JFJW and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor

[2007] AATA 1360

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2007] AATA 1360

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600673

GENERAL ADMINISTRATIVE DIVISION		)
Re		JFJW

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES and INDIGENOUS AFFAIRS

and

SECRETARY, DEPARTMENT OF EMPLOYMENT and WORKPLACE RELATIONS  

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date25 May 2007  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

................[SGD]..............................

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – applicant in receipt of arrears of periodic compensation – applicant and partner paid compensation affected payments – recovery of compensation affected payments – no special circumstances to enable all or part of the compensation payment to be treated as not having been made to the applicant – decision affirmed.

Social Security Act 1991 ss 17, 1173. 1184, 1184A, 1184K

Haidar v Secretary, Department of Social Security (1998) 157 ALR 359
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Secretary, Department of the Social Security v Smith (1991) 30 FCR 56

Re Secretary, Department of SocialSecurity and Ellis (1996) 43 ALD 41

REASONS FOR DECISION

25  May 2007      Mr RG Kenny, Member   

Background

1.           On 10 March 1998, the applicant suffered a compensable work-related injury.  At the time, he was in receipt of parenting payment, a form of income support which is payable under the Social Security Act 1991 (the Act). From 21 November 2002 until 19 October 2005 (the relevant period), the applicant and his wife were each paid income support payments.  For the applicant, this comprised newstart allowance and disability support pension.  For the applicant’s wife, it comprised youth allowance, newstart allowance and carer payment.  An amount, totalling $39,987.26, was recovered by Centrelink from a lump sum payment made by WorkCover Queensland to the applicant in 2005 in settlement of his compensation claim.  On 28 October 2005, the applicant was advised of this by a delegate of Centrelink.  The decision to recover the monies was affirmed by an authorised review officer from Centrelink on 7 August 2006 and, in turn, by the Social Security Appeals Tribunal on 31 August 2006.  On 21 September 2006, the applicant applied for the decision to be reviewed by the Administrative Appeals Tribunal (the Tribunal).

Issues and Legislation

2.           In November 2005, the applicant received the sum of $85,640.67 which represented the equivalent of periodic worker’s compensation which should have been paid to him during the relevant period.  This amount comprises compensation under subsection 17(2) of the Act.  The disability support pension, youth allowance, newstart allowance and carer payment each constitute a compensation affected payment under subsection 17(1) of the Act.  Under subsection 1173(4) of the Act, the compensation payment is to be treated as ordinary income for the purposes of the Act during the relevant period.  It follows that the arrears payment of $85,640.67 made to the applicant is to be regarded as income during the relevant period.  Material tendered in evidence to the Tribunal establishes that, if the compensation payments had been made to the applicant on a fortnightly basis during the relevant period, the impact upon his and his wife’s income support payments would have been such as to or reduce their entitlements by $19,630.97 and $20,356.39, respectively.  In the decision under review, this was the total of the amount recovered by Centrelink in accordance with sections 1184 and 1184A of the Act.

3.           The applicant does not dispute the calculation of the amount of income support payments that he and his wife received during the relevant period.  Neither does he dispute the application, to his situation, of the scheme under the Act which requires the monies to be recovered.  I am satisfied that these concessions have been properly made.  The applicant contends that there are special circumstances operating in his situation which should be relied upon for treating part of the payments he received as not having been made.  The Act makes provision for this in section 1184K in that it enables the whole or part of the payment to a person and/or the person’s partner to be so treated “in the special circumstances of the case”.  The issue for the Tribunal is whether that requirement is met in the applicant’s situation.

Evidence

4.           The applicant gave the following evidence.  He suffers from chronic post traumatic stress disorder which resulted from incidents which occurred to him during the stevedores’ dispute in Melbourne in 1998.  He feared for his life at the time and has done so ever since.  He is in constant fear of being confronted by those who, at the time, threatened to kill him.  He stays away from places where the chance of meeting up with them is reduced.  He rarely travels to Brisbane although his family lives there.  He rarely goes to Melbourne, even though his wife’s parents live there.  He sees little of his family and has few friends although he is fortunate that one of these makes a motor vehicle available to him for such purposes as attending for medical treatment.  He believes this constant fear of confrontation is the reason for his inability to overcome his psychiatric difficulties.  He is qualified as a graphic artist and worked in that capacity in Melbourne prior to 1998.  He would like to return to that form of employment but will only be able to do so if he regains his health.  He undergoes psychiatric treatment and sees his treating psychiatrist each fortnight.  His wife stays with him at all times as his carer.  He said that his condition manifested itself as agoraphobia and that he becomes physically ill in crowded situations.

