KCFY and Secretary, Department of Social Services (Social services second review)
[2023] AATA 983
•11 April 2023
KCFY and Secretary, Department of Social Services (Social services second review) [2023] AATA 983 (11 April 2023)
Division:GENERAL DIVISION
File Number(s): 2022/6504; 2022/6505
Re:KCFY
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:11 April 2023
Place:Sydney
The Reviewable Decision dated 28 July 2022 is affirmed.
.................................[SGD].......................................
Senior Member Dr Linda Kirk
CATCHWORDS
SOCIAL SECURITY - Compensation preclusion period - receipt of lump sum compensation payment - whether "special circumstances" justifying treating some of compensation as if it had not been paid - meaning of special circumstances - whether Tribunal can consider applicant's financial management - special circumstances not found beyond those identified by authorised review officer - Decision Affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security Legislation Amendment Act (No.1) 1995 (Cth)
Workers Compensation Act 1987 (NSW)
CASES
Beadle and Director-General of Social Security [1984] AATA 176
Black v Secretary, Department of Social Security [1994] AATA 291
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Clark v Secretary, Department of Employment and Workplace Relations (2007) 96 ALD 129
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov and Centrelink [2003] FCAFC 133
Gartside and Secretary, Department of Social Services [2017] AATA 45
Groom and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 339
Groth v Secretary, Department of Social Security [1995] 40 ALD 541
Kulakov v Secretary, Department of Social Security [1991] AATA 668
Lazarov and Secretary, Department of Family and Community Services [2004] AATA 743
Re Chamberlain and Secretary, Department of Family and Community Services [2002] AATA 487
Re Griffiths and Secretary, Department of Social Security [1992] AATA 123
Re Secretary, Department of Family and Community Services and Szoke [2001] AATA 353
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
Sams and Secretary, Department of Social Services [2016] AATA 654
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267
Secretary to the Department of Family and Community Services v Allan [2001] FCA 1160
Secretary, Department of Education, Employment and Workplace Relations and Morrison [2008] AATA 1017
Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779
Secretary, Department of Social Security and Bolton [1989] AATA 479
Secretary, Department of Social Security and Bunge [1990] AATA 486
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary, Department of Social Services and Aydin [2022] AATA 2823Secretary, Department of Social Services and Krebs [2015] AATA 963
SECONDARY MATERIALS
Guides to Social Policy Law - Social Security Guide, Version 1.306 - Released 3 April 2023.
Second Reading Speech for the Social Security Legislation Amendment Bill (No 1) 1995, Commonwealth, Parliamentary Debates, House of Representatives, 19 June 1995
REASONS FOR DECISION
Senior Member Dr Linda Kirk
11 April 2023
BACKGROUND TO REVIEW
KCFY (‘the Applicant’) was born in 1967.[1] On or about 15 May 2018, the Applicant sustained a workplace injury (‘the injury’).[2]
[1] T-Docs, T1, 1.
[2] T-Docs T4, 39.
On 3 February 2020, the Applicant received a payment of $69,060 for permanent impairment pursuant to section 66 of the Workers Compensation Act 1987 (NSW) (‘Workers Compensation Act’).[3]
[3] T-Docs T8, 55
On 14 May 2020, the Applicant was granted Disability Support Pension (‘DSP’) on the basis of a mental health condition, moderate loss of spinal function, and mild loss of upper limb function.[4]
[4] ST-Docs, ST1, 400-402; T-Docs, T32, 294; T33, 380.
On 5 May 2021, the Applicant settled her compensation claim for $350,000 by way of a Deed of Release.[5] As particularised in the Deed of Release, the compensation awarded was for the injury, and for other injuries which she sustained during the course of her employment.[6]
[5] T-Docs, T4, 39-44
[6] Ibid, 40, [1.3] and [1.8]
On 11 May 2021, Services Australia (‘the Agency’) cancelled the Applicant’s DSP on the basis of a compensation preclusion period.[7]
[7] ST-Docs, ST2, 403-404; T-Docs, T33, 380.
On 13 May 2021, the Agency wrote to the Applicant and informed her that a compensation preclusion period applied to her from 15 May 2018 to 26 July 2021.[8] It further informed her that during this period she would not be able to receive income support,[9] and that she was required to repay $47,443.87. The Applicant was advised:[10]
We have Financial Information Service Officers who can help current and future customers make informed decisions about their investment and financial issues. This service is free, independent and confidential. You can call 132 300 to make an appointment with a Financial Information Service Officer.
[8] T-Docs, T5, 45; T32, 336.
[9] T-Docs, T5, 45.
[10] Ibid, 46.
On 15 May 2021, the Applicant’s then lawyers, Stacks Goudkamp, notified the Agency that the Applicant settled her compensation claim for $350,000, and that she was in receipt of periodic payments until 20 February 2020.[11]
[11] T-Docs, T8, 56.
On 21 May 2021, the Agency determined that a compensation preclusion period applied to the Applicant from 21 February 2020 to 28 December 2023 (‘the preclusion period’) and a compensation charge of $31,452.64 (‘the compensation charge’) was to be repaid being the amount recoverable for Centrelink payments received by the Applicant from 21 February 2020 to 10 May 2021.[12] The preclusion period and compensation charge were amended following notification by Employers Mutual Limited that the Applicant was in receipt of periodic compensation payments until 20 February 2020.[13]
[12] T-Docs, T9, 76.
[13] T-Docs, T8, 56.
On 21 May 2021, the Agency wrote to the Applicant[14] and Stacks Goudkamp[15] to inform them of the preclusion period and that during this period the Applicant would not be able to receive income support, and that she was required to repay the compensation charge.[16]
[14] T-Docs, T9, 76.
[15] T-Docs, T11, 81.
[16] T-Docs, T9, 76.
