Melvaine; Secretary, Department of Employment and Workplace Relations

[2006] AATA 658

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 658

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/222

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

Applicant

And CONRAD JOHN MELVAINE

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date26 July 2006

PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for Disability Support Pension during the overpayment period and the overpayment should be calculated on that basis.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – continuing inability to work – work as a duty employee under Health Services Employees Award – paid under incorrect award – ability to work at award wages considered – duties of employment – was employer a benevolent employer – waiver or write-off consideration – special circumstances not established – decision set aside

Social Security Act 1991 ss 94(1), 94(2), 94(5), 1236, 1237A, 1237AAD

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Hamal and Department of Social Security (1993) 30 ALD 517
Re Beadle and the Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary of Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

26 July 2006   Senior Member L Hastwell   

1.      Conrad Melvaine (the respondent), has been a recipient of Disability Support Pension (DSP) since 12 January 1995.  He suffers from permanent impairment arising from back injuries sustained in a motor vehicle accident in 1986.

2.      While in receipt of DSP he worked for two separate periods of time at Bellara Aged Care Pty Ltd (Bellara Village) as a sleep-over carer.  On 7 February 2005 a delegate of the applicant (the Department) determined that he had been overpaid $10,816 on the basis that he was not qualified to receive DSP between 5 January 2004 and 16 November 2004 as he did not have a continuing inability to work during the relevant period.  The decision was affirmed by an Authorised Review Officer on 18 April 2005.  The delegate and the Authorised Review Officer also formed the opinion that there were no grounds to waive or write-off the debt. 

3.      On 7 July 2005 the SSAT set aside the decision under review and determined that during the relevant period, the respondent remained entitled to receive DSP and that his debt should be re-assessed on that basis.  On 17 August 2005 the Department lodged an application for review to this Tribunal.

legislation

4. Section 94(1) of the Social Security Act 1991 (the Act) sets out the qualification for DSP and provides as follows:

“94(1)  A person is qualified for disability support pension if:

(a)      the person has a physical, intellectual or psychiatric impairment; and

(b)the person’s impairment is of 20 points or more under the Impairment Tables; and

(c)      one of the following applies:

(i)        the person has a continuing inability to work;

(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)      the person has turned 16; and

(e)      the person either:

(i)is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)has 10 years qualifying Australian residence, or has a qualifying residence

exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)       is not an Australian resident; and

(B)       is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

Section 94(2) of the Act provides:

“94(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b)      either:

(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Section 94(5) of the Act defines work in the following terms:

“work means work:

(a)       that is for at least 30 hours per week at award wages or above; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.”

Section 1237A provides for waiver where there is an administrative error in the following terms:

!“237A(1)        Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

Note:   Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

1237A(1A)     Subsection (1) only applies if:

(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.”

5. There can also be waiver in special circumstances as set out in s 1237AAD of the Act in the following terms:

“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 a 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.

6. Section 1236 of the Act allows for write-off of a debt in certain circumstances and provides as follows:

“1236(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a)      the debt is irrecoverable at law; or

(b)      the debtor has no capacity to repay the debt; or

(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)it is not cost effective for the Commonwealth to take action to recover the debt.”

7. It is common ground that the respondent satisfies all the requirements for grant of DSP under s 94 of the Act, save for the requirement in s 94(1)(c)(i) that during the relevant period he had a continuing inability to work.

issues

8.      The issues to be determined by the Tribunal are:

·Did the respondent have a “continuing ability to work”  during the relevant period and therefore had no entitlement to DSP?

·Was he able to work for more than 30 hours per week at award wages or above in work that exists in Australia, even if not within his locally accessible labour market?

·Did an administrative error contribute to some or all of the overpayment; and if so were these payments received in good faith by the respondent? 

·Are there any special circumstances in this case that would justify write-off or waiver of some or all of the debt?

background

9.      From December 2002 to 26 June 2003 the respondent worked at Bellara Village as a sleep-over carer.  He did not declare that income to the Department.  As a result, an overpayment of DSP occurred.  A debt was raised against him in 2005.  He has repaid that debt.

10.     On 26 December 2003 the respondent commenced another period of employment with Bellara Village, working as a sleep-over carer on a full-time basis.  He was paid under Schedule 5 of the Health Services Employees Award as a “duty employee”.  He was underpaid in that Bellara Village is not a non-profit organisation and that particular Schedule is only applicable to employees in a “voluntary non-profit organisation” (Exhibit A3).  He maintained this employment until February 2005.  He worked in excess of 30 hours per week during this time.

