Sciacca and Secretary, Department of Employment and Workplace Relations
[2006] AATA 507
•9 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 507
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1551
GENERAL ADMINISTRATIVE DIVISION ) Re CONGETTO SCIACCA Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date9 June 2006
PlaceSydney
Decision The decision under review that a debt of $14,454 should be raised and recovered is affirmed. [SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY – debt – Applicant suffered workplace injury – redundancy - lump sum compensation – Applicant receiving disability support pension – Applicant claimed periodic compensation payment – request for estimate of compensation charges/preclusion submitted to Centrelink by solicitor for Applicant - Applicant advised of payment and preclusion period – arrears of period payment subsequently identified – arrears (compensation debt) recoverable by Centrelink – decision affirmed
Social Security Act 1991- sections 17, 1160, 1164, 1169, 1170, 1171, 1173, 1180, 1181, 1184K
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
9 June 2006 Rear Admiral A R Horton AO, Member 1. Mr Congetto Sciacca (“the Applicant”) is appealing against a decision by the Secretary, Department of Employment and Workplace Relations (“the Respondent”) to recover a debt of $14,454 from arrears of periodic compensation payments received for the period 12 April 2003 to 16 March 2005.
2. The original decision to recover a debt was made by a Centrelink delegate on 15 March 2005, this decision being affirmed by an Authorised Review Officer (“ARO”) on 10 August 2005, but against an amended debt amount. The Social Security Appeals Tribunal (“SSAT”) affirmed the decision on 18 November 2005.
3. The matter came before me on 3 May 2006. Mr Sciacca was self represented and gave evidence. Mr John Kenny appeared for the Respondent. I took into evidence the documents (“T-docs”) provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, letters from Milicevic Solicitors dated 19 August 2003 and 30 October 2003 (Exhibits A1 and A2), Form SS216.0011 in respect of Estimates of Social Security Charge (R1), the Respondents Statement of Facts and Contentions dated 20 April 2006 (R2), a chronology prepared by Ms Catherine Jones of Milicevic Solicitors (R3) and a statement by Ms Michelle Watson dated 3 May 2006 (R4). Ms Jones gave evidence by telephone, as did Ms Watson, Mrs Sukanya Meenatchi-Sunderam and Mrs Sarah Fitzpatrick, all employees of Centrelink.
4. The issue in this matter is whether the decision to recover the debt of $14,454 for arrears of periodic compensation payments was correct, and if so, whether there are special circumstances such that any part of Mr Sciacca’s compensation should be disregarded.
BACKGROUND
5. Mr Sciacca, born in March 1946, was injured in 1987 whilst in the employ of Sydney Water. He later claimed compensation which was settled for $18,983.20 plus section 60 expenses and costs (in respect of medical treatment and rehabilitation) on 13 March 2003. He had earlier been compensated for work related hearing loss. On 24 March 2003 Mr Sciacca terminated his employment with Sydney Water by taking a “voluntary redundancy” the details of which are not before me, other than the evidence from Mr Sciacca that he took that step because he was struggling financially, and although he could have been retrained, there was discrimination in the workplace.
6. Mr Sciacca subsequently moved from his home at North Strathfield to a home he purchased at Killarney Vale for $290,000, his residual bank funds after that transaction being about $4,000. Mr Sciacca applied for and was granted the disability support pension (“DSP”) which I understand was effective from 31 March 2003 although there is no evidence before me to confirm that date.
7. Later in 2003, Milicevic Solicitors, acting for Mr Sciacca, commenced action to obtain weekly payments of workers compensation. On 21 January 2005 (as recorded as being received by Centrelink), Ms Catherine Jones of Milicevic Solicitors faxed a completed request for Estimate of Social Security Charge/Preclusion on Form SS216.0011 to Centrelink, noting on the Form “*$9,000 for 1 year & 9 months ie from April ‘03 to 11/1/05”. The resultant response from Centrelink on 24 January 2005 estimated a repayment amount of $3,183.32 and a preclusion period from 14 March 2003 to 7 August 2003 based on an estimated settlement amount of $27,983.20, this being the sum of the settlement earlier referred to and the later $9,000 advised by Milicevic Solicitors.
