Streckfuss; Secretary, Department of Employment and Workplace Relations

[2006] AATA 317

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 317

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1327

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And LYNETTE STRECKFUSS

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date4 April 2006

PlaceSydney

Decision The Administrative Appeals Tribunal sets aside the decision of the Social Security Tribunal and finds that Mrs L Streckfuss’  periodic payments of compensation must be treated as direct deductions from her disability support pension, and that there are no special circumstances in order to treat some or all of the periodic compensation payments as not having been made or not liable to be made.

[Sgd] Ms G Ettinger   Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension (blind) - compensation payment - double dipping - claim of administrative error - legal representative's error -  remedy for such error - no special circumstances - decision of SSAT set aside -  Departmental decision restored -

Social Security Act 1991 - sections 17, 1169, 1170 and 1184K

Secretary, Department of Social Security v Cunneen (1997) 149 ALR 665

Kirkbright v Secretary, Department of Family and Community Services (2000) 65 ALD 211

Re Beadle and Director General of Social Security (1985) 60 ALR 225

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

Secretary, Department of Social Security v Smith (1991) 23 ALD 277

Haidar v Secretary of Social Security (1998) 52 ALD 255

Groth v Secretary of Social Security (1995) 40 ALD 541

Secretary, Department of Social Security v Ellis (1997) 46 ALD 1

Secretary, Department of Family and Community Services and Duarte [2000] AATA 927

Reid v Secretary, Department of Family & Community Services (2001) 65 ALD 108

Secretary, Department of Family & Community Services v Allan [2001] FCA 1160

Lubcke and Department of Family and Community Services [2000] AATA 642

Judd and Secretary, Department of Social Security [1998] AATA 144

Bell and Secretary, Department of Social Security [1998] AATA 284

REASONS FOR DECISION

4 April 2006    Ms G Ettinger, Senior Member   

BACKGROUND

1.           Mrs Streckfuss is a teacher who worked at a primary school where there was alleged inappropriate behaviour by the headmaster in connection with certain students. Mrs Streckfuss, and no doubt others, found this, and the consequent inquiries and actions which followed, extremely distressing. She has suffered work-related illness since February 2002 as a result, being an auto-immune disorder which has resulted first in loss of sight in one eye, and then in the other. She has been unable to work, and commenced receiving disability support pension (blind) from 15 March 2004, with its attendant benefits.  This is a pension which is not affected by income or assets if the recipient is legally blind. There was no dispute that Mrs Streckfuss is legally blind.

2.           On 25 January 2005, Mrs Streckfuss was awarded workers’ compensation weekly payments by the Workers’ Compensation Commission after conciliation and a hearing at which both Mrs Streckfuss and the employer were legally represented. The orders stipulated that Mrs Streckfuss be paid periodic compensation at $323 per week from 5 April 2004 to 25 January 2005, and $280 from 26 January to 11 July 2007.

3.           On 2 March 2005 Centrelink decided to treat Mrs Streckfuss’ compensation payment as a direct deduction from her disability support pension. The effect of this decision was that a recovery notice was sent to the Government Insurance Office on 2 March 2005 requiring payment of a charge of $9,154.01 being the amount of recoverable Centrelink payments received by Mrs Streckfuss from 5 April 2004 to 24 February 2005. A recovery notice was sent to Mrs Streckfuss on 2 March 2005 requiring payment of a charge of $881.60 being the amount of recoverable Centrelink payments for the period 4 March 2004 to 4 April 2004.  Mrs Streckfuss’ disability support pension was cancelled with effect from 24 February 2005.

4.           On 4 March 2005 Mrs Streckfuss sought a review of the decision on the grounds that she was told by Centrelink that disability support pension (blind) was not affected by compensation payments. On 24 May 2005 an authorised review officer affirmed the decision to treat Mrs Streckfuss’ compensation as a direct deduction from her disability support pension.

5.           On appeal to the Social Security Appeals Tribunal, it set aside the decision of the Secretary on 6 September 2005, and substituted a new decision that the payment of periodic compensation be disregarded from the commencement of payment.  The Secretary lodged an application for review at this Tribunal on 13 October 2005.