5.           The only monies that remain from the applicant’s settlement is a sum of $7,000 which has been set aside to cover the costs of his ongoing treatment.  Most of the money had been spent on legal fees, payments to the taxation office, credit card debts and various loans.  These loans included sums which he had borrowed from family members in small amounts over a long period.  He and his wife live in a rented house and are barely able to cope with their daily expenditures on the income support payments they receive from Centrelink.  He said that neither his or his wife’s parents or other relatives were in a financial position which would enable them to provide substantial financial support to them. 

6.           The only time during that has enjoyed a sense of security was during a recent trip that he and his wife took to Tasmania.  They visited friends who have lived there for a few years and were able to do so by taking advantage of a special low airfare rate of $98 return for each of them.  The applicant explained that Tasmania was the only Australian State which was not involved in the stevedores’ dispute and being in that environment enabled him to come to terms with his condition.  He and his wife have decided that they would like to relocate to Tasmania.  He has discussed the matter with his psychiatrist who is supportive of his making those new living arrangements.  The applicant said that the difficulty he had in realising that goal was his financial situation. 

7.           The applicant referred to the following list of expenses which he believed would be associated with the move to Tasmania:

item	cost
furniture removal	$8,000 to $9,400
bond and rent: 6 weeks rent  approximately	$1,500 to $1,700
accommodation until furniture arrives	$850 to $1,000
air fares (2 trips)	$2,000
unexpected costs, gas and electricity deposits	$1,000
vehicle for transportation to treatments	$10,000
total	$23,350 to $25,100

8.           The applicant and his wife own the furniture in their house and he obtained three quotes from various web sites for its removal.  He explained that he had only recently entered into a 12 month lease on the premises and would surrender his $1000 bond if he were not able to provide a substitute tenant for the house.  He described the house as one which would be difficult to rent and considered it unlikely that he would be able to arrange for the substitution.  He had no definite plans on where in Tasmania he and his wife would live, but believed that he would look for accommodation close to the place where his friends, with whom he had stayed, were living.  He considered that there was some prospect that they may be able to stay with his friends until suitable accommodation was found and their furniture arrived from the mainland.  The applicant considered that, before finally travelling to Tasmania, a preliminary trip to Tasmania would be required to set in place arrangements there.  Because he is dependant upon his wife, she would need to accompany him on both occasions.  The applicant understood that, in Tasmania, he needed to pay for utility services such as gas and electricity in advance and said that this was the reason for including that item in the list.  In relation to the vehicle expenses, the applicant conceded that he did not have a vehicle at present, but thought he would not be able to afford accommodation within close proximity of medical treatment and would, therefore, need to obtain a vehicle for that purpose.

9.           In evidence was a letter, dated 24 January 2007, from the applicant’s treating psychiatrist.  There, it is noted that his psychiatric condition is still moderately severe and that the symptoms were still active and quite disabling.  The applicant’s psychiatrist also noted that it was the applicant’s belief that, “if he moved to Tasmania he would feel a bit more secure and more relaxed” and that this “would help him recover to a point that he would perhaps hope to rehabilitate himself”.  The letter concluded with the observation that any assistance given to help the applicant “to relocate to Tasmania and help his financial situation to achieve his goals would be appreciated”.

Respondents Submission

10.          Mr McQuinlan submitted that the purpose of the legislative scheme relevant to the recovery of the payments to the applicant was to ensure that a recipient of social security payments was not also obtaining funds from a separate source.  He submitted that, in effect, the applicant had been paid twice and that this form of double dipping should be prevented.  He accepted that an exception arises where special circumstances exist, but submitted that this was not the situation with the applicant.  Mr McQuinlan submitted that, even if it were considered that special circumstances arose, the amount of the compensation payment to be disregarded should be significantly less than the level of expenditure described by the applicant.  In particular, he submitted that it was inappropriate for social security payments to be used to enable the applicant to purchase a motor vehicle because it was not at all uncommon for social security recipients to be in a position where they did not own a vehicle.  

