Heather Martin and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 163
•15 March 2012
[2012] AATA 163
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3246
Re
Heather Martin
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Deputy President J W Constance Date 15 March 2012 Place Melbourne The decision under review, being the decision of the Secretary, Department of Education, Employment and Workplace Relations made 7 August 2011, is affirmed.
.....(sgd J W Constance).....................
Deputy President J W Constance
DISABILITY SERVICES – Disability Services Act 1986 (Cth) – meaning of compensation – whether liability to pay Commonwealth for services received limited by nature of compensation received – special circumstances – limitations imposed by State legislation – decision affirmed.
Accident Compensation Act 1985 (Vic), s 99(1)
Disability Services Act 1986 (Cth), ss 18, 20, 22, and 23
Re Beadle v Director General of Social Security (1984) 6 ALD 1
Re Holt v Secretary, Department of Human Services and Health (1995) 38 ALD 467
Re Kevin Lawrence Sheriff v Director-General of Social Security [1983] AATA 41
Re Thomas William Hobbs v Secretary to Department of Social Security [1986] AATA 87
Minister's Second Reading Speech for the Disability Services Bill 1986, Senate Hansard, 12 November 1986, 1978
Oxford English Dictionary (Online)
REASONS FOR DECISION
Tribunal Deputy President J W Constance
Date 15 March 2012
INTRODUCTION
Ms Martin has applied to the Tribunal to review a decision of the Secretary to recover the cost of services provided to her under the Disability Services Act 1986 (Cth).
For the reasons which follow the decision under review will be affirmed.
By agreement of the parties Ms Martin’s application was heard with the following applications:
Pamela Flusk and Secretary, Department of Education, Employment and Workplace Relations No. 2011/3245
Emerlita Alcazar and Secretary, Department of Education, Employment and Workplace Relations No. 2011/3244.
The facts which follow are the facts agreed in Ms Martin’s application. The reasoning is applicable to all three matters and the decision of the Tribunal will be the same in each matter.
AGREED FACTS
In 2006 Ms Martin was injured at work which entitled her to compensation under the Accident Compensation Act 1985 (Vic). As part of her rehabilitation Ms Martin undertook a rehabilitation program funded by the Commonwealth under the Disability Services Act. The cost of the program (which was not billed to Ms Martin) was $1,584.98.
Ms Martin also obtained a “serious injury” certificate under the Accident Compensation Act which permitted her to claim common law damages in respect of the injury.
On 12 December 2008 the Secretary issued a notice[1] to Gallagher Bassett Services Pty Ltd, the insurer of Ms Martin’s employer, which was liable to pay the common law damages to Ms Martin. The notice was headed “Notice of Intent to recover Vocational Rehabilitation Services program costs”. The notice included the following:
Section 23(7) of the DSA prohibits you from making any payment of compensation to Heather Martin until the Commonwealth (via DEEWR) receives full payment for Heather Martin’s VRS program costs. VRS program costs will be specified in future Notices and should be considered an obligatory disbursement before paying compensation to Heather Martin.
[1] Exhibit T5, p.16.
By letter of 12 December 2008[2] the Secretary advised Ms Martin:
By law, Gallagher Bassett Services Pty Ltd must pay your VRS program costs to DEEWR out of your compensation or damages settlement before they pay you any proceeds under the settlement. If Gallagher Bassett Services Pty Ltd pays your compensation or damages settlement without repaying DEEWR first and you have not made “special circumstances” arrangements with DEEWR for this to occur, DEEWR may take legal action to recover those costs from you.
[2] Exhibit T4, p.14.
Subsequently Ms Martin settled her common law claim for $109,210.00, being damages for pain and suffering only. Ms Martin did not recover any damages for expenses related to her treatment.
On 15 February 2011 the Secretary wrote to Gallagher Bassett Services Pty Ltd seeking payment of $1,584.98, being the cost of Ms Martin’s rehabilitation program.[3] Gallagher Bassett Services Pty Ltd paid this amount to the Secretary later that month.
[3] Exhibit T6, p.17.
By letter of 27 April 2011[4] Ms Martin requested the Secretary to release her from liability to pay the amount claimed. On 7 August 2011 the Secretary decided not to release Ms Martin from her liability. He informed her that she would not receive “a refund or release” of her rehabilitation costs.[5]
[4] Exhibit T7, p.19.
[5] Exhibit T13, p.42.
ISSUES FOR DETERMINATION
The issues for determination are as follows:
(1)Was the Secretary entitled to require payment to the Commonwealth by Gallagher Bassett Services Pty Ltd of an amount equal to the cost of rehabilitation services provided to Ms Martin?
(2)If so, do special circumstances exist by reason of which the whole or part of the amount paid to the Commonwealth by Gallagher Bassett Services Pty Ltd should be paid to Ms Martin?
