Jessiman and Secretary, Department of Social Services (Social services second review) - [2022] AATA 1152

Jessiman and Secretary, Department of Social Services (Social services second review) [2022] AATA 1152 (13 May 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1041
Re:Damon Jessiman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:13 May 2022
Place:Sydney

The reviewable decision dated 11 February 2021 is affirmed.
..............................[SGD]..........................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension blind – cancellation and recovery of benefits – imposition of compensation preclusion period – where the applicant received compensation via settlement judgment – whether the applicant is subject to a compensation preclusion period – whether special circumstances exist such that the compensation preclusion period can be disregarded in whole or in part –– decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Brian Lewis Groth v Secretary, Department of Social Security [1995] FCA 1708
Chamberlain and Secretary, Department of Family and Community Services [2002] AATA 487
Hanrahan and Secretary, Department of Employment and Workplace Relations [2007] AATA 1417
Holmes and Secretary, Department of Family and Community Services [2005] AATA 812
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Morgan and Department of Family and Community Services [1999] AATA 168
Secretary, Department of Social Security and Winterbotham [1990] AATA 808
Secretary, Department of Family and Community Services and SRKKKK [2005] AATA 480
Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67
Secretary, Department of Social Services and Krebs (Social services second review) [2015] AATA 963
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Mr S Evans, Member
13 May 2022
INTRODUCTION

Damon Jessiman (the Applicant) was awarded a gross lump sum settlement of $9,875,000 (the judgment sum) following a claim for medical negligence. The Secretary of the Department of Social Services (the Secretary) subsequently raised a debt for benefits the Applicant had received after the compensable event and precluded him from accessing compensation affected benefits until 2109. The Applicant seeks review of the decision, which was affirmed by the Social Services and Child Support Division of the Tribunal (AAT1) on 11 February 2021.
For the reasons which follow, the decision under review will be affirmed.
FACTUAL BACKGROUND
On 23 October 2016 the Applicant presented to hospital having contracted meningitis. He became very ill whilst in hospital. As a result he became blind and suffered acute hearing loss.
The Applicant received sickness allowance between 15 December 2016 and 3 January 2017 and Disability Support Pension (DSP) between 4 January 2017 and 12 February 2020. The combined total value of the benefits received was $82,946.64.
The Applicant made a common law personal injury claim for medical negligence against the hospital that treated him. On 6 January 2020 the claim was settled when the parties entered into a consent judgement in which the Applicant was awarded $9,875,000 inclusive of costs and without admission of liability.[1]
[1] T4/54 – 56.
The terms of the agreement between the parties specify that the Applicant acknowledges the defendant will advise Centrelink of the consent judgement and the Applicant would repay any amount owing to Centrelink.
By letter dated 19 February 2020 the Applicant was advised by Centrelink (the Agency) that owing to the lump sum compensation payment, the Agency had calculated that he was subject to a lump sum compensation preclusion period beginning on 23 October 2016 and ending on 13 July 2109 (the preclusion period). Throughout the preclusion period, the Applicant was ineligible to receive income support and the benefits he received after 23 October 2016 – totalling $82,946.64 – would be recovered by the Agency.
In correspondence also dated 19 February 2020, the Agency confirmed that the Applicant’s DSP had been cancelled and his pensioner concession card would no longer be valid. A letter in similar terms was also sent to the Applicant regarding his access to sickness allowance.
On 13 March 2020 Stacks Law Firm wrote to the Applicant confirming receipt of the judgment sum and their intention to deduct costs and other amounts from the proceeds prior to transferring the balance to the Applicant. Some amounts had already been directly paid out by the defendant. The costs and amounts deducted included:
·Medicare – past medical treatment: $9,975.60
·Centrelink – past economic loss: 82,946.64
·NDIS – past benefits provided: $201,862.18; and
·Payment to the Applicant’s parents for past care: $150,000.00
Stacks Law Firm would deduct $1,050,316.35 in fees and disbursements.
ISSUES
The issues to be determined by the Tribunal are:
(i)whether the Applicant is subject to a compensation preclusion period? And if so;
(ii)do special circumstances exist such that the compensation preclusion period should be disregarded in whole or in part?
