Hoins-Romanov and Secretary, Department of Family and Community S Ervices

[2003] AATA 885

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 885

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/189

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LAURENCE HOINS-ROMANOV

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date9 September 2003

PlaceNowra

Decision The decision under review is affirmed.

[Sgd] Mr S. Webb, Member 

CATCHWORDS

SOCIAL SECURITY – compensation – periodic payments in arrears – compensation charge raised and recovered – psychiatric condition – previous financial hardship - whether special circumstances - decision affirmed

LEGISLATION

Social Security Act 1991 sections 17, 1169, 1170, 1180, 1184K, 1237AAD

CASELAW

Re Ivovic and Director-General of Social Services (1981) 3 ALN N95

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Secretary, Department of Social Security v Hulls (1991) 22 ALD 570

Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Secretary, Department of Social Security v Hales (1998) 82 FCR 154

REASONS FOR DECISION

9 September 2003 Mr S. Webb, Member        

1.      This application by Laurence Hoins-Romanov (“the Applicant”) is for review of the decision of the Social Security Appeals Tribunal (“the SSAT”), dated 26 November 2002 (T2), to affirm the decision of an authorised review officer (“ARO”), dated 17 June 2002 (T89).  The ARO affirmed the decision of a delegate of the Secretary, Department of Family and Community Services (“the Respondent”), dated 17 May 2002 (T82) and stated (T89, f360):

“Having regard to the intent of the legislation and after considering all of the circumstances of your case I do not consider there are any sufficiently unusual or uncommon aspects to accept as special circumstances.  That is why I have decided not to exercise the discretion under s1184 to change the amount being assessed as periodic compensation for the purpose of calculating the charge.”

2.      The Respondent’s delegate stated (T82, f342):

“We have been advised that you are entitled to receive a payment of $240,575.38 (GROSS) which represents an arrears payment of periodic compensation payments for the period 3 September 1992 to 29 April 2001.

As you and your partner have received Centrelink payments of $124,040.90 for the same period, $121,255.15 is required to be paid back to us.

We have therefore asked DVA Military Compensation and Rehab section to repay $121,255.15 to us before they pay you the rest of your compensation payment. The authority to do this is under section 1184 of the Social Security Act 1991.”

3.      The Applicant gave oral evidence and represented himself at the hearing in Nowra on 2 July 2003.  Mr E. Thistlethwaite, an advocate from Centrelink’s Service Recovery team, represented the Respondent.

4.      The following materials were tendered in evidence before the Tribunal and labelled as follows:

ExhibitDescription

T1 to T99Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

A1Report by Professor Philip Mitchell, dated 2 October 2002.

A2Applicant’s bundle of documents.

R1Respondent’s Statement of Facts and Contentions dated 30 June 2003.

5.      The Tribunal permitted the Applicant to submit further relevant medical information after the hearing and for both parties to make supplementary written submissions thereafter.  The following materials were filed and are labelled as follows:

A3Applicant’s supplementary submissions dated 23 July 2003, with attachments.

A4Letter from the Applicant, dated 15 August 2003, with attached correspondence.

A5      Applicant’s final submissions dated 10 August 2003.

R2      Respondent’s supplementary submissions dated 31 July 2003.

background

6.      The following background is provided by way of information only and is not in dispute.

7.      The Applicant was born on 24 April 1939.

8.      On 28 April 1957 the Applicant join the Royal Australian Navy (“RAN”).

9.      On 29 February 1960 the Applicant was involved in an incident on HMAS Melbourne (T6).

10.     On 10 March 1962 the Applicant was involved in an incident in Singapore (T8).

11.     On 25 March 1963 the Applicant was selected for Air Traffic Control training with the Commonwealth Department of Civil Aviation (T14) and left the RAN to take up this training on 14 April 1963.  The Applicant received an Air Traffic Controller Licence on 16 January 1964 (T15) and was stationed at the Canberra Airport in July 1964 (T18).

12.     In July 1970 the Applicant commenced employment with Honeywell Australia Pty Ltd in the position of Corporate Training Coordinator (T74, f213).  On 7 November 1974 the Applicant threatened to commit suicide and was admitted to Callan Park Hospital (T22 and T23).  He was diagnosed with alcoholism and Cyclothymic Personality Disorder and discharged on 12 November 1974.

