Hardiman and Secretary, Department of Social Services (Social services second review)
[2020] AATA 1794
•17 June 2020
Hardiman and Secretary, Department of Social Services (Social services second review) [2020] AATA 1794 (17 June 2020)
Division:GENERAL DIVISION
File Number:2019/6260
Re:Jeffrey Hardiman
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:17 June 2020
Place:Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that under s 1184K of the Act the preclusion period shall not apply to the Applicant with effect from 10 September 2019 until the date when otherwise the preclusion period, if it had applied to him, would cease to apply in the ordinary course in accordance with law.
...........[sgd].........................................................
Dr Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY – claim made for Newstart allowance — lump sum compensation payments – application rejected – whether preclusion period applies – whether special circumstances — applicability of the Guide to Social Security Law
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Cases
Beadle and Secretary General of Social Security (1984) 6 ALD 1
Control Investments Pty Ltd and Australian Broadcasting Tribunal (1981) 4 ALD 1
Director General of Social Services v Hales (1983) 47 ALR 281
Groth v Department of Social Security (1995) 40 ALD 541
Kirkbright v Secretary, Department of Family and Community Services (2000) 65 ALD 211
Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690
Morgan and Secretary, Department of Social Services [2020] AATA 322
Reid v Secretary, Department of Family and Community Services (2001) 109 FCR 477
Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 161
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
17 June 2020
BACKGROUND
The Applicant, Mr Jeffrey Hardiman, made a claim for Newstart Allowance under the Social Security Act 1991 (Cth) (“Act”) on 7 February 2019.
On 9 March 2019 a Centrelink officer granted the claim with effect from 25 January 2019.
However, on 10 May 2019 Centrelink determined that the Applicant’s claim should not have been granted on the ground that the previous decision was in error. In consequence, his payments were cancelled.
Further, on 10 May 2019 Centrelink advised the Applicant that his claim was rejected because he had received a lump sum compensation payment. At the same time, however, a Newstart allowance debt of $3,930.27 was waived.
The Applicant sought review of the decision to cancel his allowance and his case was referred to an authorised review officer (“ARO”) on 28 May 2019.
The ARO affirmed the Centrelink decision on 17 June 2019.
The Applicant then sought a review of the decision by the Social Services and Child Support Division of this Tribunal (“Tier 1”) on 28 June 2019.
On 28 August 2019 Tier 1 affirmed the decision not to disregard all or any part of the compensation payment made to him.
The Applicant now seeks a further review of the decision by application made to this Division of the Tribunal on 1 October 2019, claiming amongst other things that the decision of Tier 1 was and is an unfair decision.
HEARING
The hearing took place on 7 February 2020.
At the hearing the Applicant represented himself and called no other witnesses. The Respondent was represented by Ms C Inglis, a lawyer from Services Australia, and called no witnesses.
LEGISLATION
Section 1169(1) of the Act provides that if a person receives or claims a compensation affected payment and receives a lump sum compensation payment, the compensation affected payment is not payable to the person in relation to any day or days in the lump sum compensation period. The definition of a compensation affected payment is in s 17(3) of the Act.
The compensation part of such a payment is defined in ss 17(3) and (4) of the Act.
The lump sum compensation period referred to in s 1169(1) is calculated as set out in s 1170 of the Act.
The Act provides in s 1184K(1) that the Secretary may treat the whole or part of a compensation payment as not having been made or not liable to be made if the Secretary thinks it is appropriate to do so in the “special circumstances” of the case.
It is the provision in s 1184K(1) which is in issue in this case, that is, whether special circumstances exist.
If special circumstances do exist, it is then a question of whether all or part of a preclusion period does not apply by virtue of that provision.
EVIDENCE
The Applicant gave sworn evidence in support of his position that special circumstances do apply in his case. I noted his concern was with that issue and not with the calculations involved in his case and whether the correct amounts had been cited.
