Gajic and Department of Family and Community Services

[2001] AATA 998

DECISION AND REASONS FOR DECISION [2001] AATA 998

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/568

GENREAL ADMINISTRATIVE  DIVISION       )          
           Re      DRAGISA GAJIC  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms N Bell, Member

Date7 December 2001 

PlaceSydney

Decision      The Tribunal determines that the decision under review is affirmed.            
  [SGD] Ms N Bell,   Member
CATCHWORDS
SOCIAL SECURITY – lump sum workers' compensation payment – application for disability support pension – preclusion period – whether special circumstances exist to justify the exercise of the discretion to disregard all or part of the compensation payment   

Social Security Act 1991 – section 1184(1)

Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Beadle v Director-General of Social Security (1985) 7 ALD 670
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95

REASONS FOR DECISION

Ms N Bell, Member            

1. This is an application for review by Mr Dragisa Gajic, the Applicant in these proceedings, of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 3 April 2001 (T2), which affirmed a decision made by a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 24 February 1999 to cancel disability support pension ("DSP") and impose a preclusion period from 12 February 1999 to 4 October 2001. This earlier decision was also reviewed and affirmed by an authorised review officer on 8 January 2001 (T26). 

2. A hearing was held before the Tribunal on 19 October 2001.  The Mr Gajic appeared on his own behalf, providing oral evidence to the Tribunal with the aid of an interpreter in the Serbian language.  The Respondent was represented by Mr Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink.

3. The following material was placed into evidence before the Tribunal:
   Exhibit          Description  Date  
   TD1 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents")
   A1      Report of Dr Marinkovich   20 July 2001
   A2      Statement of Ms Silic         Undated        
   A3      Statement of Milica Radan 9 August 2001         
   A4      Statement of Nadica Aleksic        Undated        
   A5      Statement of Mr Paunovic Undated        
   A6      Statement of Fr Rade Radan       Undated        
   R1      Respondent's Statement of Facts and Contentions     15 October 2001     
   R2      Hepburn Spa Resort information             

issues

1. The relevant issue in this matter is whether any special circumstances exist that would justify the exercise of the discretion under section 1184 of the Social Security Act 1991, to disregard part, or all, of the Mr Gajic's's compensation payment. The issue of whether the compensation preclusion period imposed from 12 February 1999 to 4 October 2001 was calculated correctly was not in dispute.
   legislation

2. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") particularly section 1184(1).
   background

3. Mr Gajic, born on 5 September 1943, was employed as a spray painter by Car Craft Smash Repairs until 8 May 1996, at which time he suffered an injury at work. He ceased work and lodged a claim for workers' compensation in relation to this injury. As noted on Centrelink's preclusion period and charge calculation sheet (T5), completed on 24 February 1999, Mr Gajic was paid periodical compensation payments by MMI Insurance Group amounting to $17,041.10 during the period 31 May 1996 to 12 February 1999. Mr Gajic was granted payment of newstart allowance from 7 March 1997 and then disability support pension ("DSP") from 24 July 1997.

4. On 12 February 1999 Mr Gajic settled his compensation claim and received a lump sum workers' compensation payment of $114,000 gross (T4). A nett amount of $110,863 was deposited into his bank account on 5 March 1999. Mr Gajic was in receipt of DSP up to and including 18 February 1999.

5. On 24 February 1999 it was decided by a Centrelink officer that Mr Gajic was precluded from receiving DSP from 12 February 1999 (the date of his compensation settlement) to 4 October 2001 (T5), due to receiving his lump sum workers' compensation payment. Centrelink also sought to recover a charge of $437 from Mr Gajic (T6 and T7). Notices regarding the imposition of the preclusion period and recovery of a charge were also issued by Centrelink, on 24 February 1999, to MMI Insurance Group (T28 and T31), Mr Gajic (T29 and T32) and Mr Gajic's solicitors, Martin Bell Solicitors (T30).

