Fisher and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 535
•17 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/6012
GENERAL ADMINISTRATIVE DIVISION ) Re KAYLEEN FISHER Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date17 July 2009
PlaceAdelaide
Decision The Tribunal finds that there are special circumstances that justify disregarding that part of the lump sum compensation payment that would result in the current preclusion period finishing on 31 December 2010.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – lump sum compensation payment – lump sum preclusion period – special circumstances considered – expenditure of entire compensation lump sum on the purchase of a home – claims to have relied on telephone advice from Centrelink which was contrary to legal and financial advice – failure to confirm advice with Centrelink prior to disposition of funds –continued expenditure after ARO confirmation of preclusion period – apparent reckless disregard as to outcome – significant disability – effects of medication on judgement – social isolation – possible sources of financial support considered – decision varied
Social Security Act 1991 ss 17(1), 1169, 1171, 1184K(1)
Social Security (Administration) Act 1999
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Colaiacolo and Secretary to the Department of Social Security (1985) AATA 91
Re Manafikhi and Secretary, Department of Employment and Workplace Relations [2007] AATA 1529
Re Secretary, Department of Social Security and John Rodgers (1992) AATA 131REASONS FOR DECISION
17 July 2009 Senior Member L Hastwell 1. Kayleen Fisher (the applicant) was injured in the course of her employment in 2005. She sustained a spinal injury which has left her with ongoing permanent disability.
2. As part of a workers’ compensation claim, she received a series of payments for non-economic loss. She then received a lump sum compensation payment, under s 42 of the Workers’ Rehabilitation and Compensation Act 1986 (SA) of $250,000. This payment was by way of redemption of her employer’s liability to pay ongoing income maintenance to her. She signed a redemption agreement on 24 June 2008.
3. She had been paid periodic payments of weekly compensation up to 30 June 2008. Those payments then ceased upon her receiving her redemption entitlements.
4. On 24 August 2008, she made an application to Centrelink for a Disability Support Pension (DSP).
5. By letter dated 17 September 2008 (T20), Centrelink advised her that as a result of her receipt of the lump sum compensation payment, she was precluded from receiving any Centrelink benefits between 1 July 2008 and 23 April 2012.
6. On 29 September 2008 she was formally advised that her claim for DSP had been rejected on the basis that she could not be paid a pension until 23 April 2012 because of the compensation settlement.
7. She sought review of the decision to reject her claim for DSP and an Authorised Review Officer (ARO) affirmed that decision on 29 October 2008.
8. She sought review of that decision to the Social Security Appeals Tribunal (the SSAT). On 27 November 2008, the SSAT affirmed the decision under review. She now seeks review of that decision to this Tribunal.
9. She does not challenge the calculation of the preclusion period. Nevertheless, she submits that there are special circumstances in her case which justify a shortening of the preclusion period such that she would be entitled to receive Centrelink benefits immediately.
relevant legislation
10. The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
11. The Act provides that if a person receives a settlement sum that contains a component paid for economic loss, then a portion of that settlement sum or sums is deemed by the Act to be the “compensation component” of the settlement.
12. The compensation component is then used to calculate a period known as a preclusion period during which certain Centrelink benefits are not payable to the recipient of the lump sum (s 1169 of the Act). These benefits are known as “compensation affected payments” and they are listed in s 17(1) of the Act.
13. Section 1169 of the Act provides that if a person claims a compensation affected payment, then such a payment is not payable to the person during any days in which a preclusion period is applicable because of their receipt of a lump sum payment.
14. Section 1171 of the Act requires that multiple lump sums received in respect of the same compensable event are to be treated as one lump sum and compensation can be payments made wholly or partly due to loss of earnings or loss of capacity to earn.
15. The Tribunal is satisfied, and it is common ground, that the compensation monies received contained an economic compensation component and that the length of the preclusion period was correctly calculated using the formula set out in s 1171 of the Act.
16. Under s 17(1) of the Act, a DSP comes within the categories of compensation affected payments.
17. Where there are special circumstances in a particular case, the preclusion period can be shortened by the mechanism of the Secretary disregarding the whole or part of a compensation payment.
