KSFJ and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1650

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1650

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2007/12

GENERAL ADMINISTRATIVE DIVISION		)
Re		KSFJ

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date8 August 2007

PlaceBrisbane

Decision The decision under review is set aside and in substitution therefore decides that the preclusion period commenced on 5 June 2003 and ended on 7 June 2007.  The matter is remitted to the respondent to determine eligibility for Newstart Allowance as from 7 June 2007.

...................[Sgd].........................

Member

CATCHWORDS

SOCIAL SECURITY – Compensation lump sum settlement – preclusion period – special circumstances – medical condition and capacity to make rational decisions – suicidal ideation – whether appropriate to treat part of compensation payment as not having been made

Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 s 1184K

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
Dranichnikov v Centrelink [2003] FCAFC 133
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Secretary, Department of Social Security and Norman (AAT 13005, 22 June 1998)
Re Martin and Secretary to the Department of Social Security (AAT 6482, 14 November 1990)
Department of Social Security v Thompson (1994) 53 FCR 580
Reuben and Secretary, Department of Social Security (AAT 11879, 20 May 1997)

Re Dean and Department of Education, Science and Training [2005] AATA 586
Woodward and Department of Family and Community Services [2001] AATA 818

Secretary, Department of Family and Community Services and Temesgen [2002] AATA 1290

Hill and Secretary, Department of Family and Community Services [1999] AATA 909

Secretary, Department of Social Security and Winters (AAT 12518, 23 December 1997)

Polivitte Ltd v Commercial Union Assurance Co Pty Ltd [1987] 1 Lloyd’s Rep. 379 at 386

Re Secretary, Department of Social Security and Anderson (1997) 49 ALD 189

Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152

REASONS FOR DECISION

8 August 2007  Dr EK Christie, Member

Introduction

1.       This is an application for a review of the decision made by the Social Security Appeals Tribunal (the “SSAT”) made on 12 December 2006 that decided to reject a claim for newstart allowance due to a lump sum preclusion period from 5 June 2003 to 27 October 2010.

2.      In its decision, the SSAT concluded (at T2):

“13.     While it is acknowledged that [the applicant] may have had a high degree of stressful incidents arising out of his family relationships there is no medical evidence to suggest that [the applicant’s] reckless expenditure of his lump sum compensation was brought about by some mental condition.  It also appears that [the applicant] took no adequate steps to ensure that he maintained a level of income to provide for himself for the preclusion period.  Nor did he take any steps, while he some of his compensation money, to retrain so he could seek employment in the future.”

And:

“20….As stated in the discussion of the evidence above, there is nothing that suggests that [the applicant] suffered from a mental illness that impaired his judgment when it came to conserving and spending his money during the time that he spent his compensation money.  While [the applicant] may have had emotional turmoil and stress from his relationship and other family matters, there is nothing that establishes that he suffered from a mental illness that affected his capacity to handle his money and property.”

3. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) [Exhibit 1] and the various exhibits lodged by the parties.

4.      The applicant was represented at the hearing by Mr P Cousins of Legal Aid Office, Queensland. The respondent was represented by Mr R Hamilton, a Departmental Advocate. The applicant and his carer gave evidence at the first day of the hearing. Dr Wren and Dr Blonk, treating GPs of the applicant, also gave evidence on behalf of the applicant. The respondent elected to call no witnesses. 

Issues before the Tribunal

5.      There was only one issue to decide: whether the length of the preclusion period could be reduced in part or in full, because of “special circumstances”.

6.      During the hearing, the evidence before the Tribunal revealed that the applicant had been treated for a psychiatric condition prior to the time the time that he received the lump sum compensation payment.  At the end the hearing, the parties consented to further medical evidence to be obtained from Dr C Cantor, consultant psychiatrist, for the period April 2004 [when the lump sum compensation payment was received] and the time the lump sum compensation payment had been disbursed].

7.      Dr Chris Cantor filed his report with the Tribunal on 4 July 2007.  The parties were invited to make supplementary submissions in relation to Dr Cantor’s report. Dr Cantor gave oral evidence at the resumed hearing.