6. In a letter to Centrelink dated 12 March 1999, Mr Gajic's solicitors elaborated on Mr Gajic's financial situation, including details of his living expenses, debts owed to various people since his injury amounting to $49,200, and a bank statement for the period 7 January 1999 to 11 March 1999 (T9, pp32-35). A report by Dr Zepinic, Psychologist, dated 10 March 1999, which suggested Mr Gajic would benefit psychologically by "undertaking some changes in his lifestyle including taking a longer holiday", was also attached (T9, p36). In addition to this information, a medical certificate dated 5 March 1999, by Dr Marinkovich, stated that Mr Gajic needed spa treatment for his back injury, which is unavailable in Australia (T9, p37). In light of this additional information, on 25 March 1999 the Compensation Section of Centrelink again reviewed the original decision of 24 February 1999 and decided, however, that the decision remain unchanged (T10 and T11). 

7. On 11 September 2000 Mr Gajic lodged a claim for DSP (T14).  On 26 September 2000 Mr Gajic requested a review of the decision to impose a compensation preclusion period (T15) and attached to this request a Financial Information Module outlining his financial position (T16). In a statement dated 13 October 2000, Mr Gajic also provided the following information (T17):

   "1. I spent $10,000 to purchase a car and pay for the insurance of this car in 1999
   2. I paid $2,500 on the purchase of an airline ticket to Yugoslavia
   3. I spent $2,000 for the purchase of clothing and incidentals for this trip
   I have lived for the last year and a half in Yugoslavia. I travelled there for the purpose of spending time in …mineral springs which I believe helped me in the treatment of my back injury…
   The rest of my worker's compensation payout was spent on living expenses."

8. Mr Gajic requested a review by an authorised review officer, of the original decision, on 16 October 2000 (T12). In a letter to Centrelink, received on 11 December 2000, Mr Gajic stated (T24, p63):

   "As you know I have spent 17 months in Jugoslavia, having returned to Australia just over 3 months ago…
   I went to mineral baths for therapy, and spent approximately $5,600 at Igalo, $3,500 at Josanicka Banja and about $3,500 at Vranjacka Banja…
   I generally lived in my mother's house, which following the difficult years of war and bombing in Jugoslavia was in a dreadful state of disrepair… home improvements cost me around $15,000…
   Over a period of 17 months I estimate that I spent about $10,200 on living expenses…"

9. Following the submission of further details and documentation related to Mr Gajic's expenses and debt repayments, on 8 January 2001 an ARO affirmed the original decision to impose a compensation preclusion period (T26). On 3 April 2001, the SSAT reviewed and affirmed the original decision, determining that there were no special circumstances to warrant the exercise of the discretion under section 1184 of the Act (T2). On 2 May 2001 Mr Gajic lodged an appeal with the Tribunal (T1).
   mr gajic's evidence

10. Mr Gajic stated, in oral evidence before the Tribunal, that whilst in receipt of weekly compensation payments for the injury he sustained at work in 1996, during the period 31 May 1996 to 12 February 1999, he found it necessary to borrow money from friends in order to support himself, his elderly mother and disabled sister living in Yugoslavia. He stated that his mother and sister were suffering hardship in Yugoslavia at the time.

11. According to Mr Gajic, following his work injury, his doctor, Dr Marinkovich, suggested that he seek spa treatment for his back, and do so in Yugoslavia. Mr Gajic stated that he was surprised at Mr Lozynsky's suggestion at the hearing, that such spa treatment is available in Australia, since his doctor had specifically stated that the spa treatment was not available in Australia. 

12. Mr Gajic stated that whilst in Yugoslavia, he stayed at his mother's house with his mother and invalid sister. During this time he spent approximately $15 000 to renovate parts of the house including the kitchen and bathroom. This included the cost of labour and materials. He stated that he had found the house in a 'bad state' when arriving in Yugoslavia, and that he wanted to make the house livable for his mother and sister.

13. Mr Gajic emphasised in his evidence before the Tribunal, that upon receipt of his lump sum compensation payment for his work injury, and before he travelled to Yugoslavia, he intended that that money would be sufficient for him to live off until October 2001, being the end of the preclusion period. However, he stated that whilst in Yugoslavia he encountered unforseen expenses such as the cost of the repairs on his mother's house. Mr Gajic stated that he considered this a special circumstance for which Centrelink would at least reduce the preclusion period imposed upon him. Further, with regard to the spa treatment in Yugoslavia, Mr Gajic said that he did not anticipate that it would be as expensive as it was.

