Henderson and Secretary, Department of Family and Community Services

[2004] AATA 541

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 541

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION            N2003/110

Re: Warwick Leslie HENDERSON

Applicant

And: SECRETARY, DEPARTMENT of FAMILY and COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             27 May 2004

Place:            Sydney

Decision:      The Administrative Appeals Tribunal sets aside the decision under   review and in substitution decides that the length of the preclusion   period           should be reduced by thirty months.

(sgd) P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

SOCIAL SECURITY –– compensation payment – lump sum – preclusion period – special circumstances – discretion -  decision under review set aside

Social Security Act 1991 s.1184K

Secretary, Department of Social Security v Thompson (1994) 36 ALD 563
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Kastoras and Secretary, Department of Family and Community Services [2001] AATA 265
Re Hakim and Secretary, Department of Social Security [1998] AATA 233
Secretary, Department of Social Security v Hulls (1991) 22 ALD 570

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      On 1 March 2001, the District Court of New South Wales gave a verdict and judgment in favour of Warwick Leslie Henderson (the applicant herein) against the Ambulance Service of New South Wales in the sum of $407,050.71. Centrelink initially calculated a lump sum preclusion period from 3 March 2001 to 21 April 2006. At Mr Henderson’s request, Centrelink reviewed the imposition of the preclusion period.  An authorised review officer decided on 27 November 2001 (T19) that, while there were no special circumstances in Mr Henderson’s case that warranted shortening the preclusion period, the period was found to have been wrongly calculated.  Mr Henderson was informed that the correct expiry date was 26 January 2007.

2.      Mr Henderson appealed against the imposition of the preclusion period to the Social Security Appeals Tribunal (SSAT).  By a majority, on 7 January 2003 the SSAT decided that it was not appropriate to exercise the discretion to reduce the preclusion period.  Mr Henderson has requested the Administrative Appeals Tribunal review the SSAT’s decision.

3. At the hearing in Newcastle, Mr J McClintock, solicitor, appeared for Mr Henderson. The Secretary to the Department of Family and Community Services (the respondent) was represented by Mr E Thistlethwaite from Centrelink. The tribunal heard evidence from Mr Henderson and had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered at the hearing.

ISSUE

4. The only issue in dispute is whether there are special circumstances under s.1184K of the Social Security Act 1991 (the Act) that would allow the whole or part of Mr Henderson’s lump sum compensation payment to be disregarded and so reduce or eliminate the preclusion period. In relation to the discretion that allows the tribunal to shorten the preclusion period, s.1184K of the Act provides:

1184K(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.

evidence

5.      Mr Henderson is 51 and currently unemployed.  His mother, sister and brother are his immediate family.  He is a carpenter and joiner by trade, but has not worked in the building industry for many years.  He joined the Ambulance Service of New South Wales on 17 October 1976.  For many years Mr Henderson did his job alone but then he was provided with an assistant.  From 1995 he was subjected to assaults and psychological abuse by his assistant.  Mr Henderson left the Ambulance Service in January 1997.  Subsequently, he worked in a funeral parlour, where he had been a part-time manager for 15 years, and as a personal carer for aged people.  On advice from his psychiatrist he discontinued his work in around 2000.

6.      In September 1999 he was given leave by the District Court to commence a common law action against his former employer for the injuries he received at work.  His action was successful.  On 11 April 2001 his solicitors wrote to him as follows: (T8):

We have pleasure in advising that we have now received a cheque from the defendant in relation to this matter and we accordingly advise that we hold in our trust account no your behalf a sum of $111,977.22 calculated as follows:

To verdict inclusive plus costs:   $407,050.70

Less amounts paid direct by the defendant:

Health Insurance Commission – advanced payment        $40,705.07

Workers Compensation Payments  $128,201.32

Amount received by us from the defendant  $238,144.31

Less medical expenses paid direct by us:

Dr Kin Low  $41.00

Progressive Osteopathics Pty Ltd  $80.00

$121.00

Less our costs as per the enclosed memorandum  $126,046.09

Balance$111,977.22

7.      A statement made by Mr Henderson on 4 July 2003 was accepted in evidence (Exhibit A1).  Mr Henderson stated as follows:

On 17 April 2001, I initially received $111,977.22 after liabilities for the Health Insurance Commission, past Workers Compensation, legal costs and outstanding disbursement were deducted.

