ROXANNE CURTIS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2013] AATA 386

[2013] AATA 386  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0128
Re	ROXANNE CURTIS
APPLICANT
And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	7 June 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Parenting payment – Compensation affected payment – Preclusion period – No special circumstances – Decision under review affirmed

LEGISLATION
Social Security Act 1991 (Cth) ss 1170, 1184K

CASES
Dranichnikov v Centrelink (2003) 75 ALD 134
Groth v Secretary Department of Social Security (1995) 40 ALD 541
Haidar v Secretary, Department of Social Security (1998) 52 ALD 255
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Colaiacolo and Secretary to Department of Social Security [1985] AATA 91
Re Zaccardi and Secretary, Department of Social Security (1995) 40 ALD 760

REASONS FOR DECISION

Dr M Denovan, Member

INTRODUCTION

1. As a result of a motor vehicle accident Ms Curtis sustained injuries which she received compensation for. When Ms Curtis received a compensation payment for those injuries, Centrelink raised a debt of $6,133.43 for compensation affected payments in relation to parenting payment she had received for the period 16 December 2010 to 29 June 2011.

   BACKGROUND

2. Ms Curtis was injured in a motor vehicle accident on 16 December 2010. On 6 April 2012, Ms Curtis received a lump sum compensation settlement of $42,000 plus costs of $2,950 and $2,156 for rehabilitation and medical expenses, giving a gross settlement of $47,106.[1]

   [1] See Exhibit 1, T-document 7, pp. 30-37, esp. p. 37.

3. In a decision dated 10 May 2012, Centrelink decided to recover the amount of $6,133.43 on the basis of a preclusion period from 16 December 2010 to 29 June 2011, calculated in accordance with Part 3.14 of the Social Security Act 1991 (Cth).[2] An authorised review officer affirmed the decision on 2 October 2012, as did the Social Security Appeals Tribunal on 30 November 2012. Ms Curtis appealed to this Tribunal on 10 January 2013.

   [2] In particular see s 1170 of the Social Security Act 1991 (Cth).

   LEGISLATION

4. The legislation relevant to this application is contained in the Social Security Act 1991 (Cth) (“the Act”).

5. The Act sets up a scheme whereby if a person receives compensation containing a component for past or future loss of income, then they must live off that compensation for a period of time. This period of time is called the “preclusion period”. The length of the preclusion period is determined by the amount of compensation received. A person cannot be paid Centrelink payments during the preclusion period. The fundamental idea is that if a person was to receive money intended for them to live on for some period of time from a compensation payment and also receive Centrelink payments, then they would effectively be “double dipping”, being paid twice. This would not be an appropriate or responsible use of taxpayer’s resources.

6. However, the Secretary may disregard some compensation payments in special circumstances.[3]

   [3] Social Security Act 1991 (Cth) s 1184K

7. It is not in dispute that, as a result of receiving a lump sum compensation payment, a recoverable debt arises in the sum of $6,133.43 due to the receipt of parenting payment by Ms Curtis during the preclusion period. However, Ms Curtis claims that she has financial and medical stressors in her life that make her circumstances exceptional and asks that I exercise the discretion in s 1184K of the Act to disregard the compensation payments and annul the recoverable debt. It is the respondent’s position that this is not a case where there are compelling reasons to exercise the discretion and nor does it have any similarity to the circumstances of other cases where the discretion has been exercised.

8. I have to decide whether there are special circumstances which would allow some or all of the compensation payment to be disregarded.

   APPLICANT’S CASE

9. Ms Curtis told me that she suffers from Graves’ disease, diagnosed in October 2010, a condition of the thyroid gland which requires her to have regular visits to both her GP and an endocrinologist. Ms Curtis said that this condition results in her suffering from many symptoms varying from depression, severe headaches, dizziness, fatigue, mood swings, rapid heart rate, reduced cognitive function, diminished vision and muscle weakness.

