Stavroudakis and Secretary, Department of Social Services (Social services second review) - [2020] AATA 5229

Stavroudakis and Secretary, Department of Social Services (Social services second review) [2020] AATA 5229 (24 December 2020)
Division:GENERAL DIVISION
File Number: 2020/0458
Re:Claudia Stavroudakis
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:24 December 2020
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that under
s 1184K of the Act, the preclusion period shall not apply to the Applicant with effect from
6 November 2020 until the date when otherwise the preclusion period, if it applied to her, would cease to apply in the ordinary course in accordance with law.
.............[sgd].....................................................
Dr Damien Cremean, Senior Member
Catchwords
SOCIAL SECURITY – claim made for carer payment and carer allowance — lump sum compensation payments — application rejected — whether preclusion period applies
– whether special circumstances — applicability of the Guide to Social Security Law – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Cases
Barbara Maria Krzywak and Secretary to the Department of Social Security [1988] AATA 270
Beadle and Secretary General of Social Security (1984) 6 ALD 1
Control Investments Pty Ltd and Australian Broadcasting Tribunal [1980] AATA 78
Director General of Social Services v Hales [1983] FCA 81
Hardiman and Secretary, Department of Social Services [2020] AATA 1794
Kirkbright v Secretary, Department of Family and Community Services (2000) 65 ALD 211
Morgan and Secretary, Department of Social Services [2020] AATA 322
Reid v Secretary Department of Family and Community Services [2001] FCA 794
Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 161
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
24 December 2020
BACKGROUND

The Applicant, Ms Claudia Stavroudakis made a claim for carer payment and carer allowance under the Social Security Act 1991 (Cth) (“the Act”) on 5 July 2019.
On 17 September 2019, Centrelink decided to reject the Applicant’s claim because she was subject to a preclusion period until 3 April 2022.
On 2 October 2019, Centrelink wrote to the Applicant confirming she had requested review of that decision not to grant her claim.
On 10 October 2019, an authorised review officer (“ARO”) affirmed the decision on the ground that the preclusion period still applied until 3 April 2022.
On 22 October 2019, the Applicant then sought to have the decision reviewed in the Social Services and Child Support Division of this Tribunal (“Tier1”) but on 9 December 2019, Tier 1 affirmed the decision under review.
By application lodged on 10 January 2020, the Applicant now seeks review of the decision in this Division of the Tribunal.
HEARING
The hearing took place over two days on 1 October and 6 November 2020.
An earlier scheduled second date was cancelled because the Applicant was unwell.
At the hearing, the Applicant represented herself and called no other witnesses.
The Respondent was represented by Ms Underhill, a government lawyer, and called no witnesses.
LEGISLATION
The Act in s 1169(1) provides that if a person receives or claims a compensation affected payment and receives a lump sum compensation payment, the compensation affected payment is not payable to the person in relation to any day or days in the lump sum compensation period. The definition of a compensation affected payment is in s 17(3) of the Act.
The compensation part of such a payment is defined in ss 17(3) and (4) of the Act.
The lump sum compensation period referred to in s 1169K(1) is calculated as set out in
s 1170 of the Act.
The Act provides then in s 1184K(1) that the Secretary may treat the whole or part of a compensation payment as not having been made or not liable to be made if the Secretary thinks it is appropriate to do so in the special circumstances of the case.
It is the provision in s 1184K(1) which is in issue in this case, that is whether special circumstances exist.
If special circumstances do exist, it is then a question of whether all or part of a preclusion period does not apply by virtue of that provision.
EVIDENCE
The Applicant gave affirmed evidence in support of her position that special circumstances do apply in her case. I noted her concern was with that issue and not with the calculations involved in the case and whether the correct amounts had been cited.
It is unnecessary for me to extensively quote the Applicant’s evidence verbatim and I shall summarise only the main points except as I otherwise indicate.
The Applicant was born in 1979.
The Applicant told the Tribunal she is married but that her husband no longer lives on the premises as there are intervention orders in place. They have been separated since about 2014 but they are not actually divorced. They were married in 2004. There were episodes of violence during the marriage on the part of her husband where he would physically abuse her.
She lives at residential premises on the outskirts of Melbourne with her two children—a son (10) and a daughter (15). The premises are heavily protected by security cameras to avoid intruders.
The Applicant said she was injured in a collision in 2012 when the car she was driving was hit by another vehicle in an intersection. At the time she was driving to pick up her daughter from school. The traffic light was green for her. She suffered serious injuries in the collision and had to be cut out of her vehicle which took, she says 46 minutes. Her injuries included a crushed pelvis, spinal fractures and broken ribs, and she was hospitalised following this accident for about two months. She was then in a wheelchair for six months with her husband as her carer.
