Lawson and Secretary, Department of Social Services (Social services second review)

Lawson and Secretary, Department of Social Services (Social services second review) [2018] AATA 2140 (16 May 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6832
Re:Kenneth Lawson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:16 May 2018
Date of written reasons: 6 July 2018
Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review of 20 October 2017 and in substitution orders that the Applicant is subject to a lump sum preclusion period for 11 May 2016 to 12 February 2019.
.............[sgd]...........................................................
Bill Stefaniak AM RFD, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension - lump sum preclusion period – whether special considerations exist – ill health – emotional state – financial circumstances – incorrect or insufficient legal advice – changed circumstances – decision set aside
Legislation
Social Securities Act 1991 (Cth)
EDITED TRANSCRIPT OF ORAL REASONS FOR DECISION GIVEN 16 MAY 2018
Bill Stefaniak AM RFD, Senior Member
6 July 2018
BACKGROUND

The Applicant, Mr Lawson, is 55 years old. He left school when he was in year 9 and initially worked in abattoirs as a butcher and then in various other trades. He gave evidence before the Tribunal on oath.
He was injured when he was a young man and he broke some bones in his neck and that has caused him some angst since but it has not stopped him working and he battled on at work even though he was off work for a number of years on benefits as a result of that injury.
He has had an interesting and varied life but he has continued working. Prior to his September 2011 injury he was well paid for his efforts. One of the documents in evidence referred to him getting over “$100,000 net a week”. I assume that means a year.
He had a work related injury at Garden Island on 6 September 2011 when he and his son Ken were working together. This injury related to an accident with a pipe, which was full of about 120 kilos of sludge and which caused him some significant injuries which he has not fully recovered from.
He received weekly benefits from GSGU from 21 October until 11 May 2016 in the amount of $794.96. He accessed a firm of solicitors in 2012 in relation to his injury.
The matter proceeded through the courts, ultimately being settled for $500,000 of which $50,000 was paid for the workers' compensation nominal insurer. A consent judgment was entered in his favour for $450,000 and filed on 27 May 2016.
There appears to have been some considerable issues in relation to whether he should have taken the offer of settlement. After discussions with his lawyers he acted on their advice and took the money on offer.
He was not happy accepting the offer and there are a number of issues in relation to that. The firm of solicitors who acted for him did indicate in final settlement that they had received a cheque from the insurer for $392,367.60. This is the $450,000 less $45,000 to Medicare (who take 10% of the settlement figure initially before refunding the balance left after the Medicare expenses are paid), and a $12,632 refund to Centrelink. From that sum, the following was deducted: the lawyers’ bill of $145,710, a loan repayment of $55,000 to the Brisbane Capital Loan, and also a loan repayment to his solicitors firm (as they had lent him $5,000).
The net amount he received from the settlement was a trust account cheque in the sum of $186,608.66. Subsequently, he also received a $39,000 refund from Medicare, which he quickly spent. Accordingly, the total amount that he actually got in relation to the settlement was $225,608.66. This is effectively slightly over 50% of the settlement figure.
He told the Tribunal that in relation to the $39,000 Medicare refund, he repaid his son, Ken Junior, approximately $25,000, and spent the rest on himself (purchasing a boat and other items). There is a clear documented history of what happened to that and $86,000 of the remainder.
The Applicant lodged a claim on 8 August 2016 for a disability support pension (DSP) because he maintained that he had been duped out of about $200,000 by the insurance company in relation to wages he felt he should have and which should have been paid to him between 2012 and 2016.
His claim was rejected on 12 August 2016 because of the compensation preclusion period. He made another claim for a DSP on 17 February 2017 and also lodged a claim for Newstart on 20 April 2017. His claim for DSP was rejected on 30 July 2017, again because it was subject to the compensation period. An Authorised Review Officer (ARO) affirmed that decision on 9 August 2017. He found the period calculated correctly and that there were no special circumstances. The ATT1 affirmed that decision on 20 October 2017 and he applied to this Tribunal on 17 November 2016.
