GTPZ and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 328
•3 January 2025
GTPZ AND SECRETARY, DEPARTMENT OF SOCIAL SERVICES (SOCIAL SECURITY SECOND REVIEW) [2025] ARTA 328 (3 JANUARY 2025)
ReviewNumber: 2023/9057, 2023/9073
Applicant/s: GTPZ
Respondent: Secretary, Department of Social Services
Tribunal Number: 2023/9057 and 2023/9073
Tribunal:Senior Member T Simon (second review)
Place:Sydney
Date:3 January 2025
Decision:The Tribunal affirms the decision under review.
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
.......................[SGD].................................................
Senior Member T Simon
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension and Newstart Allowance - lump sum preclusion period – whether special circumstances exist – compensation lump sum – no evidence that special circumstances exist – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth)
SocialSecurity Act 1991 (Cth)
CASES
Re Secretary, Department of Social Security and Winterbotham [1990] AATA 808
Groth and Secretary, Department of Social Security [1995] FCA1708
Statement of Reasons
On 1 December 2023 GTPZ lodged an application with the Administrative Appeals Tribunal for second review of a Tribunal decision which had been made on 16 November 2023. The Tribunal had affirmed a decision of Services Australia – Centrelink (Centrelink), that recoverable compensation charge of $406,409.63 correctly assessed and that the circumstances of the case did not warrant exercising the discretion to disregard the compensation charges under section 1184K of the SocialSecurity Act 1991.
In 2018, Mr GTPZ was awarded a payment of compensation by the Department of Veteran Affairs in respect of injuries he received during his time in the Australian army. That compensation payment included retrospective payments for the period from 28 May 1988 to 30 June 2018. The recoverable compensation charge arises out of payments for Newstart allowance and a disability support pension that had previously been made by Centrelink, to Mr GTPZ over the same period. Centrelink submits that the circumstances of Mr GTPZ’s case are not sufficiently special to warrant that the compensation charge not be recovered.
Mr GTPZ submits that the compensation charge should never have been recovered by Centrelink, because he was entitled to the Centrelink payments. He also submits that given the difficulties he has faced in his life and in the army, as well as his past and present medical and financial circumstances, there are special circumstances in the case and the amount of $406,409.63 should not be recovered.
The hearing was held on 14 November 2024 and both parties appeared at the hearing. Mr GTPZ appeared in person and gave sworn oral evidence. Centrelink was legally represented. Mr GTPZ’s partner, gave evidence by telephone and through an interpreter. The hearing was held in over an entire day.
When the hearing recommenced in the afternoon for the parties to make closing submissions, Mr GTPZ requested that his brother-in-law join the hearing by telephone. When asked about the reason that his brother-in-law would attending, Mr GTPZ stated that that he did not intend for his brother-in-law to be a witness but rather he wanted him to say a few words about what he thought about the situation. Pursuant to s 53 of the Administrative Review Tribunal Act 2024, the Tribunal may determine the scope of the review by limiting the evidence that it considers. Mr GTPZ and his partner had given extensive evidence regarding their circumstances at the hearing. Mr GTPZ could not identify the relevance of his brother-in-law’s evidence and on that basis the Tribunal did not call Mr GTPZ’s brother-in-law to join the hearing.
At the outset of the hearing the Tribunal provided an index of the documents filed by the parties and confirmed that they were the documents that each party had provided and which they would be relying on as part of their respective evidence. Mr GTPZ provided a further letter, dated 23 September 2021 from Dr CB, since that index was prepared. Mr GTPZ continued to send material after the hearing. The Tribunal sought the views of Centrelink in relation whether to allow that material to be considered. Centrelink did not object to consideration of the documents but sought to make further written submissions regarding the documents. Those submissions were provided to the Tribunal on 10 December 2024. The Tribunal has considered the further supplementary materials provided by Mr GTPZ after the hearing and Centrelink’s written submissions regarding them.
After Mr GTPZ filed the application for second review, the Tribunal assigned the application two file numbers. File 2023/5057 relates to the recovery of the Newstart allowance debt and file 2023/9073 relates to recovery of the disability support pension debt. This decision and these reasons relate to both file numbers.
From 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal and under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the Administrative Appeals Tribunal that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal.
