Hawkins; Department of Family and Community Services - [2002] AATA 356

DECISION AND REASONS FOR DECISION [2002] AATA 356

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/639

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Secretary, Department of Family and Community Services
  Applicant
           And    Dianne Hawkins
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date17 May 2002
PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that it is appropriate in the special circumstances of this case to treat, for the purposes of Part 3.14 of the Social Security Act 1991, the whole of the Respondent's compensation payment as not having been made.

[SGD] Ms N Bell Member
CATCHWORDS
Social Security – Applicant overpaid newstart allowance – Applicant received lump sum compensation payment – Respondent recovered overpayment of newstart allowance from insurer - Respondent garnisheed the balance of the settlement moneys as creditor for substantial debt of overpayment – whether special circumstances for exercise of discretion pursuant to section 1184 of the Social Security Act 1991 to treat the whole or part of the compensation payment as not having been made

Social Security Act 1991 - sections 17, 1164, 1184 and 1233
Workplace Injury Management and Workers Compensation Act 1988 (NSW) – section 235
Commonwealth of Australia Constitution Act – section 109

Kertland v Secretary, Department of Social Security (1999) 95 FCR 64
Beadle v Director-General of Social Security (1985) 60 ALR 225
Secretary, Department of Social Security v Smith (1991) 30 FCR 56

REASONS FOR DECISION

Ms N Bell, Member

This is an application by the Secretary to the Department of Family and Community Services ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 5 April 2001 to set aside the decision made by a Centrelink delegate of the Applicant on 13 April 2000 to recover a compensation charge of $6,385.26 from Ms Dianne Hawkins ("the Respondent"). The decision of the Centrelink delegate was affirmed by an authorised review officer on 29 August 2000. The SSAT gave directions that the compensation charge be recalculated, under section 1184 of the Social Security Act 1991 ("the Act"), on the basis that so much of the compensation received by the Respondent that would reduce the charge amount by $3,094.00, be treated as not having been made.
At the hearing the Applicant was represented by Mr Bernard Slattery of the Advocacy and Administrative Law Team at Centrelink and the Respondent was represented by Ms Sandy Clark of the Welfare Rights Centre. The Respondent gave oral evidence to the Tribunal and the following documents were before the Tribunal:
Exhibit          Description Date
T1-T27 pp1-83 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")
A1      Applicant's Statement of Facts and Contentions          15 March 2002
R1      Respondent's Statement of Facts and Contentions     19 March 2002
R2      Medical report of Dr R Mowbray    8 November 2000
R3      Letter from Department of Housing to Respondent      Undated but noted by the Respondent to have been received on 7 March 2002

background

On 28 October 1996 the Respondent was injured in an accident at work and subsequently claimed workers compensation, receiving periodic payments until 17 March 1999. On 30 March 2000 she settled her compensation claim for the amount of $26,000.00. The Respondent had been in receipt of newstart allowance following her accident and Centrelink calculated a compensation preclusion period from 18 March 1999 to 13 October 1999. During that period the Respondent had received newstart allowance in the sum of $6,385.26 and on 13 April 2000 a Centrelink delegate of the Applicant decided to recover that amount directly from the insurer. That decision was affirmed by an authorised review officer on 29 August 2000 and set aside with directions as outlined above by the SSAT on 5 April 2001. At the same time as the Applicant recovered the amount pertaining to the preclusion period from the insurer, it also recovered by garnishee the balance of the settlement moneys in part repayment of a substantial debt of overpayment.
issues and legislation
The parties are in agreement as to the calculation of the preclusion period and the resulting amount of overpayment of newstart allowance. However, at issue is the question of recovery of the amount of $6,385.26 and, in particular, whether there are any special circumstances that would justify treating the whole or part of the Respondent's compensation payments as not having been made.
Section 1184 of the Social Security Act 1991 provides:
"Secretary may disregard some payments
1184 (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 of the case."