I later received a refund from the Health Insurance Commission of $39,412.47.

I received a further $80,000 as settlement by the GIO of my claim on them for $113,160.86 in legal costs representing a shortfall of $33,160.86.

Consequently, I received in total $231,389.69.

After I received the judgement, I paid the following to my St George Bank Home Loan Plus account:

1 May 2001  $10,000.00

29 August 2001  800.00

26 September 2001  900.00

26 October 2001  80,000.00 (from my solicitor’s trust fund account)

11 January 2002  4,748.84

23 October 2002  2000.00

Total  $98,448.84

I also made the following large payments:

26 April 2001  $15,177.75 to Ford Credit to pay out my car loan

27 April 2001  $30,000 to repay my mother

11 May 2001  $15,000 repay my brother Bryson

9 July 2001  $15,000 repay my sister, Patricia

Total  $75,177.75

Thus, after paying $173,626.59 for my debts and reducing my loan from St George, I was left with $57,763.10.

Because of the money I had spent out of my Companion Credit Union Account, I received the following payments into that account as loans from my mother:

18 August 2001  $3,000

22 September 2001  $3,000

19 October 2001  $5,000

15 October 2002  $2,000

TOTAL  $13,000

I also transferred the following from my Home Loan Plus account to my Companion Credit Union account:

5 September 2001  $2,500

2 November 2001  $5,000

28 November 2001  $4,000

14 December 2001  $4,000

22 December 2001  $1,500

3 January 2002  $3,000

12 February 2002  $4,000

19 March 2002  $3,500

19 April 2002  $4,000

4 May 2002  $4,000

3 June 2002  $4,000

27 June 2002  $3,000

25 July 2002  $2,000

16 August 2002  $1,200

6 September 2002  $1,000

20 September 2002  $1,000

TOTAL  $47,700

As a result of my transfers to the Companion Credit Union and other payments from the Home Loan Plus account my level of indebtedness to St George rose to $94,409.28 on 31 October 2002.

8.      Mr Henderson resides in a three bedroom, brick veneer house that he built in around 1987. In evidence he said he financed the acquisition of his home by borrowing about $60-70,000 from his brother and brother-in-law. The arrangement was that he would re-pay them when he could afford it. 

9.      He has also borrowed money from St George Bank Limited which is secured by a mortgage over his home.  A local firm of estate agents has prepared a market appraisal of the property (Exhibit A4) and at 24 October 2003 they estimated its sale price to be $230,000 to $240,000.  When he was receiving compensation pending the resolution of his court case, he said his mother supplemented his income.  He said that the compensation payments barely covered his mortgage payments.

10.     Apart from his house, Mr Henderson owns a 1995 Ford Taurus estimated to be worth around $13,000 to $15,000.

11.     In December 1998 Mr Henderson was in arrears on his mortgage. St George Bank issued a notice of intention to exercise its power of sale.  He said in evidence that he was also falling behind in his payments for Ford Credit.  He arranged with both institutions to pay back his debts in full when he received his judgment monies from the District Court case. Mr Henderson told the tribunal that he felt obliged to pay because he considered it a gentleman’s agreement.  A letter from Mr Henderson’s solicitor (T25) dated 24 November 2002 stated that she was aware of the agreement between Mr Henderson and Ford Credit and St George, and subsequently kept them apprised of the progress of his claim in the District Court and eventually arranged for the debts to be paid out of the lump sum awarded at judgment. 

12.     As to his knowledge of a preclusion period prior to receiving the lump sum, Centrelink wrote to Mr Henderson on 4 April 2001 (T7) and his solicitor wrote to him on 11 April 2001 (T8).  The solicitors stated that “As you will note there is also a preclusion period applying to you in relation to Social Security benefits. The preclusion period, as advised by Centrelink is 3 March 2001 to 21 April 2006. It is important to keep this preclusion period in mind when you are planning your financial affairs on the application of the settlement money.”  Subsequently, Mr Henderson’s solicitors sent a letter dated 17 April 2001 to Centrelink requesting a review of the preclusion period (T9).  Mr Henderson’s evidence, however, was that he cannot remember discussing the preclusion period with his solicitor before he received the verdict.  He recalls he first became aware of the preclusion period just before he wrote a letter about it to his M.P., Mr Bob Horne, on 20 August 2001 (T12). 