General Facts

8.      On the basis of the evidence before it, the SSAT made the following findings of fact [T2, folio 7]:

(a)[The applicant] was involved in a work related accident on 12 April 2001.

(b)On 16 March 2004 [the applicant] settled a claim for compensation for $521,049.39.

(c)[The applicant] received approximately $376,000.00 from the compensation settlement.

Statutory Requirements And Case Law

The Tribunal’s Decision Making Powers

9.      There is only one decision possible in this application for review: whether the “special circumstances” provisions of the Social Security Act 1991 (the Act) apply which would justify a reduction in length of the preclusion period. Accordingly, the question for the determination is whether the decision under review is the correct one (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68).

10.     In this application for review, I consider all the evidence and information before the Tribunal as at the date of the hearing, and supplementary submissions following the hearing in relation to the expert medical opinion provided by Dr Cantor in response to the Tribunal’s direction.

The Statutory Scheme for the Preclusion Period under the Social Security Act

11. Section 1184K of the Act provides the Department with discretion to decrease the length of the preclusion period:

“Section 1184K – Secretary May Disregard Some Payments

1184K(1)        [Special circumstances] 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.”

12.     The Tribunal had given due regard to the following legal principle as to the breadth of the discretion in relation to “special circumstances”. The Full Federal Court, in Riddell v Secretary, Department of Social Security(1993) 42 FCR 443 at 450, commented:

“Each particular case must be considered on its merits.  It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.”

13.     The Tribunal has had to consider the common law meaning and application of the expression “special circumstances” on many occasions. 

14.     Analysis of case law provides the following legal principles that can be applied to (a) the exercise of discretion and (b) the meaning of the term “special circumstances” in the Social Security Act 1991:

(a)      The Exercise of Discretion

·     A broad discretion to meet the great variety of circumstances which must occur, raising considerations including individual hardship, need, fairness and reasonableness – keeping in mind the scope and purposes of the Act.

(The Full Federal Court, in Riddell v Secretary, Department of Social Security      (1993) 42 FCR 443 at 450).

·     The decision-maker must consider how the error occurred; the circumstances which gave rise to the overpayment.

(The Full Federal Court in Dranichnikov v Centrelink (2003) FCAFC 133).

(b)     The meaning of “Special Circumstances”

§A term incapable of precise definition.  Circumstances that are unusual, uncommon or exceptional.

[Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3.

§“Something unusual or different to take the matter the subject of the discretion out of the ordinary… [But] that does not require the case be extremely unusual, uncommon or exceptional.”

[Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277 at 281-282]

§Something 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.”

[Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545]

15. Analysis of cases decided by the Tribunal, with respect to the Social Security Act where "special circumstances" have been considered as the basis for varying the length of the preclusion period and which are relevant to the facts of this application for review, are:

(a)Financial issues;

(b)Legal advice; and

(c)The implication of health status on the applicant’s capacity to make rational decisions in managing his day to day personal and financial affairs

(c)      Financial Issues and Special Circumstances

16.     Analysis of cases decided by the Tribunal, in relation to “special circumstances” and financial issues, indicates that relevant matters to consider are:

·      Whether the funds received may have been applied in a way which was unwise given that the money was there to provide a person with income, not capital for investment.

Secretary, Department of Social Security and Norman (AAT 13005, 22 June 1998)

·      In considering the question of financial hardship and special circumstances it is relevant to consider the reasonableness of the applicant's action in disposing of his compensation monies.  That is, whether the applicant's action in disposing of the compensation monies needs to be considered were sufficiently extravagant or unwise as to be unreasonable.

Re Martin and Secretary to the Department of Social Security (AAT 6482, 14             November 1990)

(d)      Legal Advice and Costs and Special Circumstances

17.     The applicant has raised the issue that he had not been informed about the consequences of the preclusion period and his eligibility to receive social security payments during the preclusion period.

18.     The Tribunal is mindful that other decisions in the past have determined that failure by a legal adviser to properly advise does not establish "special circumstances". It has been considered that decisions associated with incorrect legal advice do not constitute "special circumstances" because the person had a claim in negligence against a solicitor i.e. the best view was that this matter is one, if at all, as between solicitor and client.

