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

This matter concerned an appeal by an applicant against a decision by the Secretary of the Department of Social Services regarding the applicant's eligibility for a disability support pension. The central dispute revolved around whether the applicant's pension was subject to a compensation preclusion period and, if so, whether special circumstances warranted treating part or all of the compensation received as if it had not been made. The decision was made by Mrs J C Kelly, Senior Member, of the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine two primary legal issues. Firstly, it needed to ascertain whether the applicant's disability support pension was correctly subject to a compensation preclusion period spanning from 26 September 2015 to 21 September 2018. Secondly, if such a preclusion period was applicable, the Tribunal had to consider whether any special circumstances existed that would justify disregarding all or a portion of the compensation payment received by the applicant for the purposes of the pension assessment.

The Tribunal's reasoning focused on the provisions of the *Social Security Act 1991* (Cth) concerning lump sum compensation payments and their impact on income support payments. The Act establishes a scheme where compensation payments, particularly those attributable to lost income or earning capacity, can result in a "preclusion period" during which a disability support pension is not payable. The Tribunal noted that the applicant had received multiple lump sum payments totalling $295,250 for a workplace injury, which the Department characterised as a lump sum compensation payment. This characterisation meant the disability support pension was a "compensation affected payment" under the Act. The method for calculating the length and commencement date of the preclusion period is prescribed by section 1170 of the Act.