Sek and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 322

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 322

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3322

GENERAL ADMINISTRATIVE DIVISION		)
Re		Raimund Sek

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member A K Britton

Date19 April 2010

PlaceNewcastle  

Decision The decision under review is affirmed.

.......................[SGD].......................

Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – compensation affected payment – recovery of payment by Centrelink where compensation subsequently received – where no special circumstances favouring waiver of all or part of the debt.

Social Security Act 1991 – ss 17(1), 17(2), 1169

Groth v Secretary of the Department of Social Security (1995) 40 ALD 541
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 42

REASONS FOR DECISION

19 April 2010 Senior Member A K Britton           

1.      Mr Raimund Sek, the applicant in these proceedings, applies for review of the decision to recover from him the amount of $5797.47.  That decision, originally made by a Centrelink authorised review officer on 27 February 2009, was subsequently affirmed by the Social Security Appeals Tribunal.

Background

2.      The background to this matter can be briefly stated.  Mr Sek has been in receipt of a disability support pension since the year 2000.  In September 2005, he was injured in a serious car accident.  In 2008, following a claim for damages arising from that accident, he received settlement in the sum of just under $35,000.  The settlement included an amount for loss of earnings.  Centrelink received from that amount the sum of $5797.47 and, for shorthand reasons, I’m going to refer to that as the “subject amount,” being the amount of disability support pension and supplement paid to Mr Sek for the period 30 September 2005 to 2 March 2006 (the preclusion period) .  After deduction of the subject amount and of legal, medical and associated costs, Mr Sek received a net of amount of $15,000.  Of that, he spent about $10,000 on his daughter’s wedding and the balance on household items, such as a television, fridge, and other purchases. 

3.      There are two, key issues that I am required to determine today —, whether the charge of $5797.47 has been validly recovered by Centrelink and, if so, whether or not it is appropriate to disregard any or all of the amount of compensation paid throughout the preclusion period on the grounds that special circumstances exist.

Was the charge made against Mr Sek’s payment valid?

4. Mr Sek does not challenge this part of the decision. Given that he is self-represented, I have examined it in some detail and not merely proceeded on the basis that he has made a concession. Section 1169(1) of the Social Security Act 1991 (Cth) (the Act) provides that “compensation affected payments” are not payable during a lump sum preclusion period. Under section 17(1) of the Act, disability support pension and the supplement paid to Mr Sek during the preclusion period constitute a “compensation affected payment” and, as such, those payments are not payable during any lump sum preclusion period. The amount paid to Mr Sek constitutes “compensation”, within the meaning of section 17(2) of the Act — that is an amount, including a payment for damages or a payment in settlement of a claim for damages that is made, either wholly or partly, in respect of lost earnings or lost earning capacity. Centrelink’s calculations are set out at various parts of the documents, including paragraph 18 of the Secretary’s submissions. I agree that on the basis of the calculations provided, the amount recovered was the correct amount.

Do special circumstances exist?

5.      The main question in issue in this case is whether or not special circumstances exist.  Under section 1188(4K) of the Act, a decision-maker may treat the whole or part of a compensation payment as not having been made if he or she thinks it is appropriate to do so, in the special circumstances of the case.  For this reason, it is necessary to decide whether special circumstances exist in Mr Sek’s case and, if so, whether the discretion to treat the compensation payments as not having been made should be exercised. 

6.      The meaning of the term “special circumstances” has been the subject of extensive consideration by this Tribunal and the Federal Court.  Some of the authorities are referred to in the respondent’s submissions.  I note that in Groth v Secretary of the Department of Social Security (1995) 40 ALD 541 at 545, Kiefel J said that “special circumstances” require something which distinguishes a person’s case from others, in order to take it out of the usual or ordinary case. I also note the observation of Hill J in Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 42, that:

… the term “special circumstances” carries with it no requirement that the case be extremely unusual, common or exceptional. 

7.      In light of these authorities, the task that I am required to undertake is to decide whether Mr Sek’s circumstances can be considered “special,”.

8.      Mr Sek argues that his circumstances are “special” for these reasons. First, he suffers from a constellation of serious medical conditions, which he contends have significantly reduced his life expectancy.  Today, he provided medical evidence which supports his claim, at least in respect of the former proposition.  This evidence reveals that he was diagnosed with prostate cancer four and a half years ago and will require an operation in the near future, and that he also suffers from schizophrenia, anxiety, mood swings and diabetes.  Second, Mr Sek told the Tribunal that on account of his physical conditions, unlike other social security recipients, he cannot supplement his income by undertaking some pre-injury employment, and, therefore, is entirely reliant on social security payments.

9.      Third, he has been informed that he will require a number of operations to treat his prostate cancer.  In his opinion, these can’t be performed until such time as the NSW Department of Housing provides him with ground floor accommodation. He is currently accommodated in second floor accommodation, and it is his view that he be would be unable to climb two flights of stairs during any period of convalescence. 

10.     There can be no argument that Mr Sek now finds himself in straitened economic circumstances.  Like any social security recipient, he finds it difficult to make ends meet and has little discretionary expenditure.  I am not, however, persuaded that his circumstances in this case could be described as “special” or markedly different to other social security recipient. 

11.     As he correctly points out, he is not a person who has gambled away his compensation payment or has been frivolous expenditure, but one who, as a loving father, gave a significant gift to his daughter to assist her with a wedding. In addition, I note that the expenditure of $5000 on various household goods, at least in relation to the Australian community at large, could barely be described as “extravagant.” Nonetheless, the expenditure of $15,000 was entirely discretionary and not used to meet any living costs or other medical expenses incurred throughout the preclusion period, or at any other time. 

12.     Nor is it immediately apparent to me how, if a decision was made in Mr Sek’s favour, it would affect his ongoing negotiations with the Department of Housing for a ground floor flat.  While I understand that the change in accommodation would assist him and make recovery from the proposed operation easier, it is not, in my opinion, a relevant consideration for the determination of the question before me in these proceedings.  While it is uncontroversial that Mr Sek is currently receiving medical treatment for a range of conditions, there is no evidence, and nor is it suggested, that there is any medical treatment or care Mr Sek cannot afford on account of his current financial position.

13.     While I sympathise with Mr Sek’s position, and appreciate that it might assist his mental state if I were to make a decision in his favour, I am not satisfied that his circumstances could be described as “special”, or warrant the exercise of the power to treat the whole or part of the compensation payments as not having been made.  I appreciate that this will be a difficult decision for Mr Sek.  However, I have decided to affirm the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ..............................[SGD]................................................
  Associate to Senior Member Britton

Date of Hearing:  19 April 2010
Date of Decision:  19 April 2010
Date of written reasons:  4 May 2010
The Applicant appeared in person.
Representative for the Respondent:         Ms J Maclean,
  Centrelink Advocacy Section