6.           I was satisfied that Mrs Streckfuss is a witness of truth and was concerned about her very genuine distress. However my task was to consider the issues to be determined, which follow.

ISSUE IN DISPUTE

7.In order to make the correct or preferable decision, I had to consider:

·     whether Mrs Streckfuss’ periodic compensation payments must be treated as direct deductions from her disability support pension; and if so,

·     whether there are special circumstances in order to treat some or all of Mrs Streckfuss’ periodic compensation payments as not having been made or not liable to be made.

WHETHER MRS STRECKFUSS’ PERIODIC COMPENSATION PAYMENTS MUST BE TREATED AS DIRECT DEDUCTIONS FROM HER DISABILITY SUPPORT PENSION

8.           Mrs Streckfuss gave evidence regarding her condition and her claim. She said that she had lost her sight progressively over a period of time after the difficulties she experienced at work during the 1990s.  She also said that she had been treated well by Centrelink staff who had told her the disability support pension (blind) was not income or assets tested, and had helped her fill out the form. The Respondent said that her solicitor who was assigned to her by the Teachers Federation had rung her half an hour before the Workers Compensation Commission teleconference on 9 December 2004, and asked her to make inquiries of Centrelink regarding the status of the disability support pension (blind) for purposes of the conference.

9.           Mrs Streckfuss’ evidence, which I accepted, was that she made a telephone call to Centrelink staff on 9 December 2004 in which she did not identify herself. She said that she asked about conditions surrounding receipt of the pension, and that she waited while the person left the telephone, and returned to give her information. Mrs Streckfuss’ evidence was that she understood from that information that her pension entitlements were not income or asset tested, and would not be affected by a compensation settlement. Although a telephone call was made to the relevant number at the Call Centre, her particular query was not logged because she did not identify herself, and her record was not accessed at that time. Accordingly the information she says she received cannot be corroborated, although I have accepted the Respondent’s evidence that she made those inquiries. 

10.          Mrs Streckfuss says she has been disadvantaged by having been given incorrect information from Centrelink, and that she accepted periodic payments over a lump sum offer of $27,500 which had previously been offered to her. She argued that with the lump sum she would only have been subjected to a short preclusion period rather than being deprived of her pension, as has occurred, for the duration of the weekly payments of compensation.

11.          Mrs Streckfuss also pointed out that a blind person is reliant on oral advice, and emphasised that her previously satisfactory experiences with Centrelink caused her not to question advice given to her. However she said she had not been given the compensation booklet at the time of her application to Centrelink.

12.          The Workers Compensation Commission teleconference was followed some seven weeks later on 25 January 2005 by a conciliation and hearing at which the award was made. The evidence before me indicated no further inquiries were made to Centrelink after the telephone call of 9 December 2004 regarding this matter either by the Respondent or her legal representatives.  Mrs Streckfuss indicated that she had been very confused at the hearing, felt quite “irrelevant” as the matter proceeded around her with lawyers leaving and re-entering the room from time to time. She felt her solicitor had not been well prepared throughout.

13.          Ms Schuster’s submissions are summarised in Exhibit A2, the Secretary’s Statement of Facts and Contentions. She said that the Respondent had no doubt that Mrs Streckfuss had a genuine belief that she was right. Ms Schuster argued however that disability support pension is a compensation affected payment which means that the decision of the Secretary was correctly made.

14. I am mindful that generally, periodic compensation payments are a direct deduction from social security payments such as disability support pension. Section 1173 of the Social Security Act 1991 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.

1173.(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.

1173.(4) If:

(a) a person receives periodic compensation payments; and

(b) at the time of the event that gave rise to the entitlement of the person to compensation, the person was qualified for, and was 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 periodic compensation payments are to be treated as ordinary income of the person for the purposes of this Act.

15. As far as is relevant under section 1173 the primary question was whether the payments Mrs Streckfuss receives are “compensation” for the purposes of social security law, and also whether Mrs Streckfuss was receiving a “compensation affected payment”.

16.           “Compensation” is defined in subsection 17(2) of the Act:

17.(2) Subject to subsection (2B), for the purposes of this Act, compensation means:

(a) a payment of damages; or

(b) a payment under a scheme of insurance or compensation under a Commonwealth, State or

Territory law, including a payment under a contract entered into under such a scheme; or

(c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or

(d) any other compensation or damages payment;

(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.