REASONING
Issue 1: Was the Secretary entitled to require payment to the Commonwealth by Gallagher Bassett Services Pty Ltd of an amount equal to the cost of rehabilitation services provided to Ms Martin?
Subsection 23(5) of the Disability Services Act provided the Secretary with the power to issue the notice dated 12 December 2008 to Gallagher Bassett Services Pty Ltd.
The letter from the Secretary to the company of 15 February 2011 seeking payment of $1,584.98 was issued under subsection 23(6) which provides:
The Secretary may, in the same notice or in a subsequent notice in writing served on the person liable to pay compensation, specify:
(a)the cost of the rehabilitation program provided, or being provided, to the person entitled to receive compensation; and
(b)an amount (not exceeding the amount of that cost) payment of which is claimed by the Secretary;
and thereupon the person liable to pay compensation is liable to pay to the Commonwealth:
(c)the amount so specified; or
(d)the amount of the compensation (less any amounts paid, in accordance with an approval given under subsection (7), to the person entitled to receive compensation by the person liable to pay compensation);
whichever is the lesser amount.
It was argued on behalf of Ms Martin that subsection 23(6) should be interpreted to restrict the Secretary’s right to recover the costs of rehabilitation services to those cases where the person entitled to receive compensation is entitled to receive compensation for the costs of those services. In this case Ms Martin was entitled to receive compensation for pain and suffering only. It was put that compensation must be interpreted in the context of “the legal regime in which it operates such that where it is impossible to recover compensation in respect of the particular services provided by the Commonwealth [it… does] not fall within the definition of compensation and ought not to be understood to be compensation that is aimed at by the recovery provisions.” [6]
[6] Transcript 2 February 2012, p. 3.
Counsel for Ms Martin argued that under the Accident Compensation Act it was impossible for Ms Martin to recover damages for the cost of the rehabilitation services she received. Counsel for the Secretary disputed this proposition, referring me to subsection 99(1) of the Accident Compensation Act. It appears that the Accident Compensation Act does provide for the recovery of damages for rehabilitation costs in certain circumstances. However, it is not necessary that I decide this point, as the conclusion I have reached does not depend upon a decision on it. I am prepared to assume, for the purposes of my reasoning, that it was impossible for Ms Martin to recover the costs of the rehabilitation services provided to her.
It was argued further on behalf of Ms Martin that if the meaning of compensation is not restricted the effect of the provisions of the Disability Services Act would be to change the status of a person from that of assisted under the Act (i.e. assisted by the provision of benefits) to that of an unassisted person.
The basic rule of statutory interpretation is to look to the ordinary meaning of the words used. In this case, compensation is defined in subsection 23(1). The definition reads:
compensation, in relation to a person who has undertaken, or is undertaking, a rehabilitation program, means any payment by way of compensation or damages, or that is, in the opinion of the Secretary, in the nature of compensation or damages, in respect of the disability by reason of which the rehabilitation program has been or is being provided, but does not include a payment for which the person has made contributions or a payment made under a law, or a provision of a law, of the Commonwealth, or a State or Territory, being a law or provision prescribed for the purposes of this definition.
There is nothing in the wording of this definition which suggests that it should be read down in the manner argued on behalf of Ms Martin. Further, rather than supporting the argument put on behalf of Ms Martin, consideration of the scheme of the Disability Services Act makes it clear that it was not intended that the definition be restricted in the way proposed.
The provisions of the Disability Services Act under consideration come within Part III – Provision of rehabilitation services by the Commonwealth.
Subsection 20(1) provides:
Subject to section 21, the Secretary may (on the Commonwealth’s behalf) take measures, or enter into arrangements, to provide to persons in the target group such rehabilitation programs, and any follow-up programs, that the Secretary considers necessary or desirable.
The provisions of section 21 are not relevant here.
Subsections (2) and (3) of section 20 set out the nature of services which may be provided. They are extensive and potentially very expensive, including such things as buildings, plant and equipment as well as treatment and training.
The target group is defined in section 18. Ms Martin comes within the target group.
As already discussed, the manner in which the Commonwealth is able to recover the costs of rehabilitation services that it provides is set out in section 23. However the issue of who is to bear the cost rehabilitation services is provided by section 22.
Subsection 22(1) provides:
Subject to subsections (1A) and (1B), the Commonwealth is to bear the cost of, and incidental to, a rehabilitation program provided for a pensioner or beneficiary.
Ms Martin does not come within the definition of pensioner or beneficiary. Subsections (1A) and (1B) are irrelevant.
Section 22(2) provides:
Subject to subsection (3), the cost, as determined by the Secretary, of and incidental to a rehabilitation program provided for a person who is not a pensioner or beneficiary is to be borne by the person.
