Ranieri and Secretary, Department of Family and Community Services

[2005] AATA 246

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 246

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/189

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FRANCO RANIERI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date18 March 2005

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell  Senior Member

SOCIAL SECURITY – whether preclusion period imposed should be modified – whether circumstances are special enough for Tribunal to exercise discretion.

REASONS FOR DECISION

18 March 2005 Ms N Bell, Senior Member

1.      Mr Ranieri, aged 59, was awarded $463,879.17 by the District Court on 14 September 1998 after injuring his back at work in 1994.

2.      A preclusion period was imposed by Centrelink, initially from 29 September 1998 to 2 May 2016 and later changed to end on 12 May 2015. Mr Ranieri contends that his circumstances are special and that I should exercise the discretion under section 1184K to treat a part of the compensation payment as not having been made. In particular, Mr Ranieri seeks to have the preclusion period shortened so that, on reaching 65 years on 22 October 2011, he will not be precluded from receiving aged pension.

3.      There is no dispute as to the following:

·     Mr Ranieri received advice from his solicitors that he would be precluded from receiving social security payments only up until October 2005;

·     Mr Ranieri purchased 25 acres at Luddenham with his sister, each of them contributing $250,000.00 and later purchased his sister’s interest in the land for $345,000.00.

·     On 5 July 2000 Mr Rainieri received a further amount of compensation in the sum of $61,408.69 for an injury to his hand;

·     Mr Ranieri bought out his sister’s interest in the land for $345,000.00;

·     Mr Ranieri sold his home in Prairiewood for $430,000.00 and built a house on the Luddenham property for approximately $400,000.00;

·     An informal valuation in 2002  set the value of the house and land at $900,000.00 - $1,000,000.00;

·     Mr Ranieri has lost livestock and had fences destroyed by fire and the property has been drought stricken, making him short of feed and water for his remaining few calves and sheep.

4.      Mr Rainieri told the Tribunal that the District Court Judge in his compensation case had told him that he would receive no social security payments until he reach the age of 65. He said he relied on that and would not have built his house if he had known that he would be without social security payments beyond his 65^th birthday. He said he is attempting to have the land subdivided but indications so far are that the Council will not allow the subdivision.

5.      Mr Ranieri said that he purchased the 25 acres in order to generate income from livestock.  With attacks on livestock by dogs, and with fire and drought he now only has 6 cows, 4 calves and 5 sheep and no feed or water for them. Through dogs and fire he lost over 40 animals.

6.      Mr Ranieri said that the house he built has 4 bedrooms and an area of 40 squares.  It is on one level in order to accommodate his disability. He said he had some help from his sons-in-law with food and with work on the property.

7.      At the time of the hearing Mr Ranieri had approximately $1000.00 in the bank and 2000 NRMA shares. Mrs Ranieri receives a pension.

consideration

8.      Some of Mr Ranieri’s circumstances are unusual or out of the ordinary including the misfortune he has experienced with attacks by dogs, and with fire and drought and the effect they have had on his land and animals and therefore on his income.  There is also the misinformation he received as to the likely end date of any preclusion period.

9.      However, Mr Ranieri has a substantial asset in his house and land, the ultimate value of which is subject to the possibility of subdivision which would increase its value substantially.

10.     Mr Ranieri’s request, based on the argument that he was compensated only up until his 65^th birthday, that the preclusion period should end at time, is predicated on the assumption that his circumstances will not improve in the next six years, that is, that his 25 acres will continue to produce no income and that he will be unable to sell the property or subdivide it. None of these matters can be predicted with any certainty.

11.     While Mr Ranieri’s circumstances include some unfortunate events, he has a very substantial asset which may ease the hardship of his circumstances over the next 6 years.

12.     With this asset available, it is too soon to tell whether Mr Ranieri’s circumstances, in 2011, will be sufficiently special to justify the exercise of the discretion. For now, the availability of the house and land, and the absence of any evidence of inability to realise it, make it inappropriate to exercise the discretion.

13.     It will be open to Mr Ranieri, closer to his 65^th birthday, to challenge the preclusion period again if his circumstances warrant it.

decision

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ............[Linda Blue].......................................
  Associate

Dates of Hearing  27 May 2004
Date of Decision  18 March 2005
Counsel for the Applicant         Mr M Hutchins
Solicitor for the Applicant          Savio Solicitors
Solicitor for the Respondent     Mr J Kenny