Keighley and Department of Family and Community Services
[2001] AATA 231
•23 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 231
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/93
GENERAL ADMINISTRATIVE DIVISION )
Re EDWARD KEIGHLEY
Applicant
And SECRETARY, DEPARTMENTOF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date23 March 2001
PlaceSydney
Decision The Tribunal determines that the decision under review be affirmed.
..............................................
[sgd]Dr J D Campbell
Member
CATCHWORDS
Social Security - lump sum compensation payment - economic loss component - preclusion period - discretion to disregard all or part of the lump sum payment- special circumstances
Social Security Act 1991, ss 17, 23, 1165, 1166, 1179 and 1184
Secretary, Department of Social Security and Caruso (AAT 11305, 11 October 1996)
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALNN 95
Re Green and Secretary, Department of Social Security (1990) 20 ALD 19
Secretary, Department of Social Security v Banks (1990) 21 ALD 772
Secretary, Department of Social Security v Beckett (1990) 21 ALD 79
Re Secretary, Department of Social Security and Cavaleri (1989) 19 ALD 101
Secretary, Department of Social Security v Hulls (1991) 22 ALD 570
Re Fowles and Secretary, Department of Social Security (1995) 38 ALD 152
Re Secretary, Department of Social Security and Beel (1995) 38 ALD 726
Re Caruso and Secretary, Department of Social Security (AAT 11242, 16 September 1996)
Secretary, Department of Social Security v Cunnaan (1997) 48 ALD 251
Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64
Re Secretary, Department of Social Security and Bolten (1989) 18 ALD 464
REASONS FOR DECISION
Dr J D Campbell, Member
In this application, Mr Edward Keighley ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 7 December 1999, which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 10 March 1999 to recover a charge of $29458.50 from the Applicant's lump sum compensation payment. This decision had been reviewed and affirmed by the authorised review officer in a decision dated 11 August 1999.
A hearing was held at Tamworth on 2 November 2000, at which the Applicant was represented by Mr Frazer, a solicitor from the firm Newman & Pengilley. The Respondent was represented by Mr Lozynsky, a solicitor from the Administrative Law section at Centrelink
The following material was placed into evidence before the Tribunal:
Exhibit No Description Date
T1-T20 PP1-62 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1 Two letters from Sparks Helmore, Solicitors to Newman and Pengilley, Solicitors and one reply dated 1 February 1999 15 February 1999 and 24 February 1999
A2 Applicant's statement of facts and contentions and attachments 30 May 2000
R1 Respondent's statement of facts and contentions 27 June 2000
issues
The relevant issue in this matter is:
whether there are special circumstances which warrant the exercise of the discretion conferred by section 1184 of the Social Security Act 1991 to disregard all or part of the applicant's compensation payment.
legislation
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 17, 23, 1165, 1166 and 1184.
backgroundThe Applicant was granted a disability pension because of ulcerative colitis in April 1993. On 1 July 1994 the Applicant commenced work as a salesman for a company of which he was a director and shareholder, and for which he agreed to accept remuneration of $50 per week, until such time as the company was in a stronger financial position. The Applicant was injured in a motor vehicle accident on 5 April 1995 resulting in a comminuted fracture of the right femur requiring a femoral nail, a comminuted fracture of the right oscalcis requiring cannulated screws, soft tissue injury to cervical spine, concussion and multiple lacerations and bruising (T3).
The Applicant returned to work on light duties on 4 August 1995 and carried through telephone sales activities, until he resumed his on road sales activities on a part-time basis on 4 September 1995. The Applicant continued to receive a disability pension throughout the period (T3).
Following a request from the Applicant's solicitor on 25 February 1999 (T7), the Respondent notified the Applicant's solicitor of a preclusion period of 199 weeks commencing 5 April 1995 and concluding 26 February 1999, with an estimated charge of $32,447 for payments of social security during the preclusion period (T8)
A consent judgement was made on 3 March 1999 in which the Applicant was awarded $150,000 plus costs of $15,000, with no particularisation as to any head of damage and recognition that the Applicant would repay any social security payments that the insurance company had failed to deduct and pay (T9).
