Muir and Secretary, Department of Family and Community Services

[2005] AATA 895

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 895

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/390

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARK MUIR

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor G Barton, Member

Date15 September 2005

PlacePerth

Decision The Tribunal affirms the decisions under review.

.............(sgd G Barton)...................

Member

CATCHWORDS

Social Security – injury at work – compensation payment – compensation affected social security payments – lump sum preclusion period – treating whole or part of compensation payments as not having been made – special circumstances – financial hardship – ill health

Social Security Act 1991 s 1184K(1)

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

Re Ivovic and Director-General of Social Security (1981) 3 ALN N95

Re Green and SDSS (1990) 21 ALD 772

SDSS v Rodgers (1992) 26 ALD 235

REASONS FOR DECISION

15 September 2005 Associate Professor G Barton, Member

1.      The applicant, Mr Mark William Muir, suffered a back injury at work in November 1999 and has not worked since his injury.  He received periodical worker’s compensation payments until 11 September 2002 when his claim was settled by consent in a lump sum amount of $340,000, clear of worker’s compensation payments made to him prior to settlement (‘the compensation payment’) (T8).  A net amount of $269,833.25 was credited to the applicant’s bank account on 21 November 2002.

2.      In a letter of 23 October 2002, a delegate of the respondent (‘the original decision maker or ODM’) informed the applicant that he was precluded from receiving compensation affected social security payments from 12 September 2002 to 5 March 2008 (‘the lump sum preclusion period’) (T7).

3.      By 30 September 2003 the applicant’s bank account balance reflected a credit of $4.01 and went into the red shortly thereafter on account of bank fees and charges.  The applicant also held a National ‘flexidirect’ bank account to which, on occasions, he transferred funds.  The balance in this account was exhausted by 1 April 2004.

4.      On 14 October 2003 the applicant lodged a claim for disability support pension which was rejected on account of the lump sum preclusion period.

5.      On 26 November 2003 the applicant applied to the respondent for a review of the lump sum preclusion period on the grounds that he was destitute, unemployable and in fear that he would not be able to afford his medication (T11).

6.      On 10 December 2003 the ODM affirmed that the lump sum preclusion period was correctly calculated in terms of the relevant provisions of the Social Security Act 1991 (‘the Act’), a fact not disputed at the hearing, and that the applicant’s circumstances did not warrant reducing it (T12).  This decision was affirmed by an authorised review officer on 8 April 2004 and by the Social Security Appeals Tribunal (‘SSAT’) on 13 October 2004 in the decision under review.

7.      The applicant was self represented and he gave evidence.

8. Mr Paul Maishman represented the respondent. Documents T1 to T16 were before the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. By consent of the parties Mr Maishman provided the Tribunal with copies of the following documents after the hearing: an account balance summary starting 20 November 2002 and ending 21 April 2004 for a National flexidirect bank account at the Capital Office, Perth of the National Australia Bank Ltd in the name of Mr M W Muir; an account balance summary starting 20 November 2002 and ending 8 December 2003 for a National Cash Management bank account at the Capital Office, Perth of the National Australia Bank Ltd in the name of Mr M W Muir; a letter dated 5 October 2004 to the SSAT from the Welfare Rights Advocate of the Sussex Street Community Law Service Inc (‘the Service’) setting out the submissions to be made by the Service on the applicant’s behalf at the hearing before the SSAT on 13 October 2004; a letter from the applicant’s doctor to the respondent of 5 June 2004 and a letter of the same date referring the applicant to the Psychiatry Department of the Royal Perth Hospital.  The respondent filed a statement of facts and contentions.

9. By s 1184K(1) of the Act, the respondent may effectively reduce the lump sum preclusion period by treating the whole or a part of the compensation payment as not having been made if the respondent “thinks it is appropriate to do so in the special circumstances of the case.”

10.     The Tribunal finds the following relevant circumstances of the applicant’s case based on his evidence, tested by the respondent, and on the documents lodged with the Tribunal.