The Applicant gave evidence that he had worked as a scaffolder employed by his brother who now lives in Western Australia.
The Applicant said that in 1991 he had moved to Kilmore and now lived in Cobram. He said he is a married man but that he and his wife are separated and that that occurred in about 1987. He said he lives on his own and has no partner. He said he has one son, but he has not seen him for 14 years.
The Applicant said he was injured in a collision in April 2014 when the car he was driving was hit from the rear. He was hospitalised following this incident and had surgery on his back.
After he had recovered from this, it was discovered, following a bowel obstruction, that he was suffering lymphoma and he had a section of bowel removed. This was then followed by eight chemotherapy treatments.
After these, the Applicant said he found he had a hernia, specifically, an incisional hernia, in the area where the bowel surgery had taken place.
The Applicant said he still has that hernia and he showed the area to the Tribunal by lifting his shirt. The Tribunal observed that it was obvious that he did have a large abdominal swelling which was quite unsightly and looked very uncomfortable. He said the hernia hurts when he goes to the toilet. When he does need to go to the toilet, he said “I’ve got to hold it.” He has noticed a different bowel pattern since his surgery and is sometimes constipated.
The Applicant said his health now is pretty good. The cancer had not returned and a problem with hepatitis C, which he believed he suffered as a result of his tattooing, had cleared up. He mentioned that he takes thyroid medication (Thyroxine).
The Applicant said he still suffers severe back pain. When asked how bad the pain was, he said “Sometimes like childbirth, I suppose.” He said that during the previous winter (in 2019, I assume) “I spent six weeks …. on the floor in tears, where I couldn’t move.” He said “I’m in pain constantly. I’m always in pain…” He had been taking Oxycontin for this but that had made him “feel weird all over” and he had not taken any now for about seven months. He indicated that lying on the floor helped him, as well as a little walking. He said his pain was eight and a half out of 10 and that winter time is the worst, and that was why he had moved to Cobram in the north of the State for warmer weather.
The back pain had led the Applicant to have leg stiffness. Standing was now a problem for him, he said “if I stand on my legs too long it hurts…If I walk my legs kill me.”
When asked how he filled in his day, the Applicant said he lays on the floor and in this position he does exercises. Otherwise, he said “I just sit out ….Sit in the backyard…enjoy the warm weather.” He said that as he had moved further away, no one comes to visit him. He does, however, have a dog and he does watch television and has been reading magazines, car and motorbike magazines, especially, more these days. He has a Harley-Davidson motorcycle which sometimes he rides down to the nearby shops and back. He said he knows his two neighbours, but that’s about it.
The Applicant said he did not consider there were any jobs he could do, explaining that “I can’t lift, I can’t—I wouldn’t be able to work unless there’s jobs where I could lay on the ground or…” The Tribunal suggested being a car park attendant, to which the Applicant asked, “Standing on my feet? … not really.”
In recent times, over about a year, the Applicant indicated he had lost a lot of weight. He used to weigh 98kgs and had now gone down to 73kgs. When asked “So you’ve lost a lot of weight due to pain?” He said, “Yes, where I can’t move.” He said he has been having only one meal per day. He does not drink alcohol and does not smoke. He said he gave up smoking when he was diagnosed with lymphoma.
The Applicant says he owns his own house. He purchased this out of his compensation moneys he received out of his collision. He explained that he did not buy it as an investment, he “bought it to set myself up so I wouldn’t have to rely on other people, so I wouldn’t have to put other people out.” He said he paid $360,000 for the house. The deal was a good one: the price was low because a man had been stabbed in the throat in there in a home invasion, he said. He said he never bought the house to make money out of it. As to his compensation moneys generally (which he said were $574,000 and not $600,000—with $26,00 being incurred in legal costs) he said that he never spent the money out of control. I took this to mean that he was careful about how he spent the money and was not reckless, and this accords with observations made by the Tribunal in Tier 1.
