Ilba and Secretary, Department of Employment and Workplace Relations

[2006] AATA 699

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 699

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2006/57

GENERAL ADMINISTRATIVE DIVISION		)
Re		EDWARD ILBA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr John Short

Date16 August 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review. 

..............................................

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – recovery of compensation affected payments – special circumstances – perception of harassment by Centrelink – decision affirmed

Social Security Act 1947 s 156

Social Security Act 1991 s 1184K

Re Krzywak and Secretary to the Department of Social Security (AAT 4614, 9 September 1988)
Groth v Secretary, Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

16 August 2006   Mr John Short  

1.      Mr Edward Ilba was injured in a work accident on 10 May 1985.  On 28 April 1989 Mr Ilba was awarded a sum of $70,000 in settlement of his workers’ compensation claim.  From this sum, Centrelink recovered an amount of $13,349.10 paid to Mr and/or Mrs Ilba between 9 November 1987 and 6 January 1989 in the form of compensation affected payments.

2.      Mr Ilba said that he has been harassed by Centrelink since about 2003.  Mr Ilba suggested that as a result of this harassment, Centrelink should pay to him, twice the sum recovered in 1989.  He also said that as a result of the harassment, he had declined receipt of Centrelink payments, including his Disability Support Pension, since December 2004.

3.      It has been agreed between the parties, and having regard to the evidence contained in the T documents I find, that Centrelink acted lawfully and otherwise correctly in recovering an amount of $13,349.10 paid to Mr and/or Mrs Ilba in the form of compensation affected payments between 9 November 1987 and 6 January 1989.

issues

4.      The issue before me is whether Centrelink is required to pay to Mr Ilba double the sum it recovered in 1989 or any other sum.

5.      Mr Ilba did not detail in evidence before me, the nature and extent of the harassment he suggests he experienced from Centrelink since about 2003.

6. Once monies have been determined to be recoverable by Centrelink after having been paid in the form of compensation affected payments, then the only way that I can see that those monies could be returned to an applicant would be through the favourable exercise of a discretion prescribed, at the time the monies were recovered, in s 156 of the Social Security Act 1947 (the 1947 Act) and now s 1184K of the Social Security Act 1991 (the 1991 Act) the Act currently in force.  These sections provided a discretion to treat all or part of a lump sum payment of compensation as not having been made in the special circumstances of the case. 

7.      The nature of the special circumstances legislation has been considered on a number of occasions.  In Re Krzywak and Secretary to the Department of Social Security (AAT 4614, 9 September 1988) it was suggested, after reviewing relevant authorities, that circumstances capable of falling within the concept of special fell broadly within four groups, that is financial hardship, legislative changes, incorrect legal advice and ill health.  In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Justice Kiefel referred to the nature of the event which may form the basis of a favourable exercise of the discretion provided under the equivalent of s 1184K of the 1991 Act. Justice Kiefel said that this section is applicable where the consequences of the legislation which required recovery of compensation affected payments were unintended.

8.      In Mr Ilba’s circumstances the consequence of the compensation legislation was as intended, that is that neither Mr nor Mrs Ilba should retain both compensation and compensation affected Centrelink payments. 

9.      Mr Ilba has argued that in some way Centrelink has forgone its right to retain the recovered monies through what he considers to be Centrelink’s harassment of himself.  On the evidence before me I am unable to conclude that Mr Ilba has been harassed by Centrelink, but in any event, I consider any such harassment to be unrelated to Centrelink’s decisions made in 1989, that is at least 14 years prior to the date Mr Ilba suggested his harassment by Centrelink commenced.

10.     I note that as a result of Mr Ilba’s perception of harassment by Centrelink, Mr Ilba has declined since about December 2004 to accept any Centrelink payments, including a Disability Support Pension.  This is a matter of concern and Centrelink may wish to make further attempts, perhaps with the assistance of a social worker, to provide Mr Ilba with any Centrelink benefits to which he may be entitled.

decision

11.     The decision under review is affirmed.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Short

Signed:         ...........J Coulthard..........................................
  Associate

Date of Hearing  17 July 2006
Date of Decision  16 August 2006
Applicant  In person

Advocate for the Respondent   Mr B Harvey

Centrelink Legal Services Branch