Ragitsch; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1339
•18 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1339
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500972
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY,
DEPARTMENT OF EMPLOYMENT
AND WORKPLACE RELATIONS
Applicant
And
HARRY LUDWIG RAGITSCH
Respondent
DECISION
Tribunal Regina Perton, Member Date18 May 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
SOCIAL SECURITY ‑ lump sum compensation ‑ preclusion period ‑ whether special circumstances exist – decision of Social Security Appeals Tribunal affirmed.
Social Security Act 1991 ss 17(1), (2), (3), 1170(1), (4), (5), 1184K
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Re Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050
Re Brady and Secretary, Department of Employment and Workplace Relations [2005] AATA 1145
Re Lukic and Secretary, Department of Social Security [1991] AATA 6944 unreported S91/12
Re Stavrakis and Secretary, Department of Family and Community Services [2003] AATA 212
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866Secretary, Department of Family and Community Services v Edwards [2000] FCA 1645
REASONS FOR DECISION
18 May 2007 Regina Perton, Member 1. Harry Ludwig Ragitsch, who is 44 years old, sustained serious injuries in a workplace accident on 6 June 1999. He received periodic compensation payments until 11 April 2002. He received a lump sum compensation award of $340,000 on 12 April 2002.
2. On 17 May 2005 Mr Ragitsch lodged a claim for disability support pension (DSP) with Centrelink, which delivers services for the Department of Employment and Workplace Relations (the Department). Medical and other evidence indicated that he met the medical criteria for DSP. However, Centrelink rejected Mr Ragitsch’s application because Mr Ragitsch was subject to a compensation preclusion period calculated as ending on 11 October 2007, as a result of receiving the lump sum compensation.
3. Mr Ragitsch sought review of the decision by an authorised review officer (ARO) of Centrelink. On 23 August 2005, the ARO affirmed the decision to reject the claim for DSP. However, the ARO re-calculated the preclusion period and shortened it by a week to 4 October 2007.
4. Mr Ragitsch then sought review of the decision by the Social Security Appeals Tribunal (SSAT). On 15 September 2005, the SSAT decided that the preclusion period should be shortened due to special circumstances. The SSAT amended the expiry date of the preclusion period to 29 August 2005. This reduced the original preclusion period from 5 years and 6 months to just over 3 years and 4 months. The Secretary to the Department lodged an application for review with the Tribunal, seeking to set aside the decision of the SSAT.
5. The issue before the Tribunal is whether there are special circumstances that warrant shortening the preclusion period.
Mr Ragitsch’s health and personal circumstances
6. It is not in dispute that Mr Ragitsch suffers from medical and social problems that prevent him from working. His doctors have attested to his serious ongoing medical difficulties. Some of these are the result of his compensable injury; others have resulted fully or partly from lifestyle issues, including periods of heavy use of drugs and alcohol.
7. Mr Ragitsch is single. He lived for some years with a partner who, like him, suffered from problems with alcohol. She and her adult children squandered much of Mr Ragitsch’s compensation award. Mr Ragitsch has been unable to retrieve any of the money or gifts he spent on his former partner or her children.
8. Out of the proceeds of the settlement, Mr Ragitsch bought a caravan in which he and his then partner lived for a considerable period of time. He still owns the caravan which is now parked on a friend’s property, although it was in a caravan park for a time. He has been living some of the time with his elderly parents. His sister also lives with his parents. The restrictions on his lifestyle and the atmosphere in his parents’ home are not really to his liking. However, he has persevered for a while due to his monetary and health circumstances. His parents are dependent on age pensions. They, too, find it difficult to have him there continuously. Mr Ragitsch spends some of his time in the caravan. He also owns a four-wheel drive vehicle with which he tows the van and travels to consult his treating doctors. Mr Ragitsch said that he needs the car, a Hyundai four-wheel drive, to go for blood tests and to tow the van.