Re Martin and Secretary to the Department of Social Security (AAT 6482, 14                    November 1990)

(e)      Health Issues and Special Circumstances

19.     In Secretary,Department of Social Security v Thompson (1994) 53 FCR 580 Einfeld J stated at 586:

“The width of the discretion under the [special circumstances] section clearly extends to all the circumstances of the case, including circumstances not specifically related to a particular portion of the compensation payment.  It is not therefore outside the section for the tribunal to consider the general factors such as the mental health and social conditioning of the individual in concluding that the preclusion period should be shortened” [Emphasis added].

20.     In Reuben and Secretary, Department of Social Security (AAT 11879, 20 May 1997) the Tribunal concluded that the burden of family health needs that contributed to ongoing financial problems and “perhaps even more importantly, to a diminution in the emotional and psychological well being of the family” should be considered as “special circumstances”.

21.     In the context of Riddell’s case, the Tribunal in Re Dean and Department of Education, Science and Training [2005] AATA 586 reviewed the following cases as to the circumstances which came within the meaning of “special circumstances” because of the impacts of the medical condition on the social security recipient. The Tribunal in Dean’s case concluded that the application of “special circumstances” involved a consideration of the impacts of the medical condition on the Social Security recipient’s capacity to make rational decisions in managing their day to day affairs:

v   Woodward and Department of Family and Community Services [2001] AATA 818

The applicant suffered from emotional and psychological trauma was distraught, disorganised and severely depressed and distressed at the time of overpayments of social security benefits and impaired to the extent she was unable to manage her affairs. 

v    Secretary, Department of Family and Community Services and Temesgen [2002] AATA 1290

The ‘respondent’s prevailing state of mental and emotional distress at the time the debt was incurred’ [reduced the respondent’s ability to understand his obligations and responsibilities under the Act];

v    Hill and Secretary, Department of Family and Community Services [1999] AATA 909

The applicant was being treated for ‘severe depression’ and the Tribunal accepted the medical opinion evidence that the applicant was “capable of rational decision making although his cognitive functioning is impaired by his medication and his depression and that [the applicant] has trouble thinking rationally’ and ‘exhibits confusion and difficulty with decision-making’.  The Tribunal accepted that the applicant was ‘not capable of great feats of rational thought and has impaired cognitive functions’; and

v          Secretary, Department of Social Security and Winters (AAT 12518, 23 December 1997)

The Tribunal concluded that, at the time overpayments of social security were made, the impacts of the applicant‘s psychiatric state (depression, schizophrenia) on her actions to act impulsively, panic and depression were ‘special’.

22.     I have applied the above legal principles in its interpretation and consideration of the “special circumstances” provision to the applicant’s factual situation.

Examination of the Evidence: Health Issues

Expert Medical Opinion

23.     The expert medical opinion contained in the report of Dr Cantor filed on 4 July 2007 is relevant to the question of whether the special circumstances provision is applicable in the applicant’s circumstances – including the question of the mental health and social conditioning of the applicant.

24.     Dr Cantor had extensive background in the professional practice of psychiatry and suicide research and prevention.  In 1988 Dr Cantor set up Queensland Health’s certified research and prevention program and was head of that program throughout its existence, until it was upgraded around 1995 to become the Australian Institute for Suicide Research and Prevention.  This is the leading suicide research organisation in the country and one of the few specific suicide research institutes in the world.  He was briefly acting director of that unit for five years and worked for it; it was set up largely based around his research.  Dr Cantor’s publications in the area of suicide number over 50 publications.  Since moving to Noosa and professional private practice in 2000, his research direction has extended to post-traumatic stress disorder.

25.     Dr Cantor provided the following insight into suicide research:

·People e.g. GPs, not familiar with suicide risk tend to have a naïve faith in being able to predict suicide;  that is suicide is clinically a rare outcome;

·The actual reality of predicting suicide as a concept should be abandoned;

·Suicide prediction is no longer considered a useful concept, rather the approach should now be to assess suicide risk;

·All that can be done is to assess the risk of suicide and to respond sensibly to what is seen at the time;

·Once a high risk of suicide is assessed in a person, there is a need to be constantly vigilant so that the appropriate clinical decisions can be made, as appropriate – especially, if a person is “talking suicide” [as was the case of the applicant at the time of his interview with Dr Cantor].

