Ghorayeb and Department of Family and Community Services
[2001] AATA 459
•29 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 459
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2000/364
GENERAL ADMINISTRATIVE DIVISION )
Re GEORGE GHORAYEB
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms G Ettinger - Senior Member
Date29 May 2001
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision of the Delegate of the Secretary, Department of Family and Community Services dated 13 April 1999 as affirmed by the Authorised Review Officer on 13 December 1999 and the Social Security Appeals Tribunal on 4 February 2000, to impose a preclusion period and recover a charge of $5,536.31 arising from the compensation settlement of the Applicant, Mr George Ghorayeb.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Social Security - preclusion period - whether calculated correctly - whether special circumstances – applicant's complaints about the communication of his legal advisors with the Respondent – decision affirmed.
LEGISLATION
Social Security Act 1991 ss 1165, 1166 and 1184
CASES
Beadle v Director-General of Social Security (1985) 60 ALR 225
Colaiacolo and Secretary, Department of Social Security (AAT 2109, 24 April 1985)
Commonwealth v Daniels (1994) 33 ALD 111
Director-General of Social Services v Hales (1983) 47 ALR 281 at 321
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 Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690
Secretary, Department of Social Security v Banks (1990) 20 ALD 19
Secretary, Department of Social Security v Ellis (1997) 24 AAR 535
Secretary, Department of Social Security v Hulls (1991) 22 ALD 570
Secretary, Department of Family and Community Services v Smith (1991) 23 ALD 277
REASONS FOR DECISION
29 May 2001 Ms G Ettinger - Senior Member
The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Delegate of the Secretary, Department of Family and Community Services ("the Department") (T15) dated 13 April 1999 as affirmed by the Authorised Review Officer (T33) on 13 December 1999 and the Social Security Appeals Tribunal ("SSAT") (T2) on 4 February 2000, to impose a preclusion period and recover a charge of $5,536.31 arising from the compensation settlement of the Applicant, Mr George Ghorayeb.
The Applicant was self-represented and the Respondent Secretary, Department of Family and Community Services ("the Secretary") was represented by its advocate, Ms C Collis. The Tribunal was assisted by Mr M Mohammed, an interpreter in the Arabic language.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was:
·Whether the decision to impose a preclusion period commencing on 28 January 1998 until 27 October 1998 and recover a charge of $5,536.31 arising out of a workers' compensation settlement of $32,850. made to the Applicant on 18 March 1999, was the correct and preferable decision.
In coming to a decision, I was also required to consider:
·Whether the calculation of the preclusion period was correct pursuant to the evidence given regarding the dates of injury, and section 1165 of the Social Security Act 1991; and
·If so, whether there were special circumstances pursuant to section 1184 of the Social Security Act 1991 which applied to enable the Tribunal to treat the compensation payment made to the Applicant in whole or in part as not having been made to the Applicant.
BACKGROUND
It was undisputed that he had settled his compensation claim in the amount of $32,850. on 18 March 1999, and that a charge of $5,536.31 representing payments of Newstart Allowance for the period 28 January 1998 to 27 October 1998 had been deducted. A preclusion period had been calculated pursuant to section 1165 of the Act to take effect from 28 January 1998 to 27 October 1998.
At the SSAT Hearing, Mr Ghorayeb, through his solicitor, Ms M Coad of the Legal Aid Commission, did not dispute the calculation of the preclusion period but rather the decision of the Department to recover a charge in the amount of $5,536.31 from his compensation payments.