13.     On 21 May 1982 the Applicant attempted to commit suicide and attended the Casualty Department of the Royal Prince Alfred Hospital (T28).  He was transferred to the Rozelle Hospital and a Situational Stress Reaction was diagnosed (T29).

14.     On 12 November 1988 the Applicant married his current wife, June Hoins-Romanov (T53, f143).

15.     On 30 April 2001 the Applicant was assessed for compensation purposes by Dr Robert Kaplan, Consultant Psychiatrist. (T37) Dr Kaplan noted the Applicant was suffering from “1. Chronic Adjustment Disorder 2.  Alcohol Dependence 3.  Organic Personality Disorder” (T37, f110) and reported (T37, f109):

“On the balance of probabilities, the most likely explanation for Mr Hoins’ symptoms is that he developed a Bipolar Affective Disorder, Manic Episodes in remission and Alcohol Abuse after the accident in 1960.”

16. On 26 April 2001 and 1 May 2001 Centrelink wrote to the Applicant in response to his request for information concerning the effect compensation may have on his Centrelink payments (T36, f98 and f100). On 26 April 2001 Centrelink sent a preliminary notice under section 1172 of the Social Security Act 1991 (“the Act”) to the Department of Veterans’ Affairs (T36, f96). 

17.     On 14 June 2001 the Military Compensation and Rehabilitation Service (“MCRS”) informed the Applicant that liability had been accepted for a Chronic Adjustment Disorder contributed to by military service. MCRS also advised that the date of injury was 7 November 1974, being the date the Applicant first sought medical treatment for the condition (T39, f116).

18.     On 14 January 2002 the Applicant sought further information concerning the recovery of Centrelink payments in the event of his receipt of compensation (T41).  In response, Centrelink provided the Applicant with copies of Centrelink payment records from 1987 to 2001 (T42).

19.     On 25 January 2002, MCRS informed Centrelink that it intended to pay the Applicant weekly compensation during the period from 30 April 2001 to 30 June 2001 at the rate of $294.12 per week, and from 1 July 2001 ongoing at the rate of $311.18 per week (T43, f122).  On 1 February 2002 Centrelink sought recovery from the Department of Veterans’ Affairs of a compensation charge in the amount of $6,194.53 (T46, f126) and informed the Applicant (T46, f128).

20.     On 12 February 2002 a delegate of the Repatriation Commission determined that the Applicant’s Chronic Adjustment Disorder was not related to his operational service with the Far East Strategic Reserve (T50).

21. On 4 March 2002 MCRS informed Centrelink of changes to the Applicant’s weekly rate of compensation, applying the new rate of $581.50 from 30 April 2001 (T55, f148). On 5 March 2002 Centrelink informed MCRS that a compensation charge in the amount of $1,050.59 would apply for the period of 30 April 2001 until 18 September 2001 (T57, f152) and revoked the preliminary notice issued on 26 April 2001 (T58, f155). In further correspondence on the same date Centrelink issued a preliminary notice pursuant to section 1182 of the Act (T60, f162) and sought recovery of $1,050.59 from the Department of Veterans’ Affairs (T60, f163), informing the Applicant (T58, f153):

“…the Secretary proposes to recover from Department of Veterans Affairs an amount of $1,050.59, being the amount of social security payments received by Laurence F Hoins-Romanov from 30 April 2001 to 6 November 2001.”

22.     On 6 March 2002 Dr Williams, General Practitioner, recorded conditions suffered by the Applicant when referring him for a cardiovascular assessment, as follows (T59, f159):

“Benign prostatic hypertrophy

Deafness – sensorineural

Obesity

Osteoarthritis hand (right)

Post traumatic stress disorder

Ischaemic heart disease

Hypertension”

23.     On 10 April 2002 MCRS informed Centrelink of its intention to award the Applicant weekly payments of compensation from 3 September 1992 to 29 April 2001 (T70, f179), comprising a total amount of $224,642.16.  Centrelink calculated a compensation debt for the period from 8 July 1993 to 29 April 2001 in the amount of $122,451.18 (T76, f322).  On 7 May 2002, MCRS informed the Applicant that the compensation award ($224,642.16) would be paid following deduction of Centrelink’s compensation charge ($122,451.18) and a taxation deduction ($36,972.00), comprising a net amount of $65,218.98 (T78, f325).