Pursuant to s 131D of the Administrative Review Tribunal Act 2024 a person whose interests are affected by an ART social services decision may apply to the Tribunal for second review of the decision. An ART social services decision includes an eligible social services decision which has been affirmed by the Tribunal; s 131D(3)(a). An eligible social services decision includes a decision made under the Social Security Act; s 131C(g).
The decision made by the Tribunal on 16 November 2023 is an eligible social services decision and Mr GTPZ’s interest are affected by the decision.
Having considered the evidence and submissions of the parties the Tribunal has decided to affirm the Tribunal decision.
WAS THERE A RECOVERABLE COMPENSATION CHARGE AMOUNT OF $406,409.63 FOR THE PERIOD 25 JUNE 1990 TO 18 JULY 2018 AND IF SO, WAS IT CORRECTLY ASSESSED?
In 1988, when Mr GTPZ was 17 years old, he joined the Australian Army. Following discharge from the army, Mr GTPZ made a claim for compensation from the Department of Veteran Affairs, based on having been abused and bullied while he was in the army.
Centrelink records note that on 21 September 2018, the Department of Veteran Affairs notified Centrelink through the completion of a ‘Compensation Advice of Periodic Payments’ form that the date from which compensation was being paid was 20 May 1988 and ongoing.[1] On 18 October 2018, the Department of Veteran Affairs notified Centrelink that Mr GTPZ would be paid compensation in the amount of $838,861.29 for the period 28 May 1988 to 9 October 2017.[2]
[1] T1, p 75.
[2] T1, p 785.
Part 3.14 of Chapter 3 of the Social Security Act deals with compensation recovery. The scheme provides a mechanism for certain income support payments (referred to as ‘compensation affected payments’) to be repaid because of receipt of compensation by the person. Section 17 of the Social Security Act defines 'compensation affected payment' to include disability support pension and a social security benefit (relevantly that includes a job seeker payment previously Newstart allowance payments).
Section 1169 of the Social Security Act sets out the general rule regarding preclusion periods. If a person receives a compensation affected payment and the person receives a lump sum compensation payment, then then compensation affected payment is not payable to the person in the lump sum preclusion period. Relevantly, that will require the repayment of some, or all a person’s compensation affected payment. Section 1184 of the Social Security Act permits Centrelink to send a recovery notice to a compensation payer making them liable to pay the Commonwealth the amount specified in the notice.
Mr GTPZ received a Newstart allowance and disability support pension over the period from 25 June 1990 to 18 July 2018. The compensation awarded to Mr GTPZ from the Department of Veteran Affairs affected his Newstart allowance and disability support pension.
From 25 June 1990 to 18 July 2018, Mr GTPZ has received a total of $406,409.63 in Newstart allowance and disability support pension payments as follows:
-From 25 June 1990 to 19 March 2002, Mr GTPZ received $84,185.31 in Newstart Allowance[3] and from 20 March 2002 to 9 October 2017, Mr GTPZ received a disability support pension totalling $301,756.04.[4]
-From 10 October 2017 to 18 July 2018, Mr GTPZ received a disability support pension totalling $20,468.28.[5]
[3] T1, p 670.
[4] T1, p 670.
[5] T1, p791.
The amount compensation charge of $406,409.63 was recovered by Centrelink prior to Mr GTPZ receiving the lump sum compensation payment from the Department of Veterans. The Tribunal finds that the charge of $406,409.63, being the total sum of compensation affected payments made during the lump sum preclusion period 25 June 1990 to 18 July 2018, was correctly assessed and recoverable by Centrelink.
ARE THERE SPECIAL CIRCUMSTANCES WHICH MAKE IT APPROPRIATE TO TREAT SOME, OR ALL, OF THE LUMP SUM PAYMENT AS NOT HAVING BEEN MADE?
Section 1184K of the Social Security Act provides that the whole or part of a compensation payment may be treated as not having been made if it is appropriate to do so in the special circumstances of the case. In effect, that allows the preclusion period to be wholly or partly reduced.
The authorised review officer for Centrelink, who conducted the initial review as to whether Mr GTPZ should repay the debts, considered whether the debt should be waived pursuant to section 1237A and section 1237AAD of the Social Security Act. The Tribunal, in its first review decision, instead considered whether the compensation debt could be disregarded under section 1184K. At the hearing, Centrelink agreed that the relevant provision for consideration was section 1184K.
