HGMZ and Secretary, Department of Social Services (Social services second review) - [2020] AATA 978

HGMZ and Secretary, Department of Social Services (Social services second review) [2020] AATA 978 (27 April 2020)

Division: GENERAL DIVISION
File Number(s): 2018/2023
Re: HGMZ
APPLICANT
And Secretary, Department of Social Services
RESPONDENT

Decision

Tribunal: Mr S Evans, Member

Date: 27 April 2020
Place: Sydney

The decision under review is affirmed.

..............[sgd]..............................

Mr S Evans, Member

Catchwords

SOCIAL SECURITY – disability support pension – whether the lump sum was compensation – compensation part of lump sum – lump sum preclusion period – whether special circumstances exist to justify disregarding all or part of the compensation payment – decision under review affirmed

Legislation

Social Security Act 1991 (Cth) ss 17, 1160, 1169, 1170, 1184K(1)

Social Security (Administration) Act 1999 (Cth)

Cases

Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267

Riddell v Secretary, Department of Social Security (1993) 42 FCR 443

Secretary, Department of Social Security v Smith [1991] FCA 280

Secretary, Department of Social Security and Winterbotham [1990] AATA 808

Secondary Materials

Social Security Guide

REASONS FOR DECISION

Mr S Evans, Member

27 April 2020

HGMZ (“the Applicant”) seeks review of a decision made by the Social Services and Child Support Division (“AAT1”) of this Tribunal. On 8 March 2018 the AAT1 affirmed a decision of the Department of Human Services (“the Respondent” or “Centrelink”) that the Applicant was the subject of a lump sum preclusion period from 16 May 2013 to 10 September 2014.
The hearing was held over two days with over three months between hearing dates. The Applicant provided additional material in the interim which was accepted by the Tribunal with the agreement of the Respondent. The Applicant had legal representation at the hearing.
For the reasons which follow, the decision under review is affirmed.

INTRODUCTION

The Applicant has been in receipt of disability support pension since January 2008. On 16 May 2013 the Applicant was involved in a motor vehicle accident and she subsequently made a claim for compensation for injuries she sustained in the accident. The compensation claim was settled on 17 August 2017 by consent for a gross sum of $135,000.
The Respondent was advised of the compensation payment shortly after settlement on 23 August 2017. As compensation for economic loss was a component of the settlement, the Respondent wrote to the Applicant on 25 August 2017 to inform her that a preclusion period had been applied to her disability support pension.
It was calculated that the preclusion period would start on 16 May 2013 and end on 10 September 2014 (“the preclusion period”). On the same day the Department sent a letter to the insurer requesting recovery of $31,142.86 (“the recovery amount”) from the Applicant’s compensation payment.
The Applicant lodged a request for review of the decision to impose a compensation preclusion period which was refused on 7 November 2017 by an Authorised Review Officer (“ARO”). On 8 March 2018 the AAT1 determined that the decision of the ARO should be affirmed.

The Hearing

The Applicant provided oral evidence to the Tribunal where she presented as an intelligent individual with a strong sense of self interest. When a proper question was put her response was often to speak at length around the issue rather than answer the question. Therefore, the Tribunal reluctantly concludes that the Applicant is an unreliable witness.
During the proceedings the Applicant made serious allegations of malpractice and fraud about the lawyer that represented her in relation to the accident. The Tribunal does not accept these allegations and has chosen not to identify the lawyer in these written reasons.
Sadly the Applicant’s daughter passed away after the first day of hearing. Consequently there was a period of months between the first and second day of hearing with the first day of hearing in November 2019 and the second in March 2020. Whilst the delay extended the time it took to hear the matter, there was no detriment to the proceedings.
The Applicant provided extensive evidence to the Tribunal both documentary and oral. All the evidence before the Tribunal has been taken into consideration.

