Kerry and Secretary, Department of Family and Community Services

[2005] AATA 347

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 347

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1414

GENERAL ADMINISTRATION  DIVISION		)
Re		ELIZABETH KERRY

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date19 April 2005

PlaceSydney

Decision The reviewable decision of the Social Security Appeals Tribunal of 6 September 2004, determining the preclusion period for the payment of the disability support pension until 27 October 2006, is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY PAYMENT – disability support pension – compensation –  preclusion period relating to compensation settlement - special circumstances – decision affirmed.

LEGISLATION


Social Security Act 1991 ss 17(2), 17(3), 17(4), 17(5A0, 1169(1), 1169(2), 1170(1), 1170(2), 1170(3), 1170(4), 1170(5) and1184K(1)

CASELAW

Henderson v Secretary, Department of Family and Community Services [2004] AATA 541
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Secretary, Department of Social Security  v a’Beckett (1990) 26 FCR 349
Secretary, Department of Social Security  v Banks (1990) 23 FCR 416.

Beadle v Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly     

Background

1.                 On 30 June 1999, the Applicant, Mrs Elizabeth Kerry (“Mrs Kerry”) was injured while driving a motor vehicle in the course of her work. She injured her neck and lower back (“the 1999 accident”).  She had been involved in a previous motor vehicle accident in 1994 when she had also injured her neck (“the 1994 accident”).  She is 44 years old.

2.                 On 5 May 2003 Mrs Kerry settled legal proceedings in the District Court of New South Wales relating to the 1999 accident for the sum of $320,000 (T9).  At the end of December 2003 Mrs Kerry filled out an application for a social security benefit (T15 p 73). Centrelink found that she qualified for the disability support pension, being assessed as having 20 points disability (T20, p 98).  However, the decision of 30 March 2004 found that there was a preclusion period from 10 May 2003 to 20 April 2007 pursuant to relevant legislative provisions (T27). On 13 April the original decision-maker affirmed that decision after Mrs Kerry had requested a review (T32).  

3.                 In these proceedings Mrs Kerry seeks the review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 6 September 2004. The SSAT’s decision affirmed the decision of the authorised review officer made on 20 May 2004 which varied the earlier decisions referred to, by reducing the preclusion period by six months so that it ended on 27 October 2006 (T35).

4.                 Mr Kerry represented his wife, Mrs Kerry, at the hearing although both were present and Mrs Kerry did address the court from time to time. Mr Zhang appeared for the Respondent, the Secretary, Department of Family and Community Services (“DFACS”).

Issues

5.                 The first issue in the proceedings is whether the settlement or parts of it, received by Mrs Kerry was “compensation” for the purpose of the calculation of the preclusion period pursuant to the Social Security Act 1991 (“the Act”). This question was not argued fully. Mr and Mrs Kerry were not legally represented and DFACS did not develop a legal argument but simply asserted that a particular calculation was correct.

6.                 The second issue is whether there are special circumstances under s 1184K of the Act which require the preclusion period to be further reduced or set aside.

The Law

Following are the relevant provisions of the Act.

s.. 17(2) Subject to subsection (2B), 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 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.

s. 17.(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 judgement 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 or 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 judgement 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.

s. 17(4) Where a person:

(a) has received periodic compensation payments; and

(b) after receiving those payments, receives a lump sum compensation payment (in this subsection called the "LSP"); and

(c) because of receiving the LSP, becomes liable to repay an amount (in this subsection called the Repaid Periodic Compensation Payment-"RPCP") equal to the periodic compensation payments received;

then, for the purposes of subsection (3), the amount of the lump sum compensation payment is:

LSP - RPCP

(In summary, s 17(4) provides that where period compensation payments have to be repaid because of receipt of lump sum compensation payment, they should be deducted from the lump sum payment. That was properly done in this case at both the primary and ARO decision stage of this case.)

s. 17(5A) For the purposes of subsection (2B) of this section and Part 3.14, the event that gives rise to a person's entitlement to compensation for a disease, injury or condition is:

(a) if the disease, injury or condition was caused by an accident-the accident; or

(b) in any other case-the disease, injury or condition first becoming apparent;

and is not, for example, the decision or settlement under which the compensation is payable.

