Shannon and Secretary, Department of Family and Community Service S

[2003] AATA 336

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 336

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1070

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WILLIAM SHANNON

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Member

Date9 April 2003

PlacePort Macquarie

Decision The Tribunal affirms the decision under review.

………………………………

Ms N Bell
  Member

CATCHWORDS 

Social Security – Carer Payment – whether carer payment should be reduced by periodic compensation payments – whether special circumstances – decision affirmed

Social Security Act 1991 ss 17, 1173, 1184K

REASONS FOR DECISION

March 2003 Ms N Bell, Member

1.      This is an application by Mr William Shannon ("the Applicant") for review of the decision of the Social Security Appeals Tribunal  ("the SSAT") dated 26 June 2002. The SSAT affirmed the decision of the Secretary of the Department of Family and Community Services ("the Respondent") previously affirmed on 18 February 2002 by an authorised review officer.  The decision made by the Respondent was to reduce the rate of the Applicant's Carer Payment by the amount of his periodic compensation payments. The Applicant appeared on his own behalf and the Respondent was represented by Ms Rachael Quinn. The Tribunal had the following documentary evidence before it:

Exhibit	Description	Date
T1-T32 pp1-79	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975	6 February 2003
A1	Letter from Mr Shannon Letter from Mid North Coast Area Health	24 October 2002
A2	Letter of Service	7 March 2003
A3	Respondent's Statement of Facts and Contentions	11 October 2002

background

2.      It is not in dispute that the Applicant suffered a back injury at work in July 1996 and claimed workers compensation in respect of that injury. He first received a social security payment in October 1996 and was awarded $75.00 per week in periodic compensation on the basis of partial incapacity in October 1997.

3.      At the time of commencement of the Applicant's periodic compensation payments the relevant legislation, the Social Security Act 1991 ("the Act"), provided for periodic compensation payments to be taken into account in the calculation of the rate of a person's compensation affected payment as ordinary income. In May 1998 the Applicant was granted Carer Payment and in April 2000 the Applicant received a $20,000 lump sum settlement, none of which was recovered by Centrelink.

4.      On 20 September 2001 amendments to the Social Security Act commenced which provided for the reduction of social security payments by periodic compensation payments on a dollar for dollar basis.

5.      It is the application of this legislative amendment that the Applicant objects to.

issue

6.      The issue to be considered by the Tribunal is whether the Applicant's Carer Payment should be reduced by the amount of his periodic compensation payments on a dollar for dollar basis and, if so, whether there are any special circumstances which would justify part or all of his compensation payments being disregarded.

applicant's evidence

7. The Applicant told the Tribunal that, in his opinion, his workplace injury was caused by a criminal act and therefore does not constitute compensation within the meaning of the Act. He said that the Work Cover Law provides that if a person is injured on a work site then the employer is automatically guilty of a criminal act. When asked by the Tribunal, however, the Applicant said that his employer had never been prosecuted under the Work Cover legislation and that he had taken no steps against his employer beyond claiming workers compensation. He also said that he considered that his solicitor and the barrister who represented him in his workers compensation case were incompetent.

8.      In addition the Applicant said he considered that if he had been receiving a Centrelink payment at the time of his injury then the periodic compensation payments of $75.00 a week would now be treated as ordinary income. He said that he had gone to Centrelink for help in 1992, having been on Job Search Allowance before 1992 and was told that he was not entitled to a social security payment. He said that after his workplace accident his wife left him and he was able to claim a single parent pension.

9.      The Applicant also said that because he is a carer, caring for his wife who has bipolar disorder and schizophrenia, he is unable to seek work and while anyone else could earn up to $100.00 per week before the rate of their SSP was effected,  because he is a carer, he is unable to do so.

10.     The Applicant said that he currently receives no benefit from his periodic compensation payments. His debts are mounting as are his bills. He drew the Tribunal's attention to an amount of $3,650.00 currently outstanding on his credit cards and to an amount of $700.00 of bills outstanding and said that had he continued to have his periodic compensation payment treated as ordinary income he would not be in debt.

11.     The Applicant outlined the following circumstances which in his submission constitute special circumstances. He said that he has a bulging disc in his spine and is therefore limited in his movements and activities, being unable to bend or to exert himself continuously. He also said that his wife has schizophrenia and depression, for which she takes medication, and this results in a very depressing lifestyle exacerbated by the additional financial strain created by Centrelink's treatment of his periodic compensation payment. Further, he said that his wife smokes up to 120 cigarettes per day and that he has to keep money away from her or she "smokes herself silly". He said that she has been known, when out of cigarettes, to go out looking through garbage bins.

12.     The Applicant also said that he is an epileptic and therefore has to watch his diet, his level of fatigue and stress, and his general health. He also told the Tribunal that he has begun to develop headaches which first arose when he began a TAFE course three years ago and was accused of harassing and sexually harassing a teacher. He said this accusation resulted in him having a breakdown. He explained that he attends TAFE in order to obtain an additional payment of some $35.00 to $40.00 per week. He has undertaken Information Technology courses and is attempting to continue his studies in order to obtain the payment.

13.     The Applicant told the Tribunal that approximately one week ago his daughter, Jara, aged 15, was involved in serious car accident which resulted in serious spinal injuries. She has a crushed vertebra and will have surgery and a very long convalescence. The Applicant provided the Tribunal with a letter from the Mid North Coast Area Health Service dated 7 March 2003 which advises that Jara Shannon was admitted to the hospital on 5 March 2003 and that it is likely she will have a protracted hospital stay in Taree and probably Newcastle (Exhibit A2). The Applicant said that this protracted hospital stay will require he and his wife to move to Newcastle in about week to be near their daughter in hospital. The Applicant said, however, that he has not yet started looking for a place to stay in Newcastle.