13.     Mr Henderson’s evidence was that he could not remember where and how he spent sums of money after he received his lump sum.  It appears that he used the lump sum to pay out Ford Credit and St George Bank, and in addition gave $30,000 to his mother. He repaid the $15,000 he borrowed from his brother in around 1987.  He gave $15,000 to his sister as her husband had just passed away and he felt she had no way of supporting herself.  Unfortunately, after paying off his debt to St George Bank, Mr Henderson again started to finance his activities by drawing down on his line of credit with the bank and so his indebtedness grew.  Statements from Companion Credit Union covering May 2001 to October 2002 (T6) disclose large purchases made at electrical and computer stores. Substantial regular purchases over this period of time also appear to have been made at Big W, on internet and Foxtel services, magazine subscriptions, and various retail shops as well as improvements to his laundry and backyard.  On advice from his psychiatrist he enjoyed a month’s holiday staying with friends in Fiji and he outlaid funds on a hobby.

14.     When the compensation money ran out, Mr Henderson said he intended to find employment to support himself. Despite the advice of his doctors to cease work at the funeral parlour, and their opinion that due to Mr Henderson’s disabilities his employment prospects are extremely poor, Mr Henderson said that he is still puts in applications for jobs. He told the tribunal that he has not been successful except for finding work at an animal crematorium, which his psychiatrist would not allow him to take, and a carer’s position, which was also unsuitable for someone with his symptoms.

15.      In June 2003 Mr Henderson’s mother, aged 88, suffered a stroke.  Following rehabilitation, she moved in with him because she could no longer look after herself. He does the cooking and the general household chores, and his mother gives him moral and financial support. Mr Henderson’s evidence is that his mother has sold her home for $184,310 (exhibit A13). His mother is in the process of buying a half interest in his property for approximately $115,000. He has already received $96,000 from his mother and has paid this amount off his St George Bank debt.  On completion of the sale of the half interest, he expects to receive a further sum of approximately $15,000 (after charges) from his mother.  

Medical Evidence

16.     Dr T McDonald, consultant psychiatrist, reported on 30 April 2003 (Exhibit A9) that he has been treating the applicant at fortnightly intervals since September 1996.  Dr McDonald diagnosed post traumatic stress disorder as a result of the assaults at work as an ambulance officer.  He thought it unlikely that Mr Henderson’s symptoms would clear completely.  Further, Dr McDonald noted that for a long period of time Mr Henderson was frankly depressed, anxious to the point of agoraphobia, and in particular his cognitive processes have been adversely affected.  Dr McDonald reported

… he has had difficulties with concentration, maintenance of a logical stream of thought, expression of the thought, and clear communication with others.  Whenever he is feeling tense or under pressure, these difficulties are heightened.  The continuation of physical pain has accentuated these problems.  More than anything else, his cognitive impairments represent a barrier to his returning into the work force.  On a more basic level, his attentional problems appear to impeded his efficiency in day to day activities, such as domestic organisation.   

Dr McDonald concluded:

I note that the Social Security Appeals Tribunal (SSAT) discussed the issue of Mr Henderson’s managing of his finances.  In my view, given the symptoms from which he continues to suffer (as outlined above) it is probable that his ability to make rational informed decisions regarding expenditure has been adversely effected by his PTSD.  It is conceivable that he made some purchases in an effort to sooth his anxiety, albeit in ways that may have created more problems for himself than he realised at the time.  His capacity for pleasure has been diminished as a result of his PTSD, particularly as he becomes anxious when he is away from home.  This might explain the apparent excessive expenditure on certain domestic items, given that for much of the last few year he has become much more socially isolated than was the case earlier in his life.

The imposition of the preclusion period, in my opinion, has exacerbated Mr Henderson’s sense of helplessness, and consequently his chronic depression.