On 4 June 2021, the Applicant received $175,999.96 from Stacks Goudkamp into her Commonwealth Bank Australia (‘CBA’) account ending #1582.[17]
[17] T-Docs, T26, 232.
On 8 February 2022, the Applicant contacted the Agency. The preclusion period and special circumstance decisions were explained to her.[18] On the same day, the Applicant lodged a claim for Job Seeker Payment (‘JSP’).[19]
[18] T-Docs, T32, 338.
[19] T-Docs, T12, 83-90.
On 11 February 2022, the Applicant lodged a claim for DSP.[20] The medical condition listed in the claim was Post Traumatic Stress Disorder (‘PTSD’).[21]
[20] T-Docs, T14, 102-112.
[21] T-Docs, T14, 107.
On 21 February 2022, the Agency rejected the Applicant’s DSP claim on the basis of her compensation settlement, stating that she cannot be paid a pension until 28 December 2023.[22]
[22] T-Docs, T16, 138.
On 5 April 2022, the Applicant sought a review of the original decision to reject her DSP claim.[23]
[23] T-Docs, T32, 354.
On 2 June 2022, the Agency rejected the Applicant’s JSP claim on the basis that she received a lump sum compensation payment.[24]
[24] T-Docs, T23, 218.
On 2 June 2022, the Applicant sought a review of the original decision to reject her JSP claim.[25]
[25] T-Docs, T32, 368.
On 16 June 2022, the Authorised Review Officer (‘ARO’) reduced the preclusion period from 21 February 2020 to 28 December 2023 to 21 February 2020 to 3 August 2023 on the basis of special circumstances.[26] The ARO found that $42,227, being expenses for repairs to the Applicant’s home caused by flooding, could be disregarded for special circumstances.[27] The ARO affirmed the decisions to reject the Applicant’s claims for JSP and DSP.[28]
[26] T-Docs, T27, 253-258; T28, 259-262.
[27] T-Docs, T28, 261.
[28] Ibid, 259.
On 24 June 2022, the Applicant applied to the Administrative Appeals Tribunal, Social Security and Child Support Division (‘AAT1’) for review of the ARO’s decision.[29]
[29] T-Docs, T35, 398-399.
On 28 July 2022, AAT1 affirmed the decision under review (‘the Reviewable Decision’).[30] It found that the Applicant was subject to a preclusion period from 21 February 2020 to 3 August 2023 and no further special circumstances existed.
[30] T-Docs, T2, 3-9.
APPLICATION FOR REVIEW
On 9 August 2022, the Applicant applied to this Tribunal for review of the Reviewable Decision.[31]
[31] T-Docs, T1, 1-2.
The matter was heard by the Tribunal on 17 January 2023. The Applicant appeared at the hearing by video-link and gave oral evidence and was cross-examined.
The material before the Tribunal consists of:
·Section 37 T-Documents (T1 –T35, pp. 1 – 399) filed 30 August 2022 (T-Docs)
·Supplementary T-Documents (ST1 – ST7; pp. 400 - 555) filed 30 August 2022 (ST-Docs)
·Respondent’s Statement of Facts, Issues and Contentions – dated 1 December 2022 (RSFIC)
·Terms of Settlement in the Family Court of Australia – dated 25 March 2014
·Applicant’s Medication Summary – dated 24 October 2022
·Radiology report of Dr Pon Ketheswaran – dated 10 October 2022
·Patient form – Quantum Radiology Bankstown
·Report of Dr Thanh-Dzung Michael Cao – dated 18 August 2022
·Pharmacy Receipt – undated
·Certificate of capacity / certificate of fitness – undated
LEGISLATIVE FRAMEWORK
The operation of the preclusion period for social security payments is outlined in the Social Security Act 1991 (Cth) (‘the Act)’ and supplemented by the guidance provided in the Social Security Guide (‘the Guide’).
Part 3.14 of the Act headed ‘Compensation Recovery’ outlines a scheme whereby a person is precluded from receiving ‘affected payments’ for a specified period of time (the ‘preclusion period’) if a person is in receipt of certain compensation payments.
The calculation of a preclusion period commences by working out what is called the “compensation part of the lump sum” in question. Subsection 17(1) of the Act provides a list of social security payments which are included in the definition of “compensation affected payment”. Paragraphs 17(1)(a) and (c) of the Act provide that a ‘compensation affected payment’ includes DSP and a social security benefit. Subsection 23(1) of the Act defines ‘social security benefit’ to include JSP.[32]
[32] ST-Docs, ST3, 406.
Subsection 17(1) of the Act also provides the definition of what is called the “income cut-out amount”:
“income cut‑out amount”, in relation to a person who has received a compensation payment, means the amount worked out using the formula in subsection (8), as in force at the time when the compensation was received.
Subsection 17(8) provides:[33]
2 x (Maximum basic rate + Pension supplement component + Energy supplement component) + Ordinary free area limit
52
[33] Each of the terms used in this formula are defined in the section and vary in their quantum over time..
Accordingly, the “income cut-out amount” will vary from time to time depending on the value of the various components used in its calculation.
‘Compensation’ is defined, relevantly, in subsection 17(2) of the Act to mean:
(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.
Paragraph 17(3)(a) of the Act provides relevantly that the ‘compensation part of a lump sum compensation payment’ is:
(3) Subject to subsection (4), for the purposes of this Act, the compensation part of a lump sum compensation payment is:
(a) 50% of the payment if the following circumstances apply:
(i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and
(ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(ab) 50% of the payment if the following circumstances apply:
(i) the payment represents that part of a person’s entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and
(ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and
(iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(b)if those circumstances do not apply—so much of the payment as is, in the Secretary’s opinion, in respect of lost earnings or lost capacity to earn, or both.
Sections 1160 and 1169 set out the general rules applying to the preclusion period and the manner in which the Part operates on ‘compensation affected payments’ respectively.