24.     On 15 May 2002 the Applicant sought a review of the decision to recover the compensation charge by an ARO (T81).

25.     On 17 May 2002 Centrelink informed the Applicant that the amount recovered from MCRS ($122,451.18) did not include previously recovered amounts and the correct amount of the charge was $121,255.15. Centrelink advised that an amount of $1,196.03 would be repaid to the Applicant (T82, f340) and stated (T82, f344):

“You received an arrears of periodic payment totalling $240,575.38 for the period 3 September 1992 to 29 April 2001.  During this period you also received recoverable payments from Centrelink totalling $124,040.90.  Therefore a compensation charge of $121,255.15 was incurred.”

26.     On 17 June 2002 the ARO affirmed the decision under review, stating (T89 f359):

“I have reviewed the calculations of the arrears charge and note that you have had these explained previously.  I have found the calculations to be correct and the recovery in accordance with the law.”

27.     On 25 June 2002 the Applicant sought review of the ARO decision by the SSAT (T90, f368).  On 5 September 2002 the Applicant requested the SSAT delay its decision in the matter in order to enable the Applicant to submit further medical evidence. (T92, f372)

28.     On 12 September 2002 the Applicant was examined by Dr G Luchesse, Ear Nose and Throat Specialist Consultant, and Dr R Burgess, Specialist Audiologist, who diagnosed “Bilateral sensorineural hearing loss, high tone predominantly” (T93, f379).

29.     The Applicant made further submissions to the SSAT dated 11 October 2002 (T96) and 6 November 2002 (T97).  On 18 November 2002 Professor P Mitchell, Psychiatrist, agreed with previous diagnosis of Chronic Adjustment Disorder and observed (T98, f404):

“…I was concerned that [the Applicant]’s beliefs concerning his Romanov descendency and that he was to be the future Czar of Russia indicated that he had developed some form of psychotic illness, apparently beginning in at least 2001.”

30.     On 26 November 2002 the SSAT affirmed the decision under review (T2), in consequence of which the Applicant pursued his right of review to this Tribunal.

issues

31.     The issues before the Tribunal are:

(a)whether the amounts of compensation charge were correctly recovered in consequence of the Applicant’s compensation award; and

(b)whether there are special circumstances whereby it would be appropriate to treat the compensation payment to the Applicant, in whole or in part, as not having been made.

legislation

32.     The relevant legislation in this matter is the Social Security Act 1991 (“the Act”), especially sections 17, 1173, 1174, 1176, 1180, 1181 and 1184K.

evidence of the applicant

33.     The Applicant gave oral evidence and made extensive and detailed submissions concerning his case.

34.     The Applicant told the Tribunal that he had endured “a terrible life” since 1962, having experienced stressors on service, which are summarised in his submission dated 22 July 2003 (Exhibit A3).   His evidence was he attempted to commit suicide on three occasions in 1974, 1982 and 1986.  He gave evidence that he had not been stable in employment and experienced difficulties with successive employers, despite the quality of his contribution for which he received commendations.  He said he had been treated very unfairly.

35.     The Applicant told the Tribunal he had no assets and no debts and did not possess a bank account.  His evidence was that he had lived in poverty for many years, relying on social security payments for his income.  He explained that his life had been very grim but had stabilised to some extent since his marriage to his current wife fifteen years ago.  He estimated the combined household income was approximately $780 per week, including his weekly compensation payments, his disability pension for his right hand and hearing and his wife’s carer’s allowance.

36.     The Applicant referred to the reports of Professor Mitchell, Dr Luchesse and Dr Kaplan to indicate the extent of his health difficulties, which he summarised in Exhibit A3 at 3[h].  He stated that the real extent of his psychiatric problems could not properly be assessed by visual inspection or assessment of his short exposure before the Tribunal:

“I can look, and even be, ‘normal’ until the ‘phone rings, or a car back-fires, or someone knocks at the door, or mail arrives, or any number of everyday and otherwise innocuous events, which can turn people like me into jelly.”

His evidence was that he has sexual dysfunction in consequence of his psychiatric conditions about which Dr Howe Synnott was due to report.

37.     The Applicant gave evidence that he has no contact or dealings with his relatives, including his children, stepchildren and grandchildren.  He said he has no community involvements or hobbies and leads a very isolated life in rental accommodation.

evidence of june hoins-romanov

38.     The Tribunal had before it an affidavit of Mrs June Hoins-Romanov, the Applicant’s wife, dated 25 February 2002 (T53).  Mrs Hoins-Romanov gave oral evidence at the hearing.