9. Mr Ragitsch demonstrated a strong work ethic prior to his accident. While still at school, he worked during school holidays in a saw mill and after classes at a petrol station. He left school after Year 10 to take up a four year apprenticeship as a fitter and turner at the Wodonga Abattoirs, which he successfully completed. After 15 years at the abattoirs, he was headhunted for a sales job for a company that sells machinery for abattoirs. However, just after he started, he fell ill. He was diagnosed with endocarditis and had open heart surgery. He was also diagnosed with alcoholism at that time. He was 32 years old. His prognosis was not good but he survived the operation. However, his cardiologist said that he would probably not work again and by that time, he had lost his pre-diagnosis employment. Mr Ragitsch said that he saw another cardiologist in Wodonga, who also told him he would not work again. He has not gone back to either practitioner again. Mr Ragitsch did not accept their predictions and returned to work with a labour hire firm about a year after the operation. He then worked as a fitter and turner for an abattoir in Yanco, between Leeton and Narrandera in New South Wales. He was promoted to supervisory positions. The accident that led to the compensation award occurred on 6 June 1999 at the abattoir, just before an inspection for the company’s American export licence. He slipped while moving equipment in an area where there was no safety platform and fell to the ground, injuring his head, left knee and right foot. He said that he still suffers from after effects of his knee injury, which cannot be remedied.
10. Mr Ragitsch commenced a relationship with Rosalie Simons in the late 1990s, while working in Yanco. They met in a pub. They separated in August 2005. She was his drinking buddy. In December 2004, he and Ms Simons were in their caravan by a river at Shepparton spending most of their waking time drinking. He described how he became seriously ill, the dramatic symptoms, his hospitalisation and how he broke out of the hospital via an emergency exit so that he could get a drink. He had difficulty walking and was found by the police near the home of Ms Simons’ parents in Shepparton, in a very anxious state. He was referred to a psychiatrist and prescribed medication. In March 2005, he was again hospitalized for a liver ailment for some ten days. This time he stayed in for the whole period. He then stopped drinking for several months but Ms Simons continued, despite an edict from his doctors that there should be no alcohol around to tempt him. He was limited in the pharmacological assistance available to him to help him avoid drinking. He took Campral for a time but was unable to use Naltrexone or a similar medication because of his heart condition.
11. Mr Ragitsch said that he was able to stop drinking for about 18 months as a result of the scare his second operation gave him. However, he then fell back into drinking again, going to the refrigerator that Ms Simons kept stocked. He thought he had his drinking under control but was wrong. He was drinking on the day before he gave evidence.
12. Mr Ragitsch said that he has been offered help to give up drinking from time to time since he was first diagnosed as an alcoholic in 1994. He said that he has tried a couple of possible solutions that worked for a short time; but he likes drinking and needs to do so. It is the only time he can switch off. Therefore, after a few months of abstinence, he would go back to drinking.
13. Dr Lawrence M Smith, a Leeton-based general practitioner, advised in a letter dated 27 December 2005, that he has been seeing Mr Ragitsch for a number of years. He described Mr Ragitsch’s medical history as including a bacterial endocarditis (heart valve infection) due to IV drug addiction in 1994 which led to aortic and mitral valve heart surgery. Alcoholic cardiomyopathy in 2000 and heart failure resulted in a second aortic and mitral valve replacement in 2003. Dr Smith indicated that Mr Ragitsch is currently on medication for heart failure and Warfarin to thin the blood. He went on to state:
His fundamental problem is Alcohol Dependency Syndrome and he is taking Campral tablets for this. This addiction problem has lead to his current medical condition. His prognosis remains guarded at best and depends on his reducing his alcohol intake to zero. His financial, domestic and relationship problems are also a consequence of his addiction to alcohol.
14. Dr Peter Bortz, a Griffith-based physician and cardiologist, provided several written reports to Centrelink and gave oral evidence. He stated that Mr Ragitsch has been a patient since May 2003. He described Mr Ragitsch’s medical history in similar terms to Dr Smith. He mentioned that there had been significant post‑operative complications including a ruptured right atrium and pulmonary artery, following the 2003 surgery. He also suffers from anxiety and depression. In a letter dated 18 January 2006, Dr Bortz stated:
…
Harry is an ex-smoker. He has social problems….His alcohol history has had a significant impact on his social life as well as his ability to manage his money matters, hold down a job and occasionally impacted on his ability to stick to a strict medical protocol.
