Marsh and Secretary, Department of Family and Community Services
[2004] AATA 228
•5 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 228
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/392
GENERAL ADMINISTRATIVE DIVISION ) Re BRAD MARSH Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Mr R G Kenny, Member Date5 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd)......................
R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – lump sum compensation payment – lump sum preclusion period – no special circumstances sufficient to treat monies as not having been paid
Social Security Act 1991 ss 17, 1169, 1170, 1184K
Secretary, Department of Social Security v Thompson (1994) 53 FCR 580
Haidar v Secretary, Department of Social Security (1998) 28 AAR 288
Kertland v Secretary, Department of Family and Community Services (1999) 57 ALD 600
Re Ivovic and Director-General of Social Services (1981) 3 ALN 95
Beadle v Director-General of Social Security (1985) 7 ALD 670
Males v Secretary, Department of Family and Community Services (1999) 57 ALD 793
Re Secretary, Department of Social Security and Ellis (1996) 43 ALD 41
Re Lukic and Secretary, Department of Social Security (AAT 6944, 6 May 1991)
Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75
Re Department of Social Security and Turner (AAT 8739, 26 May 1993)
Re Secretary, Department of Social Security and Galea (AAT 9081, 28 October 1993)
Secretary, Department of the Social Security v Smith (1991) 30 FCR 56
Director General of Social Services v Hales (1983) 47 ALR 281
Re Secretary, Department of Social Security and VXY (1993) 30 ALD 681REASONS FOR DECISION
5 March 2004 Mr RG Kenny, Member Application
1. Brad Marsh (the applicant) received income support payments in the form of disability support pension under the Social Security Act 1991 (the Act) following injuries incurred by him in a motor vehicle accident on 11 December 1993. On 11 March 1997, he received a lump sum compensation settlement of $1,120,000 which included a component for economic loss. On 21 April 1997, a Centrelink officer, on behalf of the Secretary, Department of Family and Community Services (the respondent), determined that the applicant was subject to a preclusion period from the date of his injury until 14 September 2012. This meant that he was not able to receive certain payments under the Act, including disability support pension, in that period. As a result, he was required to repay the sum of $16,713.44 which he had received and he was not able to receive further such payments until the end of the preclusion period. That decision was affirmed by an authorised review officer on 17 December 2002 and then by the Social Security Appeals Tribunal on 17 April 2003. On 2 May 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
2. At the hearing, the applicant was not represented. Ms J Dwyer, Advocate from the Advocacy and Administrative Law Team, appeared for the respondent. In evidence were the T documents (T1–T27) (Exhibit 1).
Issues for Determination
3. It is not disputed by the applicant that he received a lump sum compensation settlement of $1,120,000 on 11 March 1997 or that this included a component for economic loss. Nor is it disputed that he was required to repay to Centrelink the sum of $16,713.44 which he had received after his injury by way of disability support pension or that the preclusion period was correctly calculated.
4. The only matter that the applicant raised for the Tribunal’s consideration is whether some part of the compensation payment should be treated as not having been made because of the special circumstances of his situation. In the event that this was done, there would be a reduction in the length of the preclusion period.
Applicant’s Evidence
5. The applicant said that he was living in difficult financial circumstances as a result of the spinal injuries he received in the motor vehicle accident in 1993 which resulted in his being confined to a wheelchair. He said that the only assets of any significance that he had were a car, which had been modified to enable him to utilize hand-controls, and a house. He valued these at approximately $18,000 and $95,000, respectively. He said that he purchased the house in early 2000 and that there have been no further valuations on it since then.
6. The applicant said that he had been made aware at the time when he received his settlement monies that he would not be able to have access to income support payments from the respondent until 2012. He said that most of the settlement monies had been spent on amphetamines, to which he became addicted until 2002, which he purchased, along with marijuana, for himself and others. He said that he lives in his house with a carer who pays rent of $150 per fortnight which is his only income. He said that this is not sufficient to enable him to meet his living costs and that he is only able to support himself through the generosity of his parents who provide financial support to him.
7. The applicant said that he had given some consideration to selling his motor vehicle and purchasing a less expensive model. However, he said that it would cost approximately $1000 to fit hand-controls to any other vehicle that he purchased. He also said that he had given some consideration to selling his house and moving in with his parents but said that this was not a realistic option because their house was small, his brother lives there and both his brother and his father are in poor health.
