LTHV and Secretary, Department of Social Services (Social security second review) - [2024] ARTA 411

LTHV and Secretary, Department of Social Services (Social security second review) [2024] ARTA 411 (21 November 2024)
Applicant/s:  LTHV
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2023/8280

Tribunal:General Member Gallagher (second review)
Place:Perth
Date:21 November 2024

Decision:The Reviewable Decision, being a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 3 October 2023, is affirmed.

.............[SGD]...........................................................
General Member Gallagher
Catchwords
SOCIAL SECURITY – compensation preclusion period – disability support pension – financial position – ill health - no special circumstances – evidence does not support that compensation preclusion period be shortened – decision under review affirmed
Legislation
Social Security (Administration) Act 1999 (Cth), s 196
Social Security Act 1991 (Cth), pt 3.14, ss 17(1), 17(2)(c), 17(3), 1166, 1167, 1169(1)(b), 1170(1), 1170(4), 1170(5), 1178, 1184K, 1236, 1237A, 1237AAD, 1237AAD(a)-(c)
Workers' Compensation and Injury Management Act 1981 (WA)
Cases
Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25
Beverley Lind v Secretary, Department of Social Services [2014] AATA 680
Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 271
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Kulakov and Secretary, Department of Social Security [1991] AATA 668 (14 August 1991)
Minister for Home Affairs v G and Another [2019] FCAFC 79
Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
Muir; Secretary, Department of Social Services [2013] AATA 831 (22 November 2013)
Re Rosemarie Beadle and Director-General of Social Security [1984] AATA 176
Secretary, Department of Social Security v Coralie Hales [1998] FCA 219
Secondary Materials
Department of Social Security, Australian Government, ‘Guides to Social Policy Law: Social Security Guide’ (4 November 2024), 4.13.4.20, 4.13.1.30
REASONS FOR DECISION
Member L M Gallagher
THE APPLICATION