18. Section 1184K(1) of the Act provides as follows:
“1184K Secretary may disregard some payments
(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.”
issues
19. The issue to be determined in this case is whether there are special circumstances which would justify the Tribunal disregarding some or all of the compensation payment. This could result in a shortening of the preclusion period in Ms Fisher’s case.
the hearing
20. Ms Fisher represented herself at the hearing and gave evidence to the Tribunal. The Tribunal also had regard to the s 37 documents filed under the Administrative Appeals Tribunal Act 1975 and to a number of other exhibits tendered by both Ms Fisher and the respondent (the Department).
ms fisher’s reasons for saying that there are special circumstances in her case
21. Ms Fisher injured herself at work when transferring a patient to a bed in 2005. She sustained a disc injury that required surgery. She also had some other physical problems that predated that injury.
22. She now suffers from chronic pain and significant ongoing disability arising from the injury. She cannot sit or stand for long periods of time. She is limited in her ability to carry out her activities of daily living. She needs assistance with shopping and with household tasks. She has had her license taken from her for medical reasons. She suffers from some minor incontinence which appears to be related to the back injury. She suffers from depression which is managed with medication. She has no prospect of returning to work.
23. Shortly before receiving the final lump sum compensation payment, she told the Tribunal that she telephoned Centrelink to ascertain how that payment would affect her entitlement to DSP. She claims to have made three phone calls between 17 and 24 June 2008. The first two people to whom she spoke advised her to fill in an application for DSP and were not particularly helpful.
24. Her recall is that on the third occasion she spoke to a woman. She did not receive a telephone receipt for the conversation. She inquired whether she could purchase a house with her compensation money that suited her needs. She claims that the call centre operator told her that if she had a doctor’s letter supporting her requirement to purchase a house because of her special needs, then she would may be eligible for some sort of benefit, but she was told to confirm this in a face-to-face interview at a Centrelink office.
25. Ms Fisher then telephoned to arrange a face-to-face appointment to attend at Centrelink to discuss the matter, but was told that she could not be provided with a specific appointment as her regional office did not allow for specific appointments. She explained that she had a disability and needed an appointment, but was told that it was not possible. She would need to turn up at the office and wait her turn to see a counter officer.
26. She explained to the Tribunal that she was only willing to go to a Centrelink office if she had a definite appointment. Because of the pain and disability from which she suffers, it is impossible for her to wait in a queue for an uncertain period of time.
27. She went to see Goldsborough Financial Services on 24 June 2008, prior to signing her redemption papers and on the advice of her lawyer. The adviser told her that she would be subject to a preclusion period from Centrelink payments of approximately 165 weeks as a result of the proposed redemption.
28. She acknowledges also receiving a letter dated 19 June 2008, from her lawyers advising her that the settlement was likely to result in her being precluded from Centrelink benefits for a period of approximately 205 weeks from the date of the settlement (T13).
29. On 10 July 2008, she rang Centrelink once more to make enquiry about bringing in all her paperwork, but was told to wait for a couple of weeks until she had all the relevant paperwork.
30. Ms Fisher did not make any further attempt to discuss her eligibility for DSP and the impact that the redemption payment may have on her entitlements, with Centrelink.
31. Ms Fisher entered into a contract to purchase a property in Mannum in mid to late August 2008. The purchase price was $234,000 plus costs. She moved in within a couple of weeks of signing the contract. The purchase price and costs came from a combination of her lump sum redemption payment and a second compensation sum that she received related to an earlier claim for compensation against a different employer.
32. She also redeemed some superannuation entitlements to find the funds to complete setting up the house.
33. She told the Tribunal that she liked the house in particular because it had a large bathroom and wider opening doors so that she could also fit a shower chair in the shower. There were also hand rails. She said the house was not in a very good location (opposite an electricity sub station), hence the price was good and there was not a lot of interest in the property.
34. She told the Tribunal that her life had been extremely disrupted by the injury and its consequences. Her de facto relationship had broken down and she found herself on her own with little support. She lived with family members, then rented a room with friends for a time and then moved in with her older son in 2007, but that was fraught with its own difficulties. She found this period in her life distressing and she suffered significant depression.
35. Her youngest son then gave up his course of study to come and live with her and give her assistance. He is still living with her. He is working at a local abattoir. There is now some tension in their relationship. He has become fairly resentful about the role he now finds himself in. At the moment her son does the shopping and she gives him the funds for it. He gives her a monthly payment of $400.
