Shane Turnbull and Secretary, Department of Social Services

[2013] AATA 900

[2013] AATA  900

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4600
Re	Shane Turnbull
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	18 December 2013
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – Benefits and allowances – Lump sum settlement – Compensation affected payment – Preclusion period – Unable to work due to unrelated injury – Special circumstances – Not appropriate to exercise discretion – Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 1184K

CASES

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

Senior Member Bernard J McCabe

18 December 2013

1. Mr Shane Turnbull received a lump sum compensation settlement in 2012 in respect of a workplace injury that occurred in 2010. He was told at the time of the settlement he was subject to a compensation preclusion period during which he was not eligible to receive a range of compensation-affected social security payments. Because had already been in receipt of payments for part of the time between the incident and the settlement, the amount of those payments was recovered from him (“the compensation charge”).

   
   

   He remains ineligible to receive compensation-affected payments until 31 January 2014.

2. Mr Turnbull says the amount of the compensation charge should be refunded to him, for reasons I will explain. He said he was not otherwise troubled by the preclusion period.

3. In order to resolve the dispute in this case, I must decide whether there are special circumstances within the meaning of s 1184K(1) of the Social Security Act 1991 (Cth) (“the Act”) that suggest it is appropriate to treat part or all of the compensation amount as if it had not been paid. I am not satisfied it is appropriate to exercise the discretion in

   
   

   Mr Turnbull’s favour in this case. I explain my reasons below.

   THE CIRCUMSTANCES

4. Mr Turnbull was injured at work on or about 15 December 2010. He said he was off work for a time while he underwent treatment. The treatment was apparently a success: he explained he was able to return to work in August or September 2011.
   His compensation claim in respect of the incident was in place. About a month later,
   he said he was seriously injured in the course of a home invasion. The circumstances of the assault were set out in his police statement that was provided to the Tribunal.
   Mr Turnbull said he was forced to stop work as a result of the injuries he sustained in that incident. He applied for Newstart allowance, which was paid from 5 November 2011.

5. Mr Turnbull said he would have continued working after he returned to the workplace in 2011 but for the injuries he sustained in the home invasion a month later.

6. Mr Turnbull settled his claim for compensation in respect of the workplace injury on

   
   

   20 November 2012. He received a lump sum payment of $237,498.31 that included a component in respect of economic loss. Centrelink was informed of the settlement and the calculations required under Part 3.14 of the Act were performed. Mr Turnbull’s Newstart payments were cancelled as of 22 November 2012, and he was:

   ·required to repay $15,813 (the compensation charge); and

   ·told he would be subject to a preclusion period that concluded on 31 January 2014.

7. There appears to be no dispute over the accuracy of those calculations, and I accept them.

8. Mr Turnbull has been living off the compensation settlement monies while he has not worked. He lives in rented accommodation on the Gold Coast. He said he lives in the downstairs area of a house. His area has a single bedroom. He said his young son stays with him on most weekends, and he also referred to at least one friend who works in the mines. The friend or friends stay with Mr Turnbull when he is (or they are) on the Gold Coast.

9. Mr Turnbull says he has no credit cards or financial obligations apart from  rent and living expenses and a $13,000 debt owing to the New South Wales government in respect of fines. He sold a car he bought out of the settlement monies some time ago; the proceeds of sale were apparently spent on living expenses. He acquired a motorbike at an auction in February for about $7,000; he resold the bike in August for approximately $4,500.

   
   

   He also acquired a boat for around $15,000 that he sold two weeks before this hearing for around $5,400. When asked why he bought a motorbike and a boat when he was physically impaired, he responded that the boat was not difficult to operate and he only rode the bike once, and added that he bought the bike – and perhaps the boat too – as an investment. He told the Social Security Appeals Tribunal that he had around $15,000 in cash left as recently as August, although he told me some of that amount included the proceeds of the sale of the bike.

10. Mr Turnbull said he now had very little money left. He agreed he spent at least $20,000 since August. He said he spent the money on rent (he paid $400 per week for his accommodation) and living expenses - although he also claimed he was behind in his rent, which raises the question of where the money went.

11. Mr Turnbull has not managed his finances carefully. He did not obtain advice on how to invest the settlement monies, and he apparently used them to support a lavish lifestyle in the short term. I am not persuaded I was provided with a complete and accurate picture of his expenditure in any event.

    ARE THE CIRCUMSTANCES SPECIAL?

12. The preclusion period is due to end in a matter of weeks. But Mr Turnbull explained he was not looking for the preclusion period to be shortened. His real objective was to have the respondent refund the compensation charge. He argued he was only forced to apply for social security payments in 2011 because he could not work as a result of the injuries he sustained in the assault. The injury which gave rise to the compensation payment was essentially irrelevant, so the compensation charge should not have been recovered out of the settlement monies.

13. The expression “special circumstances” is used in a number of different provisions in the social security legislation. The expression is not intended to be precisely defined. It refers to circumstances that are unusual and which suggest this case should be treated differently to other cases – that an exception should be made because the case is somehow exceptional: see, for example, Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3.

14. The injuries sustained in the home invasion are almost certainly unusual. Mr Turnbull was the victim of a serious assault. The treating doctor’s report dated 16 December 2011 confirms he was badly injured and  his work prospects were likely to be affected for some time thereafter. I would have preferred to see more recent evidence, but I will assume for present purposes that he remains incapacitated as a consequence of the injuries he sustained in that incident. I note Mr Turnbull has applied for victims’ compensation in respect of the injuries, but that process has not concluded.

15. I was not made aware of any other circumstances that could be described as special.

    
    

    Mr Turnbull is apparently now in financial difficulty, but that is not unusual. He relies on what he describes as the inherent unfairness of being required to pay the compensation charge out of the settlement monies when he was only prevented from working (so that he needed support from Centrelink) because of the essentially unrelated injuries sustained in the home invasion.

16. Mr Turnbull’s experience of being injured in a home invasion may qualify as special circumstances, but that is not the end of the matter. I must also be persuaded the circumstances make it appropriate to treat the compensation payment (or part of it) as if it had not been made.

17. I am not persuaded it is appropriate to exercise the discretion in Mr Turnbull’s favour.

    
    

    He received a lump sum settlement. The law says – and Mr Turnbull was advised –

    
    

    he was expected to rely on those compensation payments to support himself throughout the preclusion period. If he had been able to work during the course of the preclusion period, he would have been entitled to keep that income and  save the settlement monies. The fact he was subsequently rendered unable to work does not change the fact the legislation assumes persons who receive lump sum settlement payouts are expected to look after themselves without recourse to the social security system for a period calculated with reference to the amount of the lump sum. Mr Turnbull is really in the same position as any other applicant who received a compensation payout and who could not work.

    CONCLUSION

18. It is not appropriate to exercise the discretion in s 1184K in favour of Mr Turnbull.
    The decision under review must therefore be affirmed.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 18 December 2013

Date of hearing	4 December 2013
Applicant	In person
Advocate for the Joined Party	Ms Jasmine Forsyth, Departmental Advocate