The Applicant seeks review of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal[1] (AAT1), made on 3 October 2023 (the Reviewable Decision).[2] The Reviewable Decision affirmed a decision made by an Authorised Review Officer (ARO) within Services Australia (the Agency) dated 28 March 2023[3] to:
(a)raise a Disability Support Pension (DSP) debt in the amount of $497.42 for the period 24 December 2022 to 1 January 2023;
(b)raise a DSP debt in the amount of $276.33 for the period 2 January 2023 to 6 January 2023; and
(c)impose a compensation lump sum preclusion period from 24 December 2022 to 28 April 2023.
[1] At the time of the Applicant’s application, the Tribunal was known as the Administrative Appeals Tribunal. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
[2] R1, T2.
[3] R1, T3.
ISSUES
The issues for determination by the Tribunal, being the Administrative Review Tribunal are:
(a)whether the decision to impose a lump sum preclusion period from 24 December 2022 to 28 April 2023 was correct;
(b)whether the Applicant’s DSP was correctly cancelled and the Applicant has DSP debts in the amounts of:
(i)$497.42 for the period 24 December 2022 to 1 January 2023; and
(ii)$276.33 for the period 2 January 2023 to 6 January 2023;
(and whether those debts ought to be recovered);[4] and
(c)whether all or part of the Applicant's lump sum compensation payment can be disregarded (in whole or in part), and the Applicant's lump sum compensation preclusion period should be shortened due to special circumstances.
[4] This requires consideration of the waiver and write-off provisions in the Social Security Act 1991 (Cth) (the Act). These are addressed below.
BACKGROUND
The background facts are set out in detail in the parties’ written submissions.[5] The Tribunal has briefly set out the facts relevant to this application.
[5] A1(c), A1(e), A1(f), A2, A3, R2, and R3.
The Applicant is 68 years old.[6]
[6] R1, T1, p 1.
On 30 January 2020, the Applicant was granted the DSP.[7]
[7] R1, T26, p 119.
On 23 April 2021, the Applicant suffered a workplace accident.[8]
[8] R1, T11, p 52.
On 17 May 2021, the Applicant made a claim for workers compensation.[9]
[9] R1, T11, pp 52-54.
On 8 July 2021, CGU Insurance (CGU) provided the Agency with a Compensation Advice of Periodic Payments form, which relevantly indicated that the Applicant began receiving periodic payments in the amount of $150.00 per week from 25 May 2021, and that this would be continuing.[10]
[10] R1, T16, pp 75-77.
On 14 July 2021, CGU provided the Agency with a further Compensation Advice of Periodic Payments form, which relevantly indicated that the Applicant was receiving periodic payments in the amount of $69.14 per week from 25 May 2021, and that this would be continuing.[11]
[11] R1, T17, pp 79-81.
On 8 December 2022, the Applicant settled her workers compensation claim.[12] The memorandum of agreement indicates that the total lump sum settlement amount was $30,000.00 (the lump sum compensation payment).
[12] R1, T19, pp 87-89; T21, p 93.
On 9 January 2023, as a result of receiving the lump sum compensation payment, the Agency:
(a)decided to impose a lump sum preclusion period from 2 January 2023 to 2 April 2023;[13]
(b)sought recovery of the DSP paid to the Applicant in the amount of $276.33 (the first DSP debt) for the period 2 January 2023 to 6 January 2023.[14] This was because the Applicant received DSP during the period in which she was precluded from receiving income support payments from the Agency; and
(c)cancelled the Applicant's DSP.[15]
[13] R1, T61, p 263.
[14] R1, T61, p 263.
[15] R1, T61, p 266.
On 12 January 2023, the Agency issued a notice to CGU pursuant to s 196 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) in relation to the Applicant's workers compensation claim.[16]
[16] R1, T23, pp 97-98; T61, pp 270-275.
The Tribunal understands that, in response, CGU noted that:[17]
(a)the Applicant was paid a gross lump sum amount of $41,159.32 inclusive of costs and disbursements; and