14. The Tribunal noted, from Mr Gajic's bank records (T25), that Mr Gajic withdrew substantial amounts of his settlement money prior to travelling to Yugoslavia. In response to a question from the Tribunal as to why he withdrew these amounts, Mr Gajic said that he used the money to repay loans to friends, to buy a car, a plane ticket to Yugoslavia and some clothes and personal items.  A receipt, dated 15 March 1999, for the purchase of a $2,200 airfare, is found at T24, p65. Further, a certificate of registration for a Ford Laser in Mr Gajic's name, as well as insurance documentation, is found at T24, p66-68. Mr Gajic also stated that he withdrew approximately $40,000 to $45 000 to give to friends to hold for him in case he needed the money whilst in Yugoslavia, given that, according to Mr Gajic, he would have difficulties accessing his money. Mr Gajic stated that whilst in Yugoslavia he found it necessary to spend nearly all of that money.

15. In cross examination, Mr Gajic conceded that he had been informed by his solicitors, who represented him in his worker's compensation claim, and by Centrelink, that a preclusion period would be imposed. He said he understood at the time that his lump sum compensation payment was supposed to be sufficient for him to live off for two and half years. Mr Gajic did, however, at the time, think the imposition of such a lengthy preclusion period was unfair.

16. Mr Gajic stated that for the first five or six months following his injury at work, he received compensation payments of approximately $400 to $450 per week from his employer.  Mr Lozynsky, for the Respondent, referred Mr Gajic to a bank statement dated from 7 January 1999 to 10 March 2001 (T9, p34) and asked Mr Gajic to explain the deposits made at various times in this period.  Mr Gajic could not, however, recall why these deposits were made.

17. In reply to a question from Mr Lozynsky, as to how Mr Gajic spent his lump sum compensation payment, Mr Gajic stated that firstly he repaid the money he had borrowed from friends, which amounted to $49 200, nearly half of the settlement monies. With the remaining money, Mr Gajic bought a car, which, with insurance, cost $9 000 to $10 000, some clothes and personal effects. Although he knew he was going overseas, Mr Gajic stated that he bought his car two or three weeks before he went to Yugoslavia, in around March 1999 and that he did not think that he would spend as much time as he did overseas.

18. Mr Gajic stated in cross examination that his reason for travelling to Yugoslavia was to see his mother and sister, whom he had not seen for over 20 years, and because Dr Marinkovich had suggested that he try the spas in Yugoslavia. Mr Gajic described the spa treatment in Serbia as involving relaxing in spa waters with minerals and in some mud baths. Mr Gajic was shown a brochure for 'Hepburn Spa Resort' in Victoria (Exhibit R2), by Mr Lozynsky, and asked whether he had investigated the existence of similar spas in Australia. He stated that he did not make any such inquiries and was not aware of the various spa resorts in Australia, although he did ask a few people what the spas in Australia were like and was told they were not very effective.  Mr Gajic emphasised that he based his decision to go to Yugoslavia to try the spas mainly on the advice of Dr Marinkovich and, further, on the recommendation of his Psychologist, who told him that he generally needed a change and a trip to Serbia would do him good. According to Mr Gajic, the spa treatment in Yugoslavia cost between $12 000 and $13 000.

19. With respect to the cost of the renovations to Mr Gajic's mother's house in Yugoslavia, Mr Gajic said in cross examination that he had no receipts for the expenses he incurred, stating that it was not common practice to obtain receipts for anything in Yugoslavia at that time. Further, he stated that he did not think he would need to produce any receipts and so did not specifically ask for them.

20. In response to questions from the Tribunal with regard to the renovations to his mother's house, Mr Gajic stated that he considered it necessary to renovate because there was no effective bathroom in the house and the kitchen was impossible to use. He stated that there was no running hot water, benches or cupboards in the kitchen, and only an old fridge and old stove in place. Mr Gajic said the house is small, with only two rooms, and is inhabited by his elderly mother and invalid sister. At the time of the bombings in Serbia, the house was affected, according to Mr Gajic, and although the structure remained, the roof and windows were damaged. Mr Gajic did not, however, spend any money on repairing the roof and windows. In reply to a question from the Tribunal as to whether the house was unusual in comparison to other homes nearby, in terms of disrepair, Mr Gajic stated that the inside of the house was somewhat unusual, in that other homes in the area would have had hot water, but that the structure of the house was not unusual.