The following provisions appear in Part 3.14 - Compensation recovery.

s. 1169.(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.

s. 1169(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.

s. 1170(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).

s. 1170(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).

s. 1170(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).

s.  1170(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:

Compensation part of lump sum

-----------------------------------------------------
     Income cut-out amount  

s. 1170(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.

s. 1184K.(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 settlement

7.                 Fundamental to the argument before me was the nature of the settlement that Mrs Kerry accepted. Mr Kerry said that the insurer had accepted liability for the accident. Therefore the issue in the District Court proceedings would have been the quantum of damages. Mr and Mrs Kerry now believe that Mrs Kerry was not well-advised or well represented by her legal representatives and that the settlement was inadequate. At the time of the settlement Mr Kerry explained that both he and Mrs Kerry were under a great deal of strain. Mrs Kerry was taking 200 mg of morphine a day. She was in in-patient at the Sydney Clinic for a pain management program (T15, p 65). Her barrister told her she could be cross-examined for four days and that if she did not give evidence they could not pursue the matter. Mr Kerry, his wife, and he said, her psychiatrist, did not think she would be able to withstand such pressure given her medication and condition. I understand the barrister’s concern was the argument about the extent to which her condition was caused by the 1994 accident and the 1999 accident.

8.                 The Terms of Settlement was document T9.  Those terms specify the verdict for the plaintiff in the sum of $320,0000 including costs but do not set out heads of damage. They refer to various payments that may be made or had to be made out of the verdict moneys by the defendant and plaintiff including to the Health Insurance Commission, in respect of workers compensation, social services, medicare and nursing home benefits, where certain demands were made and as required by statute. 

9.                 A summary of the payments made from the settlement moneys is contained in a letter from Mrs Kerry’s legal representatives RL Whyburn & Associates dated 2 July 2003 to her (T12):

$320,000        (minus)

$98,631.29     (to Workers Compensation)

$14,698.89     (to Health Insurance Commission)

$41,198.36     (to CBHS)

$54,000.00     (to costs and disbursements)

$111,475.55    (to you)

As discussed with Simon (Mr Kerry), 10% of the settlement money, being $32,000, was paid to the Health Insurance Commission.  You can expect a refund directly from the Health Insurance Commission of approximately $17,301.20.  This leaves a balance to you of $94,170.35 and we enclose a trust cheque for that amount”.

10.               The “CBHS” is the private health insurance scheme of which Mr and Mrs Kerry are members. Of the $98,631.29 repaid for workers compensation, $65,462.84 was for weekly compensation payments (T23 p 103). 

11.               After the various payments set out above, Mrs Kerry received a total of $111,475.55 including the refund from the Health Insurance Commission (“HIC”), which Mr Kerry said was received although he could not remember how much it was.   This was the sum disclosed in Mrs Kerry’s application to Centrelink (T17 p 83) as the “lump sum compensation payment” that she had received.  In what I understand was an annexure to that application Mrs Kerry wrote that the figure of $111,475.55 did not cover wages and salaries, pain and suffering, any other form of future income and compensation (T18).  She asserted “The money that we have been paid, is for future Medical Surgical, Pharmaceutical and Modification Expenses, as well as the reimbursement of past costs of the same nature”. 

12.               Mr Kerry emphasised that it was important to Mrs Kerry that the settlement “make provision” for her future medical expenses. He came to an arrangement with CBHS that she would repay what CBHS had paid to her since the accident for medical expenses (which was the figure of $41,198.36 above), provided that that CBHS would pay her future her medical expenses in relation to the injury received in the accident, subject to her paying the necessary premiums (T41 and T42).

