Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Whitlock
[2010] AATA 816
•25 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 816
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1356
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
ROSS WHITLOCK
Respondent
DECISION
Tribunal The Honourable Dr BH McPherson CBE, Deputy President, and
MJ Carstairs, Senior MemberDate25 October 2010
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and reinstates the original decision, namely that the compensation part of the lump sum is $117,881.87 and that Mr Whitlock’s preclusion period is 149 weeks.
.................[Sgd]………..........
Deputy President
CATCHWORDS
SOCIAL SECURITY – Disability support pension – Receipt of lump sum workers’ compensation payment – Compensation preclusion period – Meaning of “lump sum compensation payment” – Key words are “lump sum” rather than “compensation” – Meaning of “lump sum” – May be the aggregate of several amounts – Amounts must relate to event that gave rise to entitlement to compensation – Immaterial if component of lump sum does not come within definition of “compensation” in Social Security Act 1991 – Lump sum to include statutory benefits WorkCover paid to service providers – No exercise of discretion for special circumstances – Decision under review set aside and original decision reinstated.
Social Security Act 1991 (Cth), ss 17(2), 17(3), 17(4), 17(5), 1169, 1170, 1171, 1184K
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 270
Re Broad and Secretary, Department of Family and Community Services [2003] AATA 1017; (2003) 77 ALD 523
Re Fuller and Secretary, Department of Family and Community Services [2004] AATA 615; (2004) 83 ALD 152
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Harmony and Montague Tin & Copper Mining Company (“Spargo’s Case”) (1873) 8 LR Ch App 407
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596; (1999) 95 FCR 64
Re Navratil and Secretary, Department of Family and Community Services [2002] AATA 452; (2002) 69 ALD 777
Re Secretary, Department of Education, Employment and Workplace Relations and Morrison [2008] AATA 1017; (2008) 105 ALD 635
Re Secretary, Department of Family and Community Services and Nolan [2000] AATA 361; (2000) 31 AAR 175
Secretary, Department of Social Security v Banks (1990) 23 FCR 416
Secretary, Department of Social Security v Cunneen (1997) 78 FCR 576
Secretary, Department of Social Security v Hulls (1991) 22 ALD 570
Secretary, Department of Social Security v Smith (1991) 30 FCR 56
Re Vecchio and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 97
REASONS FOR DECISION
25 October 2010 The Honourable Dr BH McPherson CBE, Deputy President, and MJ Carstairs, Senior Member 1. On 10 September 2009, Centrelink cancelled Ross Whitlock’s disability support pension on the grounds that he was required to serve out a “compensation preclusion period” after settling his workers’ compensation claim in August of that year.
2. Briefly, if a person receives compensation as a lump sum (as Mr Whitlock did), that person will not be entitled to access certain social security payments for the duration of the “compensation preclusion period”. Centrelink calculates the duration of that period by applying a formula found in the Social Security Act 1991 (“the Act”) at s 1170(4):
Compensation part of lump sum
Income cut-out amount
The formula produces a result expressed as a number of weeks.
3. The phrase “compensation part of lump sum” that appears in the formula finds its meaning in s 17(3) of the Act. As will be seen below, in cases resolved by settlement that phrase means 50% of the payment that is (in whole or in part) related to injury. The divisor, the “income cut-out amount”, is a statutory sum adjusted from time to time under the Act.
4. Centrelink applied the formula based on the terms of the Deed of Release and Discharge by which Mr Whitlock’s settlement was effected, and decided that his compensation preclusion period was 149 weeks (with the consequence that he would be precluded from social security payments until 23 February 2011). Centrelink also raised a recoverable charge for social security paid during the identified period. However when Mr Whitlock took the matter on further review, the Social Security Appeals Tribunal took a different approach to what amount(s) made up the “compensation part of lump sum”. It is the Social Security Appeals Tribunal decision, and its reasoning when setting aside the original decision to the extent of adopting a lower lump sum figure, that now falls to be reviewed by this Tribunal.
5. Mr Whitlock, for his part, also asks that we consider whether there are “special circumstances” to warrant reducing his preclusion period by disregarding part or the whole of the compensation amount. The Social Security Appeals Tribunal answered that question “No”, thus affirming Centrelink’s decision on that point.