The Applicant was notified of a charge of $29,458.50 arising from the payment of social security benefit during the preclusion period of 181 weeks commencing 6 April 1995 and ceasing on 22 September 1998 (T12, T13). This matter was further considered and affirmed by the authorised review officer in a decision dated 11 August 1999 (T17) and by the SSAT in their decision dated 7 December 1999 (T2).
applicant's evidenceThe Applicant told the Tribunal that he had a number of medical conditions, which he detailed as follows:
(a) ulcerative colitis – long-standing causing episodic abdominal pain and diarrhoea. Current therapy includes salozopyrine, prednisone, bismuthl and lomotil;
(b) painful right foot – aches continually, and causes him difficulty with sleeping. Swells occasionally and requires surgical footwear as well as medication with naprosyn and occasional panadeine forte;
(c) right knee – finds his right knee gives away every now and again;
(d) diabetes – occurred after the accident, and at a time when his weight increased from lack of exercise, as he was not working.
The Applicant informed the Tribunal that he was aged 58 and his wife was an aged pensioner, and that he used the compensation money to purchase an incomplete house and a block of land, where he and his wife reside. The Applicant stated that he needs special stockings to assist with his circulation and that he needs two pairs every two months in winter, with two pairs costing $142. He also needs surgical shoes and boots, which are also expensive. The Applicant also stated that his elderly mother resides in New Zealand and that his son died on 26 February 1999. Besides paying for the funeral expenses, the Applicant assists his deceased son's wife and two small children when he can.
In response to questions in cross examination, the Applicant stated that he did return to work after the accident in 1995 and that he was working one to two days a week and that at the time of the settlement, he was working part of a day. Further, the Applicant acknowledged that he was advised by his solicitor about the repayments of his social security benefits, although he did not fully understand all the issues involved. In further commentary the Applicant stated that:
he and his wife had lived in rental accommodation for five to six years prior to the purchase of their current residence, and
he has no debts, mortgages or loans, nor assets in the company, nor has he sought any welfare agency assistance, as he has a small amount of money in the bank and between him and his wife, they have a weekly income of approximately $300. He borrows a car from his son when needed and available.
submissions
the applicant:
Mr Frazer, the solicitor for the Applicant, stated that this matter was not about the calculation of the preclusion period and raising the charge arising from payments made of social security benefits during the prescribed period, but about the existence of special circumstances, which would allow part or whole of the compensation payment to be disregarded as per section 1184 of the Act.
Mr Frazer submitted that the Applicant was not in dire financial circumstances, but that he had a number of medical conditions which prevented him from undertaking full time work, and had ceased his part time work as at mid April 2000. More importantly however, Mr Frazer submitted the following comments in relation to the policy and purpose of this part of the Act :
"6. It is acknowledged that the policy and purpose of this part of the Act is to avoid what is known as "double dipping" and the artificial manipulation by inflation of some heads of loss whilst diminishing others to minimise the calculation of the Centrelink pay back, whilst at the same time acknowledging that this may act unfairly and that accordingly there is a discretion to depart from the strict application of the Act if there are "special circumstances". As set out in the decision of Re Beus and Secretary, Department of Social Security (4 June 1992, No 8000) "the ultimate question for the Tribunal…is whether it is 'appropriate', having regard to the entire circumstances of the applicant's case and to the policy and objects of the 1991 Act to exercise the discretion conferred by s. 1184 of the Act so as to reduce the preclusion period.".
7. The discretion is a very broad discretion – see the decision of Trimboli the Secretary, Department of Social Security (1989) 86 ALR 64, a decision of the Federal Court where it was held "the decision as to when it will be 'appropriate' to exercise the power…involved the exercise of a discretion which is extremely broad and which is not to be confined, save in accordance with usual principles, namely that it is to be exercised bona fide and for the purposes for which the discretion is conferred, such purposes being determined by reference to the policy and purposes of the Society Security Act.".