The Applicant was asked to give consideration to the requirement of special circumstances justifying the preclusion period being lifted, given that it was common knowledge that he had spent his compensation payments. He said, “Well I’ve pretty much sold everything that I’ve got apart from my house, which, at the end of the day I’m not selling my house and that’s all there is to it.” Earlier in his evidence he said, “I’ve got no money to buy food or anything so if I do get some money I buy some dried dog food and I’ll buy a packet of Weet Bix.”
The Applicant said if he sold his motor bike (the Harley Davidson) he would have to give the money to his sister. This was said in reference to a loan of money of $26,200 from his sister, of which he has repaid $11,000 from the sale of his Nissan Patrol vehicle ($5,000) and a boat ($6,000). He said he would feel a duty to repay her, but that repaying her would not assist him financially. In any event he said he did not want to sell it, as it was the first thing he had ever bought brand new. Getting a loan from someone such as his parents (who are still alive) to pay his way was not an option. He already had credit card debt and he still had to repay his sister the outstanding amount. Nor would he consider taking in a boarder “I couldn’t have somebody, no, in my house … I don’t want anybody walking on my carpet with shoes on, I don’t walk into my house with shoes on.” I will return to this statement later in these reasons.
Giving further thought to special circumstances, the Applicant said “my medical history to start with … I’ve gone through a lot… I’ve never asked for nothing in my life … I’ve got a hernia, I’ve got my back, the pain I’m getting in my back, my legs.” He also mentioned his poor diet and not feeling healthy. He said that since the collision he has lost muscle and weight. He mentioned that due to his hernia, he has a lump for a stomach and he “can’t lift, I can’t pull anything, I can’t do anything like that … apart from my Harley Davidson I’ve got no vehicles. I’ve got nothing.”
In cross examination the Applicant said that in addition to the money he spent on the purchase of his four-bedroom house, he spent about $100,000 on furnishing it, including:
·four bedroom suites;
·two lounge suites;
·a dining table;
·two TV units;
·two coffee tables; and
·two televisions from Aldi (because they were the cheapest he could buy).
He indicated he checked prices before buying things and said “I reckon I’m pretty smart with money … I didn’t just go and blow every cent.”
When asked about whether he might sell off things to raise money, for example, his lounge suites, he said he thought he would not get a lot for them, explaining “you pay $5,000 for [a] lounge suite, what am I going to get for it?… $500, $600, $700, $1,000.” He said if he sold the lounge suite for $1,000 “how long would that last me? What bill would I pay and then I’m broke again?” He agreed that he had a caravan and had put it up for sale for $3,500 but it was a 1981 (or 1983) model and people would be or were offering him only $500 for it.
The Applicant agreed that his house had probably gone up in value since he bought it. But if he was to sell his house he said “what happens in September?... I’ll go and rent a house.” Then he said “All right, I sell the house. What do I do with my furniture …Where do I go?”
The Applicant said he did not know about an exclusion period to start with, but explained that even if he had known, he would not have been able to do anything different. He repeated he was not aware of the preclusion period, but he was adamant that if he had known he would not have done anything differently.
CONSIDERATION
The Respondent provided me with a comprehensive Statement of Facts, Issues and Contentions (“SFIC”).
It is correct, as observed there, that the general policy underlying the Act is that a person should not be permitted to obtain income support payments from two sources at the same time.[1] I agree also that s 1184K of the Act is designed to enable a decision-maker to exercise a discretion (in the special circumstances of the case) to disregard the whole or a part of a compensation payment where strict application of the Act would lead to an unfair or inappropriate result. In Kirkbright v Secretary, Department of Family and Community Services (2000) 65 ALD 211, Mansfield J said at [22]:
In my view, s 1184 is designed specifically to enable the respondent, and on review the Tribunal, to ameliorate …unfairness or injustice when it appears by virtue of the strict application of the Act.
I note His Honour does not include inappropriateness in his formulation, not that that matters greatly.
