SELWAINS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT, AND WORKPLACE RELATIONS
[2011] AATA 477
•8 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 477
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0564
GENERAL ADMINISTRATIVE DIVISION ) Re RAGAIE SELWAINS Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT, AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date8 July 2011
PlaceSydney
Decision The Tribunal affirms the decision under review. ....................[sgd]..........................
Ms G Ettinger
Senior Member
CATCHWORDS
SOCIAL SECURITY – Applicant settles workers compensation claim – Newstart allowance cancelled – Applicant claims wrong advice from his barrister, and from Centrelink – whether special circumstances – decision under review affirmed.
Social Security Act 1991 ss 17, 608, 1061ZA, 1173, 1184K
Social Security (Administration Act) 1999 s 80
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadlev Director-General of Social Security (1985) 7 ALD 670
Dranichnikov v Centrelink (2003) 75 ALD 134
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Colaiacolo and Secretary, Department of Social Security (AAT 2109, 24 April 1985)
Re Hollis and Secretary, Department of Employment & Workplace Relations [2006] AATA 4
Re Lintern and Secretary, Department of Social Security (AAT 8479, 14 January 1993)
Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
Re Secretary, Department of Social Security and Smallacombe (1991) 23 ALD 141
Secretary, Department of Social Security v Hulls & Others (1991) 22 ALD 570
REASONS FOR DECISION
8 July 2011 Ms G Ettinger, Senior Member SUMMARY
1.Mr Selwains is 60 years old and received a workers compensation payment as a result of a work related injury to his back in October 2008. He has been paid weekly earnings, and says that he relied on the advice of Centrelink, as well as that of his barrister, to accept a payment of $250 per week rather than any lump sum settlement. He says he understood that he could continue to receive Newstart allowance as well. However, Newstart is, pursuant to section 17(1)(c) of the Social Security Act 1991 (the Act), a compensation affected payment, and Mr Selwains’ Newstart allowance, which was marginally less than the $250 per week which Mr Selwains now receives as workers compensation, was cancelled as a result of the compensation entitlements.
2.Mr Selwains is unhappy about that, and has appealed the matter to this Tribunal. He has also written to the Legal Services Commissioner. I have found that his Newstart is a compensation affected payment, and have affirmed the decision of the Centrelink delegate and the Social Security Appeals Tribunal (SSAT). My reasons follow.
ISSUES BEFORE THE TRIBUNAL
3.The issues before the Tribunal are:
· whether Mr Selwains’ compensation payments affect his rate of Newstart allowance; and if so,
· whether there are any special circumstances, which would justify part or all of his compensation payments being disregarded.
THE RELEVANT LEGISLATION
4.The relevant legislation in this matter is the Social Security Act 1991 (the Act), in particular, sections 17(1)(c), 1173 and 1184K(1), and section 80 of the Social Security (Administration) Act1999, (the Administration Act). Section 80 of the Administration Act, deals with cancellation of Mr Selwains’ social security payment.
BACKGROUND AND MR SELWAINS’ EVIDENCE
5.Mr Selwains told me that he is 60 years of age, and has a number of health issues. He injured his back at work on 1 October 2008. His main complaint arises from the acceptance on 13 September 2010, of a settlement at the Workers Compensation Commission which consists of a continuing payment of $250 per week from 7 August 2009, instead of a lump sum payment. He says that in agreeing to that form of payment, he accepted the advice of Centrelink, and of the barrister representing him. He says that after learning that as a result his Newstart allowance would be discontinued, he feels that he has been disadvantaged.
6.Prior to this settlement, Mr Selwains applied for Newstart allowance, which was granted, commencing 13 August 2009. An income maintenance period was however imposed for the period 6 August 2009 to 23 June 2010, on the basis that Mr Selwains had received leave payments from his former employer. Mr Selwains said that he accepted the period imposed, but wondered why his was not considered a case of hardship.
7.Then on 9 September 2009, before he settled the workers compensation claim, Centrelink sent Mr Selwains a letter that explained, among other things, that: Any compensation you receive may also stop you from receiving Centrelink payments in the future.