8. In Re Green and Secretary, Department of Social Security (1990) 21 ALD 772, it was said that the purpose of this part of the Society Security Act is "to ensure that persons who are compensated for their incapacity to work are not doubly compensated by receiving payments under the Act. However, the legislator did contemplate that there would be situations arising from time to time where there would need to be a discretion to waive the application [of those sections] in whole or in part." (Exhibit A2).In the light of his analysis Mr Frazer contended that in this matter a strict application of the 50 percent rule would be harsh and inequitable in its effect upon the Applicant, for in this matter the amount of economic loss has been clearly defined, as evidenced by correspondence between the two firms of solicitors. It was the Applicant's contention that the economic loss figure was $3258, and that the preclusion period and charges should be calculated using that figure as it has been the figure consistently claimed by the Applicant. In the alternative, the Applicant submited, had the matter proceeded to hearing, then the total economic loss would have been $18258, comprising post-economic loss of $3258 and future economic loss of $15000. Such a figure of $15000 was arrived at upon the assumption that the Respondent would have been wholly successful in their submission regarding economic loss. As a third alternative, the Applicant submitted that if the Applicant's submission had been totally accepted at a hearing, the future economic loss would have been $35000 and the total economic loss some $38259 (Exhibit A2).
the respondent:The Respondent contended that the circumstances in this matter were neither unusual, uncommon or exceptional and as such when considered either singularly or together did not constitute special circumstances. More importantly, the Respondent contended that:
"11. Case law has established the principle that the formula used to calculate a preclusion period, while arbitrary in nature, has been put in place by Parliament to effect as far as possible, equity as between the compensation recipient and the public purse, in cases where the economic loss component has not been specifically quantified in the final lump sum settlement figure. The respondent contends that the final agreed settlement figure includes a future economic loss component but that the various heads of damages have not been specifically quantified in the final settlement figure. The applicant has in fact retained a (reduced) future capacity to earn, as he continued until recently to work one day per week. The argument that only past economic loss should be taken to account should therefore be rejected, because the fact remains that the applicant's compensation matter did not go to a contested hearing, it was settled and the Social Security Act requires that in the case of settlements, there need only be a component for lost earnings or lost capacity to earn for the 50% rule to apply." (Exhibit R1)
In summary submission the Respondent contended that :
"12. The discretion provided for in s 1184 should be exercised consistently with the objects and purposes of the legislation, that is, to prevent 'double dipping', unless it would be unjust to enforce the liability for which the legislation otherwise provides. To treat compensation payments in any other manner in this case is to frustrate the object of the legislation in the absence of any circumstances in which it would be reasonable to do so. There is nothing about the respondent's financial situation or his health, which sets him apart from other income support recipients. Enforcement of the liability created by s.1184 would not be unjust, unreasonable or otherwise inappropriate given the circumstances of this case." (Exhibit R1)
consideration and findings
In preliminary comment the Tribunal observes that there is no disagreement between the parties on the facts in this matter. Accordingly the Tribunal makes the following finding of facts:
(a) the Applicant was in receipt of a disability support pension at the time of his involvement in a motor vehicle accident on 5 April 1995;
(b) the Applicant suffered particular injuries in the accident and did not recommence part time light work until 4 August 1995, while resuming his pre-accident on road sales activities on 4 September 1995;
(c) the Applicant received a lump sum compensation payment of $150,000 plus costs of $15,000 as a result of a consent judgement dated 3 March 1999;
(d) the Applicant did receive income support payments during the period and a sum of $29,458.50 was recovered from the Applicant as a consequence of income support payments made during the preclusion period commencing 6 April 1995 and ceasing 22 September 1998; and
(e) the amount of economic loss claimed on behalf of the Applicant in the negotiations prior to the consent order, was $3258.00 for past economic loss and a future economic loss of between $15,000 and $35,0000.
