Taleb and Secretary, Department of Social Services (Social services second review)

Taleb and Secretary, Department of Social Services (Social services second review) [2021] AATA 4078 (5 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6450-6451
Re:Youssef Taleb
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:5 November 2021
Place:Sydney

The decision dated 30 September 2020 of the Social Services and Child Support Division of the Tribunal (AAT1) is affirmed.
....................................[sgd]....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
SOCIAL SECURITY – JobSeeker Payment – Disability Support Pension – where applicant received lump sum compensation payment – compensation preclusion period imposed – whether special circumstances exist – decision affirmed
LEGISLATION
Workers Compensation Act 1987 (NSW)
Social Security Act 1991 (Cth)
CASES
Emanuel and Secretary, Department of Social Services (Social services second review) [2021] AATA 1591
Hajar and Secretary, Department of Social Security [1988] AATA 787
Secretary, Department of Social Security and Winterbotham [1990] AATA 808
Stankovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 900
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
5 November 2021
INTRODUCTION

In March 2013 the applicant was seriously injured in a workplace accident, suffering injuries to his back, neck, right arm (shoulder) and left arm (shoulder).[1] He received compensation under the Workers Compensation Act 1987 (NSW).
[1] T33/87.
In 2020, his applications for JobSeeker Payment (JSP) and Disability Support Pension (DSP) were declined by Centrelink on the ground that he was subject to a Compensation Preclusion Period (CPP), having received the previous year a lump sum compensation settlement for his workplace injury. The decision was internally reviewed by an Authorised Review Officer (ARO), and on 30 September 2020, the Social Services and Child Support Division of the Tribunal (AAT1) affirmed the ARO decision, finding that he was subject to a CPP ending on 1 April 2025.
The applicant seeks review of the AAT1 decision, claiming that there are special circumstances and that the Tribunal should treat some or all of the compensation payment as having not been made. The Tribunal has discretion to make such a finding under section 1184K of the Social Security Act 1991 (Cth) (‘the Act’).
The applicant says that he was not aware of the CPP. He says that he was not able to read the letters from Centrelink due to his poor English literacy. He also refers to ongoing medical issues relating to his spine, as well as health issues affecting his wife and youngest son. He said that they are experiencing severe financial hardship.
The matter was heard on 26 July 2021. The applicant and his wife gave evidence to the Tribunal. The initial hearing was adjourned until 27 August 2021 to enable the applicant to provide further information relating to the health of his wife.
I am satisfied that the circumstances do not permit the Tribunal to treat all or part of the compensation payment as not having been made. I find that the applicant is subject to a CPP ending on 1 April 2025.
I therefore affirm the decision of the AAT1 made on 30 September 2020, for the reasons set out below.
CHRONOLOGY
On 16 March 2003, the applicant suffered a workplace injury, for which he commenced receiving regular compensation payments.[2] He was represented by PK Simpson Lawyers. On 25 May 2015, he completed a MOD C Compensation and Damages Form in which he advised Centrelink that he was receiving regular compensation payments.[3] An attached GIO remittance indicated that he was receiving gross compensation of $3,998.60 per fortnight ($2,900.60 net).[4]
[2] T14/52.
[3] T13/49-51.
[4] T12/48.
On 28 May 2015, Centrelink wrote to the applicant and advised him that if he settled his compensation claim for a lump sum it could affect his past or future Centrelink payments. [5] The letter stated:
If you receive any payment of weekly compensation or a lump sum compensation payment, some or all of the Centrelink payments paid to you since the date of injury may have to be paid back.
Any compensation you receive may also stop you from receiving Centrelink payments in the future.
[5] T14/52.
On 28 Mary 2015, Centrelink also wrote to PK Simpson Lawyers in the following terms:
We understand that you act for the [applicant] in a claim for compensation/damages. Under Part 3.14 of the Social Security Act 1991, some or all Centrelink payments made to your client may be recovered by us from your client’s lump sum compensation payments which contain money for lost earnings or lost capacity to earn. In addition, a compensation payment may affect any current or future payment from Centrelink.[6]
[6] T15/54.
On 23 May 2018 an impairment amount of $53,276[7] was assessed in accordance with the statutory formula[8] for a permanent impairment rating of 28 percent,[9] and payment was made on 18 July 2018.[10]
