Fisher and Department of Family and Community Services - [2001] AATA 275

DECISION AND REASONS FOR DECISION [2001] AATA 275

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/307

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

DECISION

Tribunal Dr J D Campbell, Member

Date 6 April 2001

Place Sydney
Decision The Tribunal determines that the decision under review in relation to the commencement date of 13 October 1997 for drought relief payment be affirmed; and that the decision under review in relation to matter N2000/319 be set aside and in substitution thereof determines that: (a) the Applicant is entitled to a refund of $1889.00 arising from a miscalculation of the charge due to a change in the nomination of the preclusion period, which is found to have commenced on 11 July 1994 and concluded on 15 September 1996; (b) 70% of the lump sum compensation has been found as having not been made in view of the special circumstances found to exist in the matter; and (c) the matter is remitted to the Respondent for calculation of the charge that should be made in the light of these findings, and refunding any difference between what was charged and what should be charged to the Applicant.

[sgd Dr J D Campbell
Member
CATCHWORDS
Social Security - workplace injury - sickness benefit - drought relief payment - disability support pension - lump sum compensation payment - preclusion period - compensation afflicted payments - charge upon lump sum - disregard of part or all of compensation charge - special circumstances
Social Security Act 1991 ss 17, 23, 1163, 1165, 1166, 1167,1184, 1240
Farm Household Support Act 1992, ss 3, 8A, 8B, 20
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Re Ivovic and Director- General of Social Services (1981) 3 ALN N95
Re Green and Secretary, Department of Social Security (1990) 21 ALD 772
Re Colaiacolo and Secretary, Department of Social Security (AAT 2109, 24 April 1985)
Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
Re Secretary, Department of Social Security and Vys (1995) 40 ALD 745

REASONS FOR DECISION

Dr J D Campbell, Member

In this application, Mr Rodger Fisher ("the Applicant") seeks a review of the following decisions:

(a) the decision of the Social Security Appeals Tribunal ("SSAT") dated 7 September 1998, which set aside the decision of the authorised review officer dated 31 March 1999, in so far as the SSAT considered that the Applicant was entitled to drought relief payments ("DRP") commencing on 13 October 1997, as opposed to 4 November 1997 and concluding on 30 November 1997. The decision of the authorised review officer dated 31 March 1998 set aside the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 19 May 1997. In the latter decision, the delegate had rejected the Applicant's claim lodged on 18 March 1997 and his request that such payment be backdated to 1 October 1994, as the delegate had considered that the Applicant was not a farmer but a wage earner;

(b) the decision of the SSAT dated 10 December 1999, which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services dated 25 February 1997, and also that of the authorised review officer dated 27 August 1999. The decision affirmed was that a preclusion period applied, commencing on 11 July 1994 and ceasing on 10 November 1996, as a consequence of the Applicant receiving a lump sum compensation payment of $139,000, settlement having been effected on 5 February 1997. This had resulted in a charge being assessed as $32,114.41, which had been met in full from the lump sum compensation payment.

A hearing was held before the Tribunal at Tamworth on 3 November 2000 at which the self represented Applicant presented oral evidence. The Respondent was represented by Ms Smith, an advocate from the Administrative Law Section of Centrelink.
The following material was placed into evidence before the Tribunal:
Description
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975: (a) in relation to matter N2000/307 T1-19 pp1-95 (b) in relation to matter N 2000/319 T20-T47 pp96-175
Respondent's Statement of Facts and contentions Exhibit R1 dated 5 July 2000

issues

The relevant issues in this matter are:

(a) whether the Applicant is entitled to be paid DRP for any period earlier than 13 October 1997;

(b) whether any part of the lump sum compensation payment made to the Applicant may be regarded as not having been made or not liable to be made, the special circumstances of the matter having been examined and such a course of action considered appropriate.

legislation

The relevant legislation in this matter is:

(a) the Social Security Act 1991 ("the Act" and in particular ss 17, 23, 1163, 1165, 1167, 1184, 1240;

(b) the Farm Household Support Act 1992 ("the Farm Act") and in particular ss 3(2), 8A, 8B and 20(3).

background

The following details are the general background contained within the Tribunal documents, which is common to both matters under consideration. Further, where indicated, details given in evidence by the Applicant before the Tribunal are stated:

(a) the Applicant stated that he injured his back on 11 July 1994, while being employed as a shearer. The Applicant stated that he undertook periodic employment as a shearer to supplement farm income from his own property, with the latter property being run by his wife and other family members in his absence.