[1] See Reid v Secretary, Department of Family and Community Services (2001) 109 FCR 477 at [2] per Branson and Mansfield JJ (who, however, were speaking of ss 1163A and 1165 of the Act).
It cannot be in doubt that the expression “special circumstances” refers to circumstances that are uncommon or unusual.[2] In Groth and Secretary, Department of Social Security (1995) 40 ALD 541, the Federal Court stated at [12]:
The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss ... 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. ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary ....
Recently, in Morgan and Secretary, Department of Social Services [2020] AATA 322 at [56] the Tribunal gave the expression a less rigorous denotation “something different from the usual or ordinary”.
[2] See Beadle and Director General of Social Security (1984) 6 ALD 1. At p 3 the Tribunal actually said “unusual, uncommon or exceptional”.
The real issue is to decide whether in a particular case special circumstance exist or not, and if they do, whether it is appropriate to exercise a discretion. Some guidance is given in these matters by the Guide to Social Security Law (“Guide”). The Guide is often applied to indicate what a possible result could be. But it cannot be applied so as to cause the Tribunal to abdicate its role.[3]
[3] See Control Investments Pty Ltd and Australian Broadcasting Tribunal (1981) 4 ALD 1.
I consider that in this matter, weighing the evidence, the Applicant is in a position of special circumstances and that it is appropriate to exercise a discretion in his favour. I should say in this regard, therefore, that I accept his evidence. I regard him as a truthful person. His criminal history I take no account of as it is of no concern in this matter. No evidence to the contrary of his evidence was given. Cross examination did not damage his credit. He may be a man with some peculiarities (such as not wanting people to walk across the carpet in his house in their shoes) but that does not derogate from his overall effect. I considered him to be very forthcoming—blunt, even—on some very personal matters.
Financial
The Applicant made clear that he is in a position of extreme financial hardship. That is to say hardship beyond that normally encountered in cases of this kind, for it is a “given” in this area that people in cases of this kind “usually have one thing in common: they will be impecunious and in straitened circumstances”.[4] I consider that the Applicant is not only without funds, but is not in a position to access funds either. He is limited to one meal a day consisting of Weet-Bix and has lost a lot of weight as a result. He said he is worried that the RSPCA may intervene because he said, “I’m worried that somebody else is going to ring RSPCA because I’m not feeding me dog properly…” He has credit card debt, he owes utilities, and he has yet to repay all his debt to his sister.
[4] Director-General of Social Services v Hales (1983) 47 ALR 281 per Sheppard J.
The Respondent submitted that the way in which financial hardship has been caused must be examined as well as the Applicant’s contribution to it. Reliance is placed on Re Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690 at [39]. In a general way, I think this is clearly correct. Self-induced hardship brought about by reckless financial decisions should not see someone able to benefit at public expense. But I am of the view that the decisions need to be plainly “reckless” and not merely decisions that do not meet with the Secretary’s approval. The Tribunal must be careful about telling people how they should live their lives and what decisions they should make, including how they should spend their money ex post facto. The Tribunal is not a review body of people’s spending patterns or of their consumer choices and has no role in that area. The Tribunal reviews decisions under enactments, not those made otherwise. At the same time consumer choices should not be made recklessly–with a view in mind by a person that, if they spend their money entirely as they wish, any hardship occasioned thereby will be paid for out of the public purse.
At this point, I express difficulty with the Guide indicating the general principle that consideration should be given to the value of all cash and realisable assets. The Guide says that as a general rule special circumstances will not usually exist where a person has sufficient liquid assets to support them during the preclusion period. I should point out I am unable to see anywhere in the Act where it says that a person only qualifies for the lifting of a preclusion period if they divest themselves of or liquidate assets. The Guide therefore seems to seek to add to the Act and thereby to influence the outcome of the decision on review. I see that as intruding on the discretion reposed in the Tribunal.