LEGISLATION
The relevant law in relation to compensation payments is set out in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (Administration Act). Additional relevant information is set out in the Social Security Guide (the Guide). In the absence of cogent reasons not to do so, government policy will usually be applied by the Tribunal.
Part 3.14 of the Act deals with compensation affected social security payments. The general effect of the part is set out in section 1160 which relevantly provides that in certain circumstances a person’s social security payment is not payable or may require the repayment of a benefit.
Section 1169 of the Act applies to people who have received lump sum compensation payments. It provides that a person cannot receive a compensation affected payment during a compensation preclusion period. Subsection 1169(1) of the Act stipulates that a preclusion period applies when a person receives a lump sum compensation payment and is receiving, or intends to receive, a compensation affected payment. A preclusion period is a period during which a person cannot receive a relevant social security payment.
Section 17 of the Act provides definitions relevant to compensation recovery. Subsection 17(2) of the Act defines ‘compensation’ to include, among other things, a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme:
Compensation
(2) Subject to subsection (2B), for the purposes of this Act, 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;
(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.
Section 1170 of the Act sets out how a lump sum compensation preclusion period is calculated, including the applicable formula.
In cases where a lump sum payment is received as a settlement of claim, including as a consent judgement, subsection 17(3) provides that the compensation part of the payment is deemed to be 50 percent of the lump sum payment. I will refer to this as the ‘50 percent rule’.
Section 1178 provides that the Secretary may recover compensation affected payments which have been received where a person is subject to a compensation preclusion period:
1178 Repayment of amount where both lump sum and payments of compensation affected payment have been received
(1) If:
(a) a person receives a lump sum compensation payment; and
(b) the person receives payments of a compensation affected payment in relation to a day or days in the lump sum preclusion period;
the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice.
(2) The amount to be specified in the notice is the recoverable amount under section 1179.
Section 1179 sets out the recoverable amount:
1179 The section 1178 recoverable amount
The recoverable amount under this section is equal to the smaller of the following amounts:
(a) the compensation part of the lump sum compensation payment;
(b) the sum of the payments of the compensation affected payment made to the person in relation to a day or days in the lump sum preclusion period.
EVIDENCE
As Applicant is totally blind and has a severe hearing impairment, he is reliant on the assistance of his partner, Michelle, and his parents. All were present at the hearing which took place in person on 22 November 2021.
Following his application for internal review, an Authorised Review Officer (ARO) contacted the Applicant. The ARO’s notes dated 29 October 2020 record the Applicant advised her that prior to settling his claim, he asked his lawyer if doing so would affect his eligibility for DSP. It is recorded that the Applicant stated his lawyer was ‘unsure but advised him that they should worry about this later’. It was only after settlement that the Applicant became aware that the Agency would cancel his DSP and raise a debt for previous payments.[2]
[2] T12/70.
At the hearing, the Applicant confirmed he agreed to settle on the understanding he would continue to receive DSP. He explained that in the absence of information to the contrary, he was of the understanding that as DSP (blind) was not means tested he would continue to receive DSP after settlement.
The Applicant gave evidence he sought to confirm this understanding prior to settlement. The Applicant described a confusing settlement agreed under time pressure and with limited information about his entitlements after settlement. He told the Tribunal:
What happened was, and this is why I was a bit hoodwinked, when I went to mediation and my lawyer sat me down and he told me everything he was claiming for and that's what I say, he was talking about the law for pain and suffering, the law for only claim to 67, and then he had in there to claim for NDIS, Medicare, and Centrelink. When he came to Centrelink I said, 'No, no, no', I said, 'You don't have to claim for that because I will still get the blind pension [DSP]'. He was unaware because he hadn't dealt with a blind person, only able bodied people.
But, I assured him and he said to me, 'Look, that's not important today. We won't worry about'. He said, 'We're just here to try and sort things out, we won't worry about it'. And I never had a chance to do anything with him because, like, two hours before close of business in December, I had two hours to either make a settlement or not. But, I didn't have a chance. And the next time, like I said, in February when my pension was taken away from me, I spoke to my lawyer on the day I got my settlement and he said, 'That's up to you to appeal'. He said, 'There's nothing I can do about it now. You're going to have to appeal it'.