6. Turning to the first of these issues, it is as well to set out the factual matters, as to which, we understand, the parties were agreed.
BACKGROUND
7.The facts in this matter are:
§ Mr Whitlock was injured in the course of his employment in 2006. He served a notice of claim pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Queensland Act”), and a notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld).
§ The Queensland workers' compensation scheme provides for a no-fault system with statutory entitlement to benefits under the Queensland Act. The scheme also provides for common law damages, as regulated by that Act.
§ Mr Whitlock was paid, until April 2008, weekly payments of compensation under the Queensland Act.
§ From 17 April 2008 onwards, Mr Whitlock received social security payments;
§ On 7 August 2009, Mr Whitlock settled his claims. WorkCover’s letter of advice provided to Centrelink stated: “This claim for injury/ies has now settled for $352,776.85 gross”.[1] Relevant clauses of the deed signed by Mr Whitlock detail the components making up that gross amount:
[1] T18 at 72.
i.the sum of $200,000.00 was to be paid to Mr Whitlock;[2] and
[2] T18 at 74.
ii.WorkCover acknowledged that it was not entitled to a refund of statutory benefits totalling $152,776.85.[3]
[3] T18 at 75.
§ This “waived” amount—$152,776.85—was made up of:
i. $117,013.11, being the total weekly workers’ compensation payments paid before social security payments started; and
ii. $35,763.74 (“the miscellaneous expenses”), being amounts paid by WorkCover to various service providers—and on occasions directly to Mr Whitlock—for hospital, medical, rehabilitation and travel costs (minus input tax credits).[4]
[4] T18 at 78-97.
§ On 10 August 2009, Centrelink calculated the relevant monetary amounts to be applied in working out the “compensation part of lump sum”:[5]
[5] T19.
i. The weekly workers’ compensation payments totalling $117,013.11 were deducted from the $352,776.85 gross settlement amount, giving a lump sum of $235,763.74.
ii. 50% of that lump sum (some $117,881.87) was the deemed economic loss component, the “compensation part of lump sum”, to be used to calculate any recoveries and compensation preclusion periods.[6]
[6] That is, pursuant to ss 17, 1169 and 1170 of the Act.
8. No question arises that the total of the weekly WorkCover payments (the figure of $117,013.11 referred to above) had to be deducted. Section 17(4) of the Act requires this.[7] The only dispute was as to the $35,763.74 of miscellaneous expenses. Centrelink (and the Secretary) say the miscellaneous expenses must be included as part of the lump sum. The Social Security Appeals Tribunal excluded that amount. In effect this meant that the Social Security Appeals Tribunal deducted the total “waived” amount of $152,776.85 from the gross settlement amount, not just that part of it relating to the weekly workers’ compensation payments deducted in accordance with s 17(4) of the Act. The lump sum on that account being $200,000, and the compensation part being 50% of that figure, the resultant preclusion period was to be 126 weeks rather than the 149 weeks Centrelink had calculated.
[7] Section 17(4) of the Act reads:
Where a person:
(a) has received periodic compensation payments; and
(b) after receiving those payments, receives a lump sum compensation payment (in this subsection called the LSP); and
(c) because of receiving the LSP, becomes liable to repay an amount (in this subsection called the Repaid Periodic Compensation Payment–RPCP) equal to the periodic compensation payments received;
then, for the purposes of subsection (3), the amount of the lump sum compensation payment is:
LSP – RPCP
9. This case requires consideration of the meaning of the phrase “lump sum compensation payment”. In that regard, we now turn to the main legislative provisions that assist with an understanding of the meaning of that term.
THE LEGISLATION
10. The key provisions are to be found in s 17(2) of the Act, and in Part 3.14 of the Act particularly at ss 1169, 1170 and 1171.
11. Section 17(2) of the Act defines “compensation”, and clearly identifies that the focus is upon receipts that, in whole or in part, relate to economic loss:
17(2) Subject to subsection (2B), for the purposes of this Acthttp://localhost:8881/sslaw/ssa/2110d390/764e8d44/396dfadd.html - ssa-Section_23_(1)-'this_Act', compensation means:
(a) a payment of damages; or
(b)a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c)a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d) any other compensation or damages payment;
(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.
