Mavrikis and Secretary, Department of Employment and Workplace Relations

[2006] AATA 696

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 696

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/1557   

GENERAL ADMINISTRATIVE DIVISION		)
Re		GEORGE MAVRIKIS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N. Isenberg, Member

Date11 August 2006

PlaceSydney

Decision The decision under review is affirmed.

[SGD] Ms N Isenberg
  Member

CATCHWORDS

SOCIAL SECURITY –– injury at work – paid newstart allowance - paid periodic compensation payments – debt arose – no special circumstances – decision affirmed

Social Security Act 1991 – sections 17, 23, 1173, 1237AAD, 1184K

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Groth and Secretary, Department of Social Security (1995) 37 ALD 797

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Re McAliney and Secretary, Department of Family and Community Services (2005) 83 ALD 316

Re Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050

REASONS FOR DECISION

11 August 2006 Ms N. Isenberg, Member

DECISION UNDER REVIEW

1.      The decision under review was the decision of the Respondent, the Secretary, Department of Employment and Workplace Relations ("Centrelink") dated 8 August 2005 as affirmed by an Authorised Review Officer (“ARO”) on 13 October 2005, and the Social Security Appeals Tribunal (“the SSAT") on 10 November 2005 to raise and recover a debt of $24,114.39 for the period from 14 March 2003 to 28 July 2005.

BACKGROUND

2.The following facts were not in dispute:

·On 25 July 1995, Mr Mavrikis injured his left leg at work.

·Mr Mavrikis was granted newstart allowance from 14 March 2003.

·On 14 July 2005, the Worker’s Compensation Commission awarded Mr Mavrikis weekly compensation at the rate of $200.00 from 7 February 2003 (T6/24-25).

·On 8 August 2005, Centrelink was informed of the award by Allianz Australia Workers’ Compensation (NSW) Limited (“Allianz”), the compensation insurer.  A compensation charge in the amount of $24,114.39 was calculated for the period 7 February 2003 to 28 July 2005 (T7/26 and T8/28-36).

·On 18 August 2005, $24,114.39 was repaid by Allianz to Centrelink.

ISSUE BEFORE THE TRIBUNAL

3.      Whether the debt of $24,114.39 for the period 14 March 2003 to 28 July 2005 should be recovered.

LEGISLATION

4. Sections 17 and 23 of the Social Security Act 1991 (“the Act”) provide that newstart allowance is a “compensation affected payment”.

5. Part 3.14 of the Act operates in certain circumstances to reduce, render not payable, or require the repayment of a person’s compensation affected payment where a person has received compensation from personal injury.

6. Section 1173 of the Act, coupled with the above sections, has the effect that a person’s rate of newstart allowance is reduced by the rate of their periodic compensation payments on a dollar for dollar basis. In practical terms, newstart allowance could be seen as an advance on compensation payments, to be repaid on receipt of periodic compensation payments.

DISCUSSION OF THE EVIDENCE

7.      In addition to the documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), Mr Mavrikis provided a bundle of documents, which he marked Exhibits 1-23, and some other documents.

8.      There was no dispute that Centrelink had provided Mr Mavrikis with newstart allowance during the relevant period and that, following receipt of his compensation payments, Centrelink was entitled to seek recovery of that money.

9.      Mr Mavrikis had written to the Minister for Human Services, the Hon. Joe Hockey on 9 September 2005 where he sought, effectively, a discount, because Centrelink had been able to recover the money immediately from the insurer, and therefore did not have the expense and delay of pursuing Mr Mavrikis for it.

10.     While Mr Mavrikis said he did not understand the money to be an ‘advance against compensation’, he said he ‘totally respected the law that it should have to be paid back’. He was, however, contending that the money would assist in his rehabilitation, and that his circumstances are special. He provided a detailed statement (Exhibit 22).

11.     The accident occurred in 1995, and Mr Mavrikis had several months off work.  By 2000, however, he was earning over $1100 per week, until in 2003 when he had to stop work due to his knee.  He undertook a design course, hoping to move into that industry, instead of the building industry.  Despite successfully completing the course and undertaking work experience with some high profile designers, he has been unable to secure a job.

12.     Mr Mavrikis used to play sports but has been unable to do so since the accident.  His knee flares up, especially in winter.  He feels his overall health and fitness are deteriorating.  Mr Mavrikis referred me to the available medical evidence in relation to his knee.  It appears his condition is deteriorating and is subject to degenerative arthritis.  His teeth have recently cost him $5500.  Further extensive work is required but he has no health insurance as he cannot afford it.

