JJTW and Secretary, Department of Social Services (Social security second review)

[2024] ARTA 180

JJTW and Secretary, Department of Social Services (Social security second review) [2024] ARTA 180 (29 October 2024)

Applicant: JJTW

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2023/9046

Tribunal:General Member M Stratos (second review)

Place:Melbourne

Date:29 October 2024

Decision:The Tribunal affirms the decision under review.

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

General Member M Stratos

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.

CATCHWORDS

SOCIAL SECURITY – carer payment – lump sum compensation – lump sum preclusion period – special circumstances

LEGISLATION

Social Security Act 1991

Administrative Review Tribunal Act 2024

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

CASES

Beadle v Director-General of Social Security [1984] 6 ALD 1

Groth and Secretary Department of Social Security (1995) FCA 1708

Secretary, Department of Social Security and Winterbotham [1990] AATA 808

Statement of Reasons

INTRODUCTION

1. In 2016, JJTW (the Applicant) was working in a nursing home when she suffered an injury to her left shoulder. The injury persisted and worsened over time. The Applicant was awarded compensation for this workplace injury in the form of periodic and lump sum payments.

2. In August 2023, the Applicant claimed carer payment, as she was providing constant care for her husband who had been diagnosed with dementia and motor neurone disease. Because of the lump sum compensation paid to the Applicant, she was subject to a compensation preclusion period, which precluded her from receiving particular social security benefits until August 2026.

3. The Applicant seeks to have the preclusion period reduced due to special circumstances, as a result of spending compensation funds on securing stable and appropriate housing for both herself and her husband, and their high past and ongoing medical expenses.

4. The application was scheduled for a telephone hearing on 26 September 2024. The day prior to the hearing the Applicant advised she could not attend as her husband was currently in hospital. The Applicant provided the Administrative Appeals Tribunal (the AAT) with permission to continue the case without her attendance. At the hearing which proceeded, the Secretary, Department of Social Services (the Respondent) agreed to have the matter determined 'on the papers'. This decision is therefore based on the evidence received by the AAT in the form of the Tribunal documents, supplementary Tribunal documents and the Respondent's Statement of Facts and Contentions.

5. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   ISSUES

6. The issues for the Tribunal to determine are:

   (a)whether the compensation preclusion period was calculated correctly; and

   (b)whether special circumstances exist to justify exercising the discretion to reduce the compensation preclusion period.

   LEGISLATION

7. Section 1169 of the Social Security Act 1991 (the Act) provides that if a person receives or claims a compensation affected payment, including a carer payment, and they receive lump sum compensation, the payment is not payable in relation to any days in the period known as the ’lump sum preclusion period’.

8. Section 1170 of the Act sets out how the lump sum preclusion period is calculated. The preclusion period commences, if the person has received periodic compensation payments which have ceased, as well as a lump sum, the day after periodic compensation ceases.

9. Once the commencement day of the lump sum preclusion period is established, the actual period for which a payment is precluded is worked out under section 1170(4) of the Act as running for a number of weeks. This is calculated by determining the compensation part of the lump sum divided by the amount a single person can earn under the social security pension income test before payments are cancelled (at the time of the Applicant's compensation settlement this was $1082.60 per week).

10. The compensation part of the lump sum is defined at section 17(3) of the Act. If a lump sum compensation payment is received as settlement of a claim, and all or part of the payment is for lost earnings, or lost capacity to earn, then the compensation part of the lump sum is 50% of the lump sum.

11. Section 1171 of the Act provides that if a person receives more than one lump sum in relation to the same compensable event, and at least one of those payments relates to lost earnings or capacity to earn, they are taken to have received one lump sum compensation payment equal to the sum of all the lump sum payments. This payment is taken to have been received on the day they received the last of the lump sums.

12. Section 1184K(1) of the Act provides that the whole or part of a compensation payment may be treated as not having been made, or not liable to be made, if it is appropriate to do so in the special circumstances of the case.

    BACKGROUND

13. In or around September 2021 the Applicant and her husband entered into an agreement with Bolton Clarke Bicentennial Retirement Village to pay $216,200 as an ingoing contribution to live in a unit, and to pay around $100 per week for general service charges (not including utility bills).[1]

    [1] T11, 172-187. In this regard, references to “T” documents are references to documents required to be given to the Applicant under s 23 of the Administrative Reviews Tribunal Act 2024 (Cth).