11.     The Department asserts that he did not declare his income during this period and a further overpayment of DSP occurred.

12.     A data match was carried out by the Department in October 2004, at the end of the second period that the respondent worked for Bellara Village.  A tax return lodged by him for the 2003 financial year was noted to be inconsistent with Departmental records. 

13.     A letter was sent to the respondent as a result of this data match requesting an explanation.  The respondent contacted the Department on 22 November 2004 and advised that he had notified the Edwardstown office (T11) that he worked at Bellara Village and that he did not understand why this was not on record.  

14.     An overpayment was raised on 7 February 2005.  The overpayment calculation is based on the Department’s assertion that he had no eligibility at all for DSP during the overpayment period which period commenced on 5 January 2004.

the hearing

15.     The Department relied on the T documents and some exhibits which will be referred to where relevant.  The respondent was represented by Ms Riley from the Welfare Rights Centre.

16.     The Department submitted that during the relevant period, being 26 December 2003 until 16 November 2004, the respondent was working for more than 30 hours per week and did not have a “continuing inability to work”.  The Department’s position was that it was immaterial that the respondent was underpaid by his employer during that time and the test for ability to work is simply whether an individual had an ability to work within the definition in the Act during the relevant period.  The Department argued that the test required a consideration of the individual’s particular skills and their ability to gain employment.

17.       The Department submitted that it is not Parliament’s intention that DSP becomes a wage subsidy, and urged the Tribunal to focus on the nature of the work carried out by the respondent while working at Bellara Village as evidence that he was able to work during the overpayment period.  The Department submitted that Bellara Village was not a benevolent employer.

18.     The respondent gave evidence on his own behalf.  His former landlady, Ms Newgrain, also gave evidence.

19.      He recounted that a friend of his was working at Bellara Village and it was through this contact that he had been able to obtain employment.

20.      He first worked at Bellara Village from December 2002 until June 2003.  He then returned for a second period of employment in December 2003 which finished when he resigned that employment in late 2004.  He acknowledged that on both occasions his hours of work were in excess of 45 hours per week.  His evidence was that he ceased his work in late 2004.

21.     The respondent’s role was that of a sleep-over carer.  His responsibility was to supervise and monitor the safety of the nursing home residents during the night.  He was provided with a room with a bed in it and a desk as part of his employment.  Some nights were busy if medical emergencies occurred, or if he had difficult or wandering patients.  Other nights were much easier and he would get quite a lot of sleep or he would study during the quiet hours.  At the time he was undertaking studies to be a chef.

22.     The respondent’s duties, as described by him, were as follows:

·He would check the security of the premises when his shift commenced.  This involved checking external gates and ensuring everything was secure.

·He dealt with any patient incidents during the night.  Sometimes this involved having to manage a medical emergency, make an assessment of the seriousness of a situation, call an ambulance and have the patient ready for conveyance when the ambulance arrived.  He needed to ensure that notes of any incident were written up that night.

·Sometimes a patient fell out of bed or was found wandering in the night.  He would put them back into bed.     

·He must answer any bedside buzzer calls in the night.  This included any emergency calls that may come from the independent living units that were external to the nursing home, but within the perimeter fence.

·He must ensure that all the nursing home residents were in bed and settled for the night.

·In the mornings he prepared for the residents’ breakfast.  Preparation would commence at 6.30am and he would do handover to day staff around 7.30am.  He let the tradesmen in to bring in the milk and bread.  He set the tables for residents. 

23.     Bellara Village has 45 to 50 residents in the high level care section.  There are also a number of independent living units.  Residents in the nursing home section all have buzzers by their beds which they can press at night if they are distressed or ill or require attention for some reason.  A call out may take 5 minutes or an hour depending on the reason for the call.  The independent living units also have call out buttons for emergencies.

24.     When the respondent left Bellara Village he said that he was very tired as he had been working 7 days a week and he found it arduous.  He is now the area manager for Chef Works and managing that job well. 

25.     Around the time that he recommenced working at Bellara Village in late 2003, the respondent moved to Salisbury North where he boarded with a Ms Newgrain.  His evidence was that she was present when he had a conversation with the Department on the telephone and then copied a payslip and sent it to the Department.  This incident occurred in January 2004.  He produced a photocopy of the alleged written communication with the Department (Exhibit R4).  He said that he gave it to Ms Newgrain to post to a post office box address on North Terrace.  He was vague as to why he was sending it to that address.