21. In relation to the debts he repaid on receipt of his compensation claim, Mr Gajic stated that these amounted to $49 200. Mr Lozynsky asked Mr Gajic if he had to repay his debts within a certain timeframe, to which Mr Gajic replied he had to repay his debts when he had the money and he felt that upon receiving his compensation payment he should repay his debts "straight away".  He confirmed that the people he owed money to were his friends Smiljana Silic, Fr Radan and his wife, Svetislav Paunovic and Nadica Aleksic.  Further, Mr Gajic said that, at the time of the hearing, he did not owe any major debts although he had borrowed some small amounts from friends, in total less than $2000, in order to 'get by'.

22. With respect to his current lifestyle and living conditions, Mr Gajic stated that he is living at a friend's place in Bondi, is not paying rent, and with the help of his friends is only "managing to exist". His current medical expenses consist of the cost of pain killers he takes to help relieve the pain in his back. He is unlikely to incurr any further medical costs as his doctors have told him that any other treatment such as tablets, or injections will not assist him, and he agrees with this.  Mr Gajic also stated that he has no social life as he cannot afford it and often relies on his friends to pay for his newspapers and cigarettes. He has not sought any assistance from welfare groups such as the Salvation Army, but has only sought assistance from Centrelink.

23. Mr Lozynsky put it to Mr Gajic that he recklessly spent the balance of his compensation payment following the repayment of his debts. In reply to this, Mr Gajic stated that he did not recklessly spend his money but faced unexpected expenses when he arrived in Yugoslavia, in terms of the spa treatment and the house repairs, and for these reasons he had to spend more of his compensation money, than he had planned to, prior to the end of the preclusion period.
    dr marinkovich

24. The medical report by Dr Marinkovich dated 20 July 2000 (Exhibit A1) states:

    "Due to his low back problem, I suggested to Mr Gajic to go to Serbia for SPA treatment, which is not available here in Australia.
    Late last year he went to Serbia and on his return here reported that the above mentioned treatment was only beneficial whilst in progress. He once again relies on his medication to suppress the daily pains and discomfort he is experiencing."

statements of smiljana silic, milica radan, svetislav paunovic, nadica aleksic

1. In an undated statement, Smiljana Silic stated that, being a long time friend of Mr Gajic, she loaned him the sum of $13 500 (Exhibit A2). This information was repeated in a similar statement dated 10 October 2000, which stated that Mr Gajic repaid this amount on receipt of his workers' compensation payment (T18).

2. In a statement dated 9 August 2001 and 13 October 2000 (Exhibit A3 and T19), Milica Radan, wife of Fr Radan, stated that since 1997, Mr Gajic had borrowed $18 000 from her and her husband and had since returned that amount. She stated  (Exhibit A3):

   "We recall loaning him $10 000 in 1997, for the purposes of sending assistance to his mother and sister in Serbia. Over the following eighteen months or so, we continued to lend him small amounts of money for his living expenses and for continued assistance to his kinfolk at home. He returned the money to us in March 1999."

3. In an undated statement, Nadica Aleksic stated that $4200 had been loaned by her to Mr Gajic and that this money had been repaid (Exhibit A4). A similar statement was made by Nadica Aleksic on 12 October 2000, where he said that the loan had been repaid when Mr Gajic received his compensation payment (T21).