14. On 16 August 2022, the Applicant lodged with the Respondent a form entitled 'Compensation Advice of Lump Sum Payments'.[2] This form outlined the Applicant's injury occurred in January 2016 and that she was paid a previous lump sum of $83,040 in January 2021. It was noted the Applicant had been paid periodic payments up to 27 August 2022, continuing until the settlement sum was released. The total gross lump sum was $365,000 inclusive of costs, payable late August 2022.

    [2] T5, 106-117.

15. The Respondent sent the Applicant a notice on 29 August 2022 advising the Applicant of the effect of the lump sum compensation payment on eligibility for income support payments.[3] The Applicant was advised the payment of $365,000 plus the previous payment of $83,040 meant she would be subject to a preclusion period of 206 weeks commencing the day after her periodic payments stopped.

    [3] T16, 240.

16. The Respondent sent the Applicant a further notice on 12 September 2022 including the following information:

    We have been advised that you are entitled to receive a lump sum compensation payment of $365,000.00. As a result, we have calculated that you have a preclusion period that starts on 1 September 2022 and ends on 12 August 2026. During this period you are not able to receive income support from us.[4]

    [4] T6, 118.

17. On 30 August 2023, the Applicant lodged a claim for carer payment, stating she was providing personal care for her partner each day and had done so since July 2019.[5] The Respondent notified the Applicant on 30 August 2023 that her claim for carer payment was rejected as a result of the imposition of a compensation preclusion period until August 2026.[6]

    [5] T9, 163.

    [6] T10, 170.

18. The Applicant sought review of this decision on 31 August 2023. Information was provided explaining her current circumstances:

    I am writing this letter because I need your help. I am battling with Centrelink to obtain a Carers Payment or Disability pension. I need this as I'm unable to work due to a workplace injury, which resulted in a 31% total body impairment and a left shoulder that doesn't function. I have chronic pain disease as a result. A payout of $220,000, with $189,000 after costs was received. This was put towards a unit purchase as we had been living in a caravan. My husband has Motor neurone disease and dementia and receives the Disability pension. Stable secure housing was needed and as in Mackay accommodation was very tight and limited, the unit was the best solution. If we had not purchased the unit, but rented, the current housing market would have seen us on the street as we would not be able to afford current rentals. Centrelink have stated that if we had taken out a mortgage against the payout, then we could have received relief from the repayments. With higher interest rates we could have lost the house and been on the streets. Their logic leaves a lot to be desired. I have applied for many jobs unsuccessfully, recently being told I'm unemployable due to my injury. Centrelink are denying my application for a Carers or Disability pension due to a preclusion period of 2026, and I desperately need help in appealing their decision. All I have done is what I deemed best for my husband and myself and when we need help, we are denied. It is not that I have not tried and are still trying to obtain work, but rather it feels like the system is against me. All of this is placing me under a great deal of additional stress while continuing to care for my husband. Here are letters from our doctors to show that we do have these disabilities.[7]

    [7] T14, 218-219.

19. By notice dated 13 September 2023, the Respondent affirmed the decision that carer payment was not payable to the Applicant due to the application of a compensation preclusion period. The decision maker reviewed whether there were any special circumstances to justify changing the preclusion period but did not consider the Applicant's circumstances warranted any reduction.[8]

    [8] T12, 188-189.

20. The Applicant sought review of this decision with the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal on 28 September 2023. On 17 November 2023, the SSCSD affirmed the decision under review, as it was not satisfied there were special circumstances to justify the exercise of a discretion to reduce the compensation preclusion period.[9]

    [9] T2, 7-12.

    THE APPLICANT'S EVIDENCE

21. As the Applicant was unable to appear at the hearing, the Tribunal considered the evidence given at the SSCSD hearing, as follows:

    ·She was not aware of the need for a compensation preclusion period being imposed.

    ·She only received $220,000 of the $365,000 as lawyer fees and other charges came out of it.

    ·She and her partner used to live in a caravan. Her partner was diagnosed with dementia and then after the settlement, he was also diagnosed with motor neurone disease (MND). Due to this as well as her injury and her subsequent shoulder pain, living in the caravan was no longer a suitable option for them. She borrowed some money from her mother on the proviso that it would be repaid when she received her settlement in order to purchase a retirement village unit.