The Applicant is concerned about his ability to care for himself in the future without DSP and a pension card. He gave evidence that the judgment sum was primarily to provide for his future care, with compensation for lost income estimated to be $440,000 and pain and suffering limited to $675,000.
The Secretary accepts that the Applicant was not aware that his lump sum settlement would trigger the Agency recovering a compensation charge or that his DSP would be cancelled. However, the Secretary contends that the compensation charge has been correctly raised and recovered and there are no special circumstances that would make it appropriate to treat all or some of the lump sum compensation payment as not having been made.
CONSIDERATION
Does a compensation preclusion period apply?
The Applicant contends that the judgment sum was not compensation. Specifically, he contends that it was a payment for malpractice and future care, not compensation for lost income. The Secretary contends that the payment was compensation and that as such a compensation preclusion period applies.
Section 1169 of the Act provides that where a person receives or claims a compensation affected payment and they receive a lump sum compensation payment, the compensation affected payment is not payable to the person in relation to any days in the lump sum preclusion period.
Section 95 of the Act establishes permanent blindness as an alternative ground for eligibility for DSP in which the pension is granted free of the ordinary income, assets and maintenance income tests. Nonetheless, subsection 17(1) of the Act provides that a compensation affected payment includes DSP and sickness allowance.
As the judgement sum was a payment of damages made partly in respect of lost earnings or lost capacity to earn from personal injury, the Secretary has determined it falls under the expansive definition of ‘compensation’ provided in subsection 17(2) of the Act.
In accordance with subsection 17(3) of the Act the Secretary has determined that the Applicant’s compensation part of the lump sum payment is $4,937,500. This represents 50 percent of the judgment sum.
The Secretary has calculated the preclusion period using subsection 1170(3) of the Act and determined that a compensation preclusion period of 4,838 weeks applies. No grounds are raised by the Applicant for challenging the calculation of the compensation preclusion period by the Secretary. I am satisfied that the Secretary has correctly applied the law to the judgment sum and the preclusion period as calculated is correct.
In considering the administration of the 50 percent rule the Tribunal in Chamberlain and Secretary, Department of Family and Community Services[3] observed that section 17 does not merely presume - but deems - that 50 percent of the settlement amount is intended to compensate for economic loss, regardless of the amount actually agreed between the parties. The Tribunal recognised that without a clear rule, the parties to a settlement might manipulate the amount apparently allocated in respect of economic loss to achieve a more favourable result for a plaintiff at the taxpayer’s expense.[4]
[3] [2002] AATA 487.
[4] Ibid at [12].
Section 1169 of the Act provides that compensation affected payments are not payable during the preclusion period. The Applicant received compensation affected payments totalling $82,946.64 during the preclusion period. Section 1178 provides that the Secretary may recover compensation affected payments made during a preclusion period and I am satisfied that the total sum was correctly raised and recovered.
Do Special Circumstances exist?
Section 1184K of the Act allows the Secretary to treat the whole or part of a compensation payment as not having been made or not liable to be made if the Secretary thinks it is appropriate to do so in the special circumstances of the case:
(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 purpose of section 1184K and the preconditions for enlivening the discretion were outlined by Kiefel J in Secretary, Department of Family and Community Services v Chamberlain (Chamberlain) in relation to the previous iteration of the provision.[5] After acknowledging that the provision was inserted into the Act to ameliorate the harshness of the arbitrary assumptions underlying Part 3.14 including the 50 percent rule, she outlined the preconditions for exercise of the discretion:
Pursuant to it the decision-maker is entitled to treat the compensation payment, or part of it, as if it had not been made, which is to say in a manner different from that required by the formulae. This is undertaken only if the requisite opinions are formed, namely that "special circumstances" exist and it is considered appropriate to treat the compensation payment such that there will either be no period when double payment is assumed to have been made, or there will be a shorter period.
[5] [2002] FCA 67 at [26].
The Act does not define what constitutes ‘special circumstances’ but there has been considerable consideration of the phrase including in the context of other social security legislation.