17.          I have accepted that the workers compensation payments that Mrs Streckfuss receives fall squarely within the definition of “compensation” under section 17, and there is no dispute that they are periodic.

18.          Section 17 provides the list of compensation affected payments:

“compensation affected payment” means:

(aa) an age pension; or

(a) a disability support pension.........

19.          As already noted above, Mrs Streckfuss was granted disability support pension (blind) pursuant to section 95 of the Act, which provides that a person is qualified for a disability support pension if the person is permanently blind. Accordingly, Mrs Streckfuss was in receipt of a “compensation affected payment”.

20. The compensation payments Mrs Streckfuss receives are thus subject to the provisions of section 1173 of the Act. The effect of this section is that Mrs Streckfuss’ rate of disability support pension is reduced by the rate of her compensation payments. As the compensation payments are greater than the rate at which disability support pension was being paid to Mrs Streckfuss, the disability support pension is properly calculated to be nil.

21.          Given Mrs Streckfuss’ comment that she might, if correctly advised, have accepted a lump sum settlement, I am mindful that section 1169 of the Act provides effectively, that, where a lump sum payment has been received, a pension is not payable during a lump sum preclusion period, which is calculated by a formula that depends on the amount of the lump sum compensation payment

22.          Section 1170 sets out a formula to be used to calculate the length of a lump sum preclusion period.

23.          Although it is not of relevance because Mrs Streckfuss did not accept a lump sum settlement, I am mindful that the sum of $27,500 which Mrs Streckfuss told me was the figure the insurance company had negotiated with her before she took advice and agreed to the weekly payments of compensation, would have provided a far lesser amount to her.

24.          In summary then, Mrs Streckfuss’ disability support pension was a compensation affected payment, and given the award of weekly compensation payments, the pension has correctly been reduced to nil for the duration of the weekly payments.

WHETHER THERE ARE SPECIAL CIRCUMSTANCES IN ORDER TO TREAT SOME OR ALL OF MRS STRECKFUSS’ PERIODIC COMPENSATION PAYMENTS AS NOT HAVING BEEN MADE OR NOT LIABLE TO BE MADE

25.          Section 1184K of the Act provides potential relief from the strict application of the compensation preclusion period, by providing the Secretary, and therefore, the Tribunal, discretion to disregard the whole or part of the compensation payment in “special circumstances”. 

26.          It is well established that section 1184K is designed specifically to enable the Secretary to ameliorate unfairness or injustice which results upon the strict application of the Act. (Kirkbright v Secretary Department of Family and Community Services (2000) 65 ALD 211). In Secretary, Department of Social Security v Cunneen (1997) 149 ALR 665 it was specifically noted that:

“…if the application of what is an essentially arbitrary rule produces genuine hardship, then, clearly, the Secretary may act under s 1184 to alleviate that hardship”

27.          Section 1184K is a way of alleviating the harshness of the statutory provision in appropriate cases where there are special circumstances. Special circumstances do not have to be statistically “extreme” or “unique”, it is sufficient if there is something that takes the matter out of the usual ordinary case, (see Haidar v Secretary Department of Social Security (1998) 52 ALD 255 at 264, in which Hill J cited the earlier Federal Court cases of Groth v Secretary, Department of Social Security (1995) 40 ALD 541 and Secretary, Department of Social Security v Ellis (1997) 46 ALD 1).

28.          The discretion to disregard the whole or part of a compensation payment can be exercised where application of the usual rules would lead to a result that is unfair or inappropriate (see Beadle v Director General of Social Security (1985) 60 ALD 225 and Secretary, Department of Social Security v Hulls (1991) 22 ALD 570.

29.          As relevant section 1184K follows:

“1184K         Secretary may disregard some payments

1184K(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.”

30.          The term “special circumstances” is not defined in the legislation however, the term has been examined in a number of cases, most notably in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 , where Justice Toohey noted:

“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.”

