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

[2015] AATA 905

Hammelswang and Secretary, Department of Social Services (Social services second review) [2015] AATA 905 (12 November 2015)

Division	GENERAL DIVISION
File Number	2015/2409
Re	Scott Hammelswang
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	12 November 2015
Date of written reasons	25 November 2015
Place	Brisbane

The decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – application for disability support pension – compensation for workplace accident – compensation preclusion period – whether special circumstances exist – whether discretion should be exercised to treat payment as not being made – applicant did not comprehend what he agreed to at settlement – applicant spent lump sum – applicant under financial strain – circumstances not out of the ordinary – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), 1184K

CASES

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

REASONS FOR DECISION

Deputy President PE Hack SC

25 November 2015

1. Mr Scott Hammelswang injured his back a workplace accident in October 2007. He suffered a crushed fracture at the L5/S1 level with nerve root damage. In early February 2012 his common law claim against his former employer and the Workers Compensation Board was settled for a sum in the order of $950,000. Some considerable time after that settlement he received his share of that sum which transpired to be in the order of about $450,000.

2. By operation of the Social Security Act 1991 (Cth) he is precluded from receiving disability support pension to which, I suspect, he would otherwise be qualified, until 19 August 2019. The policy intent of the provisions in the Act is that those who are compensated with an award of damages which includes a component of economic loss should not recover the same payment, in effect, from the public purse.

3. The calculation of the preclusion period is not in issue. What is in issue is whether the general discretion in the Secretary, and necessarily in the Tribunal, in s 1184K should be exercised in his favour. That section allows the Secretary to treat all or part of a compensation payment as not having been paid if there are special circumstances. It is unnecessary to consider the considerable jurisdiction as to what amounts to special circumstances; it is enough to say, as Kiefel J said in Groth v Secretary, Department of Social Security,[1] that there must be something that distinguishes Mr Hammelswang’s case from others, to take it out of the usual or ordinary case.

   [1] (1995) 40 ALD 541, 545.

4. A number of matters are said by Mr Hammelswang and his mother, who has assisted him, to demonstrate that the case is special. It may be accepted that he has a very significant injury to his back that causes him considerable pain and requires that he take a frightening array of medication. It may be accepted, as well, that the medications that he has taken, and continues to take, affect his cognitive ability or, as he put it, he has difficulty remembering things and he has difficulty articulating. It may also be accepted that there were times, when settling his claim, that Mr Hammelswang did not fully comprehend what he was being asked to agree to. He says, as well, that he was told by his solicitors, immediately prior to agreeing to settle his claim, the preclusion period would be between two and three years at most. That advice, if given, was plainly wrong. The preclusion period was in the order of 7½ years.

5. When Mr Hammelswang received his component of the damages award, he applied approximately $120,000 of it to discharge his mortgage. He acquired a motor car, a boat; he installed solar electricity in his house and that of his parents. He bought a trailer, with a view to pursuing an employment opportunity which, as events transpired, he was not able to do, and he lent considerable sums of money to his siblings. The result is that he has none of that lump sum left on which to sustain himself over the next four years.

6. At the moment he receives a family tax benefit of approximately $184 a fortnight. He is living with his mother and renting out his house for an amount which covers the monthly repayments of capital and interest. One of his siblings, who borrowed from him, is repaying that loan at the rate of $250 per week and another sibling is repaying a loan less regularly. Mr Hammelswang has a superannuation fund which he has been permitted to access in recent times in order to clear the arrears on his housing loan.

7. Whilst I accept that Mr Hammelswang has a considerable injury and is in considerable pain that, it seems to me, is, in and of itself, not unusual. Most who qualify for disability support pension do so because of the presence of one or more impairments that prevent them from pursuing employment. That presupposes a level of disability common in persons who would qualify for disability support pension. The financial position in which Mr Hammelswang finds himself is undoubtedly strained; however, it does not seem to me to be out of the ordinary for someone in his circumstances. He has money coming into the household and has the support of his family. Additionally, he could relatively easily arrange with his bank to pay only interest on his loan and use the balance to support himself until he is next able to receive the disability support pension.

8. I appreciate Mr Hammelswang’s desire to leave an inheritance for his children but that should not be at the cost to the public purse. Therefore, I am not satisfied that his circumstances are out of the ordinary or answer the description of special circumstances, as it is used, in s 1184K. I decline to exercise the discretion favourably to Mr Hammelswang.

9. The decision under review will be affirmed.  

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 25 November 2015

Date of hearing	12 November 2015
Applicant	In person
Solicitors for the Respondent	Mr R McQuinlan, Program Litigation and Review Branch, Department of Human Services