1160 General effect of Part
1)This Part operates in certain specified circumstances to do one or more of the following:
(e)reduce a person’s compensation affected payment;
(f)render a person’s compensation affected payment not payable;
(g)require the repayment of some or all of a person’s compensation affected payment;
because of the receipt of compensation by the person or the person’s partner.
2)This Part applies whether or not there is any connection between the circumstances that give rise to the person’s qualification for the compensation affected payment and the circumstances that give rise to the receipt of compensation by the person or the person’s partner.
1169Compensation affected payment not payable during lump sum preclusion period
1)If:
(a)a person receives or claims a compensation affected payment; and
(b)the person receives a lump sum compensation payment;
the compensation affected payment is not payable to the person in relation to any day or days in the lump sum preclusion period.
2)In this section:
lump sum compensation payment does not include a lump sum payment:
(a) to which section 1164 applies; or
(b) that relates only to arrears of periodic compensation payments.
The preclusion period is determined in accordance with section 1170 of the Act:
1170 Lump sum preclusion period
(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:
(a) begins on the day following the last day of the periodic payments period or, where there is more than one periodic payments period, the day following the last day of the last periodic payments period; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(2) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:
(a) begins on the first day on which the person’s periodic compensation payment is a reduced payment because of that choice; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(3) If neither of subsections (1) and (2) applies, the lump sum preclusion period is the period that:
(a) begins on the day on which the loss of earnings or loss of capacity to earn began; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula
(5) If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.
Section 1171 of the Act provides that where a person receives multiple payments, they may be treated as a single lump sum:
1171Deemed lump sum payment arising from separate payments
(1) If:
(a) a person receives 2 or more lump sum payments in relation to the same event that gave rise to an entitlement of the person to compensation (the multiple payments); and
(b) at least one of the multiple payments is made wholly or partly in respect of lost earnings or lost capacity to earn;
the following paragraphs have effect for the purposes of this Act and the Administration Act:
(c) the person is taken to have received one lump sum compensation payment (the single payment) of an amount equal to the sum of the multiple payments;
(d) the single payment is taken to have been received by the person:
(i) on the day on which he or she received the last of the multiple payments; or
(ii) if the multiple payments were all received on the same day, on that day.
(2) A payment is not a lump sum payment for the purposes of paragraph (1)(a) if it relates exclusively to arrears of periodic compensation.
ISSUES FOR DETERMINATION
This review application raises two issues for determination:
1)is the Applicant precluded from receiving compensation affected payments;
2)if so, whether the preclusion period should be reduced due to ‘special circumstances’?
EVIDENCE BEFORE THE TRIBUNAL
Expenditure of compensation proceeds
The evidence before the Tribunal is that the Applicant has two active accounts with the CBA being accounts ending #1582 and #0606.[34]
[34] ST-Docs, ST5, 410-545.
On 4 June 2021, Stacks Goudkamp transferred $175,999.96 into the Applicant’s CBA account ending #1582.[35] On 31 December 2021, the balances of the Applicant’s CBA accounts ending #1582 and #0606 were $18,071.45,[36] and $2,349.70 respectively.[37]
[35] T-Docs, T26, 232.
[36] ST-Docs, ST5, 537.
[37] ST-Docs, ST6, 463.
During the period between 4 June 2021 to 31 December 2021, the following transfers and cash withdrawals were made from the Applicant’s CBA account ending #1582:
Description Amount Transfer - mortgage $20,000.00[38] Transfer to Dean Armstrong $2,500.00[39] Transfer to Lyndal Williams $1,050.00[40] Transfer to Mick Ross $7,500.00[41] Transfer to J Seagrove $3,500.00[42] Withdrawals $52,847.40[43] TOTAL $87,397.40 [38] ST-Docs, ST5, 543.
[39] Ibid, 544.
[40] Ibid, 542.
[41] Ibid, 542, 544.
[42] Ibid, 545.
[43] Ibid, 537-545.
The Applicant’s evidence to AAT1 was that she saved a couple of people from being evicted from their homes and lent money to around eight people, totalling $30,000. Her expectation was that these people would repay the money they had borrowed, but she has not received anything back from them, other than $50 from one person.[44]
[44] T-Docs, T2, 7.
The Applicant’s evidence to AAT1 was that she made payments of $23,000 and $20,000 towards her mortgage.[45] However the evidence from the CBA statements indicates that the Applicant made regular payments towards the mortgage from February to July 2020 and paid $20,000 to the mortgage on 20 July 2020.[46]
[45] T-Docs,T2, 6 [17].
[46] ST-Docs, ST5, 543.
During cross-examination at the hearing, the Applicant was asked about the cash withdrawals of $52,847.40[47] she made between June and December 2021, which included the following:[48]
[47] ST-Docs, ST5, 537-545.
[48] Amounts are approximated.
Descriptions Amount June 2021 $10,800.00[49] July 2021 $7,500.00[50] October 2021 $11,000.00[51] November 2021 $12,150.00[52] December 2021 $8,000.00[53]
[49] ST-Docs, ST5, 544-545.
[50] Ibid, 544-545.
[51] Ibid, 541.
[52] Ibid, 540.
[53] Ibid, 537-539.
The Applicant told the Tribunal that the cash withdrawals were made to make the following payments:
·June 2021 – payments to tradesmen for repairs to her home and loans to friends[54]
·July 2021 – payments to tradesmen[55]
·October 2021 – payments to tradesmen[56]
·November 2021 - payments to tradesmen[57]
·December 2021 – Christmas expenses[58]
[54] Transcript, 11-13.
[55] Transcript, 13.
[56] Ibid.
[57] Transcript, 14.
[58] Transcript, 16.
During the period 4 June 2021 to 31 December 2021 the Applicant made the following payments from her two CBA bank accounts:[59]
[59] ST-Docs, ST5, 467-541.