13.     Financially, Mr Mavrikis has no assets.  He sold his car when he lost his licence.  He lives with his parents, who are elderly and in poor health.  They are pensioners, and although they own their home unencumbered, there is little money coming into the household.  He feels he is not pulling his weight.  He assists his mother in the care of his father, who has been incapacitated by a stroke.

14.     Mr Mavrikis has been assisted financially by his brothers, to whom he owes about $5000.  He has an ongoing debt to the State Debt Recovery Office of about $2,400.

15.     Mr Mavrikis’ only income is that from Allianz, $372 net per fortnight.  He said he cannot afford to take public transport to interviews, or to swimming for rehabilitation purposes.  He cannot afford to buy new clothes.  He needs a phone line to run his fax, and to access the internet.  He said he would have done a more detailed submission but could not afford the ink for his printer.

16.     Mr Mavrikis said that he is humiliated by his poor financial position and physical restrictions, and wants to be ‘normal’, having a job, a home, and his own family.

ARE THERE SPECIAL CIRCUMSTANCES WHY THE DEBT SHOULD BE WAIVED?

17. Section 1237AAD of the Act allows for waiver of debts in what is termed “special circumstances”:

“1237AAD Waiver in special circumstances

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)       the debt did not result wholly or partly from the debtor or another person    knowingly:

(i)        making a false statement or false representation; or

(ii)       failing or omitting to comply with a provision of this Act or the 1947   Act; and

(b)       there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)       it is more appropriate to waive than to write off the debt or part of the debt.”

18.Similarly, section 1184K of the Act provides:

“1184K  Secretary may disregard some payments

(1)       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.

…”

19.     The term “special circumstances” has been examined by the Tribunal and the Federal Court.  In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3, the Tribunal stated:

“An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.  Whether circumstances answer any of these descriptions must depend on the context in which they occur.  For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases.  This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”

20.     In Re Groth and Secretary, Department of Social Security (1995) 37 ALD 797, the Tribunal said (at 798):

“… there will be special circumstances if the circumstances are such that it is unreasonable, unjust or inappropriate not to treat whole or part of a compensation payment as not having been made...".

On appeal, Kiefel J observed in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545:

"... it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary".

21.     I was referred to Re McAliney and Secretary, Department of Family and Community Services (2005) 83 ALD 316 where Mr McAliney similarly sought to have some of his periodic workers’ compensation payment disregarded. In that decision, the Tribunal did not find that Mr McAliney’s circumstances constituted special circumstances.

22.     Mr Mavrikis referred me to Re Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050 where special circumstances were found.There the applicant had deteriorating health and was unable to find work, had not been reckless in his spending and had purchased a modest house.  He had paid high legal costs in the settlement of his workers’ compensation claim.

23.     It is well established that each case is to be determined individually.  Very few cases would be ‘on all fours’.  Both Barrington and McAliney were of limited assistance to me in my consideration.

24.     There is no dispute that Mr Mavrikis’ financial circumstances are straitened.  However, it cannot be said that he is significantly more disadvantaged than others who are solely dependent on their compensation payments.  His debts are not unusual or uncommon for persons of limited income.

25.     I do not accept that the care Mr Mavrikis provides to his parents to be a special circumstance.  I also do not accept that the direct payment by the insurer of his compensation resulted in any unfairness, or that that process entitles Mr Mavrikis to a ‘discount’.

26.     Mr Mavrikis’ position is no different from other recipients of compensation affected payments.

27.     I accept that Mr Mavrikis finds his present circumstances difficult, however I find that the circumstances of this matter are not special in that they are "unusual, uncommon or exceptional". Neither can it be said that an unfair, unintended or unjust outcome has resulted. I therefore find that Mr Mavrikis’ circumstances are not special and the discretion in sections 1184K or 1237AAD of the Act should not be exercised.

28.     I note that in the course of the hearing Ms Mantaring drew Mr Mavrikis’ attention to benefits associated with newstart allowance, carer’s pension (and allowance) and disability support pension.  He may have some entitlement to Centrelink assistance in relation to one or more of these benefits.  That, however, entirely depends on whether he chooses to make an application, and whether he meets the relevant statutory requirements.

DECISION

29.     Accordingly, the decision under review is affirmed.

I certify that the 29 preceding paragraphs are a true copy of the decision and reasons for decision of Ms N. Isenberg, Member:

Signed:         A. Garcia       

Associate

Date of hearing  31 July 2006

Date of decision  11 August 2006

Representative of the Applicant:                self represented      

Advocate for the Respondent:                   Ms S. Mantaring