Nashed and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 972

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 972

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2553

GENERAL ADMINISTRATIVE DIVISION		)
Re		MRS MAGDA NASHED

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date3 November 2008

PlaceSydney

Decision  The decision of the Social Security Appeals Tribunal of 1 May 2008 to reject the claim by Mrs Nashed for the Disability Support Pension is affirmed.

...................[Sgd]......................

Rear Admiral A R Horton AO

Member

CATCHWORDS

SOCIAL SECURITY – Applicant in receipt of workers compensation – seeking disability support pension – medical qualifications for disability support pension accepted – not eligible for disability support pension in view of compensation payments – special circumstances considered – decision under review affirmed

Social Security Act 1991 – ss 17, 98, 1061ZA(1), 1064, 1173,1184K

Beadle  (and ors) v Director-General of Social Security (1985) 60 ALR 225

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

Secretary, Department of Social Security v Hales (1998) 82 FCR 154

Ryde v Secretary, Department of Family and Community Services [2005] FCA 866

Dranichnikov V Centrelink [2003] FCAFC 133

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9

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

REASONS FOR DECISION

3 November 2008   Rear Admiral A R Horton AO, Member   

1.      On 10 June 2003, Mrs Magda Nashed was awarded weekly compensation payments under the Workers Compensation Act in continuation following a work injury that occurred in September 1999.   On 7 November 2007, Mrs Nashed lodged a claim for the Disability Support Pension (“DSP”).  Mrs Nashed seeks the DSP because she understands her medical conditions so justify and because of the ancillary benefits, such as the Pensioner Concession Card (“PCC”), provided under the DSP provisions.   

2. Whilst her medical conditions were assessed as meeting the criteria for the DSP, as was her inability to meet the 15 hours a week work requirement, her claim was rejected on 7 January 2008 because her workers compensation payment exceeded the income limit for receipt of the DSP, section 98 of the Social Security Act 1991 (“the Act”) being relevant. The decision was affirmed by an Authorised Review Officer on 29 February 2008, and re-affirmed by the Social Security Appeals Tribunal (“the SSAT”) on 1 May 2008.

3. At a tribunal hearing on 15 September 2008, Mrs Nashed was self represented. Mr Ken Bullock of Centrelink’s Legal Services Branch represented the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (“the Respondent”). The documents (T documents) provided under section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence as was the Respondent’s Statement of Facts and Contentions (Exhibit R1).

ISSUES

4.The issues in this matter are :

·     whether the workers compensation payments received by Mrs Nashed preclude her from receiving the DSP; and if so

·     whether there are special circumstances under which all or part of the workers compensation payments may be treated as having not been made insofar as they permit eligibility for the DSP.

LEGISLATION

5. Under subsection 17(1) of the Act, DSP is defined as a “compensation affected payment”. Under subsection 17(2)(b), compensation is relevantly defined as “a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law….(whether the payment is in the form of a lump sum or in the form of a series of periodic payments …) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury”.

6. Section 1173 of the Act refers to the relationship between compensation payments and compensation affected payments, and states:

(1)       If:

(a)a person receives periodic compensation payments; and

(b)the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, qualified for, and receiving, a compensation affected payment; and

(c)the person receives or claims a compensation affected payment in relation to a day or days in the periodic compensation period;

the rate of the person’s compensation affected payment in relation to that day or those days is reduced in accordance with subsection(2).

(2)The person’s daily rate of compensation affected payment is reduced by the amount of the person’s daily rate of periodic compensation.

7. Thus on a daily rate, for every dollar received in workers compensation payments, the DSP would be reduced by one dollar. Subsection 98(1) of the Act relevantly states that the DSP is not payable to a person if the person’s DSP rate (calculated in accordance with the Pension Rate Calculator A in section 1064 of the Act) would be nil.

8. Section 1184K of the Act provides for all or part of the compensation payment to be disregarded if it is appropriate to do so due to any special circumstances. It relevantly states at 1184K(1):

(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.