In this case, for instance, the Applicant was asked in cross examination about selling his furniture and mention also was made of him selling his house. By selling his furniture the Applicant might be able to raise some funds to live on for a while. But there is no guarantee that by doing this the Applicant might end up worse off, with a house with no furniture and, after a while, still without money. Submitting that the Applicant could easily have sold his house and his motorcycle seems harsh and unfair. I accept that the Applicant does not have many assets in his life, which is not a great deal to show for his life’s work, but he does have these.
There is also something odd in saying someone should have sold assets so that they could meet one of the criteria for special circumstances which, when they have done so, they will not need to meet because they will then have funds. Or to say that they should now do so, so that the Secretary does not have to exercise a discretion under the Act. I note the Act does not say that the Secretary’s discretion under s 1184K may only be exercised if satisfied an applicant has divested themselves of or liquidated assets. One reason for this could be that an applicant who has liquidated assets may not need the discretion to be exercised in their favour then after all.
Other questions which would arise if the Applicant sold his house and his motorcycle would then be: where will he now live and how will he get around? If he sold his house and repaid his debts, he would then be left presumably to the vagaries of the rental market (unless he should buy another, maybe cheaper, house), assuming he could find a place to rent and that someone would be prepared to take him on as a tenant; his criminal background could be unhelpful and the state of his health might not assist. If he was to buy another (maybe cheaper) house, he could end up in the very same position, in theory, he is in now: of having to apply for the preclusion period to be lifted because he would then have a substitute dwelling but still no funds. He should then have to look at selling that house in order to try and have the preclusion period lifted but when that occurred, he would have no need for it to be lifted because he would have funds again, and so on.
The question regarding the Applicant’s motorcycle does not arise in this case because, as I understand it, the Applicant’s motorcycle is not registered and so cannot be used by him to get around until it is registered. He said, moreover, that if he sold his motorcycle, he would repay the debt he owes to his sister. That is laudatory but not of much comfort to the taxpaying community. But I took it that he was unwilling to sell his motorcycle in any event. It appears he has a strong emotional attachment to it, which some might see as unwarranted but others might see as fully justified, and to say he should have sold it so that the Secretary has a ground on which to decline to exercise a discretion under s 1184K of the Act is in my view excessive in the case of someone who, as I say, does not have a great deal to show for his life’s work. As outlined by the Guide, I consider these to be “truly compellable” reasons why the Applicant should not realise this asset.
The Guide also specifies that in a general way financial circumstances need to be severe and worse than the majority of social security recipients. Strictly I am unable to see how this can be applied exactly to the Applicant’s case because I have no idea what the financial circumstances of the majority of social security recipients are. I was not given any evidence of this and I expect it was left to guesswork. I decline to engage in guesswork of that nature. But I can say, and I regard it as significant, that at one point the Applicant (in common with others qualifying) did qualify for benefits under the Act until they were cancelled due to the preclusion period.
The Guide is expressed in terms of a conjunctive “need to be severe and worse”. But I cannot make that assessment in this case without further information, so that aspect of the Guide is not helpful on this occasion.
However, I consider that the Applicant is at a serious lack of funds stage where even buying food to eat is an issue. On the evidence provided, I am satisfied he is in dire need of funds. I regard his situation as severe. I recall his evidence quite clearly “I’ve got no money to buy food or anything …” I refer to the various items of indebtedness set out in documentation provided by the Applicant, including a National Australia Bank default notice, utility bills or notices, and rates notice.
I am satisfied also that this has not come about recklessly, although it has been caused or contributed to by the Applicant having spent his compensation payment. I accept his evidence that he was careful in the way he spent his money. I accept his evidence that he set himself up so he would not need to rely on other people. I note that bank statements for the period from 12 July 2018 to 27 February 2019 show expenditure of $16,440, but this is not large in amount and the Respondent evidently concedes in its SFIC that it is “generally unremarkable”. The Respondent in its SFIC also accepts that the Applicant is “in arrears in respect of a number of household expenses”.