39.     Mrs Hoins-Romanov told the Tribunal that in 15 years of marriage the Applicant has not handled any of their finances nor had a bank account in his name.  Her evidence was that he cannot use any modern electronic appliances, such as ATM machines and remote control devices.  She explained that the Applicant “lives in the sixties in his mind”.

40.     Mrs Hoins-Romanov gave evidence that they are repaying a debt of approximately $2,500 owing to a removalist.  She noted the Applicant has difficulty remaining in one place and settling down because of his psychiatric problems.  She told the Tribunal they have moved 11 times in 15 years, coming to the Nowra region in 1991.  Mrs Hoins-Romanov confirmed they do not own any property and own a seven year-old car.  She estimated their expenses as follows:

Rent  $300 per week

Utilities  $50 per week

Consumables  $200 per week

Loan   up to $400 per week

41.     Mrs Hoins-Romanov gave evidence that the lump sum payment of compensation arrears had been expended purchasing their car for $7,000 and buying furnishings, white goods and equipment which they had not previously owned.  She estimated their combined income was $380 to $400 per week prior to the award of compensation, observing that if their income declined to that level again, they would be unable to remain in their current abode.

42.     Mrs Hoins-Romanov told the Tribunal that the Applicant has great difficulty dealing with their children, who don’t visit as a result.  She gave evidence that she does not see her seven children, as there were difficulties between her family and the Applicant concerning religious matters.  Her evidence was that she and the Applicant combined have nine children and 32 grandchildren, but only one of her children has visited them in the last year.  She stated that they have no social life and are not involved in any clubs or groups, and do not go on outings of any sort. Mrs Hoins-Romanov gave evidence that she cannot leave her husband for long periods because of his state of mind and, in consequence, cannot pursue social or familial life or other interests.

43.     Mrs Hoins-Romanov explained that she is experiencing increasing health problems, notably arthritis in her arms which causes significant pain, especially at night.  She expressed concern about her ability to care for the Applicant as her condition worsens over time.  Her concern was motivated in part by a perception that the Applicant’s condition is deteriorating, as exemplified by Professor Mitchell’s observations in relation to psychosis and the onset of sexual dysfunction.  Her evidence was that the Applicant’s anger and aggressive moods were becoming more severe and difficult to cope with.

submissions, consideration of the issues and findings

44.     The Tribunal carefully considered all of the evidence, the submissions of the parties, relevant caselaw and legislation.

45.     The Tribunal found the Applicant and his wife to be honest in their evidence before the Tribunal and no serious challenge was made upon their creditworthiness.  The Tribunal notes the Applicant’s state of mind and psychiatric problems may impinge upon the reliability of his evidence but has no such concern with the evidence of Mrs Hoins-Romanov.  The Tribunal will consider the weight to be given to the Applicant’s evidence regarding controversial matters.

46.     The Applicant made submissions concerning “special circumstances” and “agency”, contending that the question of “agency” will only arise in the event that “special circumstances” are not found.  In the first instance, however, it is necessary to consider matters relating to the raising and recovery of the compensation, which lie at the heart of this matter.

compensation charge

47. It is not in dispute that the Applicant and his wife were paid compensation affected payments during the period in which they subsequently received periodic compensation payments, giving rise to a recoverable compensation charge. The Applicant conceded that the calculation of the amount of the compensation charge notified and recovered by Centrelink under Part 3.14 of the Act was not in dispute. This being the case, the Tribunal accepts the submission of the Respondent that the compensation charge calculation is correct.

48.      Centrelink calculated the amount of $128,500.27 was recoverable from the Applicant’s compensation award, as follows:

period  amount

25 June 1993 to 29 April 2001  $121,255.15

30 April 2001 to 18 September 2001  $6,194.53

30 April 2001 to 18 September 2001 rate increase  $1,050.59

49.     The Applicant received periodic compensation from 3 September 1992 at rates that were specified in a letter from the Department of Veterans’ Affairs to the Applicant dated 7 May 2002 (T78), and the Tribunal so finds.

special circumstances

50. The issue agitated most vigorously by the Applicant in this case concerns the existence of special circumstances. The Applicant made extensive and detailed submissions concerning his claim of special circumstances pursuant to section 1184K of the Act. Section 1184K provides:

“1184K          Secretary may disregard some payments

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.