17.     Dr A Schwarzer, consultant physician in rheumatology, reported on 31 July 2003 (exhibit A8) that he has been treating Mr Henderson since 1996 for neck pain, severe headaches, musculoskeletal pain, back pain, and numbness in the limbs caused by the assaults and subsequent injuries sustained while working for the Ambulance Service. More recently, Mr Henderson’s back pain had been exacerbated by a fall in his backyard.  Along with constant analgesics, Dr Schwarzer has performed radiofrequency denervation on Mr Henderson in order to alleviate the severe headaches and pain, however in his opinion:

… Mr Henderson’s prognosis is very guarded.  Some eight years after sustaining his injuries he continues to report significant neck pain, headaches and upper limb pain.  He also reports low back pain and left lower limb pain.  There has been some improvement over time and with the use of treatments such as medications and the radiofrequency neurotomies.  However, even despite these interventions, he remains significantly disabled.  I consider that it is more than likely that he will experience pain long term.  He will continue to rely on medications and the radiofrequency neurotomy treatments.  I do not consider that there will be any spontaneous improvement.

I consider that Mr Henderson’s neck pain, headaches and upper limb pain severely affected his daily life in every area.  He remains totally unfit to return as an ambulance officer.  I thought that he might be fit for part time sedentary work.  However he has not been able to obtain any employment since ceasing work with the ambulance service.  The recent exacerbation of back pain following the fall has also affected his daily life and capacity to work.

Considerations and Findings

18. Mr McClintock for the applicant submitted that the tribunal should consider the entirety of Mr Henderson’s circumstances, and not focus too closely on discrete aspects of his behaviour in determining whether there are special circumstances. Mr McClintock submitted that in the aggregate, Mr Henderson’s financial, psychiatric, physical and family circumstances are special circumstances that warrant the tribunal’s eliminating the preclusion period pursuant to s.1184K. He cited Secretary, Department of Social Security v Thompson (1994) 36 ALD 563.

19. Mr Thistlethwaite did not disagree with an approach that considered the totality of the circumstances. He contended that Mr Henderson’s circumstances were not unusual enough to justify an exercise of the discretion contained in s1184K of the Act. In his submission the tribunal would be satisfied that the manner in which the applicant spent the lump sum, the availability of his mother as an alternative means of support and the fact that he does not appear to be in danger of losing the roof over his head, are factors that militate against finding special circumstances. Mr Thistlethwaite submitted that Thompson could be distinguished because Mr Thompson made efforts to support himself throughout the preclusion period but these were unsuccessful for reasons beyond his control.

20.     It is not disputed and I find that Mr Henderson received a verdict of $407, 050.71.  Included in this sum, were the following amounts: for past economic loss: $73,671.40; for future economic loss: $153,739.00; and for loss of superannuation benefits: $22,500.00.  The preclusion period, also not disputed, is 308 weeks starting from 3 March 2001.

21.     The following passage from a decision of the tribunal comprising Toohey J, Mr. I.A. Wilkins and Dr. J.G. Billings (Members) has been cited with approval in many subsequent cases dealing with the scope of the expression ‘special circumstances’:

An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be but they must have a particular quality of unusualness that permits them to be described as special. (Re Beadle and Director General of Social Security (1984) 6 ALD 1 at 3)

More recently, Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 (at 545) has said of the expression ”special circumstances” that “ … it would require something to distinguish [an applicant’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.”

22.     Mr Henderson gave lengthy evidence, thus affording the opportunity to find that he presented as a man who was eager to assist the tribunal. He said that following his injuries and persisting up to the present, he lacks the ability to remember the requirements of basic day to day activities. He has to plan these activities in detail, leaving himself notes of what he must do. Mr Henderson’s lapses in memory resulted in significant gaps in the evidence as to how sums of money were spent.  The SSAT commented that it was possible that this was his conscious decision to conceal unhelpful material.  I find that Mr Henderson was informed by his solicitors about the preclusion period before he received his verdict monies, but I accept that his psychiatric condition significantly impaired his judgment and cognitive abilities.  It was apparent to me that he is significantly afflicted by the symptoms identified by Dr McDonald, in particular problems with attention and concentration.  I accept Dr McDonald’s opinion that the applicant’s cognitive functioning has been adversely affected by his post traumatic stress disorder and pain, and that his condition explains his inability to comprehend that the imposition of a preclusion period demanded that he manage his affairs by controlling his spending. Apart from his dealings with the bank and the finance company, with whom he had ‘gentleman’s agreements’, I am satisfied that Mr Henderson has little recollection of how he spent the verdict money he received.