Before the collision, the Applicant had been working at a roadside assistance business. Her first job after leaving school was in retail sales. After the collision, she said she was not able to go back to work due to “severe post-traumatic stress”.
Legal proceedings were brought by the Applicant in the Supreme Court following the collision and the matter was settled for about $600,000.00. The Applicant was represented by lawyers.
Out of the settlement sum, the Applicant purchased her current residence for about $385,000.00. The balance was used by her on paying off a personal loan taken out to buy a vehicle and some other bills. The house she, her husband and their family had been living in was sold but the proceeds of the sale went towards paying off the mortgage. That house had to be sold because of its connection to her collision—the collision happened in the same street and she would be re-living it whenever she came out of the house.
The new house was purchased by the Applicant in December 2016 and it was bought by her alone. Also purchased out of the settlement sum was a Jeep motor vehicle. But subsequently that vehicle has developed problems and she purchased a small Holden Astra which she now drives for approximately $2,000.00.
Immediately after the collision, the Applicant was placed on heavy pain medication (Endone, OxyContin, Panadeine Forte) but now only may take Mobic for pain and perhaps, occasionally Panadeine Forte. However, she is on a daily anti-depressant tablet. She said, “I don’t like taking tablets”, but she must take some because she is not pain-free. She said, “I’m sometimes constantly in [a] heightened sense of pain”. She feels pain in her pelvis or hip; in her right shoulder; in the middle back; and (severely) in her left leg from the knee down to her foot. Her hands also became painful because she used crutches for so long.
The Applicant said, “I walk with a limp when I get tired or when I’m in a lot of pain or when it’s cold”.
Not only must the Applicant cope with these ongoing conditions and care for her two children but she does so without much financial help ($16.00 fortnightly) from her husband. She was at one point recorded as getting more (annually $8,000.00) but she said she never received it. Her husband is not currently working but did have his own handyman business. However, he began to take the drug ice after the Applicant’s vehicle collision and subsequently stopped working.
The Applicant’s daughter has been diagnosed in June 2019 with osteosarcoma in the right knee. This first showed up as a pain in her knee, but this was soon discovered to be cancer.
In September 2019, her daughter had extensive surgery “to remove most of her femur and her entire knee and they did a limb salvation surgery”, and after this time, she was on “really high doses of chemotherapy”.
The Applicant’s daughter is in remission now but still remains in “a lot of pain” and she “can’t walk, she can’t bend her knee and she can’t move around”. There are times when she must go back to hospital and recently was in hospital for “two months… straight”. The medication has affected the child, she is using hearing aids. The child “can’t go out, she can’t see her friends, she can’t go back to the way she wanted to be – or her normal, it’s made it really, really hard”. The child also gets very angry.
Fortunately, the Applicant has had the help of her husband in this and he would stay with their son at the house while the Applicant would accompany their daughter to the hospital.
Asked about her son and how he is coping, the Applicant said “[n]ot well”. She said, “he doesn’t really have that many friends”. He also witnessed “the domestic abuse” and then “there was the whole thing of his sister and he kind of got neglected”.
As regards the preclusion period, the Applicant said that if that continues, “I guess I’ll have to go back to work”. She said she was due to go back to work in June this year, and she did for a short while, but found it difficult because of her daughter’s need of “constant care”. She is also on leave without pay for another year but if she had to go back to work she said, “I’ll probably have to do something with [my daughter]”. However, she said her daughter “has to be constantly helped” and the child gets “angry and upset because she can’t remember things and because of the operation”. When she is upset, the Applicant said, “me and my son are walking around on eggshells”. She said, her daughter’s “decline in mental health...has impacted mine as well”.
The Applicant said certain sounds or sights reminiscent of her vehicle collision give rise to her having panic attacks (“I can’t breathe…my heart starts racing, my hands start sweating. I start crying”) and she agreed she spends most of her day looking after her children, this being during a time of COVID lockdown and home schooling. She said she spends her day “just cleaning up…looking after the kids, cooking, sometimes---because my—with everything that’s happened my mental health has gone down so I forget sometimes”. She said she does not sleep well at night and is disturbed by her daughter calling out to go to the toilet. Her daughter has a fear of fainting which had happened previously while on the toilet due to the chemotherapy regime.
The Applicant indicated that making ends meet is difficult but that selling her house is not a viable option. I have noted she suffers various conditions including Post Traumatic Stress Disorder (PTSD) and the house specially accommodates her needs. She said, “the house was bought and then set up for me”. The house also is as I have noted, on the outskirts of Melbourne and is equipped with several (12) security cameras. It is set back from the road and has a three-metre-high fence. I got the impression that the house would be difficult to sell. If she had to sell, apart from guessing she might have to rent somewhere—she said, “I couldn’t even think what I would do”. As to possibly staying with her parents, the Applicant said they are elderly, and each has health issues.