[7] In passing, I note a discrepancy in the May 2018 payment amount. In a form completed by the insurer (the Compensation Advice of Lump Sum Payments form: T33/89) the settlement figure is stated as $47,948.40. However, this is the only reference to this figure and other sources clearly indicate the higher figure of $53,276. This discrepancy was not raised or explained during the hearing but the applicant did not dispute that he received the higher figure.
[8] Workers Compensation Act 1987 (NSW), s 66: T49/184. The statement by AAT1 that ‘On 23 May 2018 Mr Taleb received $53,276 in compensation for pain and suffering and medical expenses’ provides a gloss over the statutory formula: see T2/5.
[9] Complying Agreement: T33/87.
[10] ‘Please note the lump sum payment for s 66 settled on 23/5/18 and was paid on 18/7/18’ T33/76.
On 21 December 2018, a common law settlement was reached under which the applicant received a further $590,000.[11]
[11] T33/76-9; T49/184.
The total lump sum compensation payment received was therefore $643,276. The applicant confirmed in oral evidence that these amounts were received.[12]
[12] Transcript of Proceedings (26 July 2021) 18.
On 8 January 2019, Centrelink received advice from the insurer for the applicant’s employer’s insurer that the applicant had received the lump sum compensation payments, and also confirmed that the payments were received at least in part for economic loss.[13]
[13] T33/76.
On 12 February 2019, Centrelink wrote to the applicant as follows:
We are writing to let you know about the effect your lump sum compensation payment has had on your eligibility for future income support payments from us.
We have been advised that you are entitled to receive a lump sum compensation payment of $590,000.00. As a result, we have calculated that you have a preclusion period that starts on 13 February 2019 and ends on 1 April 2025. During this period you are not able to receive income support from us.
This letter is a notice of decision made under the Social Security Act 1991. Information about these calculations and what to do if you think this decision is wrong is on the back of this letter.
Centrelink wrote to the applicant’s lawyers in similar terms.
Important information
We have been advised that your client is to receive a lump sum compensation payment:
• For the incident dated 16 Mar 2013 reference 1, we have been advised that the compensation amount is $590,000.00.
If your client needs to apply for Centrelink payments in the future, we have calculated that their preclusion period starts on 13 February 2019 and ends on 1 April 2025. There is no Centrelink charge for the above compensation payment claim.
On 20 February 2019 the applicant and his wife entered into a contract to purchase a house in Guildford for $800,000. The applicant’s compensation lawyers did not act for him in the purchase of the house, which was handled by a different firm.[14]
[14] T34/92. The contract notes Assafiri Lawyers as solicitors for the purchaser.
During the hearing, the applicant and his wife confirmed that all of the settlement money was put towards the purchase of the house. He said that an additional $140,000 was obtained from a financier in Lebanon, an arrangement brokered by the applicant’s brother.
The family moved into their new house on 4 April 2019.[15]
[15] T37/99.
On 16 April 2020, the applicant claimed DSP and JSP. As noted above, both claims were rejected.[16] Centrelink informed him by letter dated 16 April 2020 that JSP was not payable because of the lump sum compensation payment. Centrelink initially rejected the DSP claim on a different ground, namely, that the applicant did not provide sufficient medical information to enable an assessment of the claim.[17] This was conveyed by letter dated 16 May 2020.
The applicant applied for an internal review of both decisions. A Centrelink file note records that ‘Customer does not agree that compensation preclusion period should apply as principle home was purchased with compensation payout prior to realising this would make them ineligible for Centrelink payments.[18]
[16] T41/123; T39/119.
[17] T41/123.
[18] T47/163.
As noted above, on 7 August 2020, the ARO found that the CPP was a bar to both claims.[19] On 30 September 2020, the AAT1 affirmed the ARO decision, finding that he was subject to a CPP ending on 1 April 2025.
[19] T46/133.
ISSUES
The issues for determination by the Tribunal (AAT2) are:
a. whether the applicant is subject to a compensation preclusion period as a result of him receiving compensation payments and, if so, whether the period has been calculated correctly by Services Australia;
b. whether there are grounds to treat all or part of the compensation payment as not having been made because it is appropriate to do so in the special circumstances of the case.