However, at the time of the Tribunal Hearing, Mr Ghorayeb expressed concerns as to the calculation of the preclusion period. As a result, this Tribunal adjourned the matter at the conclusion of the evidence on 15 August 2000, and gave the parties an opportunity to respond to the issue of the calculation of the preclusion period in writing or through further oral submissions. The Tribunal noted that Mr Ghorayeb was absent from Australia so that the matter was delayed until he was able, on his return, to advise whether he wished to make further submissions. On his return, Mr Ghorayeb failed to accept the offer to make further submissions either orally or in writing. Before reserving the matter, the Tribunal took a number of steps in order to ascertain whether Mr Ghorayeb wished to make oral/written submissions in reply including:
On 6 November 2000, the Tribunal sent a letter to the Applicant inviting him to make submissions in reply;
A follow-up letter was sent to the Applicant on 23 November 2000;
On 30 November 2000, the Tribunal was contacted by a friend of the Applicant who advised that Mr Ghorayeb had gone overseas urgently and requested that the matter remain open until his return in late January 2001;
The Tribunal tried to contact the Applicant by telephone on 2 and 6 February 2001 without success and sent a letter dated 6 February 2001 to the Applicant regarding submissions;
On 9 February 2001, the Tribunal was contacted by Mr R Gossayn, who advised that the Applicant would return to Australia on 19 February 2001;
The Tribunal contacted the Applicant by telephone on 27 February 2001 unsuccessfully and then again 1 March 2001. On this occasion Mr Ghorayeb advised that he had not received the submissions of the Respondent;
On 2 March 2001, the Tribunal forwarded the submissions of the Respondent and advised that if no reply was received by 19 March 2001, the matter would be closed. No correspondence was received from the Applicant, neither was further contact made by him.
I noted that an earlier charge had also been repaid which amounted to $1,371.24 for the preclusion period 23 September 1997 to 24 October 1997 calculated with regard to the injury of 15 July 1997. There was no argument regarding this charge before the Tribunal.
THE LEGISLATIVE FRAMEWORK
The relevant legislation in this matter was the Social Security Act 1991 ("the Act"), in particular sections 1165, 1166 and 1184.
Section 1165 of the Act outlines the circumstances where a compensation affected payment is not payable:
"1165(5) If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the new lump sum preclusion period is the period that:
(a) begins on the day after the last day of the periodic payment period; and
(b) ends after the number of weeks worked out under subsections (8) and (9).
Note: For periodic payments period see section 17.
Mr Ghorayeb received Newstart Allowance, a compensation affected payment for the period 22 September 1997 to 24 October 1997, and for the period 28 January 1998 to 27 October 1998. Section 1166 of the Act provides for the recovery of amounts received in respect of a compensation affected payment during the lump sum preclusion period:
"1166 Person may have to repay amount where both lump sum and payments
of compensation affected payment have been received [see Note 5]
(1) If:
(a) a person receives a lump sum compensation payment; and
(b)the person receives payments of a compensation affected payment for the lump sum preclusion period;
the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice."
Section 1184 of the Act provides that where "special circumstances" exist, the Secretary may disregard some payments as not having being made or not liable to be made:
"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.
…"
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following Exhibits:
ITEM DATE NAME
Letter from Welfare Rights Centre to the Administrative Appeals Tribunal 29 May 2000 Exhibit A1
T-Documents Exhibit R1
Respondent's Statement of Facts and Contentions 10 August 2000 Exhibit R2
Memorandum from Compensation Management Section – Centrelink to Ms C Collis headed "Estimate Requests" 4 August 2000 Exhibit R3
Printout of Payment History for Mrs Claude Ghorayeb (two pages) 9 August 2000 Exhibit R4
Printout of Payment History for Mr George Ghorayeb (one page) 9 August 2000 Exhibit R5
Document headed "Summary of Events" 15 August 2000 Exhibit R6
Oral evidence was given by the Applicant, Mr George Ghorayeb.
EVIDENCE OF THE APPLICANT - GEORGE GHORAYEB
Mr Ghorayeb, whose date of birth was shown on Centrelink records as 10 August 1956, gave oral evidence before the Tribunal. He said that he had been injured at work on three occasions, that is 15 December 1994, 23 January 1995 and 19 July 1997. Mr Ghorayeb said that he settled his workers compensation claim for $32,850 on 18 March 1999.
Mr Ghorayeb told the Tribunal that when his compensation claim was settled, he asked his solicitor whether he was required to pay back any monies and was told that the money was "clear to you". He said that the calculation for the preclusion period and the debt was explained to him, but he could not understand it properly.