applicant's evidence

The Applicant told the Tribunal that she is currently in receipt of disability support pension.
She said that in October 1996 she had a work injury, working in a vineyard. She still has problems with her knee and has developed degenerative bone disease together with peripheral neuropathy. This means that she is losing sensation in her feet and legs. This condition makes her unsteady on her feet and prone to falls.
She said that after her work injury she had an operation and physiotherapy for about 8 months. She said that she thought that her physiotherapy expenses would be paid out of her compensation settlement money.
The Respondent explained her previous health history by reference to a number of attachments to her Statement of Facts and Contentions (Exhibit R1). She said that in 1983 she suffered a smashed vertebra after a fall. Attachment "D" to the Respondent's Statement of Facts and Contentions is an Approved Medical Practitioner Report dated 26 August 1994 for the purposes of assessment for Disability Support Pension, and states that the Respondent was hospitalised for 10 days at the time of her accident and had been on Panadeine Forte and Rohypnol for which she had recently undergone detoxification. The Respondent confirmed the correctness of this report.
The Respondent was shown Attachment "E" to her Statement of Facts and Contentions, a report from the Hunter Area Health Service dated 30 December 1992 which stated that she suffered at that time a pathological grief reaction and symptoms consistent with the major depressive illness. The Respondent confirmed the correctness of this report.
The Respondent was also shown Attachment "F" to her Statement of Facts and Contentions. That Attachment was part of the Applicant's claim for disability support pension and was dated 20 January 1993. The document includes a statement by the Respondent to the effect that her mother died of cancer in 1993 and that her brother committed suicide 21 days after learning of his mother's death. The statement also notes that the Respondent was at that time receiving grief counselling and suffering stress and depression. The Respondent confirmed the accuracy of this statement.
The Respondent was also shown Attachment "I" to her Statement of Facts and Contentions, a report from Dr Ross Mowbray dated 23 July 1999. The report states that the Respondent suffers degenerative disease of her right knee and peripheral neuropathy extending from her knees down, resulting in complete numbness below the knees and neuropathic pain from that area. The report further states that the result of the combination of these two conditions is that she is extremely unsteady on her feet and has frequent falls. The report also states that the Respondent requires physiotherapy. The Respondent confirmed the correctness of this report.
The Respondent told the Tribunal that in February 2000 she was involved in another motor vehicle accident in which she drove into a rock wall and rolled her car. She said that she was in a coma for several weeks and was on life support. She said that she smashed all of her ribs on her right side. No compensation was available to her as she was at fault and no other vehicle was involved. She said that her car was towed to Central Autos and she later received a bill from Central Autos for the towing.
The Respondent also told the Tribunal that in 2001 while visiting her sister in Adelaide she was admitted to hospital because of pain and distension in her stomach. She said she was operated on for this. The Respondent was also shown Attachment "J" to her Statement of Facts and Contentions. Attachment "J" is a report by Dr Ross Mowbray dated 15 November 2001 stating that in addition to her degenerative changes in her right knee and her peripheral neuropathy in both lower limbs, she underwent a laparotomy for abdominal pain in August 2001 in Adelaide. The report further states that post operatively she has continued to have problems with abdominal distension and pain and was readmitted to Muswellbrook Hospital for a week in September 2001. In relation to her motor vehicle accident in February 2000 the report states that she suffered fractures to multiple ribs on the right side and required treatment in intensive care at John Hunter Hospital, Newcastle for over a week. In addition the report states that the Respondent suffers from chronic anxiety and a dependant personality. The Respondent confirmed the correctness of this report.
The Respondent told the Tribunal of a number of personal tragedies she had experienced, including the death of her fiance in 1989, her mother's and her brother's deaths, and the death of a later fiance in a road accident in 1998. In addition she told the Tribunal about the rape and murder of her sister in 1998.
The Respondent told the Tribunal that her only income is disability support pension. She said that she has a number of outstanding accounts, including a bill for $1,548.00 from the Valley Physiotherapy and Sports Clinic. This bill is Attachment "A" to the Respondent's Statement of Facts and Contentions. The Respondent said that when her compensation claim was settled she was initially offered $25,000.00 but that her solicitor requested and obtained another $1,000.00 to meet the Respondent's outstanding accounts for physiotherapy. The Respondent said that at the time of her settlement she also had an outstanding bill from Central Autos in the sum of approximately $1,500.00, bills for other medical expenses and various utilities bills.