Section 1184K is specific to compensation recovery and the Tribunal is of the view that section 1184K, and not section 1237AAD is the relevant provision to be considered as to whether the compensation payment can be disregarded.
After the hearing Mr GTPZ made written submissions. The Tribunal sets the submissions out in full because it summarises Mr GTPZ’s position as to why he submits there are special circumstances which make it appropriate to treat some, or all, of the lump sum payment as not having been made in his case:
Member, they are clearly missing the point entirely on everything I should never of been forced into a situation to rely on any Government benefits but the fact is the suffering I have had to endure has left me with no other choice as the affect on my capacity mentally to retain regular employment was robbed from me as I became to unwell to work to the impact of chronic and severe mental illness which in affect stopped me from being able to live any kind of normal
Life. It made me become a homeless poor man and no matter what they say the are extremely wrong because they haven’t had to experience and live my life which had been incredibly difficult on me both financially and mentally these events have had a long term and profound affect on my life and my happiness as a human being in this world have been completely destroyed by the bullies I unfortunately had the terrible and bad experiences of meeting which sadly changed the dynamics of my future life and current life I have been significantly traumatised which in effect left me somewhat feeling very depressed anxious and very very stressed about beyond comprehension. None of this is my fault and the medic evidence alone shows and proves that my entire life has been the most difficult for me to try and endure. They are completely wrong about everything they are saying about me and don’t have the experience or understanding to even begin to understand the suffering I have had to experience and live with it has taken a huge toll on my health including my mind as all this stress has contributed me to suffering from very poorly controlled blood sugar levels and developing chronic type two diabetes in which now the eye Doctor’s recently advised me at [a hospital] is that I am gradually going blind due to developing Glaucoma a serious side affect from the Diabetes Control. I also have to have cataract surgery and I have been placed on the 90 day wait list for more urgent eye surgery due to my diminished eye sight. Failure to acknowledge my Medical evidence in support of my disadvantaged life and chronic mental health would be a serious negligence to myself there is so much evidence to support the argument that I in fact have been left severely damaged impaired mentally by my chronic mental health issues which I am still receiving treatment for and have been prescribed by Dr A to take 100 mg of Sertraline, although don’t like to take medication as it also makes you feel sometimes more unwell. Centrelink are wrong in their assessment of my long term acute and chronic mental health issues as PTSD is a serious mental health disease and is is also in the DSM 5 manual guide for mental health care. Any assumption that I’ve not been experiencing extreme and exceptional circumstances is a completely and ridiculous assumption to make.
May I remind you these people are not trained Medical Psychiatrists Doctors of the mind. So they are actually unqualified to make that call or judgement. That takes years of study and professional training by going to a University to receive their accreditation. They are the only people who can observe behaviour and make a Diagnosis. Not lawyers social workers nurses police officers soldiers or any other person in society has the experience and expertise to say he or she is suffering from a mental illness and that is exactly why DVA had me assessed by a psychiatrist not one but two concluded and they were Dr DS, Psychiatrist and Dr CB, who works at [a Hospital in Sydney’s Inner West] both concluded that in fact GTPZ is suffering from PTSD and it is severe, or acute.
So I lived my life since leaving the Army with PTSD a serious debilitating mental health condition which in itself is a recognised disability. What I am trying to have you understand and acknowledge is that suffering from this illness as well as my other Diagnosis Chronic anxiety Depression and adjustment mood disorder are very complex health conditions which are associated with exceptional circumstances and that’s not to mention all the other impacts that had had on me as a young person leading up until now aged a 54-year-old man.
The notion that they are arguing is completely and utterly absurd which borders on being ridiculous if you were to ask anyone of these professionals they would tell your clearly of course GTPZ has not only been severely damaged his been affected so badly by his mental health issues it’s directly impacted him on his whole life that’s why DVA ask what’s the WPI ( whole person Impairment ) mine us higher then 50 % which is not only high it’s extremely high. I hope this letter helps you to understand me as an individual a person who suffers daily with the long term affects of PTSD and chronic anxiety. I am someone who has become a vulnerable person and I believe my rights are being exploited by Human Services Centrelink.