The Tribunal noted that the dates given by the Applicant as the dates of his injuries, that is 15 December 1994, 23 January 1995 and 19 July 1997 differed from the dates recorded by the Respondent, and requested at the conclusion of the Hearing, that the Respondent ascertain the correct dates. The Respondent made an additional written submission to the Tribunal in which data by GIO (letter of 30 October 2000), was given which indicated that the Applicant had suffered a number of injuries for some of which compensation was paid as follows:
15 December 1994 - neck injury – compensation paid;
15 April 1995 – rib injury – compensation paid;
3 December 1996 – shoulder injury – compensation paid ($32,000. less amounts refunded to the Health Insurance Commission ("HIC") & Centrelink);
15 May 1997 – eyeball injury – no compensation paid;
13 July 1997 – lower back – no compensation paid;
15 July 1997 - lower back – no compensation paid; and
15 August 1997 – ear injury – no compensation paid.
I noted Mr Ghorayeb's evidence, as corroborated by the submission of the Welfare Rights Centre (Exhibit A1) that he was working and not receiving welfare payments for a period after the injuries of 1994 and 1996.
When shown the "Centrelink Estimate of Social Security Charge/Preclusion" form, which was faxed by solicitors representing him in his workers' compensation claim before the Compensation Court to the Respondent on 17 March 1999 (T9/24), Mr Ghorayeb said that he had not seen the form prior to this Hearing. When questioned about why they had only inserted the date of injury as 15 December 1994, Mr Ghorayeb said that the information supplied by his solicitors was incorrect, as he understood that he went to Court in respect of three separate injuries. In this respect, the Tribunal noted that Mr Ghorayeb was quite upset that only the injury which occurred on 15 December 1994, and not the others, was taken into account. He showed me a piece of paper he said came from his legal files, which indicated he had suffered several injuries.
When asked how he had spent his compensation monies, Mr Ghorayeb said that some of it went to reduce the mortgage on his house, leaving him with a balance of approximately $20,000. owing on the mortgage. Mr Ghorayeb said that he used about $8,000. to repair his leaking roof and to carry out other maintenance on his house.
Mr Ghorayeb said that prior to using some of his compensation monies to put towards his mortgage, he kept the cheque for approximately one and a half months, and asked the solicitor to take out all of the money that had to be repaid.
He said that the information he obtained from Legal Aid was that he was entitled to 100% of the compensation money, and that any recovered amounts by the Respondent should be returned to him because he had been injured three times.
When asked why he continued to spend his settlement money without establishing how the preclusion period would affect him, Mr Ghorayeb said that he had to spend it as his house was leaking. He said that he had babies at home, and had to protect them from everything.
Of his current condition, Mr Ghorayeb said that he continues to have problems with his neck, shoulder and lower back. He also said that he has very bad migraines and that he has lost the feeling in his fingers. Mr Ghorayeb also said that he is required to take medicine for an ulcer in his stomach, that he may have to undergo surgery, and that his wife was hospitalised for problems with her glands, which were being investigated.
SUBMISSIONS AND CONCLUSIONS
I have to take into account all the evidence, case law, legislation and submissions to make the correct and preferable decision regarding the preclusion period imposed on Mr Ghorayeb for the period from 28 January 1998 to 27 October 1998, and to ascertain whether the charge of $5,536.31 representing payments of Newstart Allowance for the period 3 February 1998 to 27 October 1998 was correctly recovered. I must also consider whether "special circumstances" exist in this case so that the whole or part of the compensation payment can be treated as not having been made or not liable to be made.
In brief, from the evidence before me, I have noted that the Applicant suffered a number of injuries at work dating apparently from 1994 to 1999, and culminating in a compensation settlement of $32,850 on 18 March 1999.
I noted that the dates of injury given by the Applicant, that is 15 December 1994, 23 January 1995 and 19 July 1997 differed from the dates recorded by the Respondent, and requested at the conclusion of the evidence at the Hearing, that the Respondent ascertain the correct dates. The Respondent made an additional submission to the Tribunal in which data by GIO (letter of 30 October 2000), was appended which indicated that the Applicant had suffered a number of injuries for some of which compensation was paid as follows:
15 December 1994 - neck injury – compensation paid;
15 April 1995 – rib injury – compensation paid;
3 December 1996 – shoulder injury – compensation paid ($32,000. less amounts refunded to HIC & Centrelink);
15 May 1997 – eyeball injury – no compensation paid;
13 July 1997 – lower back – no compensation paid;
15 July 1997 - lower back – no compensation paid; and
15 August 1997 – ear injury – no compensation paid.
I noted that the Social Security Appeals Tribunal ("the SSAT") made a finding that the Applicant did not oppose the method of calculation of the amount regarding the preclusion period. The evidence before me was that Mr Ghorayeb did not know how it was calculated, and was annoyed because he had understood from what his legal representatives had told him, that the amount of compensation agreed in the settlement at the Compensation Court (T18) was the net amount he would receive. He also expected that the settlement had encompassed the three dates of his injuries as noted from his evidence above.
