Fletcher and Secretary Department of Employment and Workplace Relations

[2007] AATA 1889

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1889

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/1660

GENERAL ADMINISTRATIVE DIVISION		)
Re		LEIGH FLETCHER

Applicant

And SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date25 October 2007

PlacePort Macquarie

Decision The decision under review is affirmed.

.................[sgd]..........................

M D Allen
  Senior Member

CATCHWORDS

SOCIAL SECURITY – review of decision by social security appeals tribunal affirming prior determination to raise and recover debt of compensation affected payments – applicant receiving social security benefits – applicant also received lump sum representing arrears of weekly payments of workers compensation  – decision under review affirmed 

LEGISLATION

Social Security Act 1991 sections 17, 17(2), 1173, 1180, 1181 and 1184K. Part 3.14.

CASE LAW

Secretary Department of Social Security v Ellis (1996-7) 24 AAR 535

Secretary Department of Social Security v a’Beckett (1990) 12 AAR 212

Groth v Secretary Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

25 October 2007 Senior Member M D Allen

1.      By application made the first day of December 2006 the Applicant sought review of a decision by a Social Security Appeals Tribunal made 23 October 2006 affirming a prior determination to raise and recover a debt in the amount of $15364.81 being the recovery of Newstart Allowance and Parenting Payment Single received by the Applicant.

2.      It is not disputed that the Applicant received Parenting Payment Single from 23 May 2005 to 13 December 2005 and then from 14 December 2005 to 25 July 2005 she received Newstart Allowance.

3.      On 20 July 2006 the Applicant’s claim in the Workers Compensation Commission of NSW was determined. As a result the Applicant received a sum representing weekly payments of Compensation from 2 May 2005 to the date of the determination.

4.      On 28 July 2006 Centrelink determined to raise and recover from the Applicant the sum of $15364.48 being the sum she had been paid by way of Social Security Benefits in the period 23 May 2005 to 25 July 2006.

5. Subsection 17(1) of the Social Security Act 1991 provides that payments of Newstart Allowance or Parenting Payment are “Compensation Affected Payments”. A lump sum representing the arrears of weekly payments of workers compensation are regarded as Compensation pursuant to subs17(2) SSA.

6. Sections 1180 and 1181 SSA in effect provide that upon the receipt of a lump sum representing the arrears of Workers Compensation, the recipient must repay to Centrelink the Social Security Benefits received in the period to which the lump sum relates. This is what occurred to the Applicant.

7.      The theory behind the recovery was expressed by Doussa J in Secretary Department of Social Security v a’Beckett (1990) 12 AAR 212 at 222 namely:

“clearly the object of the scheme in relation to periodical payments is to prevent a person having an entitlement to receive payments from two sources for the same inability to work”

8.      I acknowledge that the Applicant was misled by a badly worded Centrelink letter dated 28 July 2006 and that on her calculations based upon that letter she expected to have to repay around $9000.00. That said the letter does state “we have asked CGU Workers Compensation (NSW) Ltd to repay $15364.81 to us”.

9.      The legislation is quite unambiguous on the requirement for reimbursement and no material was placed before me to suggest that the amount calculated namely $15364.81 was incorrect.

10. Section 1184K SSA states:

Secretary may disregard some payments

1184K(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.

1184K(2) If:

(a)a person or a person’s partner receives or claims a compensation affected payment; and

(b)       the person receives compensation; and

(c)the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person’s or the person’s partner’s receipt of, or claim for, the compensation affected payment;

the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1).

11. During the hearing of this matter the Applicant sought to rely upon subs1184K(2) but contrary to her submissions the subsection is specifically drafted so as to exclude the fact that a payment of compensation has been received for a cause unconnected with the payment of a Social Security Benefit as being in itself a special circumstance. That is not to say however that those circumstances cannot be taken into account when ascertaining whether special circumstances exist.

12.     As to what constitutes “special circumstances” I refer to the judgement of Carr J in Secretary Department of Social Security v Ellis (1996-7) 24 AAR 535 at 539 where his honour said:

“In Beadle v Director General of Social Security (1985) 7 ALD 670 a full court of this Court had to consider whether the Administrative Appeals Tribunal had erred in its interpretation of s102(1)(a) of the Act which provided for an extension of time in which to claim a family allowance … in special circumstances …”

At 673-674 the Full Court said:

“presumably in this context special circumstances must include events which would render the six months unfair or inappropriate... It would depend upon the circumstances of the particular case whether these constituted special circumstances.  We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase “special circumstances”, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”

His honour continued:

““In Groth v The Secretary Department of Social Security , Kiefel J after referring to Beddle said”… for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only inquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The inquiry I have referred to would involve considering what would be the effect, if the provision in question or the principal of liability it creates, is applied”

13.     As his honour then proceeded to point out, Kiefel J in Groth expressly approved the Tribunals reasoning in holding that Mr Groth’s circumstances were not out of the ordinary when part 3.14 of the SSA had the same effect on him as it did on other person’s qualified to receive a Disability Support Pension. Kiefel J added in that case:

“it [The Tribunal] went on to find that his circumstances and those of his family, although difficult, did not constitute hardship and they could not be said to be different from other pension recipients”

14.     In this matter the Applicant’s circumstances are set out in a document which became exhibit A1 in these proceedings. The Applicant is aware of the contents of that document and I do not propose to recapitulate those contents here.

15.     Suffice it to say that the Applicant is in straightened financial circumstances and due to her inability to work following her work injury she has accumulated large debts. In addition she is, as a result of her work injuries, undergoing treatment for depression.

16.     The Applicant has applied for a Disability Support Pension but due to reasons I do not fully understand she has not been fully assessed. From what I understand from the Applicant’s evidence her claim for a DSP requires further and better investigation by Centrelink. She should reapply for that pension and were she again to be refused, the Applicant must take all necessary steps to have the matter reviewed.

17.     Although the Applicant is experiencing considerable hardship I do not regard her circumstances to be so out of the ordinary or unusual as compared to other welfare recipients’ as to constitute “special circumstances”.

18.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:   ..........[sgd]...........
               Mwela Kapapa, Associate

Date of Hearing:  22 August 2007
Date of Decision:  25 October 2007
Solicitor for the Applicant:              Self-represented

Solicitor for the Respondent:         Centrelink Legal Services