31.     As to Mrs Streckfuss’ circumstances; her evidence is that she and her husband own their home unencumbered. They do not have grave financial problems. However Mr Streckfuss whose date of birth is 5 June 1940, and who was an academic at the University of Western Sydney told me that he made his decision to retire from his academic position to take care of his wife when the possibility of redundancy arose in 2005, because he thought on the basis that he receives an allocated pension of $30,000 per annum, and what he thought was the continuing payment of the disability support pension (blind) to Mrs Streckfuss, they would be sufficiently covered financially.  He said he would otherwise not have retired yet. Ms Schuster submitted that Mr Streckfuss’ choice to retire early was an event too remote to be attributed to Centrelink’s advice, and that this factor should not be taken into account when considering whether Mrs Streckfuss’ circumstances were “special”. I agreed with that submission given that there was little evidence regarding the circumstances of the retirement before me, and taking into account Mr Streckfuss’ age, then close to 65.

32.          As to health; given the history of her blindness, the Respondent’s health cannot be said to be good. She told me that she has suffered great stress, that her systemic auto-immune disease is exacerbated by stress, and that she has had various periods of hospitalisation, and has asthma. Various medical reports were tendered in support of the Respondent’s health issues.

33.          In Exhibit R2, Dr P Brown, a consultant psychiatrist wrote on 20 October 2004 in a report in relation to compensation, that Mrs Streckfuss had a mild Adjustment Disorder and that her situation was complicated by her rare auto-immune disease with optic neuritis and late onset asthma. He opined that it was possible the episodes of auto-immune disease were precipitated by the stresses of the time. 

34.          Dr W Wakefield, an immunologist, opined in a report dated 9 September 2003 (Exhibit R3), that Mrs Streckfuss’ loss of vision was likely to be permanent, although he discussed future surgery and treatment. In Exhibit R4, dated 19 July 2004, he opined that it was more probable than not that the stressful work environment to which Mrs Streckfuss was subject while being treated for eye disease contributed to an exacerbation of her illness. Dr C Bauer expressed a similar view in a report dated 26 August 2002 (Exhibit R5), and further supported the connection between stress and Mrs Streckfuss’ condition in his report of 17 January 2005 (Exhibit R6).

35.          Relying on the telephone call made to Centrelink before the Workers Compensation Commission teleconference, both Mr and Mrs Streckfuss argued that they had relied on incorrect information from Centrelink

36.          Ms Schuster argued that because Mrs Streckfuss did not identify herself, there was no record of her call to Centrelink, and no possibility for any information given which may have been incorrect or incomplete, to be corrected at any time. Ms Schuster also submitted that in the seven weeks between the telephone call and the hearing of 25 January 2005 no record of further inquiries was logged. She also submitted that the Centrelink website would have been of assistance both to the solicitor and to the Streckfuss.

37.          Ms Schuster argued that the SSAT accepted Mrs Streckfuss’ evidence that she was told by Centrelink on 9 December 2004 that the award of compensation had no effect on her disability support pension (blind), and that Mrs Streckfuss made her decision to accept the compensation on this basis.Ms Schuster argued that it was not reasonable of Mrs Streckfuss to rely on informal, oral advice alone without advising Centrelink of her particular details or of the fact that she intended to rely on this advice before agreeing on a compensation settlement.

38.          Ms Schuster said that the SSAT found that the issue of the advice was a special circumstance of such gravity that it justified disregarding all of the compensation payments. She submitted however on behalf of the Secretary, that the SSAT’s finding of special circumstances, and the effect of the decision was manifestly unreasonable when taking into account the purpose of the legislation and the effect of the Tribunal’s decision  (Re Beadle and Director-General of Social Security (1984) 6 ALD 1).

39.          She submitted that Centrelink made no errors, and emphasised that Mrs Streckfuss relied on her solicitor’s advice. She submitted that the intention of the legislation is to prevent double dipping. Ms Schuster also made reference to various cases in which these issues have been considered, such as Groth (supra), Reid v Secretary, Department of Family & Community Services (2001) 65 ALD 108 and Secretary, Department of Family & Community Services v Allan [2001] FCA 1160 (23 August 2001).

40.          Ms Schuster submitted that even if administrative error was found, the Secretary did not accept that administrative error was a factor which of itself should lead to the discretion in section 1184K being exercised. She submitted that the Tribunal in the case of Secretary Department of Family and Community Services and  Duarte [2000] AATA 927 the Tribunal observed: “The tribunal has difficulty in concluding that administrative error and/or tardiness are uncommon, unusual or exceptional by their very occurrence.”

