Neeson and Secretary, Department of Family and Community Services

[2005] AATA 507

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 507

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1247

GENERAL ADMINISTRATIVE DIVISION

Re:           CHRISTOPHER JAMES NEESON

Applicant

And:           SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             1 June 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - partner allowance - newstart allowance - compensation payments - debt to Commonwealth - whether special circumstances exist to disregard payments   

Social Security Act 1991 ss 1173, 1184K(1)

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

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

REASONS FOR DECISION

1 June 2005  G.D. Friedman, Member

1.      This is an application by Christopher James Neeson (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 21 September 2004.  The SSAT set aside several decisions of an authorised review officer of Centrelink and remitted the matters to Centrelink with directions that compensation payments received by the applicant between 28 May 2001 and 13 June 2001, 18 June 2001 and 24 June 2001, 2 July 2001 and 8 July 2001, 16 July 2001 and 22 July 2001 and between 30 July 2001 and 11 February 2002 should be treated as not having been made so as to waive recovery of debts to the Commonwealth.  The SSAT also affirmed the decisions of an authorised review officer to reduce the applicant’s rate of newstart allowance and to recover newstart allowance in the amount of $443.32 paid to the applicant between 27 May 2003 and 7 July 2003.

2.      At the hearing on 2 May 2005 the applicant represented himself.  Mr M. Todd, an advocate with Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21), together with one exhibit (Exhibit A1) lodged by the applicant. 

BACKGROUND

4.      The applicant was receiving partner allowance when he was injured at work on 27 May 2001.  As a result, he began receiving weekly payments of compensation from CGU Insurance (CGU), while continuing to receive Centrelink payments for partner allowance (and later newstart allowance), albeit at a reduced rate.  In February 2002 Centrelink raised debts for overpayment of partner allowance between 28 May 2001 and 13 June 2001, 18 June 2001 and 24 June 2001, 2 July 2001 and 8 July 2001, 16 July 2001 and 22 July 2001, and between 30 July 2001 and 7 July 2003.  Centrelink also raised a debt of newstart allowance for overpayment between 27 May 2003 and 7 July 2003.  On 3 July 2003 Centrelink reduced the applicant’s newstart allowance because he had been receiving weekly compensation payments.

5.      Following the SSAT decision the applicant lodged an application with the Tribunal on 3 November 2004 for review of the decision.   

6.      The issues before the Tribunal are whether there were recoverable debts of partner allowance and newstart allowance, and whether the rate of these allowances should have been reduced due to receipt of compensation payments. 

EVIDENCE

7.      In oral evidence the applicant stated that he was not disputing the amounts of the debts, but believed that all compensation payments should be treated as not having been made, and all debts should be waived because of special circumstances.  He told the Tribunal that, although he was not receiving compensation payments from CGU on a weekly basis, Centrelink reduced his partner allowance payments.  He explained that at the relevant times he was suffering financial hardship, did not have stable accommodation, and had been the victim of a number of crimes.  He said that he was denied essential medical treatment and suffered from emotional problems caused by the stress of events that were beyond his control.

8.      The applicant stated that in late 2002 he had been attempting to update his work skills and at the same time seek review of decisions by Centrelink.  He said that Centrelink was not helpful, and he was critical of the compensation recovery area of Centrelink, which, he said, had acted improperly in relation to the recording of information and to privacy issues, in addition to having poor administrative procedures.  He said that he has made every effort to find part-time or full-time work, but has been largely unsuccessful. 

9.      Under cross-examination, the applicant stated that he did not believe that his compensation payments should be taken into account, and that the actions of CGU were responsible for a considerable portion of his financial difficulties.  However, he disagreed that he should seek redress against CGU, rather than having all his compensation payments treated as not having been made, because he said the actions of Centrelink contributed directly to the situation.  In relation to his overall circumstances the applicant stated that he has suffered significant financial, physical, accommodation and emotional problems, and Centrelink bears a large part of the blame.  He said that for these reasons all debts should be waived.