8. Mr Sciacca was advised by letter of the same date that conditions may apply wherein he may have to pay back some or all of the Centrelink payments should he receive weekly or a lump sum payment. This letter was by way of general advice and did not refer to the details of estimates provided in that to his solicitors. A subsequent letter of 15 March 2005 to Mr Sciacca (and a similar letter of 15 March 2005 to Milicevic Solicitors) stated that Centrelink had received advice that Mr Sciacca was entitled to payment of arrears of periodic compensation for the period 11 April 2003 to 3 March 2005, and hence Centrelink payments he had received during this period would have to be paid back under the provisions of Part 3.14 of the Social Security Act 1991 (“the Act”).
9. In the event, compensation payment had been “accruing” at Sydney Water pending settlement of the claim, and the arrears of weekly compensation payment ($14,334 which was subsequently adjusted to $14,454) were paid directly by that authority through the insurer to Centrelink.
10. On 13 April 2005, Milicevic Solicitors advised Centrelink by letter that the claim by Mr Sciacca for weekly compensation had been settled for $14,100 plus $60 per week from 26 January 2005. The firm disputed that a repayment to Centrelink of $14,454 was the correct figure, given that Centrelink had advised a repayment amount of $3,183.32 on 24 January 2005. Milicevic Solicitors also sought advice as to why Mr Sciacca’s DSP had been reduced in contravention of advice received on 24 January 2005 that he could earn up to $60 per week whilst on that pension. The origin of such advice became a matter of dispute, without resolution, during the hearing.
11. Subsequent correspondence reflects some confusion in discussions between Mr Sciacca and various Centrelink personnel. In respect of the $14,454 payment recovery, Milicevic Solicitors has taken the view that Centrelink had provided incorrect advice when an estimate of charges was sought on 21 January 2005; Centrelink on the other hand, has not resiled from the position that the request for estimate of charges at that time was made on the wrong form, did not take account of the instructions for use of that form and in any event, did not indicate that the $9,000 for one year and 9 months was in respect of periodic payments and not lump sum compensation. And that is the thrust of the matter before me.
IN THE CIRCUMSTANCES, IS THE DECISION TO RECOVER $14,454 CORRECT?
12. The heading to Form SS216.0011 states it is provided to “help compensation claimants and their advisers understand the likely effect a proposed lump sum may have on future social security entitlement and recovery of past social security payments”. It comprises two pages, and contrary to the numbering on the copy of the form before me, that which is downloaded from the Centrelink website shows the “Notes for solicitors/claimants/advisers” as page 1 of 2, and the application form for an estimate of the “lump sum preclusion period and the amount to be repaid to Centrelink for the proposed lump sum amount set out below” as page 2 of 2.
13. Page 1 of Form SS216.0011 specifically states, amongst other details, “Do not use this form for a payment solely representing an arrears of periodic compensation”. On page 2 of the form faxed to Centrelink on 21 January 2005, against the heading “proposed gross lump sum amount…” Ms Catherine Jones of Milicevic Solicitors wrote “see below” and at the bottom of the page, as noted earlier: “*9,000 for one year & nine months ie from April ’03 to 11/1/05”.
14. Three days later, the response from Centrelink under reference 208999978L, and signed by S Fitzpatrick, Delegated Compensation Recovery Officer, stated in part:
“…Social security law provides that when a person receives a lump sum payment of compensation, part of the payment is considered to be for lost earnings or lost capacity to earn (compensation part). All estimates given by us use 50 per cent of the lump sum as the compensation part. The compensation part is then used to calculate a period of time …called the “preclusion period”...
The settlement amount in this letter may vary from the figure you nominated. Any earlier lump sum settlement for the same event may have been added and past periodic compensation may have been deducted where it is required to be repaid from the settlement. Based on an estimated settlement amount of $27,983.20 and the compensation part amount of $13,991.60, the repayment amount is likely to be $3,183.32 and the preclusion period is likely to be 14 March 2003 to 7 August 2003... .
From information supplied by you, we have calculated this estimate on the basis that the settlement was made on the date of this letter. It assumes that your client’s claim will settle by agreement, that it contains some compensation for lost earnings or lost capacity to earn and that the lump sum will not be solely for arrears of periodic compensation….”
15. The primary issue before me hinges on whether appropriate and correct information was provided at the outset by Ms Jones, and whether staff at Centrelink, aware of the purpose of Form SS216.0011, took appropriate action to enable them to reasonably assume that the information provided by Ms Jones was indeed related to lump sum compensation.