Notably, in Re Beadle and Director-General of Social Security (Beadle) the Tribunal observed that ‘[a]n expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition’.[6] Special circumstances are by definition expected to be ‘unusual, uncommon or exceptional’. They need not be unique, but ‘they must have a particular quality of unusualness that permits them to be described as special’.
[6] (1984) 6 ALD 1.
In Brian Lewis Groth v Secretary, Department of Social Security Kiefel J, referring to the case of Beadle, stated that what is required to establish special circumstances is something which distinguishes a person’s case from others ‘to take it out of the usual or ordinary case’.[7]
[7] [1995] FCA 1708.
The Guide at 4.13.4.20 provides a list of factors to consider when determining special circumstances which relevantly includes ill health, emotional state, decision making capacity, financial circumstances and changed circumstances.
Consistent with Beadle, the Guide also states that the circumstances must be either ‘unusual, uncommon or exceptional’ or that the operation of the Act would result in circumstances that are unfair, unjust, or unreasonable.
In considering the application of the special circumstances provision, I acknowledge one of the objects of the compensation preclusion provisions contained in the Act is that recipients of lump sum compensation payments are expected to support themselves before seeking support from the taxpayer. With reference to the compensation provisions the Tribunal observed in Secretary, Department of Social Security and Winterbotham (Winterbotham)[8]:
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 tax-payment.
[Emphasis added]
[8] [1990] AATA 808.
The Applicant has identified a number of grounds which he contends have contributed to a harsh or unfair outcome which make it appropriate to exercise the special circumstances provisions.
Prior to settlement the Applicant was in receipt of DSP which was not means tested. The Applicant contends that the application of a compensation preclusion period to a benefit which is paid to others regardless of income or assets is both inconsistent and unfair.
This issue was considered by the Tribunal in Hanrahan and Secretary, Department of Employment and Workplace Relations where Senior Member Isenberg said[9]:
Mr Hanrahan submitted that it is unfair that the blind pension is affected by compensation payments in lieu of income, but is unaffected by income per se. He referred to the circumstances of his visually impaired siblings, both of whom have been in full employment and receive the blind pension at the full rate. He even thought he knew of a senior executive, whose income exceeded $200,000, who received the blind pension.
Centrelink confirmed that the Act specifically treats income and compensation differently. While it is true that the income test provisions of the Act do not extend to the blind pension, the compensation recovery provisions of the Act extend equally to any payment of DSP regardless of qualification on the basis of permanent blindness or otherwise.
[9] [2007] AATA 1417 at [28] – [29].

Whether the DSP (blind) is to be differentiated from DSP when considering a compensation preclusion period was also considered by the Tribunal in Morgan and Department of Family and Community Services (Morgan)[10]. In Morgan the Tribunal acknowledged the apparent inconsistency in the treatment of DSP (blind), observing[11]:
It can be argued that the inclusion of the Blind Pension as a form of disability support pension in the definition of "compensation affected payment" in s 17(1)(a) is inconsistent with the special treatment of the Blind Pension in exempting it from the income test, and is thus an anomaly.
[10] [1999] AATA 168.
[11] Ibid at [38].
Even so, the Tribunal concluded it was not appropriate to exercise the special circumstances provisions, concluding that the clear language of the Act supported the view that the compensation recovery provisions should be applied to the DSP (blind). If the ‘inconsistency’ is to be addressed, the Tribunal considered it should appropriately be addressed by Parliament.
In Holmes and Secretary, Department of Family and Community Services (Holmes) the Tribunal considered the matter of a visually impaired person who qualified for DSP on the basis of his impairment.[12] He had received a large compensation settlement and was subject to a preclusion period during which time he was not entitled to DSP, notwithstanding that there is no income or assets test for recipients of DSP granted on the basis of permanent blindness. Once again, the Tribunal considered the inclusion of the DSP (blind) as a compensation affected payment inconsistent with the special treatment of exempting DSP (blind) from the income test. Citing Morgan, the Tribunal both conceded the anomaly and acknowledged that the applicant’s blindness would incur additional expenses:
This Tribunal concurs that it is odd that a social security benefit that is paid to others with the same disability as the applicant, regardless of income or assets, should not be paid to the applicant for a period in excess of twenty years because of the timing and size of his compensation payout. However, the relevant Departments have been aware of the apparent anomaly for more than a decade….