10. Ms Curtis, by way of support, provided a letter from her general practitioner, Dr Salma Seedat, who stated that Ms Curtis suffers from multiple medical conditions including a thyroid condition, weight gain, fatigue and a vitamin deficiency. She also stated that Ms Curtis has been under a considerable amount of stress as her daughter has been unwell and is seeing a specialist for a bladder issue. Dr Seedat stated that Ms Curtis is currently under a lot of stress, which appears to be worsening, that she was quite tearful in the consultation and that she features signs of depression.

11. At the hearing, Ms Curtis told me that the medications she was taking to treat the Graves’ disease had caused such significant weight gain (30 kg) that it was necessary for her to have part of her stomach removed. She was scheduled to have that surgery on 17 September this year and although she has some private health insurance it is intermediate cover only so the operation is going to be a financial burden to the family that was not anticipated and budgeted for. Ms Curtis was unsure of the exact amount she will have to pay after Medicare and private health fund rebates. She had discussed it with the receptionist of the surgeon, and also with someone she knew who had the same procedure done, and she concluded that she would be out of pocket between $3000 and $4000. Ms Curtis said she would know the exact amount when she had a consultation with the surgeon in June this year. Ms Curtis said she also has another potential expense in the future; there is a possibility that she may have to be treated with radioactive iodine if her thyroid condition cannot be controlled by tablets. Ms Curtis was unaware what, if any, costs she would have to pay over and above Medicare and private health fund rebates in relation to that procedure.

12. Ms Curtis had a miscarriage in 2011 and she has been told that Graves’ disease makes the chance of her having more children unlikely. This, she said, is an additional ongoing stress she has to live with. Another daily stress Ms Curtis has to deal with relates to her daughter. Ms Curtis told me her young daughter suffers from urinary reflux and this causes her stress. She said that she gets stressed because her daughter gets stressed. Her daughter is the only child in prep school who wets her pants. Ms Curtis sends spare underpants but worries that she may get a call at work because her daughter does not have sufficient spare underpants. She also worries about the possibility of her daughter coming home with a rash. Ms Curtis said the problem is improving.

13. Fortunately, despite these medical problems, Ms Curtis manages to continue working.  Ms Curtis was not required to cease work even around the time she had the accident, at which time she as working part-time. After her daughter commenced prep school, Ms Curtis commenced full-time work. She now clears $1,500 a fortnight and her partner clears $800-$1200 a fortnight. The couple pay $410 a week rent and own most of their furniture and a car.

    FINDINGS OF TRIBUNAL

    Are there special circumstances which allow all or part of the compensation to be treated as though it has not been made?

14. Whilst “special circumstances” are not defined in the Act, the approach to be taken in interpretation and application of the discretionary provisions has been dealt with by the Tribunal and the Federal Court in numerous circumstances.

15. In Re Beadle and Director-General of Social Security[4] it was said:

    The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

    [4] (1984) 6 ALD 1 at 3.

16. In Dranichnikov v Centrelink[5] the Full Federal Court, when considering the meaning of special circumstances, observed:

    … what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary.

    [5] (2003) 75 ALD 134 at 148 [66] per Hill, Kiefel and Hely JJ.

17. Financial hardship has been considered as a possible component of special circumstances in a number of decisions. It is well established that by itself hardship is not enough[6] and that financial circumstances must be more than straitened, they must be exceptional[7].

    [6] Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 4.

    [7] Re Colaiacoloand Secretary to Department of Social Security [1985] AATA 91; Groth v Secretary Department of Social Security (1995) 40 ALD 541; Re Zaccardi and the Secretary, Department of Social Security (1995) 40 ALD 760.

18. It is also important to consider what circumstances are relevant when considering whether there are special circumstances. Whilst the discretion is not limited solely by reference to the person’s circumstances within the preclusion period, events after the exclusion period are usually not relevant. In Haidar v Secretary, Department of Social Security,[8] Hill J said: 

    … should it be the case, that some event which happened after the expiration of the preclusion period but before the Tribunal heard the matter, and which event was wholly unrelated to the relationship between the lump sum and pension, have any significance at all? It is hard to see how it could.

    [8] (1998) 52 ALD 255 at 264.

