Mundine; Secretary, Department of Family and Community Services
[2002] AATA 205
•20 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 205
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1141
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Applicant
And RICHARD MUNDINE
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date20 March 2002
PlaceGrafton
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 29 March 2001 and dated 16 May 2001 and in substitution decides that the original decision made by a delegate of the Secretary to the Department of Family and Community Services on 8 November 1999 as affirmed by an Authorised Review Officer on 28 February 2001, to impose a compensation preclusion period from 10 October 1999 to 20 August 2003, be restored.
............(Signed)..................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – preclusion period – purchase of house with full knowledge of preclusion period – no special circumstances
Social Security Act 1991: s.1184K
REASONS FOR DECISION
20 March 2002 Mr. D.W. Muller, Senior Member
This is an application by the Secretary, Department of Family and Community Services to review a decision of the Social Security Appeals Tribunal (SSAT) made on 29 March 2001 that a compensation preclusion period applicable to Richard Mundine, which started on 10 October 1999, should end on 29 March 2001 instead of 20 August 2003.
On 29 January 2001, the Applicant sought a review of a decision to impose a compensation preclusion period on him. It was his intention to apply for a disability support pension.
At the hearing the Applicant and his mother gave evidence. The Tribunal accepts them as honest and reliable witnesses. The Tribunal makes the following findings of fact:
(i)Richard Mundine was born on 17 January 1969.
(ii)After leaving school Mr. Mundine obtained work as a truck driver.
(iii)On 11 July 1995, Mr. Mundine suffered a significant injury to his back during the course of his work as a truck driver.
(iv)From 11 July 1995 to 9 October 1999, Mr. Mundine received weekly workers' compensation payments totalling $87,037.40.
(v)Mr. Mundine claimed damages through the civil court in relation to his injuries and loss of earnings as a result of his back injuries arising out of the truck driving incident. His civil claim was settled on 28 October 1999, for a lump sum of $258,880.68. After the payment of legal fees, workers' compensation repayments and other expenses, Mr. Mundine received $150,000.
(vi)Mr. Mundine has a wife and three young children.
(vii)On or about 10 November 1999, Mr. Mundine received a letter from Centrelink which explained how the rules relating to preclusion periods would affect him. In particular, the letter contained the following:
"Insurance company AAMI has advised Centrelink that your compensation claim recently settled for an amount of $258,880.86 less a workers compensation payback of $87,037.40 to FAI. FAI advised that you were last paid workers compensation up to 9 October 1999.
In accordance with the Social Security Act 1991, Centrelink has calculated a preclusion period based upon the economic loss factor of your settlement.
The preclusion period started on 10 October 1999 and ends on 30 August 2003.
This means that, should you consider applying for a Centrelink income support payment such as Newstart Allowance or a pension you will not be eligible for payments until the preclusion period ends. If you are married or in a de facto relationship, or commence such a relationship, the preclusion period does not stop your partner from claiming an income support payment from Centrelink. You may have entitlement to a Low Income Earners card."
(viii)It had been the intention of Mr. Mundine to purchase a house with the proceeds of his damages claim. The amount that he finally received, $150,000, was less than he had expected. He and his wife also had to consider the effect that the compensation preclusion period would have on them. They decided that they would go ahead and purchase a house and that they would "get by" on the social security benefit which Mrs. Mundine was receiving for herself and their three children, until the preclusion period ended.
(ix)On 1 February 2000, they completed the purchase of a home at Edgeworth, for $140,000.
(x)During the year 2000, Mr. Mundine and his wife parted. Mrs. Mundine obtained an "apprehended violence order" (AVO) against Mr. Mundine.
(xi)On 29 March 2001, the SSAT shortened the preclusion period to make it end on 29 March 2001. Mr. Mundine has been receiving social security benefits since that date.
(xii)Mr. and Mrs. Mundine decided to sell the Edgeworth house. The transfer was completed on 14 September 2001, for $168,000.
(xiii)At the same time as Mr. Mundine was negotiating to sell the Edgeworth house, he was also purchasing a house at Coutts Crossing. The transfer of the house at Coutts Crossing to Mr. Mundine and his wife, as joint tenants, was finalised on 7 September 2001, for $140,000.
(xiv)When Mr. Mundine separated from his wife, he went to live with his mother, Ms. Eggins, at Baryulgil, which is a small town in the Grafton area. Coutts Crossing is also in the Grafton area.
(xv)Ms. Eggins lives in a rent-free house at Baryulgil. The house is held in trust for former workers and their dependants, of a mine in the town. She survives on a social security benefit which is associated with her care of a niece.
(xvi)Unfortunately, living at Coutts Crossing turned out to be a disaster for Mrs. Mundine. She experienced severe difficulties with Mr. Mundine's relations. The house was sold within a matter of weeks of moving in, for $155,000.
(xvii)Mrs. Mundine has moved back to the Newcastle area with her three children. She lives with an auntie.
(xviii)In the meantime, Mrs. Mundine has received approximately $60,000 by way of a compensation settlement. She has used the money to purchase a vacant block of land in the joint names of Mr. and Mrs. Mundine, at Stroud.
(xix)On or about 28 February 2002, Mr. and Mrs. Mundine agreed with a builder to have a house built on the land at Stroud for $133,426.00.
The question which arises for determination by the Tribunal is whether or not there are any special circumstances such that any portion of the lump sum compensation payment made to Mr. Mundine may be treated as not having been made. If it be the case that there are any special circumstances in the case of Mr. Mundine, the effect would be to shorten the compensation preclusion period. The relevant legislation is contained in s.1184K(1) of the Social Security Act 1991.
"SECTION 1184k SECRETARY MAY DISREGARD SOME PAYMENTS
1184K(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."
It was put on behalf of Mr. Mundine that special circumstances exist in his case because:
(i)He is of aboriginal background.
(ii)He grew up in a Housing Commission environment.
(iii)He had always had an ambition to purchase his own home.
(iv)If the preclusion period is not shortened he may have to sell the home which is about to be occupied by his wife and children.
The Tribunal makes the following observations:
(i)Although the Tribunal has no doubt that Mr. Mundine has an aboriginal background, Mr. Mundine has been well educated, he speaks well and he has a very light skin colour. The Tribunal does not accept that Mr. Mundine has ever experienced significant discrimination in the wider community because of his aboriginal background.
(ii)There are many Australian families who would regard themselves as extremely fortunate to be able to move into Housing Commission accommodation.
(iii)Mr. Mundine has achieved his ambition of owning a home, albeit at the expense of personal privation and hardship.
(iv)Mrs. Mundine and the three children will soon be living in a home on land with a total value of about $200,000 fully paid for. They will also be the beneficiaries of significant social security benefits. They will not have to sell the house to survive.
(v)Mr. Mundine will live in straightened circumstances but at least he will have a roof over his head. He made a conscious deliberate and voluntary choice to take the path he has.
There are no circumstances sufficiently special to invoke the provisions of s.1184K of the Act.
The decision under review is set aside.
I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed: .....................................................................................
B. Hitchcock, Personal AssistantDate/s of Hearing 20 March 2002
Date of Decision 20 March 2002
Applicant Mr. R. McQuinlan, Departmental Advocate
Solicitor for the Respondent Ms. S. Clark, Welfare Rights Centre
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