13.               Mr Kerry did not recall any discussion at the time of settlement about the consequences the settlement might have on receipt of social security benefits, such as a preclusion period. A document could have been signed, but there was no document in evidence. He recalled a scrap of paper prepared by the solicitor or barrister being signed, which was not in evidence, and also a Notice of Judgment or Settlement to the HIC (T11). 

14.               Mr Kerry’s argument was that very little of the settlement if any can be said to represent loss of earnings. For example he calculated that Mrs Kerry had lost $160,000 gross in income between the date of settlement and the 1999 accident. 

15.               On 9 January 2004, Mr and Mrs Kerry moved to Ben Lomond which is a small settlement approximately half an hour’s drive south-west of Glen Innes.  According to Mr Kerry, they moved there in January 2004, having signed the contract in November 2003.  The purchase price of the property was $78,000.  The property requires repairs.

16.               Mrs Kerry’s application form to Centrelink filled in on 23 December 2003 stated that they were renting their property on the Central Coast.  It was apparently filled in before settlement of the purchase and the move to the property at Ben Lomond.  

17.               Mr Kerry acknowledged that they have moved away from the health services Mrs Kerry requires, including her doctors, from an area where employment opportunities are good and where Mrs Kerry’s family are located, in particular her mother and her sister.  He said that the move was supported by Mrs Kerry’s doctors and was to reduce the stress on Mrs Kerry, and to buy a home which would provide security for her.  He said the settlement may represent the only earnings she has for the rest of her life.  He also said that he believed that rural areas around universities, such as Armidale, would be future growth areas and would provide employment opportunities.  He is prepared to travel to Glen Innes or Armidale (which is further away) to work. Inverell which is larger than Glen Innes is also a possibility, but would involve an hour’s drive. They had looked at places such as Narrabri and Wee Waa where housing was cheaper but the employment prospects were limited.

18.               Mr Kerry and Mrs Kerry are social welfare workers. Mr Kerry described himself as having worked in that area “long term”. It is relevant that Mr Kerry was made redundant in September 2003 when he received $16,000, applied for Newstart allowance in November and after a preclusion period, was paid that allowance from 6 February 2004, about a month after the move to Ben Lomond.  He began working in Armidale at the end of May 2004 (Exhibit R2 which were computer print outs of payments to Mr Kerry handed up during the proceedings). Mrs Kerry’s claim was refused on 30 March 2004 (T27).  Mr Kerry said that he had spoken to a Centrelink officer at Ettalong about moving and had been assured that if they were moving to an area with fewer opportunities would not affect his entitlement to Newstart allowance.  

19.               Mr Kerry again received Newstart allowance from September 2004 until 17 February 2005 when he obtained part-time employment in Glen Innes for 25 hours a week earning $518 before tax.  Given that he has so far been able to obtain two jobs in the area, Mr Kerry was confident he is employable.

Mrs Kerry’s health

20.               Mr Kerry gave Mrs Kerry’s health history since the 1994 accident. She was made redundant in August 1994 and in October suffered severe pain and began suffering from migraine.  She worked part-time for Central Coast Area Health and for a youth organisation.  Her pain increased but medication trials were ineffective.  She was treated by Dr Goveind in 1998 when a procedure was carried out to the third occipital nerve.  Within six months, that is by March 1999, she was able to return to full-time work. 

21.               Since the 1999 accident Mrs Kerry has suffered from chronic pain in her neck and has pain in her back. She has a nerve stimulator implanted in her neck with the unit implanted in her abdomen however it has not been very successful. She has lost ¾ of the range of movement of her cervical spine and takes the strongest analgaesics – morphine – and anti-inflammatories.  She suffers from blurred vision, migraine, nausea and vomiting at times.   I had the benefit of reports from Margaret Kennedy-Gould, an occupational therapist dated 28 November 2002 and from Dr George Jacobs, a consultant psychiatrist, dated 30 January 2005. Dr Jacobs’s report gave a diagnosis of major depression (DSM-IV) for which she is prescribed anti-depressants and referred to her chronic pain.  He  stated that:

“Due to her background issues, secure housing in a supportive environment with few environmental stressors was thought to be an ideal means of recuperation. Thus her move to the country was supported by all her medical practitioners, including me”.