36. She describes her mental state as not being good. The medications that she takes are expensive and not all obtainable on a Health Card. They affect her cognition and she finds that her thought processes are slowed and her concentration is poor.
37. She considered Centrelink were the most authoritative source of information about the preclusion period, hence she took the advice of the woman at the Centrelink call centre in June 2008 with respect to issues relating to the preclusion period and the purchase of a home, rather than taking the advice of the financial adviser and her lawyer. She was adamant that she told the financial advisor of her discussion with Centrelink and had Centrelink allowed her to have an appointment prior to purchasing the home she would have ascertained that the information given to her over the phone was not correct.
38. She said that she was in a desperate situation at the time that she made the decision to purchase a house.
39. On 22 October 2008, she had a telephone discussion with the ARO (T44/232). On that date she owned the house, a vehicle and still had $30,000 in the bank. However, between October and the date of the SSAT hearing in late November, she spent a further $20,000 and by the time the matter came before the SSAT, she had only $10,000 left in savings.
40. At the date that this Tribunal heard the matter, she had only $3,100 left in savings. She had put aside $1,500 for council rates and $800 for her electricity bill, but otherwise was fast going through all the savings that she had left to her with no prospect of employment.
41. When questioned about her expenditure after the decision in October 2008, she explained that she felt she had no choice but to spend further funds on her house. In a letter to the Department (Exhibit R2) she had explained a lot of her expenditure, which included substantial expenditure on an air conditioner which she requires because of her sensitivity to extreme temperatures, expenditure on security and other requirements for her home.
42. She told the Tribunal that if she is not successful in her application then she will have to sell her home. She has no other source of financial support and cannot borrow funds. She is concerned that she will need to drop the price if she is to sell the property promptly.
other available evidence
43. The medical evidence that was available to the Tribunal confirms that Ms Fisher is significantly disabled and will not return to the workforce. She suffers from chronic pain and ongoing disability as a result of her various injuries. A series of medical reports contained in the T documents chart the history of her injury and disability. They also provide some account of the significant disruption to her life as a consequence of the injury (T33-T43). They confirm that she continues to use strong analgesia and provide a history of the medication she has taken for pain and depression since the injury.
44. A settlement statement with respect to the purchase of her property (T27/152) indicates that she entered into the contract to purchase around mid August 2008 as she paid a deposit on 19 August 2008.
45. Her application for DSP, which was lodged on 24 August 2008, made no mention of the purchase of the house and there was no medical report from a doctor explaining the need for such a purchase. In that form she indicated that she was still renting.
46. In an Income and Assets form lodged with Centrelink and dated 29 August 2008 (T23) she disclosed the lump sum compensation payment and the purchase of a home.
47. By the time she was formally notified by Centrelink of the preclusion period and its duration in a letter dated 17 September 2008 (T20), she had purchased the property but still had sufficient resources available to her to manage financially for the next couple of years if she lived carefully and within her, by then, limited means.
48. The Tribunal had regard to a letter from the Australian Central Credit Union dated March 2009 which states that they could not assist her with finance as she did not meet the servicing requirements. She provided various receipts confirming the expenditure on her home.
49. The Tribunal received a letter from her doctor at the Bridge Clinic dated 31 March 2009 in which he confirms that she suffers from chronic pain syndrome and degenerative spinal disease and he supported her need for appropriate home heating and cooling due to her medical conditions and her sensitivity to temperature.
50. A report from Dr Dilip Kapur of the Flinders Medical Centre Pain Management Unit of 4 March 2008 (T42/205) refers to her as being “distressed” and “slightly confused”. He considered that at the time she was showing a degree of cognitive impairment. There is a tone of real alarm in his report and he considered it appropriate that her licence to drive be removed as, in his view, she was not safe to drive. At the time he expressed the view that she demonstrated a range of florid and at times bizarre pain behaviours.
51. He reported that at that point the Pain Management Clinic was not able to assist because of what he referred to as “current pain behaviours”. He was concerned about further deterioration in her situation.
52. The Statement of Advice to Ms Fisher from the financial planner (24 June 2008) was received as Exhibit R2 by the Tribunal. Under the heading “Estimated Waiting Period”, the following text appears:
“165 weeks. Kayleen has advice that this could be much shorter (13 weeks) due to disability & need for a home.”