Date
Descriptions
Amount
23/10/2021
Passion Jewellers
$1,034.00[60]
20/12/2021
Prouds
$1,077.00[61]
10/06/2021
Ebay
$1,297.00[62]
22/06/2021
Sculpt Australia
$1,607.00[63]
24/06/2021
Wynstan
$1,757.00[64]
20/07/2021
Ebay
$1,139.05[65]
21/07/2021
Bedworks
$4,104.26[66]
23/07/2021
Winning Sydney
$2,130.00[67]
28/07/2021
TGM Steering Repairs
$4,992.81[68]
31/07/2021
Ebay
$1,286.50[69]
09/10/2021
Target online
$863.60[70]
26/10/2021
Wynstan
$1,597.00[71]
05/11/2021
Sportsbet
$1,100.00[72]
06/11/2021
Catch Bentleigh
$902.74[73]
19/11/2021
KW Resort Management
$1,037.00[74]
22/11/2021
KW Resort Management
$199.00[75]
09/12/2021
Catch Bentleigh
$262.83[76]
14/12/2021
GL Milanotee.com
$523.92[77]
15/12/2021
Winning Sydney
$2,891.00[78]
TOTAL $29,801.71 [60] Ibid, 541.
[61] Ibid,538.
[62] Ibid, 519.
[63] Ibid, 517.
[64] Ibid, 516.
[65] Ibid, 510.
[66] Ibid, 509.
[67] Ibid, 508.
[68] Ibid, 507.
[69] Ibid, 506.
[70] Ibid, 488.
[71] Ibid, 483.
[72] Ibid, 481.
[73] Ibid, 480.
[74] Ibid, 476.
[75] Ibid.
[76] Ibid, 469.
[77] Ibid, 468.
[78] Ibid, 467.
During cross-examination, the Applicant was asked about the Ebay transactions during June and July 2021. She told the Tribunal that she purchased a Dyson cordless stick vacuum on 10 June 2021 for $1297.00 and provided a receipt.[79] She bought this so that she could do the vacuuming herself and not have to pay a cleaner.[80] The transaction on 31 July 2021 for the amount of $1,286.50 was done by her son.[81] The payment to Sculpt Australia on 22 June 2021 was the purchase of a leather jacket for her son who is a dirt bike rider.[82] The payment to Winning Sydney for $2,130.00 on 31 July 2021 she believes was for the purchase of a new fridge.[83] The further payment to Winning Sydney on 15 December 2021 was for a new dishwasher and washing machine.[84]
[79] T-Docs, T25, 226.
[80] Transcript, 17.
[81] Ibid.
[82] Transcript, 19.
[83] Ibid.
[84] Transcript, 20.
The Applicant told the Tribunal that the two transactions for a total of $1236.00 to KW Resort Management in November 2021 were for a three-day holiday up the coast ‘which was very expensive.’[85] The payment of $1077.00 to Prouds was the purchase of a gift for her daughter’s 21st birthday.[86] She was unsure about the payment of $1034.00 to Passion Jewellers on 23 October 2021.[87]
[85] Transcript, 21.
[86] Ibid.
[87] Ibid.
The Applicant was asked about the expenditure of approximately $4,350.00 in November 2021 on Uber, Uber Eats, McDonalds, KFC, Oz Lotteries and Sportsbet. She told AAT1 that she had incurred additional costs for Uber Eats as she has difficulty cooking. She told the Tribunal that she has spent hundreds of dollars on Ubers as she is unable to drive for more than 10 minutes due to the effects of the medication she takes.[88]
[88] T-Docs, T2, 8; Transcript, 16.
The evidence includes invoices for the following transactions:
·Bedworks dated 19 July 2021 for the purchase of mattress, pillows, sheet set, and mattress and linen protectors, totalling $4,340.00
·TGM Steering Repairs - dated 21 July 2021 for mechanical work on a car, totalling $4,992.00[89]
·Wynstan – dated 22 June 2021 for new blinds, totalling $3,514.00[90]
[89] T-Docs, T26, 251 – 252.
[90] T-Docs, T26, 244.
Family members
The Applicant has four children and three grandchildren. Her four children are all independent and working and she does not support them financially.[91] Her youngest son sometimes lives at her home, and she feeds him when he is there.[92] Her sister is a drug addict, and her mother has leukemia, and has had a double mastectomy.[93]
[91] Transcript, 30-31.
[92] Transcript, 31.
[93] Transcript, 16, 32.
Terms of Settlement in the Family Court
Under the Terms of Settlement in the Family Court of Australia between the Applicant and her former partner dated 25 March 2014, the Applicant is required to sell their house on the expiration of 10 years.[94] The Applicant is liable for 50% of the costs for expenses over $400 for any repairs to the property.[95] During cross-examination, the Applicant agreed that she is only liable for half the costs of repairs to the house, but she said that her former partner refuses to pay his share. She explained that it is ‘a domestic violence situation and he doesn’t want to pay the money, and I get abused, and [he] carries on like a lunatic.’[96] The Applicant’s bank account statements for her CBA account ending #1582 show that she received payments totalling $4,200 from her former partner between April and June 2022.[97]
[94] ST-Docs, ST7, 554 - clause 15.
[95] Ibid, clause 12.
[96] Transcript, 24.
[97] ST-Docs, ST5, 529-533.
During her oral evidence, the Applicant confirmed that the property has been valued at $1.1 million and the current mortgage is $200,000.[98] She told the Tribunal that her share of the mortgage is $1,200 per month but currently the mortgage is ‘on hold’.[99]
[98] Transcript, 25.
[99] Transcript, 36.