The Respondent said that she currently has an outstanding bill for $1,208.00 for electricity, $305.63 to the Department of Housing, with an arrangement to pay these arrears by $15.00 per fortnight and a bill from Central Autos in the sum of approximately $1,500.00 for which she has recently received a solicitor's letter. The Respondent said that she has made no arrangements to pay off or deal with her electricity bill and has received a disconnection notice.
The Respondent also told the Tribunal that she had borrowed several thousand dollars from her friend to buy a car. She said that she had previously, some time ago, lost her licence for driving under the influence of prescription drugs.
The Respondent said that since her hearing before the SSAT she has been seeing a financial counsellor but that she is still having difficulties in managing her finances. She said that she recently lost her glasses and, from her last pension payment, had to pay $238.00 to obtain new glasses. She now has no money for food until her next pension payment.
The Respondent said that her depression and anxiety, together with the medications she takes, that is, Valium and an antidepressant, make it difficult for her to manage her affairs.
When asked by the Tribunal what she would do with approximately $3,000.00 if it were to be refunded to her by Centrelink, the Respondent said that she would pay the electricity bill, her physiotherapy account and settle her account with Central Autos.
In cross examination, the Respondent was firm that the workers compensation insurance company had not paid any of her medical bills after March 1999 and that notwithstanding that her accounts from the Valley Physiotherapy and Sports Clinic were initially addressed to the insurance company, the insurer has refused to make a payment.
In relation to her outstanding debts to Centrelink, the Respondent noted that currently some $30,000.00 is outstanding. She confirmed that she had been prosecuted, convicted and sentenced to a two-year good behaviour bond with an order that restitution be made by her.
other evidence
Exhibit R3 is a letter to the Respondent from the Department of Housing, undated but noted by the Respondent to have been received on the 7 March 2002, noting that the Respondent is $305.63 in arrears in her rent as at 2 March 2002.
Document T5 is the judgement of Commissioner Hogg of the Compensation Court of New South Wales dated 30 March 2000 (Hawkins v Roxburth Vineyard Pty Ltd, unreported) in which he finds that treatment afforded to the Respondent since 19 April 1999 is not causally related to her injury of 25 October 1996 and that she would not have been entitled to an award of weekly payments after 19 April 1999.
Document T6 is details of debts owed by the Respondent to the Applicant and shows a balance outstanding as at 30 March 2000 of $50,569.74.
Document T7 is a notice by the Applicant to Employers Mutual Indemnity Association dated 31 March 2000 asking the insurer to pay to Centrelink any monies, which are due to the Respondent.
Documents T8 are the Short Minutes of Order in respect of the Respondent's Workers Compensation Settlement and a consent, signed by the Respondent, to the making of orders concerning the employer's liability in respect of any weekly payments of compensation. In that document the Respondent acknowledges that by receiving the lump sum payment from the insurer she brings to an end her right to all entitlements under the Workers Compensation Act 1987 (NSW) including weekly payments of compensation, medical and hospital expenses and any lump sum payable for the loss of a part of or other function of her body. She also acknowledged that there are hospital and/or medical expenses for her treatment which are unpaid in the sum of $2,000.00.
Document T12 is a letter to the Applicant from Shaw Dunlop & Co, the Respondent's solicitors in her workers compensation claim. The letter is dated 28 April 2000 and notes that the Compensation Court of New South Wales found, on 30 March 2000, that the Respondent would not have been entitled to an award of weekly payments after 19 April 1999. The solicitor argued that "… it is obvious that the majority of the sum paid was in fact for permanent disability and pain and suffering. Indeed this was the nature of the application that was filed with the Court [sic] it did not seek weekly payments." The letter also suggested that it would be appropriate that any preclusion period be affected from 18 March 1999 to 19 April 1999 only.
Document T23 is a summary of debts owed by the Respondent to the Applicant with an indication of recovery status. The total debt amount is shown to be $70,525.21 and the balance outstanding is $31,500.80. The summary is dated 3 May 2001 and in hand written notation on the summary are the following debt items:

Income not declared
Marital status debt
False identity debt
Newstart debt - on transfer to pension
Comp charge - newstart allowance
Comp charge - disability support pension
Unemployment benefit debt - false identity
Widow pension debt - income not declared

Document T7 is a letter from the Applicant to Employers Mutual Indemnity Association, the workers compensation insurer in the Respondent's workers compensation claim, expressed to be a "Notice under section 1233 of the Social Security Act 1991". That letter requests payment by the insurer to Centrelink of all moneys due to the Respondent up to the amount of $50,569.74.
submissions
Mr Slattery for the Applicant submitted that the SSAT had effectively placed the Applicant in a queue behind other creditors and had focused exclusively on the Respondent's financial and health circumstances. Mr Slattery submitted that the Applicant's decision to garnishee the balance of the Respondent's lump sum payment was not unusual and was quite appropriate given the level of indebtedness of the Respondent. In relation to the hardship claimed by the Respondent, the Applicant submitted that that hardship can be dealt with by having the rate of withholdings from the Respondent's disability support pension reduced.
Mr Slattery submitted that, on the Respondent's own evidence, she had borrowed more money recently and that this indicates that if monies were to be refunded to the Respondent she would not have addressed her budgeting problems in any event. Mr Slattery submitted that it is commonplace for a person who has a lump sum settlement to have a range of debts and there is nothing unusual or extraordinary about these circumstances. He noted that the tragic family events raised by the Respondent happened several years ago and regard should be primarily had to the Respondent's general level of indebtedness as a decisive factor.
Ms Clark for the Respondent submitted that two issues arise for consideration in relation to section 1184 of the Act - the issue of special circumstances and the issue of whether it would be unfair or unjust to apply the law strictly.
In relation to the special circumstances of the Respondent's case, Ms Clark noted the extensive family tragedy suffered by the Respondent, her persistent and serious personal health problems and her resultant difficulties in coping with life. Another special circumstance, in the Respondent's submission, is the fact that she received absolutely nothing from her compensation settlement.
Ms Clark described as unjust and unfair the fact that, pursuant to sections 1166 and 1167 of the current Act (section 1164 at the time of the original decision), the Respondent was required to pursue compensation for her injuries and yet, having undergone the stress and difficulty that such a claim entails, she received nothing at all from her compensation settlement.
Ms Clark also characterised as unjust and unfair the fact that the preclusion period imposed by the Applicant began 1 month before the date beyond which Commissioner Hogg found that the Respondent would not be entitled to compensation for weekly earnings.
In these respects Ms Clark referred the Tribunal to the decision of the Federal Court in Kertland v Secretary, Department of Social Security (1999) 95 FCR 64. She also noted that some of the settlement sum received by the Respondent was earmarked to pay medical expenses, including physiotherapy fees, and that it is unfair that she is prevented from paying these.
Consideration
There is no dispute that the Respondent was injured in an accident at work on 28 October 1996, subsequently received periodic payments of workers compensation until 17 March 1999 and then settled her compensation claim for the amount of $26,000.00 on 30 March 2000. The Respondent had been in receipt of newstart allowance following her accident and Centrelink calculated a compensation preclusion period from 18 March 1999 to 13 October 1999. During that period the Respondent had received newstart allowance in the sum of $6,385.26 and the Applicant recovered that amount directly from the insurer. There is no dispute in respect of these matters.
It is also not in dispute that the balance of the Respondent's settlement moneys were garnisheed by the Applicant against various outstanding debts owed by the Respondent to the Applicant. The Respondent thus received none of the proceeds of her workers compensation claim.
The Tribunal accepts the Respondent's evidence, together with supporting medical reports, that she suffers from degenerative changes in her right knee, peripheral neuropathy in both lower limbs, chronic anxiety and dependant personality. The Tribunal also accepts the Respondent's evidence that she has suffered a number of personal and family tragedies over the years. In addition, the Tribunal accepts that the Respondent has the following outstanding debts, in addition to her remaining debt to the Applicant:

$1,548.00 to the Valley Physiotherapy and Sports Clinic
$1,208.00 for electricity
$305.63 to the Department of Housing
$1,500.00 to Central Autos.