26.     He acknowledged that he received letters from the Department while working a Bellara Village which set out the income and assets that were being used to calculate his benefits.  Each letter advised him of the requirement to report any income or asset changes.  He said that he did not read the letters all the way through, and they did not alert him to any discrepancy between his actual earnings and the earnings that the Department were using to calculate his benefit entitlement.  He expressed the view that those letters were frequently inaccurate in any event in stating the income figures used by the Department, and that he did not take them very seriously.

27.     The respondent has recently remarried.  His base wage is $650 per week gross.  His wife is self-employed and runs a Copyfax store and she draws $550 per week from her business.  He is residing in a home owned by his wife.  He has a fairly large  personal loan and some significant credit card debts which he is slowly paying off.

28.     Ms Newgrain gave evidence.  She said that she sometimes posted mail for the respondent and that she was present on an occasion when he rang the Department and she was aware that he sent a payslip in.  She said she often posted letters for him, and she believed she had posted that particular letter.  She could not identify Exhibit R4 as being the document she had sent.

29.     The respondent subsequently sent some financial documents to the Tribunal which comprised details of his credit card debt and personal loan.  The personal loan was taken out to consolidate debts which arose during a time when he was only in receipt of Centrelink benefits.  He declined to provide a detailed financial statement.  He did not wish to disclose his wife’s financial position as he did not want her involved in the process.

discussion of the evidence

30.     The Tribunal does not accept as accurate the respondent’s evidence as to the alleged notification to the Department of his wages in January 2004.  It was put to the Tribunal by Ms Riley that the fact that he had not queried the first overpayment raised and had repaid the debt was a sign of his bona fides with respect to his assertion that he did notify income during the second period that he worked at Bellara Village.  There is no record at all on the Departmental file of any notification by the respondent of altered income on either the first or the second occasion of his employment at Bellara Village.  A data match by the Department, shortly before he finished work at Bellara Village on the second occasion gave rise to their awareness that he had ever worked at Bellara Village and received an income.  Both overpayments were raised after the applicant’s employment ceased.

31.     The applicant’s version of the alleged reporting to a North Terrace address by way of letter is inconsistent with his initial claim to the Department that he had advised the Edwardstown office of his employment.

32.     On the day of the hearing the respondent produced a document never previously sighted (Exhibit R4) during the process of conferencing or review.  His evidence was that he had this document in his possession throughout and he could not explain why it had not been produced.  This document purported to be his communication sent to the Department in January 2004.  The Tribunal does not accept the authenticity of that document.

33.     The witness for the respondent, Ms Newgrain, could not identify this document (Exhibit R4) as being the document that she posted to Centrelink.  She was vague in her evidence and, in the Tribunal’s view, she was there to support whatever assertions were made by the respondent, whether truthful or not.  The Tribunal does not accept her evidence that she specifically posted a letter to Centrelink for the respondent in January 2004, which letter was a notification of earnings.

findings of fact

34.     The Tribunal made the following findings of fact based on all the evidence:

·The respondent has been a recipient of DSP since 12 January 1995 as a result of permanent physical disabilities he sustained from a motor vehicle accident in 1986 when he was a member of the Victorian Police Force.

·The respondent has made numerous attempts to get work over the years.  A friend who was working at Bellara Village told him that work may be available there that he could do and he put the respondent’s name forward for a position. 

·The respondent commenced work with Bellara Village on a part-time basis on 13 December 2002.  He remained there until 26 June 2003.  He was employed on a casual basis.  During this period he made no notification of income to Centrelink.  An overpayment was raised and he has since repaid that debt.

·On 26 December 2003 the respondent commenced a second period of employment with Bellara Village.   During that period of employment he was working up to 93 hours per fortnight.  He did not comply with his obligation to notify the Department of his changed circumstances and his income during the second period of employment.

·At all times the respondent was employed as a sleep-over carer.  He was paid as a “duty employee” under the Health Services Employees Award at the rate payable by a non-profit organisation.  It appears that Bellara Village was not a non-profit organisation and was under-paying the respondent.

·The respondent currently has a claim before the Industrial Commission for underpayment of wages.  He anticipates that he will be successful in that claim and there will be an adjustment to the rate that he was paid such that he will receive the gap between the wages he was paid and the correct award wage.

·The respondent commenced studies through Reskill as a chef in January 2004.

·The duties of the respondent’s employment are as set out in paragraph 21.  It was a responsible position that he held.  He was responsible for caring for a 45-50 bed aged care village with additional external independent living units overnight.   

·Because the respondent had some para-medical skills, he was sometimes called on to use those skills in the course of his employment.

