Rees and Secretary to the Department of Family and Community Services

[2002] AATA 813

DECISION AND REASONS FOR DECISION [2002] AATA 813

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/655
GENERAL ADMINISTRATIVE  DIVISION

Re:CAROLYN REES

Applicant

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             10 September 2002  
Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

SOCIAL SECURITY - recovery of sickness allowance - lump sum compensation - preclusion period - whether special circumstances exist to treat all or part of the payment as not having been made
Social Security Act 1991 s1184K
Director-General of Social Servicesv Hales (1983) 47 ALR 281
Groth v Secretary, Department of Social Security (1996) 40 ALD 541
Re Najdovska and Secretary, Department of Social Security (1998) 54 ALD 184
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

10 September 2002  G.D. Friedman, Member

1. This is an application by Carolyn Rees (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 13 May 2002.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 4 January 2002, that a compensation charge of $20,193.57 in respect of sickness allowance paid to the applicant, during the compensation preclusion period from 16 January 1997 to 3 March 1999, be recovered.

2. At the hearing of this matter on 10 September 2002 the applicant represented herself and 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 (T1 to T23) lodged under s37 of the Administrative Appeals Tribunal Act1975, together with two exhibits (Exhibits A1 and A2) tendered by the applicant.
   BACKGROUND

4. On 16 January 1997 the applicant injured her right leg in a water skiing accident.  From 3 February 1997 she was paid sickness allowance, and on 4 May 2000 she was granted a disability support pension.  On 18 June 2001 the applicant settled her claim for damages in the amount of $125,000 which included a component for future loss of earnings and took into account a reduction in damages by reason of contributory negligence to the extent of 50 per cent.

5. On 18 October 2001 Centrelink calculated that the applicant was subject to a compensation preclusion period of 108 weeks from 16 January 1997 to 3 March 1999.  Centrelink sought recovery of $20,193.57 being the amount of sickness allowance paid to the applicant during the preclusion period.  On 4 January 2002 an authorised review officer of Centrelink affirmed the decision.  On 8 April 2002 the applicant applied to the SSAT for review of the decision and following the decision of the SSAT the applicant lodged an application to the Tribunal on 25 June 2002.
   EVIDENCE

6. The applicant gave oral evidence and told the Tribunal that despite 4 operations her leg has not responded to treatment and that further surgery may be required.  She explained that she has difficulty in walking and is in constant pain.  She stated that she has a diminished earning capacity as she is able to work no more than 20 hours per week due to fatigue.  The applicant said that she has made efforts to gain and maintain employment but her first position as a kitchen assistant in 1997 lasted only 8-10 weeks because of the pain.

7. She said that in February 2002 she commenced a position as a salesperson but was dismissed in August 2002 because her medical commitments prevented her from carrying out her duties.  She stated that she is not coping well with her situation and suffers from anxiety and depression.  The applicant produced a letter (Exhibit A1) from the Endocrinology Registrar, St. Vincent's Hospital, which stated that the applicant is an outpatient and has been diagnosed with thyroid gland problems that may require surgery.

8. The applicant said that after deduction of a debt to the Health Insurance Commission, legal costs and the Centrelink charge, her settlement amount was $79,263.24, from which she repaid a loan from her brother and a loan to finance her motor vehicle.  She said that in May 2002 about $40,000 remained from the settlement amount, and that she plans to use $30,000 of this amount to repay money lent by her mother since the accident.  The applicant described her financial situation as extremely serious and said that she has credit card debts of $3000 and is likely to be evicted from her accommodation because she has not paid the rent.  She said that she has ongoing financial commitments for some of her medication.  She stated that she is contemplating action against her former legal advisers as she was unhappy with the amount she received in the compensation settlement.  The applicant acknowledged that the amount of the Centrelink charge has been fully recovered from her and that she currently receives disability support pension of about $500.00 per fortnight.
   CONSIDERATION OF THE ISSUES

9. Section1184K (1) of the Social Security Act 1991 (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.

10. Mr Todd submitted that financial hardship must go beyond straitened circumstances to constitute special circumstances (Director-General of Social Servicesv Hales (1983) 47 ALR 281). He also stated that there is no evidence that the applicant's medical situation, and the cost of treatment, are more severe, special or unusual than other people in receipt of a disability support pension (ReNajdovska and Secretary, Department of Social Security (1998) 54 ALD 184). Mr Todd submitted that the exercise of the discretion in accordance with s1184K (1) was not warranted in this case.

11. In reaching its decision the Tribunal takes into account the evidence and the submissions made at the hearing. Section 1184K allows the decision-maker to consider the particular circumstances of each case. There must be something to distinguish the case from others, or to make it stand out from the usual or ordinary (Groth v Secretary, Department of Social Security (1996) 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.

12. The Tribunal accepts that the applicant has financial difficulties arising from the requirements of ongoing medical treatment for her injured leg, and that her injury is causing pain and has not responded adequately to treatment.  The Tribunal also accepts that the applicant has made a genuine attempt to seek and maintain employment.  However, the Tribunal accepts the submission from Mr Todd that the applicant is receiving disability support pension, she has a reasonable sum remaining from her settlement amount, she has demonstrated that certain employment possibilities might be open to her in the future and that further surgery may assist her long-term rehabilitation. 

13. For these reasons the Tribunal is not satisfied that the state of the applicant's financial or medical situation is such as to make her circumstances unusual, uncommon or exceptional. Therefore, the exercise of the discretion under s1184K of the Act, to disregard the compensation received in whole or in part, is not appropriate in this case.
    DECISION

14. The Tribunal affirms the decision under review.

    I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:
    G.D.Friedman, Member

    (sgd)       Olympia Sarrinikoloau
                  Clerk

    Date of hearing:  10 September 2002
    Date of decision:  10 September 2002
    Advocate for applicant:               Self-represented
    Advocate for respondent:            Mr M. Todd, Advocate with Centrelink