(b)the Applicant was paid periodic compensation payments from 26 May 2021 to 23 December 2022 in the amount of $69.14 per week.
[17] R1, T23, pp 99-101.
On 20 January 2023, the Agency issued a notice to the Applicant’s employer pursuant to
[18] R1, T15, p 72; T24, p 104; T61, pp 276-279.
s 196 of the Administration Act seeking clarification as to when the Applicant's periodic compensation payments ceased.[18]
The Applicant’s employer provided a payslip confirming that the Applicant was last paid periodic compensation for the period ending 18 December 2022.[19]
[19] R1, T15, pp 73-74; T24, pp 105-106.
With this information,[20] on 15 February 2023 the Agency reassessed the lump sum preclusion period imposed on the Applicant from 24 December 2022 to 24 March 2023.[21]
[20] Being the information from the Applicant’s employer and CGU referred to at [13] and [15] above.
[21] R1, T61, pp 285-286.
After further reviewing the Applicant’s workers compensation settlement and factoring in additional legal costs of $11,159.32, on 14 March 2023 the Agency further reassessed the Applicant's lump sum preclusion period, to be from 24 December 2022 to 28 April 2023.[22]
[22] R1, T61, pp 287-288.
This further reassessment led to a further DSP debt being raised in the amount of $497.42 because the Applicant received DSP in the period 24 December 2022 to 1 January 2023 (the second DSP debt).[23]
[23] R1, T61, pp 287-288.
On 16 March 2023, the Applicant requested an internal review of the Agency's decision made on 9 January 2023,[24] in relation to the lump sum preclusion period imposed for the period 24 December 2022 to 28 April 2023.[25]
[24] Which was subsequently amended on 15 February 2023 and again on 13 March 2023. See [16] and [17] above.
[25] R1, T61, pp 289-290.
On 28 March 2023, an ARO affirmed the Agency's decisions made on 9 January 2023 and 13 March 2023.[26] The ARO determined that:[27]
(a)the Applicant's compensation claim was settled on 23 December 2022, and this included a component for economic loss;
(b)when the Applicant received the lump sum compensation payment, the divisor was $1,121.50;
(c)the lump sum preclusion period commences the date after the periodic compensation payments cease, which was 23 December 2022;
(d)the Applicant's lump sum preclusion period was therefore 18 weeks, from 23 December 2022 to 28 April 2023;
(e)there were no circumstances in the Applicant's case which were unusual, unforeseen or exceptional to be considered special, to warrant some or all of the lump sum compensation payment being disregarded, or the lump sum preclusion period being changed;
(f)during the lump sum preclusion period, the Applicant received DSP in the amounts of $297.33 and $497.42, which she was not entitled to receive. Therefore, the Applicant has the first DSP debt and the second DSP debt which must be repaid to the Agency. Although, the first DSP debt has already been fully repaid;
(g)the debts did not arise solely due to administrative error; therefore, they cannot be waived; and
(h)the Applicant's circumstances were not sufficiently special nor unusual to allow the debts to be waived.
[26] R1, T3, pp 8-13.
[27] R1, T3, pp 11-12.
On 14 April 2023, the Applicant lodged an application for review with the AAT1.[28]
[28] R1, T60, p 234.
The Tribunal understands that on 30 April 2023, the Applicant commenced receiving Age Pension.
On 3 October 2023, the AAT1 made the Reviewable Decision.[29] In doing so, the AAT1 also found that:[30]
(a)the Applicant did not show evidence of any ‘special circumstances’ which were so unusual, uncommon, or exceptional to set her aside from most other people who were recipients of lump sum payments and have preclusion periods applied to them; and
(b)the repayment of the debts would not lead the Applicant to extreme hardship or create an inequitable, unjust or unreasonable situation.
[29] R1, T2.
[30] R1, T2, p 6.
On 6 November 2023, the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal.[31]
[31] R1, T1.
LEGISLATION AND POLICY
The relevant law is contained in the Act.