22.               Mr Kerry asserted that Mrs Kerry’s medical condition is worse than that suffered by other recipients of disability support pensions. She will require further surgery and medical assistance, however they are putting that off, for financial reasons. They are “in the red”.  Mrs Kerry has reduced her telephone consultations with Dr Jacobs who is in Bondi Junction, and has put off dental treatment she should have. Physiotherapy and massage could be useful but are not accessible. She relies on others for mobility. He sometimes has to help her out of chairs and bed and to dress. She has to deal with back spasm which may occur so that she has to adapt each day. It is not an easy life for her.

23.               Mr Kerry said that Dr Crawford, an anaesthetist at a pain clinic at Prince of Wales private hospital in Sydney, has recommended a procedure involving the withdrawal of current medication and the injection of a cocktail of substances including botox into the injury site. I have no report from that doctor. The hope would be that it would numb the nerve causing the pain for up to 6 months thereby improve quality life and possibly permit employment.  Mrs Kerry said that she would like to be able to go back to work at some time. The procedure would be repeated at intervals of 6 – 12 months.  An alternative would be a morphine pump to inject small doses directly to the injury site. These procedures involve a gap in fees plus the need to travel to Sydney which would require Mr Kerry to take time off work.  Mr Kerry said that the public health system would only provide strong analgaesics and no access to pain management or procedures such as an implant. 

24.               Exhibit A2 is a report from Mrs Kerry’s dentist Dr Gareis dated 9 February 2005 which states that Mrs Kerry needs restorative work to her teeth.  The

dentist refers to Mrs Kerry’s car accident and requiring chronic pain management and says:

“I feel that sorting out the patient’s teeth would alleviate her daily pain and possibly lessen the extent of her pain medication”.

25.               The dentist does not say that the state of Mrs Kerry’s teeth is a consequence of her medication, although Mr Kerry said it was.  Part of that exhibit, are three separate quotations for dental work for Mrs Kerry dated 29 November 2004 (and valid for three months) apparently from the same dental practice where the dentist works who provided the report.  The report itself does not refer to those quotations.  The total cost of the quoted procedures is approximately $6,000.  On that evidence, I am not persuaded that the treatment referred to by Dr Gareis is a consequence of Mrs Kerry’s medication although I am prepared to accept that the cost of the treatment Dr Gareis mentions may be in the order of $6,000. 

Financial Circumstances

26.               Mr Kerry pointed to the following matters as establishing that Mrs Kerry was suffering financial hardship. Mrs Kerry had to continue the appeal process in this case without legal advice. They have had to buy a new stove and a washing machine, and recently purchased a small freezer to take advantage of bulk purchase opportunities. The three appliances cost $1,800. Since her father’s death in January, Mrs Kerry speaks to her mother regularly on the telephone and the bills have to be paid.  It is very cold at Ben Lomond.  In about July 2004 they purchased a new wood heater because the one they had was not adequate.  They have installed insulation in the roof of the house. The credit card balance is $4,500 and they have $3,000 in their cheque account. 

27.               Taking into account the remaining $3,000 in the account, the $30,000 difference between the property purchase price and the $111,475.55 received, was spent on the above appliances and wood heater, and the following:

$6,000 (a small debt to Mrs Kerry’s parents repaid in August 2003);
$6,000 (car purchase)
$1,000 (gold necklace)
$1,000 (solicitor’s costs of conveyance);
$3,000 (removalists costs)
$400 (repairs to house)
$1,000 (garden)
$1,000 paint
(no figure) (insurance covers). 