16. Ms Jones for Milicevic Solicitors provided Mr Sciacca with a chronological document of her actions and telephone discussions with Centrelink to assist him in presenting his case to the Tribunal. She agreed to give telephone evidence, as requested by Mr Kenny, and for her chronological document to be taken into evidence (Exhibit R3). Ms Jones was initially a secretary at Milicevic, subsequently being employed as a law clerk from about April 2004, that is prior to the events in question (she expects to be admitted as a solicitor in May 2006). At times, she was unable to answer questions put to her as she did not have immediate access to her papers (including Form SS216.0011), and I make due allowance for that difficulty.
17. Referring to R3, she stated that she had spoken with both Mrs Fitzpatrick and her supervisor Ms Watson on 24 January 2005, seeking to expedite the response to her request for an estimate, (which she recorded as having been sent on 20 January). She also stated that she requested Ms Watson disregard the $9,000 for one year and 9 months figures, and to “do the estimate on $150 per week from 12/4/03 to 25/1/05 totalling $14,100 and $60 per week from 26/1/05 and continuing, as the settlement conference was to take place the following day.” That is, the proposed settlement was now anticipated to be of that order.
18. In response to questions from Mr Kenny, Ms Jones said she had “always used that form” (Form SS216.0011), that being the only form she had ever used. She did not have the form to hand but stated that she was not conscious that the instructions on the form precluded its use for arrears of periodic compensation. She considered that defining the relevant period on the form, and her discussions with Ms Watson, should have made her requirement quite clear.
19. Of relevance are the following questions from Mr Kenny and the responses by Ms Jones during oral examination:
“And you have used a form, the back of which directs “You do not use this form for a payment solely representing arrears of periodic compensation” didn’t you? --- I’m sorry, if the form wasn’t correct, it was simply a matter for Centrelink to say to me “We can’t reply to you” because I used the wrong form.
…
When you had in mind $9,000 for one year and nine months, was that purely for arrears of periodic compensation? --- Yes
…
Okay. Isn’t it true that you would be accustomed to seeing the standard paragraphs in those letters advising what the charge estimate will be? --- Yes
…
So when you get a letter which states: “….From information supplied by you …the lump sum will not be solely for arrears for periodic compensation? ---- The problem is I got that information from Michelle. I knew that this was a tricky matter, and that is why I specifically spoke to your supervisor Michelle, to give me confirmation that the information, you know, was correct. I needed to get correct information. Now, you know, Michelle probably should have written a letter to me explaining things, you know, differently.”
20. Ms Michelle Watson gave evidence in respect of her role in Centrelink and her recollection as to what took place in this matter. As with other Centrelink witnesses, she had been alerted to the fact that she may be called to do so, in her case by the preparation of a statement (Exhibit R4), an advantage not enjoyed by Ms Jones. She commenced working for the Compensation Recovery team in 1998, becoming the team leader in 2002. She stated that the estimates service provided by Compensation “was not suitable …for arrears of periodic payments of weekly worker’s comp”.
21. Ms Watson confirmed the remarks in her statement that she may have been contacted by Ms Jones, particularly as the request was marked urgent, although she could not recall that happening. But it was not her practice as team leader to personally provide an oral or written response, and in accordance with standard practice, the matter was referred to a member of the team for response, in this case, Mrs Fitzpatrick. Because of the wording by Ms Jones on Form SS216.0011 in respect of the $9000, she believed she would have advised Mrs Fitzpatrick to clarify the situation with Ms Jones. She stated that she could not recall any later conversation with Ms Jones in respect of the $28,000 total lump sum figure used to provide the estimate.
22. A file note at T8 page 54 by Mrs Meenatchi-Sunderam in the Centrelink Compensation team on 24 January 2005 records “solicitor rang re estimate letter. She said that she request estimate for only $9,000 and we have done the estimate for $28,000. I told if customer had [received] any lump sum settlement (sec 66/67) previously that amount will be added to the current settlement amount to work out the preclusion period”. In evidence, Ms Jones, in the absence of her file notes, could not recall speaking with Mrs Meenatchi-Sunderam, nor of making a telephone call querying why the estimate was based on $27,983.20, but agreed it was possible. In response to a question from the Tribunal as to whether the $27,983.20 settlement figure indicated that the $9,000 figure had been added to the original lump sum compensation of $18, 983.20, Ms Jones replied “To tell you the truth, no, because I don’t know how Centrelink do their figures”.