    ·Due to the MND, she needed to purchase beds that go up and down and a recliner for her partner. In addition, their unit will need to be modified as her partner's condition deteriorates.

    ·Prior to making this decision to purchase a retirement village unit, she had attempted to find rental accommodation but was unsuccessful.

    ·She sold her caravan and used the proceeds to purchase the new furniture they required in the unit.

    ·Her partner mobilises with a walker.

    ·The retirement village where they now reside has rails and chairs and support for the care they require.

    ·They live in Mackay and she has tried to gain employment but due to her injury she has not been able to find a job. She has exhausted all potential employers in Mackay.

    ·Her partner has a National Disability Insurance Scheme (NDIS) package. She has also tried to get NDIS support but is struggling with this as they are saying her issues are medical not disability related. Her capacity is very limited, and she cannot do things like put her bra on or be able to do her hair. Her arms have no muscle anymore due to muscle weakness and now her shoulder is taking the brunt. She was trying a new pain machine for three months but it was not effective.

    ·She also requires further medical procedures, operations and monitoring which is costly. Since the settlement, she has incurred about $12,000 in surgery costs for herself and their ongoing medical costs are around $8,000 per year. In addition, their unit will need to be modified as her partner's condition deteriorates.

    ·Her partner receives disability support pension, and she receives income protection insurance of about $750 a month.

    ·Even though the retirement village unit has been paid for, they still need to pay $200 to $300 a fortnight for associated fees. The unit cost of $219,000 is effectively the amount she received after legal fees and other charges from the $365,000 settlement.

    ·In addition, their medication is not all under the PBS and they spend about $150 a month for medication.

    ·Also, she is concerned that Mackay does not have doctors coming from Brisbane anymore and so she needs to fly to Rockhampton or to Brisbane for her medical care. This costs nearly $1,000 each time. She has had to do this three times in the last six months.

    ·They have no money left. She had to borrow money from her sister to pay their bills. They are living on the bare minimum just to be able to eat.

    ·Her partner had some property and associated debt and they sold this at a loss of $150,000.

    ·Regarding her income protection, she has been told that as she has not been able to put any of the money into superannuation, her payments will be cut.

22. It is not in dispute the Applicant suffered a chronic injury that has an enormous impact upon her life. The permanent impairment assessment completed by Dr Crocker in 2020 is very clear as to the high level of impairment suffered by the Applicant as a result of the injury sustained while working as a nurse, caring for elderly patients.[10] Dr Jabbour's report of February 2023 states the Applicant requires assistance in daily activities of living as a result of her persistent impairment and disability.[11] A report from Dr Mitra in October 2023 confirms the shoulder injury is permanent, unlikely to improve, has no further treatment options available and leads to chronic pain rendering the Applicant unable to do daily chores.[12] The Applicant will require ongoing medical treatment for her conditions, some of which can come at a substantial cost, both for the treatment themselves, and for the Applicant to travel outside her local area of Mackay to access those treatments.

    [10] T8, 146-159.

    [11] T2, 20.

    [12] T2, 4.

23. The Applicant advises she only received $220,000 from her compensation payout after medical expenses and solicitor's fees were paid.[13] The invoice received from her solicitors dated 8 September 2022 reveals after legal fees of $79,816, the Applicant was paid $285,184.00.[14]

    [13] T2, 30-31.

    [14] T2, 42.

24. The Applicant has provided an updated letter from Peter's Support Co-ordinator, Ms Martin, outlining the dedication to Peter's care shown by the Applicant. Ms Martin considers the Applicant requires financial support to ensure she can continue to provide the care Peter needs.[15]

    [15] ST10, 891.

25. The Applicant also provided a recent medical report, demonstrating she fractured her knee in May 2024 while at work.[16] Workers' compensation medical certificates from this time have been lodged with the Tribunal.[17] It is unclear whether the Applicant received any workers' compensation payments following this recent injury.

    [16] ST11, 656-657.

    [17] ST11, 657-660.