The issue in this matter is essentially whether the Tribunal, after assessment of the nominated circumstances, concludes as to whether or not they constitute special circumstances, and if they do, whether or not the Tribunal may wish to disregard some of the compensation as not having been made. In considering these issues, the Tribunal observes section 17(1) of the Act which defines particular payments as "compensation affected" payments, and sections 17(2) and (3) which relevantly state:
"17(2) For the purposes of this Act, compensation means:
(a) a payment of damages; or
(b) a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d) any other compensation or damages payment;
(whether the payment is in the form of a lump sum or in the form of a series of periodic payments) that is:
(e) made wholly or partly in respect of lost earnings or lost capacity to earn; and
(f) made either within or outside Australia.17(3) 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 judgement being entered in respect of the settlement or otherwise, on or after 9 February 1988; or…"
The Tribunal further observes sections 1165(1A), 1165(7), 1165(8) and 1179:
(a) section 1165(1A) of the Act provides that if a person receives a compensation lump sum after 20 March 1997, they are precluded from receiving a compensation affected payment for the duration of the "new" lump sum preclusion period;
(b) section 1165(7) of the Act states that the preclusion period commences on the day the loss of earnings commenced;
(c) section 1165(8) provides that the length of the preclusion period is determined according to the following formula;
compensation part of lump sum / income cut-out amount; and
(d) section 1179 of the Act provides for the repayment to the Commonwealth of any compensation affected payments paid to a person during a lump sum preclusion period upon the issue of a written notice.
In this matter there is no argument between the parties that the Applicant was receiving a compensation affected payment at the time of his injury; that he did receive a lump sum payment of compensation of $150,000 and that in accordance with section 17(3) of the Act the compensation part of the lump sum payment is $75,000 in the normal course of events. The Applicant argues that the compensation part of the lump sum compensation should only amount to $3,258, that being the amount nominated in the Applicant's claim.
The Tribunal, in examining this issue, concludes that the language used in section 17 of the Act is both particular and specific, to the matter at hand. Further the Tribunal acknowledges that the statutory framework is enacted for good and proper purpose and concludes that it should be followed, for as to do otherwise would be an error in law. The consequences that flow from such adherence to the statutory framework are those nominated in this matter, namely that the compensation part of the lump sum compensation payment is $75,000, which in turn results in a preclusion period of 181, weeks commencing 6 April 1995 and concluding 22 September 1998. This in turn creates a charge of $29,458.50, being an amount of compensation affected payments received by the Applicant during the preclusion period.
Counsel for the Applicant has argued that in this matter a strict adherence to the statutory requirements results in an unfair and inequitable outcome for the Applicant, as it is clear that the intent of both parties in the compensation matter is that the Applicant's post economic loss was $3258 and that future economic loss lay somewhere between $15,000 and $35,000. The Tribunal notes the various negotiations between the parties, which led to a consent judgement order being made on 3 March 1999, for a lump sum compensation payment of $150,000 and costs of $15,000.
In considering these submissions the Tribunal turned its attention to a number of cases which have dealt with the issue, namely:
(a) in Secretary, Department of Social Security v Banks (1990) 20 ALD 19, Von Doussa J in discussing an equivalent provision, namely section 152 of the Social Security Act 1947 ("the 1947 Act"), stated at 26:"The prescribed percentage (50 per cent) of the lump sum payment made in settlement of a claim which by s 152(2)(c)(i) is deemed to be the "compensation part of a lump sum payment by way of compensation" should be viewed as a broad attempt to balance the interests of the recipient of the payment with the competing interests of others in the community whose needs must be met as far as possible from a finite budget allocation for social security measures. The paragraph seeks to eliminate double dipping in a practical way, which operates effectively in a straight forward manner. In the very nature of an arbitrary provision, sub para (II)(i) could possibly entail a degree of unfairness in a particular case, but the present case is not an example. Here, by the terms of the order, almost all of the lump sum was paid in respect of incapacity for work, actual or potential, yet only 50 per cent of the lump sum is treated as the compensation part of the lump sum for the purposes of calculating the exclusion period."
(b) in Secretary, Department of Social Security v a'Beckett (1990) 21 ALD 79, Von Doussa J, at 90 stated:
"Where a claim for damages or compensation is settled after negotiation between the parties for a global sum it will frequently be impossible to dissect that sum into component parts in any meaningful way. It will frequently be impossible to determine as a matter of hard fact that a particular amount, or even an approximate amount, was included for a particular head of loss. A claimant may have one belief about the merits, or the lack of them, of a particular head of claim put forward on his behalf, whilst the party paying might have quite another view. Where liability is in issue a claimant might accept a modest offer believing (perhaps on facts unknown to the other side) that a particular head of loss will not be proved if the matter proceeds to trial. On the other hand the party making the payment might provisionally allocate a substantial sum to that particular head when calculating an offer, and then markedly discount the calculation to reflect a view that the claimant could fail altogether, or in a negligence action, is partly to blame. These considerations, in my opinion, render an exercise of the kind undertaken by the Tribunal in the present case where primary consideration is given to the beliefs of the claimant and his advisers, an unhelpful one."