8. In relation to his current state of health, the applicant said that he is no longer addicted to drugs and has not been diagnosed with any psychiatric condition. He said that he has had considerable difficulty with pressure sores but that these have settled with appropriate wheelchair seating being used. He said that he now rarely attends his medical practitioner because he is, generally, in good health. However, he said that, because of his disability, he has to spend money on catheters and incontinence pads.
9. The applicant said that, in the longer term, he would give consideration to taking up a course of study and perhaps obtain employment but he also said that he had not yet fully explored these options. He said that his financial position was putting significant strain on his parents and friends and that he was having difficulty coping with his situation. He submitted that these factors could be taken into account in deciding to disregard part of the sum that he received in order to reduce the length of the preclusion period.
10. In cross-examination by Ms Dwyer, the applicant was referred to the decision of the SSAT in this matter and to a submission, dated 17 April 2003, which was completed on his behalf by the Welfare Rights Centre for the purposes of the SSAT hearing (T23). He said that the SSAT had correctly detailed his evidence and that the factual content of the submission by the Welfare Rights Centre was correct.
11. In its submission, the Welfare Rights Centre provided the following in relation to the applicant since his accident:
§The applicant returned to school where he completed year 12 in 1995 and commenced a course in business administration at Maryborough TAFE in 1996. This course related to computer studies as well as to bookkeeping and other office duties but, during the year, he lost interest in the course and did not continue with it. He has not undertaken any studies since that time.
§Of the initial settlement amount awarded and after all necessary disbursements had been made, the applicant received the sum of $890,000 of which $750,000 was placed into the account of his financial advisers and $140,000 was deposited into his regular bank account. His financial advisers provided him with income of $3,300 each month. He purchased a “top of the range Commodore” which was modified for use by hand controls and which he still owns. He purchased the house in Maryborough in 2000. From the time of receipt of the settlement until 2002, he continued to make withdrawals from the account of the investment adviser for expenditure on a range of personal items for himself and others and also for drug use. By 2002, the monies had all been spent.
§After the accident, the applicant continued to live with his parents and maintained contact with his girlfriend. In 1996, he began to spend more time in Maryborough with his brother and, in 1997, he began to live with his brother in a rental house. He continued to see his girlfriend and, in late 1997, they decided to move into a house together in Maryborough. Initially, he rented the property which he selected because it was suitable for wheelchair use. He subsequently purchased the house and still owns and lives in it. His relationship with his girlfriend ended in March 1998 at which time he began to involve himself with the use of amphetamines. In that year, he met his future carer, Steve, who also was involved in taking amphetamines and who was about four years older than the applicant. During the period of high amphetamine use after 1998, much damage was done to the interior of the house because of the lifestyle of the applicant and Steve. It was more practical to purchase the house than to carry out repairs to the owner’s satisfaction. The decision to purchase the house was made while he was under the influence of drugs. The house required maintenance in the form of repairs to internal doors, new carpet and repainting.
§The applicant’s drug-taking practice commenced when he returned to high school with the use of marijuana and developed in 1998 with the use of amphetamines. He was spending up to $500 per day on drugs which he continued to use until the end of 2001. The year 2002 was a difficult year for him as he withdrew from drug use. He also experienced difficult personal relationships during these periods including that with his carer, Steve, who was supplied with drugs by the applicant and who stole a sum of approximately $15,000 from him.
12. As to the reason for becoming involved with drugs, the submission reads:
“Brad instructs us that he now feels like he never got over the accident and that doing drugs made him forget about it. He instructs us that the drugs masked having to cope with the loss of his legs but that he now realises it just postpones having to cope with it.”
13. In a document completed by the applicant and annexed to the submission from the Welfare Rights Centre, he gave a summary of the expenditure that he had incurred in the period after the receipt of settlement monies. These included unsuccessful motor vehicle restoration projects resulting in financial losses; maintenance, repairs and operating costs associated with his own vehicle in excess of $90,000; costs associated with his house in the form of rent, regular outgoings in the form of rates, purchases of furniture and appliances and conducting repairs in the order of $50,000; costs of personal items for himself and gifts for family and friends as well as living expenses in the order of $150,000; and the purchase of drugs in excess of $700,000.
14. The submission from the Welfare Rights Centre referred to the applicant having experienced significant problems for some years in the form of pressure sores complicated by infection and requiring hospitalization. This was noted in a medical report, dated 9 November 2000, by Dr. Peter Dryburgh, from Maryborough Base Hospital (T27/87), who also made reference to his drug abuse problem. Reference to treatment for pressure sores and addiction to “speed” is also made in clinical notes prepared in 2000 (T27/78).
