Donnelly and Department of Family and Community Services - [2000] AATA 627

DECISION AND REASONS FOR DECISION [2000] AATA 627

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1149

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARGARET DONNELLY
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Dr J Campbell, Member

Date1 August 2000
PlaceSydney

Decision       The decision under review is affirmed.
  ..............................................
  Dr J Campbell
  Member
CATCHWORDS
Social Security – Carers Pension – Compensation affected payments – issue of not having been made – issue of not liable to be made – special circumstances

Social Security Act 1991, Sections 17, 1168, 1184

Re Groth and Secretary, Department of Social Security (1995) 40 ALD 541
Re Krzywak and Secretary, Department of Social Security (1998) 15 ALD 690
Re Gutierrez and Secretary, Department of Social Security (1993) 35 ALD 353
Re Secretary, Department of Social Security and Haughey (1994) 36 ALD 653
Re Beadle and Director – General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

Dr J D Campbell, Member

Mrs Margaret Donnelly ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 22 June 1999 which affirmed the decision of an authorised review officer of Centrelink dated 15 April 1999. This latter decision had affirmed the decision of delegate of the Secretary of the Department of Family and Community Services ("the Respondent") dated 3 March 1999 to reject the Applicant's claim for a carer payment.
A hearing was held before the Tribunal in Sydney on 16 March 2000 at which the self-represented Applicant, assisted by her husband, gave oral evidence. The Respondent was represented by Ms Alex, an advocate from the Administrative Law section of Centrelink.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T22, p1-91
Applicant's statement of facts and contentions dated 31 January 2000       Exhibit A1
Applicant's submission re special circumstances dated 16 March 2000       Exhibit A2
Respondent's statement of facts and contentions dated 16 March 2000     Exhibit R1

Issues

The relevant issues in this matter are:
(a) whether the receipt by the Applicant's husband of compensation in the amount of $350.10 per week precludes payment of a carer payment to the Applicant; and
(b) whether there are any special circumstances which enable all or part of the compensation payment to be disregarded.

Legislation

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 17, 1168, 1184.
Background
The Applicant applied for a carers payment on 15 January 1999 (T3, p12), having previously been on a wife pension until 13 June 1995, as a result of her husband receiving a disability support pension up to that date. The husband was injured in a work related accident on 1 April 1996 and has been receiving fortnightly periodic compensation payments since that time (T5, p31). At the time of application for review the husband was also receiving $338.50 gross per week compensation (T2, p7). Because of the payments, the Applicant's claim for carer payment was rejected by the Respondent on 3 March 1999. This decision was affirmed by an authorised review officer on 15 April 1999 and by the Social Security Appeals Tribunal on 10 May 1999 (T2, p11).
Evidence – Mr Donnelly
Mr Donnelly told the Tribunal that he was involved in a motor vehicle accident in 1974 with resultant crush injuries to T9, 10, 11, 12 and L1 and 2 vertebrae. He was in hospital for four months, and had constant back pain with which he was unable to sit, stand or drive. At the time he had a management role with Australian Consolidated Industries and he lost his job while in hospital as a result of the particular division closing. The only income during this period was sickness benefit, and he did not receive any compensation or a third party benefit as a result of the accident. Further he was a single parent with three daughters, living in housing commission accommodation.
Mr Donnelly stated that in 1983 he was living in Campbelltown, and was in receipt of an invalid pension when he met his wife, who he married in 1984 and they went to live in Cootamundra, this being the town of residence of his wife's family. At that time, he was receiving the invalid pension and his wife a wife's pension. Mr Donnelly stated that in 1986 they moved to Taree because of his wife's circulation and the two younger children. In Taree he undertook a number of TAFE courses involving accounting and computers and in 1995, he was offered a job as a trainer. He stated this was a six week trial period, which he successfully completed and continued in the role, successfully placing 68 out of 75 trainees in permanent employment.
On 1 April 1996, Mr Donnelly stated that he ran off the road on the way to work and was admitted to Manning Base Hospital with a severe whiplash injury to his cervical and upper thoracic spine, a closed head injury, a fractured sternum, left clavicle and a left third rib as well as damage to his right knee. Mr Donnelly, aged 51, stated that his current psychiatric condition commenced after his first day in hospital and involves mood swings from being rational to thumping holes in walls and depression. There are times when he is in pain and he won't answer phones or the door. While worker's compensation should cover his medical expenses, it is always after the event, and particularly as his psychiatrist and psychiatric periods of hospitalisation are in Sydney, Mr Donnelly stated that the many trips to Sydney (41 occasions and periods of hospitalisation) cause wear and tear on his car (for he finds he is unable to travel by train or bus), and expense for his wife as she also has to drive and in addition, find overnight accommodation which is not reimbursed.
Mr Donnelly stated that he was able to drive a car for about ten kilometres, that he has difficulty with reading and is unable to mow the lawns around their rented property. Further he stated that the financial situation was difficult in that they owed $2,500 on bank cards, had a $6,000 funeral fund and other household assets.
Mrs Donnelly
The Applicant, aged 51, stated that she gave up work fourteen months ago to look after her husband on a full-time basis, and she has not worked since. She is finding her circumstances both difficult and demanding as she drives her husband to and from Sydney for specialist consultation and for periods of hospitalisation, during which she returns to Taree to look after the bird and orchid collections. The Applicant indicted that as a result of her experiences she is under treatment by Dr Klug, her husband's psychiatrist, for stress, anxiety and depression.
In addressing the issues of financial concern, the Applicant stated that it was very difficult to live on the fortnightly compensation payments ($720) and a fortnightly carer payment ($38.20), due to tax ($112.90), house rent ($73 per week from April), storage shed rent ($60 per week), lawn mowing ($25 per fortnight) and out of pocket expenses of approximately $140 per trip to Sydney which are not reimbursed by the insurance company. As regards overall financial circumstances the Applicant indicated that there exists a $2,500 debt on bank credit cards, that they own two vehicles (approximate value $12,500) and the value of household contents is approximately $20,000.
Submissions
The Applicant contends that the compensation affected payments should be disregarded because of special circumstances, namely the financial situation in which he now finds himself and which has existed since the payment of the compensation affected payments commenced. The financial difficulty arises from the fact that she is unable to work because she has to care for her husband on a full-time basis, which has arisen directly as a result of a work related injury. The capital and operating financial circumstances in the Applicant's view are particularly tight and are made worse by the slowness of both payment and reimbursement of expenses they incur.
The Applicant further noted her husband's multiple conditions, as nominated by Dr Klug, a consultant psychiatrist, in his report of 4 May 1999, (T19, p88) as:

Chronic post traumatic stress disorder
Chronic pain syndrome
A major depressive disorder in substantial remission
Panic disorder with agoraphobia
Specific phobia for car travel
Alcohol abuse in remission
Diabetes

The Applicant contends that these conditions clearly indicate the requirement for a full-time person to care for him. She is the person performing that role, which in turn prevents her form undertaking full-time work.

Further the Applicant contends that because of her husband's chronic illness, she has also been under psychiatric care for depression and anxiety.
The Respondent submits that the carer payment application was correctly rejected and that despite the Applicant's difficult financial circumstances, they do not constitute special circumstances which would allow the compensation affected payments to be disregarded.
Consideration and Findings
The material evidence in this matter is not in dispute between the two parties nor is there any dispute that the Applicant's husband has a number of chronic and serious impairments which require ongoing therapy and for which he is in receipt of a fortnightly compensation payment. Further there would appear to be agreement between the parties that the Applicant and her husband are having a difficult time trying to financially manage their affairs. Further there is agreement between the parties that the Applicant has left her place of work to care for her husband on a continuous basis. That this may have imposed added stress to the Applicant is evident in her requiring therapy for depression, again an issue not in dispute between the parties.
In dealing with the issue of the compensation payments made fortnightly to the Applicant's husband, the Tribunal notes the following subsections of the Act which provide:
"17.(1) In this Act, unless the contrary intention appears:
…
compensation affected payment means:
(aa)     an age pension; or
(a)       a disability support pension; or
(b)       a parenting payment; or
(c)       a social security benefit; or
(e)       a disability support wife pension; or
(f)        a carer payment; or
(g)       a special needs disability support pension; or
(h)       a special needs disability support wife pension; or
(i)        mature age allowance; or
(j)        mature age partner allowance; or
(k)       a former payment type.
…
periodic payments period means:
(a)       in relation to a series of periodic payments – the period in respect of which the payments are, or are to be, made; and
17.(2) For the purposes of this Act, compensation means:
(a)       a payment of damages; or
(b)a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including payment under a contract entered into under such a scheme; or
(c)a payment (with or without admission of liability) in settlement of a claim for damages or a claim under an insurance scheme; or
(d)       any other compensation or damages payment;
(whether the payment is in the form of a lump sum or in the form of a series of periodic payments) that is:
(e)       made wholly or partly in respect of lost earnings or lost capacity to earn; and
(f)        made either within or outside Australia.
…
1168.(1) Subject to subsections (4), (5), (6) and (7), if:
(a)a person, or the person's partner, receives a series of periodic compensation payments; and
(b)the person receives or claims a compensation affected payment for the periodic payments period; and
(c)the person was not, at the time of the event that gave rise to the entitlement of that person or the person's partner, to the compensation, receiving a compensation affected payment referred to in paragraph (b);
the rate of the person's compensation affected payment is to be reduced, in accordance with this section, for the periodic payments period
…
1168.(3B) If:
(a)       the person is a member of a couple; and
(b)       the person's partner receives or claims a compensation affected payment, or a compensation affected pension under the Veterans' Entitlement Act;
the person's fortnightly rate of compensation affected payment is reduced by half the fortnightly rate of the periodic compensation."