28.               Mr Kerry said that their rent and other expenses were $1,000 a week until February 2004 when he received a benefit of approximately $160 per week which went up to $356 per fortnight.  I conclude that the $16,000 redundancy payment he received was spent on living expenses from the time of his redundancy until February 2004.  I  note that once they moved to Ben Lomond, they were not paying rent and therefore their weekly expenses would have been reduced by approximately $215 per week, although other expenses were incurred such as rates and building insurance.  There are also future medical expenses.

29.               Mr Kerry said that Mrs Kerry would like to be with her mother and help care for her sister’s children who are 15, 12 and 6 years old, but cannot afford to go to the Central Coast. Since her father’s death, her mother needs support. Her sister suffered a heart condition around the time of his death. She was hospitalised and then discharged after a pacemaker and defibrillator were inserted. She has daily medical attention at the local hospital and her future is uncertain.  The help that Mrs Kerry was referring to was to prepare dinner while her mother picked up the children.   Mrs Kerry received no benefit under her father’s will, as it is in favour of Mrs Kerry’s mother.  

To what extent if any was the settlement “compensation” under the Act and how should the preclusion period be calculated?

30.               As well as the statement in her original application referred to above, Mrs Kerry’s provided detailed analyses of the settlement and her circumstances in the request for review (T30), the request to the ARO (T T33) and her letter to the SSAT (T36).  I summarise her position as follows. The first argument was that she had not received a “lump sum compensation” payment as it was settled “out of Court”.  She further argued that the settlement was “in part only, … meant to reimburse my losses associated with my salary package 1^st July 1999 to 5^th May 2003”.  She said that she had suffered a loss of salary of $160,000. She did not understand how ‘health/medical/salary costs can … be considered ‘compensation”’.  She requested that those costs and legal costs be removed from the amount she received. She referred to the “deduction categories” in Mr Whyburn’s letter set out above, which included repayment of workers compensation (both salary and medical costs), the HIC repayment and payment to CBHS. She argued that the loss of salary exceeded the amount she had actually received ($111,471.55) and that she had also paid $18,000 for medical/health expenses.  In total she claimed she lost $100,000.  I also had the benefit of a Statement of Facts and Contentions from Mrs Kerry (Exhibit A1).  The Respondent’s Statement of Facts and Contentions was exhibit R1.

31.               There was a further argument put by Mr Kerry which needs to be addressed briefly.  He argued that superannuation entitlements and the home at Ben Lomond should not be taken into account when considering the financial resources available to Mrs Kerry. This was based on an extract from a Centrelink booklet (Exhibit A2).  The material refers to the determination of assets for the purpose of assets tests applicable to determining qualification for benefits. That is not relevant to the determination of compensation and the preclusion period the subject of these proceedings.

32.               First, it is clear on the law that legal and medical costs are “compensation” within the meaning of s 17(2) (see for example Secretary, Department of Social Security v a’Beckett (1990) 26 FCR 349)). General damages also fall within the definition of compensation: Secretary, Department of Social Security  v Banks (1990) 23 FCR 416. Secondly, on the evidence, I am satisfied that the settlement Mrs Kerry received was a payment in settlement of a claim for damages as defined in s 17(2)(c) of the Act. It follows that the legislation then requires the following steps. The “compensation part of a lump sum compensation payment” must be calculated in accordance with s 17(3). I find that Mrs Kerry’s settlement falls within s 17(3)(a). Section 17(4) also applies in respect of the

$65,462.84 of periodic compensation payments.  Therefore the relevant calculation is:

($320,000 - $65,462.84) x 50% = $127,268.58

33. As stated earlier, in both calculations carried out by the original decision maker and the ARO, the workers compensation repayment was properly deducted from the total settlement figure in accordance with s 17(4). It followed that the preclusion period calculated according to the legislation was 206 weeks, which was the period 10 May 2003 to 20 April 2007.