1184K(2)If:

(a)a person or a person's partner receives or claims a compensation affected payment; and

(b)the person receives compensation; and

(c)the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person's or the person's partner's receipt of, or claim for, the compensation affected payment;

the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1).”

51. The Tribunal is mindful of the authorities concerning “special circumstances” under the Act and the Respondent’s submissions in that regard. Section 115(4A) of the Social Services Act 1947 (“the 1947 Act”), which conferred a similar discretion on the Director-General in cases where “special circumstances” were found to exist, was considered by the Tribunal in Re Ivovic and Director-General of Social Services (1981) 3 ALN N95:

“It is, in our view, the plain intention of s 115 of the Act that in cases such as the present the amount of the liability properly determined in accordance with subsection (4) of that section must be paid unless the Director-General (or on review this Tribunal) is satisfied that special circumstances exist by reason of which the person should be released in whole or in part from that liability (s115(4A)). Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances” for the purposes of s115(4A)(cf. Re Norman(1886) 16 QBD 673 at 677 per Lopes LJ), the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case (cf. Ex parte Bucknell (1936) 56 CLR 221 at 224).… The reference to special circumstances “by reason of which” a person liable “should be released” requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes. In the exercise of the discretion which s 115(4A) confers, the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating the ends or objects which are conformable with the scope and purpose of the Social Services Act 1947: cf Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J. Thus whilst keeping the dominant principle of s 115 in mind, he must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate.”

52.     In the oft quoted case of Re Beadle and Director-General of Social Security (1984) 6 ALD 1 Toohey J said:

“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 described as special.”

53.     In Secretary, Department of Social Security v Hulls (1991) 22 ALD 570 at 581 O’Loughlin J considered that the remarks in Ivovic (supra) and Beadle (supra) apply with equal force and effect to the present legislation. The approach outlined in these cases concerning the comprehension of the term “special circumstances” and the exercise of discretion to waive liability in the context of “special circumstances” has been followed in subsequent cases in relation to section 1184K of the Act.

54.     The Tribunal comprehends two main elements emerging from the Applicant’s voluminous submissions in relation to the existence of special circumstances: health effects and financial hardship.

health effects

55.     The Applicant submitted that the “life threatening” and “career ending” stressors he experienced during his RAN service in 1960, 1961 and 1962 caused him harm and cost him a career as an officer in the Navy (Exhibit A3, pp 4 to 6).  While that may be true, it cannot be said that the Applicant’s experiences 40 years ago constitute “special circumstances” for present purposes.  Many are those who experience adverse events in employment occasioning the loss of career prospects, not least those servicemen and women who suffer injury in the service of their country for which they are subsequently compensated.  The medical evidence makes clear that the Applicant suffered a Chronic Adjustment Disorder and other injuries in relation to which he has been awarded compensation by the Department of Veterans’ Affairs.   Such circumstances cannot be said to constitute “special circumstances”.

56.     The Applicant submitted that his health has deteriorated over time, causing increased symptoms and adverse life effects.   It is not in dispute that the Applicant suffers from a variety of health problems, which may increase with advancing years. Professor Mitchell outlined the Applicant’s reports concerning his claimed Romanov ancestry and role as “future Czar of Russia”, suggesting the Applicant may have a psychotic condition requiring pharmacological treatment (Exhibit A1):

“On the basis of these accounts it appeared to me that [the Applicant] has developed a late onset psychosis of some type, and that these ideas were more than just a preoccupation or obsession."

Dr Synnott diagnosed Male Erectile Disorder noting (Exhibit A3, Attachment 8, p6):

“At the consultation on 30 June 2003, he was a responsive, animated and interesting historian.  He gave an articulate (if not somewhat over inclusive and self absorbed) account of his time in the Navy and from then on.  At no stage was there any evidence of a current psychiatric disorder or psychiatric impairment.

I note that [the Applicant] complains of continuing difficulties with “nightmares”, sweating and a reluctance to leave his “cottage” and socialise with the world (“I am antisocial”).  I also note that he is quite happy in his current situation – this is a deliberate choice, regarding his lifestyle and interaction with the world.”