53. The Statement of Advice reports that she will be purchasing a new home shortly and goes on to comment as follows:
“Purchase of a home is quite appropriate. Ensure you have funds available to meet living costs.”
consideration of the evidence
54. Ms Fisher undoubtedly suffers from a genuine disability.
55. At the hearing before the Tribunal, Ms Fisher focused on what she perceives to be discrimination against her by Centrelink that has given rise to this problem. She was not willing to take responsibility for her expenditure or for her failure to confirm her position with Centrelink before purchasing the home. She took no responsibility for her continued expenditure of funds after the decision of the ARO. It was as though her expenditure was beyond her control and that in her mind Centrelink should only blame itself for not giving her a specific appointment to discuss the situation.
56. She maintained the view that if Centrelink would not provide her with a personal appointment, then she would not bother to attend to confirm the telephone advice. She acknowledges that the woman that she spoke to told her that she would need to confirm her position at a Centrelink office.
57. She showed an apparent complete disregard to the financial consequences when she purchased a home prior to exploring her entitlement to DSP. She then further exacerbated her financial difficulties by continuing to spend significant sums of money even after being told that the preclusion period was confirmed by the ARO.
58. She now finds herself in a very difficult financial position, despite advice from her lawyer and a financial advisor and then subsequently from Centrelink, that she was subject to a preclusion period.
59. She has made some enquiry about and thus far she claims without success. She has explored the possibility of having someone else buy an interest in her property to give her some financial assistance. She said that neither of her sons is in a position to do so.
60. The Tribunal accepts that she was desperate to find secure accommodation after receiving her compensation payment. Her psychological state was not particularly good when she appeared before the Tribunal, although she certainly knew what she was doing and was capable of representing herself. She was agitated at times at the predicament she finds herself in.
61. Her only option, if she continues to be subject to a preclusion period and if she cannot borrow funds from family or friends or find some other way of making a small income such as taking in a boarder, will be to sell her vehicle and then possibly her house which in itself may not be an easy task and then move back into a rental market.
findings of fact
62. The Tribunal makes the following findings of fact:
·Ms Fisher sustained a L5/S1 disc prolapse in 2005, which was surgically decompressed. Since then, she has suffered constant pain and ongoing disability. She is unlikely to ever re-enter the workforce. Her injuries leave her with some special needs with respect to housing, including wider doorways and some grab rails.
·She has also suffered some incontinence which appears to be linked to her back problems.
·She has suffered depression as a result of the significant disruption the injury and consequent disability has caused to her life. She is currently taking antidepressant medication for that condition.
·Since the injury she has taken strong medication to manage pain including at times Methadone, intramuscular Morphine, OxyContin, Lyrica, Mersyndol, paracetamol and codeine. Her cognitive function and judgement is at times impaired by a combination of the pain she experiences and the amount of medication and combination of medication that she takes.
·She received various compensation amounts as a result of a WorkCover claim, culminating in a final lump sum payment of $250,000 that gave rise to a preclusion period from Social Security benefits for the period 1 July 2008 to 23 April 2012.
·On 24 June 2008, Ms Fisher received advice from Brenton Miegel at Goldsborough Financial Services that the receipt of the lump sum compensation was likely to result in a 165 week preclusion period.
·On 24 June 2008, Mr Miegel recorded in his statement of advice that Ms Fisher had advised him that the preclusion period could be much shorter (13 weeks) due to her disability and her concomitant need for a house (Exhibit R2).
·Ms Fisher’s lawyer advised her by letter dated 19 June 2008 that the lump sum compensation payment would give rise to a 205 week preclusion period.
·Ms Fisher had a conversation with the Centrelink call centre in June 2008, prior to her meeting with her financial adviser and prior to signing the redemption agreement, as a result of which she was believed that if she had some special circumstances relating to the need for special accommodation, she may be able to use her compensation sum to purchase a house. She was advised to have a face-to-face meeting with Centrelink to discuss the matter.
·Ms Fisher has difficulty travelling and, because of her pain and disability, she cannot stand or sit for any significant period of time. In June 2008, she telephoned a Centrelink call centre and requested an appointment to discuss the consequences of the receipt of a lump sum payment of compensation. She was told that her regional office did not provide specific appointment times.