12. In Mr Whitlock’s case no questions arise that the Deed of Release and Discharge brought the matter within the terms of s 17(2)(c) of the Act and that the settlement was wholly or partly in respect of lost earnings or lost earning capacity.
13. Section 17(3) of the Act provides, effectively, for the operation of the 50% rule (mentioned above in our discussion of the calculation process and application of the formula). What is counted, for the purposes of working out the social security implications of a settlement, is the “compensation part of a lump sum compensation payment”—a phrase defined in s 17(3) of the Act and, so far as here relevant, being 50% of the payment made in settlement of this claim: s 17(3)(a)(i).
14. Section 17(5) of the Act provides that a person is deemed to have received compensation whether he or she receives it directly or whether another person receives it on his behalf or at his or her direction.
15. It is widely recognised that the policy objective that finds expression in the legislation is that a person who receives a compensation payment for lost earnings or lost earning capacity is not to also receive income support payments. The Act does this largely by mandating the 50% rule, and providing for the formula. In this way, 50% of the settlement is deemed to be made in respect of lost earnings or lost earning capacity. It is a relatively simple system, intended to avoid “double dipping”, and, although often referred to as arbitrary,[8] designed to overcome problems that had arisen from compensation settlements where certain heads of damages were manipulated to inflate some and minimise others, to obtain social security payments.[9]
[8] Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596; (1999) 95 FCR 64.
[9] Secretary, Department of Social Security v Banks (1990) 23 FCR 416 at 424.
16. Section 1169 of the Act provides that a person will not receive social security payments during the preclusion period (that period being determined, as we have seen, under s 1170 of the Act). On the facts here, s 1171 of the Act also takes on some importance. This section was introduced into the Act in 1995 (although differently numbered then) and provides that separate lump sum payments made to a person in respect of their claim can be treated as a single lump sum:
1171(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); and
(b) at least one of the multiple payments is made wholly or partly in respect of lost earnings or lost capacity to earn;
the following paragraphs have effect for the purposes of this Act and the Administration Act:
(c) the person is taken to have received one lump sum compensation payment (the single payment) of an amount equal to the sum of the multiple payments;
(d) the single payment is taken to have been received by the person:
(i) on the day on which he or she received the last of the multiple payments; or
(ii) if the multiple payments were all received on the same day, on that day.
17. As noted above, the Act provides at s 17(2) that “compensation” is “a payment … in settlement of a claim for damages … that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury”. Plainly, once a payment even partly matches the criterion of being “in respect of lost earnings or lost capacity”, then the whole of the payment is “compensation”.
18. However, properly understood, the relevant concept is “lump sum compensation payment”—a composite expression in which the key words are “lump sum”, rather than “compensation”. In context, this is understood by reading s 17(2) and s 17(3) of the Act together. As was pointed out by Foster J in Secretary, Department of Social Security v Cunneen,[10] the “compensation part of the lump sum compensation payment” takes its meaning from being a payment that is in settlement of a claim (insofar as is here relevant) and the payment must be “wholly or partly in respect of lost earnings or lost capacity to earn”. As the Tribunal’s President, Downes J, explained in Re Fuller and Secretary, Department of Family and Community Services:[11]
The question, therefore, is not whether a component of a payment is or is not compensation but whether the component is to be treated as part of the payment. The answer to that question does not depend upon the definition of compensation but upon the meaning of the phrase “lump sum compensation payment”. The emphasis is on the requirement for “a lump sum” rather than the requirement for “compensation”.
[10] (1997) 78 FCR 576 at 579.
[11] [2004] AATA 615; (2004) 83 ALD 152 at 161 [19].
19. As has frequently been observed, the term “lump sum” as it appears in these provisions is not defined in the Act. In Re Fuller, Downes J referred to his initial reluctance to adopt the view of “lump sum” taken by von Doussa J in Secretary, Department of Social Security v Banks[12] (as followed by O’Loughlin J in Secretary, Department of Social Security v Hulls[13] and Foster J in Cunneen), but noted that any other construction would render ineffective provisions designed to deal with the problem of manipulation of settlements.
[12] (1990) 23 FCR 416.
[13] (1991) 22 ALD 570.