Is the applicant subject to a CPP?
Part 3.14 of the Act states that a person who receives a lump sum compensation payment for personal injury will be subject to a preclusion period if the settlement amount includes a component in respect of economic loss. As set out in the Social Security Guide (the Guide), the rationale for these provisions is as follows:
...reflect the principle that if a person has been compensated for loss of income, they should use that money to live off rather than receive a taxpayer-funded payment. Lump sum compensation payments are treated on the basis that people who cannot work because of a compensable injury should NOT receive income support for the same period from both the [social security system and compensation systems].
Section 1169 of the Act provides that if a person receives or claims a compensation affected payment, and the person 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 CPP.[20]
[20] T3/20. Subsection 17(1) of the Act provides various definitions relating to ‘compensation recovery’, including the definition of a ‘compensation affected payment.’ Both DSP and JSP are subject to the CPP by reason of the definitions in paragraphs 17(1)(a) and (c), and subsection 23(1) of the Act.
The material before the Tribunal includes a form headed Compensation Advice of Lump Sum Payments, completed and signed on behalf of the Workers Compensation Insurer GIO and submitted to Centrelink on 8 January 2019.[21] I note question 15: ‘Does the current settlement contain a component for economic loss’? An affirmative answer is given. The compensation payment received by the applicant was made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury. It therefore satisfies the definition of ‘compensation’ under subsection 17(2) of the Act.
[21] See T33/90.
The applicant had been receiving periodic compensation payments before he received the two lump sum compensation payments, and is therefore subject to subsection 1170(1), which states:
(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:
(a)begins on the day following the last day of the periodic payments period or, where there is more than one periodic payments period, the day following the last day of the last periodic payments period; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
The applicant was receiving periodic compensation payments up until 12 February 2019, and therefore the CPP commences on 13 February 2019, being the day after that day.
The number of weeks in the CPP is determined by the formula set out in subsection 1170(4).[22]
(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:
Compensation part of lump sum
Income cut-out amount
(5)If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.
[22] T3/21.
The expressions ‘income cut out amount’ and ‘lump sum compensation payment’ are defined in section 17 of the Act.[23]
[23] T3/16.
Where a payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition, and the claim was settled either by consent, judgment being entered into in respect of the settlement, or otherwise, then the compensation part of a lump sum compensation payment is 50 percent of the payment: paragraph 17(3)(a).
The calculations are set out at paragraph 5.3 of the Respondent’s Statement of Facts, Issues and Contentions.
The sum of the applicant’s compensation payments was $643,276. The relevant compensation part is therefore 50% of the gross lump sum settlement amount, which equals $321,638.[24] This figure is then divided by the income cut out amount. The income cut out amount is essentially the amount at which no pension is payable to a person - or a single person - under the ordinary income test.[25]
[24] T49/184.
[25] See T/180-181.
At the relevant time the income cut out amount from 20 September 2018 was $1002.30. Dividing the compensation part of the CPP by the income cut out amount gives a figure of 320 (rounded down) as the CPP. The period of 320 weeks from 13 February 2019 provides an end date of 1 April 2025. There is no basis for varying this calculation.
The applicant did not contest that the CPP had been correctly calculated based on the total compensation payment of $643,276. I am satisfied that the CPP was correctly calculated by reference to subsection 1170(1).
Are there are special circumstances such that the whole or part of the lump sum compensation period should be treated as not having been made?
Section 1184K of the Act provides:
(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.[26]
[26] T3/24.
The Social Security Guide provides:[27]
[27] T/31.
When to apply special circumstances
The special circumstances provision should only be applied in unusual, unforeseen or exceptional circumstances. Explanation: In order for “special circumstances” to exist, it must be possible to say that the circumstances in the case in question are “markedly different from the usual run of cases”. The circumstances must have “a particular quality of unusualness that permits them to be described as special”.