relevant law and policy

The relevant law is set out in the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). Additional relevant information is set out in the Social Security Guide (“the Guide”).
The effect of compensation payments are dealt with by Part 3.14 of the Act. Section 1160 provides that receipt of a compensation payment may:
reduce a person’s compensation affected payment, render a person’s compensation affected payment not payable and or require the repayment of some or all of a person’s compensation affected payment.
Relevantly section17(2) of the Act determines that compensation means:
(a) a payment of damages; or
(b) a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d) any other compensation or damages payment…
Section 17(1) of the Act determines that disability support pension is a compensation affected payment and consequently it is subject to a lump sum preclusion period which is worked out in accordance with section 1170 of the Act. Section 1170(3) relevantly states:
1170 Lump sum preclusion period
…
(3)       If neither of subsections (1) and (2) applies, the lump sum preclusion period is the period that:
(a)       begins on the day on which the loss of earnings or loss of capacity to earn began; and
(b)       ends at the end of the number of weeks worked out under subsections (4) and (5).
Section 1170(4) of the Act provides that the length of the lump sum preclusion period in relation to a person is the number worked out using the formula:
(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:
compensation part of lump sum
____________________________
income cut-out amount
(5) If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.
“Compensation part of lump sum” is defined in section 17(3), as follows:
(3) … the compensation part of a lump sum compensation payment is:
50% of the payment if the following circumstances apply:
(i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and
(ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or…
The “income cut-out amount” refers to the maximum amount of weekly earnings that a person can earn before a pension, at the single person rate, is no longer payable to that person. The formula for calculating the income cut-out amount is contained in subsection 17(8) of the Act.
Section 1169 of the Act deals with compensation affected payments not being payable during a lump sum preclusion period and states:
(1)       If:
(a)       a person receives or claims a compensation affected payment; and
(b)       the person 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 preclusion period.
(2)       In this section:
lump sum compensation payment does not include a lump sum payment:
(a)       to which section 1164 applies; or
(b)       that relates only to arrears of periodic compensation payments.
Section 1164 does not apply to this matter.

Special circumstances

Section 1184K(1) of the Act provides:
1184K Secretary may disregard some payments
(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.

Issues to be determined

The Applicant’s contentions

The Applicant submits that the preclusion period should not apply as there is “no evidence” that settlement had an economic component. She initially contended in her statement (“SFIC”) that her disability support pension was not a Compensation Affected Payment as determined by section 17(1) of the Act, but she withdrew this contention during the hearing. The Applicant also argued an error in the Respondent’s calculation of the preclusion period but she later withdrew this contention also.
The Applicant also contends that she received poor advice from her lawyer during her accident compensation claim and that as a consequence she cannot afford to cover her medical expenses with the compensation she has received. Furthermore, she was charged excessive fees by her legal representative and she has considerable debts which should be considered in the context of the special circumstances provisions in section 1184K of the Act.

Issues for the tribunal

There are two issues for the Tribunal to determine in relation to this application:
(i) Was the lump sum payment ‘compensation’; and
(ii) If so, whether any “special circumstances” exist that would allow the length of the preclusion period to apply to be shortened

Evidence and findings of fact

The accident

Relevantly, the Applicant is a lawyer by training and an experienced litigant as a result of having been involved in a number of motor vehicle accidents for which she has sought compensation.
In May 1995 she was involved in a motor vehicle accident which Centrelink records record she received “other compensation” for and did not affect her Centrelink payments at the time.
In October 1997 she was involved in another motor vehicle accident for which she was compensated $20,000 with no economic loss component. In April 2008 she was involved in a third motor vehicle accident for which she received $175,000 in compensation having sustained injuries to her back and chest.
The motor vehicle accident which is relevant to the issues being considered by the Tribunal occurred in May 2013 (“the accident”). The vehicle she was driving was hit by a passing bus. The driver of the bus was unaware that he had hit the Applicant’s vehicle, but the Applicant reported the incident to police and the driver was able to be identified soon after the collision.