Special circumstances

34. It is clear that the ARO and also the SSAT by affirming that decision, exercised the discretion conferred by s 1184K of the Act. The ARO did so because the amount calculated as required by the legislation ($127,268.58) exceeded the amount Mrs Kerry received ($111,471.55). The ARO then did the necessary calculation based on the latter amount. The resulting preclusion period is 10 May 2003 to 27 October 2006. DFACS’s position in the proceedings was that the ARO had effectively disregarded almost 10% of the compensation but that it “will not now resile from the ARO’s position. The only issue is whether or not more compensation can properly be disregarded”. Given this was the basis upon which the case was argued, I have considered the case accordingly.

35.               The scope of the discretion pursuant to s 1184K was considered in Beadle v Director General of  Social Security (1984) 6 ALD 1 at 3:

“The expression “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 but they must have a particular quality of unusualness that permits them to be described as special.”

36.               In Groth y Secretary, Department of Social Security  (1995) 40 ALD 541 at 5, Kiefel J commented on the phrase “special circumstances”, saying

“… it would require something to distinguish (an applicant’s) case from others, to take it out of the usual or ordinary case …  It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary”. 

37.               In my opinion, the ARO exercised the discretion very favourably to Mr and Mrs Kerry.  On the evidence, there are no “special circumstances” that would cause me to disregard more of the compensation payment and hence reduce the preclusion period further.  There are no such special circumstances arising from the settlement, the payments made out of that settlement, Mrs Kerry’s health or her financial circumstances,.  

38.               The settlement was made in the circumstances of Mrs Kerry not feeling able to withstand a possible lengthy cross-examination about the relative contribution to her neck injury from two accidents.  There was also obviously a risk in her barrister’s opinion that if the case had run, she may have been unsuccessful or received a lower amount than the settlement. Settlements usually represent a compromise by both parties. That Mr and Mrs Kerry are unhappy now with their legal representatives and the settlement, is not in my opinion a special circumstance.   The repayment to CBHS was important to Mr and Mrs Kerry, however, it was their choice to utilise the funds in that way. If they had not made that agreement, Mrs Kerry would have received an additional $41,198.36, that is a total of $152,669.91. 

39.               Their move to Ben Lomond was made for reasons which they obviously felt were important, however, as Mr Kerry stated, the purchase price was the equivalent to seven years of rent. The move also had the consequences outlined earlier including removal from proximity to medical attention, family and good employment prospects.  They own their home and a car.  Mr Kerry is presently working part-time and has had another job in the area. He seems confident of his employment prospects in the area where they now reside, although they are not as extensive as those on the Central Coast. He also has superannuation savings which he will be able to access in the future. The financial circumstances Mrs Kerry faces are a consequence of decisions she and her husband have made.  There was no evidence that they had acted on incorrect advice from DFACS.  In fact, they had sought no advice from DFACS about the settlement, although Mr Kerry did seek advice about the impact of moving on a Newstart allowance for him.

40.               Mrs Kerry’s health is not good, however, the move according to Dr Jacobs was for the purpose of “recuperation” which suggests it may improve in the new environment. There are also possible future treatments which may assist Mrs Kerry.  She is a member of a couple and is receiving tremendous support from Mr Kerry.  I find that she is not more disabled than other recipients of the disability support pension. Her disability assessment satisfied the minimum number of points necessary to qualify (T20 p 96).  Mr Kerry referred to the case of Henderson v Secretary, Department of Family and Community Services [2004] AATA 541 as being analogous to Mrs Kerry’s situation. I disagree. Mr Henderson suffered from cognitive impairments which had consequences such as erratic spending and improvident consumption of luxuries and poor member. Mrs Kerry’s circumstances are not analogous. Each case has to be considered on its own facts. Mrs Kerry’s health does not constitute a special circumstance.

Decision

41. I find there is no special circumstance that requires me to exercise the discretion conferred by s 1184K. I affirm the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady

Associate

Date/s of Hearing  12 April 2005
Date of Decision  19 April 2005
Solicitor for the Respondent     Secretary, Department of Family and 
  Community Services