According to the Guide, ‘this means situations where the compensation provisions could lead, or have led, to extreme hardship, or created an inequitable or unjust or unreasonable situation.’
The contract for the purchase of the house was entered into on 20 February 2019.
In oral evidence, the applicant stated he was unaware of the existence of the CPP. He said that in 2019 he was unable to read English, and letters were translated by his wife or his nephews. He remembered that the Centrelink letter of 12 February 2019 was read to him by his nephew, but only after he had signed the contract to purchase the Guildford property. If he had known about the CPP before the purchase, he would not have gone ahead. He would have used the proceeds for rent and living expenses.
The applicant’s wife also said that had she been aware of the CPP, they would not have purchased the house.[28] She said that although she could not recall being told either by Centrelink or their lawyers about the CPP, afterwards she found and read the letters from Centrelink and clearly understood their importance.[29]
[28] Transcript of Proceedings (26 July 2021) 28.
[29] Transcript of Proceedings (26 July 2021) 18.
The applicant’s financial circumstances are undoubtedly difficult. The applicant’s wife is in receipts of various Centrelink benefits, including Carer’s Allowance (CA) and Carer’s Payment (CP) and Family Tax Benefit (FAO). According to material filed with the Tribunal, as of September 2020, her combined Centrelink payments amounted to $2,068.86 per fortnight.[30] The applicant’s wife told the Tribunal that the present fortnightly amount was $2,143.50, but this would increase to $2,213.50 when she finished paying off a Centrelink debt in October 2021. The Respondent’s representative said that there had been a small increase since 2020.[31] Centrelink income is therefore not less than $57,551 per annum. This is a significant inflow of social support but a lean income for a family of seven to live on.
[30] Carer Payment CP $711.80; Carer Allowance CA $131.90; Family Tax Benefit FAO $1225.16: T49/187.
[31] Transcript of Proceedings (26 July 2021) 37-39.
The applicant’s wife stated, in response to a question about income, that the only income she had was from Centrelink:
That’s the only payment I get from Centrelink and that’s the payment that covers up for the whole household of seven people. Bills. Everything literally goes out of this pain (sic) because there is no other second income. Everything comes out of this income. All my bills. All my kids’ needs. All household needs. Everything comes out of that and there’s days – three days that I have no money until I get paid for me to start using it because I’m left with no money.[32]
[32] Transcript of Proceedings (26 July 2021) 37.
The applicant stated that his youngest child had stage 3 Autism Spectrum Disorder. His wife said that he had been diagnosed in January 2021.[33]
[33] Ibid.
The respondent concedes that the applicant’s youngest child has been diagnosed with autism, and that his wife receives CP and CA in respect of the care that she provides.
With regard to her children’s education, the applicant’s wife stated that one of her sons went to a state school, but the private school that the three older girls attended did not provide any assistance with computers. She said that although the three eldest went to a private school, the tuition fees had been waived because of the academic excellence of the oldest daughter.
The Tribunal also received a copy of a document titled, ‘Loan contract,’ supporting a contract between the applicant’s brother under a power of attorney from the applicant, and Masri Cell Establishment, a lending institution in Lebanon.
The respondent accepts that there is an agreement of sorts between the applicant and Masri Cell Establishment, and that the applicant’s brother was acting as his power of attorney but argued that the contract lacked certainty.
I accept that the legal enforceability of the supposed contract in Australia is uncertain, given the vagueness of its contractual terms. I accept that the applicant regards the agreement as binding and I consider that he has at the very least a moral obligation to repay this loan.
In any event, it is hard to see any basis for inferring hardship based on the applicant’s inability to discharge the overseas loan when he has the means to do so by simply selling the house, or offering it as collateral to secure the loan. The respondent noted that the applicant had not provided any evidence to suggest that he is unable to take out a small mortgage against the house.[34] Apart from offering collateral for the overseas loan repayment, refinancing is an obvious means of bridging the gap in living expenses until the end of the CPP.
[34] Transcript of Proceedings (26 July 2021) 16.