The relevant policy is contained in the Guides to Social Policy Law: Social Security Guide (the Guide). As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[32]
27.
[32] G at [57]-[62].
THE HEARING AND THE EVIDENCE

The matter was heard on 10 September 2024. The Applicant was self-represented and appeared with the support of her husband. The Respondent was represented by Mr Matt Gauci of Hunt & Hunt Lawyers, who appeared via Microsoft Teams. At the hearing, the Tribunal heard evidence from the Applicant and no other witnesses were called.
The Tribunal admitted the following documents into evidence:
(a)Cover Letter dated 29 February 2024, filed 4 April 2024 (Exhibit A1);
(b)Worker’s Compensation Claim Form dated 17 May 2021, filed 4 April 2024 (Exhibit A1(a));
(c)Worker’s Compensation Form Additional Information dated 19 May 2021, filed
4 April 2024 (Exhibit A1(b));
(d)Applicant’s Information for Consideration dated 25 September 2023 filed 4 April 2024 (Exhibit A1(c));
(e)AAT Decision and Reasons for Decision dated 3 October 2023 filed 4 April 2024 (Exhibit A1(d));
(f)Applicant’s Information to Support Request to Review Appeal AAT Decision dated 3 November 2023, filed 4 April 2024 (Exhibit A1(e));
(g)Applicant’s Response to the T-Documents dated 3 January 2024, filed 4 April 2024 (Exhibit A1(f));
(h)Applicant’s Response to Respondent’s Statement of Facts, Issues and Contentions dated 21 June 2024, filed 21 June 2024 (Exhibit A2);
(i)Bundle of Documents Referred to in the Applicant’s Response to the Respondent’s Statement of Facts, Issues and Contentions, dated 21 June 2024, filed 21 June 2024 (Exhibit A3);
(j)T-Documents labelled T1-T61, comprising of 298 pages, filed 4 December 2023 (Exhibit R1);
(k)Statement of Facts, Issues and Contentions, filed 17 May 2024 (Exhibit R2); and
(l)Further Statement of Facts, Issues and Contentions, filed 9 September 2024 (Exhibit R3).
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing.
Applicant’s evidence at hearing
The Applicant gave evidence to the effect that she lacked confidence in the Reviewable Decision by virtue of the fact that the deciding Member had added an extra 11 days to the preclusion period in the body of the decision.[33]
[33] See R1, T2, p 5, where the commencement date of the preclusion period was indicated to be 13 December 2022. The Tribunal accepts this a typographical error and the correct dates and period are otherwise reflected elsewhere in the Reviewable Decision, including the wording of the decision itself.
In the reasons for her application, the Applicant stated:[34]
[34] R1, T1, p 2.
The relevance of Laws and Guidelines applied by the Secretary for Services Australia (Centrelink) and AAT (sections 17, 1169, 170 and 1184 of the Act and Social Security Guide, 4.13.4.10), do not reflect Workers’ Compensation and Injury Management Act Form 15C MOA Item 5
The Applicant explained at hearing:[35]
[LTHV]: In my correspondence dated 3 November,[36] the economic loss of $1,099.41 is for the economic loss, i.e., for $84.57 a week is the amount I was being paid, an amount that didn’t affect either of our pensions, disability or aged. And then even as now an aged pensioner, the 1,179 was actually for past – was part of the medical fees I had already paid. It’s just the way they worded it. And then under 31(c) and in my correspondence, I think it’s the January, yes, I expand on the workers compensation which under section 31(c) it is the respective amounts being 10 per cent and 8.3 per cent of the degree of impairment. It’s not for – that is not economic loss. It’s non-economic loss for the permanent impairment. The percentages of those amounts relevant to my injuries, which – the injuries received in the fall which those assessments are separate to my pre-existing injuries.
MEMBER: So is the point that you’re making, that those amounts shouldn’t have been forming part of the total compensation that was taken into account?
[LTHV]: Look, it’s non-economic. And when I settled with WorkCover the lawyers for both parties and the insurance company were directed to pay the lawyer directly to him. I had tried to manage this claim myself, which was – when it came to being served a section 61 by the lawyer to stop payments based on an IMEs report that quoted that I was 100 per cent fit to go back to full time work, but the concussion and the dizziness and the vertigo were outside of his area of expertise. So I had, obliging my requirements under – that I had, 1,166 I think it is – of the Act that I had to pursue ‑ ‑ ‑
MEMBER: That was the action you had to take.
[LTHV]: An angle I had to take. And then I was representing myself. But when the arbitration, through that process, asked me to present area of law, I could only find the guidelines for an IME. And the stress was really affecting my health and that. So I engaged a lawyer which, there isn’t an area of law, it is only the guidelines. But the direction from that was that my payments weren’t to be interfered with and continued at the $84.57. It was through that process that it was established that from the $69 I was being paid, prior to this, that the insurance company lawyers established that I was being underpaid by the $84.57. My wages were completely affected by COVID, hospitality, et cetera.
