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

Roberts and Secretary, Department of Social Services (Social services second review) [2021] AATA 3062 (30 August 2021)
Division:GENERAL DIVISION
File Number: 2020/2504
Re:Yu Feng Roberts
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean
Date: 30 August 2021
Place:Melbourne

The Tribunal SETS ASIDE the decision under review and a decision substituted that under section 1184K(1) of the Social Security Act 1991 (Cth) special circumstances exist by reason of which the Applicant is not liable to pay the amount sought to be recovered from her by the Respondent.
……[sgd]………………………….
Dr Damien Cremean
Catchwords
Social Security — Alleged overpayment — whether “special circumstances” exist — Physical and mental health conditions of Applicant — decision set aside.
Legislation
SocialSecurity Act 1991(Cth)
Cases
Brian Lewis Growth and Secretary, Department of Social Security [1995] AATA 62
Re Rosemarie Beadle and Director-General of Social Security [1984] AATA 176
REASONS FOR DECISION
Dr Damien Cremean
30 August 2021
BACKGROUND

The Applicant applies to review a decision of the Social Services & Child Support Division of the Tribunal (“Tier 1”) affirming a decision of an authorised review officer dated

15 January 2020. Tier 1 commented (at [18]) that “at times” the evidence of the Applicant was difficult to follow.
By that decision a preclusion period was applied in respect of the Applicant for the period from 4 October 2006 to 17 July 2008, and that resulted in a recoverable compensation charge of $41,246.61.
By her application to this Tribunal dated 28 April 2020, the Applicant says the decision of Tier 1 is “wrong”; the Applicant refers to her capability of taking care of her children and says the money from her parenting payment was spent on their needs. She also says she was not told she was in receipt of an overpayment. She says she has been left very vulnerable and has been experiencing a homeless episode.
The hearing in this matter took place on 15 December 2020. The Applicant gave affirmed evidence by telephone via interpreter and was self-represented although assisted by

