Gardner and Secretary, Department of Social Services (Social services second review)

The Administrative Appeals Tribunal (AAT) considered an application by an applicant seeking review of a decision to refuse their Disability Support Pension (DSP). The refusal was not based on the applicant's eligibility for the DSP itself, but rather on provisions of the *Social Security Act 1991* (Cth) that preclude individuals receiving certain compensation payments from also receiving social welfare payments for a defined period, known as the "preclusion period." This policy aims to prevent individuals from receiving payments from both the social security system and compensation for the same period.

The central legal issue before the Tribunal was whether the applicant's compensation payment, arising from a motor vehicle accident in 2012, correctly triggered a preclusion period that would disentitle them to the DSP. This involved determining the nature of the compensation payment received, specifically whether it was a settlement or a judgment, as the legislation treats these differently for preclusion period calculations. The applicant had been granted the DSP and sickness benefits in the interim, and the compensation assessment by the Claims Assessment Resolution Service (CARS) was contested by both the applicant and the insurer.

The Tribunal noted that the refusal of the DSP was based on the compensation preclusion period, not the applicant's DSP eligibility. The assessment of the compensation payment by CARS was made on 30 September 2016, and it was crucial to distinguish whether this was a settlement or a judgment, as this distinction impacts the calculation of the preclusion period under the Act. The Tribunal's decision was to set aside the refusal and remit the matter for reconsideration, indicating that the preclusion period was not correctly applied or that special circumstances warranted its cancellation.