Rados and Secretary, Department of Social Services (Social services second review)

[2021] AATA 4807

Rados and Secretary, Department of Social Services (Social services second review) [2021] AATA 4807 (2 December 2021)

Division:GENERAL DIVISION

File Number(s):2021/3540 and 2021/3541      

Re:Ivan Rados  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:2 December 2021  

Date of written reasons:         23 December 2021

Place:Melbourne

The Tribunal refuses the application and affirms the decision under review.

..............[SGD]..........................................................

Dr Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – Applicant received compensation payment for work injury – compensation preclusion period applied – debts raised in respect of Carer Allowance and Newstart payments – whether special circumstances to reduce preclusion period – evidence does not support special circumstances – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

23 December 2021

INTRODUCTION

1. On 2 December 2021, I heard this matter and gave my reasons for decision immediately after doing so.

2. By that decision, I affirmed the decision under review and rejected the application of the Applicant.

3. After giving my decision, I was included in the general description by the Applicant of “fucking scumbags” and I was told to “Get fucked” and “Just fuck off man”.

4. I consider those expressions used by him constitute contempt for which he should be prosecuted.

5. The Applicant’s brother (Mr Ilija Rados) has requested written reasons for my decision.

6. The following are my written reasons.

   HEARING

7. Mr Ilija Rados was the Applicant’s representative and conducted the hearing on the Applicant’s behalf, which was allowed by me — although, later on he indicated that he had no love for his brother and actually said “I try to avoid him as much as possible”.

8. Mr Ilija Rados said “I am doing the whole thing on his behalf”.

9. Accordingly, Mr Ilija Rados was affirmed to give truthful evidence and proceeded to give evidence by audio only.

10. No witnesses were called.

11. The Applicant’s case was that a decision affirming a decision that a compensation preclusion period applied should be set aside.

12. This was opposed by the Respondent who was represented by Mr Keith Sypott, a lawyer from the Australian Government Solicitor.

13. As a result of the preclusion period applying, a debt was raised (in total) of $58,996.33. This has two components: $28,582.06 in respect of carer payments (22 May 2015 to 5 August 2016); and $30,414.27 in respect of Newstart allowance (2 March 2013 to 21 May 2015). This money was subtracted from the Applicant’s settlement sum and has thus already been paid.

14. The Applicant’s case was presented by his brother on the basis that “special circumstances” applied under s 1184K of the Social Security Act 1991 (Cth) (“Act”) which, if such circumstances did exist, would or could reduce the preclusion period.

15. The preclusion period arose out of the Applicant having received the benefits in question under the Act and having settled a personal injuries action in the County Court of Victoria for an amount of about $360,000.00. The action was taken by the Applicant as a result of a work injury occurring to him in about 2010, in the course of his work as a plasterer. The Applicant himself said he had not worked since that time.

16. It was submitted by Mr Ilija Rados (who described himself as an “IT specialist”) that the special circumstances were constituted by the following:

    (a)impact of the Applicant’s medical conditions, both physical and mental health, and

    addictions;

    (b)impact of home palliative care arrangements;

    (c)inaccurate and misleading professional legal advice provided to the Applicant during the Workcover settlement;

    (d)financial circumstances and Centrelink entitlements not paid to the Applicant after the preclusion period; and

    (e)employment prospects, chronic health conditions, multiple sclerosis (“MS”) disease and capacity to work.

17. I heard the evidence given on behalf of the Applicant by his brother and I was not satisfied that any of these considerations – separately or together – constituted “special circumstances”.

18. I regard “special circumstances” as relating to circumstances out of the ordinary or unusual, as the legal authorities indicate.

19. I listened carefully to the evidence given on behalf of the Applicant but nothing I heard satisfied me that special circumstances existed in this case. That is, if I accept that the Applicant’s brother was telling me the truth at all times.  I must indicate I am very doubtful I should accept his evidence as truthful.  At times he was concerned not to give away information about himself (although it also related to the Applicant), and appeared defensive and even secretive to the point where I was concerned that, very possibly, he was not telling me the whole truth on most things he mentioned in his evidence.

20. I add to that this another very concerning circumstance which indicated to me that the Applicant’s brother (who gave me the only evidence I was given) had been acting dishonestly or deceitfully as regards to the Applicant’s settlement monies. Out of those monies (after legal costs of approximately $114,000.00) and a further sum deducted by the Respondent (approximately $59,000.00), the Applicant was left with a balance, out of which his brother subtracted $80,000.00 for monies advanced to him over the years since 2010.

21. The Applicant’s brother expected me to believe that, over those years, he had kept a spreadsheet of the sums he had given his brother, including for instance: for the cost of cigarettes; for the cost of a trip to the Philippines (for an undisclosed purpose); for participation in a Lotto syndicate (which the Applicant’s brother refused to tell me much about); and for various other things such as attendance at a soccer event (where the Applicant’s brother was playing), liquor and so on. As regards to the Applicant’s liquor consumption, I was told that in 2019 he was fined for drink driving.