Overall, the Applicant said that life for her is “[e]xtremely” demanding. Particularly as regards her daughter who must be “constantly helped”. She said she has no interests of her own but “used to like reading and stuff”.
I also took the Applicant to mean that life is demanding for her financially. She said she receives a fortnightly Centrelink payment of about $500.00 or $524.00 per fortnight. She estimated that her expenses are about $800.00 to $900.00 per week. The small mortgage on the premises results in a weekly amount due of $242.00. She spends perhaps $50.00 per week on petrol. And then there are utilities (including annual rates of about $2,000.00) insurances (house and car) and normal living expenses. The Applicant estimated electricity at about $50.00 per week and gas at about $30.00 per week.
The Applicant said she must also pay for school fees—for her son about $120.00 per year but for her daughter about $60.00 per week (the figure she gave being about $3,000.00 per year).
At one point, the Applicant said she considered that “[f]inancially” she is paying for her husband’s addiction because that is where a lot of the money formerly available has gone.
As for food, Ms Stavroudakis said she gets household provisions—for herself, her son and her daughter from the Red Cross but she corrected this to the Salvation Army. She said she collects the food “[p]robably once a week” but that it “doesn’t always last the week but I –yes, if I have to go without, I do”. She said that she skips a meal (“usually breakfast and lunch”) “three or four days out of a week”.
The Applicant said she does not smoke and there is no alcohol in the house. She said she has no money in the bank, and she estimates she owes on the mortgage about $21,000.00.
Ms Stavroudakis stated she believes she was told about a preclusion period by her lawyer.
In cross examination, the Applicant agreed that renovations were undertaken at her new premises costing “about maybe half” or “half” of the loan she took out for $97,000.00. She mentioned a need to do renovation work on the bathroom in particular because it was found there was no waterproofing there at all. Otherwise though, except for the kitchen bench top, everything taken out was put back in. Work done in the hallway was due to the need to fix the uneven surface to prevent the Applicant from falling over. She said with her condition “I’d trip over” on the floor due to her limp.
She answered various questions concerning child support, but I was unable to discern clear answers except to say it seems the Applicant was receiving child support at some point but then it stopped. It was at that point she said that financially things were reaching a stage where “I wouldn’t have any money”.
Depression was affecting the Applicant at this point where she said, “I’ve thought about ending my life soon”. She had started working again from home doing afternoon hours (“the perfect job for me”) but she agreed she was in a “low place” and “money had started to get difficult”. Despite this, she indicated she was getting her confidence back— “at that stage, I started then walking on one crutch”. She agreed she felt comfortable enough to take out the mortgage to fix up the house and, if anything adverse happened, she indicated she felt she could sustain the mortgage—“I wasn’t even thinking that I wouldn’t be able to not[sic] pay”.
The Applicant agreed she had made her Centrelink claim shortly after her daughter was diagnosed with cancer. Immediately after the diagnosis, the Applicant agreed she had stopped work. Her daughter had had chemotherapy before the major surgery in September 2019 and went through a lengthy chemotherapy regime afterwards. Her daughter had lost all her hair within two weeks.
Sadly, the Applicant said, “that’s when a lot of the domestic violence started happening”. She said, “at one stage I had a broken nose and I had to tell her [her daughter] that I had hit something in the house on the way in [to hospital]”. In answer to a question from me, she said that it was her husband who had broken her nose and she added, “he choked me as well”.
The chemotherapy was in “extreme high doses” and her daughter was then (as now) under 16 years of age so the child could not be in hospital on her own.
At or about this time, however, the Applicant said she had run out of paid leave.
Asked questions about her estimates of costs, the Applicant explained that she wrote down a weekly petrol expense of $150.00 because she was going backwards and forwards between home and the hospital and the car she was using was heavy on petrol. That car, however, which was owned by her (and paid for by her out of her first compensation payment) she said had been “totalled” by her husband. That is, written off in a collision. After this, the Applicant acquired her Astra.
The Applicant was asked questions about the state of her mental health and she agreed there had been a build-up of “stressors”, so she was taking anti-depressants for which she needed to see the doctor. But she would not go routinely “unless it’s an emergency”. She recalled two occasions in that regard, “once when I cut my hand and had to get operated on and the other time when I thought I was having a heart attack at the actual hospital while I was with my daughter”. She said she considered her mental health had “gotten worse” in the last six months.
