Peter Trapp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 300

[2012] AATA 300  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/2999
Re	Peter Trapp
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	18 May 2012
Place	Brisbane (heard in Townsville)

The decision is affirmed.

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

Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – workplace accident – compensation paid – precluded from receiving benefits – calculation undertaken in accordance with act – no special circumstances – decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth) ss 17(3), 1169(1), 1170(4), 1170 (5), 1184K

REASONS FOR DECISION

Deputy President PE Hack SC

18 May 2012

Background 

1. In May 2006 the applicant, Mr Peter Trapp, was injured in a workplace accident. He received weekly payments of compensation thereafter. He engaged solicitors who, in 2008, commenced proceedings in the Supreme Court of Queensland to recover damages. Those proceedings were compromised in March 2010 when Mr Trapp agreed to accept the sum of $750,000 plus standard costs as assessed or agreed in satisfaction of his claim.

2. That sum, less statutory refunds to Workcover ($166,803.03), Medicare Australia ($2,714.00) and Centrelink ($8,014.80), was paid to Mr Trapp’s solicitors. After the deduction of legal costs and the repayment of litigation funding Mr Trapp received an amount just in excess of $500,000 in April 2010.

3. On 25 March 2010 Centrelink determined that Mr Trapp was precluded from receiving benefits from 20 July 2007 (immediately following the cessation of weekly compensation payments) until 30 June 2016 and that the amount of $8,014.80, comprising disability support pension paid to Mr Trapp from 30 September 2009, should be repaid from the settlement of the common law claim. Mr Trapp sought internal review of that decision. It was affirmed by an authorised review officer on 20 April 2011. It was again affirmed by the Social Security Appeals Tribunal on 24 June 2011.

4. Mr Trapp now seeks a review of the decision.

   The legislation

5. By operation of s 1169(1) of the Social Security Act 1991 (Cth) a compensation affected payment, a term which encompasses disability support pension, “is not payable … in relation to any day or days in the lump sum preclusion period”. Where the person receives both periodic compensation payments and a lump sum compensation payment (as Mr Trapp did), the “lump sum preclusion period” is the period beginning on the day following the last day of the periodic payments period and ending at the end of the number of weeks calculated in the manner prescribed in ss 1170(4) and (5) of the Act.

6. That calculation involves dividing the “compensation part of a lump sum compensation payment” by a prescribed weekly sum. By virtue of s 17(3) of the Act, the compensation part of a lump sum compensation payment, in Mr Trapp’s circumstances, is 50% of the payment received.

7. Section 1184K of the Act permits the Secretary, and thus the Tribunal, to treat all or part of a compensation payment as not having been made if it is thought appropriate to do so “in the special circumstances of the case”.

   Application of the legislation

8. I am satisfied that Centrelink undertook its calculation in accordance with the statutory formula. Mr Trapp did not suggest that there was any error in the calculation and I cannot detect any.

9. Centrelink reduced the total of $750,000 by $56,653.90, the amount of weekly compensations payments made to Mr Trapp between 18 May 2006 and 19 July 2007, and divided the balance by prevailing income cut-out amount, $742.90, yielding a period of 467 weeks. That period starts from the day following the end of the period of payment of weekly compensation payments i.e. 20 July 1997 and continues to 30 June 2016.

   Consideration

10. Mr Trapp did not articulate any particular reason for disagreeing with the decision although he professed an absence of understanding of the manner of operation of the legislation and the logic for it. I am unable to see any error in the approach taken in this case. The statute has been given effect to and the calculation undertaken in accordance with its terms.

11. Moreover Mr Trapp did not seek to suggest that there is anything about the circumstances of this case that might amount to special circumstances; his evident, general dissatisfaction with the way in which the statute operates is not “special”. I am unable to see any feature of the case that might make it unusual or out of the ordinary.

12. I am satisfied that the decision was correct and should be affirmed.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC.

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

Associate

Dated 18 May 2012

Date of hearing  26 April 2012

Applicant   In person

Advocate for the respondent:            Mr J Guthrie, Centrelink Legal Services