20. In Banks at 422-23, von Doussa J considered “lump sum” as follows (His Honour’s remarks refer to ss 152 and 153, then in force in the Social Security Act 1947 and now appearing, respectively, at ss 17 and 1169 of the current Act without substantive change):
Section 152(2)(c) applies where there is "a lump sum payment by way of compensation". The expression "payment by way of compensation" is defined in s 152(2)(a). The words "lump sum" are not defined. They are not words of art. In the Macquarie Dictionary a "lump sum" is defined as a sum "including a number of items taken together or in the lump". In my opinion the words bear that meaning in the section. The words are used in Pt XVII of the Act to distinguish "lump sum payments by way of compensation" from "periodical payments by way of compensation": see, for example, ss 152(2)(d),(3)(b) and 153(1)(a). A "lump sum" payment is simply one which includes a number of items. Where a payment by way of compensation consists of the aggregate of several amounts which could have been paid separately or at different times the payment is one of a lump sum. A payment the total of which is arrived at by adding amounts for different heads of loss would also be a lump sum payment.
21. As Downes J commented in Re Fuller, the case of Banks has been consistently followed. Banks and Hulls make plain that the seemingly arbitrary ss 17 and 1169 of the Act are the result of policy considerations.
HOW SHOULD THE LUMP SUM BE DETERMINED IN MR WHITLOCK’S CASE?
22. Both parties referred with respectful approval to the President’s analysis, in Re Fuller at 155 [6], of the sequential steps that should be applied to determine whether a received amount is a lump sum compensation payment and, if it is, to calculate the compensation part of the lump sum:
i. Has the applicant received or claimed a compensation-affected payment (s1168(1)(a))?
ii. Has the applicant received a lump sum compensation payment (s 1169(1)(b))?
iii. Alternatively to (ii), is the applicant deemed to have received one lump sum compensation payment (s 1171(1))?
iv. If yes to (i) and either (ii) or (iii), what is the compensation part of the lump sum compensation payment (s 17(3))?
v. What preclusion period is derived from applying the sum representing the lump sum compensation payment to the formula prescribed in s 1170?
23. The parties agreed that the issues for determination in Mr Whitlock’s case related to steps (ii) and (iii).
24. It is not necessary for us to consider in any detail the reasoning of the Social Security Appeals Tribunal in coming to its conclusion that the miscellaneous payments did not form part of the lump sum compensation figure. Suffice to observe that the Social Security Appeals Tribunal applied Re Secretary, Department of Family and Community Services and Nolan,[14] which dealt with an almost identical kind of settlement under the Queensland Act. Senior Member Beddoe in Re Nolan took the approach that, when von Doussa J referred in Banks to amounts “paid in settlement of a claim”, this meant “monetary consideration” but did not extend to what the Senior Member referred to as a waiver of a charge. He said, in addition, that to include the miscellaneous payments, which had been paid as part of WorkCover carrying out its statutory functions, would be contrary to the intention of the legislation.
[14] [2000] AATA 361; (2000) 31 AAR 175.
25. The conclusions reached in Re Nolan were not followed by (then) Member Kenny in Re Navratil and Secretary, Department of Family and Community Services[15] and Re Broad and Secretary, Department of Family and Community Services.[16] Member Kenny took the view that while the miscellaneous payments might not readily fall within the meaning of “compensation” as defined in s 17(2) of the Act, the effect of 1171(1) of the Act is nevertheless that where more than one payment is made in relation to one event, the person is deemed to have received one lump sum comprising the individual amounts, and then the formula at s 1170(4) is applied.
[15] [2002] AATA 452; (2002) 69 ALD 777.
[16] [2003] AATA 1017; (2003) 77 ALD 523.
26. The same question concerning deeds of settlement under the Queensland Act was again addressed by the Tribunal in Re Vecchio and Secretary, Department of Education, Employment and Workplace Relations.[17] In that case, Member Fisher concluded that the effect of Banks and Hulls—cases which, he noted, bind the Tribunal—is to make it immaterial that a component of the lump sum may have been notionally attributable to a particular head of loss. What is determinative in characterisation as part of the lump sum is that the component is attributable to the settlement of a claim that is wholly or partly related to injury.[18]
[17] [2008] AATA 97.