Instead, the Short Minutes of Order of the Compensation Court recorded:
"Amend para 1 'Nature and conditions of employment from 29/11/87 to 22/2/97 including repetitive lifting, bending, carrying, climbing, prolonged neck flexion & extension.' Amend para 2 by adding 'Head, whole of spine, left shoulder, arms, hips, chest, sexual organs, legs, industrial deafness and associated functional overlay, anxiety state and/or depression.'""
The amount paid was $32,850.
WHETHER THE CALCULATION OF THE PRECLUSION PERIOD WAS CORRECT PURSUANT TO SECTION 1165 OF THE SOCIAL SECURITY ACT 1991
Section 1165(5) of the Act outlines the formula for calculating preclusion periods where periodic compensation payments are made in respect of lost earnings:
"1165(5) If periodic compensation payments are made in respect of the lost earnings or lost earning capacity, the new lump sum preclusion period is the period that:
(a) begins on the day after the last day of the periodic payment period; and
(b) ends after the number of weeks worked out under subsections (8) and (9).
Note: For periodic payments period see section 17.
…"I was mindful that Ms Coad of the Welfare Rights Centre prepared a submission for Mr Ghorayeb prior to his preliminary conference dated 29 May 2000, which was before the Tribunal as Exhibit A1. Ms Coad stated, in respect of break up of the compensation monies, that:
"This settlement was in respect of three different injuries sustained by Mr Ghorayeb. These injuries occurred on 15 December 1994, 3 December 1996 and 15 July 1997. Following the first two injuries Mr Ghorayeb returned to work and hence was self supporting.
…
We submit that as Mr Ghorayeb was self supporting following his first two injuries, the entire amount of his compensation settlement should not be used to calculate the preclusion period as he was not receiving a Social Security payment during this time. It would be reasonable that one third of the compensation amount be used to calculate the preclusion period, hence reducing the charge amount recovered from Mr Ghorayeb."I was mindful that the Applicant received Newstart Allowance for the period 22 September 1997 to 24 October 1997 and that the amount of $1371.24 was recovered from the compensation settlement. This was not discussed further at the Tribunal and is noted here for the sake of completeness only.
I was mindful that the further amount deducted from the compensation settlement which the Applicant received representing Newstart Allowance for the period 3 February 1998 to 27 October 1998 was $5,536.31, for which Centrelink raised a debt payable to the Commonwealth on 13 April 1999. At T15, the compensation payment was recorded to have been for the shoulder injury of 3 December 1996.
The Respondent submitted that the debt was incorrectly calculated at $5,536.31 and calculated that the debt should have been as outlined in paragraph 6 of the "Respondent's Additional Submission in respect of the Injuries Sustained by the Applicant" dated 2 November 2000:
"The applicant was paid a compensation affected payment – newstart allowance – during the period 3 February 1998 to 27 October 1998. He was also paid compensation for this period. The amount of compensation affected payment paid during this period was $5,597.31.
The amount was calculated as follows:
3/2/98-28/4/98 = $1769.61 basic benefit + $16.20 pharmaceutical allowance = $1,785.81 (see attachment B1);
29/4/98-15/9/98 = $292.80 @ 10 paydays = $2928.
16/9/98-27/10/98 = $294.50 @ 3 paydays = $883.50$1785.81 + $2928. + $883.50 = $5597.31 (attachments E,F and G)"
Given the small amount of difference in monetary terms, and the prejudice to the Applicant to now recover the difference, I do not intend to disturb the payments made, save for considering whether "special circumstances" exist to treat the whole or part of the compensation payment as not having been made or not liable to be made.
In any case I find that section 1165 of the Act has been correctly applied in that the last day Mr Ghorayeb received workers' compensation payment was 27 January 1998 (the preclusion period commencing 28 January 1998). He commenced receiving Newstart Allowance from 3 February 1998 which was paid until 27 October 1998. For purposes of this matter, I shall take it that the $5,536.31 was the correct amount recovered unless "special circumstances" applied.