Compensation payment

Over four years after the accident, in August 2017, the Applicant received $135,000 in compensation. Though she had received compensation for other accidents, this was the first such payment that the Applicant received which included a component for economic loss.
A report from her lawyers dated 27 March 2017 indicates that in the accident the Applicant “sustained aggravations to her cervical and lumbar spines, a soft tissue injury to the thoracic spine and an aggravation to her left shoulder” in the accident. She also received a “direct blow” to her left knee.
The Applicant was involved in another motor vehicle accident in 2017. She told the Tribunal that legal action is planned, but she is having difficulty finding legal representation because her injuries are similar to those she sustained in previous accidents. Documents before the Tribunal confirm this.
The Tribunal has before it a NSW District Court Statement of Particulars filed for the Applicant on 13 January 2015 in relation to the accident. It states in part:
PARTICULARS OF LOSS OF INCOME
1. Prior to the motor vehicle accident the plaintiff [the Applicant] studied and obtained qualifications as a lawyer in Lebanon and held various positions upon graduating.
2. …
3. At the time of the motor vehicle accident on 16 May 2013, the plaintiff was unemployed, and the plaintiff was engaging in work proposals. As prior to that, on 25 September 2012, her Specialist Doctor determined that she was fit for employment. Copy of the Specialist Doctor’s finding is served with this statement.
4. On 15 April 2013, prior to the motor vehicle accident, the plaintiff received an offer of employment from ABDULLAH AL ZAROONI in Dubai, and on 1 May 2013, the plaintiff received a second offer of employment from BAWA GENERAL TRADING LLC in Dubai. Both offers were for employment of the plaintiff as a legal consultant. Copies of the offers of employment with translations are served with this statement.
5. On 9 May 2013 the plaintiff accepted the offer of employment with BAWA GENERAL TRADING LLC because they offered more money. The terms of the offer are set out in the employment contract which the Plaintiff was required to sign when she commences her employment. The plaintiff was to commence her employment on 1 July 2013.
6. Prior to taking up her contract of employment the plaintiff sustained the injuries the subject of these proceedings on 16 May 2013. Her injuries prevented her from moving to the United Arab Emirates to take up the employment contract. The plaintiff has lost a significant opportunity for earning income. The plaintiff has been unable to return to work as a legal consultant.
7. The plaintiff’s earning capacity following the accident has been significantly impaired.
PARTICULARS OF ANY OTHER AMOUNTS CLAIMED
1. The plaintiff claims a lump sum for general damages to compensate her for injuries, pain and suffering.
(Emphasis added)
A barrister was engaged by the Applicant to represent her in the case against the owner of the bus that hit the Applicant’s vehicle, Veolia Transport (“Veolia”). The barrister provided written advice to the Applicant’s lawyer on 4 August 2017. The advice states in part:
The primary evidence will of course be by the plaintiff [HGMZ]…
Her evidence will also include the substantial losses that she claims for because of her lost opportunity of taking up work overseas.
On 11 August 2017, prior to settlement, the Applicant’s lawyer filed his own affidavit in the District Court of NSW. The affidavit stated that Mr Behrouz Gholam Ali Bidar, director of Bidar Advocates and Legal Consultants, would be available to provide evidence from Dubai via telephone at the Hearing on 22 August 2017, and annexed a written statement by Mr Bidar setting out the evidence that he would give at the Hearing.Mr Bidar’s witness statement included the following:
12. I have first know [HGMZ] on about the year of 2012.
13. …I have come to know her working as a legal consultant previously in Dubai.
14. Since my first meeting, I gained much knowledge of what she is capable of as a lawyer.
…
16. As a result of my knowledge of [HGMZ], I found out that she is looking for a position in her capacity as legal advisor in Dubai, and so I offered her a job by a letter of employment with a salary of (120,000.00) One Hundred and Twenty Thousand American Dollars or in equivalent in UAE Dirhams Currency Per year from 14/8/2013 to 16/8/2014 Plus for service bonus subject to automatic renewal and with same terms as per my job offer dated April 15, 2013…