The alcohol also affects his ability to function on a day to day basis. At present he continues to binge drink on rare occasions and is attempting to abstain. I am of the opinion that the depletion of the funds received from Centrelink was definitely influenced by alcohol consumption. I recommend that he be placed on a disability pension, as he requires ongoing medical treatment and medications, which he will be unable to afford without some support. He also requires a rehabilitation program…
15. In his oral evidence Dr Bortz stated that Mr Ragitsch’s cardiac problems started with rheumatic heart disease as a child and were exacerbated by alcoholic cardiomyopathy. He confirmed that Mr Ragitsch had abstained from alcohol for various period of time but would lapse and start binge drinking. Dr Bortz stated that while there were other cardiologists that Mr Ragitsch could see closer to his home in Wodonga, he appeared comfortable with him and all the people at his practice. He said that some doctors did not give much time or effort to heart patients with alcohol problems but that it was better for many such patients to have continuity of treater and treatment. He said that Mr Ragitsch was quite open with him. He said that Mr Ragitsch was fairly stable at that time and it would be sad to see him go off the rails completely again...
16. Mr Ragitsch said that it is about a two and a half hour drive to see Dr Bortz or Dr Smith. However, they became his treating doctors when he was in Yanco and he feels that they know his problems without him having to explain the complexities each time he sees a new doctor.
17. Glen Brooks, program director of Phoenix Recovery Programs in Gippsland, gave evidence about alcohol problems in general. He has not met Mr Ragitsch. He indicated that binge drinking is a form of alcoholism where a person drinks for periods of time and then has periods in between when he abstains. He estimated that of the about 12 to 13 per cent of users of alcohol who become alcohol dependent, only about 3 to 4 per cent are able to stop drinking. He said that most people undertaking appropriate treatment do not succeed in remaining sober on the first attempt.
18. Asked about how prolonged alcohol use impacts upon a person’s ability to make reasonable decisions, Mr Brooks responded that the ability to show reason, concern and judgement are the first things to become impaired. Denial then follows, with affected persons making desperate attempts to show that they have not got a problem. Eventually, with a certain proportion of alcohol dependent persons, they are not capable of making choices about their drinking. Asked about financial planning, Mr Brooks said any plans including financial ones are soluble in alcohol. He said that the affected person is not in a fit condition to make financial decisions even if he is not drinking at a given time. In response to a question about prolonged use of alcohol impacting on a person’s ability to exercise control over money they may have, he responded:
Well, that is one of the major florid systems is in the simple fact that money is dispersed in ways that are not appropriate. Not only for alcohol itself but for the things that go with it, unsuitable lifestyle, sometimes gambling, sometimes trying to prove their masculinity by chasing women, that sort of thing…And of course, living arrangements, sometimes, living away, going away and disappearing through expensive binges and things like that. A whole range of things.
19. Mr Brooks said that in his experience, alcoholism is not a lifestyle choice. He said that choosing to drink in the first place may well be a lifestyle choice but alcoholism is a matter of metabolism and has been widely accepted as such since 1970. He stressed that alcohol is a health problem that cannot be controlled by will power alone. He indicated Alcoholics Anonymous has helped many people but not all.
20. Mr Brooks confirmed that he had personal knowledge of alcoholics breaking out of hospital due to their being desperate to have a drink. He also said that it was common for alcoholics to squander a large amount of money, such as that which Mr Ragitsch was awarded. Asked what he thought might happen if Mr Ragitsch sold the two assets which he still retained, namely his car and caravan, he thought it probable that the money would most likely be dissipated as alcohol dependence often renders a person incapable of making appropriate decisions.
Mr Ragitsch’s financial circumstances
21. Mr Ragitsch received a compensation settlement of $340,000 on 12 April 2002. He said that after expenses and legal costs, he received around $225,000. When asked how he had managed to spend so much money in three years and where it went, he said:
On travelling, on grog, and I spent – the first thing I was put a roof over my head. I knew I wouldn’t have enough for a house, I was renting a house at the time.. My only chance was to establish a caravan, that had – fully self-contained, that I could get around in, and had a shower and toilet, and we could put it anywhere, and cheaply, and survive. So I spent literally …$100,000 on that car and caravan initially, straight up, in August 2002, to make sure I had a roof over my head…
22. Mr Ragitsch said that he considered getting financial advice after the compensation settlement but was overwhelmed by the only opportunity he would have to put a roof over his head as he would not be able to work again.