Mr GTPZs treatment and time in the army
Mr GTPZ was in permanent service in the army and was subject to abuse and bullying while in the army. A report completed by a consultant psychiatrist dated 17 May 2019, provides a comprehensive history regarding Mr GTPZ’s time in the army.[6] It is consistent with what Mr GTPZ described to the Tribunal at the hearing.
[6] A24.
Mr GTPZ joined the army in 1988 for a total period of four months from 3 February 1988 to 27 May 1988. He was 17 years old at the time. During training he became involved in a scuffle with another recruit and injured his right hand. He had a fracture which required plaster and a period of recovery. He was transferred to a new platoon. He reported that he was bullied over a period of four months. He described verbal and physical abuse. He described an incident where he and others were asked to stand on a table naked and an officer made a comment, “what have you been up to, you’ve got blood coming out of your ass.” Mr GTPZ recounted that incident at the hearing and stated he felt very humiliated by the incident. Mr GTPZ was discharged from the army in 1988. Mr GTPZ attributes his subsequent chronic symptoms of depression to the events that occurred in his four-month service in the army.
Mr GTPZ drew the Tribunal’s attention to a letter dated 9 October 2016 from Colonel Hocking on behalf of the Australian Army. Colonel Hocking relevantly states:
Right upfront, I want to formally acknowledge the dreadful and unacceptable experiences you were subject to as a soldier in our Army and the damage this has caused in your life since then. For this I offer my unreserved apology and assure you that your courage to speak out will ensure that this never happens to soldiers in the future. This is a significant and enduring contribution to our military capability for which you should be very proud.
At hearing Mr GTPZ explained he often felt angry, and he described incidents in which he would lose his temper and panicked. In written submissions to the Tribunal, Mr GTPZ stated that it had always been his dream and ambition to be in the Australian Army. He wanted to pursue a career in the army long term because he wanted to follow in his grandfather’s footsteps. His grandfather had served in the Australian Imperial Forces. He states that the impact of the trauma has left him with post-traumatic stress disorder, chronic anxiety, and adjustment mood disorder. He has lost self-confidence and self-esteem and has frequent nightmares. He has panic attacks, especially in public places and feels less trust in people.
The Tribunal accepts that Mr GTPZ was bullied in his short time in the army and that has had a significant impact on him and resulted in him, having amongst other things, post-traumatic stress disorder. Mr GTPZ has been unable to maintain stable employment since the discharge. The Tribunal also accepts that Mr GTPZ’s time in the army has left him angry and has affected many areas of his life, including his relationships and his ability to maintain housing and work.
Mr GTPZ’s childhood circumstances
Mr GTPZ has provided a statement from Ms CR.[7] Mr GTPZ was placed in foster care as a child with Ms R’s family. Ms R describes Mr GTPZ’s treatment by her father while he was in foster care. She states that her father was especially cruel to Mr GTPZ and describes how her father physically and verbally attacked Mr GTPZ.
[7] A1.
In the documents provided by Mr GTPZ after the hearing he has included a letter dated 13 September 2019 from Dr DS, a consultant psychiatrist. Dr S relevantly states:
In relation to GTPZ’s mental health, I have formed the impression that GTPZ suffers from various sequelae related to the trauma’s he experienced during his childhood, adolescence and early adulthood. He has provided a plausible and detailed account of traumatic separation from his biological parents at age 3 and inadequate care at an Orphanage. He was subsequently moved from there to a foster family which failed abysmally to provide for his needs. Many of GTPZ's current symptoms of Post Traumatic Stress Disorder relate to the emotional and physical abuse he experienced at the hands of his foster parents over a prolonged period of time.
The Tribunal accepts that Mr GTPZ has had difficult childhood circumstances. Mr GTPZ confirmed at hearing that he has received a payment from the Sisters of Mercy and the Department of Communities, of approximately $90,000 related to his treatment at the orphanage. That payment was received after his lump sum compensation damages were received from the Department of Veteran Affairs.
Mr GTPZ’s current family and financial circumstances
Mr GTPZ submits that he currently has a family, including a newborn baby girl that he is caring for. He continues to provide ongoing support to his family. He submits that he is setting his home up to provide a caring and safe environment for his family and is working on improving his mental and physical health.