(c) in Secretary, Department of Social Security v Hulls (1991) 22 ALD 570, O'Loughlin J was concerned with the findings in Banks (supra) and further indicated that the 50% rule was introduced to prevent any dissection of the lump sum.
(d) such decisions were followed by the Tribunal in relation to section 17(3) of the Act in Re Fowles and Secretary, Department of Social Security (1995) 38 ALD 152, where the excision of certain amounts from the compensation lump sum as not being payments in respect of an incapacity for work were declined;
(e) in Re Secretary, Department of Social Security and Beel (1995) 38 ALD 726, and Re Caruso and Secretary, Department of Social Security (1996) AAT 11243, the Tribunal did find that the compensation part was 50% of the lump sum compensation payment, in accordance with section 17(3) of the Act. The Tribunal, however, disregarded a quantum of the lump sum compensation payment pursuant to section 1184 of the Act, due to special circumstances. The special circumstances found to exist were the detailing of the economic loss component in the consent orders, with a significant difference occurring between the nominated figure and the compensation part of the lump sum compensation payment; and
(f) in Secretary, Department of Social Security v Cunnaan (1997) 48 ALD 251, the Federal Court concluded that regardless of the identified heads of damage, a lump sum is indivisible for the purposes of part 3.14 of the Act.
The Tribunal, in examing the matter, in light of the cases discussed above, notes that what is nominated is a statement of claim, and in discussion between the parties is indicative of each party's consideration at the point in time at which the claim was lodged or the negotiation documents were produced. However, the consent order and its content is an independent document, which may or may not reflect particulars of either parties earlier intentions or positions. As such, the Tribunal must conclude that any argument, which is based upon what has been considered in negotiations or lodged in a statement of claim, must fail when a consent order issues and nominates the particulars of the consent argument upon which both parties agree at the time the consent order is issued. It is the Tribunal's view that a consent judgement does reflect only what is contained therein, with such particulars being the particulars upon which both parties agree at the time of the consent order, and which may or may not reflect any matters which may have been raised in earlier consideration between the parties. In the Tribunals view, any attempt to imply or infer matters that are not stated on the face of the consent order must be resisted, as it is essentially throwing into question the process and validity of a consent order.
The Tribunal, in reflecting upon situations in which special circumstances have been found to exist, because the statutory framework produced a compensation part of a lump sum payment that was perceived to be at significant variance with what was detailed as an economic loss in consent orders, concludes that such cases are not consistent with the statutory intent of the legislation. Further, in claiming that such an approach produces an unfair and inequitable outcome, advocates for such a position are, in the Tribunal's view, placing both a particular and significant emphasis on the proper construction of a consent order. At the same time they are jeopardising the integrity of a statutory process which balances both individual social need and a community's responsibility to ensure equity and probity of resource distribution to meet those needs.
The Tribunal, in noting the absence of any attempt to identify heads of damage in the consent order in this matter, which in itself would distinguish this matter from the findings in Re Beel (supra) and Re Caruso (supra), and with which the Tribunal has expressed particular reservation in the previous paragraph, finds that, regardless of whether heads of damage have been identified, a lump sum is indivisible for the purposes of part 3.14 of the Act, (the Tribunal having considered and followed the decision in the matter of Cunnaan (supra) .
In further consideration, the Tribunal moves to an examination of the statutory framework and notes section 1184 of the Act which provides:
"1184(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 phrase "special circumstances" has been subject to much judicial examination and expression, commencing with Toohey J in Re Beadle and Director General of Social Security (1984) 6 ALD 1 at 3 where he stated:
"An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstance that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on 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."
In relation to compensation recovery pursuant to section 115 of the 1947 Act (the equivalent of section 1184 of the 1991 Act) the Tribunal in the case of Re Ivovic and Director-General of Social Services 3 (1981) ALN N95 considered that the "plain intention of section 115 of the Act" is that the person is subject to the liability created by section 15(4) "unless the Tribunal is satisfied that special circumstances exist by reason of which the person should be released in whole or in part from that liability."