17. [HGMZ] accepted my offer of employment on date 28/4/2013 and she was planning to come to Dubai to work on agreed period when I discovered later she had a car accident in Sydney Australia and as a result she was in a lot of pain and could not come to work for the time being.
18. However, [HGMZ] finally contacted me on about the end of June 2013 to tell me that she was unable to take up the position. As a result, the contract with [HGMZ] was cancelled.
[Emphasis added]
On 17 August 2017 a consent judgement was filed with the District Court of NSW between the Applicant and Veolia. Notably the Consent Judgement included the following terms:
4. The plaintiff [the Applicant] agrees to pay out of the judgement sum … any amount payable to the plaintiff for workers compensation, social services, sick leave payments, make-up pay, accident pay, past medical or nursing home expenses or otherwise which may not have been deducted by the defendant’s insurer under these terms, and/or pay to the parties entitled all outstanding medical, hospital, ambulance and other out-of-pocket expenses.
…
9. The plaintiff acknowledges that they were notified by the defendant’s insurer before they accepted the offer of settlement contained in these terms of the insurer’s intention to make an advance payment to the Commonwealth under s33A of the Health and Other Services (Compensation) Act 1995 (Cth)
[Emphasis added]
In a letter from the Applicant’s lawyers to Centrelink dated 23 August 2017 regarding the settlement, it is written “We advise that economic loss was a component of the settlement. We advise there is no workers compensation payback”.
The Applicant contends that the information pertaining to the job offers in Dubai was presented to the insurance company and then to the District Court without her knowledge.
She testified on day one of the hearing that she had used her lawyer to witness documents relating to the job offer prior to the accident in 2013. After she subsequently engaged him to represent her in relation to the accident, her lawyer went back to the documents he had witnessed in his capacity as a Justice of the Peace and presented them as part of the Applicant’s compensation claim. He did this with neither the Applicant’s knowledge nor permission.
On the second day she told the Tribunal that the job offer that was presented as part of her compensation claim was one which is specific to the Dubai job market. It was an offer to keep the position open, pending her traveling to Dubai where the finer details would be worked out. Regardless of the language used, it was not, she contended, a job offer in the way such a document would be regarded in Australia.
In between hearings she provided additional documentation which was accepted by the Tribunal. Much of the documentation relates to her efforts to secure medical evidence pertaining to the 2017 motor vehicle accident, but includes a letter from her lawyer to Veolia’s lawyers dated 2 August 2016 clarifying the Applicant’s job offers.
The August 2016 letter states that prior to accident the Applicant accepted two job offers and that it was her intention to take the better of the two offers after she had met with both employers in Dubai.
The Applicant argued that the existence of two contracts should be accepted as evidence that a job offer and employment contract has a peculiar meaning in Dubai which is different to that in Australia. The Respondent argued that this is a self-serving contention and the Tribunal agrees.
Given her previous experience in being compensated for similar accidents where economic loss was not a consideration, it is possible that the Applicant underestimated the extent to which the introduction of economic loss might impact her net payment. However, given the strength of the documentary evidence the Tribunal does not accept the Applicant was unaware of the claim for damages for lost income that was made on her behalf. Nor is it accepted by the Tribunal that the claim was submitted without her cooperation and assistance.
There is every indication that she is a savvy and engaged litigant. The Tribunal finds that the Applicant was entirely aware of the terms of settlement that were included in the Consent Judgement.
For these reasons the Tribunal is satisfied that the lump sum payment of $135,000 to the Applicant was for damages including a lost capacity to earn component. The payment is therefore a compensation payment as defined by section 17(2) of the Act. Given that the Applicant was in receipt of a compensation affected payment at the time she received the compensation payment, a preclusion period therefore applies.

