Hopper and Department of Family and Community Services
[2001] AATA 222
•12 March 2001
DECISION AND ORAL REASONS FOR DECISION [2001] AATA 222
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/46
GENERAL ADMINISTRATIVE DIVISION )
Re BRIAN HOPPER
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date12 March 2000
PlaceAdelaide
Decision For the reasons given orally at the hearing of this matter the Tribunal affirms the decision under review.
(Signed)
W J F PURCELLSenior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – compensation preclusion period – whether there are special circumstances which make it appropriate to disregard some or all of the compensation payment.
Social Security Act 1991 ss1163, 1165 and 1184
ORAL REASONS FOR DECISION
12 March 2001 Miss WJF Purcell (Senior Member)
This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 11 January 2001, which affirmed the decision of an Authorised Review Officer of 21 September 2000, to impose a compensation preclusion period from 29 June 2000 until 26 December 2001.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). The applicant appeared on his own behalf, and gave evidence by way of telephone link up to his mother's home in Brisbane. Ms Odgers, Departmental Representative, appeared on behalf of the Respondent (the Department).
The applicant, who was born on 9 June 1950, suffered arterial damage in a work accident in February 1998, and has since undergone six corrective operations. His claim for Workers' Compensation was settled, by consent on 26 June 2000, for a lump sum payment in the amount of $67,176.10. His legal expenses were about $1300.00 to $1400.00, leaving a net sum of nearly $66,000.00.
On 15 August 2000 the applicant lodged a claim for Disability Support Pension (DSP). A decision was made to impose a compensation preclusion period from 29 June 2000 until 26 December 2001, and the applicant's claim for DSP was rejected on that basis. The original decision maker affirmed the decision on 23 August 2000, and an Authorised Review Officer affirmed the decision on 21 September 2000. The applicant applied for review to the SSAT, which affirmed the decision on 11 January 2000.
The applicant does not dispute that the Department correctly calculated the preclusion period pursuant to sections 1163 and 1165 of the Social Security Act 1991 (The Act), but submits that there are special circumstances which bring s1184(1) of the Act into operation. This section provides, as far as is relevant for the purposes of this review, provides:
"1184 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.
…"The applicant argues that special circumstances arise because of his inability to work, his current financial status, the state of his health generally, his emotional health, and that his decision-making ability is reduced by his compensable condition.
The Department submits that there are no special circumstances which make it appropriate for the exercise of the discretion to disregard some or all of the applicant's compensation payment, pursuant to s1184 of the Act.
When the applicant was discussing his matter with the Authorised Review Officer, that officer noted on 25 August 2000, a conversation with the applicant in which he gave details of his finances, he advised that he had since early July 2000, spent $15,000.00 to $20,000.00, with :-
"Car $2,500.00
tools $150.00
furniture $900.00TV $2,000.00
Trailer $580.00
Paid Mum's air-ticket $1,700.00 to UK
Loaned brother $1,000.00
Car for son $3,000.00
General living expenses
Had lots of things stolen but wasn't covered by insurance
…
Has $10,000.00 in a trust account but has to pay $32.00 on each withdrawal
Has $19,000.00 in a cash management account". (T9/25-26)
On 29 December 2000, the applicant contacted a Centrelink officer and advised that he had no money left,and was in dire financial circumstances.
The applicant gave evidence that between August 2000 and January 2001, he spent the following amounts:
Rent $4,300.00
Car 995.00 (for son)
Repairs 400.00
Car 1,200.00 (for himself)
Registration 135.00
Repairs 700.00 (to transmission)
Food 6,400.00
Trailer 580.00
Registration 74.00
Mothers trip 1,800.00
Sister loan 900.00
Bills 900.00
Furniture 3,000.00 (inc fridge & washer)
Van 1,600.00 (stolen but recovered worthless)
TV 265.00
Video 145.00
Son's Birthday 800.00
Police Fines 660.00
Petrol 1,200.00
Christmas 500.00 (presents)On the applicant's evidence, it appears that between the time of the Authorised Review Officer's notations on 25 August 2000, and the SSAT Hearing on 11 January 2001, the applicant had spent approximately $29,000.00 on household goods. As he received the settlement moneys in about the first week of July 2000, he had spent about $37,000.00 in less than two months, up to 25 August 2000.
In outlining his special circumstances to the SSAT, the applicant said that his vascular surgeon provided an unfavourable prognosis for his return to work. He had no money left, and his house had been robbed. He did not have insurance at the time of the robbery. He had lent money to friends, which had not been repaid. He was on a number of different medications for conditions including ischaemic heart disease and peripheral vascular disease, and has been prescribed medication for depression. The applicant also informed the SSAT that he was supporting his son who was unemployed and unable to get Social Security benefits.
On the applicant's evidence, he has sold all of his assets and moved to Queensland to live with his mother during the last month. He said in evidence that apart from the expenditure he had outlined, between August 2000 and January 2001, he cannot recall where the rest of the money was spent.
The applicant became very stressed in the course of the Hearing, and the Hearing was adjourned on two occasions, for about 30 minutes, to enable the applicant to regain his composure, and to refresh his memory as to his expenditure. It is obviously a very difficult time for the applicant. He has severe health problems and little prospect of any future employment; but he has expended some $66,000.00 in a period of some seven months, which is the equivalent of about $2,600.00 per week, which would, in the normal course of events, require a net after-tax income of about $132,000.00 per year.
The discretion available under s1184 of the Act is to be exercised only in special circumstances. In this matter the applicant has, in my view, recklessly dissipated his entire compensation payment. He says that his solicitor told him there would be a preclusion period, but he did not know how long. The applicant thought it would be about seven months. Within about one month of receipt of the money, he was told by the Department that he was precluded from payments for the next sixteen months and that he would not be eligible for pension until 26 December 2001. He proceeded then to dispose of at least $29,000.00 over the next four months. The applicant's reckless spending is not a special circumstance, in my view. I do not consider it appropriate to exercise the discretion available under s1184 of the Act in his favour.
For these reasons I affirm the decision under review.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 12 March 2001
Date of Decision 12 March 2001
Counsel for the Applicant In Person
Solicitor for the Applicant -
Counsel for the Respondent Ms Odgers
Solicitor for the Respondent Centrelink
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