So moving forward on that, engaging the solicitor, he said, ‘Well, you’re still being underpaid’, which I was, but I had accepted that, okay under the COVID lot. So with the process of hearings I was encouraged to settle. I wasn’t able to see doctors because there isn’t doctors covered by WorkCover, that covered concussion. I still have problems associated with that. And it’s that way that – so the lawyer charged for the settlement of me contesting the 61, and that arbitration and settlement.
[35] Transcript, pp 10 to 11.
[36] Being A1(e).
As to the Applicant’s claim that consideration was not given to her obligations under ss 1166 and 1167 of the Act in relation to the scale of legal costs, at hearing she added:[37]
[LTHV]: …I was duty bound to receiving a capped payment to file for workers compensation for an amount of payment that was not – at first the DSP, you could only earn $100 – $100 and something a week under the DSP. So I had to – we were losing $3-something a fortnight. Now, I have always honoured every responsibility of receiving a payment. I do not, never, ever expect anything in life that I’m not entitled to. So we were losing the money. And all reports of my earnings and all documentation has come from me and the insurance company has had to be followed up. And it’s that way that, so in the – I think it was the 9 July ’21 they changed the amount we could earn of DSP. They’d put it up to the same as a pensioner that you could earn, I think it was $340 a fortnight. So through the process of increase I received – we weren’t losing any money. But when I got that back pay I informed the agency. My calculations they should have taken from 21 April to, I think it was – because there were dates that I hadn’t been paid in full and then there was the top-up from the 69 to the 84. And that’s where my understanding of a debt that was raised being given the debt number of the same as what the 497 is. That the differences, until they increased the 340, that once they increased the 340 we weren’t losing any money on that amount. And that amount, in my settlement, is 13 weeks at $84.57. And then for the permanent injury – and I have ongoing medical – I have just spent – I’ve been in hospital three times in the last seven weeks. And it’s my health.
[37] Transcript, p 11.
During cross-examination, the Applicant said the processing of claiming compensation, of applying for the aged pension, dealing with Centrelink generally and also the calculations put by it has caused her stress over the years.[38] The Applicant said she owns her current home with her husband and that she is able to meet her current day to day expenses by extreme budgeting. The Applicant said she and her husband’s saving total approximately $58,000 to $59,000 and repaying the second DSP debt of $497 would not cause her to be in severe financial hardship.[39]
[38] Transcript, pp 15 to 16.
[39] Transcript, p 20.
The Applicant said that she does, however, see the fees charged to her by her lawyers as excessive, even though they were set by the scale:[40]
[LTHV]: For the work that was involved and for what was provided, yes they were excessive. For five months’ work, like for being engaged for five months, it wasn’t five months’ work. I provided the previous 12 months of all my correspondence and everything, my submissions to him. Anything that was required, whether it be pay slips, it wasn’t obtained from the employer. It was all obtained from me. And even in that copying and things like that, that ‑ ‑ ‑
MR GAUCI: You didn’t raise any concern with the lawyers, did you, about their fees?‑‑‑
[LTHV]: It was my understanding – well, we had discussions over and after it, that for what had been done. But it was my understanding that was something being charged for by the – being paid for by the insurance company, not something that would be affecting my settlement. It’s that way that I had been unfortunate enough to be injured at work. I don’t even remember crossing Wellington Street to be at a bus stop for my husband to pick me up. I wasn’t afforded very little – when you’ve had concussion, yes I didn’t go to hospital until the Sunday when the blood is pooling in my neck so much. But because of – I even had to get WorkCover to get my employer to pay me the small amount that, for them to honour their obligations, because they expected me to file workers compensation, receive the payment and then they would pay me. And it’s that way I’m trying to meet Centrelink’s obligations and that. And I was accused of pulling them all under a bus because they weren’t meeting their obligations. The insurance company didn’t meet their obligations. But they certainly put, like at the end of it, the lawyer certainly put his hand out for his requirements. It’s like it was lots of it was at my expense. I was encouraged to settle without being well.
[40] Transcript, p 22.
CONSIDERATION