Ms Lisa Mason, a crisis worker, who also was affirmed. Ms Mason was in the same room as the Applicant when giving evidence.
A later brief hearing took place on 2 August 2021.
Earlier, Ms Mason lodged with the Tribunal a letter containing submissions on behalf of the Applicant dated 22 January 2021. As well, a letter from Dr David Court dated 18 December 2020 was lodged with the Tribunal.
The Respondent was represented by Mr Noonan, a lawyer employed by Services Australia.
Submissions were lodged with the Tribunal by the Respondent dated 2 February 2021.
In the course of the hearing it became clear that the real issue in the matter was whether the Applicant falls within the special circumstances provision in s 1184K of the SocialSecurity Act 1991 (Cth) (“Act”).
LEGISLATION
Section 1184K (1) of the Act provides:
(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.
(2) If:
(a) a person or a person's partner receives or claims a compensation affected payment; and
(b) the person receives compensation; and
(c) the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person's or the person's partner's receipt of, or claim for, the compensation affected payment;
the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1).
ISSUES
I have indicated the real issue in the matter is whether the Applicant falls within s 1184K(1) or not.
The Applicant contends for a number of reasons that she does fall within the category of “special circumstances” under s 1184K(1). Amongst other things she refers to her health, her husband’s health and her necessitous circumstances. Therefore, she argues the decision affirmed by Tier 1 should be set aside.
The Respondent, however, submits that the Applicant does not fall within that category of “special circumstances” and that the sum of $41,246.61 is rightly to be regarded a recoverable compensation charge. Accordingly, the Respondent argues the decision affirmed by Tier 1 should be affirmed.
EVIDENCE
The Applicant ‘s version of events was difficult to follow for a number of reasons (including language and technology) but I have been assisted greatly by the letter of Ms Mason, dated 22 January 2021. I acknowledge however, that the contents of that letter have not been verified on oath or affirmation. Further, I acknowledge the Respondent has not been able to cross examine Ms Mason on the contents of that letter.
The Applicant, Ms Roberts, is aged 60 and is married but separated from her husband and is living in crisis accommodation. She arrived in Australia in 1992 and may have married (for a second time to an Ian George Roberts) in 2002.
It appears that on 4 October 2006, Ms Roberts was the victim of a “hit & run” driver and suffered serious injuries including injury to her right arm and shoulder, lower back and knees.
At the time she was a student at Swinburne University and a mother of two young children.
As a result of her injuries, the Applicant was unable to pursue her studies.
The Applicant was receiving a Partnered Parenting Payment payable under the Act.
The Applicant considers she is entitled to such payment from 2006 until 2018 “as she was providing her children with the support and opportunities that have enabled them to be highly achieving young adults”. Her son is now a medical doctor and her daughter is studying law.
Her personal injuries claim was initially for $850,000 but was apparently settled “out of court” for $600,000.
The Applicant “expected that the entire $600,000 would be deposited in her bank account [but only] $558,753.39 was deposited as apparently TAC [Transport Accident Commission] directed $41,246.61 directly to Centrelink without [her] knowledge or consent”. It is her belief that if “Centrelink was entitled to be repaid an amount of money, it should have been taken out of the ‘costs component’ not the $600,000 awarded for damages, pain and suffering”.
The letter from Ms Mason clarifies that the Applicant’s bank statements “show a number of large withdrawals & transfers that she sates [sic] she was not aware of”. There is reference also by Ms Mason to the Applicant “recently…acquired a copy of the transfer of her house into her husband’s name on which her signature has been forged!”.
The Applicant explained that she had been homeless for seven months and that she is in debt and “struggling at the moment”. Ms Mason interposed that the Applicant had been secured a place in an aged care facility. The Applicant also mentioned; “I have to take a lot of medications at the moment”. She said, “after the accident, I’ve been suffering great health issues, mentally and physically”. She said that “[b]ased on my mental issue, or illness, my family reckon I’m a threat to their safety”. She said, “that’s how I became homeless”. She added, “Thanks to Uniting Wesley, I could have a place to stay, like a roof over my head”.
In cross examination, the Applicant said in relation to the accident and said, “I received the injury from head to toe”. She said that as to her settlement sum “court costs are all excluded from that $600,000”.
The Applicant said as to the rest of her settlement sum; “for myself, don’t know where the rest of the money going to”. Speaking with reference to her husband she said he had “been stolen all the money”.
The Applicant said that formerly, the Mulgrave residential property was in her name alone; “before 2007 is my solo name only. But then, 2007 to until now, is in my husband’s solo name only”. When asked about a transfer she said, “Lots of things, I can’t remember lots of things”.
The Applicant then gave details of an intervention order taken out on Christmas Day in 2019 by her “whole family, by the police”. She said that on that occasion she was found with a carving knife in her hand and “they handcuff me, put me in the police van and take me from home to the Oakleigh station and after that I’ve been homeless since then”.
The Applicant said that until February 2020, she was unaware of where all her money had gone. She said, with reference to an entry in a bank statement for 24 July 2018, “if I know my bank statement any number go anywhere I wouldn’t be sitting here today.” She said, “I know nothing. I only know from my pain and suffering and damage there is a reward for my pain and suffering and the damage money …I got nothing”.
With regards to a receipt from her daughter’s school, dated 24 July 2018, acknowledging a payment of “$50,000 from the Roberts family”, the Applicant said, when asked if she paid that sum or how it was paid, “I don’t know. I don’t know, but if they say in that email and I believe is also showing correctly showing my bank account, they must be doing the right thing”. She added, “I’m happy, I’m grateful but I don’t know really how to get it there or how from my bank account go there or how they did it, I really don’t know”.
In passing, I note that Tier 1 (at [17]) says in the Reasons for Decision that the Applicant told Tier 1 she spent $112,000 on school fees.
The Applicant agreed that she is receiving Disability Support Pension and said she had no other sources of income. When asked about expenses, she said she did not have a credit card at the moment. She mentioned rent as an expense amounting to $354.95 being deducted from her pension every fortnight. She also mentioned medical expenses of “[m]ore than $100 every fortnight”.
