Hawker; Department of Family and Community Services

[2001] AATA 71

DECISION AND REASONS FOR DECISION [2001] AATA 71

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1303

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Applicant
           And    OLIVIA HAWKER  
  Respondent

DECISION

Tribunal       Ms JA Shead, Member      

Date6 February 2001

PlaceSydney

Decision      The Social Security Appeals Tribunal decision of 6 July 2000 under review is set aside and the Tribunal substitutes its decision that:  (a)        the compensation preclusion period commenced on 4 July 1999; and  (b)     due to special circumstances, so much of the compensation payment is disregarded so that the preclusion period (having regard to the date of the decision of the SSAT) will end 60 weeks after 4 July 2000, that is 27 August 2001. 
  [sgn] JA Shead  
  Member
CATCHWORDS
Social Security – compensation – preclusion period – special circumstances – whether able to defer commencement of preclusion period
Social Security Act 1991
Kertland v Secretary, Department of Family and Community Services (1999) FCA 1596

REASONS FOR DECISION

Ms JA Shead, Member                  

1. The Secretary, Department of Family and Community Services, ("the applicant") has appealed to the Administrative Appeals Tribunal ("the Tribunal") against a decision of the Social Security Appeals Tribunal ("the SSAT") in relation to the period it determined that Ms Olivia Hawker ("Ms Hawker") was precluded from being entitled to receive social security benefits.

2. By way of background, the Tribunal extracts the history of the matter from the SSAT decision:

   "Ms Olivia Hawker was injured on 13 June 1996 and received periodic compensation payments until 3 July 1999.  Her workers compensation claim was settled on 8 September 1999.  Her solicitors, Walsh & Blair, advised Centrelink on 13 September 1999 that the settlement amounted for a lump sum of $180,000.00 plus costs of $40,000.00.  On 30 September 1999 Centrelink wrote to Ms Hawker advising that a lump sum preclusion period of 263 weeks applied, from 4 July 1999 to 17 July 2004.  This was based on the gross settlement amount of $220,000.00.  Centrelink recalculated the lump sum preclusion period based on the amount of $180,000.00 and wrote to Ms Hawker on 14 October 1999, advising that the preclusion period was from 4 July 1999 to 16 August 2003 (215 weeks).  The decision was reviewed and affirmed on 3 June 2000.  Ms Hawker lodged an appeal with the Social Security Appeals Tribunal on 18 May 2000." (T2)

3. On 6 July 2000 the decision of the SSAT was to:

   "…set aside the decision made by a Centrelink delegate of the respondent and substitute a new decision that Ms Hawker's compensation be disregarded so as to:

   1)        Reduce preclusion period to 60 weeks from today and

   2)        Defer commencement to 60 weeks from 6 July 2000, with the effect that it should run for 60 weeks from 6 October 2000."

4. In the Application for Review to the Tribunal for review of the SSAT decision, the reasons for the Application were:

   "That the decision is wrong because it made an error in red(i)cing the preclusion period and determining the preclusion period can be interrupted." (T1)

5. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Tribunal Act 1975 ("the T documents") ("the AAT Act").

6. The applicant's advocate Mr Anthony Cox provided the Tribunal with written submissions dated 12 September 2000.  Ms Hawker's letter dated 26 September 2000 to the Tribunal provided some details of her living and financial circumstances.

7. The matter before the Tribunal was determined having regard to the T documents, the material in the Tribunal's file and the case law.

8. It was submitted on behalf of the Secretary that the appeal by the Secretary was limited to the decision of the SSAT to defer commencement of the remainder of the preclusion period for three months from 6 July 2000, that is, the date of the SSAT hearing.  The reduction of the remainder of the preclusion period to 60 weeks from 6 July 2000 was not challenged.

1. The Application raises a question as to the proper construction of section 1165(5) of the Act which relevantly provides:

   "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)."

1. The above provision clearly states that the preclusion period begins on the last day of the periodic payment period.  Kertland v Secretary, Department of Family and Community Services (1999) FCA 1596, was a case where no periodic payments were received and that the applicable provision was section 1165(7) of the Act. The then Tribunal had decided to apply a preclusion period 18 months after the day on which loss of earnings or earning capacity began, and upon appeal Merkel J stated:

   " … there is no discretion or power under the Act to determine that the preclusion period began on any day other than 24 September 1994, being the day on which loss of earnings or loss of incapacity began …"

2. Having regard to the facts of Ms Hawker's case set out in the documents, the Tribunal finds that the lump sum preclusion period is that specified by section 1165(5) and the preclusion period begins on the day after the last day of the periodic payments, that is 4 July 1999.

3. In regard to the real dispute between the parties in the SSAT proceedings, as to whether Ms Hawker's circumstances were "special circumstances", for the purposes of section 1184(1) of the Act, there were no submissions on behalf of the Applicant to disturb that part of the decision of the SSAT.  Ms Hawker's letter dated 26 September 2000 did not seem to add any new material relevant to her circumstances.

1. Accordingly It follows from the foregoing reasons, that the SSAT decision of 6 July 2000 under review is set aside and the Tribunal substitutes its decision that:

   (a)      the compensation preclusion period commenced on 4 July 1999;  and
   (b)      due to special circumstances, so much of the compensation payment is disregarded so that the preclusion period (having regard to the date of the decision of the SSAT) will end 60 weeks after 4 July 2000, that is 27 August 2001.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.

Signed:         .....................................................................................
  Associate

Date of Decision  6 February 2001
Solicitor for the Applicant         Anthony Cox
Solicitor for the Respondent    Self-represented