15. A medical report, dated 20 November 2002, was prepared by Dr. Gerald Feeney from the Alcohol And Drug Assessment Unit at Princess Alexandra Hospital which reads:
“This is written to confirm that Mr. Marsh was seen by this Unit while an inpatient in the Spinal Injuries during his admission November 2001 – February 2002.
He reported he had been using amphetamines prior to this admission. Consequently he was offered the amphetamines abstinence program and was seen as an inpatient by Janine Lonsdale Visiting Clinical Psychologist.
The occasions on which Mr. Marsh was seen are as below:
28 November 2001, 5 December 2001, 14 December 2001, 24 December 2001, 9 January 2002 and 23 January 2002”
16. On 4 March 2003, an occupational therapy report was completed by Kalaki Swinton, occupational therapist with Community Health Services in the Fraser Coast and Health Service District. In part, it reads:
“Brad was involved in a motor vehicle accident in 1993, as a result of which he now suffers from T11 paraplegia. Since his accident this has been complicated by bilateral trochanteric pressure sores and the subsequent infection of these. He has had multiple admissions to Maryborough Base Hospital from 1999-2001 for pressure sore management, and was admitted to the spinal unit at the PAH, Brisbane for surgical management. He continues to be at risk of developing pressure areas.
His condition has been complicated over this period due to a serious amphetamine abuse problem, as noted in his medical chart at Maryborough Base Hospital and his client record at Fraser Coast Community Health. This has impacted significantly, contributing to the adequate self-care and lifestyle problems.”
Submission on behalf of the Applicant
17. Welfare Rights submitted that the remainder of the preclusion period should be waived in accordance with the discretion under section 1184K of the Act because of the special circumstances that the applicant is in. Reliance was placed on the decision in Secretary, Department of Social Securityv Thompson (1994) 53 FCR 580 and, in particular, the submission reads:
“a. We submit to the Tribunal that Brad has suffered from an extreme injury at a very young age which has severely impacted on his mental health.
b. The combination of the injury and his loss, his inability to come to terms with the disastrous consequences, the impact on his psychological health resulting in social isolation and the development of a drug addiction over several years has resulted in his present situation.
c. We submit to the Tribunal that Brad has suffered from an extreme drug addiction which has had an enormously debilitating effect on his life. It isolated him from all meaningful social connections, caused severe medical complications and distorted his decision-making ability to the grossest extreme.
d. We submit that the underlying cause of this addiction and indeed the heart of this matter lies in the trauma and loss experienced by Brad as a result of the loss of the use of his legs. We submit that Brad never adjusted to the new reality of this life and instead spiralled into a drug addiction that allowed him to temporarily hide from this reality and mask his psychological pain. This pattern of drug use was evidenced immediately after the accident when he began using marijuana before school in order to be able to face his peers each day.
e. Prior to the accident Brad was a carefree and athletic 16-year-old. He was robbed of these attributes while still developing his life skills. He came from a working-class family and had no experience dealing with large sums of money, nor did his parents. He received no financial counselling prior to receiving the lump sum payment.
f. Further, Brad never received counselling which addressed the underlying issue of his loss and trauma.
g. The drug addiction plus his lack of mobility led to a social isolation which left him in a situation with a carer who was similarly addicted and as a result took advantage of his ability to buy large quantities of drugs and eventually stole from him and destroyed his property.
h. We also submit that a significant part of Brad’s drug induced behaviour involved going on shopping sprees under the influence of speed. This pattern was so extreme it extended to purchasing a home while under the influence of drugs.
i. In regard to Brad’s remaining assets we submitted that it would be highly unreasonable to expect him to sell his car, given his feelings of complete reliance on it for mobility. Further that it could create a situation that was dangerously isolating for him.
j. In regard to Brad’s house we submit that his circumstances are very similar to that contained in Re Turner (1993):
The proceeds of such a sale would not allow them to buy a cheaper home and live off the balance. Their current home is already towards the bottom end of the market. They would then have to find alternative rental accommodation. The Tribunal believes that such a move would be disastrous for the family which is currently at the end of its tether emotionally. It would inevitably mean that the family would end up in public housing at Government expense. Mr. Turner’s chances of rehabilitation and getting back into the workforce would be put in serious jeopardy..