EVIDENCE

9. Mrs Nashed suffered a work related injury in 1999 whilst working for the State Rail Authority of NSW. She was awarded ongoing periodic compensation payments from June 2003, these currently being in the order of $735.40 gross per fortnight (nett payment being in the order of $649 per fortnight), paid through Allianz Australia Insurance Limited. Mrs Nashed is seeking the DSP, which is currently being paid at the single rate of $546.80, her contention being that the nett shortfall of about $100 per fortnight between the compensation payment and the DSP would be more than compensated by the benefits associated with the DSP. Aside from perceived advantages in the cost and provision of medical and pharmaceutical services, she sees considerable benefits arising from the PCC (provided as an entitlement when in receipt of the DSP, pursuant to subsection 1061ZA(1) of the Act)

10.     When her injuries permitted, Mrs Nashed returned to work on light duties with the State Rail Authority until 2002 when she was physically unable to continue.  On ceasing work, she received a superannuation payment after tax of some $233,000.  This coincided with her being evicted from her home at Northmead by members of her family (she re-married in 1996), they having also taken some of her money.  Suffice that with the financial assistance of her daughter, who is not seeking repayment of some $40,000, she was able to purchase her present home at Blacktown.   Her daughter lived with her and assisted financially. 

11.     In evidence, Mrs Nashed stated that her daughter no longer permanently resides with her, having become a nun;  accordingly her daughter is no longer able to provide any financial assistance, or for much of the time, general support.  Mrs Nashed stated that she and her daughter operate a single joint bank account, into which goes a carer payment (to her daughter) of about $100 per fortnight.   In response to Mr Bullock, Mrs Nashed said that money was not available to her as her daughter, who has a number of tertiary qualifications, requires it to pay for a counselling/psychology course (at $300 per month) that she is undertaking.   Mrs Nashed was not aware of whether her daughter was in receipt of austudy payments.

12.     Mrs Nashed further stated that in recent years she had incurred costs in travelling, on three occasions, to Egypt to look after her father and mother, both being ill, and to provide for their medication.   No evidence was available to me as to the quantum of those expenses, nor indeed when the expenditure occurred.   

13.     The only income received by Mrs Nashed is that from the compensation payments.  She sold her car to reduce outgoings, and accordingly uses public transport to attend medical appointments, or when necessary to shop.  She has one credit card which she stated now stands with a debt of $1400;  at times she has to pay interest on the card.  She was in agreement with the Respondent that the joint bank account referred to above is generally in credit in the order of $1000;  Mrs Nashed explained that she seeks to keep it that way to cover unexpected expenses.

14. Mrs Nashed spoke of numerous illness or adverse health conditions. I have previously noted that the Respondent accepts that she meets the medical impairment criteria for the DSP; that she was not so granted that benefit resulted from her financial situation in respect of the compensation payment vide subsection 98(1) of the Act. Mrs Nashed listed numerous ongoing medical conditions that required periodic consultations with her general practitioners, one at Baulkham Hills and one at Blacktown, and various specialists. She is obliged to use public transport to meet these appointments.

15.     In describing her situation in a letter to the Tribunal dated 14 May 2008 (T1), Mrs Nashed provided detail of the benefits she believes she would gain by being in receipt of DSP, irrespective of income received by DSP payments.   Whilst Mrs Nashed has a Health Care Card and, hence, qualifies for subsidised pharmaceutical costs, she states that numerous medications are purchased without prescription and hence can be very expensive. She cites a variety of medications, including some provided under prescription, as costing over $120 a month, and a further $60 on occasions to counter hay fever.    Mrs Nashed also refers to a situation where about four times a year, she has an $80 differential between the charge for a specialist service and the benefit paid by Medicare and she contends that she is unable to claim medicare benefit in respect of Xrays, MRI or ultrasound. 

16.     Access to the PCC, would in the opinion of Mrs Nashed, reduce her transport costs.  Here she refers to the use of public transport costing over $500 per year.  The PCC would also lead to reductions in council rates, which she estimated at $60 per quarter, and water rates/usage at $100 per quarter. Telephone allowance would provide a further small saving.   Mrs Nashed also refers to RTA free fees, but the significance of this item is unclear given she no longer has her own car. 

17.     Mrs Nashed also referred to the ability of persons receiving the DSP to be able to work to a limited financial income;  this would seem to be irrelevant in her case as she states that she “can’t work because of my medical situation according to the result of a job capacity assessment”.  Whilst she refers to a 40 point impairment rating and being unable to work more than 7 hours a week, Mrs Nashed states (in her letter) that she cannot do any type of work and cannot get any benefit from Centrelink because of her compensation income. 

18.     In short, Mrs Nashed wants to be “equal” to others who, with similar medical conditions that meet the impairment ratings and inability to work criteria, have access to the benefits of the DSP.