THE LAW
The relevant law is contained in the Social Securities Act 1991 (Cth) (the Act). The Tribunal firstly has to see if the preclusion period has been correctly calculated in accordance with part 3.14 of the Act. If it has been, the Tribunal must then look at whether there are any special circumstances in the case that justify treating part of the Applicant’s compensation as not having been received so as to reduce his payment exclusion period under section 1184K of the Act.
The preclusion period is the number of weeks a person is deemed to be precluded from being able to receive a pension. It is based on taking 50% of the settlement figure and then assessing the most a person can get at a base rate of any pension (which in effect means the DSP and age pension as they pay the most). The figure is then doubled and some extra dollars are then added to cover CPI and other basic allowances people on a DSP are entitled to.
This weekly sum increases each year. The formula for this weekly rate was before the Tribunal in evidence. In this case it was assessed at $955.90 per week. Calculating that on the 50% of his payout of $450,000 (which is $225,000), the exclusion period was one of 235.38 weeks, which is rounded down to 235 weeks.
The preclusion period in the Applicant’s case means that he was precluded from applying for a pension for the whole preclusion period, which was from 29 June 2016 to 10 November 2020.
None of the parties in this matter had any issues with the calculation of the preclusion period. The issue in this case is whether there are any special circumstances that indicate it should be waived in whole or in part.
Special circumstances are not precisely defined in the legislation but there are certainly guidelines as to what they may constitute and what a decision-maker needs to consider in any particular case.
The Applicant contended that because he did not get the $200,000 he said he needed to keep going for about five years before he got his settlement payment, this caused him to have to borrow from his son, Ken, who lent him at least $80,000. He also borrowed $15,000 from a friend, Sadhu, who went to Turkey in 2016 and did not come back after having been repaid seven to eight thousand dollars by the Applicant. As his friend Sadhu left Australia and has not been in contact with the Applicant since, the Applicant cannot pay him the remaining monies owed even if he had the money to do so.
The Applicant felt the above were special circumstances, as were the following: $30,000 he spent on two trips to visit his family in Queensland, paying for such things like a computer for $7,500 for his youngest son, child support, which he felt he needed to (under $3,000), and various presents for his children.
He indicated that he had to spend approximately $2,000 getting out of pawn items he had pawned to survive until he got his lump sum payment. He also spent money buying items to replace items that he had sold. For example, he bought a car.
In his evidence, the Applicant also indicated that during the course of the last 18 months he had bought new items which he needed, such as a car. Unfortunately, he had to re-sell these items to survive. He said that what he had purchased he has now sold and he felt this was a relevant consideration for the Tribunal to take into account.
The Applicant further maintained that he is unable to work due to medical issues, not only from the injury (because he was attempting to work prior to the injury and even after the injury he managed a few days work a week for three or four hours a day for month or so, but simply could not keep that up), but also as he said he has had some further illnesses, in particular blood clots - one in the heart and two in the legs.
These have been described by his GP, Dr Tam, in his evidence by phone before the Tribunal, as peripheral vascular disease. Dr Tam indicated that this is probably the most serious thing affecting the Applicant at present.
The Applicant’s case is supported by two exhibits, A1 and A2. A1 is a letter to the Tribunal dated 8 April 2018 from his son Ken. A2 is a letter dated 9 May 2018 from Dr Tam who he has been going to since 2005.
His son said:
To Centrelink Appeal Tribunal,
I Kenneth Maxwell Jnr lent my dad, Kenneth Lawson Snr over $80,000 during 2011 - 2016. I sold my cars, bikes, boat and trailer etc plus I also gave him money from my wages when he had his accident at work and got injured.
Dad came up to Wyee on the Central Coast to live with myself and my family for a few months before I moved to Queensland.
Dad said he would pay me back what he owed me when he got his compensation money.
When dad got his money I asked him not to pay me back all at once, but to instead buy me a car, boat and trailer, bike and to pay the moving cost to move to Queensland. Then [sic] pay me the rest in cash once I got there.
Dad payed [sic] back most of the money he borrowed off me but for $2,500.
Dad has since borrowed another $9,500.00, that I got when I sold my lawnmowing business along with all the tools and trailer etc.