Employment
The Applicant told the Tribunal that in September 2022 she commenced work in a factory.[100] She was offered part-time work but ended up working full-time as a casual.[101] The work involved lifting heavy boxes which injured her shoulder and she needed to have a Cortisone injection.[102] She now has pain up and down her spine and she will not be able to continue in the job. Since November 2022 she had been on leave and receiving workers’ compensation payments for the workplace injury.[103] The Applicant told the Tribunal that she wants to go back to work, but she cannot do heavy duties.[104] She did work for a couple of weeks doing light duties, but they kept asking her to multitask. At the date of the hearing the Applicant was not working any hours at the factory.[105] She told the Tribunal that she tried to stand on her own feet and it ‘backfired’ because her neck and spine are now worse, and she is on more medication.[106]
[100] Transcript, 28; ST-Docs, ST5, 523-527 - Evidence of payment of weekly wages from “ELKA AUSTRALIA P Elka Wages” from 8 September 2022 to 27 October 2022.
[101] Transcript, 28.
[102] Ibid.
[103] Ibid.
[104] Transcript, 29.
[105] Transcript, 30.
[106] Transcript, 36.
Medical conditions
The Applicant’s evidence is that she cannot lift over three kilograms with her injury.[107] She is currently taking Lyrica for the impact on her nerves from the injury.[108] She has scripts for other medications but has been unable to afford to fill them.[109]
[107] Transcript, 17.
[108] Transcript, 9.
[109] Transcript, 4.
The evidence before the Tribunal includes a letter prepared by the Applicant’s general practitioner dated 9 February 2022, stating that she is suffering from chronic neck pain and PTSD.[110] In a letter dated 20 October 2020, Ms Diane Nikro, clinical psychologist, stated that the Applicant was suffering from PTSD that was causing clinically significant distress and impairment in her social, occupational and daily life.[111] In her letter of support, Ms Heather Nicolson, psychologist, stated that the Applicant has been a long-time patient at the practice, and she has been diagnosed with PTSD and has a complex trauma history.[112] The letter states that the Applicant advised Ms Nicolson that she had received multiple requests for financial assistance from people in her social circle, which she felt she was in no position to refuse. She had also reported to Ms Nicolson being unable to sell her family home due to a family law order, as a result of which she was in extreme financial hardship.[113]
[110] T-Docs, T30, 270.
[111] T-Docs, T30, 276-277.
[112] T-Docs, T31, 286.
[113] Ibid.
The Applicant told the Tribunal that when she received the compensation payment she was in a vulnerable position. She explained:
I let people take advantage of me, probably because I lost my career, and I was in shock for a long time, I loved having people around, I was very, very isolated from the injury.[114]
[114] Transcript, 29.
She told the Tribunal that she needs support, and asked it to reconsider the decision:
I just need some support, you can’t get any support, there’s no free support with somebody that’s like me. And I’m asking for some compassion here … I have been through a lot and I’m still going through a lot.
…
I’m just asking for support and help, and I’m asking you to reconsider the decision.[115]
CONTENTIONS
[115] Transcript, 36.
Applicant
The Applicant claims:[116]
·the decision is unfair because she has no income
·she is experiencing hardship, battling and cannot survive – unable to afford food, utilities and medication
·her circumstances are special
·she is unable to work due to her injuries, mental health and PTSD.
[116] T-Docs, T1, 2.
Respondent
The Respondent contends:[117]
·the Applicant’s compensation preclusion period was calculated correctly, in accordance with Part 3.14 of the Act
·the compensation preclusion period should not be reduced as the Applicant’s circumstances are not considered to be “special” within the meaning of the Act.
[117] RSFIC [23].
CONSIDERATION AND REASONS
The compensation recovery provisions of social security law are designed to ensure that individuals who receive compensation for a loss of income do not also receive income support in respect to the same period. In Secretary, Department of Education, Employment and Workplace Relations and Morrison,[118] the Tribunal cited the second reading speech to the Bill introducing the Social Security Legislation Amendment Act (No.1) 1995 (Cth):
The compensation recovery provisions of the [A]ct protect the social security system from ‘double dippers’ – that is, those who might receive social security payments, as well as compensation, for the same period…[119]
[118] [2008] AATA 1017.
[119] Second Reading Speech for the Social Security Legislation Amendment Bill (No 1) 1995, Commonwealth, Parliamentary Debates, House of Representatives, 19 June 1995 at 1768 (Janice Crosio, Parliamentary Secretary to the Minister for Social Security); see also Secretary, Department of Education, Employment and Workplace Relations and Morrison (2008) 105 ALD 635 at [24].
In Secretary to the Department of Family and Community Services v Allan Heerey J observed:
The basic policy, understandably enough, is that there should not be “double dipping”. People should not receive social security payments for loss of earnings where they have received compensation for that same loss of earnings from another source.[120]
[120] [2001] FCA 1160 at [1].
Is the Applicant precluded from receiving compensation affected payments?
The combined effect of sections 17(2), 17(3)(a), 1168 and 1169 of the Act is to impose an automatic preclusion period in relation to compensation affected payments whenever a person receives a lump sum compensation payment in respect of lost income or lost capacity to earn. The duration of that period is calculated according to an inflexible statutory formula in subsection 1170(4) of the Act, and it is not susceptible to discretionary variation.
Calculation of the preclusion period
The Applicant received two lump sum payments of compensation arising from her injury:
·$69,060 under section 66 of the Workers Compensation Act on 3 February 2020;[121] and
·$350,000 by Deed of Release dated 5 May 2021.[122]
[121] T-Docs, T8, 55.
[122] T-Docs, T4, 38-44; T8, 56.
It is not in dispute that the payment of $350,000 was partly in respect of the Applicant’s lost earnings or lost capacity to earn.[123]
[123] T-Docs, T4, 38.
As one of the payments included a component for lost earnings or lost capacity to earn, the two payments above are taken to have been received as a single lump sum of $419,060 in accordance with section 1171 of the Act. As per subparagraph 1171(1)(d)(i), the payment was taken to be received on the day the last payment was received.
In accordance with subsection 17(3) of the Act, the Applicant’s compensation part of the lump sum payment is 50% of the total lump sum compensation payment - $419,060 x 50% = $209,530.