11.     The applicant worked as a general labourer.  He is unmarried and has no dependants.

12.     Prior to his injury and when he was employed, the applicant maintained himself on his wages despite his propensity to gamble and consume alcohol.  He lived in rented accommodation and did not get himself into debt.

13.     The applicant was injured in Sydney.  He went to Sydney in 1999 to avail himself of the work opportunities that arose there in connection with the 2000 Olympic Games.  Some seven to eight months after he was injured he returned to Perth and took up residence in a boarding house.

14.     The applicant attended the Perth Medical Centre and is under the care of Dr Rachman Mitchell who diagnosed that he suffers from a chronic pain syndrome with depression and prescribes daily medication.  Following blood tests Dr Mitchell did express concern about the applicant’s consumption of alcohol.

15.     The periodic worker’s compensation payments to the applicant were approximately $1,000 per month of which he spent about $500 on living expenses and the balance on alcohol and gambling.

16.     When the applicant received the compensation payment he deposited it in a bank account and, to use his words at the hearing “proceeded to demolish - gamble it, drink it, give it away”.  He rented accommodation, bought a car, furniture, household appliances and commenced withdrawing capital in amounts of $500 for gambling and alcohol.  This pattern of withdrawals is reflected in the account balance summaries referred to in para 8 of these reasons.

17.     The applicant has sold what assets he had and is now penniless and homeless.  He relies on various charities for his sustenance.

18. The phrase ‘special circumstances’ is not defined for the purposes of s 1184K(1) of the Act. The following comments of Toohey J in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 provide general guidance as to its purport:

“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.  That 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.”

19.     The word ‘special’ allows the decision maker the fullest opportunity to consider the particular circumstances of each case to establish whether they justify making an exception and whether such exception will achieve or frustrate the purpose of the legislation in question; Re Ivovic and Director-General of Social Services (1981) 3 ALN N95 citing Ex parte Bucknell (1936) 56 CLR 221 at 224 and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.

20. Broadly stated, the factors to be considered in the exercise of the discretion in s 1184K(1) of the Act in this matter are the applicant’s health and financial position including the manner in which his financial predicament arose; Re Green and SDSS (1990) 21 ALD 772.

21. After careful consideration of all the evidence, the Tribunal finds that there are no unusual, uncommon or exceptional circumstances in the applicant’s case in relation to this health and his finances that would make it appropriate to treat all or some of the compensation payment as not having been made for the purpose of the Act.

22.     The evidence does not reveal any pre- or post-injury medical condition that warrants describing the applicant’s circumstances as special.  Prior to his injury the applicant managed his personal affairs adequately and although he suffered pain and depression since his injury there was no medical or other evidence to show that that ability has been impaired.

23. The applicant’s indigence alone, without considering how it came about, does not constitute a special circumstance for the purpose of s 1184 K (1) of the Act. To hold otherwise would render the lump sum preclusion period otiose. On the other hand straitened circumstances may be special where the compensation payment has been unavoidably exhausted on the necessities of life before the expiry of the preclusion period. Unfortunately that is not what occurred in this matter. The respondent informed the applicant of the preclusion period before he received the net amount of the compensation payment and yet the applicant proceeded, in a relatively short period, to dissipate his funds in a manner that was within his control and that was not explicable in terms of basic needs such as clothing, food and shelter. A finding of special circumstances for the purpose of s 1184 K (1) of the Act in the applicant’s case would frustrate the Act’s purpose in relation to the lump sum preclusion period; SDSS v Rodgers (1992) 26 ALD 235.

24.     The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor G Barton, Member

Signed:         …...(Sgd D Brodie) ...........
  Associate

Date/s of Hearing  6 April 2005
Date of Decision  15 September 2005
Counsel for the Applicant          
Solicitor for the Applicant          Unrepresented
Counsel for the Respondent      
Solicitor for the Respondent     Mr Paul Maishman