26.     Dr Cantor interviewed the applicant for the purposes of his report on 26 and 28 June 2007.  In the closing stages of the second interview he also brought the applicant’s carer into the room and sought her observations with his concerns.

27.     Dr Cantor provided the following conclusions in his report:

“Question 1.  Were there in your opinion any crises events or other triggers capable of resulting in any, or any recurrence of, or continuation of any psychiatric conditions or disorders in [the applicant] between April 2004 and January 2006?

There were a number of crises and other triggers capable of exacerbating his psychiatric conditions as outlined above in the chronological sequence of events.  The stressors between April 2004 and January 2006 that are likely to have substantially fuelled his condition include in May 2004 learning of his stepdaughter’s molestation; in June 2004 being considerably “ripped off” by a real estate agent and having to go to court to get his $10,500 deposit back; in July 2005 a close friend who he described as like a bother died in a motor vehicle accident; in January 2006 he discovered that his teenage stepson had molested his 9 year-old cousin and [the applicant] became afraid for the safety of his own children; and in January 2006 his partner separated from him depriving him of ready access to his children.  All of these issues and a number of others described above both before and outside your stated period are likely to have contributed to his psychological conditions.

Question 2.     If in your opinion there were any such triggers, then in your opinion was there a reasonable likelihood of such a result in [the applicant’s] case?

The magnitude of the stressors between April 2004 and January 2006 were such that given his psychiatric conditions, his social decline, his relationship break-up, and demonstrably poor coping ability (illustrated by his financial management) it was highly likely to result in such a deterioration.  It should be noted that he has suffered both PTSD and major depression.  Major depression frequently complicates PTSD as it is often a loss by-product of the trauma giving rise to PTSD.  In [the applicant’s] case he lost his arm and ability for physical work.  The co-occurrence of depression and PTSD erode individual’s abilities to cope and will reliably amplify the distress associated with further life insults.

Question 3.     Are you able to form an opinion as to whether or not there was in fact such a result?  If so what was the resulting disorder or condition?

Based on the information available to me I suggest that the events described above have primarily aggravated the depressive component of his overall psychiatric condition.  His PTSD appears to have continued at an approximately similar level as when I first saw him but he is now far more depressed than he was in 2002.  He is also now at high to extreme risk of suicide.  Although unusual for a medico legal context I canvassed the option of hospitalisation to address this.  The applicant convinced me that [t]his would not help his situation (Emphasis added).

Question 4.     If there were such a result, what effect would the disorder or condition have had upon [the applicant’s] (a) dependency upon his partner in not only domestic but also business or financial matters, (b) capacity to understand financial matters, (c) capacity to manage money and financial matters and (d) ability to deal with life’s challenges in general?

(a)The physical aspects of his amputation led to his early physical dependency on his former partner.  His PTSD and his losses producing depression have contributed to significant psychological dependency of his former partner.  Over time his own and his partners seemingly poor coping abilities and numerous other misfortunes beyond his control, e.g. the death of parents and friend, combined with stressors over which he had at least partial control resulted in the deterioration in his overall psychological condition.  This deterioration led to his extremely unwise approach to financial management. 

(b)His capacity to understand financial matters is relatively intact.  His capacity to manage money has been demonstrably poor and this appears to have been fuelled by his psychological state and his social condition.  Generally speaking depression and PTSD do not produce this result but occasionally they do, particularly in socially disadvantaged individuals such as himself and his ex-partner.  It should be noted that he should be assumed to continue to have a limited capacity to manage money and would be greatly at risk at making the same errors if he were again in receipt of large single payments (Emphasis added).

(c)[The applicant’s] ability to deal with life challenges in general has profoundly declined over time as a result of his PTSD, depression, and the numerous misfortunes described above.

5.Have you any other comments which you believe may be relevant?