I have told dad I no longer have any more money to lend him as I have had to move to a new house since coming back from Queensland.
So, Mr Lawson Senior, the Applicant, still owes $12,000 to Ken Junior but he has paid back $80,000. I have no reason to disbelieve that he has also paid back seven to eight thousand dollars to his friend Sadhu. This did not seem to be contested by the Respondent.
Dr Tam, in his written statement dated 15 February 2018,[1] states:
I have known Mr Kenneth Lawson professionally- since 2005. In 2011 Mr Lawson injured his neck at work. He sustained a cervical disc C6/7 level and subsequently underwent surgery on 2.12.2011. He developed post-discectomy/fusion pain and was not able to return to work.
Due to chronic pain, Mr Lawson became depressed and anxious.
Mr Lawson was found to have coronary artery disease and has been treated conservatively, since 2015.
Mr Lawson suffers from peripheral vascular disease and has had vascular surgery for his right and left lower limbs.
He continues to have claudication.
His walking tolerance is up to 50 metres. He continues to see his muscular surgeon because surgery has not improved his walking tolerance.
He is not able to support himself financially and he is not able to work due to his current medical condition, especially the peripheral vascular disease.
[1] Supplementary T Documents at 150-151.
The doctor also said in a statement dated 9 May 2018:[2]
[2] Exhibit A2.
I have known Mr Lawson professionally since 2005. He has been attending my surgery on a regular basis.
I am aware of his financial circumstances and matters regarding his application for a Disability Support Pension.
I believe there are exceptional circumstances applicable to Mr Lawson's case.
1He's homeless. He has been sleeping in his car, his son's home, friend's homes, even in the garage. The Housing Department requires an assurance of a steady allowance/income to enable him to be eligible for housing.
2He needs to have physiotherapy periodically and regularly for his ongoing neck problems.
3He sees his vascular surgeon and neurosurgeon regularly and has to pay the gap fees.
4He needs to pay for transport and medications prescribed by his Doctors.
5His chronic pain is one of the main contributing factor for his depressive disorder and financial issues will further compound his mental state.
Please consider these circumstances in your assessment of Mr Kenneth Lawson's application.
Thank you.
Dr Tam also gave evidence by phone before the Tribunal. He indicated that after the accident in 2011 and because of the chronic pain suffered after the surgery, the Applicant could not do his job. He says the Applicant has had heart disease since 2015 although the check-up indicated that the condition was not too bad.
The peripheral vascular disease causes him to feel pain down his legs. Over the last few years it has become more significant, certainly more significant after the accident. It was first diagnosed in 2009.
Dr Tam had referred him to a specialist and he sent him two years ago in 2016 to a vascular surgeon. There has been an operation, which did not exactly help. Furthermore, he had blood pressure issues as well. If he did any work it would have to be sedentary work. Under cross-examination he said he could do some duties but he had actually tried to do some work but could not cope due to depression and anxiety.
Dr Tam went on to say that the Applicant was seeing a psychiatrist and that he takes medication. He cannot take some medications because of his pain problems. The doctor said he might have further surgery after his conditions are reviewed by a surgeon because the prior surgery did not improve anything to a significant degree.
DISCUSSION
The Applicant has managed to spend quite a lot of money, and this certainly concerned the ARO and the AAT1. At first glance there certainly appeared to be a lot of money spent in a short period of time.
The Applicant was taken through the T Documents and had explanations for nearly all of the reasonably large expenditures. At first glance it certainly seemed he had spent over a number of months most of the $186,608.66 he received.
That amount was paid into his bank account on 29 July 2016. There are regular withdrawals from the bank account and the Applicant was taken to a number of them, especially the bigger ones by the Tribunal.
For example, on 10 August 2016 he withdrew $600. He said this was probably for the rent for a trailer .On 12 August 2016 on two occasions he withdrew $400 within a minute. That he said was for his son Ken. Then there is $5,000, which he said he took out to go to Queensland.