[18] At [16].
27. Downes J had confirmed this proposition in Re Fuller, where he noted that the provisions of s 1171(1)(a) of the Act do not require that the payment relate to compensation, but merely require that the payment relate to the event that gave rise to the entitlement to compensation.[19] It is the quality as part of the lump sum that matters, so long as part of it relates to economic loss.
[19] Re Fuller at 162-63 [26].
28. In Re Vecchio, the Tribunal also accepted that the lump sum amount included money waived by an acknowledgement in the settlement deed that WorkCover was not entitled to the refund of statutory benefits. Member Fischer applied Spargo’s Case (Re Harmony and Montague Tin & Copper MiningCompany (1873) 8 LR Ch App 407), noting that its principles were of wide application and not limited to commercial settings. Spargo’s Case is authority for the proposition that a payment will occur where two parties both have a present liability or legal obligation to the other (mutual liabilities or mutual obligations) and they make an agreement to set off the liabilities against each other using a book entry.
29. On the view that we take of the present matter, this is what has occurred here. We accept Ms Brennan’s submission on behalf of the Secretary that to focus on the term “payment” in the composite expression “lump sum compensation payment” is to put form ahead of substance. Banks is instructive in that regard. As von Doussa J there said, at 423:
The expression “the lump sum payment … made … in settlement of a claim” is apt to describe the total amount which is payable as the monetary consideration passing from the party on whose behalf the payment is to be made to the recipient in exchange for a release from the claim.
30. The effect of s 17(2)(c) of the Act is that once a component is included in the lump sum, it does not matter whether it relates to non-economic loss or to costs, or some other component that might, taken alone, not come within the definition of “compensation” in the Act.
31. We agree that what matters in the context of this Act is that, as a matter of substance, the payment that included the miscellaneous payment was made in settlement of a claim under a scheme of compensation. Once the various components form part of the final settlement deed, they must all be called into account for the purposes of the Act. This is the effect of Banks and the line of Federal Court authority that follows. As O’Loughlin J observed in Hulls,[20] once the mischief addressed by the legislation is identified, it becomes apparent that the legislation prevents dissection of the “lump sum”. If one part of a payment is in respect of incapacity for work, the payment must be classified in its entirety as a payment by way of compensation. As further observed in Hulls, the provisions have the hallmarks of simplicity and certainty, and cases where anomalies arise can be addressed under the discretionary provisions.[21]
[20] At 578.
[21] Hulls at 579.
32. It is, we think, relevant that the WorkCover letter to Centrelink refers to the aggregated sum, stating that the claim “has now settled for $352,776.85 gross”. From that overall sum of $352,776.85, the Act mandated only that the component of periodic payments of compensation be disregarded, under s 17(4).
33. When the Full Tribunal, presided over by Downes J in Re Secretary, Department of Education, Employment and Workplace Relations and Morrison[22] revisited these questions in the legislation, it indicated that Re Fuller was to be read in terms of its facts. We would simply note that in Re Morrison the Tribunal was dealing with a provision similar to s 270 of the Queensland Act, namely s 27 of the Motor Accidents (Liabilities and Compensation) Act1973 (Tas) which, like s 270 of the Queensland Act, requires that a payment of damages be reduced by the amount of statutory benefits already paid. However the Tribunal in Re Morrison observed that although Mr Morrison had received statutory payments, in reality they had not formed part of the settlement.[23] That is not the case with Mr Whitlock’s settlement.
[22] [2008] AATA 1017; (2008) 105 ALD 635.
[23] At 643 [43].
34. Ms Brennan submitted that s 17(5) of the Act was important as it provided that a person is deemed to have received compensation whether he or she receives it directly or whether another person receives it on his behalf or at his or her direction. In that regard, she said that the Secretary relied on s 17(5) to call into account the miscellaneous payments even though not all of these were paid to Mr Whitlock. Ms Brennan acknowledged that the Full Tribunal in Re Morrison had reached a different conclusion (the Tribunal had observed that hospital and medical expenses were not part of the settlement figure).[24]
[24] At 643 [43].
