Kenny and Department of Family and Community Services
[2001] AATA 637
•6 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 637
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V01/195
GENERAL ADMINISTRATIVE DIVISION)
Re: GLENN KENNY
Applicant
And: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date: 6 July 2001
Place: Melbourne
Decision:The decision under review is affirmed.
(sgd) H.E. Hallowes
Senior Member
SOCIAL SECURITY — claim for newstart allowance ("NSA") — whether precluded from payment of NSA due to lump sum compensation payment — settlement of claim — receipt of lump sum — whether made wholly or partly in respect of lost earnings or lost capacity to earn — whether special circumstances
Social Security Act 1991 ss.17, 1184
Accident Compensation Act 1985 (Vic) ss.98, 98A, 135A
Secretary, Department of Social Security v Banks (1990) 20 ALD 19
Secretary, Department of Social Security v a'Beckett (1990) 21 ALD 79
Secretary to the Department of Family and Community Services v Edwards [2001] FCA 1645
Secretary, Department of Social Security v Hulls and Others (1991) 22 ALD 570
Martinez v Secretary, Department of Family and Community Services [2000] FCA 1090
Re Ivovic and Director-General of Social Services (1981) 3 ALN 395
REASONS FOR DECISION
6 July 2001 Mrs H.E. Hallowes, Senior Member
When this application came before the Tribunal for hearing the Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") and the first page of a Deed of Release under which the applicant, Mr Kenny agreed to accept the sum of $205,000.00 ". . . plus retention of benefits paid pursuant to the Act ('the settlement sum') to be paid on behalf of the Releasee by MMI WORKERS COMPENSATION (VIC) LTD" in respect of a common law claim for damages. The Tribunal was told that both parties had attempted to obtain a complete copy of the Deed of Release and any other relevant documents with respect to the settlement of Mr Kenny's claim for compensation but that the parties had been unsuccessful.
The documents disclose that, following injury to his left shoulder, Mr Kenny lodged a claim for compensation on 16 August 1996. He was paid weekly compensation from 6 August 1996 to 23 December 1999. A file note records that the settlement of his claim, outlined in paragraph 1 above, included payment for economic loss and that Mr Kenny received his cheque on 21 January 2000.
At the hearing Mr J. Wallace, of counsel, who appeared for Mr Kenny, advised the Tribunal that Mr Kenny was born in February 1961. Mr Kenny dislocated his left shoulder and tore tendons while at work, and although he underwent surgery on his shoulder, pain persisted. He returned to light duties but his services were terminated by his employer 12 months after his injury occurred. He has undergone four more operations on his shoulder.
Mr Wallace contended that none of the lump sum paid to Mr Kenny was made wholly or partly in respect of lost capacity to earn and he put to the Tribunal that the lump sum paid to Mr Kenny was not compensation under subsection 17(2) of the Social Security Act 1991 ("the Act"). Subsection 17(2) provides:
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.Note: Under section 1163B, a person may be treated as having received compensation that the person would have received but for the effect of a State or Territory law.
Mr Wallace noted that, under the Deed of Release, Mr Kenny had retained his compensation for loss of earnings paid prior to settlement and he submitted that, as Mr Kenny did not have to repay those amounts, the Tribunal should accept that no part of the lump sum represented past and therefore future loss of earnings, as Mr Kenny does not contend that he is incapacitated for work. On the other hand, Ms R. Bradley, an advocate with Centrelink, contended on behalf of the Secretary that the amount paid to Mr Kenny was compensation under the Act. The issue requires the Tribunal to decide whether the compensation paid to Mr Kenny under the Deed of Release falls within paragraph 17(2)(e) of the Act.
In support of his contention Mr Wallace referred the Tribunal to the decisions of von Doussa J in Secretary, Department of Social Security v Banks (1990) 20 ALD 19 and Secretary, Department of Social Security v a'Beckett (1990) 21 ALD 79. He also referred the Tribunal to the decision in Secretary to the Department of Family and Community Services v Edwards [2001] FCA 1645 (decided 16 November 2000) in support of his contentions under 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.