On 16 August 2016 he withdrew $5,000 and on 17 August, $8,000. At that stage (and this is noted by the AAT1), he took out $30,000 over the next few weeks. He said he took out approximately $12,000 because he thought at that time he was going to Queensland and he intended to use the money for presents for the children, child support, and a computer for his youngest son. There are then further withdrawals on 19 August 2016 of $5,000, $2,000 on 22 August, again $1,000 on 22 August, and again $2,000 on 22 August.
He also indicated that he was paying back Ken in instalments.
The Tribunal took the Applicant through instances where sums of money were withdrawn on the same day. For example, on 5 and 6 September 2016 there were several withdrawals totalling $1120. He said that they probably related to a trail bike for Ken. There were further withdrawals on 12 and 13 September 2016 for $900, $2,000 and $1,500. Again, these were for Ken, as Ken had obtained a utility vehicle as he was in the process of moving to Queensland at that time.
He them explained that the withdrawals from 19 September 2016 until 6 October 2016 were predominantly payments for Ken and for buying items such as a blower for Ken and a Yamaha 250 trail bike for himself.
There was a big withdrawal on 6 October 2016 of $14,000, which was to buy a car for Ken as part of paying back the debt he owed. The Applicant said that Ken still has that car.
He then described further withdrawals for the month of October 2016. There is a $1,800 withdrawal on 10 October for a work trailer for Ken. He then withdrew $8,000 on 13 October which was to both cover the second time he went to Queensland to see his family and to give to Ken.
Then there are withdrawals of $1,500 and $1,000 on the 1 and 2 November and two withdrawals of $2,000 on 3 November. He said that they were for a boat. On 14 November, there are two withdrawals of $2,000 each which was given to Ken. Similarly on 6 December, two lots of $2,000, again payments to Ken.
The Applicant went to Queensland again in mid to late December. On 17 December there are two withdrawals of $2,000 and one withdrawal of $1,400 two days later and that was to pay for his youngest daughter’s child support.
The Applicant told the Tribunal that he thought the two withdrawals of $1,000, one on 19 December and one on 23 December, were again for Ken. He did not have any idea what the $1,000 on 3 January 2017 was for. After that there were further withdrawals (i.e. withdrawals of $600, $800, $500 and $200 from 12 to 14 January), which he said were for Ken.
There were further withdrawals, which he thought might have been for moving belongings out of Yagoona where he was living or for Ken’s car. On 19 January there are two withdrawals of $1,800 and $4,000 which he said he gave to Ken for "some stuff and for removal costs".
There were some further withdrawals on 24 and 25 January of $1,000, $1,800, $1,000, and $200. He said this was for Ken. After this date his account was down to $24,369, and there were no more big withdrawals except a $9,000 withdrawal on 1 June 2016, which was the last lot of money he had. The bank account balance decreased by 15 July 2017 to $162.51.
Many of the withdrawals it seems were for repaying the debt to Ken whilst others related to getting buying necessary goods, which he says he subsequently sold. He also spent approximately $30,000 on going to Queensland, purchasing gifts such as a computer, paying child support (which he had not previously paid), and other expenditures.
He told the Tribunal that in early 2017 he was still renting his house at Yagoona but had to leave because there was a local gang of youths who were terrorising the neighbourhood and it was not sensible for him to stay there.
In evidence is a letter to Mr Kenneth Lawson dated 26 July 2017 from Family and Community Services (FCS).[3] The letter indicates that FCS tried to assess his entitlement for rent subsidy but they could not do so because they had not received his income information and because of this they cancelled his subsidy. According to the letter he was to pay market rent of $380 per week. He said that whilst they had been fairly helpful to him at the Department of Housing, there was no way he could remain at the Yagoona property.
[3] Supplementary T Documents at 147.
He handed his keys in and since that time he has been staying with friends and family, and staying in the car outside his carer's place.
He is very much now in a dire situation because he does not have an income and it is difficult to get back on the Housing treadmill. So it seems, unfortunately, that he has got himself into a significant mess.
ARE THESE CIRCUMSTANCES SPECIAL?