Following my first interview [the applicant] became highly distressed that evening and you phoned me the following day as his carer had expressed her concern to you.  It is not uncommon that following medico legal psychiatric examinations interviewees may become distressed.  However, on talking this over with [the applicant] and his carer, his distress was associated with the interview and the requirement for him to come back for a second interview to complete the assessment.  To him this was perceived as part of his seeming never-ending dealings with the system which he believes to have been unsympathetic to him.  I would caution that it is important to be mindful of his perspective and the high ongoing suicide risk that is evident”. (Emphasis added).

28.     The treating GPs of the applicant expressed the following opinion on his suicidal ideation:

(a)  Dr M Blonk saw the applicant four times during March – May 2007 (Exhibit 4).  Dr Blonk’s opinion was that the applicant was not suicidal on any of the four occasions he saw him.  He stated that he was “pretty sure” there was no risk of suicide, that he did not think the risk was very high as he would have referred him to a psychiatric clinic if this was the case.  His clinical notes recorded that the applicant was “depressed, not suicidal”.

(b)  Dr Wren prepared a report on 22 February 2007 (Exhibit 2).  He had treated the applicant in 2001 and 2002 and then after 2006.  In terms of the applicant’s suicidal ideation stated:

“I mean, severe in my opinion would be someone who is obviously suicidal and I don’t think [the applicant] was obviously suicidal.”

29.     Dr Cantor gave the following  response to questions asked by me:

(a)  Dr Cantor was asked as to whether there had been any change in the psychiatric condition of the applicant from the time he saw him when prepared his first report on 30 May 2002 and the report be prepared for this hearing when he next saw the applicant in June 2007:

“When I saw him in 2002, he impressed me as a relatively ordinary individual who had suffered a truly horrific work accident – relatively ordinary in that I did not see him as being necessarily irresponsible in his approach to financial and other self-management.  He also did not strike me, in the 2002 examination, as so obviously psychosocially deprived or handicapped as he did in the more recent examination.  So yes, I was quite surprised, in the recent examination, at the psychosocial decline that I saw.”

He said that the history he had taken in June 2007 from the applicant provided an explanation for this change.

(b)  In terms of claims that the applicant behaved irresponsibly and not caring about the consequences of spending his lump sum compensation, Dr Cantor stated:

“Post-traumatic stress disorder is a difficult condition to live with, and individuals are frequently, or usually, trying to escape from the distress associated with PTSD.  And if an individual has what could rudely be described as a windfall and is given a large amount of compensation money – an amount that most ordinary individuals will never receive in a lump sum during the course of their lifetime – there is considerable potential for their escaping the distress of post-traumatic stress disorder by going on spending sprees.  So I would think that that would be part of it.”

(c)  Finally, Dr Cantor was asked to provide a professional opinion as to the applicant’s current circumstances:  that he is now destitute and is not entitled to social security payments until October 2010.

·In terms of the applicant’s emotional and psychiatric well being, Dr Cantor stated that “It is likely to have a negative impact and to destabilise him”;  and

·In terms of suicidal ideation and risk, Dr Cantor stated that this “would increase the risk”.

Evidence of the Applicant

30.     The observations made by me at the hearing when the applicant gave his oral evidence at the hearing are consistent with the following conclusion made by Dr Cantor during both consultations in June 2007 (Exhibit 11):

·[The applicant] presented in a dishevelled state.  At the second interview he was distraught from the start to finish of it, was highly flushed in the face and shed copious tears in a way that could not possibly be fabricated.  He appeared extremely depressed.  His clinical history as noted above was likely to be approximate as his answers were vague and coloured by his distraught state.  There were no psychotic features such as delusions or hallucinations.”

·“I reviewed his depressive and PTSD symptom profile.  Responses obtained are likely to be only approximate as he had a tendency to be vague, there was blurring of boundaries of concepts in his answers and he displayed a tendency to state his case in extreme terms.  My interpretation of this was that he was demonstrating his distress as opposed to trying to manipulate the interview.”

·“He has been prescribed Zoloft 100mg daily from his GPs Dr Wren and Blonk.  He has also been prescribed Murelax which of late he has been taking only weekly for anxiety.”