Asked about the state of her health she said, “I’ve got severe chronic pain”. She mentioned that she had suffered a fractured neck but it “can’t be operated”. She also mentioned a right shoulder tear and nerve pain. She said she received steroid injections and pain management physiotherapy. She said she sees Dr Court every two weeks and her psychologist every week. She said, “I’ve been taking thousands, thousands antidepressant medication in the past 14 years”.
By way of clarification of her evidence following cross examination, the Applicant referred to her husband having stage IV terminal cancer. She said as regards the sum of $41,246.61 “I say I should be rewarded that money, I should be receiving that money”.
ANALYSIS
The expression “special circumstances” in s 1184K(1) of the Act is, it has been said, “by its very nature incapable of precise or exhaustive definition”.[1] However, it has been held that to be “special” the circumstances must be such as to distinguish the particular case concerned to take it out of the ordinary.[2] The authorities make it clear that a variety of factors may be considered; no one factor on its own need dominate.
[1] Re Rosemarie Beadle and Director-Generalof Social Security [1984] AATA 176 at 12.
[2] Brian Lewis Growth and Secretary Department of Social Security [1995] AATA 62.
The Applicant, as far as I can make out, relies on the following factors as constituting special circumstances in this case: her ill health and injuries; her husband’s ill-health; her homelessness and indebtedness. There may be others I have been unable to discern including possible forgery or elder abuse, if I go by the letter from Ms Mason.
I must make the observation I have found it very difficult to follow much of the Applicant’s evidence. Even making due allowance for language and technological difficulties, the Applicant did not seem to understand questions quite properly asked of her or did understand them but chose to say what she wanted to say in any event. The result is that much of her evidence is unhelpful to me. But I am not directly criticising her.
In any event, three documents have come to my attention since the December 2020 hearing and I have arranged for the Respondent to be given copies of each and Mr Noonan did make submissions concerning them.
I am able to accept and find that the Applicant does suffer serious ill-health and was badly injured in 2006 when struck by a vehicle. I rely in particular on the report of Dr Court. An earlier report of Dr Tuladhar, dated 12 September 2013, details the injuries suffered by the Applicant; I accept that the Applicant suffers a mental health issue of some kind and experiences loss of memory. I refer to the report of Dr Shvetsov, dated 2 September 2013 referring to a history of post-traumatic stress disorder.
I accept also that the Applicant has been experiencing homelessness and has been helped greatly in that regard by Ms Mason.
There is information contained in the T documents, which I have regarded as tendered, which goes some of the way to supporting the Applicant’s case.
I accept therefore, and as mentioned in evidence by the Applicant, that the Applicant reached agreement to be paid $600,000 in settlement of her action but that $41,246.61 was subtracted by Centrelink in exercise of powers under the Act.
I believe I may find as well that out of the balance certain debts have been paid, in particular a sum of $50,000 to the daughter’s school on or about 24 July 2018. There was reference in cross examination to payment of an amount in the sum of $250,000 in Bank records (in the T documents) but I was not clear that this was accepted by the Applicant as having been made.
At this point I should like to mention the first of the documents I refer to in paragraph 38 above.
This is an exceedingly detailed Occupational Therapy report on the Applicant by Mr Stephen Woolley, dated 28 May 2021 done for the express purpose of the National Disability Insurance Agency (NDIA).
In his Report, which is accompanied by photographs of the Applicant, Mr Woolley occupational therapist gives as his primary diagnosis of the Applicant: “Chronic pain syndrome”; “Anxiety”; “Post traumatic stress disorder (PTSD)”; and “Depression”.
In the Summary of his Report, Mr Woolley says that the Applicant’s “physical and psychological deficits are unlikely to significantly improve/change …and are life-long which will require her to have ongoing care to ensure she is able to manage her home situation and ensures personal and domestic tasks are completed to an adequate standard Mr Wolley goes into great detail to explain his views.
It suffices for my purposes however, to say that no-one reading his Report could reasonably form a view that the Applicant’s mental and physical infirmities do not constitute “special circumstances” for the purposes of s 1184K(1) of the Act.
The clear view which I formed based on Mr Woolley’s Report is that it would be quite unconscionable not to find that “special circumstances” exist in this matter under s 1184K(1) of the Act.
The second document to hand is the medical Report on file of Dr Court, dated 18 December 2020.
Dr Court’s opinion is that the Applicant has a number of serious physical and psychological conditions and “continues to struggle financially, physically and mentally” and he says “I anticipate that these problems and disabilities are permanent and may even deteriorate over time”.
The Report of Dr Court, therefore, strongly supports the view of Mr Woolley and the view which I take about “special circumstances” in this case.
The third document is dated 25 July 2021 from Dr Stuart Brinkworth, Consultant Psychologist, who states that he has seen the Applicant over 70 times from July 2018 and although counselling has “helped to reduce the severity of some of the symptoms of anxiety, depression and post-traumatic stress, it would be my professional opinion that these impairments are permanent”.
Dr Brinkworth goes on to discuss how the Applicant is unable to manage her own self-care due to her depression, other mental health conditions and physical injuries.
The plain effect of Dr Brinkworth’s report is that the Applicant has permanent impairments, further supporting the view that “special circumstances” exist.
At the short hearing on 2 August 2021, Mr Noonan referred me to the Respondent’s Statement of Facts and Contentions from paragraph 16 and following but I have read them closely and ultimately, I consider I am not better informed by doing so.
The reality is that s 1184K(1) confers a discretion and I am satisfied in light of the matters I have set out that ”special circumstances”, as I say, exist in this case.
I am fortified in this view by the additional three documents I have referred to above.
DECISION
Accordingly, for the reasons above the decision under review is set aside and I find that the Applicant is not liable to pay the amount sought to be recovered from the Applicant by the Respondent.

1. I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member.

60.

........[sgd]...................................................
Associate
Dated: 30 August 2021

Dates of hearing:

Applicant:

Applicant’s Social Workers:

23 November 2020, 15 December 2020, 13 May 2021 and 2 August 2021

By telephone

Lisa Mason and Lauren Finnegan

Advocate for the Respondent: Tim Noonan

Solicitors for the Respondent: Services Australia

[2021] AATA 3062

30 August 2021

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