57.     Whether or not these conditions are causally or in any other way related to his Chronic Adjustment Disorder is not in issue in these proceedings.  The Tribunal accepts the evidence of Mrs Hoins-Romanov that her husband’s health is deteriorating and his mental problems are becoming more difficult to deal with.  The Applicant’s ongoing claims for compensation under the Veterans’ Entitlements Act 1986 are noted.

58.     The question before the Tribunal is whether the Applicant’s health conditions (Exhibit A3, p7) constitute special circumstances whereby it would be appropriate to release the Applicant in whole or in part from the liability to repay the Commonwealth amounts to which he was not entitled following receipt of periodic compensation payments. It is an unfortunate truth that the incidence of mental health problems in the general population is not uncommon.  One only has to consider the many reports in the public media to confirm such a conclusion.  It is also an unfortunate truth for many people that advancing age is associated with deteriorating health. The Applicant’s circumstances are such that he is able to rely upon his wife for care and support and further treatment may assist with his psychiatric condition. 

59.     The fact is the Applicant is being compensated for a Chronic Adjustment Disorder but is not being compensated for a psychotic condition.  Professor Mitchell’s suggestion that the Applicant may have developed a late onset psychosis does not constitute a diagnosis and is not consistent with the conclusions of Dr Synnott.  Dr Synnott found no evidence of a current psychiatric disorder or psychiatric impairment and diagnosed Male Erectile Disorder, in relation to which the Applicant is pursuing a claim for compensation.   While sympathetic to the Applicant’s situation, the Tribunal is not persuaded by his submissions, on the evidence, that the health conditions for which he has not been compensated constitute special circumstances for present purposes. .

60.     The Respondent submitted that the Applicant’s difficulties with modern technology were over-stated, pointing to the various documents produced by the Applicant and tendered in evidence and noting the medical evidence concerning the effects of his disorder is inconclusive.  In the Applicant’s submission, he relied on his wife to produce the documents. Mrs Hoins - Romanov gave evidence that he is not capable of dealing with electronic machines.  The Tribunal finds there is some doubt about the Applicant’s abilities and the effects of his psychiatric condition.  The Tribunal notes that in evidence Mrs Hoins-Romanov stated she suffers from arthritis in her hand and arm.  Such a condition may limit her ability to manipulate the instruments necessary to produce documents such as those tendered by the Applicant. 

61.     The evidence reveals that the Applicant has not incurred significant medical treatment costs in relation to his claimed health conditions during the period covered by his compensation award.  While the Applicant may incur some costs associated with pharmacological treatment for his psychiatric condition in the future, there is insufficient evidence before the Tribunal to support or quantify any such conclusion.

62.     Notwithstanding the Applicant’s submissions, the Tribunal is satisfied and finds that the Applicant’s ill-health, alone, does not constitute special circumstances in this case (see Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464).

financial circumstances

63.     The Applicant conceded that he and his wife are not currently experiencing financial hardship, contending that they experienced financial hardship in the years prior to award of compensation.  Sheppard J observed in Director-General of Social Services v Hales (1983) 47 ALR 281 at 321:

“The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common; they will be impecunious and in straitened circumstances.”

The Tribunal is satisfied that the Applicant’s financial circumstances are straitened and finds that the financial hardship claimed by the Applicant prior to the award of compensation is neither unusual, uncommon nor exceptional.

64.     The evidence is that neither the Applicant nor his wife owns the house in which they live or any other real property.  They own a seven year old car and household furniture, which they purchased with the lump sum payment of compensation arrears, and have a trade debt of approximately $2,500.  The Tribunal accepts Mrs Hoins-Romanov’s estimation that their income currently exceeds the regular living costs.

65.     The Applicant summarised his claims concerning financial hardship thus (Exhibit A5, p7):

“…anyone living on the old age pension, bereft of meaningful assets, and not owning their own home, is living in poverty.

Try living on the dole or the pension in our circumstances and see what its like…” [original emphasis]

66.     The fact is prior to the award of compensation the Applicant and his wife were dependent on social security payments for their entire income.  In submissions the Applicant made it clear that this constituted financial hardship, contending that they will again face financial hardship when the periodic compensation payments cease when he reaches retirement age in 2004.