23. Mr Ragitsch said that he bought two cars in 2002, one of which was for Ms Simons who was still working at that time. His car was an old one in poor condition and he sold it for only $500. Ms Simons did not have a car at the time he bought one for her. As his illness got worse, she gave up work to care for him, resulting in less household income. He and Ms Simons sold her car, for less than half of what they paid for it, when they were in Queensland and needed to return quickly
24. Mr Ragitsch estimated that he would be lucky to get $20,000 for the caravan and it would now cost about $60,000 to replace. He said that if he sold the caravan he would probably quickly spend the proceeds. He said that the caravan had been in a caravan park in Leeton when he and Ms Simons split up. It was towed back to Wodonga and then to other locations where he did not have to pay weekly rent for the site.
25. In a document prepared on 18 July 2005 in conjunction with Ms Simons, shortly before their relationship ended, Mr Ragitsch provided a list of expenditure compiled from receipts (many of which were provided) and their recollections. These included $14,943.03 for an outstanding loan from a credit union; purchase of cars ($59,000); caravan and accessories (over $40,000); assorted insurance payments, registration and extended warranties (several thousand) storage of furniture for 2 years (around $2,500), two mobile phones and calls (around $3,500); fuel and related expenses (over $25,000) and many other individual items. He could not account for all of the expenditure but there is now nothing left of the compensation lump sum. Mr Ragitsch said that following the serious after effects of his 2003 operation, he did not know whether he would even be alive in October 2007. As at 31 January 2006, he had $52 in his bank account with car insurance due shortly as well as the need to buy medicine and other basic needs.
26. In a document prepared on 31 May 2006, Mr Ragitsch stated that he has debts to his sister and parents of about $2,200. He has had to purchase new tyres for his car costing $740.00 for 4 tyres. There is no reliable public transport he can use. He continues to see his specialist and general practitioners and to get blood tests regularly, which require him to use his car. He indicated the difficulty he was experiencing in living on his pension, as he has to pay monthly insurance of $43 for his car and $42 for the caravan. He reiterated that it is not feasible to sell the car or caravan. He also expressed his concern about being able to pay back the benefits he has received so far, if the preclusion period is reinstated to its original length.
Access to superannuation funds
27. In a Centrelink form seeking information about income and assets, which he completed on 27 October 2005, Mr Ragitsch mentioned funds held for him in various superannuation funds. The surrender values listed were: STA Superannuation $102.47; BUS Superannuation $35.62; MLC Superannuation Fund $4,453.55 and AXA Australia Superannuation $12,381.39. Centrelink undertook investigations with the two funds which held the larger amounts.
28. Mr Anthony Rodeh of AXA Superannuation provided a response dated12 May 2006 to a series of questions posed by Centrelink. He stated that the balance of the superannuation account was $12,969.02. He stated that the monies can be accessed on the grounds of ill-health or financial hardship, if approved by the Australian Prudential Regulation Authority (APRA). This required a written request from Mr Ragitsch. It was uncertain how long APRA would take to consider the request. A copy of a letter AXA addressed to Mr Ragitsch at his old address in Yanco was attached to Mr Rodeh’s response. The instructions in the letter included the requirement that a person experiencing severe financial hardship aged less than 55 years would only be eligible for payment on the basis of severe financial hardship if he had been in receipt of Commonwealth income support payments for 26 weeks continuously prior to the application for release of funds and still be receiving payments on the date of application.
29. MLC Insurance appears to have written to Mr Ragitsch on 12 May 2006 following the request for information. The advice given included the requirement for compliance with relevant legislation and that generally the monies must be held until the person reached at least 55 years of age and have permanently retired from the workforce. The account’s value as at 11 May 2006 was $5,430.63. Mr Ragitsch was informed that he must apply to APRA and that only one payment can be approved for release in any 12 month period and the maximum was $10,000 gross in that time. A withdrawal fee of $1,631.64 would apply and the amount available from the MLC account would be $3,798.99. Mr Ragitsch was again advised of the need to have been on Centrelink benefits for 26 weeks prior to the date of application. He was also told that funds could be accessed on very limited compassionate grounds that do not apply to Mr Ragitsch’s circumstances.