The Tribunal heard that the applicant may require surgery on his spine and provided further medical evidence to support this. It appears that this need may arise from the original compensable injury. The respondent pressed the point that the treating surgeon Dr Abraszko noted the reluctance of the applicant to agree to further surgery, and had applied more conservative treatment options, including steroid injections. The most recent medical letter provided by the applicant is dated 13 September 2018, which predates the compensation settlement.
The applicant’s wife described the situation as follows:
And regarding my husband, the note that she has read before as well - the doctor has suggested a second surgery, and not that just my husband has denied it because he’s scared, it’s because of the second surgeon that will be working with Dr Abrowsko, which his name - I forgot his name - but he’s a doctor that works from the stomach, and she’s a doctor that works from the back. And (indistinct) he did explain all the bad sides before the good sides about the surgery, that’s when he said if I were you, as long as you can walk, I’d rather not be - you probably might be in a wheelchair or paralysed in bed that you won’t be able to walk. So all those things got my husband scared to do it.
And about his shoulders, they had evidence that he needs two operations for his - both shoulders - not just steroid injections. He was taking steroid injections, but they weren’t working for him. And it was Dr Gave that he had seen in Liverpool Private Hospital. We tried to contact him, but because of Covid no one was picking up. We couldn’t get any of the documents about him needing surgery for his - both shoulders. And about his neck, he (indistinct) neck because he’s got disc (indistinct) as well in his neck. And about his foot drop - he does has a foot drop that he can’t feel - he doesn’t have any feelings in there.
He did see a doctor about that as well. (Indistinct) nerve conduction or something, I think that’s what it’s called. And they did show that there is something wrong with his leg. That he doesn’t - he won’t get the feelings back like normal. I’m just trying to remember what else she had stated that wasn’t (indistinct) on our end. I don’t know what else you want to hear from me that (indistinct) - - -
The Secretary submits that it is not unusual for recipients of compensation payments to have longstanding medical conditions that require treatment. I am inclined to agree, certainly in the absence of evidence of a compelling kind relating to health issues not related to the compensation settlement itself. It would be a very special case where the medical condition that was the subject of the compensation settlement could itself be relied upon as a special circumstance so as to avoid a PCC.
I noted earlier that the hearing was adjourned to enable the applicant’s wife to provide further medical information relating to a medical complication she had experienced. I refer to the letter from Dr Gemma Olsson dated 9 April 2021. The letter reports the result of an MRI scan and a CT angiogram. It indicates that the applicant did in fact have a small aneurysm in her brain, but Dr Olsson stated that the risk of it rupturing ‘is exceedingly low, and a conservative approach is most appropriately adopted.’ She did not think that the headaches were caused by that aneurysm.
CONSIDERATION
The respondent contends in essence that any financial hardship experienced by the applicant is self-imposed, given that he and his wife own a significant unencumbered financial asset, namely, their house. They therefore have options such as selling that house or taking out a mortgage.
The respondent stresses that the house represents, at least in part, the compensation payment that was intended for the purpose of covering living expenses.
The respondent notes that the PCC was intended to avoid a situation where a person receives double payment for the loss of earning capacity.
The Social Security Guide states:
Each case must be examined on its own merits by the delegate, but as a general rule special circumstances would not usually be applied where:
the person has sufficient liquid assets to support themselves, and their family if applicable, for the duration of the preclusion period; or
the person acquired realisable assets AFTER the person was advised of the preclusion period, and there is no impediment to the realisation of those assets ...[35]
[35] T3/33.
I was also referred to Hajar and Secretary, Department of Social Security [1988] AATA 787, where the Tribunal said at [45]:
On the question of hardship, I find it impossible to ignore the existence of the house, which is valued at approximately $175,000, and which is free of encumbrances. It is inequitable for the applicant to claim financial hardship when he owns such a valuable asset, and does nothing to realise on it. Particularly when the lack of encumbrances has been brought about by diversion of some of the compensation monies that led to the present application. All in all, his financial position could not be said to be anything like as desperate.
I also note Stankovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 900 at [61] where the Tribunal stated:
Ms Stankovic owns her own home, which she believes is worth $250000. After receiving the lump sum compensation, Ms Stankovic repaid $8000 on her home loan, and she now owes only $15000, her necessary monthly repayment is $164.00. I agree with the Secretary’s contention that it is inequitable for an applicant to claim financial hardship when they own a valuable asset such as a house, and did nothing to realise it, particularly when the reduction of encumbrances had been bought about by the diversion of some of the compensation moneys, as was the case here. This was the approach taken in Re Hajar, and is consistent with the approach of the Tribunal in other cases with similar circumstances.[36]