Taking into account the various provisions of the Disability Services Act I am satisfied that the scheme of the Act is such that the basic rule is that unless a claimant is a pensioner or a beneficiary, the cost of rehabilitation services provided by the Commonwealth under this Act is to be borne by the person receiving the services. For this reason I do not accept Ms Martin’s argument that the word compensation should be interpreted in such a way as to prevent her becoming a person who is unassisted under the Act, when initially she did receive assistance. It is clear that Parliament did intend that this could be a consequence of receiving compensation for the subject injury.
The Second Reading Speech
By reason of the scheme of the Disability Services Act to which I have referred, I do not consider there is any ambiguity in the meaning of compensation as used in the Act. However, if it was considered that there was some ambiguity, a reference to the Second Reading Speech supports the interpretation contended for by the Secretary.
The Minister for Community Services stated:
These services [under Part III] are for people of working age requiring rehabilitation programs for a limited time to enhance their prospects of entering, re-entering or remaining in employment or living independently…
[T]he Bill will enable the Secretary to charge for all or part of the cost of a rehabilitation program where a client has the financial ability to meet that cost. Rehabilitation services will continue to be provided free to those relying on a pension or benefit for their income.[7]
The Minister made no reference to the Secretary being limited to recovering the costs of rehabilitation services to circumstances where the beneficiary had the means of recovering those costs from a third party.
[7] Minister's Second Reading Speech for the Disability Services Bill 1986, Senate Hansard, 12 November 1986, 1978
The Secretary has referred me to several decisions of the Tribunal.[8] There is nothing in those decisions which is inconsistent with the decision I have reached.
Issue 2: Are there special circumstances in existence by reason of which the whole or part of the amount paid to the Commonwealth by Gallagher Bassett Services Pty Ltd should be paid to Ms Martin?
[8] Re Thomas William Hobbs v Secretary to Department of Social Security [1986] AATA 87, Re Kevin Lawrence Sheriff v Director-General of Social Security [1983] AATA 41 and Re Holt v Secretary, Department of Human Services and Health (1995) 38 ALD 467
The power to make such a payment if the special circumstances exist is provided by subsection 23(9). It provides:
Where the Secretary is satisfied that special circumstances exist by reason of which the whole or a part of an amount paid to, or recovered by, the Commonwealth by or from the person liable to pay compensation should be paid to the person entitled to receive compensation, the Secretary may make a payment accordingly.
It is argued on behalf of Ms Martin that special circumstances arise from the fact that her right to recover damages is qualified by Victorian legislation in such a way as to limit not only the quantum, but also the nature, of the damages recoverable.
The relevant definition of “special” in the Oxford English Dictionary is:
…Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree.
This is the basis for the question often posed by the Tribunal in similar circumstances to those in this application, namely, are the circumstances “unusual, uncommon or exceptional”? [9]
[9] Re Beadle v Director General of Social Security (1984) 6 ALD 1 at 3.
On the assumption that the Accident Compensation Act does in fact prevent Ms Martin’s recovering the cost of rehabilitation treatment, I do not agree that this circumstance can be properly described as “special”. This circumstance applies to all persons who are subject to Victorian legislation. There is nothing which can be said to exceed that which is usual or common or which is exceptional in character, quality or degree. There is nothing which has any special application to Ms Martin. Like all who apply for compensation under the Victorian legislation she is bound by the terms of that legislation. In addition, like all those who obtain benefits under the Disability Services Act (except those for whom special provision is made) she is subject to the general scheme of the Act, which provides for those who receive benefits to meet the cost of those benefits.
I do not regard Ms Martin’s claimed inability to recover the costs of rehabilitation as a special circumstance.
CONCLUSION
The decision under review, being the decision of the Secretary, Department of Education, Employment and Workplace Relations made 7 August 2011, will be affirmed.
36. I certify that the preceding 35 (thirty‑five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
…(sgd D De Andrade)..............
Personal Assistant
Date of hearing 2 February 2012 Counsel for the Applicant Mr M Carey Solicitor for the Applicant
Counsel for the RespondentMr S Marcus, Ryan Carlisle Thomas
Mr S Donaghue SC
Solicitor for the Respondent Ms N Bosnjack, Clayton Utz
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3244
Re
Emerlita Alcazar
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Deputy President J W Constance Date 15 March 2012 Place Melbourne For the reasons set out in application no. 2011/3246 the decision under review, being the decision of the Secretary, Department of Education, Employment and Workplace Relations made 7 August 2011, is affirmed.
.....(sgd J W Constance)..................
Deputy President J W Constance
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3245
Re
Pamela Flusk
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Deputy President J W Constance Date 15 March 2012 Place Melbourne For the reasons set out in application no. 2011/3246 the decision under review, being the decision of the Secretary, Department of Education, Employment and Workplace Relations made 7 August 2011, is affirmed.
........(sgd J W Constance)..................
Deputy President J W Constance
0
0
0