Under the heading 13.4.20 of the Guide to Social Security Law, there is a guide for decision-makers titled “Facts to Consider When Determining Special Circumstance Provisions.” This section contains information on the factors for the delegate to consider when determining special circumstances.
It is appropriate for the Tribunal, sitting in the shoes of the original decision-maker, to go through the relevant parts of that Guide in looking at the Applicant’s situation.
Ill health
In a table in this section, one of the factors to consider is “ill health”. The table stipulates that the decision-maker is to look for is “ill health that has a major bearing on the individual's circumstances” and that the general principle is that the “state of ill health should be more severe than the majority of DSP recipients.”

The guidelines go on to say “medical reports should be provided of the conditions that the individual/family member has and the impact of these conditions should be outlined.”
Dr Tam and the Applicant have certainly given some evidence in that regard. The example given in the guidelines of ill health is: “unforeseen and unexpected medical expenses for the person or immediate family member or dependant, which results in financial self-support plans being thwarted.”
This is of relevance because in the Applicant’s case his vascular problem impacts his life in many ways. It precludes him from undertaking a lot of work (although other factors are also significant here). It prevents him from undertaking most types of work except sedentary work. It clearly has an impact on his anxiety and depression. It is also an injury, which worsened over the last few years despite the Applicant undergoing an operation.
It appears that nothing was done at the time the Applicant was diagnosed in 2009 in order to address this issue and the Applicant noted that there was a possibility of him being able to take out a medical negligence claim against a particular surgeon. That is a factor, which might enable him to receive some compensation. However, there is a big question mark in relation to this that is dealt with in another area of the Guide.
Fundamentally, because the injury got worse after the accident, it has got nothing to do with the accident and it appears to be the main inhibiting factor he has now - one could say it is unforeseen and unexpected. In terms of the medical expenses he has now incurred, he now has to pay normal rates when going to doctors as he is no longer on any sort of pension. Clearly, this causes the Applicant significant problems because he cannot afford to pay the expenses as he has no money.
Emotional state
The Applicant’s emotional state is also of some relevance. The question is whether stress or some other personal circumstances influenced his emotional state to the point where it has become a significant factor in his behaviour or health. That has to be a maybe. Dr Tam is certainly of the opinion that the Applicant suffers from depression and that all of his current health and other problems have a significant impact on him because he has got himself into a situation where he simply does not have any money and his current living arrangements are chaotic.
Decision making capacity
I do not think the decision-making capacity applies here.
Strained financial circumstances
The question has to be asked: has the Applicant deliberately deprived himself as to any means of support or inappropriately spent the lump sum? I would say in terms of some of the lump sum, he has spent it inappropriately.
He did not need to give presents, he did not need to supply a computer, and he did not need to do the back pay in terms of child support. So, some of the money certainly did not need to be spent. Also, the unexplained expenditure may also indicate some frivolous spending of the lump sum.
However, the Applicant was without money it seems for about 10 months of the period from late 2011 to 2012. He borrowed money and it is not unreasonable, given that his son is not exactly well off himself, that he repaid these debts and the same applies to the money owed to his friend as well. It certainly is a logical thing to do and I take into account that he has borrowed some extra money from his son in more recent times.
It may be unreasonable to expect that he continues to owe his son whilst accruing further debts owing to his son where he has no real likelihood of ever repaying it. At present, that money is needed to support himself because he does not have anyone else who can actually financially support him at any relevant time during this matter.
The Applicant certainly did not seek financial advice. He has had realisable assets and he has sold them. In fact, he not only sold assets, he has rebought assets from his compensation fund and then sold some of them again. Some assets he needed (such as a car), and some assets he did not (such as a boat). It should be noted, however, that he now only has a third of a share in a boat that is worth approximately $1,500 according to his evidence.
A further question to ask is whether the realisation of the assets impact on his health. It appears that it may. As he does not really have any saleable assets this is not a relevant consideration.
Another factor to look at is whether he is likely to face financial hardship in the near future. As it currently stands, it appears that the Applicant is currently facing hardship and will continue to do so in the future.