The Tribunal finds, on the basis of document T23, that the Respondent is still indebted to the Applicant for over $30,000.00 arising out of various overpayments. The Tribunal also finds, on the basis of document T5, that the Compensation Court of New South Wales found the Respondent to be not entitled to weekly payments of compensation beyond 19 April 1999. On the basis of document T8, the Tribunal finds that the Short Minutes of Order in respect of the Respondent's workers compensation settlement include an acknowledgment by the Respondent that at the time of settlement she had outstanding medical treatment expenses of $2,000.00.
It is certainly the case that the Respondent has had some very traumatic experiences over the years and they appear to have taken their toll on her physical and emotional health. In addition, she currently has outstanding, over and above her debts to the Commonwealth, debts of some $4,500.00 including debts of over $3,000.00 for essential services and medical treatment. It is arguable that these circumstances are "special" within the meaning of section 1184(1) of the Act and in accordance with the interpretation of the term "special circumstances" by the Federal Court (see Beadle v Director-General of Social Security (1985) 60 ALR 225).
However, in the Tribunal's view, the most unusual and "special" of the Respondent's circumstances is that she, in effect, received none of the proceeds of her compensation settlement. It was the Applicant's submission that it is commonplace for a person who has a lump sum settlement to have a range of debts and that the Applicant's decision to garnishee the balance of the Respondent's lump sum payment was not unusual and was quite appropriate given the level of indebtedness of the Respondent. The Tribunal is not, in this application, reviewing the decision of the Applicant to garnishee the Respondent's compensation settlement. Rather, it is concerned with the range of circumstances of the Respondent's case and the question of whether those circumstances are "special".
In Secretary, Department of Social Security v Smith (1991) 30 FCR 56, von Dousa J said of the equivalent in the Social Security Act 1947 of sections 17, 1165 and 1184:
"The arbitrary nature of the provisions of s 152 would have been quite apparent to the legislature. The "50 per cent rule" in s 152(2)(c)(i), and the other provisions to which I have referred, are intended to operate together as a fair balance of the interests of the recipient of the payment with the competing interests of others in the community whose needs must be met as far as possible from a finite budget allocation for social security measures. As I observed in Banks, [at 23 FCR 416] (at 424), it is in the very nature of an arbitrary provision that it can entail a degree of unfairness in a particular case. The scheme of Part XVII recognises that perfect matching of eligibilities by dollar amounts or by periods of time for pension and for payments by way of compensation in respect of an incapacity for work is impracticable. At the same time the legislature must have recognised that from time to time a case may arise where the degree of unfairness to a recipient of a payment by way of compensation would bring about an unreasonable or unjust result which was outside that which could be justified by the practical expediency of the arbitrary nature of the provisions in ss 152 and 153. Section 156 was enacted as part of the scheme under Part XVII before the "50 per cent rule" was introduced by the Social Security Amendment Act 1988 (Cth), but this is no reason to construe s 156 as having no operation in respect of a case where the "50 per cent rule" produces a clearly unjust result. Before the 1988 amendment there were other provisions in Part XVII, the strict application of which could operate in an arbitrary way. By its terms the discretion given by s 156 may be exercised where the Secretary (or a body standing in the place of the Secretary on appeal) "considers it appropriate to do so in the special circumstances of the case". These are wide words intended, as the Tribunal in Ivovic pointed out, "to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case". (at 30 FCR 61)
The discretion conferred by section 1184 of the Act is thus very wide and the operation of the preclusion period scheme itself can be one of the wide range of circumstances to be taken into account by the Tribunal in the Respondent's case.
In Kertland v Secretary,Department of Family and Community Services (1999) 95 FCR 64 the Merkel J, after discussing the decision in Secretary, Department of Social Security v Smith (supra), said:
"[40] In the present case an analogous situation has arisen. By reason of the provisions of the TAA, the settlement of the applicant's damages claim necessarily precluded any part of the compensation from relating to pecuniary loss for the period of 18 months following her accident. Accordingly, as in Smith, there could be no double payment of social security payments and compensation for pecuniary loss.