Mr GTPZ previously lived with his partner. They are presently engaged and plan to be married in the future. Mr GTPZ explained at the hearing that since the birth of their daughter, his partner is living elsewhere with a friend to assist her. She has 2 other daughters who Mr GTPZ regards as his stepchildren. His partner also has another son who Mr GTPZ believes is his biological son and who has been removed from the couple’s care. DNA testing indicates that the son is not Mr GTPZ’s biological child which Mr GTPZ disputes. Mr GTPZ is planning to organise further DNA testing to demonstrate that the child is his biological son.
His partner gave evidence at the hearing and stated that she thought it was unfair that Mr GTPZ had not been able to retain the recoverable compensation amount because Mr GTPZ was unemployed. She stated that they required the money to cover their living expenses while they are looking for work. She stated that when they learnt that Mr GTPZ was receiving the compensation from the Department of Veteran affairs, they started planning for the future of their kids and they were hoping to have a better life in the future. When the compensation amount was recovered, Mr GTPZ got really stressed and was very disappointed. The situation added to Mr GTPZ’s existing conditions, including his diabetes. His partner stated that the recovery of the compensation charge was unfair because Mr GTPZ received the compensation from the army because of his willingness to help his country. His partner stated that allowing them to keep the money recovered by Centrelink would help alleviate the difficulties and hardships that the family were presently facing.
His partner explained that even though her eldest daughter was 19 years old, the children still need her assistance. Her eldest daughter had an accident over a year ago and she now has a scar on her face starting from her forehead down to her chin. He daughter also lost four or five teeth and has mental health issues. His partner stated that they needed the money for her daughter’s scar treatment, her dental treatment, and her general self-esteem. The cost of the dental treatment would be over $20,000 and the scar treatment was ongoing and would require repeated treatments.
Initially, Mr GTPZ had indicated that he only received a balance of about $67,000 of the $838,000 lump sum amount which he was awarded by the Department of Veteran Affairs. That was after amounts were deducted for the compensation recovery charges and a further amount was deducted by the Australian Taxation Office. However, Mr GTPZ confirmed in cross examination that after he made representation to his local parliamentary Member and as a result, he had received about $257,000 back from the Australian Taxation Office. In effect that meant that Mr GTPZ retained about $324,000 from the compensation amount paid to him by the Department of Veteran affairs.
Since Mr GTPZ received the lump sum payment in 2018 from the Department of Veteran affairs and the subsequent lump sum payments of $90,000 in October 2019 from the Sisters of Mercy and the Department of Communities, Mr GTPZ has also received a further payment of $270,000 from Telstra in December 2023.[8] That was as a result of an injury he sustained after a fall. In cross examination, Mr GTPZ explained that he had also spent those amounts since receiving them.
[8] T2, p2 – p16
Mr GTPZ stated that he presently lives in social housing and that he is very unhappy with his current housing as it is not safe and there are issues with other residents. He does not feel that the accommodation is safe for his family. Mr GTPZ states his accommodation has previously been unstable and he has experienced periods of homelessness.
Mr GTPZ stated that he had hoped to buy a house with the lump sum amount he received in compensation from the Department of Veteran Affairs, but he has had to help his partner’s family in Vietnam. Her parents became sick after COVID, and she asked Mr GTPZ to help with their medical costs and he did. Mr GTPZ also gave money to his partners eldest daughter towards the end of her schooling and after she was in the accident. Mr GTPZ confirmed that he bought his partners’ eldest daughter a new iPhone and set up a phone plan for her after the accident. The eldest daughter had not been able to get Centrelink for the last two and a half years because she had no identification records and so Mr GTPZ helped his partner and her daughter get identification records by paying for his partner and her daughter’s passports. He stated he had paid about $20,000 a year supporting his partner’s eldest daughter.