Indeed this house has even greater significance in this case due to its wheelchair suitability and the fact that if he was forced to sell the house it is improbable that he would find one similarly suitable to his needs either to rent or buy without having the money to modify it accordingly.
k. We submit that without a source of income and no savings, Brad currently has no training or employment prospects.
l. Further, we submit that Brad is able for the first time since the accident to contemplate a future. Given he has reached this point not invoking the discretion contained in section 1184K could produce significantly adverse consequences. Brad has reached a point in time that it would be contrary to the public interest to jeopardize his progress. There would be a serious risk in any further isolation and anxiety for Brad that would not be in anyone’s interests because of the consequences that it may well bring.”
Respondent’s Submission
18. Ms Dwyer said that, in applying the formula used to calculate the preclusion period, the authorised review officer had described one of the factors as the “income cut-out amount" instead of “average weekly earnings”.. She submitted that the latter was the correct description at the time when the applicant's compensation monies were paid but that, despite that difference in description, the correct amount was used in the calculation and the formula was applied correctly to calculate the length of the preclusion period.
19. Ms Dwyer submitted that, while there was a discretion under the Act to enable some part of a lump sum to be treated as if it hadn't been received, it was necessary that this was not done in a manner which would defeat the purpose of the Act which was to ensure that all persons, such as the applicant, who receive a lump sum compensation payment should not also be able to enjoy access to Social Security benefits at taxpayers’ expense. She conceded that the applicant was in difficult circumstances but referred to the assets that he had retained from purchases that he made from his compensation payment. In particular, she referred to his house and car. She submitted that it was inappropriate for him to retain those assets and to be financed from the public purse. She submitted that there was no circumstance of ill health, apart from the disability for which he was compensated, affecting the applicant and submitted that there was no obvious reason why he was not in a position where he could attempt to undertake some retraining or employment.
20. Ms Dwyer submitted that the applicant's situation was not one which gave rise to special circumstances such that any component of his lump-sum compensation payment should be treated as not having been made to him.
Consideration
21. It is not disputed and I am satisfied that the applicant received a lump sum compensation settlement of $1,120,000 on 11 March 1997 and that this included a component for economic loss. As a result of the amount and form of this lump sum payment, the respondent was obliged to calculate a preclusion period utilising sections 17, 1169 and 1170 of the Act. The application of the formula in those provisions is detailed in the reasons published by the authorised review officer and I am satisfied that the proper application of that formula, in the manner submitted by Ms Dwyer, leads to the preclusion period calculated initially and confirmed by the Social Security Appeals Tribunal as being from 11 December 1993 until 14 September 2012. This was not disputed by the applicant. Nor is it disputed and, again, I am satisfied that he was required to repay to Centrelink the sum of $16,713.44 which equates to the amount of disability support pension paid to him in the preclusion period.
22. I accept the submission of Ms Dwyer in relation to the purpose of the legislative scheme under the Act relating to the imposition of a preclusion period. In Haidar v Secretary, Department of Social Security (1998) 28 AAR 288, Hill J referred to its purpose as being the avoidance of a situation where a claimant is entitled both to social security benefits and to compensation benefits in the nature of income through a lump sum payment. However, there is provision for part of a compensation payment to be disregarded where sub-section 1184K(1) of the Act applies. It reads:
“For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.”
23. In Haidar v Secretary, Department of Social Security (above), Hill J considered the discretion in sub-section 1184(1) of the Act, which was identical to sub-section 1184K(1) as it now reads, and said (at 297):
“However, the legislature was conscious of the possible harshness of a rule structured in an arbitrary way. Section 1184, therefore, provided the means whereby the Secretary or, in the event ultimately of an appeal to the Administrative Appeals Tribunal, that Tribunal, could alleviate the harshness of the statutory provision in an appropriate case but only where there were special circumstances. The question of what constitutes special circumstances has been the subject of a number of decisions of this Court. It suffices here to say no more than that something is required which would take the matter out of the usual ordinary case: Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J, Secretary Department of Social Security v Ellis (1997) 46 ALD 1 at 5 per Carr J.”