30. Mr Ragitsch provided comments in response on 31 May 2006. He stated his belief that his superannuation was preserved until he is 55 years old and that he cannot access the funds. He stated that the money in the MLC Fund was always intended to be his funeral account. He indicated that he had told his parents that if he dies, they are to use the money for his funeral. As for the AXA fund, he has not signed the papers sent to him on legal advice.
CONSIDERATION OF THE ISSUES
31. Section 17(1) of the Social Security Act 1991 (the Act) provides that compensation affected payment includes disability support pension. Section 17(2) provides:
Subject to subsection (2B), for the purposes of this Act, compensation means:
(a) a payment of damages; or
(b)a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c)a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d) any other compensation or damages payment;
(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.
32. Under s 17(3) of the Act, 50 per cent of a lump sum settlement payment is held to be the compensation part of the payment. Section 1170 of the Act sets out the method of calculating a compensation preclusion period, which commences on the day following the last day of periodic payments (s 1170(1)(a)). Section 1170(1)(b) provides that the length of the preclusion period is calculated by dividing the compensation part of the lump sum payment by the income cut-out amount (s 1170(4) and (5)). Income cut-out amount is defined in s 17(1), according to a formula set out in s 17(8).
33. The documentary evidence does not show that the settlement award was for reasons other than compensation for loss of earnings or loss of earning capacity. The Tribunal finds that the compensation received by Mr Ragitsch falls within the definition of compensation in s 17(2) of the Act. The Tribunal is satisfied that the authorised review officer correctly calculated the preclusion period, namely from 12 April 2002 until 4 October 2007, during which no DSP was payable to Mr Ragitsch. The calculations have not been challenged by either party.
34. 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. The meaning of the term special circumstances in the context of social security law has been discussed in several Federal Court cases and a multitude of Tribunal cases. In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J considered the term in the context of s 1237AAD of the Act. Besanko J refers extensively to Ryde v Secretary, Department of Family and Community Services [2005] FCA 866, where Branson J held that the use of the term special circumstances in the legislation demonstrated an intention to proscribe waiver in ordinary cases. Branson J went on to state that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case.
35. In Angelakos, Besanko J states (at paragraph 33):
…I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances…It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case, there must be something that distinguishes the case from the ordinary or usual case…
36. Ms Manova, counsel for Mr Ragitsch, suggested to the Tribunal that it should give considerable weight to the fact that some of the medical conditions now suffered by Mr Ragitsch were not related to those for which he received the compensation payment. Ms Heffernan, a solicitor appearing for the Secretary, queried this point. She referred the Tribunal to Secretary, Department of Family and Community Services v Edwards [2000] FCA 1945, as an authority for the proposition that an absence of a causal relationship between the circumstances giving rise to a person’s entitlement to Centrelink payments and the circumstances giving rise to the compensation is not of itself sufficient to justify shortening a preclusion period.
37. Both parties referred to several previous decisions where the Tribunal considered whether there should be a requirement for a person to sell all assets acquired out of the proceeds of the compensation settlement before a shortening of the preclusion period was warranted. The cases referred primarily to properties or vehicles purchased with the compensation lump sum. The outcomes of those decisions varied as to whether the preclusion period should be shortened, despite the person having acquired assets which he or she did not have prior to the compensation settlement. Among the cases cited by Ms Heffernan was Re Lukic and Secretary, Department of Social Security [1991] AATA 6944 unreported S91/12. In that case the Tribunal did not shorten the preclusion period and suggested that the applicant and his wife, whom the Tribunal found were not credible witnesses, could choose to sell a house they had bought after settlement, to raise funds. Ms Heffernan also referred to Re Stavrakis and Secretary, Department of Family and Community Services [2003] AATA 212. In that case the applicant had sold his existing mortgaged house after the settlement and bought another unencumbered property and had spent a significant amount on overseas trips. In Stavrakis, the Tribunal did not accept the applicant’s evidence that he was addicted to alcohol and when drinking, gambled compulsively. His preclusion period was not shortened.