In resumed cross examination, the Applicant said it was not mental health issues that prevented her from being able to work but rather “having to care for my daughter”. She said, “she needs 24-hour care, she can’t go to the toilet by herself, she can’t get up and get anything for herself, she’s in pain, yeah, there’s a lot of issues with …that…”. She spoke of the “huge operation on her leg” which she said had “impacted her walking, it’s impacted her hearing, her sight, her speech, her thoughts, everything”.
The Applicant answered further questions about her mortgage and explained how difficult it would be for her to move house. She spoke of difficulties finding a place to rent, and by paying rent out of sales proceeds, “I would lose everything that – you know, after everything that I went through, everything that I had set up for the kids”. She said, in answer to Ms Underhill’s questions on this point, “I should’ve thought in hindsight … maybe I should have rented instead of buying the house in case my daughter got sick, or in case something happened like this”.
The Applicant re-iterated times of domestic abuse and said, “a lot of people say, well, if you’re scared of the person or he takes or does this, get out, it’s not that easy”. She added, “Especially when you’re fearful of what a person can do to you”. Indeed, she added, “had I not bought the house and been renting maybe it would’ve been different, but maybe it wouldn’t of[sic]”. She then said, “I don’t know if it would have been any different or if I would’ve been in a better position”.
At this point, Ms Underhill reassured the Applicant that the Respondent “is not contending that you’ve been negligent or that you’ve been a spent thrift...” Despite this, Ms Underhill pressed a point that the Applicant’s “money hasn’t run out, has it, because it’s sitting there in the equity in your property..?” to which the Applicant responded again to the difficulties faced by her if she were to sell her house.
After cross examination, the Applicant clarified that the current rates certificate showed the current capital improved value of her property as $300,000.00.
ISSUES AND CONTENTIONS
It is plain to me that the central issue in this case is whether special circumstances exist under s 1184K(1) of the Act.
The Applicant contends that special circumstances do exist, but the Respondent contends that they do not.
If I should find that special circumstances do exist, it is then a matter of exercising a discretion to say the date from which the preclusion period should be lifted.
Correctly, Ms Underhill for the Respondent submitted, I must “consider all of the evidence that’s been given about the different facets of the Applicant’s experience in coming to a view about special circumstances”.
CONSIDERATION

The Respondent provided a fully set out Statement of Facts, Issues and Contentions (“SFIC”).
I dealt with many of the legal issues in this area in my decision in Hardiman and Secretary, Department of Social Services [2020] AATA 1794 (“Hardiman”). It is worthwhile recounting, however, some of the main principles.
The general policy underlying the Act is that a person should not be permitted to obtain income support payments from two sources at the same time. See Reid v Secretary, Department of Familyand Community Services [2001] FCA 794 at [2] per Branson and Mansfield JJ (who, however, were speaking of ss 1163A and 1165 of the Act).
Section 1184K is designed to enable a decision maker to exercise a discretion (in the special circumstances of the case) to disregard the whole or a part of a compensation payment where strict application of the Act would lead to an unfair or inappropriate result. See, amongst other authorities, Kirkbright v Secretary, Department of Family and CommunityServices (2000) 65 ALD 211. At [22] of that decision Mansfield J said, “In my view, s 1184 is designed specifically to enable the respondent, and on review the Tribunal, to ameliorate … unfairness or injustice when it appears by virtue of the strict application of the Act”.
There cannot be doubt that the expression “special circumstances” refers to circumstances that are uncommon or unusual. See Beadle and Director General of Social Security (1984) 6 ALD 1. This is the case which is usually cited. At p 3, the Tribunal actually spoke of circumstances which are “unusual, uncommon or exceptional”. There is some doubt whether the test is slightly more relaxed than this because in Morgan and Secretary, Department of Social Services [2020] AATA 322 at [56], the Tribunal indicated special circumstances mean “something different from the usual or ordinary”.
In each case, it is a matter of deciding whether special circumstance do exist or not. If they do exist, it is then a matter of deciding whether it is appropriate to exercise a discretion. Some guidance is given in these matters by the Guide to Social Security Law (“the Guide”). The Guide is often applied to indicate what a possible result could be. But it cannot be applied so as to cause the Tribunal to abdicate its role: see Control Investments Pty Ltd and Australian Broadcasting Tribunal [1980] AATA 78. Further, if there is a cogent reason why it should not be applied.
In this matter, considering all the evidence and weighing it, I am satisfied I should find that the Applicant’s position is one of special circumstances and that it is appropriate to exercise a discretion in her favour.
In this connection, I must indicate that although the Applicant has suffered a great deal in her lifetime—particularly in recent times—I did not in any way form a view that she was given to exaggeration or hyperbole. I accept her evidence in its entirety. Nothing asked of her in cross examination affected her credibility. She is a truthful person, one who has suffered far too many misfortunes.
