Lolomanaia; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 115

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 115

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1237

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And KEPUELI LOLOMANAIA

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of decision                4 February 2008

Date of written reasons    13 February 2008

Place  Sydney

Decision The decision of the Social Security Appeals Tribunal dated 2 March 2007 (as amended pursuant to section 149 of the Social Security (Administration) Act 1999) is set aside. In substitution for the decision set aside it is decided that the Respondent’s preclusion period ends on 22 February 2013.

.....................[sgd].........................

Senior Member, Mrs Josephine Kelly

WRITTEN REASONS FOR ORAL DECISION

1. At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – disability support pension – lump sum compensation payment - preclusion period – SSAT reduced preclusion period - whether special circumstances - health and financial circumstances considered – no special circumstances – reviewable decision set aside – preclusion period ends 22 February 2013 

Social Security Act 1991 s 1184K

WRITTEN REASONS FOR ORAL DECISION

13 February 2008 Senior Member, Mrs Josephine Kelly     

1.      I am going to give my decision now. This is an application for the review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 2 March 2007, when that Tribunal decided to set aside the decision and substitute a new decision that, due to special circumstances, so much of the compensation payment received by Mr Lolomanaia as would extend his lump sum preclusion period beyond 8 February 2010 should be treated as not having not been made.  That is, that he would be entitled to claim benefits from Centrelink from 8 February 2010. 

2.      The only issue in these proceedings is whether or not Mr Lolomanaia has established special circumstances upon which I would support that decision, or make some other decision (s 1184K of the Social Security Act 1991).

3.      I note that the department’s position, as of today, is that when they have recalculated the preclusion period, they say to Mr Lolomanaia’s benefit, that is, they have used a part of the calculator called the divisor which was applicable to the date of the second payment he received in settlement of his compensation case from the Supreme Court, such that the effect comes back to 22 February 2013.  I note also the preclusion date was initially set at 2021.  Another decision‑maker determined 2018 on taking into account the settlement, I think, with Mr Lolomanaia’s first wife.  And I take the point well made by Mr Lagi, that it reflects rather poorly, I think, on Centrelink that there has been this very different recalculation which they are relying on today.  Why that wasn’t done initially, or at some time much earlier than for the purpose of these proceedings, is really beyond my comprehension. 

4.      Mr Lagi, Mr Lolomanaia’s representative, puts the case on two bases.  That I either affirm the decision of the SSAT, so that the preclusion period runs out in 2010, or that, in fact, I reduce the preclusion period until today’s date, in effect, so that Mr Lolomanaia can get social security benefits, if necessary, from today. 

5.      The special circumstances which are relied upon seem to fall into a number of categories.  One is the special circumstance arising from Centrelink not advising Mr Lolomanaia of the importance of spending monies wisely after he got them.  There was some notion that perhaps he didn’t really appreciate that there was a 21 year preclusion period, and there seemed also to be a recognition by Mr Lagi that perhaps there had been some unwise financial decisions made.

6.      Putting that aside, there is Centrelink’s failure to do a number of things in an appropriate way.  The lengthy preclusion period allegedly caused distress to Mr Lolomanaia and his family.  There were his financial circumstances which, as I understand it, more particularly if he is unable to work.  I note that he has been working since July 2007, and should say that that’s completely admirable.  He and his wife are both working to support their children.

7.      The financial circumstances which seem to be referred to as of today are a $6000 credit card debt.  The ongoing obligations to pay – and I think in addition to that, there were payments for a car that has been purchased - something in the order of over $600 a month on the repayment for a car. 

8.      There is also a related issue in terms of Mr Lolomanaia’s health, which is that he needs dental work. He cannot pay for, or get, prescriptions for medications which have been prescribed by Dr Kearns, apparently on the recommendation of a psychologist, or following a consultation with a psychologist.  There was reference to the stress induced by the financial circumstances on his family and emphasis was given to the welfare of his two young children.  I note that he has had, I think, four children, older children, from his previous marriage, who are not dependent upon him as I understand it.  Let me perhaps go to each of those matters. 