31.     These conclusions by Dr Cantor are consistent with my observations as to how the applicant responded to questions at the hearing.  Mr Hamilton has pointed to a number of inconsistencies in the oral evidence given by the applicant when questioned during cross-examination.  The significance of the conclusions by Dr Cantor are relevant in addressing the respondent’s submissions on inconsistencies in evidence.  They lead me to conclude that the evidence given by the applicant cannot be found to be deliberately inconsistent, or even dishonest, as to result in his evidence having little weight.  The effect of his psychiatric condition, possibly exacerbated by his medication, have produced a situation in which is depression and PTSD led to the applicant providing responses coloured by his distraught state.  He was not “trying to manipulate” the situation.  His psychiatric state has placed him in a difficult state which should not be interpreted as making him an unreliable witness.

32.     This conclusion is supported by the opinion of Dr Cantor on PTSD and the applicant’s spending behaviour (paragraph 29b).

33.     Given the above finding, there is evidence and information before me that is relevant in understanding the psychiatric conditions suffered over time.  I am satisfied, on the balance of probabilities, that the following stressors were encountered in the applicant’s life in the time following the loss of his arm in a workplace accident:

·     The abduction of his eight week old son in May 2002 (reported in the Brisbane Courier-Mail, 7, 8 May 2002).

·     The death of his mother in 2003 following along history of cancer.  His father died in January 2007.  The applicant had a close relationship with his mother and was the person with whom he had complete trust.

·     Illness (blood disorder) in his eldest son (August 2003); his twin sons (infants) airlifted from Sawtell to Sydney suffering from seizures and hospitalized for one month (February 2004).

·     Ongoing and significant emotional stress associated with the breakdown of his relationship in January 2006 resulting in him being separated from his children. His children now live interstate with their mother.  Whether or not the concerns expressed by the applicant for the children’s personal safety and well being are real or illusionary – the negative impact on his ongoing mental state has persisted over time;

·     That Interim Apprehended Violence Orders (AVO) were sought by the ex-partner of the applicant against him for the three months, May-July 2000.  From this it could be inferred that the AVO would have implications for the applicant in any custody dispute over their children and the potential for negative impacts on his ongoing mental state.

·     The applicant is now destitute.  There is some uncertainty in the evidence as to the date this commenced.  At the time the application was made for Newstart allowance in March 2006 (the applicant’s case) – or the end of January 2007 (the respondent’s case).

·     Legal costs incurred in obtaining a lump sum compensation settlement are a source of concern.  The applicant, realistically has no possibility of commencing a legal action in regard to these legal costs or advice because of litigation costs.

·     The death of a close friend in a motor vehicle accident in July 2005.

Carer’s Evidence

34.     The carer of the applicant gave evidence in private because of the sensitivity of her observations and the ongoing psychiatric state of the applicant.

35.     During closing addresses, Mr Hamilton for the respondent acknowledged that the carer’s evidence on the suicidal ideation of the applicant was not in dispute.

36.     The carer painted a picture of the applicant of self harm and suicidal ideation.  The applicant had made a number of attempts over time, the first following his unsuccessful application to the SSAT.  She also described other incidents, after this case, in relation to a suicidal ideation as the issue has persisted.  The problems with suicidal ideation and self harm were not intermittent events but occurred relatively frequently.

Consideration of the Issues

37.     The question for me to consider is the factual evidence relating to whether the length of the preclusion period could be varied under the “special circumstances provisions” of the Act.  On reviewing all of the evidence and information before me, I conclude that in the applicant’s fact situation the correct approach to adopt is to consider the applicant’s circumstances as a whole. That is, by considering not only his financial situation, but also his health care needs and social conditions.  Such an approach was adopted by this Tribunal in Reuben and Secretary, Department of Social Security (AAT 11879, 20 May 1997). 

38.     I make the following conclusions:

(a)  I accept the expert evidence of Dr Cantor as objective, unbiased opinion regarding matters within his expertise to provide the Tribunal with independent assistance in deciding the issues in dispute:  Polivitte Ltd v Commercial Union Assurance Co Pty Ltd [1987] 1 Lloyd’s Rep. 379 at 386. In contrast, I attach little weight to the evidence of treating GPs Drs Blonk and Wren as their knowledge on the psychiatric issues is not consistent with the accepted contemporary knowledge on assessment of suicidal risk. In contrast, Dr Cantor has significant demonstrated research knowledge and expertise in the assessment of suicide risk.