FINANCIAL
In the first place, as in Hardiman, Ms Stavroudakis is in a position of significant financial hardship. Her hardship is of a kind, in my view, considerably beyond that which is normally encountered in cases of this kind in which it has been said to be a “given” that the people “usually have one thing in common: they will be impecunious and in straitened circumstances”, Director-General of Social Services v Hales [1983] FCA 81, per Sheppard J. But being in “impecunious and … straitened circumstances” is, at the same time, almost a pre-requisite for success under s 1184K(1). It is too easy to dismiss proper consideration of an application simply because there are others as badly off financially. Each case must be treated individually and not stigmatised.
On the evidence, the Applicant’s expenses far outweigh her funds–leaving aside the issue of sale of her house. Leaving aside that particular issue, the Applicant is simply not in a position to access funds either.
On the evidence again, the Applicant must rely on food handouts from the Salvation Army to see her children and herself through the week. She herself goes without meals so that her children may be fed. I regard this as significant. The family has a couple of dogs which also must be fed, but I consider it would be unreasonable for someone to say that, in the circumstances, they should not be keeping dogs. I can see no reason why the children should not have family pets or why the family should not have protection, given all that has happened.
It is clear that in a general way, I should consider the way in which financial hardship has been caused. This includes the Applicant’s contribution to it. See Re Krzywakand Secretary, Department of Social Security (1988) 15 ALD 690 at [39]. Reckless financial decisions causing self-induced hardship should not be the occasion for someone to benefit at public cost.
But the proviso is that the decisions need to be clearly “reckless” and not merely decisions that the Secretary would not approve or that with hindsight should have been different. As I said in Hardiman (at [45]), and repeat here:
[the] Tribunal needs to be careful, I think, about telling people how they should live their lives—what decisions they should make including how they should spend their money — ex post facto. The Tribunal is not a review body of people’s spending patterns or of their consumer choices and has no role in that area. The Tribunal reviews decisions under enactments – not those made otherwise.
This however does not exclude consumer choices made recklessly as going to the discretion under s 1184K, with a view in mind by someone that, if they spend their money without restraint, any hardship they cause themselves will be paid for by the public. But a consumer choice made unwisely is not necessarily one made recklessly. Nor is a consumer choice necessarily made recklessly merely because others would not have made it.
In Hardiman also (at [46]), I expressed difficulty with the Guide indicating the general principle that consideration should be given to the value of all cash and realisable assets. The Guide says, as I noted, that as a general rule, special circumstances will not usually exist where a person has sufficient liquid assets to support them during the preclusion period. On that occasion (ibid), I said “I should point out I am unable to see anywhere in the Act where it says that a person only qualifies for the lifting of a preclusion period if they divest themselves of or liquidate assets”. That remains my view. In this area, the Guide goes too far. The Guide cannot add a gloss to the Act, so as to intrude on the decision - making powers of the Tribunal. Nor can the Tribunal fail to properly consider an application by merely applying the Guide. The Tribunal has a decision to make and that does not involve merely following the Guide.
I shall return to this aspect of the matter shortly because it raises the issue of the Applicant selling her house.
Having reviewed the evidence in this matter, I am unable to make a finding that the Applicant spends her weekly money in a reckless way. Indeed, the Respondent specifically said it was not being contended that the Applicant was negligent or was a spendthrift. But the Applicant and her children lead, in my view, a most modest existence given the circumstances.
A large portion of the Applicant’s weekly expenses is or has been taken up with petrol costs and medicines. Both are largely explicable in terms of her daughter’s illness—travelling to and from hospital and for her daughter’s treatments. Of course, the Applicant also has to buy her own medicines too because she herself has ongoing health issues.
There is nothing I can see in any of the Applicant’s weekly expenditures which I could even remotely regard as excessive or wasteful.
It is submitted that the Applicant might give or might have given consideration to selling her house so as to raise money for her needs and those of her children. Some reference is made to her lack of funding following her substantial payout of compensation. I took it that it was being put to her in cross examination that spending money on renovations was excessive or even that her purchase of the house in the beginning was in question.
I shall deal first with the Applicant’s acquisition of her property. I shall consider in that context also her purchase of motor vehicles.
Considering the Applicant’s history, I regard the purchase of her house as the ideal solution. It is reasonable that she would not want to re-live her dreadful collision by staying in her previous house. She would be passing by, on a daily basis, the very place where that collision occurred. Seldom have I heard details of a collision so serious and of injuries so severe. I consider it would have been a most detrimental result for her and her children had they stayed at that location. Therefore, I consider her decision to move away from there as thoroughly justifiable.