35. In summary, we would agree with the analysis of the provisions in the Queensland Act by Member Fisher in Re Vecchio.
36. Accordingly, we would set aside the decision of the Social Security Appeals Tribunal in this respect. By so doing, we reinstate the decision that the amount to be taken into account in working out the preclusion period was 50% of $235,763.74, and that once the income cut-out amount was applied, the compensation preclusion period was 149 weeks.
ARE THERE ANY SPECIAL CIRCUMSTANCES?
37. In Re Ivovic and Director-General of Social Services,[25] the Tribunal made the observation that:
[25] (1981) 3 ALN N95 at [45].
The reference to special circumstances … requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes. In the exercise of the discretion … the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the … Act.
38. One of the evident objects of the legislation is to require compensation recipients to provide for their own support during preclusion periods. The discretion for special circumstances should be exercised with that in mind. In considering this discretion, von Doussa J said, in Secretary, Department of Social Security v Smith,[26] that the scheme is intended to operate to provide:
[26] (1991) 30 FCR 56 at 61.
a fair balance of the interests of the recipient of the payment with the competing interests of others in the community whose needs must be met as far as possible from a finite budget allocation for social security measures.
39. It is important to appreciate that the “special circumstances” discretion exists in a legislative setting intended to relieve hardship that might otherwise arise. Clearly some sensible balance needs to be struck between two—sometimes competing—legislative provisions.
40. It is sufficient to note that whilst “special circumstances” are not capable of being defined, ordinarily what is looked for is whether something about the case takes it out of the usual and distinguishes it from other cases. In Groth v Secretary, Department of Social Security,[27] Kiefel J observed that a matter would be so distinguished if it were concluded that something unfair, unintended or unjust had occurred.
[27] (1995) 40 ALD 541 at 545.
41. It was submitted on Mr Whitlock’s behalf that his were such “special circumstances”. Mr Whitlock’s life changed dramatically with the death of his wife within months of the claim being settled. Mr Black noted that, dating from the time Mr Whitlock commenced receiving social security payments (that is, at the start of what became the preclusion period), Mr Whitlock’s wife had been the family breadwinner. Her sudden death, clearly an event not anticipated when the settlement was being discussed, meant that there would be adverse financial effects on the family. In addition, albeit in the shorter term, Mr Whitlock has had to direct some of the compensation money to outlays for funeral costs and in respect of his wife’s estate, she having died intestate.
42. Mr Black submitted that Mr Whitlock adequately explained where the lump sum had been spent and indeed Ms Brennan did not challenge the use of the settlement moneys, especially in view of the death of Mr Whitlock’s wife. The Secretary, in other words, acknowledged that Mr Whitlock’s sudden bereavement was capable of coming within matters that would set the case apart from others.
43. However we do note that Mr Whitlock’s financial circumstances are quite solid, in that from the approximately $128,000 he received in hand from the settlement, he retains $50,000 (held in a term deposit) and $10,000 (recently returned to him as a repaid loan). Mr Whitlock owns his home outright, so he has no mortgage or rent to pay. Ms Brennan observed, correctly in our view, that Mr Whitlock can anticipate that the outlays made on funeral costs and costs associated with administering the estate will be reimbursed out of the estate.
44. Whilst it is true that a person’s financial circumstances will not entirely determine whether special circumstances exist, we are satisfied that Mr Whitlock’s circumstances are not special in the sense referred to in the cases. They do not warrant the exercise of the discretion to treat the whole or part of the settlement as not having been paid. No unfairness or unintended consequence arises from the application of the compensation provisions in this case, and the discretion available under s 1184K of the Act ought not to be exercised.
DECISION
45. The Tribunal sets aside the decision under review and reinstates the original decision, namely that the compensation part of the lump sum is $117,881.87 and that Mr Whitlock’s preclusion period is 149 weeks.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of the Honourable Dr BH McPherson CBE, Deputy President, and MJ Carstairs, Senior Member.
Signed: .......................[Sgd]...............................................
Mátyás Kochárdy, AssociateDate of Hearing 15 July 2010
Date of Decision 25 October 2010
Counsel for the Applicant Ms M Brennan
Solicitor for the Applicant Sparke Helmore
Counsel for the Respondent Mr M Black
Solicitor for the Respondent Welfare Rights Centre Inc
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