The Tribunal accepts that the applicant has additional expenses as a result of being blind. The Tribunal notes that the applicant has wisely invested some of his compensation in a way that will allow him to have ongoing income. It is satisfied that he is not in financial hardship at the present time, although it notes his concern about the future.
[12] [2005] AATA 812.
However, as in Morgan, the Tribunal concluded it was not sufficient to warrant exercise of the special circumstances provisions.
The application of a compensation preclusion period to a benefit which is not usually means tested is arguably inconsistent for the reasons outlined in Morgan and endorsed in Holmes and Hanrahan. However, it remains consistent with the principle set out in Winterbotham that primary responsibility for the payment of compensation lies with those responsible for the compensable injury; and that it is inequitable for the recipient to seek supplementary funds from the taxpayer.
The Secretary also contends that the Applicant’s case can be distinguished from other cases in which special circumstances were identified by reason of the fact that the Applicant’s blindness is causally related to the compensable event. Where blindness is unrelated or pre-exists, it is argued that the individual would not have been compensated. Where blindness was caused by the compensable injury, as was the case with the Applicant, it is expected that the additional costs would be reflected in any compensation payments.
Whilst I accept the law has been applied correctly, this does not negate the Applicant’s contention to have settled his claim on the understanding he would continue to receive DSP. Based on his evidence, it would appear this belief was reinforced by his understanding he could not claim for loss of income beyond the age at which he would be eligible for the age pension. He told the Tribunal when he and his lawyer were working out the settlement, he was informed that he could claim for lost wages only up until he reached pension age. The Applicant argues he was not adequately compensated for loss of earnings as he was prevented by law from claiming for lost earnings beyond retirement age, whilst also ineligible for income support.
The issue of a compensation preclusion period applying where a person has not been compensated for lost earnings was considered by the Tribunal in Secretary, Department of Social Services and Krebs (Social services second review) (Krebs).[13] In Krebs Senior Member Ettinger considered the unfairness of imposing a compensation preclusion period where the circumstances of the matter meant that ‘there could not have been any component for economic loss negotiated in [the Applicant’s] settlement for any period after she reached pension age’. The Tribunal found that whilst ‘the outcome regarding the calculation and imposition of preclusion periods may be unfair, that it is not a special circumstance’.
[13] [2015] AATA 963.
I accept the Applicant’s submission that the vast majority of the judgment sum was not for economic loss and that he was prevented from claiming damages for economic loss beyond retirement age.
In Chamberlain, Kiefel J considered whether the application of the 50 percent rule could be equated with the special circumstances referred to in subsection 1184(1) (subsection 1184K(1) for present purposes). The Court concluded that the application of the 50 percent rule would in many, if not most cases to which the Act applies, overestimate the value of the economic loss component of settlement. Consequently, special circumstances did not exist on the basis of this outcome alone. The Tribunal also has an obligation to consider that statutory objectives in utilising a formulae, with the Court finding ‘[i]t is not intended that a decision-maker be required to consider contentions about what part of the compensation reflected the economic loss component’.
The Applicant is hopeful that at some point in the future he will be able to access treatment which may enable him to regain his eyesight. Whilst such treatment does not currently exist, the specific cause of his blindness makes him a potential candidate for future medical developments. Should an opportunity arise to access such treatment, he anticipates it would be experimental and potentially expensive to do so. He anticipates using a portion of the judgment sum to access such treatment. The Applicant’s father explained to the Tribunal:
I've been doing research on Damon's eyesight condition. There is a chance in the future that he can, at great expense, possibly get his sight back. All the stuff that's going on overseas in the development, you may have seen 12 months/two year ago, that the problem with Damon's eyesight is his eye's okay. The part of the brain that accepts the images is intact. It's just the pathway from the eye to that part of the brain that has been destroyed by the fungus. You may have seen 12 months/18 months ago that in America they've been able to reconstitute that pathway in mice, right. A big breakthrough. So, the research is still going on but if Damon wants to go and, you know, if they are successful, for him to go to America, or wherever this is successful, will cost him a lot, a lot, of money. I'm talking millions. You don't get first acceptance in those places unless you're going to pay for it, you understand what I mean? And more important that money is his eyesight. He would gladly give every penny back. So, what I'm saying here is that every penny that Damon's got is important. And every benefit that he can benefit from the Australian government, which I think that he is absolutely entitled to, would be a benefit and a help to him going forward…
In Holmes, the Tribunal found that accessing treatment would not constitute special circumstances:
The Tribunal commends the applicant's willingness to participate in an innovative program which he anticipates will increase his mobility and independence and notes that he is unable to access financial assistance to help ameliorate the high cost of the program. It concurs that through his participation in the research and treatment program, the applicant will not only be helping himself, but if it works well, will lead the way for others. However, the Tribunal does not consider that the applicant's decision to participate in the program should be considered as constituting special circumstances.