The “income cut-out amount” at the relevant time the last payment was received was $1,041.70.[124] Applying the formula in subsection 1170(4) of the Act yields a preclusion period of 201.14 weeks, rounded down to 201 weeks in accordance with subsection 1170(5) of the Act.
[124] T-Docs, T34, 388.
The Applicant was in receipt of periodic compensation prior to the receipt of the lump sum compensation payments, with her periodic payments ceasing on 20 February 2020.[125] Therefore subsection 1170(1) of the Act applies and accordingly, the lump sum preclusion period commences on 21 February 2020 and runs for 201 weeks, ending on 28 December 2023.
[125] T-Docs, T8, 56.
Accordingly, a preclusion period from 21 February 2020 to 28 December 2023 applies and therefore no compensation affected payment, including DSP or JSP, is payable to the Applicant during this period. As outlined in [17] above, on 16 June 2022 the ARO found that damage to the Applicant’s home as a result of the floods in February 2022[126] constituted a ‘special circumstance’ and disregarded an amount of $42,227. This reduced the preclusion period such that it commenced on 21 February 2020 and ends on 3 August 2023.
[126] T-Docs, T32, 353.
The Respondent accepts and the Tribunal finds that the damage to the Applicant’s home as a result of the floods in February 2022 was a ‘special circumstance’ and that the preclusion period was properly reduced by the ARO.
1) Should the preclusion period be reduced due to ‘special circumstances’?
For the reasons that follow, the Tribunal finds that the Applicant has no other ‘special circumstances’ warranting the exercise of the discretion to disregard all or part of the compensation payment for the purposes of the calculation of the preclusion period.
Section 1184K of the Act provides that the Secretary may, at his discretion, treat whole or part of the ‘lump sum compensation payment’ as having not 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’:
1184K 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 meaning of ‘special circumstances’
The phrase ‘special circumstances’ is not defined in the Act. In Secretary, Department of Social Security v Hales,[127] French J (as he then was) observed:
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. … It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words... It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.[128]
[127] [1998] FCA 219.
[128] (1998) 82 FCR 154 at 162.
In Riddell v Secretary, Department of Social Security the Full Court of the Federal Court explained that:
Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.[129]
[129] (1993) 42 FCR 443 at 450.
In Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones, Jacobson J reviewed the authorities and observed:
... the phrase “special circumstances”, although lacking in precision, is sufficiently understood as including events or things that render the operation of the statue in a particular case as unfair, unintended or unjust. What is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists. Moreover, the circumstances of the case are not confined to matters that are external to the operation of the statutory scheme.[130]
[130] (2012) 89 ATR 267; [2012] FCA 639 at [51] citing Smith per von Doussa J at 60, 61–62; Groth per Kiefel J at 545, Kertland v Secretary, Dept of Family and Community Services (1999) 95 FCR 64 per Merkel J at 71, 73; Kirkbright v Secretary, Dept of Family and Community Services (2000) 106 FCR 281 per Mansfield J at [22], [26]–[27] and [31]–[32]; see also Secretary to the Department of Family and Community Services v Allan (2001) 116 FCR 1 per Heerey J at [17].
The Tribunal considered the phrase ‘special circumstances’ in Beadle and Director-General of Social Security (‘Beadle’). It stated:
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.[131]
[131] [1984] AATA 176 at [12].
Beadle was referred to by Kiefel J (as her Honour then was) in Groth v Secretary, Department of Social Security in the following terms:
The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss …. And for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case.[132]
[132] Groth v Secretary, Department of Social Security [1995] 40 ALD 541, 545.
In Dranichnikov and Centrelink, the Full Court of the Federal Court held that for a finding of ‘special circumstances ‘to be made:
… what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary…[133]
[133] [2003] FCAFC 133 at [66].
In Boscolo v Secretary, Department of Social Security, the Federal Court stated, in part:
… It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened…The core of the requirement for ‘special circumstances’ or ‘special reasons’ is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course…[134]
[134] [1999] FCA 106 at [18].
These authorities recognise that the term ‘special circumstances’ is ‘by its very nature incapable of precise or exhaustive definition’,[135] but it requires something to distinguish it from other cases in a way ‘to take it out of the usual or ordinary case’.[136] Furthermore, ‘each particular case must be considered on its merits.’[137] This may be to such an extent that ‘the particular facts of a case might make them – or the amount of them – a special circumstance.’[138] The decision-maker must show there was ‘a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system.’[139]
[135] Beadle and Director-General of Social Security [1984] AATA 176 at [12].
[136] Groth v Secretary, Department of Social Security [1995] 40 ALD 541, 545.
[137] Riddell v Secretary, Department of Social Security (1993) 114 ALR 340, 347.
[138] Secretary, Department of Social Security v Hulls and Others (1991) 22 ALD 570, 580.
[139] Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 at [80].
This interpretation of the discretion in section 1184K is supported by the Guide, which provides direction to decision-makers on the application of the ‘special circumstances’ discretion. The Tribunal is not bound to apply the policy expressed in the Guide, but it will usually do so unless there are cogent reasons in a particular case for not applying the policy.[140]
[140] see Drake at 643 per Brennan J.
The Guide states:
The compensation recovery provisions of social security law are designed to ensure that people who receive compensation for a loss of income do not also receive income support from the Australian Government in respect of the same period of time.[141]
[141] at 4.13.4.10.
The Guide also states that the decision to apply the ‘special circumstances’ provisions should be based on a holistic view of an individual’s circumstances.[142]
[142] at 4.13.4.10.
If the Tribunal finds that ‘special circumstances’ exist for the purpose of section 1184K of the Act, French J (as he then was) said, in Secretary, Department of Employment and Workplace Relations v Homewood[143] that the Tribunal is expected to:
1) Identify the circumstances of the case which it found to be ‘special’ and the reasons for which it arrived at that finding.