(b)  Stressors of various forms have persisted over time to trigger off continuing psychiatric conditions in the applicant of PTSD and depression from April 2004 onwards (paragraphs  27, 33).

(c)  The reality is that both these psychiatric conditions have not improved over time but declined.

(d)  The applicant has not recklessly spent his lump sum compensation.  Rather, as Dr Cantor acknowledges the applicant has a capacity to understand financial matters but “his capacity to manage money has been demonstrably poor and this appears to have been fuelled by his psychological state and his social condition” (paragraph 27 Question 4(b)).  As Dr Cantor concludes in his opinion:  “Over time his own and his partners seemingly poor coping abilities and numerous other misfortunes beyond his control, e.g. the death of parents and friend, combined with stressors over which he had at least partial control resulted in the deterioration in his overall psychological condition.  This deterioration led to his extremely unwise approach to financial management.”  Dean’s case applies in these factual circumstances.

(e)  The practical reality is that the evidence of Dr Cantor together with the lay evidence support a factual situation for the applicant that there is a real issue of recurrent risk of suicide as indicated by a history of suicidal ideation and self harm.  Dr Cantor has gone so far as to conclude that the applicant has a very high risk of suicide and so there is a need, in such a case, to be constantly vigilant in order to make appropriate clinical decisions to manage this risk.  In Re Secretary, Department of Social Security and Anderson (1997) 49 ALD 189, a preclusion period case, the Tribunal concluded that the real risk of self harm and suicide to which the social security recipient was exposed justified the exercise of discretion for “special circumstances”.

(f)   The above factors negatively impact on the applicant’s emotional and psychiatric well-being.  The trend in his psychiatric condition is one which has declined over time. Together with his poor financial management skills – a feature of his psychiatric condition, the applicant is now in a situation in which he is destitute and the evidence before me is one in which the future to him seems futile and with little hope.  Dr Cantor’s professional opinion is that the applicant is now at a high to extreme risk of suicide and that his suicidal ideation is ongoing.

(g)  I place little weight on the submissions of the respondent that an inference could be drawn from a clinical note made by the GP (Dr Keith) of the ex-partner of the applicant that suggested a supportive relationship.  With no further information on the extent of consultation contact, the length of time the observation was made by a GP and the criteria upon which it was based, I am satisfied that this reference is speculation as there are no other objective facts to support the reference.  Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 at 169.

39.     Accordingly, I find that a consideration of all of the above conclusions, in their totality, represent a factual situation in which “special circumstances” are justified to warrant a reduction in the length of the preclusion period.  That is, the facts represent circumstances that are “unusual”, some even “uncommon” to take the matter out of the ordinary (Beadle, Groth, Boscolo cases apply).  Moreover, “general factors such as the mental health and social conditioning” (Thompson’s case) of the applicant further support the conclusion that there are special circumstances that justify discretion to be applied to shorten the length of the preclusion period.

40.     Given this finding that discretion should be exercised in the applicant’s case, the next question is how such discretion should be exercised.  I conclude that the discretion should be exercised from the time that the totality of the applicant’s factual situation was considered in the administrative decision-making process in terms of established legal principles to consider ”special circumstances” and the preclusion period with respect to health issues i.e. behavioural and psychological functioning in relation to diagnosed medical conditions.

41.     In the applicant’s case, this situation occurred, for the first time, at the hearing before me on 7 June 2007.

Decision

42.     For all of the above reasons, the decision under review is set aside and in substitution thereto a decision is made that the length of the preclusion period be reduced because of “special circumstances”.  The length of the preclusion period commenced on 5 June 2003 and ended on 7 June 2007.  The matter is now remitted to the respondent to determine eligibility for Newstart allowance as from 7 June 2007.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         …………………..     
  Associate

Dates of Hearing  7 June 2007, 1 August 2007
Date of Decision  8 August 2007
Solicitor for Applicant                Mr P Cousins, Legal Aid Queensland

Respondent  Mr R Hamilton, Departmental Advocate