14.     The Applicant explained that while he, his wife and his daughter live in a house owned by them in the township of Forster, he has another property on which he has built a house and where his son lives as a caretaker. He said that he has made this arrangement in preference to renting the house because of the costs associated with making the house available for rental and the wear and tear on the property that might eventuate.

15.     When asked by the Tribunal the Applicant said that he has had his house in town listed for sale for six years. He said that every time he finds a buyer the local council tells the potential buyer that the land cannot be developed on a commercial basis. He said the house is extremely run down and in the centre of town on a valuable site, but with broken windows, asbestos and badly in need of repair. In relation to the Applicant's house out of town that was built by him, he said he does not want to sell it because he wants to live there. He also said that if he were to move to the house he built he would be prevented from receiving a social security payment because his house in town is worth too much and the application of the asset test would make him ineligible to receive social security.

16.     The Applicant also told the Tribunal that he runs and owns three cars at present because he considers that it is more economical for him to do so. He claimed that he is able to obtain free registration for two of his vehicles because he is in receipt of social security payments and that insurance on the vehicles is relatively cheap because he is social security recipient and pays insurance for multiple vehicles. He said that he currently owns a Land Cruiser which he valued at approximately $5,000, a VW convertible which he valued at approximately $2,000 and a Kombi van which he valued at approximately $5,000. He said that his wife does not drive because she is too ill. He gave as a reason for maintaining three vehicles that in the event of one vehicle breaking down there is another at his disposal and he can take his time to find the most economical way of repairing any vehicle that has broken down.

17.     The Applicant said that his current income is as follows:

·     Carer pension - $211.00 per fortnight 

·     Education supplement - $62.40 per fortnight 

·     Carer allowance - $87.70 per fortnight 

·     Family payment - $160.72 per fortnight

In addition, Mrs Shannon receives a disability support pension of $361.30 per fortnight.

18.     The Applicant said that he considered that his property out of town is valued at approximately $160,000. He said that both his properties are unencumbered. He said that he has received an offer for his house in town of $460,000.

19.     In relation to the $20,000 compensation settlement that he received in April 2000 in relation to his back, he said that it was spent on living expenses and he has nothing to show for it. The Applicant also said that he has regular medical expenses including medications for himself and his wife and that they usually "hit the safety net" in about October or November each year, but that all medication is covered by their health cards.

respondent's submission

20. Ms Quinn, for the Respondent, submitted that carer pension is a compensation affected payment pursuant to section 17 of the Act. She submitted that prior to legislative changes which took effect on 20 September 2001, periodic compensation payments were assessed according to the ordinary income test. From 20 September 2001, however, section 1173 of the Act applies to reduce a compensation affected payment by the amount of periodic compensation payments, unless at the time of the compensable injury (in this case 19 July 1996) a person was receiving a compensation effected payment.

21. As to the Applicant's suggestion that his compensation payments relate to a personal injury suffered as a result of the commission of an offence and therefore the possible application of section 17(2B) of the Act, Ms Quinn submitted that the Applicant's periodic compensation was claimed as workers compensation and not as criminal injuries compensation and drew the Tribunal’s attention to the absence of a prosecution or any finding of criminal behaviour on the part of the Applicant's employer.

22.     Ms Quinn submitted that the Applicant is being paid carer payment to compensate him for his inability to work arising out of his need to care for his wife. She said that any unfairness arising out of this situation or the application of the amended legislation has the same effect on the Applicant as it does on others subject to these provisions and that given the clear intention of the legislation this does not make the Applicant 's circumstances special. Ms Quinn submitted that the Applicant's family's health, including that of his young daughter, is the most special of his circumstances but that it must be seen in the context of his ownership of substantial effects which could be realised in order to alleviate his financial situation. 

consideration

23. Section 17(1) of the Act provides that carer payment is a compensation-affected payment. Section 1173(1) and (2), as amended from 20 September 2001, provides:

1173(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).

1173(2) The person's daily rate of compensation affected payment is reduced by the amount of the person's daily rate of periodic compensation.

24. There is no dispute that, at the time of the event that gave rise to the Applicant's entitlement compensation, that is, his injury at work, he was not qualified for and receiving a compensation affected payment. Nor is there any dispute that he receives periodic compensation payments of $75.00 per week and receives a carer payment. It follows that, in accordance with section 1173 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 carer payment must be reduced on a dollar for dollar basis by the amount of his periodic compensation payments.

25. Section 1184K of the Act provides for the disregarding of part or all of the Applicant's periodic compensation payments if "it is appropriate to do so in the special circumstances of the case".

26. The Tribunal accepts the Applicant's evidence in relation to his health and that of his wife, the seriousness of his daughter's recent injuries, and the stress experienced by the Applicant in recent years. However, the Tribunal is mindful that the Applicant and his wife and daughter currently have a combined income of $883.12 per fortnight, the Applicant has a property valued by him at $160,000, (in addition to his unencumbered principal home), and that the Applicant has three motor vehicles valued by him at a total of $12,000. In that context, while the Tribunal has great sympathy for the Applicant's predicament in relation to his own health, that of his wife and the tragic and very serious injuries recently sustained by his 15 year old daughter, the Applicant's circumstances do not warrant the exercise of the discretion under section 1184K of the Act. For that reason the Tribunal considers that the amount of the Applicant's periodic compensation payments should continue to be treated as provided for by section 1173 and no part of those payments should be disregarded.

decision

27.     The Tribunal affirms the decision under review.       

I certify that the preceding 27 paragraphs are a true copy of the decision and reasons for decision of Ms N. Bell, Member:

Signed:         
          ....................................................................................……………………………….

Associate

Date of Hearing  10 March 2003

Date of Decision  April 2003

Applicant  Self-represented

Advocate for Respondent           Ms R. Quinn