A further factor requiring consideration is whether there are there any other avenues of support, family, or friends who are willing and able to provide the person with free board and lodging until the preclusion period expires. I would think in these circumstances this is somewhat problematic in that his son Ken, who has certainly helped him out and has provided him with lodgings in the past, has indicated that he cannot lend him any more money because he has had to move to a new house since coming back from Queensland. The Applicant also gave evidence that it would be difficult staying with his son Ken for any great length of time, if at all.
The Applicant has given evidence as to currently living out of his car and staying with friends.
So, it does seem that it will be very difficult for him to get free board and lodging until the preclusion period expires unless he can get into some other form of accommodation through New South Wales Housing or through any other Government or non-Government agencies that cover that area.
If a person wantonly and irresponsibly spends all their proceeds and fails to set aside funds to meet their living costs during the preclusion period, the Guide says the decision-maker should not find that special circumstances exist unless there are truly compelling reasons to do so.
Addictions
There are not any addictions that apply in these circumstances. He does not drink and he has about five cigarettes a day which he gets from other people. He certainly cannot afford to buy his own.
Incorrect or insufficient legal advice
This factor indicates that the delegate should check whether the person has signed an acknowledgement confirming he understood the implication. In terms of general principles a delegate has to look at, if a person has been badly advised by his/her legal representative, he/she may seek remedy through the courts. However, as the person may not be or will never be likely to be in a financial position to take this action, the error may not be actionable.
It appears to me that the $90,000.00 initially quoted to him prior to settlement over a period of close to four years is quite a reasonable fee. The extra $55,000.00 charged by the solicitor to affect a settlement seems to be excessive and certainly the Applicant would be well advised to go and talk to a legal service such as the New South Wales Law Society to see if he can find a lawyer to take that case on.
That certainly is something that I think should be looked at but it is very difficult for me to really see on the evidence whether the advice he got was good, bad or indifferent. It seems to be logical in that there was a barrister involved. The advice may well be reasonable and certainly it is not something the Tribunal can comment on further.
I also note that in terms of medical problems, the misdiagnosis may well mean a claim can be made against that particular doctor from 2009. That might assist him in terms of a lump sum payment down the track. However, to start such an action it would have to be on the basis of a ‘no win, no fee’ arrangement because he does not have any money. This is, of course, unless a professional body regulating doctors’ conduct was mindful of assisting him somehow.
Therefore, if there has been bad legal advice (and in this instance perhaps an overcharge of fees), and if that $55,000 charged should have only been $5,000 and he was entitled to get $50,000 back, he would be in a very different situation than he is now. So it is certainly something worth chasing-up. However, it is another thing to say that he is ever going to be in a financial position to take any action if he has to pay for it. At any rate, it is certainly a factor that I have taken into consideration.
Unjust operation of legislative amendment
Whether the legislation is fair or not is not relevant in this matter.
Changed circumstances
Regarding changed circumstances, the Guide states:
Have the circumstances of the person altered significantly since the preclusion period commenced due to circumstances wholly or partly outside his control?
It does not appear that the examples of (i) whether the compensation recipient is divorced and had their assets reduced, (ii) whether the compensation recipient has been successfully sued, and (iii) whether there were natural disasters, apply in this matter.
However, the example of “sudden ill health of the person or members of their family” may apply. It is not so much a sudden ill health but his health has deteriorated - his vascular problems with his legs are something that has got worse in this period. Whilst it is not sudden, it is outside his control.
The other general principles for this factor do not apply here.
Documentation to support claims must be produced. The Applicant has certainly provided that through Dr Tam’s evidence. Dr Tam's oral evidence also indicated the more recent disease, which certainly has come on and become apparent after the accident. The accident that may be compensated is certainly the most serious disease and that certainly is something that is beyond his control.
Other
The only other relevant factor here is excessive legal costs involved in settling of a claim for compensation and I have already dealt with that point.
To what extent are the costs excessive?
The delegate is to decide what excess costs or part is to be treated as a special circumstance.