Mr GTPZ indicated he thinks he spent about $100,000 on his family and stated he had been very generous to his partners family, even when two of the children were not in his care. After the tax office repaid Mr GTPZ, he gave his partner $50,000. Mr GTPZ stated that he never asked his partner what she did with that money, but she does not have a lot of money now. Mr GTPZ also decided to buy himself a luxury car because he never had a nice car. He stated he bought a Volkswagen for $40,000. However, he did not have it for more than 48 hours when it was damaged by hail and the repair was not covered by insurance. Mr GTPZ explained that he was devastated after that happened and later sold the car back to a dealership for $20,000. Mr GTPZ had also bought another Volkswagen for $20,000 and that is the car he currently owns.
Mr GTPZ also explained that he had been on some holidays recently. He went on holiday to the United States at the beginning of 2024, around the time his child was born. The holiday was for about 8 weeks. Mr GTPZ explained he had not been on a holiday for a long time. He also explained that he wanted to go to America to experience the cowboy lifestyle and he travelled to Montana. He admitted that it may have been a mistake because he went when the Australian dollar was low and spent more than he thought he would. Mr GTPZ thinks he spent about $35,000 on the holiday. He stated he hired a Jeep Renegade, which turned out to be a bad deal and travelled around Northwest and Central America. He went to Colorado and tried snow skiing for the first time. He spent money on ski classes, which cost him a few hundred dollars and he had to buy a helmet to ski on his own. Mr GTPZ also stopped over at Honolulu where he was overcharged on his credit card. He disputed the transaction and got some of the money back. He stated he had initially lost about $3,000 and managed to recover about $1,500.
Mr GTPZ also explained that on another occasion he had taken his partner and her daughter to the Gold Coast for a holiday. They stayed in the Hilton for 5 or 6 nights and travelled there in the hail damaged car. He also stayed at the Hilton in Sydney around Christmas time.
Around the time that the tax office returned the money, in about 2022, Mr GTPZ also took a holiday with his partner to attend the Melbourne Cup. Mr GTPZ bought her a Melbourne Cup outfit valued at about $2,000 and he gave her some money to spend on the day.
Mr GTPZ also explained that he went to Melbourne in 2024 for a footy trip and stayed at the Hilton where he has membership. On returning from Melbourne, his vehicle needed major repairs and GTPZ described issues he had with his mechanic.
Mr GTPZ also explained that he had credit card debts. Recently, Mr GTPZ had to pay his credit card debt of $2,500 to Westpac Bank. He also has a Commonwealth Bank credit card with a maximum credit limit of $3,000. He stated at the hearing that both credit cards have again reached their total credit limit.
Mr GTPZ also has various other short-term loans. He explained that about 15 months ago he had borrowed $5,000 from a short-term lender because he was short on cash for rent and for the family. He subsequently paid that amount back.
Mr GTPZ also gave his older brother about $5,000 and his niece $1,000 because she was homeless. His brother paid him only some of the money back.
Mr GTPZ explained that he had to move house several times and each time he moved to another house, he has had to pay a new bond and spend money to set up the new house.
Mr GTPZ also gave his partner some of the money he was paid from Telstra because she was forced to look after him after his injury. That was in addition to the carers money she had received from Centrelink. In 2022, Mr GTPZ also spent over $5,000 on an engagement ring for his partner.
Mr GTPZ also explained that before his baby was born, he went with his partner and the children to Katoomba for a day trip and he spent about $500 on the family at an outdoor clothing shop. He also paid for dinner at a nice restaurant.
Mr GTPZ described a time he went with his partner and her friend to a restaurant and was shocked when he received a bill for $380. He also described a time when he paid a debt of about $22,000 for his partner because she had borrowed money from unscrupulous sources who were threatening her.
Mr GTPZ conceded he had made some mistakes in spending the money he had received and probably should have invested in property immediately. He explained he had learnt from his mistakes.
Before the Tribunal was a Personal Money Plan dated 3 November 2023 by Wesley Mission Financial Counselling.[9] It reflects Mr GTPZ’s financial circumstances at the time and Mr GTPZ was asked questions about it in cross examination.
[9] T1, p 434.
Mr GTPZ continues to be paid fortnightly payments of about $1,655 a fortnight from the Department of Veteran Affairs. At the time Mr GTPZ was paying $485 in rent but, he was unclear at the hearing about how much he was presently paying because his partner is living with an aunt after having her child. Mr GTPZ also indicated that he had spent some money on clothing including RM Williams boots which cost about $540. He had bought other clothing when it was reduced. He has also bought a few perfumes including a Chanel perfume for his partner.