23.     Mr Henderson worked for the Ambulance Service for almost twenty years, mainly as a sole operator. Since the assaults at work, he has suffered significant psychiatric and physical injuries, the symptoms of which are ongoing. He remains hopeful and active in his attempts at finding employment, but in Dr McDonald’s opinion “his cognitive impairments represent a barrier to his returning into the workforce” (exhibit A9).Although he dissipated a large amount of money in a relatively short period of time, without apparent regard for his future financial wellbeing, I accept that his inability to earn an income means that he could not pay off his mortgage in the usual manner. I am satisfied that he believed that, had he not agreed to settle his debts with them at the conclusion of his compensation case, St George Bank would have exercised its power of sale and Ford Credit would have repossessed his vehicle as he had been unable to properly service his loans.  I am satisfied that his anxiety bordering on agoraphobia and his aversion to riding on public transport explains his need for his own vehicle. 

24.     Mr Henderson embarked on a reckless pattern of expenditure on non essential items. In Dr McDonald’s opinion Mr Henderson’s erratic spending and improvident consumption of luxuries, mainly in the form of electrical goods, computer and peripherals, and subscriptions to media services, are explained by his diminished powers of reasoning and his need to deal with his social isolation. Since spending the lump sum, this pattern of consumption has continued.  It has chiefly been made possible by the applicant’s line of credit, which gives him access to a rather large amount of funds. There appears to be little wisdom in his having continued access to such a financial facility with a limit of approximately $100,000, bearing in mind that it is secured over his home. Mr Henderson’s inability to make rational decisions about non essential expenditures and the effects of his anxiety condition, differentiate his behaviour from that considered in Re Kastoras and Secretary, Department of Family and Community Services [2001] AATA 265, a case on which the respondent relied.

25.     Mr Henderson’s mental health has affected his ability to work and presents ongoing physical challenges, such as his stated reluctance to venture outdoors. It is also the significant reason for his excessive and reckless spending that has led to his difficult financial position and I find that this makes his health a factor having “a particular quality of unusualness” that permits it to be described as special.

26.     I have no reason to doubt that Mr Henderson has taken in his mother as an act of loving, filial duty, particularly as his siblings have families and he is a bachelor.   Moreover he said that since his father died, it was in contemplation that at some point his mother would move in with him. I am satisfied on the evidence before me that his mother now has a beneficial interest in his home.  Mr Henderson has an obligation, willingly accepted, to care for his mother and for which he said he receives government assistance in the form of a carer’s allowance.  Considering his equity in the home, which I accept is valued at around $230,000 to $240,000, I doubt that he could improve his financial position by selling the home and finding smaller, cheaper accommodation. I accept that Mr Henderson intends to formalise the arrangement with his mother.  He will transfer a half interest in his home to her in return for the payment she made in October 2003 to St George bank to clear his debt and the shortfall of approximately $15,000 between that amount and the value of the half interest. However, this fortunate situation should not be seen to negate his special circumstances. He is now in a marginally better net financial situation than before he received his compensation except he has no more entitlement to compensation, still has a lengthy preclusion period to serve and must support himself in the interim by relying on his mother’s generosity, which accepting Mr Henderson’s evidence of her limited circumstances, must be causing her some hardship. 