1184(2) If:
(a)a person receives or claims a compensation affected payment; and
(b)the person's partner receives compensation; and
(c)the set of circumstances giving rise to the compensation are not related to the set of circumstances that give rise to the person's receipt of or claim for the compensation affected payment;
the fact that those 2 sets of circumstances are unrelated does not in itself constitute special circumstances for the purposes of subsection (1).
Note: Subsection (2) is in response to comments made in the decision of the Administrative Appeals Tribunal in Re Secretary, Department of Social Security and Lee (S92/155) to the effect that the Social Security Act is aimed at reducing pensions in situations where a social security recipient's entitlement is somehow connected with the fact that the recipient's partner is in receipt of compensation payments and not wages.Ms Bradley referred the Tribunal to the decision of the Federal Court in Secretary, Department of Social Security v Hulls and Others (1991) 22 ALD 570 with respect to legal costs and whether they should be deducted from any lump sum payment for the purpose of determining a preclusion period. As neither side had been made aware of the authorities to which the Tribunal was going to be referred by the other, the Tribunal gave leave to Mr Wallace at the hearing to lodge a written submission addressing issues arising under Hulls and, to Ms Bradley, to provide a written submission with respect to issues raised under Edwards.
In providing a further written submission to the Tribunal Ms Bradley addressed issues under Edwards and went on to advise that the respondent had contacted the insurer with respect to the Deed of Release, and had now obtained a complete copy of the Deed of Release and written advice regarding a claim Mr Kenny had made under sections 98 and 98A of the Accident Compensation Act 1985 (Vic) ("the Accident Compensation Act") pursuant to which Mr Kenny was paid an additional sum of $27,211.25. Ms Bradley referred the Tribunal to subsection 17(2B) of the Act and submitted that the sum of $27,211.25 should be added to the sum of $205,000.00 before a decision is made with respect to the amount of compensation paid to Mr Kenny and the preclusion period which should be determined during which he would not be entitled to be paid a compensation affected payment under the Act. Subsection 17(2B) provides:
17(2B) For the purposes of this Act, if:
(a)a person receives more than one lump sum payment, whether simultaneously or at different times, in relation to one or more injuries arising from the same event (see subsection (5A)); and
(b)at least one of the payments is made wholly or partly in respect of lost earnings or lost capacity to earn;
the person is taken to receive one lump sum compensation payment, made wholly or partly in respect of lost earnings or lost capacity to earn, of an amount equal to the sum of those lump sum payments.
It was Ms Bradley's contention that the compensation part of the lump sum should be calculated under paragraph 17(3)(a) of the Act, rather than paragraph 17(3)(b) of the Act as contended by Mr Wallace. Subsection 17(3) provides, so far as relevant:
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 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.
. . .
Ms Bradley went on to refer the Tribunal to the decision of the Federal Court in Martinez v Secretary, Department of Family and Community Services [2000] FCA 1090 (decided 11 August 2000) where the applicant alleged that his solicitors had failed to properly advise him. The Federal Court dismissed an appeal against the Tribunal's decision that the applicant's circumstances were not such as to result in recovery of social security payments being unfair or inappropriate.
On 10 May 2001 Mr Kenny's solicitor telephoned the Tribunal and noted that Ms Bradley had raised matters in her submission other than that the Tribunal had given leave to raise. The Tribunal held a telephone directions hearing and, having heard the parties, decided to take into evidence the complete Deed of Release and documentation with respect to Mr Kenny's application under section 135A of the Accident Compensation Act and leave was given to Mr Kenny's solicitor to make further submissions with respect to that material, but the Tribunal did not take into evidence the material with respect to the payment of $27,211.25 made to Mr Kenny under section 98 of Accident Compensation Act, Mr Kenny's receipt of that sum not having been considered by the Secretary. There was further delay in obtaining the complete Deed of Release.