·There were times in the night when he was not busy and he slept and studied.  On occasions it was very quiet.  He always had to be alert and on call and ready to attend to emergencies or call outs at short notice during the night.

·At one stage the respondent was working 7 nights a week because the proprietor was having difficulties getting anyone to work there.  He was paid extra time for working on Saturdays and Sundays.

·At the end of 2003 the respondent moved from his address at 5/22 Gover Street, North Adelaide to an address at 6 Horizon Road, Salisbury North, where his landlady was Ms Newgrain.

·The respondent contacted Centrelink over the issue of his application for Mobility Allowance and Pensioner Education Supplement in December 2003 and January 2004.  At no stage during this contact did he advise Centrelink of his earnings from Bellara Village. 

·The respondent received communications from Centrelink on a number of occasions as set out in the T documents during the relevant period, and on each occasion he was advised to notify Centrelink of any change in his circumstances.  He was advised of the income that was being used by Centrelink for the purpose of calculating his entitlement.  At no stage did that income match what he was actually earning during that period at Bellara Village.

·The respondent received those letters and was aware of his reporting obligations.  The respondent did not report his Bellara Village income to Centrelink during the second period of employment.

·At some stage after June 2003 the respondent lodged his taxation return declaring his income from his first period of employment at Bellara Village.

·When contacted by the Department after a data match on 27 October 2004 the respondent said that he had advised the Centrelink office at Edwardstown of income and did not know why it was not on record.  There is nothing to support his claim that he notified Edwardstown.

·The respondent was employed on an arms length basis by Bellara Village and he carried out his duties to their satisfaction.  He voluntarily left his position on each occasion.

·The respondent did not advise Centrelink of his income at all relevant times.

application of the law

35.     The first issue to be determined is whether the respondent has an ongoing “inability to work” as defined in the Act, throughout the period for which the overpayment has been raised.  If he continued to qualify for DSP during this time then the overpayment will reduce.

36. The fact that a person is working while also receiving DSP is not necessarily inconsistent with them still having an ongoing inability to work within the meaning of s 94(1)(c)(i) of the Act.

37. “Work” is specifically defined in s 94(5) of the Act (paragraph 4 supra). It is work for at least 30 hours per week at award wages or above which exists in Australia, even if not within the person’s locally accessible labour market.

38. It is common ground that the respondent commenced a course to retrain as a chef in early 2004, completing certificate 2 in 2004 and certificate 3 in 2005, and at the date of the hearing he was a qualified chef and employed. The central issue in this case is whether he satisfied the terms of s 94(2)(a) of the Act during the overpayment period.

39.     In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444; Drummond J considered the Explanatory Memorandum to the Bill for the particular amendments that gave rise to s 94(2) of the Act. They gave some context to how that provision is to be interpreted. In reference to s 94(2)(a) of the Act the Explanatory Memorandum commented:

“Amendments are made that ensure that a person will not qualify for DSP under paragraph 94(2)(a) if the person is fit for any work (whether skilled or unskilled) that the person could do without the need for preparatory education or training”.

40. Justice Drummond put forward a series of questions a decision-maker should ask when considering the various paragraphs of s 94(2) of the Act: With respect to s 94(2)(a) of the Act he said:

“As to s 94(2)(a) Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?”

41. The respondent was working during the relevant period for in excess of 30 hours per week and he could successfully carry out the duties of that particular employment. Was the work that he was doing work within the meaning of s 94(5) of the Act?

42. Ms Riley submits for two reasons that it was not work within the meaning of s 94(5) of the Act. First she says that it was not work for award wages or above and therefore s 94(5) of the Act cannot apply. In that regard she relies on the fact that the respondent was being paid under a specific award that applies only to “not for profit” organisations, namely Schedule 5 of the Health Services Employees Award.

43.     The Tribunal disagrees with this interpretation.  He was being paid under an award, albeit the wrong award.  Such an interpretation could create a loophole that was not intended by Parliament in that a person could deliberately elect to work below award wage, and claim that they were not working at award rate and therefore had a continued eligibility for DSP. 

44. Section 94(5) of the Act is straightforward in its wording. It requires an objective analysis of whether the particular individual under scrutiny, given their impairment, is capable, given their current skills and experience, of working at award wages or above in the labour market in Australia. The test is not whether they have actually worked at award wages or above during a given period of time.

