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

This matter concerned an appeal by Mr Sarre (the Applicant) against a decision by the Secretary of the Department of Social Services (the Respondent) to raise a debt for overpayment of carer payments. The Applicant argued that no overpayment had occurred, and any such overpayment would only arise if compensation payments made to his partner, Ms Fraser, were treated as ordinary income under section 1174(1) of the relevant Act. Ms Fraser had received compensation payments following an injury sustained during Army Reserve training. The decision was made by Dr Damien Cremean, Senior Member.

The central legal issue before the Tribunal was whether Ms Fraser's compensation payments should be treated as ordinary income of the Applicant for the purpose of calculating his carer payments, pursuant to section 1174(1) of the Act. This required the Tribunal to determine if all the conditions stipulated in section 1174(1) were met in the Applicant's circumstances.

The Senior Member found that while paragraphs (a), (b), (c), and (e) of section 1174(1) were satisfied, paragraph (d) was not. Specifically, the Tribunal was not satisfied that the Applicant was qualified for a compensation affected payment in relation to a day or days in the periodic payments period but, solely because of the operation of Part 1174, did not, or would not, receive the payment. Consequently, the Senior Member concluded that section 1174(1) did not apply to the Applicant's situation, and Ms Fraser's compensation payments should not be regarded as ordinary income. The decision of the Respondent was set aside.