41.          Ms Schuster argued further  that no special circumstances as envisaged in section 1184K of the Act existed in order to treat some or all of the periodic compensation payments as not having been made or not liable to be made. She contended that the Respondent’s circumstances did not warrant the exercise of the discretion conferred by section 1184K of the Act, emphasising that for the discretion to apply circumstances had to be unusual, uncommon or exceptional, which they were not in this case.

42.          Ms Schuster submitted that there were mechanisms available for Centrelink customers to seek compensation for loss occasioned by wrong advice or defective administration. Those options would still be available to Mrs Streckfuss

43.          Ms Schuster referred to the SSAT’s comments on the Authorised Review Officer’s reliance on the principle of not having persons engage in double dipping, noting that the SSAT commented that there was a confusion between income and the disability support pension. She submitted that the SSAT failed to comprehend and have regard to the intention of the legislation, submitting that Mrs Streckfuss’ situation should be compared to those of other DSP (blind) pensioners in receipt of compensation payments of over $500 per fortnight.  She emphasised that like social security entitlements, compensation is a form of income support provided out of funds collected from the general community and paid to those who meet certain rules for its payment, and submitted that both compensation and social security entitlements were payments for people with a reduced capacity to earn income. Accordingly, she submitted that to receive both types of payments for the same periods would clearly be double-dipping, and it was for that reason, that periodic compensation payments were treated as a direct deduction from the compensation affected payment. She referred to Reid (supra) where their Honours Branson and Mansfield JJ  noted in relation to the compensation provisions:

“These sections are contained in Part 3.14 of the Act which is concerned with the impact of a person’s entitlement to receive, or actual receipt of, compensation (as defined by s 17(2) of the Act), on that person’s right to receive payments under the Act. Sections 1163A and 1165 are concerned to prevent what is known as ‘double-dipping’. That is, they are designed to prevent a person receiving, in respect of any period of time, both what would otherwise be his or her full entitlements under the Act and payments of compensation.”

44.          Similarly in Allan (supra), Heerey J stated:

“The basic policy, understandably enough, is that there should not be ‘double dipping’. People should not receive social security payments for loss of earnings where they have received compensation for that same loss of earnings from another source.” 

45.          Ms Schuster submitted that the SSAT erred in considering the alleged anomaly of the legislation as a starting point for their consideration of the special circumstances provision. She drew attention to Groth (supra), a case where direct deductions for compensation payments were made, and where there was evidence of considerable financial hardship. The Tribunal had declined to exercise the discretion to disregard some of the compensation, and she submitted  the Court agreed with the Tribunal’s approach as Kiefel J stated:

“It will be seen that the Tribunal considered the correct approach, in determining whether Mr Groth’s circumstances were special, to be to enquire what would be the effect if s. 1184 was not applied, that is to say if s. 1168 was to operate so as to limit the level of pension. The Tribunal had earlier in its determination rejected an approach which permitted adjustment simply to secure to Mr Groth a more advantageous financial position. The submissions with respect to the remedial nature or operation of s.1184 did tend to suggest this as a proper exercise to be undertaken by the decision-maker. It clearly is not. Before determining to ignore all or part of the compensation payments the decision-maker must have come to a conclusion that the circumstances pertaining to the person otherwise qualified for receipt of pension payments were special.”

46.          Ms Schuster submitted also that in the case of Lubcke and Department of Family and Community Services [2002] AATA 642, the applicant’s pension was reduced to nil due to periodic compensation payments being received. The Tribunal commented in that case that although the 2001 legislative amendments which led to his pension being cancelled operated harshly, this was not sufficient to constitute a special circumstance. Similarly, the Secretary did not consider that the reduction of Mrs Streckfuss’ disability support pension to be a special case, as the legislation was operating as intended, she submitted.