23. Mrs Meenatchi-Sunderam gave telephone evidence. She confirmed she had been a member of the compensation team for nearly three years (mid 2003?) and confirmed that she was the author of the file note referred to above. At the time she did not have any paperwork in respect of the estimate of charge and preclusion in front of her, but relied on the “system”. She had no particular recollection of the conversation with Ms Jones, but was adamant that she had accurately recorded that Ms Jones had said she “specifically ask we did it for 9,000 and why had we done it for 28,000? “ She stated she would have recorded any other figure such as $14,100 had that been suggested by Ms Jones. She further stated that she assumed the figure was in respect of a lump sum settlement as no mention was made of arrears.
24. Mrs Fitzpatrick gave evidence that she had been working in the compensation section of Centrelink since July 2004. She confirmed authorship of an entry on the file note at T8 page 54, explaining it thus:
“What it is about is a request was sent through by the solicitors Milicevic, I believe is how you pronounce the name, and a proposed lump sum settlement of $9,000 so our…form would have come through us at the compensation section...on that figure of 9000, and in order for me to process it, I rang a lady called Catherine Jones and at the time I was told it was a lump sum settlement possibly under redemption. So – and I also confirmed with the lady that the economic loss starts from 14 March 2003, but normally what we would do as well is we would check the insurer to see if they had paid any weekly compensation to the customer because that would determine when the preclusion period would start…. So then I spoke to Denise at Sydney Water. She told me no weekly compensation was paid under claims - any of the claims with Sydney Water and I quoted a settlement date here from the settlement …called CMEC on the system.”
25. Mrs Fitzpatrick stated that she could not recall the particular contact nor doing the estimate, given she was speaking to people all day. But looking at the documentation in front of her, she observed that there was a previous settlement on the system for $18,983.20 and the system aggregated this and the $9,000 to $27,983.20 and recalculated the preclusion period. The advice in the letter to Milicevic Solicitors of 15 March 2005 would then have been generated automatically and gone out under her signature.
26. Mrs Fitzpatrick further stated that had she been informed that the proposed lump sum of $9,000 was entirely for arrears of periodic payments, she would not have completed the estimate. Had she been informed of a $60 ongoing weekly payment she would have rung Sydney Water to confirm; in the event she did contact Sydney Water to be advised that there were no weekly payments. The following responses to Tribunal questions concluded her evidence:
“could “possibly under redemption” have been in respect of weekly compensation?--- No, because then I would have rung Catherine… when you do an estimate, the person cannot request an estimate for arrears of weekly compensation. They can only request an estimate for a lump sum. We cannot actually process any arrears of weekly compensation as an estimate …
So you were quite clear in your mind, after talking to Catherine Jones, that the issue was a lump? ---Yes I was.
Which led to the conclusion that all told it came to $28,000 or thereabouts? ---That’s right …in my mind it was a lump sum.”
Relevant legislation
27. Section 1160 of the Act states that receipt of a compensation payment may effect social security pensions or benefits, such that the latter may be reduced, be not payable or lead to repayment of some or all of the benefit. Section 17 provides relevant definitions in respect of periodic payments periods thus:
“periodic payments period means:
(a) the period to which a periodic compensation payment, or a series of periodic compensation payments, relates; or
(b) in the case of a payment of arrears of periodic compensation payments—the period to which those payments would have related if they had not been made by way of an arrears payment.”
28. Section 17 of the Act also determines that the disability support pension is a “compensation affected payment” and in accordance with section 1173(2) the payable rate of a compensation affected payment is reduced by the rate of a periodic compensation.
29. Section 1170 of the Act refers to the lump sum preclusion period, and various other sections of the Act have relevance in this matter:
“1164 Certain lump sums to be treated as though they were received as periodic compensation payments
If:
(a) a person was entitled to periodic compensation payments under a law of a State or Territory; and
(b) the person’s entitlement to the periodic payments was converted under the law of the State or Territory into an entitlement to a lump sum; and
(c) the lump sum was calculated by reference to a period;
this Part applies to the person as if:
(d) the person had not received:
(i) the lump sum; or
(ii) if the lump sum was to be paid in instalments—any of the instalments; and
(e) the person had received in each fortnight during the period a periodic compensation payment equal to:
where:
lump sum amount is the amount of the lump sum referred to in paragraph (b);
number of fortnights in the period is the number of whole fortnights in the period referred to in paragraph (c).