[41] Counsel for the respondent sought to distinguish Smith on the basis that the hepatitis suffered by the worker in that case was unrelated to the injury giving rise to the worker's compensation payable pursuant to the settlement whereas, in the present case, the injury giving rise to the social security benefits was the same injury which gave rise to the compensation payable pursuant to the settlement. In my view the distinction sought to be drawn is not relevant to the policy or purpose for which the discretion has been given under s 1184(1). As has been explained, that purpose is to avoid "double payment" of social security benefits and compensation for loss of earnings or loss of earning capacity. In Smith, double payment did not occur because the incapacity for work was unrelated to the work injury which was the subject of the workers compensation claim. In the present case double payment did not occur because the TAA operated to prevent it, notwithstanding that the same incapacity gave rise to the entitlement to social security benefits and damages.
[42] Contrary to the respondent's contention, absence of a double payment has not arisen solely by reason of the operation of the TAA or the Act. Rather, it has arisen by reason of the operation of the TAA in the context of the particular circumstances of the applicant. Relevantly, those circumstances were that she was not an "earner" for the purposes of the TAA in the period prior to her accident. The consequence was that, for the period of 18 months following the accident, her personal circumstances were such that she was not entitled under the TAA to weekly payments in lieu of lost earnings, or to any other compensation as a result of loss of earnings or loss of earning capacity.
[43] In the present case, it was open to the AAT to find that no part of the compensation the applicant received related to a period during which social security payments were payable with the consequence that, as there has been no "double payment", there were "special circumstances" for the purposes of s 1184(1). In such circumstances the exercise of the discretion under s 1184(1) would not be inconsistent with the policy and purpose of the statutory scheme. As was noted by von Doussa J in Smith (at 61-62) the very purpose of the ameliorating provisions of s 156 (and now s 1184(1)) is to enable the discretion to be exercised where it is appropriate to do so because the circumstances of the particular case will give rise to an unreasonable or unjust result under the scheme."
The Respondent to this application received none of her compensation moneys. It is therefore arguable that there has been no double payment. The Applicant submitted that the application of the Respondent's compensation settlement to the reduction of her indebtedness to the Commonwealth was to her advantage and benefit. However, there is a tension within the legislation that undermines that submission.
On the one hand, section 17 of the Act characterises 50% of the Respondent's compensation payment as compensation for economic loss – the point of that being to prevent double payment to the Respondent who can, in theory, rely on her compensation payment. On the other hand, section 1233 of the Act allows the Applicant to garnishee that compensation payment and thereby prevent the Respondent from using those compensation moneys to support herself. In the Tribunal's view, the simultaneous application of those provisions, in the Respondent's circumstances, produces an unjust and unreasonable result.
The Respondent's situation is distinct from that of a person who receives a compensation settlement and then must apply those moneys or the bulk of them to discharge the debts accumulated during the period for which he or she is being compensated. The moneys never reached the Respondent and she had no opportunity to apply them to either her living expenses or to the full range of debts she had accumulated.
As a creditor, the Applicant is in an unusual situation, being able, as it is empowered under the Act, to directly garnishee the proceeds of a workers compensation settlement. Such settlement moneys are generally inalienable under the legislation pursuant to which they are paid. Section 235 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provided relevantly:
"Non-assignability of compensation
235     (1)      Compensation under this Act (including the 1987 Act and the former 1926 Act):
(a) is not capable of being assigned, charged or attached, and
          (b) does not pass to any other person by operation of law,
nor can any claim be set off against that compensation.
(2) Subsection (1) has no effect to the extent to which (but for this subsection)   it would operate to prevent:
(a) the satisfaction of an obligation by the worker to maintain another person pursuant to an order of a court of competent jurisdiction, or
          (b) the passing of accrued vested rights of a deceased worker to the legal personal representative."
However section 1233 of the Social Security Act 1991 at the relevant time provided in part:
"Garnishee notice
1233.(1) If a debt is recoverable from a person (in this section called the "debtor") by the Commonwealth under section 1227A or 1230C of this Act or under the 1947 Act, the Secretary may by written notice given to another person:
(a)by whom any money is due or accruing, or may become due, to the debtor; or
(b)who holds or may subsequently hold money for or on account of the debtor; or
(c)who holds or may subsequently hold money on account of some other person for payment to the debtor; or
(d) who has authority from some other person to pay money to the debtor;
require the person to whom the notice is given to pay the Commonwealth:
(e)an amount specified in the notice, not exceeding the amount of the debt or the amount of the money referred to in the preceding paragraph that is applicable; or
(f)such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied; or
(g)such percentage as is specified in the notice of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied
…