26. In a report dated 27 November 2023, Dr Ritam Jain, the Applicant and her husband's general practitioner, noted the Applicant's compensation for her permanent disability was used to purchase a dwelling so she could look after herself and her husband who requires full time care. Dr Jain states that the Applicant's 'stance of purchasing the dwelling was to have somewhere they could live without having the insecurity of being evicted'.[18]

    [18] ST11, 900.

27. Peter's NDIS plan provides funding for low-cost assistive technology, and an amount of $490,817 across a two-year plan to be used for assistance with daily living, community participation, capacity building and to sustain informal supports such as respite.[19]

    [19] ST11, 907-922.

    BANK STATEMENTS AND FINANCIAL DOCUMENTS

28. Financial information was provided as part of the supplementary Tribunal documents in the form of ANZ Bank statements for the Applicant and her husband from May 2023 to March 2024,[20] Bendigo Bank statements from November 2020 to September 2022,[21] a Colonial First State statement dated 12 January 2023 showing an investment of $125,649.98[22] and a Netwealth Superannuation statement for the Applicant's husband dated 20 January 2022 showing an account balance of $263,356.96 with such funds being commuted to cash on various dates from 3 September 2021.[23]

    [20] T7, 120-145; ST7, 326-565.

    [21] ST1, 248-314.

    [22] ST5, 322.

    [23] ST2, 315.

29. In the absence of being able to gain a better explanation of the Applicant's financial position from her directly, these records appear to indicate as follows:

    ·On 14 January 2021, the Applicant received the first lump sum of $83,040 from the insurer EML.

    ·It appears the Applicant's caravan was sold for $7,500 in July 2021.

    ·Some payments were made to the Retirement Village for the purchase of the unit under the heading of '24 [JJTW] Bicentennial' in August 2021 totalling $15,000,[24] and a final payment of $201,200 was made to '24 [JJTW]' on 24 September 2021.

    ·Payments are made for furniture, medical expenses, and associated travel costs as noted by the Applicant. The total sum of these costs though remains unclear.

    ·From September 2021 to January 2022, the Applicant's husband was paid a total of $255,000 from Netwealth Superannuation.

    ·There does not appear to be a record in any of the statements of the final lump sum compensation amount of $285,000 (as recorded in the invoice from the Applicant's lawyers as being the amount payable after legal costs were deducted) being deposited in an account in 2022.

    ·It is unclear whether the Colonial First State investment account containing $125,649.98 remains active and available to the Applicant and her husband.

    ·The Applicant's husband has a personal loan owing approximately $8,000 to ANZ as at January 2023.

    [24] ST9, 571.

30. The Applicant receives an income protection payment of approximately $390 and carer's allowance of approximately $150 fortnightly. The Applicant's own Statement of Financial Circumstances noted fortnightly payments of wages of approximately $1000 (although this may now be reduced or no longer payable due to the Applicant's recent knee injury).[25] The Applicant's husband receives a disability support pension of $767.61 per fortnight, and a fortnightly payment from the NDIS of $61.46.

    [25] ST12, 942-948.

31. The Applicant's financial statement claims fortnightly expenses totalling $825 (not including fuel costs of up to $100 a week for travel as a community nurse), plus specialist medical appointment fees that can be $500 per visit, plus travel required to access these appointments.

32. The Tribunal was unable to obtain the Applicant's responses to these deposits and withdrawals to be able to test the correctness of any inferences made regarding the Applicant's current financial circumstances.

    APPLICANT'S SUBMISSIONS

1. From the documentary evidence provided, the Tribunal understands the Applicant broadly relies on three main circumstances to seek the exercise of the discretion pursuant to section 1184K(1) of the Act. Firstly, the Applicant has a severe injury which means she cannot independently support herself, and ongoing medical expenses are costly. Secondly, the Applicant has constant care responsibilities for her partner who lives with severe disability due to dementia and MND. Lastly, the Applicant claims her compensation payout was spent in a financially sound manner to provide stable and appropriate accommodation for her and her husband's disability related needs, which could not be accommodated elsewhere.

   RESPONDENT'S SUBMISSIONS

2. The Respondent maintains the compensation preclusion period has been calculated correctly at a period of 206 weeks. This is based on the Applicant's compensation part of the two lump sums received (in the amount of $448,040) being $224,020.00, which is then divided by the income cut out amount (being $1,082.60). With a start date of 1 September 2022, being the day after the Applicant's periodic payments ended, the preclusion period of 206 weeks would end on 12 August 2026.