8.On 22 October 2010, and after the settlement of the workers compensation claim, Centrelink advised Mr Selwains that his Newstart allowance and pensioner concession card had been cancelled from 20 September 2010 because of his regular compensation payments.
9.Mr Selwains sought review of the decision of Centrelink to cancel his Newstart allowance. An Authorised Review Officer and the Social Security Appeals Tribunal both affirmed it. Mr Selwains then exercised his right to appeal to this Tribunal.
DO MR SELWAINS’ COMPENSATION PAYMENTS AFFECT HIS RATE OF NEWSTART ALLOWANCE
10.Section 17(1)(c) of the Act defines a compensation affected payment, to include a social security benefit. A social security benefit includes Newstart allowance.
11.Section 1173 of the Act deals with the effect of periodic compensation payments on the rate of a person’s compensation affected payment, as follows:
(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.
….
12.At the time of the event that gave rise to the Applicant’s entitlement to compensation, that is, his injury at work, he was not qualified for, and receiving a compensation affected payment. Accordingly, the periodic compensation cannot be treated as ordinary income, but in accordance with subsections 1173(1) and 1173(2) of the Act, the Applicant’s daily rate of compensation affected payment must be reduced by the amount of the Applicant's daily rate of periodic compensation. That is, the Applicant’s Newstart allowance must be reduced on a dollar for dollar basis by the amount of his periodic compensation payments.
13.In accordance with section 1173 of the Act, the Applicant’s income from periodic workers compensation had to be treated as a direct deduction from any Newstart allowance he may have been entitled to. The Applicant has been receiving workers compensation payments of $250 per week since 7 August 2009, which at 20 September 2010 was higher than the rate of Newstart allowance that he would have received had he been entitled to receive such payment. Therefore this resulted in a nil rate of Newstart allowance.
14.Section 608 of the Act provides:
(1) Subject to subsection (2), a newstart allowance is not payable to a person if the person’s newstart allowance rate would be nil.
(2) Subsection (1) does not apply to a person if the person’s rate would be nil merely because:
(a) an election by the person under subsection 1061VA(1) is in force; or
(b) the person has been paid an advance pharmaceutical allowance under the social security law.
15.In this situation, Newstart allowance was not payable to the Applicant because his Newstart allowance would be nil. Therefore, the Applicant’s Newstart allowance was cancelled pursuant to section 80(1) of the Administration Act. I am satisfied that that was the correct decision which had to be made by Centrelink.
ARE THERE ANY SPECIAL CIRCUMSTANCES WHICH WOULD JUSTIFY PART OR ALL OF MR SELWAINS’ COMPENSATION PAYMENTS BEING DISREGARDED
16.I have found in the paragraphs above that Centrelink’s decision to cancel Mr Selwains’ Newstart allowance in the circumstances of his Workers Compensation Commission settlement was correct. There is however, a discretion pursuant to section 1184K(1) of the Act which deals with special circumstances, and which I can consider. As relevant the section follows.
1184K Secretary may disregard some payments
(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.
Section 1184K(1) of the Act indicates that there is a discretion which the Secretary, and therefore this Tribunal can exercise, to find that in the special circumstances of a case such as the present, the whole or a part of a compensation payment can be treated as not having been made if that is appropriate.
Mr Selwains’ evidence and submissions
17.In his oral evidence, Mr Selwains told me what he considers are the special circumstances which I should take into account in his case. He also wrote a submission which is Exhibit R2 before the Tribunal. His evidence amounts to:
·Being 60 years old, having a back injury and other health problems; the costs of the medication he must take (Exhibit R4 and R6);
·Attending at Centrelink the day of the Workers Compensation Commission hearing to ask advice; having been given incorrect advice by Centrelink which amounted to him interpreting that advice to be that he would receive approximately $196 per fortnight in addition to the workers compensation figure;
·Being given wrong advice by his barrister;
·Having difficulties meeting the cost of living, and paying bills and credit card payments; (Exhibit R5 comprised a series of document evidencing payments Mr Selwains will be required to make).