…
1169 Compensation affected payment not payable during lump sum preclusion period
(1) If:
(a) a person receives or claims a compensation affected payment; and
(b) the person receives a lump sum compensation payment;
the compensation affected payment is not payable to the person in relation to any day or days in the lump sum preclusion period.
(2) In this section:
lump sum compensation payment does not include a lump sum payment:
(a) to which section 1164 applies; or
(b) that relates only to arrears of periodic compensation payments.
…
1171 Deemed lump sum payment arising from separate payments
(1) If:
(a) a person receives 2 or more lump sum payments in relation to the same event that gave rise to an entitlement of the person to compensation (the multiple payments );
…
1171(2) A payment is not a lump sum payment for the purposes of paragraph (1)(a) if it relates exclusively to arrears of periodic compensation.
…
1173 Effect of periodic compensation payments on rate of person’s compensation affected payment
(1) If:
(a) a person receives periodic compensation payments; and
(b) the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, qualified for, and receiving, a compensation affected payment; and
(c) the person receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;
the rate of the person’s compensation affected payment in relation to that day or those days is reduced in accordance with subsection (2).
(2) The person’s daily rate of compensation affected payment is reduced by the amount of the person’s daily rate of periodic compensation.
(3) The reference in subsection (2) to a daily rate of periodic compensation is a reference to the amount worked out by dividing the total amount of the periodic compensation payments referred to in paragraph (1)(a) by the number of days in the periodic payments period.
(4) If:
(a) a person receives periodic compensation payments; and
(b) at the time of the event that gave rise to the entitlement of the person to compensation, the person was qualified for, and was receiving, a compensation affected payment; and
(c) the person receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;
the periodic compensation payments are to be treated as ordinary income of the person for the purposes of this Act.
…
1180 Repayment where both periodic compensation payments and payments of compensation affected payment have been received
(1) If:
(a) a person receives periodic compensation payments; and
(b) the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, qualified for, and receiving, a compensation affected payment; and
(c) the person receives payments of a compensation affected payment in relation to a day or days in the periodic payments period; and
(d) the payments referred to in paragraph (c) have not been reduced to nil as a result of the operation of section 1173;
the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice.
(2) The amount to be specified in a notice for the purpose of subsection (1) is the recoverable amount under section 1181.
1181 The section 1180 recoverable amount
(1) Subject to subsection (2), the recoverable amount under this section is equal to the smaller of the following amounts:
(a) the sum of the periodic compensation payments;
(b) the difference between:
(i) the sum of the compensation affected payments made to the person in relation to a day or days in the periodic payments period; and
(ii) the sum of the compensation affected payments that would have been made to the person in relation to any such day or days had those payments been made at the rate to which the payments were reduced as a result of the operation of section 1173.
Consideration
30. Section 1173 of the Act is particularly pertinent in this matter. Mr Sciacca was working at the time of being injured in 1987. He was not in receipt of, nor qualified to receive, a social security benefit. His subsequent receipt of the disability support pension, a compensation affected payment, occurred in the period in which he accrued arrears of periodic compensation payments. In accordance with section 1180 of the Act, he is thus liable to make repayment to the Commonwealth, that being $14,454 as being the amount he received - or would have received on settlement of his periodic compensation claim on 25 January 2005 - this being in respect of arrears of periodic compensation.
31. As to whether the decision to recover payment is correct, there has undoubtedly been some confusion in the mind of Mr Sciacca as to why such a “penalty” was levied, given the advice he was receiving from his solicitors. His reaction, having heard the evidence presented at the hearing, was to acknowledge a better understanding of the issues, albeit seeking a resolution in his favour.
32. Whilst neither Ms Watson, Mrs Fitzpatrick nor Mrs Meenatchi-Sunderam could recall discussions with Ms Jones, their evidence is consistent in that the Recovery Team does not deal with arrears in compensation payment and would not do so. Any estimate of charges or preclusion period would only relate to lump sum compensation. The file notes recorded at the time by the latter two staff attest to conversations, in one case instigated by the Centrelink officer, and in the other in response to a call from Ms Jones, in which the $9000 was confirmed, in their view, as being relevant to lump sum compensation.