[36] Re Secretary, Department of Social Security and Ronald Joseph Haining [1992] AATA 130; (1997) 67 SSR 960; Re Lazarov and Secretary Department of Family and Community Services[2004] AATA 743.
I also note Secretary, Department of Social Security and Winterbotham [1990] AATA 808, at [24] to [25]:
The respondent contended that he was perfectly entitled to have expended his settlement monies in providing his family with a home, and no one, least of all this tribunal, would dispute that. However, that is not in issue. It is the fact that the respondent, having disposed of his settlement monies, now seeks support from the community. The emotional attachment of the respondent and his wife to the family home was obvious, and their reluctance even to think of selling it is understandable. However, the tribunal must take that home into account in deciding whether the respondent is in a position of exceptional financial hardship. While the respondent has assets of such value, he can never be so regarded… the tribunal cannot ignore the view that the selling of the house is one way by which the applicant could resolve his present difficulties.
The Respondent contended that this general approach should be applied to the applicant.
A more recent decision of the Tribunal in Emanuel and Secretary, Department of Social Services (Social services second review) [2021] AATA 1591 (Emanuel) points in the opposite direction. The applicant had used most of her compensation payment to contribute to the purchase of a home with her husband and two children. The applicant and her husband separated after the purchase. The applicant’s oldest daughter had been diagnosed with Autism Spectrum Disorder - level 2, learning difficulties (ADHD and dyslexia) and presented with symptoms of anxiety, for which the applicant received funding of approximately $20,000.00 per year from the NDIS to assist with therapy costs. The mortgage was at the time of the hearing in substantial arrears, and the applicant could not work because of her role in caring for a special needs child. The Tribunal accepted that the applicant experienced acute financial hardship to the point of not eating for days so she could feed her children. She also suffered from serious health handicaps. The Tribunal found that the circumstances were ‘unique’ and the applicant was in severe financial hardship. Moving the special needs child from her current home could potentially lead to trauma and regression and that ‘requiring the applicant to sell the property as contended by the Secretary is untenable for this young family.’[37]
[37] Emanuel and Secretary, Department of Social Services (Social services second review) [2021] AATA 1591 [24].
In this case, the possibility of the imposition of a CPP, and of recovery of benefits paid from the lump sum, was clearly flagged by Centrelink. I agree with the Respondent that he was advised on several occasions in writing that this might occur.[38]
[38] Transcript of Proceedings (27 August 2021) 59.
The Centrelink correspondence was sent to the applicant and to the law firm representing the applicant. In essence, it was the applicant’s failure to read and appreciate or obtain advice on the notices that he received from Centrelink that resulted in him making decisions that he would not otherwise have made. I note that the applicant’s wife is fluent in English.
I consider that it is not unlikely that the applicant and his wife were aware when they entered into the contract to purchase the house that a lump sum compensation payment would trigger the CPP, resulting in a serious loss of income for the specified period. In any event, based on the communications sent by Centrelink to the applicant and his lawyers, I have no hesitation in saying that they should have been aware. They were legally represented in both of these critical transactions. They received a letter in May 2015 and in February 2019 advising them and their solicitors of the possibility that their Centrelink payments might be affected by a compensation payment. The applicant’s wife has no language impediment.
I am satisfied that at the time they purchased the Guildford property the applicant knew or should have known that he was subject to a CPP.
The applicant cannot be regarded for present purposes as being in severe financial difficulties. He has available to him an unencumbered property that he can sell to bridge his expenses until the end of the CPP. It is completely understandable that the applicant and his family do not wish to sell their family home, but there is no practical impediment to doing so.
The circumstances of the applicant are by no means as dire as those revealed in the decision of Emanuel. This family is together, and the children are healthy. The youngest child has a diagnosis of autism, but there is no evidence before the Tribunal to suggest that a move would have a severe negative impact on this child. The removal of the parent’s financial stress may even have a palliative effect.
In the absence of special circumstances, the community cannot be expected to support their understandable desire to own rather than lease a family home.
DECISION
The decision dated 30 September 2020 of the Social Services and Child Support Division of the Tribunal (AAT1) is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

....................................[sgd]....................................
Associate
Dated: 5 November 2021

Dates of hearing: 26 July 2021 & 27 August 2021

Date final submissions received: 1 October 2021

Advocate for the Applicant: Ms Jihan Awad

Solicitors for the Respondent: Ms Kirby Dunlop, Services Australia

[2021] AATA 4078

5 November 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Dates of hearing:	26 July 2021 & 27 August 2021
Date final submissions received:	1 October 2021
Advocate for the Applicant:	Ms Jihan Awad
Solicitors for the Respondent:	Ms Kirby Dunlop, Services Australia