3. The Respondent submits the Act intends to prevent people from receiving support from both the social security and compensation systems simultaneously, where someone has found themselves unable to work due to a compensable injury. People in this situation should receive income support from those with primary responsibility for that situation, such as insurers or statutory compensation schemes. The Respondent considers the special circumstances discretion available under the Act should not be used to override this basic legislative intention.

4. The Respondent contends the Applicant has not demonstrated her circumstances are special to warrant the exercise of the discretion to disregard all or part of the compensation payment to thereby shorten the length of the preclusion period. The Respondent contends the Tribunal should not be satisfied as to how the compensation monies were spent, with particular reference to bank statements that would appear to show the retirement village unit was purchased with funds around the same time as the Applicant's husband received a superannuation payout.

5. The Respondent does not consider the Applicant's medical conditions should be treated as a special circumstance, given they formed the basis of the compensation payment which was to compensate her for associated medical costs and loss of earnings.

6. The Respondent notes although the Applicant may be in difficult or straitened financial circumstances at this current time, her and her partner receive a combined fortnightly income of $1,313.65. Such amount does not need to cover rent or a mortgage due to the purchase of the unit. The Respondent concedes it would not be reasonable to expect the Applicant to realise this asset to assist in relation to any current financial hardship, noting the Applicant's husband's impairments and associated needs.

   CONSIDERATION

7. The Tribunal understands (based on the record made by the SSCSD and the Respondent's Statement of Facts and Contentions) neither the Applicant nor the Respondent challenge the correctness of the calculation of the preclusion period. The Act provides where a compensation case resolves by consent with a lump sum, the formula used to determine the impact on the start date of any social security benefit is fifty percent of the gross lump sum, divided by an amount equal to that which a single person can earn under the social security income test before payments would be cancelled. The relevant figure at the time of the Applicant's compensation payment was $1082.60 per week.

8. The Act specifies that multiple lump sums for the same injury should be added together, and as the Applicant received two lump sums of $83,040 and $365,000, the gross lump sum received is $440,040. Fifty percent of this gross lump sum ($220,020) divided by the amount under the income test ($1082.60) equates to 206, being the number of weeks from receipt of the compensation payment that the Applicant is precluded from receiving social security benefits.

9. The Tribunal is satisfied the Applicant received lump sum compensation and agrees this calculation has been correctly formulated. The remaining issue to determine is whether there are special circumstances to justify an exercise of the discretion to treat all or part of the compensation payment as not having been made in an effort to reduce the preclusion period.

10. The Tribunal acknowledges one of the objects of the compensation preclusion period provisions contained in the Act is that recipients of compensation are expected to support themselves before seeking support from the social security system.  As observed in Secretary, Department of Social Security and Winterbotham [1990] AATA 808 at [19]:

    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-payer.

11. In Beadle v Director-General of Social Security [1984] 6 ALD 1, the Tribunal in an oft-quoted passage explained:

    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.

12. The Federal Court's decision In Groth and Secretary Department of Social Security (1995) FCA 1708 at [12] outlined special circumstances:

    … would require something to distinguish Mr Groth's 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. The Tribunal understands the Applicant claims to have spent most of the second lump sum she received on the purchase, or repayment to family members for the earlier purchase, of a retirement village unit. The Applicant hoped this purchase would assist in providing care for her husband as she has become increasingly unable to do so due to her own impairments.

14. The Tribunal was unable to corroborate the claim of the lump sum being spent entirely on the unit and medical expenses directly with the Applicant, due to her wish for the matter to proceed without her. The bank statements and other financial records do not show this lump sum being received at all, so there is no useful trail as to how those funds were spent.

15. Furthermore, the Tribunal notes the invoice from her lawyer revealed a sum around $285,000 was due to be paid to her in September 2022, rather than the sum of $220,000 that the Applicant claimed was paid, in her written statements and in evidence to the SSCSD. Apart from a declaration the rest was spent on medical expenses, it is again unclear as to whether the bulk of the $65,000 unaccounted for was spent on such expenses in the eleven months between receipt of the lump sum and the time when the claim for carer payment was made. 