4. Svetislav Paunovic, in an undated statement (Exhibit A5) and in a statement dated 11 October 2000 (T20), stated that he is Mr Gajic's cousin and (Exhibit A5):

   "…when he had problems with his accident at work, I had to help him to live. He could not afford to pay his rent and other expenses… I had to help him get through and I gave him money until he finished his court case. All together I gave him $6500. I did not expect him to return this money but he insisted to give it back when his court case finished."

fr rade radan

1. In an undated statement, Fr Radan stated the following (Exhibit A6):

   "Until September of last year and for the ten years proceeding, Yugoslavia was in a continued state of war… During this time, the entire economy functioned on a broadly developed black market… The notion of receipting purchases was completely abandoned and everything functioned in a clandestine manner.
   In 1999 Dragisa Gajic returned to Serbia for an extended period of time, during which he did extensive renovations to the family home. Having visited there since the work was completed I can testify to the work being done. I believe he spent some $15000 on these refurbishments. It is not possible for him to produce evidence of the purchases made for the restoration process, for the reasons stated above."

submissions

1. Mr Gajic submitted that due to his specific circumstances, he was forced to spend the majority of his compensation settlement monies before the end of the preclusion period imposed. In summary, Mr Gajic submitted that his special circumstances were:

   (a) having to borrow money from friends following his workplace accident and then having to use part of the settlement money to repay the debts;
   (b) travelling to Yugoslavia and incurring expenses for spa treatment, which he found exceeded what he had first expected; and
   (c) having to repair and renovate his mother's house in Yugoslavia, and the cost of these repairs, which Mr Gajic submitted were unforseen expenses, and for which he had to spend a substantial amount of his settlement monies.

1. Mr Lozynsky, for the Respondent, noted that neither Mr Gajic nor his doctor, Dr Marinkovich, considered the use of spas in Australia, such as the one indicated at Exhibit R2. Mr Lozynsky submitted that had they done so, Mr Gajic could have saved a considerable amount of money, not spending as much as he did of his compensation payment on the spas in Yugoslavia and on his travel expenses.

2. Mr Lozynsky noted the absence of documentary evidence of the amounts spent by Mr Gajic on the renovations to his mother's house in Yugoslavia, and submitted that the amounts alleged by Mr Gajic should not be accepted.

3. In relation to Mr Gajic's debt repayments, Mr Lozynsky submitted that it was not necessary for Mr Gajic to repay his debts immediately upon receipt of his compensation payment. He contended that there was no express request by Mr Gajic's creditors for him to repay his debts immediately following his compensation payout.

4. It was submitted by Mr Lozynsky that in spending approximately $108 000 in compensation money in one month including his debt repayments, Mr Gajic acted recklessly, not considering the repercussions of his spending, given that he had received advice from both his solicitors and Centrelink of the preclusion period. Finally, he submitted that the original Centrelink decision of 24 February 1999 was correct and that Mr Gajic's circumstances are not special and as such do not warrant the exercise of the discretion under section 1184 of the Act.
   consideration and findings

5. There being no dispute in this application as to whether the compensation preclusion period imposed from 12 February 1999 to 4 October 2001 was calculated correctly, the only issue to be considered by the Tribunal is whether any special circumstances exist that would justify the exercise of the discretion under section 1184 of the Act to disregard part, or all, of Mr Gajic's compensation payment.

6. Section 1184(1) of the Act provides:

   "1184 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."

7. The Tribunal was referred by the Respondent, in its Statement of Facts and Contentions (Exhibit R1), to a number of cases, including Re Ivovic and Director-General of Social Security (1981) 3 ALN N95, where the Tribunal referred to special circumstances (as it was then defined under section 156 of the Social Security Act 1947), stating at N97:

   "… The reference to special circumstances 'by reason of which' a person liable 'should be released' requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes… Thus whilst keeping the dominant principle of s 156 in mind, he must nevertheless be prepared to respond to the 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."

8. In Beadle v Director-General of Social Security (1985) 7 ALR 670, the Federal Court noted at ALR 230 that it was in broad agreement with the decision adopted by the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, where at ALD 3 the Tribunal stated:

   "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."

9. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 Kiefel J considered the meaning of 'special circumstances' as it appears in section 1184 and stated:

   "The phrase 'special circumstances', it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle's case (at ALR 229; ALD 674), and 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 principle of liability it creates, is applied."