27.     I am satisfied that it would be detrimental to Mr Henderson’s well being to make him sell what is left of his only major assets: his half interest in his house and car, and live off the proceeds until the preclusion period ends.  Einfeld J in Thompson held (at 568) that “ … general factors such as the mental health and social conditioning of the individual” could be considered in determining whether the tribunal should exercise its discretion in s.1184K. Given Mr Henderson’s current physical and psychiatric state specifically his anxiety, social isolation and agoraphobia, and noting Dr McDonald’s opinion that the preclusion period “has exacerbated his sense of helplessness, and consequently his chronic depression” (exhibit A9), I am concerned about the emotional impact that moving house may have on him, and his mother for whom he is the principal carer. His ability to move elsewhere is hampered by his ailments.  Mr Henderson seems to be known in the area from his several years working in the Ambulance Service, and in the volunteer fire brigade.  Although he said that he does not venture out unless absolutely necessary, the familiarity of an area where he has worked and lived for several years may provide him with a sense of security.  While he still suffers from his psychiatric and physical injuries, the tribunal is less inclined to disturb the status quo if it will mean aggravating or exacerbating the applicant’s symptoms.  The tribunal should not add to his feelings of anxiety given his current state.

28.     Mr Henderson said that he no longer does volunteer work, nor, despite his continuing attempts, can he find suitable employment and hence an income.  It is true that his medical condition consists of significant psychiatric and physical disabilities, most of which have been compensated in his verdict, although he did already have a pre-existing condition affecting his back which has been exacerbated by a more recent unrelated fall. He is still receiving ongoing treatment for his injuries and consults his psychiatrist fortnightly. In Dr Schwarzer’s opinion the recent exacerbation of back pain following a fall had also affected Mr Henderson’s daily life and capacity to work and that overall he remains significantly disabled.  His successful attempts to find work, albeit unsuitable work on medical grounds, and the impact of his psychiatric condition on his decision making, differentiate him from the applicant in Re Hakim and Secretary, Department of Social Security [1998] AATA 233, another case referred to by Mr Thistlethwaite.

29.     There is also the issue of the amount of the compensation verdict and what Mr Henderson actually received after payment of his solicitor’s costs and recovery of his party/party costs. I accept that he paid his solicitors $126,046.09 in legal costs of which they claimed $113,160.86, on his behalf against the defendant in the action, in accordance with the order for costs in his favour against the defendant. The defendant in Mr Henderson’s compensation action was entitled to offset against Mr Henderson’s party/party costs its own costs incurred in his application for an extension of time in which to bring his action. After negotiations, and following legal advice, he agreed to accept the amount of $80,000.00 in settlement of his claim for legal costs. The result is that he did not recover some $46,046.09 he has paid in legal costs and his compensation verdict is effectively reduced by that amount. This significant reduction in the monies received from the verdict should be taken into account (cf Secretary of Department of Social Security v Hulls (1991) 22 ALD 570).

30.     I am mindful of the legislative intention of preventing compensation recipients from double dipping by withholding social security payments for a period. That intention should be carried into effect except in the most extenuating circumstances.  Even though Mr Henderson’s financial position may be better than many other social security recipients, his circumstances are different to theirs. The psychiatric condition that has impaired his cognitive faculties and organisational ability, the arrangements with his mother that affect his dispositive powers in relation to his home, the unrecovered legal costs that reduced the amount of his verdict, and the restrictions on his ability to find work resulting from his headaches, neck and back pain recently aggravated, constitute special circumstances.

31. Over three years of the preclusion period has elapsed. It will conclude in January 2007. Considering the material before me and balancing the interests of the applicant against those of the taxpayer, I am satisfied that in the special circumstances of this case it is appropriate to exercise the discretion in s.1184K. In Thompson, Einfeld J addressed as follows the manner in which a decision maker may appropriately implement an exercise of the discretion in s.1184K:

But when a special circumstance relates not to a specific element of the compensation award, but to the general circumstances of the recipient, the decision maker … would rather direct its mind to the effect on the recipient of any reduction in the preclusion period. It may be that after such consideration the tribunal decides on some time by which the period should be reduced. … [a tribunal] may express that opinion in terms of the length by which the period should be reduced, without specifying the corresponding reduction in the compensation sum. (at 569)

32.     Accordingly I set aside the decision under review.  In lieu I decide that the length of the preclusion period should be reduced by thirty months.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision of Senior Member Lindsay

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

Hearing  30 October 2003
Decision  27 May 2004
Applicant’s representative        Legal Aid Commission
Respondent’s representative    Centrelink