(a)Explain why, in the special circumstances so found, it thought it appropriate to treat the whole or part of the compensation payment as not having been made.
(b)Explain why it selected the particular quantum (i.e. the whole or part) of the compensation payment as not having been made.
Are there ‘special circumstances’ in the Applicant’s case?
[143] [2006] FCA 779 at [34].
Expenditure of compensation proceeds
In the seven-month period from 4 June 2021 to 31 December 2021, the Applicant spent approximately $155,578.81 of the compensation payments she received for her injury.[144] On 16 November 2021, the Applicant’s bank balance was $51,235.90,[145] and by 31 December 2021 this balance had been reduced to $18,071.45.[146] In this 43-day period the Applicant expended $31,164.45.
[144] RSFIC [65]; Transcript, 5.
[145] ST-Docs, ST5, 539.
[146] ST-Docs, ST5, 537.
As detailed in paragraph [40] above, in the seven-month period between 4 June 2021 and 31 December 2021 the Applicant made cash withdrawals of over $52,000. Other than the transactions that appear in the bank statements for her two CBA accounts, no other corroborating documentary evidence has been provided by the Applicant to explain the purpose of these cash withdrawals. Her oral evidence is that they were to make cash payments to tradesmen and loans to her friends. When these cash withdrawals are added to the transactions of almost $30,000 detailed in paragraph [42] above, the Applicant expended a total of approximately $82,000 in this seven-month period.
The Tribunal has previously declined to exercise the special circumstances discretion where much of the expenditure has not been satisfactorily explained. In Lazarov and Secretary, Department of Family and Community Services,[147] the Tribunal found that the applicant had not provided a clear or consistent explanation of his expenditure of $44,000 of his compensation settlement and, on the whole of the evidence presented, it was not satisfied his circumstances, though difficult, were “unusual, uncommon or exceptional”.[148]
[147] [2004] AATA 743.
[148] At [21] and [24].
Much of the Applicant’s expenditure consists of discretionary expenditure, including loans to friends, purchases of gifts for her children, holiday expenses, and spending on Ubers, Uber Eats, fast food, lottery tickets and gambling. In Secretary, Department of Social Services and Aydin (‘Aydin’),[149] the Tribunal considered the respondent’s discretionary spending which included amounts spent on Uber Eats and jewellery and made the following observation:
… Further, his spending … on jewellery and Uber eats leads me to conclude that if he was experiencing financial hardship, he was to a large extent the author of his own misfortune. The Tribunal in Re John Clinton Alver and Secretary, Department of Social Security has previously determined that the cause of an individual’s financial difficulties is relevant when considering the exercise of the special circumstances provisions and the Tribunal has previously ‘tended to take a hard line where someone has, though extravagance or thoughtlessness, brought about their own dilemma’. The evidence strongly supports a finding that any financial difficulties Mr Aydin may have faced when he claimed JSP or subsequently were brought about by his own extravagance.[150]
[149] [2022] AATA 2823.
[150] [2022] AATA 2823 at [73].
In Black v Secretary, Department of Social Security (‘Black’)[151] the Tribunal noted that the reasonableness of the person’s expenditure is a relevant consideration in determining ‘special circumstances’:[152]
The Tribunal has consistently considered the reasonableness of the person’s expenditure of compensation payments in determining special circumstances. In particular substantial loans to family members, monies spent on travel and cars, general extravagance have been considered to mitigate against special circumstances.
The Tribunal acknowledges that the applicants are in a difficult financial situation. However, the circumstances leading to such hardship are not irrelevant. In considering the entirety of the applicant’s circumstances, the tribunal is mindful of the nature of the expenditure, and the context in which that expenditure occurred.
[151] Black v Secretary, Department of Social Security [1994] AATA 291.
[152] At [49]-[50].
In Groom and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, the Tribunal examined a catalogue of large-scale discretionary expenditure by the applicant which, the Tribunal found, had led to his being in financial hardship through ‘circumstances (which) are entirely of his own making and occurred despite him having received legal advice of the preclusion period and its consequences.’[153]
[153] Groom and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 339.
Significant discretionary expenditure on items such as travel have been highlighted in Tribunal decisions, including in Re Griffiths and Secretary, Department of Social Security.[154] In Re Secretary, Department of Family and Community Servicesand Szoke[155] the Tribunal was particularly forthright in relation to the applicant’s failure to have regard to the consequences of her behaviour:[156]
… the Respondent's case is that she is now impoverished by her failure to make financial provision for the lump sum preclusion period. That was, on her own case, clearly the result of voluntary actions by the Respondent to dissipate the money received by her in settlement of her compensation claim. She did not experience misfortune, nor did she experience circumstances not envisaged by the legislation.
We are satisfied that the Respondent deliberately spent the money without regard to the consequences of her action. Her behaviour in relation to the money was reckless with no regard to the consequences.
[154] Re Griffiths and Secretary, Department of Social Security [1992] AATA 123.
[155] Re Secretary, Department of Family and Community Servicesand Szoke [2001] AATA 353.
[156] At [28]-[29].
The evidence before the Tribunal is that the Agency informed the Applicant and her solicitors in writing on 21 May 2021 of the preclusion period and the need for her to support herself until that period ceased. She also was informed of the availability to her, free of charge, the services of Financial Information Service Officers who could assist her to make informed decisions about her investment and financial issues. There is no evidence that the Applicant took up the opportunity to speak to an Officer or that she obtained any other independent financial advice. The Applicant did not contact the Agency until 8 February 2022, approximately nine months after she received her lump sum compensation payment. The preclusion period and the special circumstance decision were explained to her by an Agency officer.[157]
[157] T-Docs, T32, 338.
In Sams and Secretary, Department of Social Services,[158] Deputy President Constance declined to reduce a preclusion period and made the following comments:
By letter of 21 January 2014 and 27 February 2014 Centrelink advised the Applicant that she should call them in order to discuss the effect that the preclusion period would have on her Centrelink payments. Mrs Sams did not follow this advice.