The Tribunal has considered the parties respective positions[41] and makes the following comments and findings.
[41] A1 to A3, R2 and R3.
The Tribunal notes that the Applicant’s lump sum compensation payments falls within definition of ‘compensation’ in subsection 17(2)(c) of the Act.
Was the decision to impose a lump sum preclusion period from 24 December 2022 to 28 April 2023, correct?
The Applicant commenced receiving the DSP from 30 January 2020.[42] The Applicant then suffered an incident at work on 23 April 2021.[43] On 12 January 2023, the insurer advised the Agency that the Applicant was being paid weekly compensation payments from 26 May 2021 to 23 December 2022.[44] On 23 December 2022 the Applicant settled her claim in the sum of $41,159.32 (gross),[45] receiving a total lump sum compensation payment of $30,000.[46]
[42] R1, T26, p 119.
[43] R1, T11, p 52.
[44] R1, T23, pp 99-101.
[45] R1, T23, p 99.
[46] R1, T19, pp 87-89; T21, p 93.
Instruction 4.13.1.30 of the Guide relevantly provides that 'compensation' may affect a compensation recipient's social security income support payment under the compensation provisions of Part 3.14 of the Act.
For a payment to be affected under Part 3.14 of the Act, the social security payment must be a 'compensation affected payment' (CAP). By s17(1) of the Act, the Applicant’s DSP is a CAP. The imposition of a preclusion period is not discretionary. By s 1170(1) of the Act, the periodic amount ceased from 23 December 2022 and any preclusion period commences the next day, being 24 December 2022.
The method for calculating the Applicant’s lump sum preclusion period is set out in ss 1170(1), 1170(4) and 1170(5) of the Act. This being so:
(a)the lump sum compensation payment was made in settlement of a claim related to the Applicant's injury. This amount included a component for future weekly payments.[47] The claim was settled by entering into an agreement under the Workers' Compensation and Injury Management Act 1981 (WA). As such, the compensation part of the Applicant's lump sum compensation payment should be 50% of the payment, being $20,579.66;[48]
(b)the relevant income cut-out amount at the time of receiving the lump sum compensation payment was $1,121.50;[49]
(c)the number of weeks in the Applicant's lump sum preclusion period was 18 weeks (being the compensation of lump sum divided by the income cut-out amount, rounded down to the nearest whole number); and
(d)the Applicant's lump sum preclusion period therefore ended 18 weeks after 23 December 2022, on 28 April 2023.
[47] R1, T19, p 88. This, in the Tribunal’s view, amounts to economic loss and hence engaged the lump sum compensation provision.
[48] R1, T26, p 121. See s 17(3) of the Act.
[49] R1, T26, p 123.
Therefore, the Tribunal finds that the decision to impose a lump sum preclusion period was correct, as was the decision that the preclusion period run for 18 weeks from 24 December 2022 to 28 April 2023.
Does the Applicant have DSP debts?
Section 1169(1)(b) of the Act provides that a CAP is not payable during a lump sum preclusion period if a person receives a lump sum compensation payment. The Applicant received DSP in the amounts of $276.33 (since repaid in full) and $497.42 during the lump sum preclusion period which were paid during a period in which the DSP, being a CAP, was not payable.
Section 1178 of the Act provides that if a person receives a lump sum compensation payment, and is subject to a lump sum preclusion period, the amount of CAP that was paid to the person during the lump sum preclusion period is to be repaid to the Commonwealth.
Therefore, the Tribunal finds that the DSP debts were correctly raised, and the Applicant has DSP debts which are owed to the Commonwealth.
Whether the DSP debts ought to be recovered from the Applicant
Write-off
As to whether the Applicant’s DSP debts may be written-off, s 1236 of the Act sets out the circumstances in which this could occur.
There is no evidence before the Tribunal that any circumstances contemplated by s 1236 of the Act exist such that the exercise of the discretion to write-off the Applicant’s DSP debts would be justified. The Applicant has capacity to repay the debts, one of them having been repaid in full and there are no other grounds available to her on the available evidence.
Administrative error waiver
Section 1237A contains the relevant provisions in relation to administrative error waiver, which occurs in circumstances where a proportion of a debt is solely attributable to an administrative error made by the Commonwealth.
The first DSP debt arose as a result of the Applicant being paid DSP for the period 2 January 2023 to 6 January 2023 (during her lump sum preclusion period).
The second DSP debt arose as a result of conflicting information provided by the Applicant, the insurer and the Applicant’s employer as to the end date for the Applicant's periodic compensation payments.
Both debts were raised as a result of information provided to the Agency (and in the vase of the second DSP debt, as a result of further updated information). The Tribunal is of the view that neither the first DSP debt nor the second DSP debt arose solely because of any administrative error by the Agency.
Special circumstances waiver
Section 1237AAD of the Act addresses the waiver in special circumstances.
There are three elements in s 1237AAD of the Act that must be satisfied before the discretion to waive the debt can be exercised. Although if the Tribunal finds that the three elements in s 1237AAD are satisfied, the Tribunal may still find that it is not appropriate to exercise the discretion to apply a special circumstances waiver.[50]
[50] Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309 at [41]; Secretary, Department of Social Security v Coralie Hales [1998] FCA 219.