Mr GTPZ indicated that he still owed various companies and people money. He also owes about $3,500 for an outstanding electricity bill which related to his previous accommodation. Mr GTPZ presently has rent arrears. He has been invited to apply for assistance from Anglicare in that regard. He has an outstanding electricity debt of about $1,600 on his current accommodation. Some of the debts owed by Mr GTPZ have been outstanding since before he received the various compensation amounts.
The Tribunal accepts that Mr GTPZ is experiencing financial hardship. However, Mr GTPZ has made poor financial decisions including in relation to his spending on holidays, his car, clothing and in giving others money. He has not prioritised paying his outstanding debts even after spending the money he received from Department of Veteran Affairs and subsequently receiving other significant lump sum payments.
Conclusion
In Groth and Secretary, Department of Social Security [1995] FCA1708, the Federal Court considered the meaning of special Circumstances at paragraph [12]:
The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss: … 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 enquiry to be undertaken in this case...
In Re Secretary, Department of Social Security and Winterbotham [1990] AATA 808, the Tribunal explained the intention of the compensation recovery scheme at paragraph [19]:
This particular piece of legislation …. was aimed specifically at preventing those people receiving compensation for loss of income because of incapacity for work from being able also to receive benefit from the public purse … Primary responsibility for the payment of such compensation lies at the feet of those responsible for the compensable injury. Once that responsibility has been met, by way of a settlement sum agreed to by both parties, it is inequitable for the recipient to seek supplementary funds from the taxpayer.
In the documents provided after the hearing, Mr GTPZ included a Commonwealth Bank statement dated 15 November 2024. The statement reflects that Mr GTPZ continues to transfer money to his partner and others. Mr GTPZ continues to receive fortnightly compensation payments from the Department of Veteran affairs. The Tribunal notes that Mr GTPZ indicates that he is “extremely unhappy” in the social housing in which he currently lives because it is old and uncomfortable and needs repairs. As a tenant, it is open to Mr GTPZ to take the necessary action against his social housing landlord for any repairs the landlord may have an obligation to repair.
Mr GTPZ also provided evidence that he has poorly controlled blood sugar levels and has developed chronic type two diabetes. He is gradually going blind due to developing glaucoma. He also stated that he must have cataract surgery and has been placed on a 90 day wait list for more urgent surgery due to his diminished eyesight.
The Tribunal accepts that Mr GTPZ has had a difficult childhood and experience in the Australian Army and that his current financial circumstances are strained. Mr GTPZ also has mental health and diabetes related issues for which he is currently being treated.
However, balancing those circumstances against the legislative intention and considering the way that Mr GTPZ has already spent lump sum amounts paid to him, the Tribunal does not find special circumstances which make it appropriate to treat some, or all, of the lump sum payment as not having been made. Mr GTPZ has received compensation and continues to receive compensation in relation to his time in the army. A substantial amount of money has already been returned to Mr GTPZ from the Australian Taxation office following representations made by him to his local parliamentary representative. Mr GTPZ has also received two further significant lump sum compensation payments since he received the compensation payment from the Department of Veteran Affairs in 2018, including compensation in relation to his treatment as a foster child. Mr GTPZ has contributed to his own financial hardship because of his own poor financial decisions. Mr GTPZ has spent large portions of the lump sum compensation amounts on holidays, a car, expensive clothing, and gifts and has given away substantial amounts of money to various family members.
Mr GTPZ’s poor financial decisions continued even after he received financial counselling from Wesley Mission Financial Counselling. After the counselling Mr GTPZ received the amount of $270,000 in a lump sum compensation payment from Telstra. Instead of paying his outstanding debts, Mr GTPZ went on the holiday to America. Mr GTPZ himself acknowledged at the hearing that the holiday may have been a mistake and he did not expect to spend as much as he did.
Accordingly, the Tribunal finds that Mr GTPZ is subject to a preclusion period running from 25 June 1990 to 18 July 2018 and that special circumstances, which may allow the whole or part of the compensation payment as not having been made, have not been established.
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 14 November 2024 Applicant: Self-Represented Solicitors for the Respondent: M Gauci, Hunt and Hunt Lawyers
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