I consider the Applicant’s decision to buy the house she did is no less than thoroughly justifiable either. I have not seen the premises—nor has the Respondent—but the Applicant’s description of the property makes it sound ideal for her, in her circumstances. It is safely located in an area on the outskirts of Melbourne with high fences and numerous security cameras. I see that as fully explicable in particular because of the serious domestic abuse she has suffered over years from her husband. But I cannot rule out the possibility of the driver of the other car in her collision seeking her out. Both she and her children in my view clearly require protection.
The Applicant’s house is ideal for her in an additional way — and not only as regards the price ($385,000.00) she paid for it. She is still affected by the injuries she received in the collision and the house is set out in a way that she has reduced the risk of harm to herself from falling over or tripping. Should she injure herself by falling or tripping, this could have a profound effect on the welfare and well-being of her children.
The Applicant explained that it was necessary to spend money on some renovations, and I consider her decision to do so is and was reasonable. The costs involved do not seem in any way prohibitive and I am satisfied there was a clear need—not only for reasons of hygiene either—for the bathroom to be extensively worked on. Otherwise, I expect the family would be staying there with the bathroom simply rotting away, which would be a wasteful way to treat an asset of such importance especially to young children, one of whom has been exceedingly ill. The renovations by all accounts were hardly exorbitant although Ms Underhill seemed intent on pressing that point.
I am quite unable to level any criticism at the Applicant for buying her Holden Astra. Her other vehicle I accept is not serviceable—for some reason or other yet to be resolved—and she needs a vehicle to drive in for various reasons, including her daughter’s health and collecting food items. I accept that the Astra cost only $2,000.00 which is a very small sum for a used car. It is true that she was facing sizeable petrol bills when using the former car to drive to and from the hospital, but the Applicant’s husband put an end to that particular item of expenditure by writing the car off.
While discussing that particular connection, it may be true that the Applicant should have had more money left over to live on after the sale of the former property and after the personal injury settlement. But I accept the Applicant’s evidence that portions of her money were used by her husband on his ice habit, and perhaps on other things as well. The Applicant explained in painful, distressing detail both how and why she was fearful of her husband and I accept her evidence without reservation. She was simply not in a position to refuse. This, in my view, explains what happened to much of the money she received in her payout. As regards the sale proceeds of her former house, it seems that once the mortgage was discharged there was not much left over, perhaps only as little as $10,000.00.
The Applicant’s house is, of course, a realisable asset and the Guide says, as I have noted, that special circumstances usually will not exist where a person has sufficient liquid assets to support them during a preclusion period. In other words, the suggestion being made is that the Applicant should sell her property and live off the proceeds. I have already indicated my attitude to the Guide in this regard. I have already said that no provision in the Act is to this effect and that suggests to me that the Guide is attempting to produce or influence an outcome in cases of this nature where an applicant happens to own assets which include residential premises.
While I acknowledge the Guide is helpful in some respects on many issues, it is not helpful on others and is not helpful to me on this occasion. I note, as submitted by the Respondent with reference to the Guide, that the Applicant purchased her current premises after the commencement of the preclusion period applying in her case. This, however, is fully explained in the evidence given by the Applicant—in particular, as to her reason for leaving her former premises being near the site where the collision took place.
To my mind, it would be an appalling result if I should decide that the Applicant should have sold her house so that the Respondent can avoid meeting an obligation under the Act should special circumstances otherwise arise. An obligation under the Act, if otherwise one arises, should not be circumvented in this way.
In this particular case, I am not satisfied, I should add, that the Applicant would readily be able to find a market for her house in any event. It is located on the outskirts of Melbourne and was not so long ago a semi-rural area. But the house has been specially modified to suit the Applicant and to meet her needs and it is in an area she is now familiar with where her children go to local schools. Moreover, it is possible that buyers might be deterred by the high fence and the sheer number of security cameras. The house would not fetch a large sum—I accept that its current improved value is at about $300,000.00—but those in that market range may not be many. I am not informed by the Respondent what likely sales figures for the area have been and how well or not the market in that area is or has been performing.
Should the Applicant have sold her property, she would presumably have had to rent somewhere. But she could face difficulties in that regard—although still married, she is in the position of a single parent with two children and two pets. Rental premises could have been difficult to find on that ground alone. I doubt any arrangement by which she was to stay with her elderly and infirm parents would be workable.
Moreover, a rental sum would have needed to be found each week or fortnight as the case may be and funds from proceeds of sale of her house might not come through for many months. And, depending on where the rental premises were, there could then be a question about the disruption caused to her childrens’ educations.
I am not even clear that the Applicant, her children and the pets would have found or would find either premises which are readily available or premises which are desirable and safe. She would be or would have been a female living on her own with two children both of vulnerable years, one of whom is exceedingly ill.