The Respondent’s submissions
18.Ms Horan, who appeared for Centrelink, contended that there were no special circumstances that would warrant the exercise of the discretion in section 1184K(1) of the Act.
19.Ms Horan submitted that Parliament clearly intended to treat workers compensation payments differently from other income. She submitted that the purpose of the legislation is to ensure that an injured person who receives compensation for an injury does not double-dip and receive benefits from the public purse in respect of the same period of time. Ms Horan submitted that this view was noted in the matter of Secretary, Department of Social Security v Hulls & Others (1991) 22 ALD 570.
20.Ms Horan submitted that in Mr Selwains’ case there were no special circumstances, as there was nothing unfair or unjust in following the process set down. She submitted further that the Applicant’s circumstances are in no way unusual, uncommon or exceptional to render the strict application of the Act unjust, unreasonable or inappropriate.
21.Ms Horan referred to Re Secretary, Department of Social Security and Smallacombe (1991) 23 ALD 141, where I noted the Tribunal stated at [10]:
… A special circumstance is unlikely to exist, in isolation of any other factor at least, simply by reason of the application of a legislative provision. Even where the effect of a legislative provision may be harsh or unjust, the Tribunal is bound by the clear intention of Parliament …
22.Ms Horan contended that the Tribunal is constrained in its discretion by having to take into account the interests of the taxpayer and the legislative intent that in general, people should be required to live by utilising their compensation payments. She noted that in Re Lintern and Secretary, Department of Social Security (AAT 8479, 14 January 1993), the Tribunal noted that public money should not be used to improve or give gain to social security recipients.
23.Further, she submitted, the Respondent contended that there is no injustice in the manner in which periodic compensation payments are brought to account in determining a person’s rate of payment. The clear intention of the legislation is that people who are unable to work and who have an entitlement to periodic compensation should look to the compensation payer for income support instead of the public purse.
The Tribunal’s deliberations
24.In coming to a decision regarding special circumstances, I am mindful that the Act does not define special circumstances. However, the concept has been considered many times in this Tribunal as well as by the Federal Court. I must of course also take into account the evidence of the Applicant, his submissions, and those of the Respondent.
25.A well known authority in the area is the Tribunal case of Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where the Tribunal stated:
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.
26.In Beadlev Director-General of Social Security (1985) 7 ALD 670, the Federal Court did not endorse the view expressed by the Tribunal in Re Beadle that to constitute special circumstances, they must be unusual, uncommon or exceptional. Instead, the Full Court held that it was not possible to lay down precise limits or precise rules but it was a matter for the Director-General bearing in mind the purpose for which the power was given (at 674).
27.In Dranichnikov v Centrelink (2003) 75 ALD 134, the Full Federal Court considered the meaning of the term special circumstances, and observed (at 148):
Other cases which have considered analogous words such as ‘special reasons’ has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary ...
28.In Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9, the Federal Court concluded that there must be something that distinguishes the case from the ordinary or usual cases. Justice Besanko said (at [33]):
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
29.I have considered Mr Selwains’ circumstances which he says are special circumstances. I have first considered his health issues. A report of Dr M Guirgis, consultant orthopaedic surgeon, dated 16 December 2009, was Exhibit R3 before the Tribunal. It deals with Mr Selwains’ back injury for which he has been compensated through the action at the Workers Compensation Commission. Mr Selwains said that he loves to work, but that the injury involved an injury to his back. He then had triple by-pass heart surgery in 2002/3. Mr Selwains’ GP Management Plan dated 25 January 2010 was Exhibit R4 before the Tribunal. It recorded his bypass surgery, and indicated he suffers from hypertension, gambling addiction, depression, back injury and hyperuricemia, and listed his medications, (also at Exhibit R6). I did not have evidence before me that Mr Selwains cannot manage his life notwithstanding those conditions.
30.I am mindful that the Applicant’s back injury does not of itself constitute special circumstances (Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464). The Applicant is receiving workers compensation payments intended to provide for his restricted working situation, and this should not be considered to be unusual, uncommon or exceptional or for it to be described as out of the ordinary for the purposes of section 1184K of the Act.