10.     Ms N. Battye, Privacy Officer of the Centrelink Sunshine Area Office, gave oral evidence that she acknowledged the need for the accuracy of records and was aware of concerns expressed by the applicant, but in her opinion there had been no breach of privacy laws.

11.     Ms E. Stankevich, team leader at the Centrelink Epping Office, gave oral evidence that she acknowledged that on 15 July 2004 (Exhibit A1) she made an on-line entry to the effect that compensation payments on the applicant’s records should not be updated without first speaking to the applicant.  She said that this entry was made because of the applicant’s dissatisfaction with the way CGU and Centrelink payments were made, and the need to ensure that procedures were carried out correctly.

CONSIDERATION OF THE ISSUES

12. Section 1173 of the Social Security Act 1991 (the Act) provides that a person may have to repay an amount received in compensation affected payments in situations where both periodic compensation payments and compensation affected payments have been received.  Both partner allowance and newstart allowance are compensation affected payments.

13.     Section 1184K of the Act provides:

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.

14.     Mr Todd acknowledged that the SSAT found that there were grounds for not taking some compensation payments made during 2001 and 2002 into account.  However, he submitted that in 2003 those grounds no longer applied.  He said that the SSAT was correct not to allow any further change to Centrelink payments during the period.  Mr Todd acknowledged that the applicant was in dispute with CGU in relation to compensation payments, but said that action against the insurer would have been the appropriate course for the applicant. 

15.     In reaching its decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing.

16.     The Tribunal accepts that the applicant feels aggrieved by the actions of Centrelink and CGU in their handling of his compensation payments and his partner allowance and newstart allowance payments.  The Tribunal notes that the applicant has made repeated claims of improper action by Centrelink officers in the recording of documents and in dealing with privacy issues.

17. Section 1184K(1) of the Act gives the decision‑maker discretion to treat the whole or part of a compensation payment as not having been made or not liable to be made, if the decision-maker thinks it is appropriate to do so in the special circumstances of the case.   However, in order for the decision-maker to use this discretion, there must be something to make the case stand out from the usual or the ordinary (Groth v Secretary, Department of Social Security (1995) 40 ALD 541). In Re Beadle and Director‑General of Social Security (1984) 6 ALD 1 the Tribunal held that special circumstances must be unusual, uncommon or exceptional. 

18.     The Tribunal notes that the respondent does not disagree with the reasons given by the SSAT for disregarding some compensation payments made to the applicant in 2001 and 2002.  In relation to the 2003 payments of newstart allowance and ongoing compensation payments in 2003, the Tribunal acknowledges that the applicant has described grievances against Centrelink and CGU, and has expressed criticism of Centrelink’s record-keeping and privacy issues.  The Tribunal is not in a position to make findings in respect of these matters because these matters are outside the jurisdiction of the Tribunal.  However, the Tribunal does note that Centrelink has agreed to place on its records certain comments by the applicant.

19.     The Tribunal does not doubt the seriousness of any crimes that the applicant states were committed against him, but as no charges have been brought by the Police the Tribunal is unable to conclude that any of these matters were connected to Centrelink.  The Tribunal accepts that the applicant’s financial and accommodation situation has been difficult, and his physical and emotional condition has suffered as a result of the events outlined by him.  The Tribunal also accepts that the applicant has been unable to find employment, although he is pursuing studies that might assist him.

20.     However, after considering all the relevant matters and viewing the applicant’s case in its entirety, the Tribunal is not satisfied that the matters raised by him are such as to make his circumstances unusual, uncommon or exceptional.  His circumstances, while difficult, are not special circumstances. Therefore, it is not appropriate for the Tribunal to exercise the discretion under s 1184K(1) of the Act, to disregard the compensation received in whole or in part.

DECISION

21.      The Tribunal affirms the decision under review.

I certify that the twenty‑one [21] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  2 May 2005
Date of decision:  1 June 2005
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Mr M. Todd, Centrelink