Hansen and Department of Family and Community Services

[2001] AATA 140

DECISION AND REASONS FOR DECISION [2001] AATA 140

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2000/342

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      HILTON CLARENCE HANSEN  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr C P Webster (Senior Member)           

Date30 January 2001

PlaceCanberra

Decision      For reasons given orally at the hearing of this matter the decision under review is affirmed.     
  [Sgd C P Webster]
  Senior Member
CATCHWORDS
 Social Security – disability support pension - special circumstances - "preclusion period" no special circumstances.
Social Security Act 1991 – s.1184(1)

REASONS FOR DECISION

22 February 2001    Mr C P Webster (Senior Member)   

1. This is a statement of reasons for decision pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 in respect of a decision made on 30 January 2001.

2. The applicant Hilton Hansen seeks a review of the Secretary, Department of Family and Community Services.    There are three decisions involved.  The decision considered by the Social Security Appeals Tribunal (SSAT) was a decision by the respondent of 31 May 2000. but the SSAT in its decision also made reference to decisions of the respondent of 16 December 1998 and 31 December 1998 and for convenience the Tribunal will review all  those decisions.   The decisions all decided not to reduce the preclusion period for disability support pension which had been imposed on 5 November 1998 for a period ending 14 June 2000.

3. The preclusion period was imposed as a result of the applicant receiving a lump sum settlement of $70,000 on 4 November 1998 as a result of a work-related injury.

4. There is no dispute that the applicant was advised in writing shortly after settlement of his case that there was a preclusion period until 14 June 2000.

5. The applicant then structured his affairs to provide for his financial well-being during the preclusion period.  

6. The applicant purchased a property and furniture for his home.  He also placed money in the bank and paid off a debt.   On 8 March 2000 when the applicant applied for a disability support pension he actually had $1,035 in his bank account; an unencumbered house worth $43,000; and furnishings and fittings valued at $10,000.

7. The applicant also gave evidence that when he accepted the $70,000 in settlement of his industrial accident he did not expect to return to the workforce and he  knew that his financial settlement was to last him for his life.

8. He gave evidence that subsequent to the settlement he suffered a cervical neck complaint which was unexpected and which greatly increased his pain and suffering.    He did not allege however that this problem caused any additional cost to him or made him incapacitated for work as he was already incapacitated for work.

9. The question to be determined by the Tribunal is whether there are any special circumstances to reduce or waive the preclusion period.

10. Section 1184(1) of the Social Security Act 1991 states:

    "(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."

11. The term "special circumstances" has been considered judicially many times.   The respondent's Counsel  referred to numerous cases.

12. In the case of Beadle and Director-General of Social Security (1984) 1 AAR 362; at 346:

    "An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition….   [the] circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."

13. In the present case the Tribunal does not consider that there are any special circumstances.    The applicant knew of the preclusion period when he settled action his action for damages arising out of his industrial accident and properly provided for his own financial security during the preclusion period.   He had assets to use to support himself or upon which he could borrow for a short-term loan.   He was not in financial difficulty.

14. There were no  unexpected circumstances which resulted in unexpected expense or in unexpected incapacity to work.

15. The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

Signed:         .....................................................................................
  Personal Assistant

Date/s of Hearing  30 January 2001
Date of Decision  30 January 2001
Counsel for the Applicant        Applicant appeared on his own behalf.
Solicitor for the Respondent    Ms E Hampton (Centrelink)