WHETHER SPECIAL CIRCUMSTANCES CAN BE FOUND PURSUANT TO SECTION 1184 OF THE SOCIAL SECURITY ACT 1991 TO TREAT THE WHOLE OR PART OF THE COMPENSATION PAYMENT MADE TO THE APPLICANT AS NOT HAVING BEEN, OR NOT LIABLE TO BE MADESection 1184 of the Act provides a discretion for the consideration of "special circumstances", which may result in the Secretary treating a whole or part of a compensation payment as not having been made or not liable to be made and thereby reducing a preclusion period. There is quite a deal of case law on this area and the discretion is exercised by taking into account all the circumstances of the case, an aggregate of all the circumstances of the case.
"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.
…"
I was mindful that in connection with his settlement on 18 March 1999, Mr Ghorayeb's legal representatives contacted Centrelink on 17 March 1999, for an estimate of the social security charge or preclusion period that applied. The figure given as an estimate of the settlement was $40,000 (T9). The date of the accident was given as 15 December 1994. Centrelink advised on the data before it given by the legal advisors, that there would be no charge and that a preclusion period dating from 15 December 1994 to conclude 15 November 1995 would apply (T10). What transpired was that in a document of GIO Australia dated 6 April 1999 regarding the amount of settlement (T11), the date of accident nominated was 3 December 1996, although in the Short Minutes of Order (T18), the application was annotated to be for nature and conditions of employment from 29 November 1987 to 22 February 1997.
I was mindful that the Applicant received Newstart Allowance for the period from 3 February 1998 to 27 October 1998. Newstart Allowance is, pursuant to section 17(1) a compensation affected payment, and unless "special circumstances" can be found to justify making a decision that all or part of the compensation payment should be found not to have been made, then all or part of the preclusion period during which a Newstart Allowance cannot be paid, will remain.
I find, relying on authority in Re Beadleand Director General of Social Security (1984) 6 ALD 1, Re Krzywakand Secretary, Department of Social Security (1988) 15 ALD 690, Re Ivovic and Director-General of Social Services (1981) 3 ALN N95, and Colaiacolo and Secretary, Department of Social Security (AAT 2109, 24 April 1985) that unless the circumstances of Mr Ghorayeb's case are so "unusual, uncommon or exceptional" that I would consider the strict application of the preclusion period would be "unjust, unreasonable or otherwise inappropriate", then I am precluded from exercising the discretion to hold that all or part of the compensation should be found not to have been made.
I then turned to consider the totality of the circumstances surrounding Mr Ghorayeb's claim that "special circumstances" should be found in his case to disregard all or some of his compensation payment.
I was mindful of Mr Ghorayeb's financial circumstances which is one criterion for me to assess in relation to "special circumstances". Mr Ghorayeb owns a house and has used the compensation payments to reduce the mortgage so that approximately $20,000. remains outstanding, and he told me he spent $8,000. on roof repairs. Mr Ghorayeb has children of his present marriage and two other children to whose upkeep he contributes. However, he told me he has no other debts and that both he and the family receive other benefits.
I am mindful that the rationale for a preclusion period is to prevent "double dipping" or being paid a benefit simultaneously with a compensation benefit. The Act provides for calculation of a preclusion period taking into account that a part at least of a compensation settlement is for future economic loss, and that the money is paid to compensate the person for injury and so that he or she can use it for a calculated period into the future for living expenses.
There is no doubt that Mr Ghorayeb has suffered injury and that he is in straitened circumstances. However that does not distinguish him from a whole group of people who are recipients of compensation payments and of social security benefits. That does not of itself create a "special circumstance".
I noted that In Director-General of Social Services v Hales (1983) 47 ALR 281 at 321 Sheppard J said:
"The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common; they will be impecunious and in straitened circumstances."
I make the finding with regard to the financial aspects of Mr Ghorayeb's situation, that his financial circumstances do not constitute "special circumstances" within the terms of section 1184(1) of the Act.
I turned then to consider Mr Ghorayeb's and his family's health issues. It was clear from the medical evidence and that of the Applicant that neither he nor his wife are in good health. However there was no item of a medical nature so compelling that I could find it to be so unusual, uncommon or exceptional as to qualify as a "special circumstance".