19. I found Ms Curtis to be a most credible witness. She is also clearly an intelligent, conscientious woman who in spite of having to face a number of medical problems has continued to work to help support her family.

20. The preclusion period applied to Ms Curtis was relatively short, a period of just over six months from 16 December 2010 to 29 June 2011. At that time she had only recently been diagnosed with Graves’ disease. No doubt the weight gain which is a consequence of the medication to treat that condition commenced soon after October 2010 when she was diagnosed; however, the financial cost of removing part of her stomach because of the ongoing weight gain will not have to be met until 2013. Whilst this operation will still represent a significant expense, both Ms Curtis and her partner are now working full-time and I do not expect that they will be placed under unbearable financial stress as a result of the surgery.

21. There was certainly no significantly large financial stress related to the condition during the preclusion period other than perhaps costs associated with mediations to treat the condition, but these could hardly be regarded as causing a financial burden to a family in a position such as that of Ms Curtis’.

22. During the preclusion period Ms Curtis continued to work. Her partner was also working and they had $11,000 of the $20,000 (the amount Ms Curtis received after lawyer’s fees, Medicare and Centrelink debts were paid) compensation payment in a term deposit until as recently as 28 September 2012. They were paying a modest amount of rent but otherwise they had no other regular financial outgoings as they own their own vehicles and most of their own furniture (with the exception of a lounge which they are paying off). Ms Curtis did have a debt to her mother but this has now been repaid. Ms Curtis told me that there is nothing remaining of the $20,000.

23. Ms Curtis’ financial situation is considerably better than the majority of applicant’s who appear before this Tribunal. Her circumstances during the preclusion period and subsequently cannot be regarded as straitened or exceptional.

24. During the preclusion period, Ms Curtis’ diagnosis of Graves’ disease, and coming to terms with the long term consequences of that condition on not only herself but on her husband and child and the potential effect it may have on her fertility, would have compounded the other stressors she was faced within the preclusion period. I understand that the stress of having Graves’ disease did and continues to impact significantly on her relationships.

25. I accept that during the preclusion period Ms Curtis would have been dealing with some considerable stress due to the recent diagnosis of Graves’ disease. The issue she was dealing with relating to her daughter’s urinary reflux during the 6 month preclusion period, although not insignificant, I conclude would not have been causing her stress to a degree that would make her circumstances exceptional. I also note that urinary reflux is not an uncommon condition and one that many parents of young children have to cope with. Worrying about whether your child might come home with a rash or that a school may call you because your child does not have enough underpants, whilst distressing, is not worse than the issue that most parents are faced with during the years they raise and care for their children.

26. Unfortunately, life is stressful and the stress that results as a consequence of medical conditions and concerns about their children’s welfare is something that the majority of families have to face from time to time. Whilst Ms Curtis’ medical condition is certainly very serious and has had life changing consequences, fortunately it can be treated and, unlike many medical conditions facing many families who request special circumstances, Ms Curtis’ medical condition does not prevent her from working and is, fortunately, not a terminal condition.

27. The intention of the compensation provisions is that those who receive a lump-sum compensation payment are expected to support themselves from their own resources for a period before seeking support from the taxpayer. The question of whether there were special circumstances must be asked with this in mind. The application of s 1184K of the Act in these circumstances would be inappropriate as it would frustrate the purpose of the legislation. Ms Curtis’ circumstances are not, in my opinion, exceptional and are not the type which enlivens the discretionary provision of s 1184K of the Act.

28. For these reasons I consider that there is no injustice or unfairness in Ms Curtis serving the compensation preclusion period and it is therefore not appropriate that any of the lump-sum compensation payment received by her be disregarded in calculating the preclusion period.

    CONCLUSIONS

29. The decision to recover compensation affected payments totalling $6,133.43 for the period 16 December 2010 to 29 June 2011 was correct and no special circumstances exist that could justify some or all of the repayments being disregarded.

    DECISION

30. The Tribunal affirms the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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Associate

Dated 7 June 2013  

Date of hearing	2 May 2013
Applicant	In person
Advocate for the Respondent	Mr Rick McQuinlan, Departmental Advocate