Calculation of the preclusion period

Centrelink applied the formula and calculated a preclusion period in accordance with section 1170 of the Act. The gross sum of $135,000 is divided by two, being $67,500, to arrive at the “compensation part of lump sum” in accordance with section 17(3)(a)(i) of the Act. The income cut out amount is the amount above which no pension is payable to a single person under the ordinary income test. The formula used to calculate the income cut out amount is contained in subsection 17(8) of the Act.
The Applicant initially contended that the deducted payments exceed what she was entitled to from Centrelink and that Centrelink is guilty of “double dipping” into the Applicant’s savings. The example she cited during proceedings to support this contention does not take into account a lump sum advance repayment that was deducted from her fortnightly payment.
The calculations are clearly set out in the Section 37 Tribunal documents and I conclude that the length of the preclusion period calculated by Centrelink is correct. At the end of the hearing the Applicant’s representative conceded that Centrelink’s calculations were indeed correct.

Special circumstances

The Tribunal, acting in the role of decision maker, may treat a whole or part of the lump sum compensation payment as not have been made or not liable to be made if special circumstances exist.
The Act does not define “special circumstances” and the Respondent draws the Tribunal’s attention to the comments of von Doussa J in Secretary, Department of Social Security v Smith [1991] FCA 280 at [17] who wrote of the imposition of a preclusion period as accompanied by the discretion in section 1184K that they:
Are intended to operate together as a fair balance of the interests of the recipient of the [compensation] 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.
The Full Federal Court in Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 held, at 450:
Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.
Jacobson J in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639 explained the effect of the authorities as follows [emphasis added]:
[51]…the phrase “special circumstances”, although lacking in precision, is sufficiently understood as including events or things that render the operation of the statue in a particular case as unfair, unintended or unjust. What is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists. Moreover, the circumstances of the case are not confined to matters that are external to the operation of the statutory scheme.
The Applicant contends that she meets the requirements for exercise of the special circumstances discretion. She was subject to excessive legal fees and was provided with “negligent” legal advice. She says the application of the 50 per cent rule, whereby half of the payment is deemed compensation, is unfair in her circumstances.
As noted by the Respondent, 4.13.4.10 of the Guide provides that special circumstances are usually not applied where the only special circumstance is the perceived unfairness of the 50 percent rule.
Justice Kiefel considered this circumstance in the matter of Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67. He found as follows:
In the present case the Tribunal considered that the application of the formulae was unfair to the applicant because she would have to pay more than she had received by way of compensation for economic loss, indeed twice as much. That factor will however be present in most cases and is an aspect of the application of the formulae. In my view it cannot, by itself, amount to a special circumstance, one out of the ordinary.
The basis for the Tribunal’s view was its acceptance of what the parties to the settlement said had been offered and accepted for the economic loss component. It was far less than the statute assumed to be the case in applying the formulae. Again, however, this will be so in many, if not most, cases to which the Act applies. Further, the extent of the difference from the basis upon which the parties acted could not provide the necessary “special circumstance”. The statute has selected a figure which may operate in an arbitrary way.
The statutory objectives in utilising the formulae, referred to above, must also be borne in mind. It is not intended that a decision-maker be required to consider contentions about what part of the compensation reflected the economic loss component. That is so whether one has regard to the application of the formulae or the discretion under s 1184. The latter does not alter the objective and must be read in light of it.
Unfortunately it is not uncommon that successful litigants do not end up with the lion’s share of the judgment or award made in their favour, particularly given the legal fees that are payable. It is also common for matters to be protracted and for appeals to further delay and add to the expense of the proceeding.
[Emphasis added]
The Applicant also claims that she had a change of circumstances following the settlement which has added to her medical cost. Specifically, she says that the October 2017 accident has increased her overall medical expenses. Further, the only recourse she has to being compensated for the pain and suffering this most recent car accident has caused is the money which is being withheld by the Respondent.
It is the Applicant’s contention that had she known the preclusion period would apply she would not have accepted the settlement given her legal and other expenses. She submits that her attempt to take legal action against her former lawyer and barrister is evidence that she was misled. This is not accepted by the Tribunal.
Contrary to the Applicant’s earlier submission, under questioning she conceded that she is continuing to explore the possibility of legal action in relation to the 2017 accident.