·She made no attempt after early July to make any more direct enquiry from Centrelink as to the impact of her lump sum payment on her potential eligibility for income support.
·Ms Fisher entered into a contract to purchase a property at Mannum in mid-August 2008. She paid a large deposit and the contract was unconditional. She made no attempt to confirm her position with respect to ongoing Social Security payments prior to committing her funds to this purchase.
·She first applied for DSP on 24 August 2008.
·She was formally advised by Centrelink of a preclusion period and its duration by letter dated 17 September 2008.
·Her application for DSP was rejected on 29 September 2008. It was rejected because of the existence of the preclusion period.
·When she spoke to an ARO in October 2008, she had $30,000 in a credit union account and she owned a vehicle that she did not drive.
·She has two sons, one of whom is residing with her.
·Ms Fisher continued to spend funds setting up her accommodation and on other discretionary items, including a significant donation to a charitable cause, even after the ARO confirmed the original decision to impose a preclusion period. She spent at least $20,000 in the period between October 2008 and November 2008 on various items for her home and for her health.
·Ms Fisher had suffered a period of significant dislocation after her injury, with her de facto relationship breaking down and her having to rely on family and friends to house her for considerable periods of time after her operation.
·Ms Fisher’s perception is that she has significant special needs related to her disabilities, such that she needs a house that is reasonably adapted for her disabilities. The house that she has purchased is appropriately adapted.
·Ms Fisher is single and isolated in the community and will not return to the workforce. She does not have a large support system and her sons are not capable of providing her with significant financial assistance.
consideration and application of the law
63. There is considerable case law dealing with the concept of “special circumstances”.
64. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, Toohey J said:
“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 upon 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.”
65. Special circumstances are determined on a case-by-case basis.
66. There is authority for the proposition that financial hardship alone is not sufficient to amount to special circumstances and that circumstances must be more than “straitened” and must be “exceptional” for it to be considered as special circumstances (Re Colaiacolo and Secretary to the Department of Social Security (1985) AATA 91). As the cases have often noted, individuals in the community who are solely reliant on Social Security benefits for support are frequently in financial difficulties and this is not an unusual or in itself exceptional phenomenon.
67. The respondent relied on the authority of Re Manafikhi and Secretary, Department of Employment and Workplace Relations [2007] AATA 1529 in arguing that Ms Fisher should not be entitled to now seek support from the community because she has elected to spend her entire compensation claim on a home and its modifications without regard to the consequences.
68. The purpose of the legislation which provides for a period of preclusion from benefits is to ensure that a person is not paid from two sources in respect of the same period of time.
69. The legislation is designed to ensure that people are not compensated from public monies as well as otherwise for the same incapacities. In the cases of Re Secretary, Department of Social Security and John Rodgers (1992) AATA 131 and Re Colaiacolo (supra), the Tribunal emphasised the importance of the underlying objectives of the particular legislation.
70. Ms Fisher is not in the exceptionally difficult financial circumstances that the cases envisage could amount to special circumstances. She owns a freehold home, a car of some value and has options available to her which would include making wider inquiries about borrowing, including short-term borrowings from family, friends or financial institutions. A worst case scenario for her is to sell the home, rent a property and invest the balance of funds wisely until the preclusion period ends.
71. Are there any other circumstances in this case that make it unusual, exceptional or special?
72. It is clear that all of the money received by Ms Fisher in this case was committed to securely housing herself in what she understood to be appropriate accommodation, given her special needs. The Tribunal accepts that accommodation was a particularly pressing priority in her mind, given the period of physical and emotional dislocation that she had experienced after sustaining the injury and subsequent upon the surgery and the breakdown of her de facto relationship.
73. Ms Fisher was apparently quite reckless in her actions in that she did not confirm in a face-to-face situation with Centrelink her telephone advice that she could re-house herself with the funds if she had special needs and a doctor attested to those needs.
74. The statement that she made to her financial adviser, and particularly the reference in that statement to 13 weeks, does support her claim that she did have a conversation with someone at Centrelink who it appears told her that she may only face a 13 week period if she was able to persuade someone at the Centrelink office that she had a special situation. This was qualified with the advice to seek confirmation from Centrelink.