Finally, the Secretary submits that the special circumstances provision exists to address current circumstances, not those which may arise at some time in the future. In relation to his current financial circumstances, the Applicant acknowledges that he is not currently experiencing straitened financial circumstances. He does, however, have genuine concerns about his future capacity to do so given he will need to use the compensation for his care for the rest of his life. The judgment sum was, he argues, to provide for his care, with income to be provided through the DSP. Whilst he has invested the judgment sum, he notes the volatility of his investment returns. Further, he was of the understanding he would have access to the concession card, which entitled him to subsidised medicines.
Currently, the Applicant appears to have most of the judgment sum, after deductions for the debt and costs including his legal fees, at his disposal. His evidence is that he is a sensible individual, and he is driven to appeal the decision because he is mindful he must make the judgment sum last the rest of his life. He will be required to do so in order to maintain his intensive care requirements and other expenses of living. I accept the pursuit of his application was in the interests of preparing for the future.
The Secretary submits that when considering the exercise of the special circumstances provisions I must look at the circumstances as they are at present, not for something that may happen in the future and directs me to consider Secretary, Department of Family and Community Services and SRKKKK where the Tribunal set aside a decision to reduce the preclusion period applied to an individual after they were awarded $7,495.341 in damages for quadriplegia.[14] The Tribunal stated:
There is certainly no indication of financial hardship at this time or probably for at least the next 20 years. If this is not the case and there is financial hardship at an earlier [date], he can seek to have section 1184K applied in the future. To have the preclusion period shortened on the basis that there may be financial hardship sooner than later is not the purpose of the legislation (Beadle).
[14] [2005] AATA 480.
CONCLUSION
I found the Applicant to be a credible witness whose account of his understanding relating to his settlement is consistent and credible.
Like the Secretary, I accept that the Applicant agreed to the consent judgment based on his understanding he would continue to receive DSP. I accept his evidence that he tried to confirm this understanding with his lawyer during settlement negotiations, which were conducted under pressure of time. I am mindful also of the additional challenges of making such an agreement given the Applicant’s disabilities. There is every reason to accept the Applicant’s account and understanding of his entitlements at the time of the agreement.
I am satisfied that the reviewable decision has applied the law, and the 50 percent rule, correctly. I have addressed the Applicant’s rationale for appealing the decision above. In following the approach adopted by the Tribunal and the Courts when considering the application of the 50 percent rule, I am satisfied that the Applicant cannot rely on the issues he has identified for exercise of the special circumstances provisions either individually or cumulatively.
Finally, he is not currently in straitened financial circumstances and his contention that he may run out of money at some point in the future is in large part countered by the fact that he may apply for exercise of the special circumstances provisions in section 1184K at some point in the future.
For these reasons, the decision under review will be affirmed.
DECISION
The reviewable decision dated 11 February 2021 is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...................................[SGD].....................................
Associate
Dated: 13 May 2022

Date(s) of hearing: 22 November 2021

Date final submissions received: 22 November 2021

Applicant: Self-Represented

Solicitor for the Respondent: Ms L Boyd, Hunt & Hunt Lawyers

Date(s) of hearing:	22 November 2021
Date final submissions received:	22 November 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms L Boyd, Hunt & Hunt Lawyers