Mr Kenny gave evidence by telephone. He told the Tribunal that he played a number of sports before injuring his shoulder, but ". . . that's all gone by the wayside". He continues to suffer pain. His solicitors commenced an action for damages under section 135A of the Accident Compensation Act, contending that Mr Kenny impaired his left shoulder and left arm. His solicitors settled his case. When asked by Mr Wallace at the hearing how his shoulder was at the time of settlement, Mr Kenny replied:
Oh, pretty unstable I'd say because I hadn't used it at all. I had just got some casual employment in the last few months and, yes, it's not as good as I thought it was.
. . .
Oh, I thought it was, you know, as good as it was going to be. I felt quite good about it, you know. It felt good, strong.
When asked whether he thought he would be going back to work Mr Kenny replied, "Yes".
In an affidavit, sworn on 27 May 1999, for the purpose of his section 135A claim, Mr Kenny referred to difficulties he was experiencing sleeping and an ache in his left shoulder if he drove a long distance, pain also being increased by jogging, running or jumping. Mr Kenny also stated that:
. . .
5.6In the meantime, after the first operation, I returned to work on light duties and then, on 6 January 1997, returned to full duties. While I was able to manage light duties, it quickly became apparent that I was unable to handle heavy work. The gang had commenced work in the bush on 7 January and I couldn't handle the heavy work. I contacted Mr O'Donnell, who provided me with a certificate of incapacity and I worked my last day on 22 January 1997.
. . .
7.6. . . I cannot even lean over to pick up an ashtray or pour a glass of water.
7.7I try to do small things around the house, but I cannot do much. I go swimming, but cannot life my arm above my head. I only do breaststroke or use a kickboard.
8.In summary, I had my accident in July 1996 and returned to work in January 1997, but only managed to stay for a week and a half on light duties, and I have not worked since.
9.Despite having had four operations, I do not feel any improvement. I am getting tired and depressed sitting around being unable to work.
He noted that at the time of his accident he would have been earning approximately $460.00 per week clear.
Shortly after settling his claim for compensation Mr Kenny lodged a claim for newstart allowance ("NSA") on 13 January 2000. On 14 January a delegate of the Secretary wrote to Mr Kenny advising him that any compensation he received may stop him receiving social security payments in the future. His solicitors were similarly advised. Mr Kenny told the Tribunal he advised Centrelink that he thought he was capable of performing the work he had been doing before his injury. This is not what was suggested by him in his affidavit dated 27 May 1999. He is now undertaking some casual cleaning work and he is actively seeking employment. Mr Kenny said that he was having ". . . a lot of pain at the moment" and he was going to discuss it with his orthopaedic surgeon to see if there is anything wrong. He undertook a lot of physiotherapy and swimming up to 12 months ago. Mr Kenny said that his solicitors had not advised him about the effect accepting a lump sum payment would have on his entitlement to be paid a social security payment under the Act. If he had known what he now knows, ". . . I wouldn't have gone out and bought a house with it".
Mr Kenny went on to outline the way he had spent his lump sum, saying that "all up" his legal costs amounted to $36,000.00. He bought a house for the amount of $100,000.00 and furniture costing approximately $40,000.00. He paid off a car loan and he paid his parents back approximately $10,000.00 he had borrowed from them and he paid a credit card debt of approximately $3000.00, together with sundry other expenses including the purchase of a computer for $1500.00. Mr Kenny now receives $50 a week board from a person who lives in his house. He told the SSAT that he would value his house at about $145,000.00 and he told this Tribunal that it is worth between $100,000 and $120,000.00.