75. On 24 June 2008, Ms Fisher obtained a letter from Dr Scalzi at the Bridge Clinic (T43/208) which stated that he supported her obtaining appropriate accommodation to suit someone with “severe low back pain and significant disability”. This is consistent with her having had the telephone discussion with Centrelink in which she believed that if she had support from her doctor and was using the funds to purchase accommodation, then the preclusion period would not apply to her.
76. The Tribunal accepts that she may have had some misapprehension as to her position after this discussion, possibly caused by a combination of minor perceptual difficulties arising from the amount of medication that she was taking at the time and her desire to hear what she wanted to hear.
77. It is unfortunate that Centrelink did not provide her with a specific face-to-face appointment as the situation would have been clarified with her at such an appointment. It is disappointing that people with significant disabilities cannot be given a particular appointment time, rather than being asked to wait for long periods of time in what for them can be distressing and uncomfortable circumstances, to speak to a Centrelink officer.
78. Ms Fisher was determined to buy a home and one suspects that whether consciously or unconsciously she chose to ignore her obligation to properly check on her situation with Centrelink as she was fearful that advice may get in the way of her determination to purchase.
79. It is difficult to comprehend why Ms Fisher continued to spend further significant funds after the ARO has confirmed to her that the preclusion period did apply to her and that she was subject to a lengthy preclusion. At that point she was reckless in her expenditure, and appeared unconcerned as to the consequences. She went on to spend close to $30,000 between the date of her discussion with the ARO in October 2008 and the date that she came before this Tribunal in May 2009.
80. The consequences of Ms Fisher’s injury have been to dramatically alter the path of her life. She is now an invalid and her relationship broke down shortly after she sustained the injury and had surgery. She will not return to the workforce and has no capacity to earn. Her expenditure on the property was driven by a desperate need to find some independence and accommodation again.
81. The medical evidence available confirms that she was taking very strong medication for pain to the extent that her license to drive was taken away from her because of concerns about her safety as a driver. The report from her general practitioner confirms that she suffers from chronic pain syndrome along with degenerative spinal disease.
82. She does not wish to have to sell the property as it will put her back in the same cycle of dislocation that she had experienced since 2005. It would undoubtedly affect her already fragile psychological health and she is affected by medication.
83. Overall, the Tribunal is satisfied that the combination of factors in this case do amount to an unusual and exceptional case, but not such that there should be a complete disregard for the underlying policy objectives of the legislation.
84. The vague advice from the telephone call centre appears to have precipitated the chain of events that led to Ms Fisher spending all her compensation funds on the purchase of a home.
85. Having purchased the home, she spent funds on installing security shutters and reverse cycle air conditioning because of her sensitivity to temperature. These expenditures comprised a large portion of the funds that she spent after she had the discussion with the ARO. It would appear that she was desperate to secure her position and set herself up at all costs and turned a blind eye to the consequences.
86. Nevertheless, her particular health difficulties have affected her psychologically and she was determined to protect herself.
87. It is difficult to know what is a fair balance between the special circumstances that exist in this case and the need to recognise the underlying policy of the legislation. Ms Fisher is an intelligent woman and certainly should have known better than to continue to spend funds after 17 September 2008 when she was advised of the preclusion period. She has been the author of her own difficulties, albeit there are some mitigating circumstances in this case as set out above.
88. It is the Tribunal’s view that the fair and equitable outcome is to find that the special circumstances in this case justify disregarding that part of the lump sum compensation payment that would result in the current preclusion period finishing on 31 December 2010. Had Ms Fisher behaved responsibly once she was told of the preclusion period and the situation was clarified for her, she would have been able to continue to manage financially on the funds that were coming to her from her other damages claim and from her superannuation for a longer period of time. She has other assets that may need to be realised until such time as the preclusion period ends.
89. She currently has a son living with her and one would hope with the end of the preclusion period in sight, she will budget and manage her finances such that she will be able to maintain her home and re-apply for benefits from 1 January 2011.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............J Coulthard..........................................
AssociateDate of Hearing 26 May 2009
Date of Decision 17 July 2009
Advocate for the Applicant Self representedAdvocate for the Respondent Ms L Odgers
Centrelink Legal Services and Procurement Branch
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