Reid and Department of Family and Community Services
[2000] AATA 803
•21 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 803
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/223
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT REID
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION AND ORAL REASONS FOR DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date21 August 2000
PlaceBrisbane
Decision For the reasons given orally at the hearing, the Tribunal sets aside the decision under review insofar as it decided to preclude the applicant from payment of benefits from 20 January 1997 to 10 December 2000 and substitutes a decision to preclude the applicant from payment of benefits from 20 January 1997 to 10 September 2000.
.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
SOCIAL SECURITY – preclusion period imposed after applicant received a lump sum compensation payment – whether special circumstances existed to reduce the preclusion period.
Social Security Act 1991 s 118(4)(1)
Re Lubcic v The Secretary, Department of Social Security, S91/92, decision number 2390.
ORAL REASONS FOR DECISION
21 August 2000 Miss WJF Purcell (Senior Member)
The applicant seeks a review of a decision of the Social Security Appeals Tribunal, the SSAT, of 29 February 2000, which affirmed the decision of an Authorised Review Officer to impose a lump sum preclusion period from 20 January to 10 December 2000, and to recover the sum of $18,506, being Newstart Allowance and Disability Support Pension paid to the applicant during the preclusion period.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the applicant who appeared on his own behalf and gave oral evidence. Mr McQuinlan, Departmental Advocate, represented the respondent (the Department).
The applicant, who was born on 14 November 1956, was involved in a domestic accident on 20 January 1997, when he fell from the second story of his rented premises onto his head. He broke his neck in three places, and ruptured two discs in his lower back. On 31 May 1999 the Compensation Management Section of NRMA Insurance advised Centrelink that the applicant's claim had settled out-of-court for the sum of $170,000, inclusive of costs and out-of-pocket expenses.
On 7 June 1999 a delegate determined that payments made to the applicant from 20 January 1997 to 27 May 1999, totalling $20,828.78, were refundable and that the lump sum preclusion period was from 20 January 1997 to 10 December 2000. Also, on 7 June 1999, the Department wrote to the applicant telling him that his Disability Support Pension would cease after 10 June 1999, and then he would not be able to receive the pension again until after 10 December 2000. On 8 June 1999 the delegate amended the determination as to the amount of money the applicant owed, and the amount was reduced to $18,506.11. The preclusion period remained the same.
The applicant maintains that, when he recovered sufficiently from his injuries, he and his wife and three young children, aged 9, 8, and 3, wanted to leave the district in New South Wales where they resided because of the attempted rape of his daughter. The family had absolutely no assets, and, although the applicant was aware, from June 1999, of the length of the preclusion period, they had been able to survive on Social Security payments in the past, and the necessity to provide a home for the family was their first priority. He received $94,000 net from the settlement and he borrowed $42,000 from the Commonwealth Bank in October 1999 and purchased a home, 20 minutes drive from Ipswich for $94,000. Bank repayments were about $83 per week. They are now $199.50 per fortnight or $99.75 per week.
The applicant said, in evidence, that, after repayment of loans and purchase of a car for $2,500, and furniture for $4,500, he had calculated that the balance of moneys would tide the family over until 10 December 2000, the end of the preclusion period but other circumstances intervened: the unanticipated costs of purchase of the home, costs of removal to Queensland, his schizophrenic son from his former marriage having arrived, without clothing and money, having given away his property, his wife's unplanned pregnancy with the fourth child due in mid-September 2000. He outlined in evidence the parlous situation in which the family finds itself, due to circumstances, he maintains, that are beyond his control. He had calculated carefully and was convinced that the family could survive, but, in these circumstances, their situation has deteriorated greatly.
The Department contends that no special circumstances exist in order that any or part of the compensation preclusion period should be reduced. The applicant was well aware of the compensation provisions of the Act and how they would affect him, many months before he purchased his home. He chose to spend almost all of the $94,000 he received on the purchase of the new home. The Department relies on the decision in Re Lubcic v The Secretary, Department of Social Security, S91/92, decision number 2390.
The Department argues further that the financial hardship the applicant is suffering is as a result of his decision to buy the home. In this respect, the Department maintains that the applicant has retained his settlement money, but it is in another form, that is his family home. For the applicant to purchase a home, and then expect to receive pension payments would mean that he would be compensated twice. His situation is far from desperate. His wife is in receipt of parenting and family payment, and the applicant should have negotiated with the Commonwealth Bank for a reduction or suspension of payments until the preclusion period ceased.
It is clear on the evidence that the applicant suffered a very serious injury on 20 January 1997 in a domestic situation, rather than a road accident or workers' compensation scenario. He continues to suffer the effects of the injury, pain and depression, and is on medication to help reduce these symptoms. I consider that the whole of the applicant's circumstances, including his financial situation, are so unusual and uncommon and exceptional that it would be unjust and inappropriate for him to be without payment of pension until 10 December 2000. I am satisfied that the discretion pursuant to section 118(4)(1) of the Social Security Act 1991 should be exercised in his favour. His fourth child is due to be born in mid-September 2000 and I consider that the preclusion period should end on 10 September 2000.
For these reasons, the Tribunal sets aside the decision under review insofar as it decided to preclude the applicant from payment of benefits from 20 January 1997 to 10 December 2000 and substitutes a decision to preclude the applicant from payment of benefits from 20 January 1997 to 10 September 2000.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 21 August 2000
Date of Decision 21 August 2000
Applicant In person
For the Respondent Mr R McQuinlan, Departmental Advocate
0
0
0