Although, I do not suggest that Mrs Sams dwindled the money on extravagant purchases, I am satisfied that had she been more careful in managing her finances then Mrs Sams’ present financial hardship could have been prevented.[159]
[158] [2016] AATA 654.
[159] At [39]-[40].
On the basis of the evidence before it, and having regard to the relevant authorities, the Tribunal finds that the Applicant did not prudently manage her finances following receipt of her compensation settlement. She did not seek independent financial advice about how to manage the settlement funds and did not take up the opportunity to speak to a Financial Information Services Officer. She made purchases and loans to friends and family without regard to the consequences, being the reduction in the settlement monies which were to support her for the preclusion period. The Applicant did not experience misfortune, nor did she experience circumstances not envisaged by the legislation. Accordingly, the Tribunal finds that there are no ‘special circumstances’ which warrant the exercise of the discretion in section 1184K of the Act to reduce the length of preclusion period.
Medical conditions
The Applicant’s evidence is that her injuries prevent her from continuing her employment in the factory as the work involves heavy lifting. As a consequence, she is unemployed and without a source of income. The Tribunal has previously recognised that an individual’s medical conditions do not of themselves constitute special circumstances.[160] In Black, the applicant’s ill health or her incapacity to work were not regarded as ‘special circumstances’ since the lump sum payment she received was intended to provide for her restricted working situation.[161]
[160] Secretary, Department of Social Security and Bolton [1989] AATA 479.
[161] [1994] AATA 291 at [42].
The Tribunal accepts the evidence of the Applicant’s general practitioner that the Applicant continues to suffer disability as a consequence of her workplace injury, including chronic neck pain and PTSD. This disability may entitle her to receipt of DSP if it were not for the preclusion period. In Kulakov v Secretary, Department of Social Security,[162] the Tribunal concluded that there were no ‘special circumstances’ and noted:
There is no dispute between the parties and it is agreed that the applicant is qualified to receive an invalid pension on medical grounds and that such pension would be paid were it not for the preclusion period. However, the Tribunal is satisfied and so finds that on the basis of the decision in Re Bolton (supra) ill health alone cannot be held to be a special circumstance.[163]
[162] [1991] AATA 668.
[163] at [21].
In Secretary, Department of Social Security and Bunge,[164] the Tribunal held that if a person’s health would make them eligible to receive DSP, this would not itself constitute ‘special circumstances’ within the context of the Act.
[164] [1990] AATA 486.
On the basis of the evidence provided, and for the stated reasons, the Tribunal is not satisfied that the Applicant’s medical conditions are unusual or unexpected and finds that they do not constitute ‘special circumstances’.
Financial hardship
The Applicant claims that the decision is ‘unfair’ because she has no income and, as a consequence, she is ‘experiencing hardship, battling and cannot survive’. The Tribunal has previously recognised that the perceived unfairness of the legislation does not constitute ‘special circumstances’. In Secretary, Department of Social Services and Krebs,[165] the Tribunal referred to the Federal Court’s decision in Clark v Secretary, Department of Employment and Workplace Relations,[166] in which Lindgren J said that the fact that the outcome regarding the calculation and imposition of preclusion periods may seem unfair does not constitute ‘special circumstances’ in the light of the legislative intention.[167]
[165] [2015] AATA 963 at [39]-[40].
[166] (2007) 96 ALD 129; [2007] FCA 1076.
[167] At [77]. See also Re Chamberlain and Secretary, Department of Family and Community Services [2002] AATA 487.
In Gartside and Secretary, Department of Social Services, the Tribunal considered whether ‘special circumstances’ must be found to exist where the applicant is experiencing financial hardship. Senior Member Sosso (as he then was) found that this was not required:
I do not understand the many Federal Court and Tribunal decisions on “special circumstances” to require the Tribunal to find that special circumstances exist simply because the Applicant is in straitened financial circumstances. My understanding of the law is that it is open to for the Tribunal to find special circumstances, but a Tribunal Member is not obliged to do so. In exercising the discretion vested in the Tribunal, a Member is required to consider all of the matters the evidence admitted produces and straitened financial circumstances is one factor, albeit a very important one, but not the sole one. As Sheppard J said in Director General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281 at 321:
“The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common; they will be impecunious and in straitened circumstances. Very often their stories will be quite tragic.”
Other factors which may outweigh straitened financial circumstances include consideration of the social security system (Re Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114) and whether an Applicant’s disposition of their compensation payment has been reckless – e.g. Davis and Secretary, Department of Family and Community Services [1999] AATA 84.[168]
[168] [2017] AATA 45 at [57]-[58].
On the basis of the evidence before it, the Tribunal finds that the Applicant has not prudently managed her finances and has spent a significant portion of her settlement funds recklessly and without regard to the need to financially support herself with these funds for the duration of the preclusion period. Had the Applicant exercised greater prudence in relation to her expenditure and the management of her finances she would be unlikely to be in the difficult financial situation in which she now finds herself.
The Tribunal finds that to exercise the discretion to enable the Applicant to receive social security payments would be unfair to other compensation recipients who have prudently managed their finances in using their compensation payments to support themselves during a preclusion period, as is intended by the Act.
On the basis of the evidence before it and for the reasons outlined above, the Tribunal cannot find that any of the circumstances claimed by the Applicant, either individually or in combination, meet the threshold of being ‘special circumstances’ for the purposes of the Act. Accordingly, the Tribunal is not satisfied there is a reason to exercise the discretion in section 1184K of the Act to reduce the length of preclusion period.
DECISION
The Reviewable Decision dated 28 July 2022 is affirmed.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
..................................[SGD]......................................
Associate
Dated: 11 April 2023
Date(s) of hearing: 17 January 2023 Applicant: In person Solicitors for the Respondent: Ms T Balakisnan, Services Australia
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