(b) the Applicant stated that he sought compensation payments for his injury from the employer's insurer, but they were not forthcoming and on 22 August 1994 he completed a claim for sickness allowance, which was lodged at the Tamworth office on 1 September 1994.

(c) the Applicant told the Tribunal that he did receive sickness allowance benefits, and was informed on 5 September 1994 that if he received sickness benefit or disability support pension ("DSP"), he may have to repay them if he were to receive weekly payments of compensation or a lump sum compensation payment. Further, he was notified that he must inform the Respondent within seven days, if he received either of the two latter payments (T27).

(d) the Applicant stated that in early 1995 he saw a Mr White in Inverell. The Applicant stated that he spoke with Mr White, a farm counsellor, concerning the issue of whether he should accept drought relief payments, as the Applicant had been issued with such a certificate in relation to his Barraba property commencing 1 October 1994, or continue on sickness benefits.

The Applicant stated that he saw a solicitor in Sydney in late 1994/early 1995 concerning his compensation matter, and was strongly advised that "he do anything other than take an income support pension";

(e) in February/March 1995 the Applicant went to the Social Security offices of the Respondent and discussed with them the issues of DRP and DSP. The Applicant was advised that DRP was a temporary measure and the benefits could not be detailed. On the other hand DSP was likely to be more a longstanding and predictable benefit. The Applicant stated that the decision for him to apply for DSP was essentially made for him, with DSP being granted from 23 March 1995;

(f) the Applicant stated that in June 1996 he went to the Respondent's office in Barraba, where he spoke with a lady called Alison over changing from DSP to DRP. While he was there the lady went to another office and rang the Tamworth office to make inquiries whether such an activity could be undertaken and the Applicant was told that it could not be done, with no reason given. The Applicant also believes that he may have visited the Centrelink offices in Tamworth in August 1996, and again believes he was told that he was not entitled to DRP;

(g) the Applicant stated that since the property at Barraba was purchased, he had primarily been a farmer, with his secondary activity of working periodically as an employed shearer being undertaken to supplement his farming income;

(h) the Applicant stated that his compensation claim was settled in February 1997 and that he received lump sum compensation. A preclusion period was calculated as extending from 11 July 1994 to 10 November 1996, during which time a sum of $32,114.41 was paid to the Applicant and his wife as social security payments, which fell within the definition of compensation afflicted payments. This amount was received by Centrelink, following a decision made on 25 February 1997 (T35);

on 18 October 1994 the Drought Relief Payment Act 1994 commenced. This act which amended the Farm Act , allowed farmers in exceptional circumstances due to extreme drought, to obtain financial assistance in the form of direct welfare payments. The Applicant lodged a claim for DRP on 18 March 1997 (T6). A letter from Ms Kelly, a rural financial counsellor, dated 17 March 1997 was lodged with the Respondent's office at Inverell on 17 March 1997 and forwarded to Tamworth, where it was received on 24 March 1997. In this letter, Ms Kelly detailed the circumstances of the Applicant's situation since his injury in 1994, and his various attempts to change from sickness benefit to DRP and from DSP to DRP, and the absence of reasons when his various requests were denied. As a consequence of her examination of the Applicant's financial records for financial years 1994/95 and 1995/96, Ms Kelly stated that the Applicant's income requirements for assistance under the DRP scheme appeared to have been met, and as such requested consideration for DRP to be made retrospectively to 10 October 1994 (T4);

(j) the Applicant's claim for DRP was rejected on 19 May 1997 on the grounds that the Respondent did not consider the Applicant to be a farmer (T12);