In applying the facts of this matter to the above legislation, the Tribunal finds that a carer payment is a compensation affected payment (subssection 17(1)(f)); that her husband's fortnightly workers compensation payments are periodic payments pursuant to subsection 17(2)(b) of the Act; that the Applicant is affected by the terms of subsection 1168(1) of the Act and that any fortnightly rate of a compensation affected payment is reduced by half the fortnightly rate of the periodic compensation pursuant to section 1168(3B) of the Act. As a consequence, since at the time the Applicant made application for a carer payment at the basic rate for a couple was $300.80 each fortnight (T2, p9) and further that at that time Mr Donnelly's compensation payments were $677 per fortnight, the Applicant would have had carer's payment reduced by $338.50 per fortnight, which is clearly more than the amount that she was to be paid and her application for carer payment was correctly rejected.
In considering whether the whole or part of the compensation payment could be disregarded, the Tribunal notes subsection 1184(1) of the Act:
"1184(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."

Special circumstances is a term much used in the social security legislation and as a consequences has been subject to extensive enquiry by both the Tribunal and superior jurisdictions. In Re Beadle and Director General of Social Security (1984) 6 ALD 1 Toohey J stated that in the phrase special circumstances,
"the qualifying adjective looks to circumstances that are unusual, uncommon or exceptional… the circumstances must have a quality of unusualness that permits them to be describes as special".

In essence there is a requirement that the phrase special circumstances implies that there must exist facts or particulars in a matter that distinguishes it from the usual or ordinary case (Re Groth v Secretary, Department of Social Security (1995) 40 ALD 541). Financial difficulty, alone is not seen as not being sufficient to qualify as a special circumstance (Secretary, Department Social Security and Krywak (1988) 15 ALD 690) and any argument that consideration should be given to a net as opposed to gross portion in fortnightly compensation payments was essentially negatived in Re Secretary, Department of Social Security and Haughey (1994) 36 ALD 653, which in turn remained unchallenged by the Federal Court in Groth (supra).

In turning to the circumstances in this matter, the Tribunal notes that the Applicant and her partner have had a reduction in fortnightly income as a result of the Applicant ceasing work in order to care for her husband. The reduction in fortnightly income is in the Tribunal's view causing a tightening of the Applicant's and her husband's financial circumstances, but the Tribunal notes that there continues to exist areas of both discretionary financial expenditure (renting of storage shed at $60 a week, rent and the running of two cars) and a failure to address and pursue issues with the insurance company paying compensation for the work-related injury. In the latter circumstance the particular out of pocket expenses incurred by the Applicant in association with her and her husband's trips to Sydney for his medical care should be pursued and addressed with the insurance company. In considering the financial circumstances of the Applicant and her partner overall, the Tribunal finds that while the Applicant is finding it difficult to make ends meet financially, the financial circumstances are not dissimilar to other people on social security payments and accordingly, do not constitute special circumstances.
In turning to other issues which may constitute special circumstances, the Tribunal acknowledges the health conditions of the Applicant's partner, and the difficulties they impose on him and the Applicant. Further, the Tribunal notes the effect of the roles that the Applicant is carrying in relation to caring for her husband and the need for treatment for anxiety and depression. In considering these two issues, and in particular the cause and effect of the health circumstances, the Tribunal is of a view that this situation is similar to many situations where one partner with a chronic and disabling impairment is cared for in the home environment by the other partner. That this is not an uncommon circumstance does not make the task any easier or the circumstance any less difficult for those involved, but in the circumstances of this matter, the Applicant's partner does retain particular aspects of mobility and/or ability to interact with others. In essence, the Tribunal finds that the medical circumstances are not uncommon, unusual or exceptional, but in so finding does recognise the difficult social environment in which the Applicant and her husband exist.
As a consequence of the Tribunal finding that no special circumstances are found to exist at this point in time, the Tribunal concludes that any action under subsection 1184(1) of the Act is not warranted.
Determination
The Tribunal determines that the decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  16 March 2000
Date of Decision  1 August 2000
Solicitor for the Applicant         self-represented
Solicitor for the Respondent    Adele Alex

Actions

Download as PDF Download as Word Document

Citations

Donnelly and Department of Family and Community Services [2000] AATA 627

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0