Also, if the Applicant was to have found a place to rent, it would be one also which would need to meet her physical needs, which are such that she cannot afford to be on floors that are uneven for fear of falling down and injuring herself. Should she injure herself, this would impact of the care of her children–particularly her daughter.
If it were suggested that instead of renting, the Applicant might have sold her house and purchased a cheaper one, then I would think much the same problem would arise again. She might that way free up some money but at the level involved in this case—after deductions for stamp duties and costs of sale—the amount freed up would be likely to be very small indeed. Then it might be argued that she should have sold that next house too and so on but the return each time would be getting smaller and smaller. I regard this as quite impractical, if not absurd.
In the circumstances I have outlined, I consider it would be unreasonable to say that Parliament intended that, before the Applicant could qualify under s 1184K(1) of the Act, she must have liquidated the asset of her house and lived off the proceeds. In other words, I am satisfied Parliament could not have intended that she should sell her house, live elsewhere renting with her children and pets, spend the rest of the proceeds on rent and other things, and only then look to see whether she has satisfied special circumstances under s 1184K(1).
It simply cannot be, in my view, in the circumstances of this case that Parliament intended that result to follow.
I am satisfied that the Applicant does not have abundant assets. I might have said that the Applicant could have sold the Jeep motor vehicle which she purchased, but I am unable to make any findings in that regard as the evidence regarding that vehicle is vague and was not pursued at great length by the Respondent. But it seems the vehicle has some problem or other with it and may not even be running. I am unable to say what if anything, is its value.
The Guide specifies that in a general way, financial circumstances need to be severe and worse than the majority of social security recipients. As in Hardiman, I am unable to see how this can be applied in the Applicant’s case with any exactitude because I have no idea what the financial circumstances of the majority of social security recipients are. I was not given any evidence of this and I expect it was left to guesswork. I decline to engage in guesswork of that nature.
I consider that the Applicant is at a serious lack of funds stage where even buying food to eat is an issue. That is why she must get food from the Salvation Army and why she also skips meals so that her children are properly looked after.
On the evidence before me, I am satisfied the Applicant is in desperate need of funds. I regard her situation as severe. I cannot speak of the majority of social security recipients, but I can say that seldom in my experience have I encountered a situation as severe as that of the Applicant. The expenses she detailed in evidence show her expenses outweigh considerably her income.
I am satisfied also that this situation has not come about recklessly. It has been caused or contributed to not only by the Applicant having spent her compensation payment, but by the Applicant’s husband wrongful use of her monies and also by the unexpected occurrence of the Applicant’s daughter having suffered cancer and all the costs and expenses associated with that.
Generally though, I am satisfied that the Applicant has been modest in her spending and has at no stage been extravagant. I include in that observation the money she spent on house renovations which, it seems to me, were necessary on a number of levels.
The Guide says that on a s1184K review, all claims must be substantiated by evidence. If I apply that rule—which on occasion may not be able to be applied—I am satisfied that I have the necessary evidence in the T Documents, the additional documents supplied by the Applicant and also in the evidence she gave.
I am quite satisfied in all the circumstances that the Applicant’s financial position—on its own—is a special circumstance. I reject the Respondent’s statement that “whilst the Applicant’s financial circumstances might be difficult, they are not dire” as quite unfounded and inaccurate in the light of the evidence given to me. The fact, if it be so, that the Applicant’s daughter has been granted access to National Disability Insurance Scheme (NDIS) funding for her impairments (funded apparently in excess of $8,000.00) does not in any way alter the view I have formed that the Applicant’s financial position is, as I say, a special circumstance in itself.
HEALTH

The Applicant, as I have noted, still suffers from the effects of the collision including not only physically but mentally as well.
As far as her physical symptoms are concerned, that strongly militates against a view that she should have sold her modified house before being able to claim special circumstances. How would she cope in a house in which she might fall over as she has done in her present one before modification? How would the children cope if she did fall over?
I consider the Applicant’s conditions must be very troubling and burdensome for her at times. But, on their own, I do not consider they are such as to prevent her from resuming work at home as she was doing. In that sense—but only in that sense—the Guide is possibly correct in saying an applicant’s ill health is not a special circumstance.
The situation changes dramatically, however, when the condition and needs of her daughter are considered. The Applicant’s evidence was that life for her is “[e]xtremely” demanding and I do not doubt it at all. Her daughter is and has been seriously ill and her needs are such that—in the Applicant’s own words—she must be “constantly helped”.
I do not consider that I am unable to have regard to the daughter’s health in considering overall the position of the Applicant in terms of special circumstances. In the way described in evidence, I am satisfied that the Applicant’s own mental well-being is deleteriously affected to a significant degree by the demands of her daughter’s very serious condition. I consider this is a significant and ongoing factor where even thoughts of ending her own life have figured. That, of course, would be an irrational decision but, if taken, it would be one produced by the totality of the circumstances and not merely by her injuries in my view. This does not conflict with the Guide—not that it concerns me if, on this point, the Guide differs. Plainly it goes well beyond regarding the injuries the Applicant received in the collision as a special circumstance in any event.