22. I regard it as highly unlikely that the spreadsheet was actually kept and maintained for 10 years or so, or that the Applicant realised that when he was advanced sums, he would in the end have to repay them. They bear the character more of gifts or brotherly advances or advances made in a context where there is presumed to be by law no intent to create legal relations.

23. In other words, I regard the Applicant’s brother as having taken advantage of his brother who I am told is illiterate and aged about 45 years, but still living at home with their widowed mother (as he has done all his life) who is aged about 65 years. In my view, he saw a way to get rich out of the Applicant’s settlement sum – seeking to persuade him and me that this was only just, considering how much money he had given him over the years – or at least to ensure he was not out of pocket in respect of monies given to his brother over the years.

24. I shall now address each of the grounds relied on by the Applicant’s representative.

    (a) Impact of medical conditions

25. There was nothing in this. After questioning, the Applicant’s representative clarified that the complaint was that the Applicant missed out on unemployment benefits (of maybe $30,000.00) because his benefits were cancelled. But he never sought to have the cancellation decision(s) reviewed. He was not on a Disability Support Pension and if his illness was as chronic as claimed, he should have sought this. But he did not do so. Indeed, the factors detailed to me about his medical conditions (which I accept he suffers from, including MS) indicate that (properly advised by his brother) – if the Applicant otherwise qualified – he should be on that pension now. But he has not applied. So, in all, I reject (a) as a ground of “special” circumstance.

    (b) Impact of home palliative arrangements

26. I accept that the Applicant was involved in the care of his father who later died. But, during that time, the Applicant was paid a Carer Allowance. When that ceased, he expected to go on unemployment benefits, but they had been cancelled and he had not sought to review the cancellation decision(s). So, I reject (b) as a ground of “special” circumstance.

    (c) Inaccurate legal advice

27. This has no substance at all. The lawyers in the County Court action subtracted about $114,000.00 in legal fees. The Applicant signed Terms of Settlement which mention that figure. I am unable to say whether the figure is excessive or not. Complaint was in fact made to the Legal Services Board but either it got nowhere, or it was not pursued. The Applicant had been told beforehand that as much as $30,000.00 would need to be repaid by him for overpaid benefits. So, he was on notice about that. The figure was wrong and nearly $60,000.00 was subtracted. But I was not satisfied that if the Applicant knew that the sum would be in about that amount, he would never have settled. Perhaps his lawyers at the time should have made further inquiries or perhaps they had no reason to do so in view of what the Applicant had instructed them. I simply cannot say. I reject (c) as a ground of “special” circumstance.

    (d) Financial circumstances

28. This is entirely without merit. The complaint is that the Applicant was entitled post 5 August 2016 until 2020 or so to Newstart Allowance. But he had had been rejected for that – possibly because he sought it while he was on Carer Allowance – by cancellation decision(s) that he never sought to review. And he has not applied again for Newstart, nor for Disability Support Pension. I reject (d) as a “special’ circumstance.

    (e) Work prospects and capacity to work

29. This also has no merit as a ground. But it may have merit on a claim (yet to be made) for Disability Support Pension. I have said I accept the Applicant has medical conditions including MS. I would think that these do affect his capacity to work. But they occurred long after the period when the indebtedness arose out of being overpaid benefits. It is possibly also true that the Applicant will not be able to get by without family support. But this could perhaps be avoided by applying for Disability Support Pension. This has not been done. I note that much of the monies advanced to him by his brother has been spent on alcohol and cigarettes. An expenses sheet provided to show the Applicant’s living expenses was fanciful and unreal. For example, listed expenses include: $5,200.00 a year on petrol; $1,000.00 a year on clothing; $7,000.00 a year on entertainment; and $24,000.00 a year on “other” household expenses. I therefore also reject (e) as a ground of “special” circumstance.

30. I have therefore rejected each of the grounds advanced as grounds for finding “special” circumstances. None of them constitutes such circumstances, together or separately.

31. Moreover, they all relate to circumstances which are common in this area where preclusion periods arise – indebtedness, death of a parent, unemployment or ill-health – so none of them is “special” in the sense of unusual or out of the ordinary, as is required.

32. What is to be noted is that the Applicant’s serious personal issues (drinking problem, gambling and cigarette addictions – all of which must be paid for) which (if I believe him) have been covered financially by the Applicant’s brother over the years. But he has now paid for such financial assistance (or more than paid for it), his brother having subtracted $80,000.00 out of the settlement monies.

33. There is therefore no ground for setting aside the decision under review, which is affirmed.

34.     I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the written reasons for the decision of Dr Damien Cremean, Senior Member.

....................... [SGD]...........................................

Associate

Dated: 23 December 2021

Date of Hearing

2 December 2021

Advocate for the Applicant: 

Mr Ilija Rados

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Keith Sypott

Australian Government Solicitor