.  An MRI of the spine in 2001 did not show any major pathology. 

Ms D K Stevenson Psychologist

13.     Ms Stevenson provided a report dated 14 September 2001 (T-25).  Ms Stevenson had treated the applicant from March 2000 until August of 2001 and agreed with the diagnosis of severe anxiety and depression.  In December 2000 the applicant developed suicidal ideation requiring inpatient psychiatric treatment.  In January 2001 the applicant changed her psychiatrist, who in turn stopped medication with Zoloft and substituted Efexor.  In April 2000 the applicant had improved sufficiently to take on a full time job but her employment was terminated within two months.  By August 2001 the applicant again had suicidal ideation and was admitted as an inpatient to a psychiatric hospital. 

Dr Hojaij Psychiatrist

14.     Dr Hojaij first saw the applicant on 25 September 2001 shortly after she had been discharged from inpatient psychiatric treatment.  He diagnosed severe mixed anxiety and depression with opioid dependence.  There had been only a partial response to treatment and ongoing psychiatric management was necessary.  On 8 November 2001 Dr Hojaij advised that the applicant was unable to work because of her severe psychiatric illness.  At the request of the Tribunal, Dr Hojaij provided the dates on which the applicant was hospitalised, these were as follows-

29 August 2001 - 22 September 2001.

30 September 2001 - 19 October 2001

31 October 2001 - 22 November 2001

28 May 2002 - 7 June 2002

23 July 2002 - 29 September 2002

On the last occasion she had received electroconvulsive therapy as well as anti-depressant medication, and continued to undergo psychotherapy. 

The Respondent’s Submissions

15.     The respondent submitted that the only question before the Tribunal was whether there were any special circumstances to treat the whole or part of the compensation payment as not having been made.  In ReBeadle and Director General of Social Security (1984) 6 ALD 1 Toohey J stated … The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional … 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.  In Re Green and the Secretary Department of Social Security 21 ALD 772 (1990) the Tribunal listed the range of factors relevant to the determination of special circumstances. While these included financial hardship and ill health, financial hardship must be truly exceptional and ill health alone cannot be held to be a special circumstance (Re Kulakov and the Secretary, Department of Social Security (1991)) 63 SSR 879.

16.     As of 24 April 2003 the applicant was in full-time employment, living independently in a rented apartment and continuing with her psychiatric treatment at regular intervals.  She had sold the property purchased in 2000 and while the sale price was not known, the Tribunal concludes that she would have received near to or perhaps more than the purchase price and has access to this money or income derived from this money.  On the evidence before it, the Tribunal finds there are no special circumstances operating that will attract section 1184 of the Act and no grounds to treat the whole or any part of the lump sum compensation payment as not having been made. 

17.     The decision of the SSAT dated 21 November 2001 is affirmed. 

I certify that the 17  preceding paragraphs are a true copy of the reasons for the decision herein of  Miss E.A. Shanahan.

Signed:         ...C. Irons.................................
  Secretary

Date/s of Hearing  12/12/02, 19/2/03, 29/7/03
Date of Decision  19 September 2003
Counsel for the Applicant         Self represented
Solicitor for the Applicant           
Counsel for the Respondent     Ms E. King (Departmental Representative)
Solicitor for the Respondent