24. That approach was adopted by Merkel J In Kertland v Secretary, Department of Family and Community Services(1999) 57 ALD 600 at 608. There, His Honour referred to several decisions in relation to the meaning of the term “special circumstances” including Re Ivovic and Director-General of Social Services (1981) 3 ALN 95 where the Tribunal had stated that use of the word "special" is intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case; and Beadle v Director-General of Social Security (1985) 60 ALR 225 where the Full Federal Court observed (at 228) that the phrase "special circumstances", although lacking precision, is sufficiently understood so as "not to require judicial gloss" and also that special circumstances would usually include events that rendered the operation of the statute in a particular case "unfair or inappropriate".
25. In Males v Secretary, Department of Family and Community Services (1999) 57 ALD 793, the Tribunal commented that the decision of Beadle (above) continues to be the most useful starting point in considering the concept of “special circumstances” noting:
“that the Full Federal Court acknowledged that circumstances need not be unique to be "special" but "they must have a particular quality of unusualness that permits them to be described as special". The court also said that the word "special" in its context "looks to circumstances which are unusual, uncommon or exceptional" and whether those circumstances exist will be dependent upon the context where a determination needs to be made as to whether the circumstances are different from "the usual run of cases".
26. Much of the material relied on by the applicant is contained in the submission prepared by Welfare Rights for the hearing in the Social Security Appeals Tribunal. However, as noted above, the factual content of that submission was accepted as correct by the applicant and no challenge was made to that content by the respondent.
27. In evidence was a statement, dated 12 June 2002, from the applicant’s former financial adviser indicating that he no longer has any funds in managed investments (T10). Also in evidence were copies of the applicant’s banking records which, again, revealed that he has no funds to his credit (T11). The evidence given by or on behalf of the applicant is that the only income that he receives is the rent paid by his present carer in the amount of $150 per fortnight. I accept the applicant’s evidence and am satisfied that this is not sufficient, without financial contribution from other sources such as his parents, for him to be able to meet, on a regular basis, his financial commitments which include the costs associated with his house and his car. In that sense, I am satisfied that he is living in difficult financial circumstances.
28. Where a person’s financial circumstances can be characterised as going beyond being straitened and are truly exceptional, there is authority for special circumstances to be found: for example, see Re Secretary, Department of Social Security and Ellis (1996) 43 ALD 41. In determining whether a person’s financial circumstances reach that level, regard must be had to the assets that are available to the person. In this case, the applicant owns an unencumbered house in Maryborough and also has his own motor vehicle. The unchallenged evidence as to the valuation of those assets is that given by the applicant and he described the house as being valued at $95,000 but he also said that no valuation had been conducted since 2000. While I am not in a position to make findings in relation to the market value of the house, I have taken notice of the increases in the values of real estate in south-east Queensland since that time. He described the car as being valued at $18,000. Given the availability of those assets, even if the house is valued at $95,000, the overall financial circumstances of the applicant can not be described as being beyond straitened or truly exceptional. However, as noted above, the submission on behalf of the applicant was that these assets should not be taken into account because of their particular suitability to him due to his reliance upon them and their compatibility with wheelchair usage.
29. Cases have arisen in which special circumstances have been found where a person, who has acquired an asset, even the family home, with compensation monies, is required, either actually or notionally, to sell such an asset in order to alleviate financial difficulty: see Re Lukic and Secretary, Department of Social Security (AAT 6944, 6 May 1991), Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464. In other cases, it has been found not to be reasonable for such a process to be undertaken: see Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75, Re Department of Social Security and Turner (AAT 8739, 26 May 1993) and Re Secretary, Department of Social Security and Galea (AAT 9081, 28 October 1993). Clearly, each case will turn on its own facts and a significant feature in the applicant’s case is that his house is suitable for wheelchair use and his car has been modified for operation by hand controls. However, in his evidence, the applicant said that he has contemplated selling his car and replacing it with a less expensive model. I consider that this would not be unreasonable and I am also of that opinion in respect of the house which, if sold, will furnish the applicant with a significant capital sum such as to enable him to provide for himself for a significant period. This would mean that he might have to obtain rental accommodation and there was no evidence led at the hearing in respect of the availability of accommodation in premises suitable for occupation by a person in a wheelchair. Nevertheless, it was the applicant’s evidence that his house was originally rented by him and chosen because of its suitability to his purposes. I am satisfied that the mere fact that the house is suited to wheelchair use does not make it immune from being realized in order to provide the applicant with a capital sum to alleviate his financial difficulties.