10. The Tribunal is satisfied that Mr Gajic incurred expenses related to his trip to Yugoslavia in 1999, such as the airfare, clothes and personal effects. Mr Gajic stated in his evidence that the reasons for his travel were to receive spa treatment and to see his family in Yugoslavia. The Tribunal accepts that Mr Gajic sought spa treatment in Yugoslavia, on the advice of his doctor, Dr Marinkovich, as evidenced by his report of 20 July 2000 (Exhibit A1). The Tribunal is also satisfied that he spent approximately $12 000 to $13 000 of his settlement monies on this treatment, prior to the end of the preclusion period, although no receipts were presented to the Tribunal. However, in his report, Dr Marinkovic did not state that this was essential treatment but stated that he "suggested to Mr Gajic to go to Serbia for spa treatment" (Exhibit A1). In noting that Mr Gajic did not consider seeking alternative spa treatment available in Australia, and although satisfied that Mr Gajic relied on the advice of Dr Marinkovich, the Tribunal considers that his travel to Yugoslavia and the subsequent spa treatment are not special circumstances as they do not possess a particular "quality of unusualness that permits them to be described as special" (Re Beadle and Director-General of Social Security [supra]).

11. Taking into account the evidence of Mr Gajic and the statements of S Silic, M Radan, S Paunovic and N Aleksic, the Tribunal is satisfied that Mr Gajic owed approximately $49 200 in debts at the time of receiving his settlement monies.  In the Tribunal's view this is not unusual and therefore not a special circumstance, in that it does not distinguish Mr Gajic's case from others or set it apart from "the usual or ordinary case" (Groth v Secretary, Department of SocialSecurity [supra]). Unfortunately, it is not unusual for a person who has been unemployed as a result of a workplace injury to have accumulated some debts and then found it necessary to use part of their compensation payments (whether they be weekly payments or a lump sum settlement amount) to repay these debts.   Although on the one hand Mr Gajic may have felt he had to repay his debts as soon as possible upon receipt of his compensation payment, on the other hand, and as submitted by the Respondent, Mr Gajic was not specifically required by his friends to repay his debts immediately. As such, the Tribunal considers that the repayment of Mr Gajic's debts, although accounting for a substantial amount of his spending of the compensation payment, is not unusual, uncommon or exceptional and as such is not a special circumstance.

12. In his evidence, Mr Gajic stated that, on arriving in Yugoslavia he had to spend part of his settlement monies on renovating his mother's house as well as on living expenses. The cost of the renovations is not evidenced by receipts. However, the Tribunal accepts Mr Gajic's evidence that, given the social and economic climate in Yugoslavia at the time, the issuing of receipts was not common practice.  On the one hand Mr Gajic stated in his evidence that he considered it necessary to renovate his mother's house because there was no effective bathroom or kitchen, with no running hot water in the house. On the other hand, however, Mr Gajic stated that, in terms of the level of disrepair, the structure of the house was not unusual in comparison to other homes nearby but that most of those did have running hot water. In the Tribunal's view, not withstanding the lack of running hot water, overall, the house was not unusual in comparison to other houses in the neighbourhood which had been affected by bombings. Although the Tribunal accepts that Mr Gajic spent a considerable amount of his settlement monies on renovating his mother's house, the Tribunal considers that this was not a special circumstance, particularly given that the renovations were not for the purpose of repairing damage caused by bombing.

13. The Tribunal notes that Mr Gajic was informed by both Centrelink and his solicitors that a preclusion period would be imposed.  Mr Gajic stated in his evidence that he understood at the time he received his lump sum compensation payment, that it was supposed to sustain him for two and half years.  Therefore, there were no special or disadvantageous circumstances surrounding notification of the preclusion period.

14. The Tribunal concludes that Mr Gajic's circumstances do not have a particular quality of unusualness. In the Tribunal's view, they are not special circumstances when considered alone, or in total, in that they do not take Mr Gajic's case "out of the usual or ordinary case" (see Groth v Secretary, Department of Social Security [supra]).

15. The Tribunal, in finding that no special circumstances exist in Mr Gajic's case, concludes that the exercise of the discretion to disregard part or all of Mr Gajic's compensation payment, under section 1184 of the Act, would not be appropriate in this case.
    determination

16. The Tribunal determines that the decision under review is affirmed.

    I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

    Signed:         .....................................................................................
      Associate

    Date/s of Hearing  19 October 2001
    Date of Decision     7 December 2001
    Representative for the Applicant   Self represented       
    Advocate for the Respondent       George Lozynsky