The Tribunal accepts Mr Wallace's contention that the clause under the Deed of Release entitling Mr Kenny to retain benefits already paid to him means that the lump sum does not include compensation in respect of "lost earnings" for the period before he ceased to be paid weekly compensation on 24 December 1999. The issue remains however whether the lump sum was partly made in respect of "lost capacity to earn" for the period after weekly payments ceased. Mr Wallace also submitted that, when referring to section 1184 of the Act, special circumstances are "not just about hardship", and the Tribunal would accept that contention. As Drummond J said in Edwards:
. . .
Section 1184 confers power on the Secretary by reason of the circumstances of the particular case to ameliorate what has been called the arbitrary operation of the social security benefit reduction provisions of the Part "if the Secretary thinks it is appropriate to do so in the special circumstances of the case".
Mr Wallace went on to contend that one of the relevant considerations under section 1184 is "how much might be said to not involve income for lost capacity". However, Drummond J in Edwards went on to refer to the reference by O'Loughlin J in Hulls, at page 580, to what the Tribunal said in Re Ivovic and Director-General of Social Services (1981) 3 ALN 395 where provisions under the Social Security Act 1947 ("the 1947 Act"), similar to section 1184, were considered:
In the exercise of the discretion which s 115(4A) confers, the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the Social Services Act 1947: . . . Thus whilst keeping the dominant principle of s 115 in mind, he must nevertheless be prepared to respond to the 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 Banks von Doussa J considered the 1947 Act provisions. His Honour held that, when a lump sum compensation payment was in whole or in part in respect of incapacity for work and the total amount paid comprising the lump sum was subject to the arbitrary formula under the Act, the wide language of the Act was intended to prevent abuse of the social security system through the manipulation of settlements of compensation claims so as to obscure the economic loss component in compensation payments. The arbitrary formula is a broad attempt to balance the interests of the recipient of the payment and the community. A sum specified in the compensation payment as redemption of future medical expenses should not be excluded from the lump sum payment. At pages 25 and 26 his Honour said:
. . .
The provisions of s 152(2)(c)(i) apply where a lump sum payment was made in settlement of a claim "that is, in whole or in part related to disease or injury . . . ". The wide scope of subpara (i) is further emphasised in the definition in para (a) of a "payment by way of compensation" which extends to any of the specified kinds of payment that is "in whole or in part, in respect of an incapacity for work". If a payment in settlement of a claim has these characteristics, the total amount paid, which comprises the "lump sum", becomes subject to the arbitrary formula of subpara (i) to determine "the compensation part of the lump sum payment by way of compensation". Thus, subpara (i) will apply to the total amount paid in settlement of a claim if the amount paid is in some part in respect of an incapacity for work and if the claim relates in some part to disease or injury. This will be so even though the lump sum also clearly includes amounts for heads of loss which are unrelated to incapacity for work, eg, for pain and suffering, for disfigurement, or for future medical expenses in relation to disease or injury. This will also be the case where the lump sum payment is in settlement of a claim which includes a head of loss that is unrelated either to incapacity for work or to disease or injury, eg, a component for property damage.
The wide language of subpara (i) is a recognition by parliament that unless every component part of a lump sum payment made in settlement of a claim which has the prescribed characteristics is brought to account the mischief to which para (c) is directed will not be remedied. The scope for manipulation by inflating some heads of loss and diminishing or excluding others, without altering the total amount of the lump sum, would otherwise remain. The prescribed percentage (50%) of the lump sum payment made in settlement of a claim which by s152(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 straightforward manner. In the very nature of an arbitrary provision, subpara (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% of the lump sum is treated as the compensation part of the lump sum for the purposes of calculating the exclusion period. [existing emphasis]
Turning to a'Beckett, von Doussa J considered a decision of the Tribunal that an award of damages in a common law action was not a payment of compensation caught by the Act. At page 90, his Honour said:
. . . The task of the delegate, and of the Tribunal, was to apply in a sensible way the words of the definition to the primary facts as found, drawing such inferences as fairly arose from those facts. 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.