CONSIDERATION

19. Following subsection 1173(2), Mrs Nashed is precluded from receiving the DSP because her workers compensation payment are such that the compensation affected payment would be nil. Hence, DSP cannot be paid in accordance with the provisions of subsection 98(1).

20.     Subsection 1184K makes provision for all or part of the compensation payment to be treated as not having been made (that is, disregarded), if “special circumstances” make it appropriate to do so.  In this matter, and if special circumstances are deemed to exist, the minimum reduction in compensation payment, being treated as not having been made, would be for Mrs Nashed to became eligible for one dollar of DSP.  

21.     The term “special circumstances” is not defined in legislation, but the term has been considered by both this Tribunal and the Federal Court. The interpretation put forward by the Tribunal, with Toohey J presiding, in Re Beadle and Director General of Social Security (1984) 6 ALD 1, has been widely followed, and states:

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 upon 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.

22.     That Tribunal went on to say (at page 3) that "the existence of “special circumstances” is to be determined from all the circumstances..." which in the context of the matter before that Tribunal related to an application for a handicapped child’s allowance. That "all the circumstances" should be considered in this matter is supported by the words of the Full Federal Court in dismissing an appeal against the above decision (Beadle (and ors) v Director-General of Social Security (1985) 60 ALR 225), wherein it was stated at 228 in respect of whether special circumstances were evident in the delay in making a claim:

More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules.

23.     Such a view was subsequently endorsed by the Full Federal Court in Dranichnikov v Centrelink [2003] FCAFC 133; (2003) 75 ALD 134 at [66] – [67].

24.     Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 observed that:

... although imprecise [it] is sufficiently understood not to require judicial gloss: Beadle’s case [(1985) 60 ALR 225, 7 ALD 670] (at ALR 229; ALD 674), and for present purposes it is sufficient to observe that 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.

25.     More recently, Besanko J concluded in Angelokas v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 that there must be something that distinguishes the case from the ordinary or usual cases, stating:

I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances.  The danger is that the test will be overstated if the word “exceptional” is emphasised.  It was not the intention of parliament to confine the exercise of the discretion to an exceptional case.  There is less risk of overstatement if the words “unusual” or ”uncommon” are emphasised.  Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case.  It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.

26.     Besanko J also referred to the view of French J in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 that financial hardship was not necessary in order to make a finding of special circumstances. Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 must also be taken into account in that Branson J observed (at [25]) that “The Full Court in Beadle did not endorse the view expressed by the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 that circumstances are special only if they are ‘unusual, uncommon or exceptional’.” Her Honour considered the “hardship or unfairness”  referred to by French J in Re Hales must be sufficient to justify departure from the general rule in a particular case.

27.     Following Besanko J in Angelokas,, it is necessary to distinguish the situation of Mrs Nashed from the ordinary or usual case.  It is appropriate to do that in the context of persons in receipt of social security payments, or having to meet with the privations or limitations that may be imposed upon them in that situation.  Here I find that the circumstances of Mrs Nashed are not such as to be considered unusual or out of the ordinary in the above context.

28.     Mrs Nashed is in the fortunate position of owning her own home.  Certainly, she is beholden to her daughter for the money “lent” to discharge the mortgage, but her evidence is that her daughter is not seeking repayment.  Mrs Nashed also has commitments to pay council and water rates and maintain her property, that she would otherwise not be paying were she in a rental situation.  Further, it is reasonable to suggest that those outgoings are less than would be the case in a rental situation, even if she were to be in receipt of a rental allowance.  

29.     Whilst Mrs Nashed has to meet medical and pharmaceutical costs, these are reduced by her eligibility for the Health Care Card; little real evidence was placed before the Tribunal as to the nett costs.  Again her situation in that respect, when considered against her cohorts, does not seem unusual or out of the ordinary.  And given that she maintains about $1000 in her joint back account, it cannot be said that she is in financial hardship.  That said, I acknowledge that she has to be careful, indeed frugal, with her financial commitments.

30.     In summary, I do not consider that special circumstances are in evidence, and it is therefore not appropriate to treat any part of her compensation payment as not having been made.

DECISION

31.     I affirm the decision of the SSAT of 1 May 2008 to reject the claim by Mrs Nashed for the DSP.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO  

Signed:       ...................[Sgd]...............................
  Ms Radhika Prasad, Associate

Date of Hearing  15 September 2008
Date of Decision  3 November 2008
Appearance for the Applicant        Self-represented
Advocate for the Respondent        Mr Ken Bullock, Centrelink Legal Services