Of the $56,500.00, I would say that approximately $50,000 of that is excessive. I would think a bill of about $100,000 would be more reasonable, meaning that approximately $45,000 would be excessive. That is very much a an estimate on the Tribunal’s part, but from the evidence the Applicant gave and what transpired during the negotiation of a settlement, I think something like an extra $10,000 would have been reasonable in terms of what that firm was charging rather than what they did charge. What the Applicant said in relation to his solicitor lending him $5,000 does seem rather strange, but the Applicant did not quibble about the need for him to repay that loan.
CONCLUSION
The principle behind the Act is that people should not double dip. The allowance of about $955 a week is a reasonable amount of money to allow when it comes to calculating how long it should be before a person becomes eligible to re- apply for a pension. This is, after all, more than double the maximum pension rate available.
The idea behind this scheme is that the taxpayer should not have to pay when the people who are responsible for paying an injured employee are paying. It is a very fair formula adopted in this legislation.
There are some things the Applicant has done, which would indicate that he has wasted some of his money. Certainly, the amount of money he received during this lengthy period from when he was injured to when he received his lump sum is not huge. He did not get his back pay until several years afterwards. There was a 10 month period when he did not receive any money. At the end of this period he does get a back payment which averages out at about $270 to $275 a week.
The only thing out of the ordinary in this case between the accident in 2011 and settlement in 2016 is the fact that the Applicant does not appear to have any money for a period of time and he has had to borrow money from his son and others just to survive. Additionally, he has sold some goods or pawned them, which means he has to then get them back at a later stage.
That in itself is something that should be considered. Perhaps it is part of special circumstances.
The other thing to consider is whilst it appeared that the Applicant had certainly spent most of his $186,000 net within a few months to get it down to about $20,000, this is partly explained in terms of paying Ken back the $80,000. I do not find this necessarily unreasonable in the circumstances. This also applies to his repayment to his friend of $7,000. The loans enabled him to survive over the five year period when the income he received from other sources was inconsistent. I believe it is a significant factor.
Another significant factor is the fact that he is not a well man. His health problems have grown from 2011. His vascular problems, which were diagnosed in 2009, have now become more serious.
The Applicant is now in a difficult situation. He does not have any money and only has about $1,500 in a part share of a boat (the other two partners do not want to sell). He has some household goods possibly worth a few hundred dollars. He appears to be homeless. He appears to have got himself into a Catch 22 situation with the Department of Housing. He is certainly unable to afford daily living expenses. This is due to circumstances not completely beyond his control, as he could have been more prudent with some of his spending of the lump sum. However, there are circumstances in relation to his position, which I think do need to be taken into account.
The easiest and fairest way of assessing it is looking at what he claims he had to do with the money he received. I think paying $80,000 to his son is a reasonable matter to take into consideration. I think paying $7,000 to his friend is also reasonable when one looks at all the circumstances.
I do not think the $30,000 spent on the trips to see the family in Queensland and the expenditure of money on child support and gifts are a reasonable thing to take into account in his circumstances. One is meant to sell items and I note that he has certainly done that that so that he can continue to live. This is expected under the Guidelines.
In all the circumstances I think the correct course for this Tribunal to take, taking everything into consideration, is firstly finding that, for the reasons I have given, there are special circumstances.
Secondly, out of the $186,000 he received in a lump sum, the expenditure of which I have gone through in some detail, I find the repayment of $87,000 for debts he owed to his son and friend was reasonable in all the circumstances of this case.
DECISION
When one considers all his other circumstances and especially his current circumstances, it is appropriate that this period be shortened by 91 weeks which is how many weeks $87,000 works out as according to the formula. This then brings the end period back from 10 November 2020 until 12 February 2019.
The order I make accordingly is that the decision under review will be varied and the period will be reduced from 10 November 2020 to 12 February 2019.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

................[sgd]........................................................
Associate
Dated: 6 July 2018

Date(s) of hearing: 16 May 2018

Applicant: In person

Solicitors for the Respondent: Ms E Ulrick, Department of Human Services

[2018] AATA 2140

16 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Standing

Date(s) of hearing:	16 May 2018
Applicant:	In person
Solicitors for the Respondent:	Ms E Ulrick, Department of Human Services