The Tribunal notes that the Respondent accepts that the Applicant did not 'knowingly' make a false statement or false representation or fail or omit to comply with a provision of the Act or the Administration Act. The Tribunal agrees that there is no evidence to indicate that the Applicant failed or omitted to comply with any provision of the Act, nor did she knowingly make a false statement or a false representation.[51]
[51] Section 1237AAD(a) of the Act.
However, the Tribunal also finds that there is no evidence of any special circumstances for the purposes of s 1237AAD(b) of the Act that make it desirable to waive, taking into account the Applicant’s circumstances at any given time.
That is, the Applicant’s circumstances as a whole are not sufficiently unusual, uncommon or exceptional so as to make her case markedly different from the usual or ordinary run of the cases and otherwise ‘special,’ including her health or financial position.
Further, the Tribunal considers that legal costs of themselves are not unusual or uncommon and would not constitute special circumstances.[52]
[52] See Muir; Secretary, Department of Social Services [2013] AATA 831 (22 November 2013), where the Tribunal found that the payment of solicitor-client costs in the settlement agreement did not constitute special circumstances. See also Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 271, where the Tribunal found that legal fees were largely unavoidable and were not unusual or uncommon so did not constitute special circumstances.
The Applicant has had the benefit of the DSP to which she was not entitled. One of those overpayments has already been repaid in full. There is no injustice or unfairness in requiring the Applicant to repay the remaining DSP in a reasonable manner.
As there is no evidence to support the proposition that it would be more appropriate to waive the Applicant's DSP debts, s 1237AAD(c) of the Act is not satisfied.
Should all or part of the Applicant's lump sum compensation payment be disregarded due to special circumstances?
Section 1184K of the Act provides that whole or part of a compensation payment may be treated as not having been made if appropriate in the special circumstances of the case. Guidance is provided in Instruction 4.13.4.10 of the Guide and in decisions such as Re Rosemarie Beadle and Director-General of Social Security [1984] AATA 176, Groth v Secretary, Department of Social Security (1995) 40 ALD 541 and Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25.
Instruction 4.13.4.20 of the Guide relevantly provides that:
(a)the state of ill health should be more severe than the majority of Disability Support Pension recipients; and
(b)injury that a person received compensation for cannot generally be regarded as a special circumstance.
The Tribunal heard evidence from the Applicant that her dealings with Centrelink and the fact that here her debt had been changed on a number of occasions had caused her stress. The Applicant also gave evidence that her health was suffering following a number of hospital visits and also from the stress of dealing with Centrelink.
The Tribunal considers that the matters raised by the Applicant as to her health concerns do not constitute special circumstances, as these circumstances were not unusual, uncommon, or exceptional, because:
(a)there is no evidence that the Applicant's health issues are more severe than that of other DSP recipients; and
(b)the Tribunal has previously held that ill health of itself did not amount to special circumstances.[53]
[53] See Beverley Lind v Secretary, Department of Social Services [2014] AATA 680; Kulakov and Secretary, Department of Social Security [1991] AATA 668 (14 August 1991).
The Applicant's lump sum preclusion period was assessed on three separate occasions:
(a)upon receipt of advice from the Applicant regarding her lump sum compensation payment;
(b)following receipt of conflicting information regarding the end date for the Applicant's periodic compensation payments; and
(c)after receiving information regarding the gross lump sum amount received by the Applicant.
There is no evidence before the Tribunal or any suggestion that these assessments were caused by any error made by the Agency. Rather, they were necessitated by the receipt of updated information. Therefore, this could not constitute unusual, uncommon, or exceptional circumstances.
For completeness, the Applicant claimed that she was obliged to claim workers' compensation under ss 1166 and 1167 of the Act. Pursuant to s 1166 of the Act, the Respondent, may, if it is considered reasonable, require a person to take action to claim compensation. There was no notice issued pursuant to s 1166 of the Act to the Applicant. In any event, an exercise of powers under s 1166 of the Act is not a relevant factor in the consideration of s 1184K of the Act.
CONCLUSION
As the Applicant was in receipt of a CAP (being the DSP) at the time of receiving the lump sum compensation payment, the decision to impose a lump sum preclusion period from

24 December 2022 to 28 April 2023 and recover the first DSP debt and second DSP debt from the Applicant was correct.
There are no grounds to write off or waive recovery of the debts.
There are also no special circumstances within the meaning of the Social Security Act to warrant all or parts of that compensation payment from being disregarded and shortening the preclusion period.
Therefore, the Reviewable Decision is affirmed.
DECISION
The Reviewable Decision, being a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 3 October 2023, is affirmed.

72. I certify that the preceding 71 (seventy one) paragraphs are a true copy of the reasons for the decision herein of General Member Gallagher

........[SGD]..............................................................
Associate
Dated: 21 November 2024

Date of hearing: 10 September 2024

Applicant’s Representative: Self-Represented

Respondent’s Representative: Mr Matt Gauci of Hunt & Hunt Lawyers

Date of hearing:	10 September 2024
Applicant’s Representative:	Self-Represented
Respondent’s Representative:	Mr Matt Gauci of Hunt & Hunt Lawyers