and further, at page 92:
. . . It was contended that if it were held that on the proper construction of s 152 no part of the payment received by the respondent was a payment in respect of an incapacity for work, it should be held that this result came about by reason of the respondent abandoning claims for past and future loss of earning capacity so as to avoid the consequences of the scheme for preclusion and recovery. . . . In my opinion the evidence led before the Tribunal establishes that whatever the conditions the respondent thought he was imposing on his acceptance of the offer made in settlement of his claim, his decision to accept that offer was one based on the merits of the claim and on the risks and personal discomfort associated with pressing on. I do not consider there was in any real sense an abandonment of any aspect of his claim by him. . . .
In Hulls, where the Federal Court considered the discretion conferred to shorten the preclusion period in special circumstances, O'Loughlin J found that the Tribunal had failed to appreciate that the arbitrary 50 per cent formula had been intended to provide a simple solution to the problem of double counting of the elements in the compensation settlement. His Honour held that the Tribunal was in error in concluding that the discretion under section 156 of the 1947 Act (the then equivalent of section 1184 in the Act) could be invoked when parties to a compensation settlement failed to give a separate identification to legal costs, because it was commonplace for claims for compensation to be settled on the basis of a global sum, leaving a claimant to meet the liability for legal costs. His Honour went on to say that there was nothing unusual or out of the ordinary in the fact that compensation payments made to the respondent included an amount of legal costs. Because of the "50% rule" and the meaning given to "receipt", his Honour concluded that payment to others should not be excised from the lump sum, and would not automatically constitute special circumstances. Rather, factors must exist which justify the making of an exception. Circumstances out of which hardship arises should not be ignored.
Applying what was said in Hulls, the Tribunal rejects Mr Wallace's contention that the legal costs paid by Mr Kenny should be excluded from the lump sum, not being "a payment of damages" and therefore not "compensation" under subsection 17(2) of the Act. The costs are embraced by the payment in settlement of Mr Kenny's claim for damages. The payment was made "partly" in respect of lost capacity to earn. The Tribunal accepts Ms Bradley's contention that Mr Kenny was paid compensation falling under paragraph 17(2)(c) of the Act, a payment in settlement of his claim for damages and that paragraph 17(2)(e) applies. The Tribunal is further satisfied that paragraph 17(3)(a) of the Act applies, rather than paragraph 17(3)(b) as contended by Mr Wallace. Although Mr Kenny's claim was not settled by a consent judgment, the settlement of his claim falls under the sub-paragraph because of the inclusion of the word "otherwise". These findings are borne out by the terms of the complete Deed of Release, signed by Mr Kenny on 11 January 2000, and the other documentation produced by Ms Bradley which was before the Tribunal. The inference fairly arises from the facts. Paragraphs 4 and 5 of the Deed of Release, signed by Mr Kenny, provide as follows:
. . .
4.In consideration of accepting the settlement sum the Releasor releases and forever discharges the Releasee and the Insurer from and the indemnify them from and against all suits, demands, claims and causes of action of every description whatsoever which the Releasor now has or at any time hereafter may have or which but for the execution of this Release he could or might have had against the Releasee and the Insurer for or by reason or arising out of the incident and from and against all costs and expenses in connection with such suits, demands, claims and causes of action, other than a claim for reasonable and medical and like expenses pursuant to the Act.
5.The Releasor acknowledges and accepts that this Release can be pleaded as an absolute bar to any proceedings that might be brought against the Releasee and the Insurer in respect of reimbursement of any payments made to or on behalf of the Releasor in relation to the incident, irrespective of when such payments are, have been, or will be made.