An important point for me in assessing the Applicant’s spending is that he was not aware that a preclusion period applied. I accept his evidence on that. I should have held he was reckless if he had spent all his compensation money knowing that a preclusion period did apply. But that is not this case.
The Respondent submits that the discretion under s 1184K of the Act should not be exercised “given the lack of documentary evidence in respect of how the above amounts have been applied”. These amounts include the loan for $26,200 from the Applicant’s sister and a sum of $13,350 as the payout figure under a motor car insurance policy. Mention also is made of the compensation sum itself of $600,000 ($574,000) and the further sum of $3,930.27 wrongly paid to him.
This exception in part picks up a reference in Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 161 at [16] to the Tribunal there saying “I would be reluctant to exercise the discretion under s 1184K of the Act in circumstances where there is no documentary evidence of how the settlement funds have been applied.” I note that the exercise of a discretion, however, is not ruled out. In any event that observation was said with reference to the mysterious use of a settlement fund in face of conflicting evidence in that case. That is not the circumstances of this case. I consider, making some allowances for inaccuracies, and for the passage of time, the Applicant in this case has explained satisfactorily how he has used his compensation moneys. Moreover, there is a letter on file from the Applicant’s sister Simone Almenara (of 12 December 2019) detailing the loan and repayments, and the Respondent’s SFIC does not seem to take exception to that where it is first mentioned. There is nothing irregular about that letter on its face. Similarly, with other documents on file which are referred to by the Respondent.
It seems that the Guide is the principal source of reliance. The Guide says that on a s 1184K review all claims must be substantiated by evidence. Therefore, the Respondent says it “would be expected” that receipts would be produced. However, I am satisfied by the oral evidence I have been given and by the documents on file. Further, however, I consider that this aspect of the Guide, in so far as it extends to review by the Tribunal, cannot urge the Tribunal to act in a particular way in light of s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) which specifically says the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate. The Guide cannot urge the Tribunal to act in a way in contradiction of this empowerment. Indeed, other decisions of the Tribunal even (such as that in Taylor’s case above) cannot bind a successor Tribunal to act in a way which forecloses on the power in s 33(1)(c).
Based on the above considerations, I am quite satisfied that the Applicant’s financial position is a special circumstance.
Health
I am satisfied that the Applicant suffers ill-health. Fundamentally I think this was brought on in the beginning because of the collision and then the surgery, followed by the lymphoma, and then later the hernia. The Applicant’s health conditions are satisfactorily detailed in the letter on file from the Kilmore Medical Practice (Dr Oda) dated 12 December 2019.
I accept the Applicant’s evidence of his pain and suffering over the years and in more recent times caused by his hernia and his back surgery. I would consider his hernia (which is quite visible and unsightly) would be very uncomfortable and I accept his evidence that it causes him pain when going to the toilet.
Yet the Respondent submits that the Applicant’s state of ill health is not more severe “than [that of] the majority of compensation recipients”, and that therefore the Applicant’s ill health is not a special circumstance.
I am unable to see any evidence on which I could rely to say that the Applicant’s state of ill health is not more severe than [that of] the majority of compensation recipients. In fact, I was given no evidence of this and I reject the assertion.
The statement set out in the Respondent’s SFIC is based on a similar assertion made in the Guide. The Guide says a claimant’s state of ill health should be “more severe than the majority of DSP [disability support pension] recipients.” No authority is cited for this proposition, which is simply a value judgment, and I am unclear how DSP comes to figure in the matter. This is not a case of DSP.
The Guide also states that the injury in respect of which a person has received compensation cannot generally be regarded as a special circumstance. No authority for this proposition was cited to me. I would think, as in this case in part, the compensable injury, and its sequelae, can readily be regarded as a special circumstance. If the Guide is urging the Tribunal to disregard the sequelae of a compensable injury, and to not generally regard that as a special circumstance, then I consider it is wrongly seeking to enter the Tribunal’s review function and as a result I reject it. Similarly, for the same reason I reject the Guide’s suggestion that in general a person’s emotional state cannot be regarded as a special circumstance if a claimant’s emotional state is an aspect of the compensable injury payment. But in this matter, I am satisfied that the Applicant’s ongoing reaction to his hernia, in particular, is a separate issue altogether, with barely any connection to his back injury, but related more to his bowel surgery.
