Saleh and Secretary, Department of Family and Community Services

[2004] AATA 1393

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION[2004] AATA 1393

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2004/785

GENERAL ADMINISTRATIVE DIVISION )

Re MOHAMED SALEH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date13 December 2004

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL         )       No.      N2004/785
  )
GENERAL ADMINISTRATIVE DIVISION            )

Re          MOHAMED SALEH

Applicant

And       SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal        :      Senior Member M D Allen

Date               :      13 December 2004

Place             :       Sydney

Decision:       For the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.

(Sgd)          M.D. ALLEN
  .............................
   Senior Member

CATCHWORDS

SOCIAL SECURITY – Applicant recipient of Disability Support Pension – preclusion period imposed as Applicant received settlement monies from workers’ compensation claim – whether Applicant was entitled to relief due to “special circumstances” – decision under review affirmed.

Social Security Act 1991 – ss17(3) and 1184K.

Department of Social Security v Ellis (1997) 24 AAR 535

Beadle v Director-General, Social Security (1985) 7 ALD 670.

Groth v Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         (E.Pope)
          ..................................................................................……………………………….

Associate

Date of Hearing  13 December 2004

Date of Decision  13 December 2004

Solicitor for Applicant                   Applicant self-represented

Advocate for Respondent           Mr Luke Carter, Department of Family and Community Services

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2004/785
By  MR M.D. ALLEN, Senior Member
SALEH v SECRETARY, DEPARTMENT OF FAMILY
AND COMMUNITY SERVICES
SYDNEY, MONDAY, 13 DECEMBER 2004

MR ALLEN:   The applicant made application to the Administrative Appeals Tribunal on twenty-ninth day of June 2004 seeking review of a decision by a Social Security Appeals Tribunal who, on 28 May 2004 affirmed a prior determination to impose a lump sum preclusion period on him; that period being from 26 June 2003 to 12 November 2003.

It is not controverted that the applicant at all relevant times has been in receipt of a disability support pension. On the twenty-fifth day of June 2003, a worker's compensation claim by him was settled in the sum of $25,000. I note that in receipt of that sum no moneys had to be paid back to the Department of Social Security but that, of course, did not mean that there would not be a preclusion period imposed. The preclusion period is imposed on the bases that as it was a settlement and subsection (3) of section 17 of the Social Security Act provides that 50 per cent is related to loss of income. It is then provided pursuant to section 1170 that a preclusion period is imposed. There can be some relief against a preclusion period pursuant to section 1184K:

The Secretary may treat the whole or part of a compensation payment as not having been made if the Secretary thinks it appropriate to do so in the special circumstances of the case.

The term "special circumstances" was referred to by Carr J in Secretary, Department of Social Security v Ellis (1997) 24 AAR 535 at 539. He in turn referred to the decision of the Full Court of the Federal Court in Beadle v Director-General, Social Security (1985) 7 ALD 670, where at 673 the Court said:

Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate.  It would depend upon the circumstances of the particular case whether these constituted special circumstances.  We do not think it is possible to lay down precise limits or precise rules.  The matter is one for the Director-General bearing in mind the purpose for which the power is given.  The phrase "special circumstances" although lacking precision is sufficiently understood in our view not to require judicial gloss. 

More pertinent, however, to these circumstances is the decision of Kepple J in Groth v Secretary, Department of Social Security (1995) 40 ALR 541 at 545 where her Honour said:

For present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others to take it out of the usual or ordinary case. That was I consider the only inquiry to be undertaken in this case.  It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.  The inquiry I have referred to would involve considering what would be the effect the provision in question or the principle of liability it creates is applied.

Later, her Honour referred to the fact that people in receipt of social security benefits generally are in straightened circumstances and that there must be something really to take it out of the ordinary before the power to alleviate is exercised.

Now, in this case the preclusion period as I said was for some five months between 26 June to 12 November 2003.  There were expenses which had to be met by the applicant out of that but he did state today that at the end he had some $15,000 left in the bank.  I note that he has also purchased a vehicle and had a trip back to Egypt, although part of that trip was because of seeking medical treatment.

However, it would appear that the $15,000 which he had, has been surrendered to his children because of their continually importuning him.  Now, that is a very unfortunate circumstance, however, I do not believe that the taxpayer can be asked to subsidise payments by the applicant to his children howsoever they occurred.

This matter, looking at it, the applicant received a payment.  A lump sum payment from worker's compensation.  There was a very short preclusion period imposed.  During that time he had assets in the form of cash and he should have been able to live.  He is presently in straightened financial circumstances but so are most people receiving the disability support pension.  He is now receiving that pension in full and in all the circumstances, I can see nothing which would justify a finding of special circumstances in the applicant's case.  The decision under review is therefore affirmed.