(k) a request for a review of this decision was made on 13 October 1997 in a telephone call by the Applicant's wife (T14). On 4 November 1997 Ms Kelly again wrote to the authorised review officer at Tamworth, detailing the circumstances surrounding the Applicant's request for DRP, and commenting that on all occasions if they had been properly advised by the Respondent, the Applicant and/or his wife would have been entitled to DRP since its inception in October 1994 (T15);

(l) in a review undertaken by an authorised review officer in March 1998, the authorised review officer, as a result of an interview with the Applicant and his wife on 26 March 1998, details again the circumstances that the Applicant had confirmed, nominating the reasons given to the Applicant for non granting of DRP, as stated by the Applicant to include:

·     he was a wage and salary earner;
·     DRP may only be a short term payment;
·     DSP is an ongoing payment and associated fringe benefits are of value;

(m) as a consequence of further investigation including a telephone conversation with Ms Alison Baldwin, and confirmation on the computer system that the Applicant and his wife were interviewed and informed by Ms Baldwin on 19 June 1996, the authorised review officer concluded his report in the following terms:

"On reviewing this case and after discussions with Mr Fisher I believe that there is a very strong likelihood of him being given incorrect advise in relation to claiming DRP earlier. I feel that Mr Fisher's description of the circumstances and reasons given as to why he was considered ineligible for DRP in February 1995 indicate an enquiry in all probability was made. If this was the case and he did ask about DRP Mr Fisher should have been issued with a claim form. The fact that he was paid DSP and he was better off because of fringe benefits does not take into account the compensation affected payment aspect of this case.
The details of the circumstances given by the Fishers regarding the interview at Barraba on 19/6/96 again indicates a strong probability that the query about DRP was made and they were again poorly advised and a claim form should have been issued.
The result of both these incidents being Mr & Mrs Fisher may have suffered an economic loss. Had DRP been granted the effect of the compensation legislation would not have applied to those payments and the amount in excess of $34,000.00 would not have been recovered from the Compo settlement." (T17, p92)

(n) the Applicant was granted DRP with effect from 4 November 1997, as a consequence of the investigation and findings of the authorised review officer (T19). The date of effect was changed to 13 October 1997 in consideration of the telephone request for reconsideration by the Applicant's wife on that day, in a decision taken by the SSAT on 7 September 1998 (T2).

In further evidence to the Tribunal the Applicant detailed the following circumstances:
(a) financial matters:
     The financial year 1999/2000 has proved to be a happier financial time for the Applicant and his wife, but overall financial circumstances remain difficult; and
(b) health issues:
           (i) his right and left knees need reconstruction and knee joint replacement;
           (ii) his back, diagnosed as lumbar spondylosis continues to deteriorate, but no operation is scheduled;
           (iii) has hypertension which is controlled on medication;
(iv) has arthritis in a number of joints for which he takes oruden;
(v) has high cholesterol;
           (vi) is deaf in left ear, partially deaf in right ear.
In response to questions asked in cross examination, the Applicant indicated that:

in his discussions with the Respondent in late 1994 through March 1995, the issue of both DRP and compensation was raised; that no claim form for DRP was offered at Tamworth and he continued to look for what assistance he was able to claim;
that the interview at Barraba in June 1996 was requested by the Respondent; and
that the letters from Ms Kelly in March 1997 seemed to get things moving.

applicant's submissions:

The Applicant submitted that, having suffered a work related back injury in July 1994 for which he was claiming compensation, and for which he was then being paid sickness benefit, he sought advice from officers of the Respondent in late 1994 through March 1995. Further the Applicant submitted that he had received advice from the solicitors handling his compensation claim that he should do anything other than accept an income support pension. Further the Applicant submitted that following advice from Mr White, a farm counsellor that he should stay with sickness benefits in January 1995 rather than move to DRP, and further following particular advice given to him by officers of the Respondent in February/March 1995 concerning the temporary and undefined nature of benefits he would receive from DRP, he was left essentially with only one option, that of applying for DSP, despite the misgivings that had been detailed by his solicitor. In short the Applicant claimed that the advice was so structured as to effectively give him no other choice, than to do what he did.
The Applicant further contended that he sought advice regarding changing from DSP to DRP in June 1996, from officers of the Respondent, and twice such a request was denied with no reason being given other than he was not entitled to DRP. The Applicant did not contest the length of the preclusion period or the quantity of the charges raised, but essentially submitted that he should have been paid DRP from the commencement of the program in October 1994, in that he had consistently been denied advice as to his entitlement and further denied entitlement when it clearly existed. The Applicant recognised that he did not formally apply for DRP until 18 March 1997 and that this application was rejected on 19 May 1997, with a request for reconsideration of that rejection being made in a telephone call by his wife on 13 October 1997.
The Applicant further contended that by virtue of the Respondent failing to provide him with the correct advice in late 1994 early 1995 as to his entitlements to DRP, and the Respondent's rejection of his application for DRP in May 1997, special circumstances can be found to exist. As a consequence, part or the whole of his compensation payment could be found as not having been made. Further, in consideration of the issue of special circumstances the Applicant submitted that his various medical conditions and his ability to work should be considered in conjunction with the inadequate and incorrect advice he received from the officers of the Respondent.
respondent submission:
The Respondent accepted that the Applicant satisfied the definition of farmer as provided by s 3(2) of the Farm Act , and that the phone call by the Applicant's wife to Centrelink on 13 October 1997, was a request for a review of the decision of 19 May 1997 to reject the Applicant's claim for DRP. However, the Respondent noted that this request was not made within the three month period, and as such, any determination to grant DRP can only commence from the date of such request (13 October 1997) pursuant to s 20(3) of the Farm Act .
The Respondent, in acknowledging that there was no dispute between the parties as to either the length of the preclusion period or the charges raised, contended that consideration of matters as special circumstances, in so far as they relate to issues pertaining to DRP, can only occur within the relevant period, namely the preclusion period commencing on 11 July 1994 and ceasing on 10 November 1996. Further, the Respondent contended that this period was further narrowed in consideration of the DRP issues as special circumstances, by the facts that any DRP entitlement that the Applicant may have enjoyed did not commence until 1 October 1994, and further that the Applicant did not commence receiving DSP payments until 23 March 1995. Following discussion and the advice given to the Applicant by the Respondent in the proceeding weeks, that DSP offered the Applicant a more predictable and longer term range of benefits than DRP, the Applicant made the decision to request to move from sickness benefits to DSP.
The Respondent, having detailed the issues surrounding the consideration of the interaction between the parties and the nature of the advice given to the Applicant in the light of known circumstances, submitted that neither these, nor the circumstances of the Applicant's health, work capacity or financial circumstances constitute special circumstances, as there is no quality of unusualness about such circumstances. It is the Respondent's submission that special circumstances do not exist and hence discretion to find the whole or part of the compensation payment made to the Applicant as not having been made, does not exist.
consideration and findings:
The Tribunal having detailed the circumstances in this matter, and noting that there is no significant disagreement between the parties on the basic issues makes the following findings of fact:
(a) at all relevant periods the Applicant was an owner and operator of a farming property at Barraba;
(b) the applicant supplemented his farming income by working part-time as a shearer on various properties;
(c) the Applicant suffered a work related back injury while undertaking work as a part-time shearer on 11 July 1994;
(d) the Applicant was paid sickness benefits for the period 9 September 1994 to 22 March 1995, with his wife receiving partner allowance from 9 September 1994 until 22 March 1995;
(e) the Applicant was granted DSP from 23 March 1995, and his wife was granted a wife's pension from 23 March 1995;
(f) the Applicant's compensation claim was settled by way of a lump sum payment of $130,000 on 5 February 1997. A preclusion period was established using a lump sum compensation figure of $139,000 from 11 July 1994 to 10 November 1996 and a charge raised, of $32,114.41 for recovery of compensation affected payments made to the Applicant and his partner during the preclusion period. Recovery of this amount was made from the lump sum compensation payment;
(g) both the Respondent in their letter of 5 September 1994, and the Applicant's solicitor in late 1994 did advise the Applicant on the issue of repayment of compensation affected payments on receipt of a lump sum compensation settlement;
(h) the Applicant was entitled to lodge a claim for DRP from October 1994;
(i) the Applicant sought and received advice from the Respondent in February/March 1995 as to whether he should lodge a claim for DSP or DRP. The Applicant was of the opinion that the advice given led him to elect to lodge a claim for DSP;
(j) the Applicant did attend the Respondent's office in Barraba in June 1996 and made enquires concerning a change from DSP to DRP. He was advised that it could not be done. Further the Applicant visited the Respondent's offices in Tamworth in August 1996 and received the same advice;
(k) the Applicant did apply for DRP on 18 March 1997 and this was rejected on 19 May 1997 on the grounds that the Respondent did not consider the Applicant to be a farmer;
(l) a request for review of this decision was made by way of a telephone call by the Applicant's wife to the Respondent on 13 October 1997, with a more detailed listing of circumstances provided to the authorised review officer by Ms Kelly on 4 November 1997; and
(m) as a consequence of his review, the authorised review officer considered that the Applicant had been given:

a claim form for DRP when he inquired in February 1995;
that the advice rendered in February 1996 to the Applicant did not consider all the circumstances; and
that the advice given to the Applicant in his meeting at Barraba with an officer of the Respondent on 19 June 1996 was poor, and the Applicant should have been issued with a claim form for DRP.

The Tribunal, in addressing the issue of whether the Applicant is entitled to be paid DRP for any period earlier than 13 October 1997, notes the following relevant sections of the Farm Act
Ssction 3(2), which defines "farmer":
3(2)
" 'farmer' means a person who:
(a) has a right or interest in the land used for the purposes of a farm enterprise; and
(b) contributes a significant part of his or her labour and capital to the farm enterprise; and
(c) derives a significant part of his or her income from the farm enterprise."

Section 8A, which provides the qualification requirements for exceptional circumstances relief payment:

"8A(1) A person is qualified for exceptional circumstances relief payment in respect of a period if:
(a) the period begins on or after 1 October 1994; and
(b) throughout the period:
          (i) the person:
            (A) is a farmer; and
            (B) is at least 18; and
           (C) is an Australian resident; and
           (D) is in Australia; and
(ii) an exceptional circumstances certificate issued in respect of the person has effect."

Section 20(3) which defines the requirements and effect where an application for review is successful:

"20(3) If:
(a) a decision ("previous decision") is made rejecting a person's claim for… exceptional circumstances relief payment…; and
(b) a notice is given to the person advising the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 of the Social Security Act 1991, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.

The Tribunal, in noting that the issue of whether the Applicant is a farmer as defined and that the qualifications nominated in ss 8A(1)(i) and 8A(1)(ii) are not in contention before the Tribunal, observes that the Applicant, while lodging a claim for DRP on 18 March 1997, which was rejected on 19 May 1997, did not seek a review of this rejection until 13 October 1997, when his wife phoned the Respondent. The Tribunal finds that the Applicant did not seek review within the three month period after the notice of rejection was given and as a consequence the determination to grant DRP can only take effect from 13 October 1997.
In relation to the second issue, the Tribunal, while noting that the parties did agree over the issue of the preclusion period and the charge raised and received, observes that the file documentation clearly denotes that the compensation matter was settled by way of commutation with a lump sum payment of $130,000 (T32, T33). The Tribunal further observes that the file from T34 and thereafter nominates the lump sum figure as $139,000. Clarification with the Respondent on 13 March 2001 confirmed that the correct figure was $130,000. As a consequence, the Tribunal calculates the preclusion period in accordance with ss 17 and 1165 of the Act as a period of 114 weeks commencing on 11 July 1994 and ceasing on 15 September 1996. The Tribunal further finds that the charge raised and received from the Applicant should be reduced by a sum of $1889, being monies received by way of payments of DSP and wife's pension during the period between 15 September 1996 and 10 November 1996. In summary, the Tribunal concludes that the charge arising from the revised preclusion period should be $30,225.41 with a refund of $1889 being due to the Applicant.
In considering the issue of whether the whole or part of the compensation payment may be treated as not having been made, the Tribunal notes s 1184 (1) of the Act which states:
"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."
The Tribunal further notes that the issue of what constitutes special circumstances has been the subject of consideration in the following matters:

(1)In Re Beadle and Director General Social Security (1984) 6 ALD 1 Toohey J stated at 3:
"An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. 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."
(2)In relation to compensation recovery pursuant to s 115 of the Social Services Act 1947 (the equivalent of s 1184 of the 1987 Act) the Tribunal in the case of Re Ivovic and Director-General of Social Services 3 ALN N95 considered that the "plain intent of section 115 of the Act" is that the person is subject to the liability created by section 115(4) "unless the Tribunal is satisfied that special circumstances exist by reason of which the person should be released in whole or in part from that liability".
(3)In Re Green and Secretary, Department of Social Security (1990) 21 ALD 772 the Tribunal nominated a framework against which claim for special circumstances could be considered:
"The use of the word "special" is, "intended to allow the decision maker the fullest opportunity to consider the particular circumstances of each case".

"hardship is a relevant consideration" but regard must be had to the way in which the hardship arose;
there must exist "factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes;"
the decision maker must have regard to whether, by exercising the discretion in particular case he/she will be" achieving or frustrating ends or objects which are comfortable with the scope and purpose of the Social Security Act;" and
"the decision maker must be prepared to respond to special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate."

(4)In Re Colaiacole and Secretary, Department of Social Security (AAT 2109, 24 April 1985) it was stated that the factor of financial hardship alone is not sufficient to amount to special circumstances unless it is "exceptional".
(5)In Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464, it was found that ill health alone is not enough to constitute a special circumstance.
(6)In Re Secretary, Department of Social Security and Vys (1995) 40 ALD 745, it was stated by Dwyer, Senior Member:
"It must be acknowledge that there is nothing special or unusual about recipients of DSP being in ill health."