33. The evidence of Ms Jones, and the detail in the chronological document, attests to her attempts to seek the correct advice from Centrelink. The resultant difficulties stemmed from the use of an incorrect form and her apparent failure to observe the emphasised warning given in the notes to that form. In the event, there is some discrepancy between her recollection of what subsequently took place and that of the three Centrelink personnel, but on the evidence I must accept that the latter sought to confirm that the estimate was indeed for a lump sum and in the circumstances, provided an appropriate estimate. It also seems evident that whilst Ms Jones, for Milicevic Solicitors, raised the issues of the $9,000 being applied to the total lump sum with Mrs Meenatchi-Sunderam, any further concerns were not raised until April 2005, some 3 months later and a month after Milicevic Solicitors had been informed of the recovery action.
34. In the event, Mr Sciacca was given the wrong advice, which unfortunately is a matter between him and his solicitors. The whole matter can be described as unfortunate, but on all the evidence, I must find that the decision to recover $14,454 was correct.
ARE THERE SPECIAL CIRCUMSTANCES WHEREBY A DEBT MIGHT BE REDUCED OR WAIVED?
35. Section 1184K of the Act provides for the whole or part of a compensation payment to be treated as not having been made or liable to be made if it is considered that special circumstances are evident. “Special circumstances” is not defined in legislation, but the interpretation put forward by the Tribunal with Toohey J presiding in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 has been widely followed, and states (at 3):
"An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. 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."
36. Mr Sciacca is in receipt of DSP less $120 per fortnight, the latter reflecting ongoing periodic compensation. His total fortnightly income is in the order of $375 plus a small addition in relation to telephone costs. He generally lives alone in his own home at Killarney Vale, on which he pays for insurance, rates and utility services. Occasionally friends bring him food. The only evidence in respect of family financial commitments was in respect of a debt to his sister. He owes her approximately $20,000 which she provided to enable him to make modifications to his home and undertake necessary maintenance. He sees his sister regularly and she is not pressing for payment, having told him “when you have got it you pay me”. He stated he presently cannot afford to re-pay his sister.
37. Mr Sciacca owes his credit union approximately $9,000 which he pays off at the rate of $120 per fortnight from his pension. The credit union is comfortable with that rate of repayment. He has recently paid off a debt to Telstra, but rather than have his service reconnected, he operates a mobile telephone at a cost of $50 per month. He also owns a three year old car which he drives to Sydney each fortnight to see his mother.
38. As to his health, Mr Sciacca pays HCF $112 per month for what they describe as full cover, but he observes that there are limitations as to the amount that might be paid for certain services. He has a bad back which every so often plays up, and for that and his hearing problems, Sydney Water has paid for what I assume to be physiotherapy and hearing aids to the tune of about $10,000. He takes no regular medication.
39. In response to my question as to whether he was coping financially, Mr Sciacca said he was “in bad shape”. He would like to have a little more money which would remove any worries. But he accepts it may not work that way and hence he tightens his belt a little.
40. Mr Kenny conceded that Mr Sciacca was probably in straitened circumstances, having some debts. But he submitted that he does not have any pressing creditors, and he does have his own home. In the view of the Respondent, Mr Sciacca is not in hardship to a degree that could be called unusual, uncommon or exceptional. Nor did Centrelink make any error that could have been to his detriment. Mr Kenny suggested that Mr Sciacca had not received the best advice from his solicitors, but it would not be up to the public purse to compensate for that. In summary, Mr Kenny submitted that the circumstances of Mr Sciacca were not such as to meet the criteria for special circumstances, and hence the debt of $14,454 should stand.
41. I am in agreement with the views of the Respondent. Mr Sciacca has certain debts, but by his own admission he is coping with those debts, albeit he is not in a position to repay a loan from his sister. He owns his own home, is in receipt of periodic compensation and a reduced disability support pension. He owns a relatively new motor vehicle, and his medical expenses outside the not insignificant cost of maintaining medical insurance cover are minimal. He was in receipt of inadequate advice from his solicitors, but I suspect that they in turn may have found him a little difficult to follow at times. Nevertheless, that remains a matter for him and his solicitors, and not an issue to be considered under the umbrella of the public purse.
42. Mr Sciacca presents as a pragmatic person, with a will to cope. In the circumstances, his situation does not meet the criteria for special circumstances and hence the debt of $14,454 in respect of compensation affected payment must stand.
43. Accordingly, the decision under review in respect of the raising and recovery of a debt of $14,454 is affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member:
Signed: A. Garcia .....................................................................................
Associate
Date of Hearing 3 May 2006
Date of Decision 9 June 2006Representative of the Applicant Self represented
Advocate for the Respondent Mr J. Kenny
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