31.I next considered Mr Selwains’ financial situation. He has been in receipt of workers compensation payments totalling $250 per week since accepting the offer on 13 September 2010. This amount was, at the time of settlement, slightly greater than the rate of Newstart allowance payable which cancelled out the Newstart allowance. I note that Mr Selwains also received a lump sum of $9,000 which he said he used to pay off some of his debts.
32.I noted also in a Centrelink document dated 17 November 2009 that Mr Selwains received certain termination payments when he ceased working. Of that, he transferred $40,000 to his daughter for safe keeping he says. However, because the Applicant has access to that money, Centrelink did not hold that it was a disposal of income under the Act. It does mean however, that he has $40,000 in reserve for use as he pleases.
33.I am mindful no one who has been injured and receives workers’ compensation payments is really well off, but Mr Selwains is in a better financial position than some other welfare recipients, and in such circumstances the Applicant is not in financial hardship. I noted that in Re Colaiacolo and Secretary, Department of Social Security (AAT 2109, 24 April 1985), the Tribunal stated that the factor of financial hardship alone is not sufficient to amount to special circumstances unless it is exceptional and not merely straitened that applies also to Mr Selwains.
34.I next considered Mr Selwains’ situation in regard to what he says was incorrect advice given to him by Centrelink. I noted that Centrelink wrote to Mr Selwains on 9 September 2009 informing him that he or his solicitor should contact Centrelink before settling his compensation claim in order to ascertain how any compensation would affect his entitlements. Centrelink also offered a free consultation with its Financial Information Service Officers, but I believe Mr Selwains did not consult them. He did however go to Centrelink before the settlement, and says that Centrelink advised him that if he accepted the offer to settle his workers compensation claim for $250 per week, he would still receive $200 per fortnight plus his health concession card. I have noted Centrelink’s record of his attendance in person at its Hurstville office on 10 September 2010 in connection with his Newstart allowance. I cannot deduce from that document what advice Mr Selwains was given.
35.Ms Horan submitted, correctly, that this Tribunal does not have jurisdiction to deal with issues of defective administration (if indeed any occurred), and informed the Tribunal that Mr Selwains lodged a claim for Compensation for Detriment caused by Defective Administration on 10 March 2011.
36.Mr Selwains also alleges that his barrister advised him that if he accepted the offer to settle his workers’ compensation claim for $250 per week, he would still receive $200 per fortnight plus his concession card, and on the basis of that advice he accepted the workers compensation settlement. In that regard, I noted from the T-documents that Mr Selwains had been in contact with the Office of the Legal Services Commissioner who on 12 January 2011, wrote to the barrister for his comment.
37.I note that Ms Horan submitted there is no evidence before the Tribunal to support the contention that Mr Selwains’ barrister gave incorrect advice. She also submitted that even if negligent advice had been given, that would not constitute special circumstances pursuant to section 1184K. She suggested that this was a matter between the Applicant and his barrister, and it may therefore be appropriate for the Applicant to pursue legal action against his barrister rather than seeking compensation from the Australian community (ReHollis and Secretary, Department of Employment and Workplace Relations [2006] AATA 4).
38.In coming to a decision whether special circumstances apply to Mr Selwains, I have taken into account the legislation, case law and all the evidence and submissions. I am mindful that Mr Selwains has some health problems and that he is finding it difficult to manage on his workers compensation payments. I cannot be satisfied that he received incorrect advice from Centrelink although I am mindful that the records indicate he attended at a Centrelink office on the day of his workers compensation settlement. Any incorrect advice Mr Selwains received from his legal advisors can be redressed in another forum.
39.Special circumstances take into account a global view of a person’s circumstances, and no individual circumstance alone constitutes special circumstances. As noted above, I am not satisfied that Mr Selwains’ situation meets the tests for special circumstances. The decision under review must be affirmed.
DECISION
40.The Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ..............[sgd].................................................................
AssociateDate of Hearing 9 May 2011
Date of Decision 8 July 2011
Appearance for the Applicant Self Represented
Appearance for the Respondent Ms K Horan, DHS Legal Services Division
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