Consideration

11.    The prospect of a social security recipient being paid from two sources, as described by Mr McQuinlan, also arises where the Act enables a preclusion period to be imposed when compensation is paid by way of a lump sum to take account of future earnings.  That scheme and the one relavant to the applicant both arise under Chapter 3 of the Act.  In Haidar v Secretary, Department of Social Security (1998) 157 ALR 359, Hill J referred to the scheme relating to the imposition of preclusion periods as being for the purpose of avoiding a situation where a claimant is entitled to both social security benefits and compensation benefits in the nature of income through a lump sum payment. He considered the discretion in relation to special circumtances in the provision equivalent to sub-section 1184K of the Act and said (at 367):

“…… the legislature was conscious of the possible harshness of a rule structured in an arbitrary way.  Section 1184, therefore, provided  the means whereby the Secretary or, in the event ultimately of an appeal to the Administrative Appeals Tribunal, that Tribunal, could alleviate the harshness of the statutory provision in an appropriate case but only where there were special circumstances.  The question of what constitutes special circumstances has been the subject of a number of decisions of this Court.  It suffices here to say no more than that something is required which would take the matter out of the usual ordinary case: Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J, Secretary Department of Social Security v Ellis (1997) 46 ALD 1 at 5 per Carr J.”

12.    Also, in the context of the debt waiver provisions of the Act, Kiefel J observed, in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 (at 545), that special circumstances:

would require something to distinguish... [the]… case from others, to take it out of the usual or ordinary 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.

13.    Those comments are equally applicable in this matter. I accept that the applicant suffers continuing health problems.  It was for the continuing effects of these problems that the compensation payment was made and I am satisfied that the existence of the health problem does not, in itself, constitute a special circumstance for the purpose of subsection 1184K(1) of the Act. In Secretary, Department of the Social Security v Smith (1991) 30 FCR 56, special circumstances were found where the claimant had been incapacitated for a condition of hepatitis, but that condition was unrelated to the work-related injury in that case.  It is also the case in the present matter that the applicant and his wife continue to receive income support payments under the Act because of his health problems. 

14.    A person’s financial position may lead to a finding of special circumstances where that position goes beyond straitened and is truly exceptional: see, for example, Re Secretary, Department of Social Security and Ellis (1996) 43 ALD 41. However, that is not the case with the applicant in his current living arrangements. His evidence is that he and his wife are able to cope, albeit with little spare capacity and with the benevolence of a friend who lends them a motor vehicle from time to time. In that sense, his circumstances are little different from many other recipients of social security benefits. Furthermore, the evidence is that there is a fund of $7,000 which is available to assist the applicant with future medical expenses.

15.    While I accept that the applicant’s desire to relocate to Tasmania is unusual, I am not satisfied that it constitutes a special circumstance which would justify treating any component of his compensation payment as not having been received by him.  His concern is that he may be confronted by persons who constituted a threat to him in Melbourne in 1998.  He minimises this risk by staying away from Melbourne and other cities involved in the waterfront dispute and lives remotely from them in the northern New South Wales hinterland.  While the letter from his psychiatrist is generally supportive, it merely recounts the applicant’s own belief that the move to Tasmania would be beneficial and does not specifically endorse that outcome.

16.    I have concerns about the proposal advanced by the applicant.  It is characterised by generality and uncertainty in relation to the time-frame for moving, the rearrangement of his current rental situation, the likely destination in Tasmania, the accommodation arrangements which will be entered into there and the costs associated with moving furniture and travelling by aircraft.  As I understand his evidence, the amounts referred to by the applicant for removal of furniture were not actual “quotations” but estimates extracted from various web sites.  That also appears to be the case in respect of the estimated air fares.  In relation to the motor vehicle, I accept the submission of Mr McQuinlan in that regard. 

17.    An exercise of the discretion in sub-section 1184K(1) of the Act would bestow a double benefit on a person in the applicant’s position.  The provision requires special circumstances before that result can be achieved.  In this case, I am satisfied that the matters raised by the applicant do not constitute circumstances that are unusual, uncommon or exceptional such that it would be unfair or inappropriate to give effect to the legislative intention reflected in the scheme which requires the recovery of the compensation payment.  I find that there are no special circumstances such as would justify the exercise of the discretion under sub-section 1184K(1) of the Act to treat some part of his compensation payment as not having been paid.

Decision

18.The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         ......................[SGD]..........................................................
           M Brazier,  Associate

Date/s of Hearing  10 May 2007
Date of Decision  25 May 2007
The Applicant appeared in person
For the Respondent                  Mr R McQuinlan, Departmental Advocate