That is to say, I consider a “stressor” in the Applicant’s life—to use the Applicant’s expression—is the demanding nature of her daughter’s condition and I consider (in the words of the Guide) that this is enough, coupled with her own physical sufferings arising from the collision, to bring the Applicant’s ill-health beyond the range usually encountered beyond that of many, if not even most compensation recipients. Whether this could be a majority of compensation recipients, however, I am quite unable to say and do not consider that I need to say. In this regard, I depart from the Guide as providing an unworkable criterion in the absence of evidence—which I would think should be produced by the Respondent because it is in the nature of being in reply and it is the Respondent who would have that kind of information. I am inclined to consider also that the Guide in this area is purporting to restrict the Tribunal in its deliberations.
Moreover, however, as a further special circumstance, the Applicant’s daughter’s health impacts directly on the Applicant’s ability to earn income to ease her financial position. In a sense, this is a special circumstance of an economic kind. The Applicant’s daughter, needing to be “constantly helped”, is one very good reason in my view why the Applicant is not realistically in a position to be working, even, or perhaps especially, if working from home. I consider it would be most risky to her daughter given her serious condition, if the Applicant was to be away from home and working. But an arrangement where the Applicant was working from home would also be unsatisfactory if she was unable to attend immediately to her child’s needs. Those needs could include toileting.
I am quite satisfied in every respect that the Applicant’s state of health impacted upon by her daughter’s health condition is a special circumstance. And of course, as I have said, her daughter’s condition has impacted on her financial position as well.
OTHER
I am satisfied also that the Applicant’s state of health impacted upon by her daughter’s has the consequence that she is unable to undertake any training activities in new or other work areas so as to ease her financial burdens.
This means that, all things considered, the Applicant in her family setting is in an especially vulnerable position where not only can she not work but she is unable to undertake training due to the demands upon her. That is to say, she is unable to work or train for new work due to those demands with the result that she cannot raise funds on her own and must be dependent upon such assistance as may be given under the Act. This, on its own, is a special circumstance.
Another special circumstance is, as I have said, she has not, in my view, acted recklessly with her compensation payment but in fact has used it wisely and not extravagantly.
The Applicant believes she was told of the preclusion period. However, I do not see that as disentitling her to a favourable outcome under s 1184K(1). She was told of that, if so, a long time ago and since then other events have taken over—her daughter’s illness for one. So how one might have expected her to respond to the information conveyed must be modified if not abandoned.
Moreover, I cannot see that s 1184K(1) works in a way that only those who do not know of a preclusion period applying to them can succeed. I know of no ruling to that effect and as I recall nothing was drawn to my attention. If the Guide should indicate to different effect, then I consider it is wrongly entering into the domain of the Tribunal’s evaluation of evidence.
I am asked to take into account child support payable to the Applicant. But this seems a forlorn hope. The father pays a small fortnightly amount which I have taken into account, but I cannot, as a practical matter, take into account what he should be paying because he is not paying her that amount. And on the basis of the evidence given to me, steps to seek more money out of him, for one reason or another, would be pointless.
CONCLUSION
I find, for the reasons I have given above, that special circumstances do exist in this case–which take the case well beyond the usual or the expected—within the meaning of s 1184K of the Act.
That being so, I find also that it is appropriate to lift the preclusion period fixed by the Act and applicable otherwise to the Applicant.
In consequence, I set aside the decision under review.
I consider I should take up something very fairly said by the Respondent, and substitute a decision that the preclusion period shall not apply to the Applicant with effect from 6 November 2020 (the last day of hearing) until the date when the preclusion period by law would otherwise have ceased. On the day, the evidence was concluded and it was only from that day, and not before, that I formed the view the preclusion period should be lifted.
In the discretion to lift all or part of the preclusion period, I consider it appropriate to lift it only in part and only from such date.

I certify that the preceding 127 (one twenty-seven) paragraphs are a true copy of the reasons for the decision herein of D Cremean, Senior Member.

...........[sgd]................................................
Associate
Dated: 24 December 2020

Date of hearing:

1 October and 6 November 2020

Applicant:

Self-represented

Advocate for the Respondent: Ms Underhill

Solicitors for the Respondent: Mills Oakley Lawyers

Date of hearing:	1 October and 6 November 2020
Applicant:	Self-represented
Advocate for the Respondent:	Ms Underhill
Solicitors for the Respondent:	Mills Oakley Lawyers