King and Secretary, Department of Employment and Workplace Relations

[2006] AATA 266

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 266

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2005/1191

GENERAL ADMINISTRATIVE DIVISION )

Re WARREN KING

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date27 February 2006

PlaceWallsend

ADMINISTRATIVE APPEALS TRIBUNAL         )       No.      N2005/1191
  )
GENERAL ADMINISTRATIVE DIVISION            )

Re          WARREN KING

Applicant

And       SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal        :      Senior Member M D Allen

Date               :      27 February 2006

Place             :       Sydney

DecisionFor the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd) M.D. ALLEN
  .............................
   Senior Member

CATCHWORDS

SOCIAL SECURITY - Applicant received settlement monies from workers’ compensation claim – weekly compensation payments were deducted from the Applicant’s parenting payment - whether Applicant was entitled to relief due to “special circumstances” – decision under review affirmed.

Social Security Act 1991 – ss17(3) and 1184K.

Department of Social Security v Ellis (1997) 24 AAR 535

Beadle v Director-General, Social Security (1985) 7 ALD 670.

Groth v Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:          (E.Pope)
          ..................................................................................…………

Associate

Date of Hearing  27 February 2006

Date of Decision  27 February 2006

Solicitor for Applicant  Applicant self-represented

Advocate for Respondent              Ms Hannelore Schuster, Centrelink Legal Services Branch

DRAFT DECISION  
ADMINISTRATION APPEALS TRIBUNAL
Matter No N2005/1191
By MR M.D. ALLEN, SENIOR MEMBER
KING and DEPARTMENT OF EMPLOYMENT
AND WORKPLACE RELATIONS
WALLSEND, MONDAY, 27 FEBRUARY 2006

MR ALLEN:   In this matter, by application made the 16th day of September 2005, the applicant seeks review of a decision by the Social Security Appeals Tribunal made the 15th day of August 2005, which decision affirmed a prior determination that the weekly compensation payments made to the applicant be deducted directly from the parenting payment single made to him.  There is no dispute that the applicant, by order of the Compensation Court of New South Wales dated 3 March 2003 was awarded weekly compensation at the rate of $222 per week commencing from 4 August 2000 for partial incapacity for work resulting from injuries deemed to have happened on 14 July 2000.

The applicant had also previously received a prior payment of compensation from the same employer, namely Boral Limited and it would appear that the applicant, as a result of his compensation claims, had his employment with Boral terminated on 4 August 2000. The significance of the date of termination is this: that the injuries which gave rise to the payment of weekly compensation were deemed to have occurred on 14 July 2000. I say deemed to have occurred because it would seem that they really arose as a result of the nature and conditions of work rather than any specific frank injury. Clearly then, the applicant brings himself within the terms of subsection 1 of section 1173 of the Social Security Act 1991, which reads, inter alia:

“If:

(a)       a person receives periodic compensation payments; and

(b)the person was not, at the time of the event that gave rise to   the entitlement of the person to the compensation qualified for,             and receiving a compensation affected payment; and

(c)the person receives or claims a compensation affected   payment in relation to a day or days in the periodic payments               period;

the rate of the person's compensation affected payment in relation to that day or those days is reduced in accordance with subsection (2).”

Subsection 2 then provides that the person's daily rate of compensation affected payment, in this case parenting payments single, is reduced by the amount of the person's daily rate of periodic compensation, namely the $222 per week. The applicant, as I understand it, does not challenge the calculations or indeed, the application of the specific legislation, but seeks relief pursuant to section 1184K of the Social Security Act. Subsection 1 of section 1184K reads:

“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.”

In this matter the applicant has pointed to the following as being special circumstances:  first of all the very incapacities that gave rise to his workers’ compensation payment.  That is to say, he is now unable to find employment and consequently he is dependent for income upon parenting payments single plus the weekly sums of compensation which it might be said were based upon a partial incapacity for work, hence the applicant is not receiving an entitlement to the same extent as if he had been declared totally and permanently incapacitated.  But the net result still is that he is unable to attract an employer who is willing and able to employ him. 

As a result of that, plus the fact that he has custody of his daughter in a shared residency and she is in his care and control every second week plus every second weekend for some three days, he has the care and control of his stepson.  The net result is that he is suffering financial hardship.  He receives, it might be said, no benefits for his stepson.  Because of impecuniosity, he and of course his children when they visit, are living in a dwelling house which is incomplete and has not been approved for residence.  All of these circumstances Mr King says, amount to special circumstances.  The term special circumstances has been discussed in many decisions of the Federal Court.  In Department of Social Security v Ellis (1997) 24 AAR 535 at 539, Carr J said:

“In Beadle v Director General of Social Security (1985) 7 ALD 670.a full court of this court had to consider whether the Administrative Appeals Tribunal had erred in its interpretation of s 102(1)(a) of the Act which provided for an extension of time in which to claim a family allowance in special circumstances.”  At 673-674 the full court said:

Presumably, in this context, special circumstances must include events which would render the 6 months unfair or inappropriate.  It would depend upon the circumstances of the particular case whether these constituted special circumstances.  We do not think it is possible to lay down precise limits or precise rules.  The matter is one for the Director-General bearing in mind the purpose for which the power is given.  The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.

In Groth v Secretary Department of Social Security (1995) 40 ALD 541 at 545, Kiefel J, after referring to Beadle, said:

…for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case.  That was, I consider, the only inquiry to be undertaken in this 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.  The inquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied.

Later (on the same page) Kiefel J expressly approved the tribunal's reasoning in holding that Mr Groth's circumstances were not out of the ordinary when Pt 3.14 of the Act( in which ss 1168 and 1184 are to be found) had the same effect on him as it did on other persons qualified to receive a disability support pension.  Her Honour added:

It [the tribunal] went on to find that his circumstances and those of his family, although difficult, did not constitute hardship and they could not be said to be different from other pension recipients.”

In this matter I have carefully considered what Mr King has put to me.  I fully appreciate that he is in financial hardship and that, as a result, it is not only Mr King who is suffering, but also his children.  However, it seems to me that financial hardship alone cannot amount to special circumstances and although Mr King's situation is that of impecuniosity, a great number of other persons receiving social security payments are also in impecunious circumstances and it cannot be said that his circumstances amount to special circumstances. 

The decision under review is therefore affirmed.