In Re Green and Secretary, Department of Social Security (1990) 21 ALD 772 at 773 the Tribunal nominated a framework against which claim for special circumstances could be considered:
"The use of the word "special" is "intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case":
"hardship is a relevant consideration" but regard must be had to the way in which the hardship arose;
there must exist "factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes'
the decision maker must have regard to whether, by exercising the discretion in particular case he/she will be "achieving or frustrating the ends or objects which are conformable with the scope and purpose of the Social Security Act"; and
the decision maker must be prepared to respond to special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate."
In considering each of the circumstances nominated in this matter, the Tribunal makes the following observations:
(a) it has been submitted that an unfair and inequitable outcome has been occasioned by strict adherence to the statutory process in this matter, and that a fairer and more equitable outcome would result if the Applicant's assessment of economic loss could be considered as the effective numerator, thereby significantly reducing the length of the preclusion period. It has been argued that while the statutory process does not permit such an occurrence, appropriate recognition of the mechanisms whereby economic loss could be quantified should occur in this matter. To effect such recognition the circumstances should be considered to be "special circumstances", in order that the Applicant has a lessened repayment of social security benefits, as a consequence of a shortened preclusion congruent with an assessment of the Applicant's economic loss;.
(b) in considering the Applicant's arguments, and having already concluded that adherence to the defined statutory process is mandatory, the Tribunal finds no merit in finding that in the ordinary course of events adherence to the statutory process is a special circumstance. In evaluating the outcome of adherence to the statutory process, the Tribunal notes that there is nothing unfair or unjust in the process of implementation and of outcome experienced by the Applicant, in that he has been treated as would others in such circumstances, and the outcome is as others would experience it in similar circumstances. Further the Tribunal notes that strict enforcement of the liability is neither unjust, unreasonable or otherwise inappropriate, for indeed the liability is to repay compensation affected payments which he has received. Finally the Tribunal notes that there is nothing identified in the process undertaken and the outcome arrived at which would not occur to another in similar circumstances. This in itself influences the Tribunal to conclude that in relation to the circumstances of strict adherence in this matter, both the process and the outcome upon the Applicant are not considered to be unusual, uncommon and exceptional and as such do not constitute "special circumstances".
(c) in considering the issue of the Applicant's various medical conditions, the Tribunal notes that while incapacitated from his ulcerative colitis and being granted disability support pension, the Applicant was able to work in a particular capacity. Further, the Tribunal notes that after the accident the Applicant was able to resume work after some four months, albeit in a limited fashion, while still receiving a disability support pension and that he continued to do so until some months prior to the hearing. The Tribunal also notes the injuries the Applicant received in the car accident, and the conditions that have continued to trouble the Applicant, and for which compensation has been paid. Further, the Tribunal acknowledges the onset of mature non-insulin dependent diabetes, and having considered all elements of the Applicant's health impairments, concludes that they do not constitute special circumstances (Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464 considered and followed).
(d) in considering other circumstances surrounding the Applicant, the Tribunal was made aware and does conclude that while the Applicant has to be careful with his financial expenditure and that he has particular expenditure he would like to make, the Applicant is not experiencing financial hardship, let alone exceptional financial hardship. The Tribunal was also made aware of the particular circumstances of the son's death and expenditure made as a consequence, and again while noting the circumstances, concludes that such circumstances, while causing particular grief and disruption to the family and the Applicant do not constitute special circumstances;
(e) finally the Tribunal is considering all the circumstances nominated as a whole, concludes that they do not constitute special circumstances, for in effect they are not exceptional, uncommon or unusual.In summary the Tribunal finds that the circumstances nominated and considered, whether single or together do not constitute special circumstances. As such, the Tribunal, while noting the ambit of its discretion, is not in a position to exercise any discretion as nominated in section 1184 of the Act, as the preliminary finding of special circumstances has not been established.
determinationThe Tribunal determines that the decision under review be affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 2 November 2000
Date of Decision 23 March 2001Solicitor for the Applicant Mr R.H.W. Frazer
Solicitor for the Respondent Mr G Lozynsky
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