In turning to consideration of the particular circumstances of this matter, the Tribunal acknowledges that the Applicant has stated that his financial circumstances at the time of the hearing had improved, but nevertheless remained tight. In turn the Tribunal concludes that the Applicant's financial circumstances cannot be considered special in that they are not uncommon, unusual or exceptional.
In assessing the Applicant's medical circumstances, the Tribunal notes the age of the Applicant (51 years) and the significant medical conditions he suffers all of which limit his ability and capacity for work. In the Tribunal's view the back injury which led to his period of incapacity from 1994 is superimposed on a significant degenerative process in both knees, bilateral hearing loss, hypertension and a more generalised arthritic process. In considering the health circumstances of the Applicant, the Tribunal does conclude that taken on their own, they do not at this stage constitute special circumstances, as while disabling and incapacitating, they are not unusual or exceptional. They will, in the Tribunal's view, limit his ability and capacity for work over the ensuing years.
In considering the advice rendered to the Applicant in February/March 1995 concerning the issue of whether he should claim DSP or DRP in place of his sickness benefit, the Tribunal acknowledges that such advice was given in an environment where the Applicant required financial assistance to cater for his and his wife's normal living expenses. The Tribunal also acknowledges that both parties had been advised, or were aware, or should have been aware, that if the Applicant was to receive a compensation affected payment, this may well have been subject to recovery when a lump sum compensation settlement was concluded. In this light, the Tribunal considers that the Applicant was not fully appraised of the benefits and detriment's of DRP (not a compensation affected payment) and DSP payments, and that the decision he made which led to him receiving DSP from 17 March 1995, was a decision made on incomplete advice.
This incomplete advice situation was further reinforced, when on 19 June 1996 he attended the Barraba office of the Respondent and sought to have his DSP converted to DRP. This was refused and no reason was given. Again no DRP claim form was offered by the officer to the Applicant. Further, the Tribunal notes that at all times since 1 October 1994 the Applicant qualified for DRP, this being an issue not contested by the Respondent, with DRP being made upon review of an earlier application in late 1997.
The Tribunal, in considering this matter further, notes that the advice rendered by the Respondent to the Applicant on two occasions was less than adequate. Consequently the Applicant, although forwarned as to consequences, elected to take a compensation effected payment in the form of DSP on the first occasion, and from which he was unable to transfer on the second occasion. The Tribunal further notes that the Applicant would have been entitled to receive a DRP on both occasions, if he had completed and lodged the appropriate claim form. This was not offered on either occasion despite significant discussion concerning DRP and the Applicant being in receipt of the necessary certification.
The Tribunal does conclude that the circumstances whereby the Applicant was not provided with all the necessary information on two occasions, in order to fully understand his options on the first occasion and the reasons for refusal on the second occasion, are both unusual and uncommon. This is enforced by the failure of the Respondent to offer the Applicant the necessary forms on both occasions, in order that a claim for DRP could be made. The Tribunal is at a loss as to why the matter was dealt with in the way it was. Both parties were aware of the Applicant's personal situation, in that he was both a farm owner and worked episodically as a shearer to supplement farm income and that he was injured whilst undertaking such an activity and whilst a claim for compensation was in progress. In such circumstances, an onus rests with the Respondent to fairly inform the Applicant of the benefits and detriments of each option and to provide the Applicant with appropriate forms for completion.
In such circumstance as outlined, it is evident to the Tribunal that this was not the case, for at the first occasion the Applicant stated that he was advised of the benefits of DSP including long term predicability and fringe benefits, and the detriments of DRP in that he was he was advised as to the non predicability of duration and an inability to define the benefits. It is not surprising in the Tribunal's opinion that he elected to pursue DSP, despite having been advised not to do so by his solicitors. It is to be remembered that this advise was given by the Respondent at a time when they wished to change the Applicant from sickness benefits and at a time when he was both physically and financially troubled. On the second occasion, namely June 1996, it is evident to the Tribunal that the information provided to the Applicant did not even allow the Applicant to understand the reason for the refusal to allow him to change to DRP.
In addressing the consequences, the Tribunal finds that the issues in this matter to do with the provision of advice to the Applicant in both February/March 1995 and June 1996, has created an unusual, uncommon and exceptional set of circumstances whereby the Applicant has been economically disadvantaged. Further, the Tribunal finds, that when considered with the various elements of the Applicant's health status and the restrictions that these disabilities place on the Applicant's ability and capacity for work, the circumstances as outlined are considered "special".
In further consideration, the Tribunal concludes that as a consequences of the inadequate information being provided during discussions between the parties in February/March 1995, the Applicant suffered economic loss from the time he commenced receiving DSP on 23 March 1995, having been persuaded not to claim for DRP. That an attempt to change to DRP in June 1996 was not approved by the Respondent shows in the Tribunal's view, a reinforcement of the view that the Respondent was not offering the Applicant a full and balanced appraisal of his two options.
In the Tribunal's opinion, as financial detriment accrued to the Applicant from 23 March 1995, it is the Tribunal's finding that the Applicant should have the charge waived for the period 23 March 1995 to 15 September 1996, with the charge for the period 11 July 1994 to 22 March 1995 remaining. To effect such an outcome, the Tribunals finds, given that special circumstances have been found to exist, that in the exercise of the discretion, 70% of the compensation payment made is deemed not to have been made. This in turn leaves a compensation payment of $39,000 and a preclusion period commencing on 11 July 1994 and ceasing on 22 March 1995.
determination
The Tribunal determines that the decision under review in relation to the commencement date of 13 October 1997 for DRP be affirmed. Further , the Tribunal determines that the decision under review in relation to matter N2000/39 be set aside and in substitution thereof determines that:
(a) the Applicant is entitled to a refund of $1889, arising from a miscalculation of the charge due to a change in the nomination of the preclusion period, which is found to have commenced on 11 July 1994 and concluded on 15 September 1996;
(b) 70% of the lump sum compensation has been found as having not been made in view of the special circumstances found to exist in the matter; and
(c) the matter is remitted to the Respondent for calculation of the charge that should be made in the light of these findings, and refunding any difference between what was charged and what should be charged to the Applicant.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  3 November 2000
Date of Decision  6 April 2001
Counsel for the Applicant        Self-represented
Solicitor for the Respondent    Ms A Smith