38. Ms Manova also referred to Stavrakis, indicating that unlike the applicant in that case, there was evidence in medical reports that Mr Ragitsch was alcohol dependent. Furthermore, there has been no suggestion that Mr Ragitsch had not been a truthful witness. Ms Manova also referred to Re Brady and the Secretary, Department of Employment and Workplace Relations [2005] AATA 1145 in that case the preclusion period was shortened due to special circumstances, despite the applicant owning a half interest in a house and a late model vehicle. Factors the Tribunal took into consideration in Brady included the applicant’s mental health, his drug addiction, the breakdown of the relationship with his partner and his lack of funds at the time of the Tribunal’s decision. Ms Manova also cited Re Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050. In that case the Tribunal shortened a preclusion period despite the applicant having purchased a modest home in which to live.
39. The Tribunal does not propose to undertake a written analysis of each case presented because special circumstances need to be considered in the context of the facts of each case.
40. Ms Heffernan has suggested that Mr Ragitsch should be required to sell his four wheel drive and buy a cheaper car and sell the caravan as he could live with his parents. She also stated that a caravan cannot be considered to be a roof over a person’s head in the same way as a house. She commented that Mr Ragitsch could consult with doctors in his local area instead of Griffith, so he did not need to travel so far. Ms Manova disagreed, referring to the difficulty of a patient with Mr Ragitsch’s profile establishing and maintaining rapport and trust in a doctor. Mr Ragitsch stressed that the caravan was a roof over his head, not only at present, when he lived there part of the time, but also when the preclusion period ended. She pointed out that otherwise, when he re-qualified for DSP at the end of the preclusion period, he would have to go into the private rental market and would qualify for rental assistance; thereby costing Centrelink additional funds in the long-term.
41. Centrelink initially suggested that Mr Ragitsch could access his superannuation and undertook investigations with two of the superannuation funds. However, to obtain a payout before he was 55 years of age, he would have to have been paid social security benefits for at least 26 weeks. If the Tribunal reinstated the whole of the preclusion period, Mr Ragitsch would not be eligible as he would not be entitled to social security benefits until after the preclusion period, and hence could not seek the payout. Hence, the funds in superannuation would not be accessible.
42. The Tribunal is of the view that there are a number of relevant factors in this matter that lead to a finding of special circumstances. These include Mr Ragitsch’s alcohol dependence and the resultant erratic decision making and unwise expenditure, his modest remaining assets, his lack of any cash and his personal and accommodation circumstances. The Tribunal is satisfied that Mr Ragitsch requires a reliable vehicle and should not have to sell his existing vehicle given his rural location, his sensible preference to remain with doctors whom he trusts and know his illnesses and his circumstances. The Tribunal is also satisfied that the caravan is the roof over Mr Ragitsch’s head and remains a haven when he cannot cope with living in his elderly parents’ home or they cannot cope with him being there. Mr Ragitsch is now single. His family are not well-off and appear unable to wholly support him to the end of the preclusion period, even if they were inclined to do so. He qualifies for DSP on medical grounds, having been assessed as more than meeting the minimum requirements. The evidence shows that Mr Ragitsch is not able to work. Another consideration is that he now suffers from a number of medical conditions unrelated to his compensation settlement; but this is only one of a number of relevant factors, and certainly not the sole factor (see Edwards).
43. Taking into account the factors described above, the Tribunal is satisfied that this case is out of the ordinary and that there is hardship or unfairness that is sufficient to justify departure from the general rule in the particular case. Therefore, the Tribunal finds that it is appropriate in this case to exercise its discretion under s 1184K(1) of the Act, to disregard part of the compensation received in calculating the preclusion period. That is, in effect, to shorten the preclusion period.
44. The SSAT determined that the preclusion period should end on 29 August 2005. The Tribunal is satisfied that the date chosen by the SSAT was appropriate in these circumstances.
DECISION
45. The Tribunal affirms the decision under review.
I certify that the forty‑five [45] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Dianne Eva
Clerk
Dates of hearing: 31 January 2006, 27 September 2006
Dates of final submissions: 19 October 2006
Date of decision: 18 May 2007Advocate for applicant: Mr M Todd, Centrelink Legal Services Branch (31 January 2006),
Solicitor for applicant: Ms P Heffernan (27 September 2006)
Solicitor for applicant: Australian Government Solicitor
Counsel for respondent: Ms D Manova
Solicitor for respondent: Victoria Legal Aid
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