67.     There is no doubt that surviving on social security payments without accumulated assets or savings or other means of support is not easy and such income does not afford luxury or the acquisition of assets or savings.  It cannot be said, however, that such straitened financial circumstances are unusual, uncommon or exceptional when they are common to many people in similar circumstances.  The Tribunal cannot find that the Applicant’s financial circumstances, which are not easily distinguished from the usual run of cases, constitute “special circumstances” for present purposes.

conclusion

68.     Considering the entirety of the Applicant’s circumstances, the Tribunal is not satisfied that special circumstances exist whereby it would be appropriate to treat, in whole or in part, the Applicant’s payment of compensation arrears as not having been made.

69.     Many of the Applicant’s submissions concerned the alleged inadequacy of the compensation he was awarded, contending that the Respondent, as an agent of the Commonwealth, is liable “to redress that inadequate and unfair compensation” (T1, f10).  The Tribunal notes that the Applicant has not yet pursued his rights of review in pursuit of his compensation claims.  It would not be appropriate to consider the adequacy, or otherwise, of his compensation award as a relevant factor for present purposes until those claims have been conclusively determined.

70.     The dissociation of the Applicant’s extended family is unfortunate but not determinative in the current circumstances in which the Applicant and his wife find themselves.  It is apparent there is an element of choice to be exercised by the Applicant in his rejection of family relationships and social contacts to the extent that the Tribunal is not persuaded, on the evidence, that this is a factor capable of rendering the circumstances special.

71.     It is clear that as the Applicant’s dependency on Mrs Hoins-Romanov grows and her own health problems increase, as appears likely, with the passage of time and advancing age their circumstances may become more difficult.  It is true that a reduction in income may exacerbate their difficulties.  Nonetheless, the Tribunal cannot base its determination of this matter on conjecture about the future and must base its conclusions on the evidence that is before it.

72. It remains for the Tribunal to determine whether applying the relevant provisions of the Act gives rise to anything unfair, unintended or unjust. Keifel J commented in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545:

“The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case (at ALR 229; ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case.  That was, I consider, the only enquiry to be undertaken in this 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.  The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied.”

36.     The Applicant contends that the amount of his compensation award, and the rate of pay it represents, is abjectly unfair and unjust in the circumstances.  In the circumstances, however, this submission is better pursued under the relevant legislative scheme providing compensation and veterans’ entitlements. Unfairness arising from the inadequate award of compensation may be a factor relevant to the existence of special circumstances in some cases (see Re Izard and Director-General of Social Security (1984) 6 ALN N151). However, it cannot be so found in this instance because the Applicant’s claims have not been conclusively determined on review.  In the circumstances it is not appropriate to seek relief from a disputed compensation decision under social security legislation.  The Tribunal is satisfied that application of the compensation recovery provisions in this case does not give rise to anything that is unfair, unintended or unjust. 

37. It is not for the Tribunal to explain the policy underlying the compensation recovery provisions at Part 3.14 of the Act. The Tribunal is mindful of the words of French J concerning the recovery of debts in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 155:

“The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act that recognise that reality. They relate to the writing off or waiver of debts otherwise due to the Commonwealth. This case primarily concerns the proper construction of a section of the Social Security Act 1991 (Cth)… which provides for the waiver of debts where special circumstances are found to exist.”

The fact is the Applicant received compensation affected payments and arrears payments of periodic compensation for the same period. The total compensation charge of $128,500.27 as notified by the Secretary is recoverable pursuant to sections 1180 and 1181 of the Act. The Tribunal is not persuaded by the Applicant’s submissions that the amount, in whole or in part, should not be recovered on the basis that there are special circumstances.

38. The Tribunal is satisfied that the Applicant’s circumstances, while difficult, are not unusual, uncommon or exceptional and finds they do not constitute special circumstances pursuant to section 1184K of the Act. Furthermore, the Tribunal is satisfied that there is nothing unfair, unintended or unjust in the strict application of the compensation recovery provisions at Part 3.14 of the Act in the circumstances.

39. Were the matter to fall for consideration under section 1237AAD of the Act, which deals with the waiver of debts in special circumstances, the Tribunal’s conclusion would be no different. There is no basis on which to write off the recoverable amount pursuant to section 1236 of the Act and there is no evidence before the Tribunal that recoverable amount resulted from the Applicant knowingly making any false statement or failing to comply with a section of the Act.

40.     It follows that the decision under review must be affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

Signed:         A. Krilis
  Associate

Date of Hearing  2 July 2003
Date of Decision  9 September 2003
Representative for the Applicant    Self-Represented
Advocate for the Respondent        Mr E. Thistlethwaite