1233.(7F) This section applies to money in spite of any law of a State or Territory (however expressed) under which the amount is inalienable."

Of course, the decision taken by the Applicant to garnishee the Respondent's compensation payment is not under review by the Tribunal and there is no scope in this review, nor any intention on the part of the Tribunal, to consider the merits of that decision. However, the availability to the Applicant of a recovery method that purports to apply, presumably by virtue of section 109 of the Commonwealth of Australia Constitution Act, to an otherwise inalienable amount is one of the circumstances in this case and in the Tribunal's view, gives rise to an unreasonable and unjust result (Smith (supra) and Kertland (supra)) in this case.
The Applicant argued that the history and extent of the Respondent's indebtedness to the Applicant should be taken into account by the Tribunal in deciding whether to exercise its discretion under section 1184 of the Act. The Respondent's indebtedness to the Applicant is indeed extensive and the Tribunal notes that she has been prosecuted in relation to that indebtedness and ordered to make restitution. However, the Tribunal is concerned here with the full range of her circumstances and the issue of whether those circumstances "have a particular quality of unusualness" (Beadle, supra). The Tribunal does not consider that the unusualness of the Respondent's circumstances is overshadowed by the extent of her indebtedness to the Applicant. That indebtedness is being addressed by the Applicant by pursuing the various recovery methods available to it under the Act. The Tribunal remains concerned, however, by the unjust result, in the Respondent's circumstances, of the simultaneous application of both the provisions of the Act allowing for the recovery of a charge on compensation moneys arising out of a preclusion period and those provisions that empower the garnishee of the entire balance of those moneys and the withholding of an amount from the Respondent's social security payments.
This unjust result, combined with the personal tragedies, debt and ill health suffered by the Respondent amounts, in the Tribunal's view, to special circumstances.
The decision under review was to treat so much of the Respondent's compensation payment as having not been made that would reduce the charge arising from the preclusion period by $3094.00. That figure was based on the sum of the amounts owing by the Respondent for physiotherapy and costs relating to her motor vehicle. Given the Tribunal's view as to the effect of the concurrent operation, in the Respondent's circumstances, of sections 17 and 1233 of the Act, there is no part of the "compensation charge" that is immune from that effect. The Tribunal considers that it is appropriate in the special circumstances of this case to treat, for the purposes of Part 3.14 of the Act, the whole of the Respondent's compensation payment as not having been made.
Determination
The decision under review is set aside and in substitution therefor the Tribunal decides that it is appropriate in the special circumstances of this case to treat, for the purposes of Part 3.14 of the Social Security Act 1991, the whole of the Respondent's compensation payment as not having been made.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed:           H. Sim           .....................................................................................
  Associate
Date of Hearing  22 March 2002
Date of Decision  17 May 2002
Advocate for the Applicant      Mr Bernard Slattery
Solicitor for the Respondent   Ms Sandy Clark