The only other area I considered separately was the advice he received and dealings by Mr Ghorayeb with his legal representatives, which may have disadvantaged him. Incorrect legal advice can be found to be a "special circumstance" but not generally in isolation, and I have not found either the financial aspects or health issues related to Mr Ghorayeb to constitute "special circumstances". Mr Ghorayeb has remedies he can exercise against any poor legal advice he has had from his legal advisors, which he considers has disadvantaged him.
In considering the case law, I noted that Ms Coad referred me to Secretary, Department of Family and Community Services v Smith (1991) 23 ALD 277 and Commonwealth v Daniels (1994) 33 ALD 111 both cases relevant to the consideration of "special circumstances".
I noted also that Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464 had been decided pursuant to the 1947 Act and that Deputy President Todd had said at paragraph 24:
"In the various decisions which turn on this question, the Tribunal has consistently searched for circumstances which are 'unusual, uncommon or exceptional' to ascertain whether strict application of s 153 is 'unjust unreasonable or otherwise inappropriate'...It appears that the useful guidelines for the exercise of the discretion set out in Re Krzywak (1988) 15 ALD 690 have been followed by the Tribunal in later decisions. The factors to be considered are thus financial hardship; legislative changes; incorrect legal advice; and ill health…"
Deputy President Todd added at paragraph 25:
"Ultimately it is not just a matter of simply taking each of the factors discussed above separately, important as it is to do so. It is essential to keep an overview of the whole matter. If it were simply a matter of feeling sympathy for a battling working man who has had more than his share of trouble I would have no difficulty in finding for the respondent in this case. But given in particular the extent of his assets, especially the Livingstone property, I cannot do so."
I noted that in Beadle v Director-General of Social Security (1985) 60 ALR 225, the Federal Court defined "special circumstances" as being those which are "unusual, uncommon or exceptional" and this has been reinforced in the following cases that have been decided since Beadle (supra) including: Secretary, Department of Social Security v Hulls (1991) 22 ALD 570, Smith (supra), Daniels (supra), Secretary, Department of Social Security v Banks (1990) 20 ALD 19 and Secretary, Department of Social Security v Ellis (1997) 24 AAR 535.
In Beadle (supra), the Federal Court, in examining "special circumstances" within the terms of section 102(1) of the1947 Act said:
"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."
In Re Beadle (supra), the Tribunal said that:
"The question …..was whether, when the relevant circumstances of the applicant are looked at in their entirety, they may fairly be described as unusual, uncommon or exceptional so as to warrant payment of the allowance earlier than the date from which it would ordinarily be paid." [emphasis added]
This passage was affirmed by the Full Court of the Federal Court in Beadle (supra) where the Court at 230, said:
"While we would place less emphasis on one dictionary definition of 'special', we are in broad agreement with the approach of the Tribunal and are in agreement with its conclusion."
I respectfully agree with the findings in Beadle (supra) and Hales (supra) that financial hardship is a circumstance of almost every person who is obliged to rely on income support.
However no evidence has been given and no submissions have been made with regard to Mr Ghorayeb's circumstances to convince me that the correct and preferable decision would be, in applying the law regarding "special circumstances", to treat all or part of the compensation payment as not having been made or not liable to be made pursuant to section 1184 of the Act. There have been no legislative changes affecting his situation. There has been nothing so unusual, uncommon or exceptional in viewing the totality of circumstances in this case so as to warrant applying the discretion regarding "special circumstances" in favour of Mr Ghorayeb's case.
Therefore the charge of $5,361.31 as originally calculated to repay Newstart Allowance received by Mr Ghorayeb for the period 3 February 1998 to 27 October 1998 remains, as does the preclusion period as calculated.
DECISIONThe Administrative Appeals Tribunal affirms the decision of the Delegate of the Secretary, Department of Family and Community Services dated 13 April 1999 as affirmed by the Authorised Review Officer on 13 December 1999 and the Social Security Appeals Tribunal on 4 February 2000, to impose a preclusion period and recover a charge of $5,536.31 arising from the compensation settlement of the Applicant, Mr George Ghorayeb.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 15 August 2000
Written Submissions: Closed 19 March 2001
Date of Decision 29 May 2001
Solicitor for the Applicant Self-Represented
Solicitor for the Respondent Ms C Collis
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Preclusion Periods
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Calculation of Compensation
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Special Circumstances
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