47.          Ms Schuster also argued that Mrs Streckfuss’ case was clearly different from the situation of the applicants in Judd and Secretary Department of Social Security [1998] AATA 144 and Bell and Secretary Department of Social Security [1998] AATA 284, two cases which were relied on by the SSAT, submitting they could be distinguished because both those cases, were concerned with the imposition of lump sum preclusion periods. She noted further that in both the Tribunal found special circumstances apart from administrative error. Ms Schuster submitted that in Bell (supra), the administrative error had been repeated on a number of occasions, further he had no ongoing income, and did not own an unencumbered home, and that the Tribunal decided to reduce the preclusion period by 12 months only. In Judd (supra), she submitted, the Applicant was in even greater financial hardship, although the Tribunal reduced the preclusion period by only six months; that is in both cases the preclusion periods were only partially reduced.

48.          I have noted the arguments of both parties and the case law in relation to whether the discretion in section 1184K of the Act should be exercised to treat some or all of Mrs Streckfuss’ periodic compensation payments as not having been made or not liable to be made.

49.          I have come to the view that Mrs Streckfuss’ circumstances are not special in that there is nothing out of the ordinary in her case compared to other welfare recipients (per Haidar), many of whom live in far greater straitened circumstances. Mrs Streckfuss gave evidence about what financial detriment she considers she has suffered in having her disability support pension discontinued, but was not able to point to any financial hardship. Mrs  Streckfuss and her husband live in their own home which is unencumbered, and have as income Mr Streckfuss’ annuity which arises out of his superannuation, and for the time being (until it ceases in 2007), the Applicant’s weekly payments as awarded at the Workers’ Compensation Commission. Following that she may be able to have her disability support pension restored.

50.          Mrs Streckfuss’ health issues, in particular her blindness, have stabilised, and appear to be controlled by lifestyle and medication. She is no longer teaching, and is under the care of doctors and her husband. I could not find Mrs Streckfuss’ health to be a special circumstance when I considered how the case law in that area has been applied. All recipients of disability support pension have health issues, it is precisely for those reasons that they become eligible for the relevant pension.

51.          I agreed with Ms Schuster’s submission in regard to Mr Streckfuss, and I do not consider Mr Streckfuss’ retirement as a special circumstance given that there was little evidence regarding the circumstances of the retirement before me, and taking into account Mr Streckfuss’ age, then close to 65, a not uncommon age for retirement.

52.          Both Mr and Mrs Streckfuss strongly argued as the main circumstance the incorrect advice they claim was received from Centrelink, and the consequences of that. I am mindful that the SSAT based its decision on that point. However, I am mindful that Mrs Streckfuss was represented and advised by a solicitor in regard to her compensation, and find that if that advice was incorrect, or if insufficient advice was sought from the relevant authorities and led to detriment, there are avenues of redress against legal practitioners. I do not consider the incorrect advice, if any, constituted a special circumstance in relation to the application of section 1184K of the Act.

53.          However, I noted also that as recently as 2 March 2005, Mrs Streckfuss received a letter telling her her disability support pension was cancelled because “the combined income of you and your partner is above the allowable limit.”  Clearly that was not the reason for the cancellation. It was an error, but I do not find that it constitutes a special circumstance in this case, as it was already clear to Mrs Streckfuss at that time why her disability support pension was being cancelled. Besides for special circumstances to be found, a constellation of errors or a situation which is extreme, unique, unfair or unjust must be found.

54.          I accepted Ms Schuster’s submissions regarding double dipping and agreed that if Mrs Streckfuss were to be paid weekly workers compensation payments and disability support pension simultaneously, both income support payments from the public purse, that would be double dipping. It would also be against the intent of the legislation and public policy. 

55.          I also noted Ms Schuster’s comment about the cases of Judd and Bell, and consider they can be distinguished as they dealt with lump sums not weekly compensation.

56.          Ultimately, I was not satisfied that the discretion in section 1184K should be exercised to find special circumstances in Mrs Streckfuss’ case.

DECISION

57.          The Administrative Appeals Tribunal sets aside the decision of the Social Security Tribunal, and finds that Mrs L Streckfuss’ periodic payments of compensation must be treated as direct deductions from her disability support pension, and that there are no special circumstances in order to treat some or all of the periodic compensation payments as not having been made or not liable to be made.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:  Associate

Date of Hearing  23 January 2006
Date of Decision  4 April 2006
The Respondent  Self Represented
Advocate for the Department  Ms H Schuster