16. The Tribunal notes the Respondent's view that the Applicant's husband's superannuation payout was more likely to have been used to fund the purchase of the unit. However, in the absence of the Applicant's direct evidence the Tribunal is unable to make any assumptions regarding expenditure of the superannuation payout and other deposits revealed by the bank statements, including the first lump sum compensation amount of $83,040.

17. The Tribunal accepts the Applicant cannot usefully realise the asset that comprises the unit to fund her ongoing living expenses at this time. The unit does not appear to be capable of being sold on the open market but rather in the event of leaving the unit a substantially reduced refund of less than a quarter of the purchase price would be returned to the Applicant. The Tribunal acknowledges the purchase of the unit may have been a sound financial decision for the Applicant to make, so that she would not be burdened with rent or the uncertainty of the housing market in the future. Furthermore, it is understandable both the Applicant and her husband, with his very high care requirements, would benefit from appropriate accommodation.

18. Spending a compensation payout in a sound financial manner but then finding oneself without sufficient income for living expenses does not, in the view of the Tribunal, equate to a special circumstance. If the payout was spent for this purchase, it is reasonably foreseeable there would be limited funds remaining to support ongoing living expenses for the duration of the preclusion period.

19. The Tribunal is not satisfied as to how the compensation funds were spent, nor that the Applicant was unable to set aside funds to maintain her living expenses throughout the compensation preclusion period. As such, the Tribunal is reluctant to exercise the discretion available under section 1184K of the Act.

20. The Tribunal accepts the Applicant and her husband draw a fortnightly income from varying sources totalling around $1,300. This is a significantly low amount of funds to sustain a household, and the Tribunal accepts this leaves the Applicant in a straitened financial situation. From the Applicant's own financial statement, as found in the supplementary Tribunal documents, their fortnightly basic outgoings are generally of an amount below or equal to those incoming funds. The Tribunal accepts this would not always be the case for the Applicant every fortnight, especially when expensive medical treatment is required.

21. To justify a finding that one's financial circumstances would qualify as 'special', the Tribunal would expect they be severe, and worse than the majority of social security recipients. Although the Applicant's financial circumstances are by no means easy, the Tribunal does not regard them as so severe to constitute hardship of a kind required to justify a finding of special circumstances.  

22. The same conclusion is reached in relation to the ill health of the Applicant. Medical evidence reveals a very serious shoulder condition suffered by the Applicant, which was expected to render her incapacitated, limiting her ability to work and receive a wage. However, it was this very condition for which she received compensation, to address her past and future losses. She has also, albeit for a limited period, been able to attempt some work despite her condition. It would be contrary to the object of the preclusion period to find the special circumstances discretion should be exercised in this situation.

23. The Tribunal accepts the circumstances of the Applicant's husband’s health could be considered severe and likely to deteriorate. It is not clear to the Tribunal however that his needs have altered significantly since the commencement of the preclusion period when the Applicant was notified she would need to make provision for her own maintenance rather than relying on social security benefits.

24. The Tribunal is not without sympathy for the situation the Applicant has found herself in. She was permanently injured in the workplace and finds it difficult to obtain employment. Her husband suffers serious and life-threatening ailments. In an effort to address their medical and financial needs she made the decision to spend available funds on stable and disability appropriate accommodation where they would both receive a level of care without needing to pay high rents or suffer threats of eviction.

25. Unfortunately, these circumstances are not out of the ordinary when regard is had to most social security recipients, or at least those who are subject to a compensation preclusion period. She must be very careful financially and the choices she and her husband make are heavily curtailed both by their limited finances and poor health. Difficult as their circumstances are, they are not of such unusualness when considered in the context of others in a similar situation and in light of the object of the Act. The Tribunal cannot conclude that something unfair, unintended, or unjust has occurred in the Applicant's circumstances.

26. Therefore, the Tribunal is unable to find there are special circumstances justifying the exercise of the discretion in section 1184K(1) of the Act to treat the whole or part of a compensation payment as not having been made, or not liable to be made.

27. The decision of the SSCSD under review is affirmed.

60.     I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the written reasons for the decision herein of General Member M. Stratos

................[sgd]........................................................

Associate

Dated: 29 October 2024

Date of hearing:	26 September 2024
Date final submissions received:	12 September 2024
Solicitors for the Respondent:	Services Australia