9.      In relation to the funds which Mr Lolomanaia has received consequent to the decisions in the Supreme Court, it is not clear entirely how those funds were expended.  I am not actually satisfied that they all have been expended because I haven’t seen bank statements which establish that to my satisfaction.  In any event, it is clear that the department has been able to establish and I am satisfied that there has been considerable expenditure clearly on the house, which is the order of $400,000.  There were payments made in respect of a number of vehicles for Mr Lolomanaia’s older children and himself.  He paid $40,000 in travelling to Tonga and building a house for his elderly mother, which was highly understandable. He says it is his responsibility as the oldest child and I understand that may be the case. 

10.     However, there is also evidence of unexplained expenditure, especially on the records in 2002, of various sums being taken out of ATMs in hotels and RSL clubs on the same day - up to $1500 a day - which Mr Lolomanaia, with respect, could not adequately explain to my satisfaction.  Overall I think there has been some expenditure which has been unwise and some of it has been completely unexplained. 

11.     In terms of his present financial circumstances, it seems to me that he and his wife are no worse off than a very considerable part of the population where both parents go out to work to support a family.  They have two young children.  They own their house without any encumbrance.  They are very fortunate in that respect.  And although they have ongoing bills, some of those in my view, are consequent upon decisions that they have made. 

12.     For example, they have a monthly expenditure of $30 for a cable television, which some people might think to be extravagant in the circumstances where, on the other hand, Mr Lolomanaia is saying he can't afford dental work.  In my view, that is a question of people determining priorities and I am not satisfied, on all the evidence, that there are current financial circumstance which are “straightened”.  I also don’t consider that the current financial circumstances, on the evidence, indicate that they were causing stress.  Mr and Mrs Lolomanaia seem to be coping reasonably well.  The stress seemed to be related more to the past, when Mr Lolomanaia was not working. 

13.     The case put by Mr Lagi for Mr Lolomanaia today really seems to say that I should reduce the preclusion period to give some kind of insurance to the family that, if Mr Lolomanaia loses his job, or can't work for some reason, then he will be able to make a claim.  I am not satisfied that that is a matter which is relevant to special circumstances.  In relation to Mr Lolomanaia’s health, I am simply not persuaded that his health is of particular concern, or is such that it gives rise to a special circumstance at this point in time.  In particular the injury that he suffered and for which he received compensation, is not preventing him from work, which is contrary to what the SSAT believed. 

14.     I also note that in the report of the psychologist whom Mr Lolomanaia saw in August 2007, Ms Birch was of the opinion that his symptoms, which were essentially psychological symptoms, have led to significant impairment in Mr Lolomanaia’s social and occupation function and that  Mr Lolomanaia is currently unable to work and support his family as a result.  That is quite clearly, on the evidence before me, incorrect.  In fact, Mr Lolomanaia has told me, and I asked him to repeat it to make sure I hadn’t misheard him, that he was working from July 2007.  So, at the time he saw Ms Birch, the psychologist, he was working.  He was not unable to work. 

15.     In relation to his back injury, he says that he takes, I think, Panadeine Forte every day, but he is able to work.  He gave no evidence of any further incapacity.  So in terms of his health, it does not, in my view, satisfy the notion of a special circumstance. 

16.     In relation to the breakdown of his first marriage, it seems to me that that is well and truly finished.  That was back in 2003, during the court proceedings.  It wasn’t a factor then and is, relevantly, certainly not a factor now.

17.      As Ms Maclean, who appeared for the Secretary, pointed out, if, in the future, something happens, then Mr Lolomanaia can always reapply to the department to have the preclusion period reduced.  I think that, with respect, that is the appropriate circumstance at this time.

18.     I am not persuaded on the evidence that there is any special circumstance which would cause me to reduce the period from the 2013 period, which the department belatedly accepted, and I emphasise that it is unacceptable that it has taken this long for the department to make such a decision which really changes the nature of the preclusion period in terms of a total of eight years. 

19.     So, what I propose to do is to set aside the decision of the SSAT and determine that the preclusion period ends on 22 February 2013.

20.     Is that the correct form Ms Maclean?  Yes.  All right.  So that is my decision in this matter, and I will adjourn.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: Steven Mulipola
Associate

Date of hearing:  4 February 2008

Date of oral decision:  4 February 2008

Date of written reasons:                13 February 2008

Solicitor for Applicant:                   Centrelink Legal Services

Representative for Respondent:   Mr P Lagi