45. In this case the respondent was working and he carried out the tasks of a job that attracts an award wage. He is currently pursuing Bellara Village for the underpayment of wages and to be paid at the correct award. He is confident that he will be successful. He objectively and subjectively satisfies the requirement of the legislation. He has proven that he could satisfactorily carry out a job for more than 30 hours per week that attracted an award wage. He proved himself capable of doing so for months at a time with no complaint from his employer. The fact that it was a job where his levels of engagement vary from night to night does not alter the fact that it was a position in the open workforce and not a position being provided by a benevolent employer. It was a position of significant responsibility with the safety and wellbeing of a large number of elderly people being his sole responsibility during the night. It was a “real” job that satisfies the definition set out in s 94(5) of the Act. Many people who carry out night-shift work in hospitals or nursing homes would experience the same levels of engagement throughout the night.

46. Ms Riley further submitted that in determining whether the respondent was carrying out work within the meaning of s 94(5) of the Act, the Tribunal must have regard to the usual work carried out by the respondent. It was contended for the respondent that he was a person with wide experience and a high skill level who took a lower paid undemanding job in order to return to the workforce (Exhibit R1, paragraph 29). There is nothing in the legislation to support this contention.

47.     The case of ReHamal and Department of Social Security (1993) 30 ALD 517 was referred to. Ms Riley argued that this was demeaning work relative to what the respondent would do if he did not have the impairment.

48.     The Tribunal does not accept either of these contentions by the respondent.  There is no evidence  that Bellara Village was a benign employer.  It was a normal job that any individual with the appropriate skill level could do. 

49. The job was less demanding than that of a police officer. Nevertheless, s 94(2)(a) of the Act was specifically amended in 1995, and after Hamal’s case, to delete the words “usual work” and to change that reference to “any work”.  The respondent had particular skills which suited him to do the particular sort of work that he was doing at Bellara Village without the need to retrain.  He had security experience from the police force, he was trained to deal with emergencies, and he had some para-medical training.  It was work that ideally suited the respondent given his impairment as it was not particularly physically demanding.  He was able to use some of his skills and maintain that employment.  He found a job in the workforce where he could function within the limits imposed by his incapacity.

50.     The Tribunal finds that the respondent did not have a “continuing inability to work” within the meaning of the legislation during the relevant period. 

51.     The Tribunal then turns to the issue of whether there is any basis on which the debt can be waived or written-off.

52. The Tribunal does not accept that s 1237A of the Act, which provides for waiver where there is administrative error, has any application in this case. The Tribunal is not satisfied, on the balance of probabilities, that the respondent gave notice to the Department of his earnings, and in particular the Tribunal does not accept his evidence with respect to claiming that Exhibit R4 was sent to the Department at any time.

53.      The respondent’s failure to produce Exhibit R4 at a date earlier than the hearing leads the Tribunal to doubt the authenticity of the document particularly as extensive documentation in support of his position had been produced prior to the date of the hearing.  No satisfactory explanation was given as to why this seemingly critical document to the respondent’s case had not previously surfaced.

54. Can s 1237AAD of the Act apply? Although the debt arose because of the respondent’s failure to comply with a provision of the Act, the Tribunal will give him the benefit of the doubt and accept that he did not knowingly fail to comply. Are there therefore special circumstances other than financial hardship alone that would make it desirable to waive some or all of the debt (s 1237AAD(b))?

55.     There is nothing exceptional or unusual in this case.  The respondent’s evidence is that he was effectively negligent in his failure to pay due regard to the various warnings on Departmental letters that he should notify of any change in circumstances. 

56.     To his great credit he has now successfully retrained as a chef and has employment that accommodates his incapacity.  He has remarried.  His future is now much brighter.  He was reluctant to disclose details of his wife’s finances, and although he does have debts, he is servicing those debts and one assumes now has the benefit of a joint income in that his wife also has a source of income through her own business.

57.      In the case of Re Beadle and the Director-General of Social Security (1984) 6 ALD 1, the Tribunal said at page 3:

"…

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.

…”

58.     In Groth v Secretary of Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Federal Court’s decision in Re Beadle, observed that special circumstances:

"… 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. …”

59.     Special circumstances must be considered on a case by case basis.  The Tribunal can see nothing in this case that brings the respondent’s case into the realm of unusual, uncommon or exceptional.  Hardship in itself is not a basis for the exercise of the discretion, and there does not appear to be hardship in this case in any event.

60.     In the circumstances the Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for DSP during the overpayment period and the overpayment should be calculated on that basis.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .............J Coulthard......................................
  Associate

Date of Hearing  9 May 2006
Date of Decision  26 July 2006
Representative for the Applicant               Mr R Kilderry
  Centrelink Legal Services Branch
Representative for the Respondent          Ms M Riley
  Welfare Rights Centre