The Respondent’s SFIC submits that there is no evidence that the Applicant’s emotional state has been influenced to the point that it has become a significant factor in his behaviour, or on his health. My response to this assertion must be—in order to explain it away—that it was made before the Applicant had given evidence. I am quite satisfied that the Applicant does suffer emotionally to a significant extent in his life, as I observed when he, a formerly hard man, broke down giving evidence to me. I shall say no more than that I reject the submission outright.
The Guide apparently indicates that a lack of capacity to make rational decisions should be looked for. I know of no authority for this proposition which it appears to me is quite unfounded. But if I was to apply the Guide in this respect, I would refer to the Applicant’s evidence regarding the possibility of taking on a tenant to help raise funds. Earlier I referred to it as a “peculiarity”, but it seems to me there is something distinctly odd—irrational even—about a decision not to take on a tenant because a tenant might walk across the carpets in the Applicant’s house without taking their shoes off. I would mention further the Applicant’s announced intention of possibly committing a crime so that he could go back to prison and get three meals a day. This has its own odd logic to it but I do not consider it rational thinking.
In every respect I am satisfied the Applicant’s state of health is a special circumstance, one that certainly puts him in the category of unusual, uncommon or out of the ordinary, especially if combined with his financial situation.
Other
The Applicant’s poor state of health has this consequence: he is (to use Dr Oda’s words) “unable to work or undertake any training activities”. This follows from my own review of the evidence in any event. As such, the Applicant is unable to engage in gainful employment so as to be paid a wage or salary. Therefore, he cannot raise funds to live on out of his own labour. That is a special circumstance in itself.
Yet a further special circumstance is, as I accept, the Applicant did not know of the existence of a compensation preclusion period. In this regard, the Respondent, in its SFIC, appears to accept that there was not a great deal in the correspondence or paperwork to alert him to the exclusion period.
The Applicant has made very little of the fact that his lawyers in the compensation matter did not advise him of the preclusion period, except to say (as I accept) he was not advised by them of it, and they clearly should have done that.
The Respondent draws attention to the Guide when it says perceived unfairness of the social security legislation is not by itself a special circumstance, and then says that there “is no indication that the Applicant perceives significant unfairness in the operation of the legislative scheme in his circumstances”. This seems heedless—at least—in that the application of the Applicant specifically states (as I set out above) that the Tier 1 decision was and is an unfair decision. It is precisely because the Applicant “perceives significant unfairness” in the operation of the scheme in his case that he has sought this review. I am surprised that is not obvious to the Respondent.
CONCLUSION
I find, for the reasons I have given above, that special circumstances do exist in this case which take the case significantly beyond the usual or the expected, within the meaning of s 1184K of the Act.
That being so, I find also that it is appropriate to lift the preclusion period fixed by the Act and applicable otherwise to the Applicant.
In consequence I set aside the decision under review.
I substitute a decision that the preclusion period shall not apply to the Applicant with effect from 10 September 2019 until the date when the preclusion period by law would otherwise have ceased. I select that as the appropriate date because this is the date when, as I recall, the Applicant received the decision of Tier 1 and at that point I am satisfied he was destitute and, in a sense, crushed.[5]
[5] See further Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 at [34] and [47].
In the discretion to lift all or part of the preclusion period, I consider it appropriate to lift it only in part and only from such date.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
...[sgd]..............................................................
Associate
Dated: 17 June 2020
Date of hearing:
7 February 2020
Applicant: In person Advocate for the Respondent: Ms Charlie Inglis Solicitors for the Respondent: Services Australia
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