The Deed of Release notes that Mr Kenny had threatened to institute proceedings against his employer seeking damages with respect to his injury and that the parties desired to resolve ". . . all matters arising from the incident and under the Accident Compensation Act 1985 (as amended) ('the Act')". As Ms Bradley contended at the hearing, Mr Kenny, in settling his claim following his injury, released the insurer from all claims and demands. This points to him, including any economic loss he suffered as part of his claim. The Tribunal notes that he suggested in his affidavit that he was unable to work. The 50 per cent rule takes into account that claimants may have expenses to be met out of any damages. The fact that Mr Kenny's claim under the Act was for NSA rather than disability support pension, does not lead the Tribunal to conclude that he may not suffer some economic loss in the future. It appears from the evidence that he has only worked intermittently since settling his claim for damages. Even if he now contends that he is in a position to carry out his pre-injury work, the evidence points to him not being in a position to earn as much as he did before his accident. Although Mr Wallace put to the Tribunal at the hearing that Mr Kenny was not contending that he was incapacitated for work, that contention is not supported by what Mr Kenny outlined in his common law claim, nor is it supported by Mr Kenny's evidence that he is in such pain that he is again going to consult his surgeon. The Tribunal finds that he is no longer able to undertake heavy work.
It appears that Mr Kenny left negotiations with respect to the settlement of his claim to his solicitor. He says that his solicitor did not explain to him that he would be precluded from being paid a compensation affected payment under the Act. Mr Kenny's contention is borne out by the fact that he claimed a compensation affected payment under the Act as soon as his weekly compensation payments ceased, although the Tribunal is satisfied that he was also placed in a difficult financial position when his weekly compensation payments ceased and he had not been paid any lump sum. He needed income support until his damages claim was resolved. Mr Kenny may well feel that his circumstances are special because his solicitor failed to properly advise him. However, he retains his equity in that investment which he apparently now values at more than the sum he paid for it. He is in a position to sell or borrow against his asset which he says he would not have bought had he known that part of his lump sum was required to support him during the preclusion period.
The Tribunal applies what was said by O'Loughlin J in Hulls, at page 580, concerning the considerable legal costs Mr Kenny has had to pay:
. . . I further believe that the tribunal erred in law, when it concluded that it could make use of s 156 [the equivalent of section 1184] with respect to legal costs because those costs, if they had been identified by the parties to the settlement, would have been excised before arriving at the lump sum. It was wrong to conclude that s 156 could be invoked, as a matter of course, when the parties to a settlement had failed to give a separate identification to legal costs. That is not to say that s 156 will never be available with respect to legal costs. The particular facts of a case might make them — or the amount of them — a special circumstance.
The Tribunal has decided that the costs, which Mr Kenny says he had to pay his solicitors, do not make his circumstances uncommon or it unfair for him to be precluded from being paid a social security payment under the Act for a period. No doubt, Mr Kenny was in straitened circumstances when his weekly payments ceased and his employment was terminated. He was then entitled to social security payments but, having now been paid a sum, partly because of future lost earning capacity, he has resources to repay the amount of NSA paid to him and to pay for his ongoing needs during the preclusion period one way or another. The Tribunal has taken into account the difficulty for Mr Kenny in having had to undergo a number of further operations to try and alleviate the pain in his shoulder and the ongoing pain he suffers. However, the Tribunal is not persuaded that it should exercise its discretion in the circumstances of this case despite the fact that Mr Kenny was not made aware of the relevant provisions of the Act before deciding to accept the lump sum.
Ms Bradley made reference to the divisor used to determine Mr Kenny's preclusion period, an issue which was not raised by Mr Wallace. She contended that any increase in the cost of living since the introduction of the goods and services tax, being borne by everyone in the community, is not a factor to be taken into account as a special circumstance although she noted that the Act was not being strictly applied by the Secretary following reduction in taper rates.
It is for these reasons the decision under review will be affirmed.
I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 07.05.01
Date of Decision: 06.07.01
Counsel for the Applicant: Mr J. Wallace
Solicitor for the Applicant: Messrs Lander & Rogers
Solicitor for the Respondent Ms R. Bradley, Advocate with Centrelink
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