Financial circumstances

The Applicant contends that she is under financial pressure because of medical expenses and her sole source of income being Centrelink benefits. She says she supports one of her daughters who is studying and has also had to purchase a second car because her other vehicle is a decade old and needs to be repaired frequently.
Following the recent passing of one of her daughters she also had to pay for the majority of the funeral expenses which exceed $10,000. The Applicant’s other children made contributions according to custom but the bulk of the expenses fell to her. The bereavement payment provided by Centrelink was of some assistance, but fell far short of covering the cost.
The Applicant has submitted a Statement of Financial Circumstances and a breakdown of what she submits are the costs she has incurred following the accident. It is broad and lacks useful detail. The Applicant has provided some bank statements and documents which she says detail expenses and loans, but it is not possible to verify some of the key documents or have any confidence that they present a complete picture of her financial affairs. A list of figures is provided but most of which have no context or dates or verifiable documents attached to them. She has also provided a spreadsheet of figures which she contends are loans from her son amounting to over $22,000 dating back to 2010. There is no satisfactory explanation as to what this money was for, how it was used or if and when it needs to be repaid.
The Tribunal must consider what information it has before it and part of that includes the significant compensation payments received by the Applicant previously. The Applicant told the hearing that she took her family on an overseas holiday with the settlement she received for the 2008 motor vehicle accident. She also purchased a new vehicle for approximately $45,000.
The Respondent notes that the Applicant lives with her husband and receives social security payments on the basis that they are separated under the same roof. Accordingly, she received the higher single rate of disability support pension, and now age pension. The Respondent submits that the Applicant’s financial circumstances are no worse than the majority of social security recipients particularly as she is able to share living costs, such as rent, with her husband.
The Applicant has presented a considerable amount of material in relation to her legal representation to the Tribunal. Whilst she contends that she is dissatisfied with the cost of her representation, she received a considerable discount from her lawyer. In total she paid $37,500 in fees and disbursements to her solicitors and $23,500 to her barrister. The case ran for four years and both the solicitor and barrister discounted their fees considerably. The Applicant lodged a formal complaint with the Office of the Legal Services Commissioner regarding her legal representation. The Commission considered the issues of both the advice given regarding the preclusion period and the fees charged by her lawyer and barrister and dismissed the matter without review.

Medical costs

The Applicant submits that she requires surgeries which will cost over $80,000. She has provided some evidence of medical expenses incurred to date. Mindful that the accident occurred in 2013, there is a surgical estimate fee of $4,368 for the Applicant to have surgery on her shoulder and her wrist, $625 for hand and wrist surgery and $1500 for an anaesthetist. The ARO recorded in their 2017 decision that medical receipts totalling just $1,812 had been provided. There is no evidence before the Tribunal that the Applicant has spent anywhere near the quoted figure on medical expenses, or that she intends to.
Additional material was presented to the Tribunal between hearings and I note that the medical evidence provided was oriented towards building a case for legal action relating to the 2017 accident rather than seeking treatment for her injuries. There is scant detail regarding additional medical costs which the Applicant has incurred relating to the accident for which she was provided a significant amount of compensation.

Conclusion

The Applicant made a claim following a motor vehicle accident and it was settled by mutual consent for $135,000 which included compensation for lost earnings. As is usual in such matters, a considerable portion of that settlement went to her lawyer. The Applicant had been compensated in similar circumstances previously but never had it included a component for economic loss. However, it was clearly stated in the settlement agreement and other documents that the economic loss component triggered a requirement that she draw on those funds before receiving income support from the social security system.
This overriding objective was explained by Deputy President Burns in Secretary, Department of Social Security and Winterbotham [1990] AATA 808 as follows:
This particular piece of legislation….was aimed specifically at preventing those people receiving compensation for loss of income because of incapacity for work, from being able also to receive benefit from the public purse…Primary responsibility for the payment of such compensation lies at the feet of those responsible for the compensable injury. Once that responsibility has been met, by way of a settlement sum agreed to by both parties, it is inequitable for the recipient to seek supplementary funds from the taxpayer.
The amount of money she received “in hand” from the settlement was less than she was hoping but still a considerable sum.
I have considered the Applicant’s claims that special circumstances exist to justify disregarding any or all of the compensation payment in order to reduce or waive the preclusion period - including financial hardship, medical expenses, her lack of knowledge about the economic loss component to her settlement, her legal fees and obligations to her children. Based on the evidence, it is my conclusion that these circumstances do not, individually or cumulatively, amount to special circumstances and that the preclusion period applies in full.

Decision

For the reasons stated above, the decision under review is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

.........[sgd]...............................................................

Associate

Dated: 27 April 2020

Date(s) of hearing:

18 November 2019 and 2 March 2020

Solicitors for the Applicant:

Mr E Attia, Attia Lawyers and Consultants

Counsel for the Respondent:

Dr S Thompson, Services Australia