30. In so determining, I have noted the other submissions made by the Welfare Rights Centre on the applicant’s behalf. These included the age of the applicant when he had his accident; the lack of financial or other counselling which he received; the social isolation and psychological detriment that he suffered; his reliance upon drugs to assist him through these difficult times and their influence on him at the time of the purchase of his house; problems that he had with personal relationships; and his unsuitability to retraining or obtaining employment. In addition, I have also given consideration to the health problems that the applicant has experienced since his initial accident.
31. There is no evidence before the Tribunal in relation to the nature of any advice that was given to the applicant in relation to the management of his settlement fund. However, the applicant said that he had been made aware that no social security payments would be paid to him for the duration of the preclusion period. In relation to the influence of drugs when the applicant purchased his house, this can only be described as a beneficial outcome because it enabled at least some of his settlement monies to be preserved. In relation to his relationship with his carer, there is evidence that the applicant provided him with financial support for his drug-taking but there is no material before the Tribunal which would point to this being the result of coercion on the part of the carer.
32. In Secretary, Department of the Social Security v Thompson (1994) 53 FCR 580, the Federal Court endorsed the view adopted by the Tribunal that, in deciding whether or not a preclusion period should be shortened, consideration could be given to general factors such as the mental health and social conditioning of an individual (at 586). A significant aspect of Thompson’s case was the psychiatric state of the claimant and, there, a psychiatric report was provided. This was supportive of him and demonstrated evidence of post traumatic stress disorder, psychological factors affecting physical injury, mixed personality disorder with strongly avoidant traits and a tendency toward mixed substance abuse. In the applicant’s case, there is no such psychiatric material although I accept that he was suffering from drug abuse prior to 2002, as documented in the clinical records and reports from the Maryborough Base Hospital, and I am also satisfied that he is not now dependent upon amphetamines. However, as I read Thompson’s case, an important feature which enabled the Tribunal to treat some of the compensation monies as not having been received was that there were significant financial losses because of imprudent or unlucky investments. Those are not the circumstances of the applicant. Here, the expenditure of the major proportion of the settlement monies by the applicant was for the purchase of drugs rather than in any failed business venture.
33. Since his accident, the applicant has suffered from significant effects of pressure sores which were referred to by the occupational therapist as requiring multiple admissions to hospital for 1999 to 2001 and also surgical management at Princess Alexandra hospital in Brisbane. I am satisfied that he does not now suffer from this condition although there is a risk of the further development of pressure areas. The evidence is that this problem is related to the need for him to occupy a seated position in his wheelchair and, clearly, that is a consequence of the condition for which he received compensation. In Secretary, Department of the Social Security v Smith (1991) 30 FCR 56, special circumstances were found where the claimant has been incapacitated for a condition of hepatitis that was unrelated to the work-related injury in that case. However, I am satisfied that, in this case, there is a clear nexus between the applicant’s pressure sores and his compensated condition.
34. The Welfare Rights Centre submitted that the applicant was not in a position where he was able to be retrained or to gain employment. The evidence of the applicant is that he has completed year 12 at high school . He is no longer suffering from health problems apart from the effects of his initial injury. Moreover, his evidence was that he had not fully explored employment or retraining options and I cannot be satisfied that he would be unable to engage in some form of retraining or in some form of employment in the Maryborough community.
35. The applicant has a substantial asset in the form of an unencumbered house which was purchased with funds provided to him from the settlement monies. In the event that this were to be sold, I am satisfied that he would be in a position not significantly different from that of many other recipients of social security benefits who, as noted in Director-General of Social Services v Hales(1983) 47 ALR 281 at 321, are not uncommonly in that situation: see also Re Secretary, Department of Social Security and VXY (1993) 30 ALD 681 at 692. Where the discretion in sub-section 1184K(1) of the Act is exercised, there is an obvious double benefit to a person in the applicant’s position. The provision requires special circumstances before that outcome can be achieved. In this case, I am satisfied that the matters, taken individually or in combination, raised by the Welfare Rights Centre, do not constitute circumstances that are unusual, uncommon or exceptional such that it would be unfair or inappropriate to give effect to the statutory scheme which imposed the preclusion period and I find that there are no special circumstances such as would justify the exercise of the discretion under sub-section 1184K(1) of the Act to treat some part of the compensation sum as not having been paid.
36. The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Denise Burton
Administrative AssistantDate of Hearing 18 February 2004
Date of Decision 5 March 2004The Applicant Appeared in Person
For the Respondent Ms J Dwyer, Departmental Advocate
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