Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 405

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 405

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5974 and 2007/5975

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUSAN TAYLOR

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date19 May 2008

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

......................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Parenting Payment – applicant received lump sum personal injuries pay out – payments during preclusion period – applicant required to repay monies received during preclusion period – whether there are special circumstances precluding repayment – circumstances cited included misleading advice, financial circumstances and her husband’s health – no special circumstances – decision affirmed

SOCIAL SECURITY – Pensions, benefits and allowances – Disability Support Pension – whether applicant’s disability support pension can be backdated from time she first contacted Centrelink – applicant may have been misinformed by others about her entitlement to disability support pension – Tribunal no power to backdate payment in applicant’s case – decision affirmed

Social Security Act 1991 (Cth), s 1184K

Social Security (Administration) Act 1999 (Cth), s 13, Sch 2 cl 11(2)

Re Beadle and Director-General of Social Security [1984] AATA 176; (1984) 6 ALD 1

REASONS FOR DECISION

19 May 2008 Senior Member Bernard J McCabe         

1.      Mrs Susan Taylor, the applicant, was seriously injured in a fall in 2003. She received the Parenting Payment allowance while personal injury proceedings were brought on her behalf. When she received a lump sum payment in settlement of her claim, the Secretary for the Department of Housing, Families, Community Services and Indigenous Affairs, the respondent, calculated the preclusion period (the period during which Mrs Taylor was ineligible to receive a range of welfare benefits) and required that the Parenting Payments she received during the preclusion period be repaid out of the settlement monies. An amount was recovered before the balance of the settlement monies were remitted to Mrs Taylor.

2. Mrs Taylor says the payments should not have been recovered. In essence, she argues there were “special circumstances” justifying the exercise of the discretion in s 1184K of the Social Security Act 1991 (“the Act”) to disregard the payment of part or all of the settlement monies. As a practical matter, the section empowers the decision-maker to shorten the preclusion period. Payments made outside that reduced period would not be recoverable.

3. It will be necessary for me to consider whether any of the matters the applicant mentions can amount to “special circumstances” within the meaning of s 1184K of the Act. For reasons I will explain, I am not satisfied that there is any basis for exercising the discretion in s 1184K. I do not propose to revisit the question of whether the preclusion period was properly calculated in the first place as there was no evidence suggesting the calculations were tainted by error.

4.      Mrs Taylor has also asked the Tribunal to reconsider a decision that she was only entitled to receive the disability support pension (“DSP”) from the time she first contacted Centrelink about the pension in June 2007. She says she was unaware of her entitlements prior to that contact and she wants payment of the DSP to be backdated until at least March 2007 when the preclusion period ended. Unfortunately for Mrs Taylor, the legislation does not permit backdated payments in circumstances like those under consideration here.

Special circumstances

5.      The expression “special circumstances” is well known in social security law. Circumstances will only be special if they are unusual, uncommon or exceptional: see, for example, Re Beadle and Director-General of Social Security [1984] AATA 176; (1984) 6 ALD 1. Mrs Taylor relied on three matters that might be capable of amounting to special circumstances. I will deal with each in turn.

(a) Misleading advice

6.      Mrs Taylor said she was receiving periodic payments from Workcover after her accident but those were discontinued in 2005. She approached Centrelink to discuss her options. She gave evidence that she was told on three occasions that Parenting Payment was her best option because it would not be recoverable once the personal injuries claim was settled. She says that advice was delivered over the phone on two occasions and once in person at a Centrelink office. She also referred to a letter from Centrelink dated 12 June 2007 (s 37 documents at page 88). The letter explained the operation of the preclusion period but said that the preclusion period did not affect a range of payments including “child related payments”. Mrs Taylor says she assumed Parenting Payment was a “child related payment”. On the basis of those communications, Mrs Taylor said she had an expectation that she would not be required to repay the amounts of Parenting Payment she had received during the preclusion period.

7.      I accept Mrs Taylor was operating under a misapprehension about Parenting Payments being recoverable. I am prepared to accept the misapprehension was the product of mistaken advice from Centrelink officers. I also accept the applicant’s solicitors may not have communicated the true position even though they had been in contact with Centrelink and had discussed the length and effect of the preclusion period. I also accept the letter from Centrelink dated 12 June 2007 was worded unclearly and would have done nothing to dispel the misunderstanding. But, as Mr McQuinlan for the Secretary pointed out, the letter was delivered after the settlement had been finalised and the charge in respect of the Parenting Payment had already been recovered.

8.      I do not think any of that makes a difference. The applicant did not modify her behaviour or prejudice herself in any way as a result of the incorrect advice. She said in cross-examination that she would have applied for the Parenting Payment when she did even if she knew the true position. There was no evidence to suggest she embarked on a spending spree or otherwise changed her behaviour in the mistaken belief that she would be receiving more money than she was ultimately entitled to receive. She did not rely on the advice to her detriment. All she has experienced is disappointed expectations. I do not think that amounts to special circumstances.

(b) Financial circumstances

9.      The applicant and her family are not well off. She gave evidence that she, her husband and two teenage daughters depend on their social security payments each fortnight to survive. They are able to meet their expenses out of their income, but there is little left over at the end of each period. They have an amount of money in the bank on a term deposit, which includes the bulk of the settlement monies as well as some other funds. Mrs Taylor says she anticipates she and her husband will need that money in due course as their health deteriorates and it becomes necessary to acquire a house and make modifications. They do not have any other assets or sources of income.

10. It is common for families that receive welfare payments to be in a precarious financial situation. The applicant and her family are no exception, which means it is impossible for me to conclude they are experiencing special circumstances within the meaning of s 1184K. Indeed, while struggling, they are in a better position than many welfare recipients. They have money in the bank and they are able to meet their expenses.

(c) Mr Taylor’s health

11.     The applicant gave evidence that her husband suffers from multiple sclerosis. I was not provided with medical evidence in relation to the condition, but she was able to describe its effects. I was told Mr Taylor no longer works because of the condition. He frequently experiences fatigue and some pain. The applicant and her children help to look after him. Mrs Taylor said he was able to take care of himself when it came to basic functions like dressing, although she said he had good days and bad days. She suggested her husband would require more intensive assistance and modifications to the home if his condition continued to deteriorate. She said the family needed the extra money that had been recovered by the Secretary so they could afford whatever measures were appropriate in the future.

12.     The ill health of a relative might amount to special circumstances in an appropriate case. I am not persuaded that is the case here. Mr Taylor is receiving welfare benefits as a result of his inability to work. He is able to take basic care of himself. While his condition is undoubtedly a source of worry to Mrs Taylor, I think her circumstances are not sufficiently unique or unusual or burdensome that they would amount to special circumstances.

Conclusion in relation to “special circumstances”

13. I am not satisfied the matters described by the applicant – whether considered individually or taken together – amount to “special circumstances” for the purposes of s 1184K. I have no doubt the applicant and her family are having a difficult time, but the same can be said of many families in their position. Their case is not special, so I am not permitted to exercise the discretion to reduce the length of the preclusion period.

Can the payment of dsp be backdated?

14. Mrs Taylor first spoke with Centrelink officers about her entitlement to payment of DSP on 21 June 2007. She did not make a formal application until 5 July 2007. Section 13 of the Social Security (Administration) Act 1999 says the Secretary may commence payments from the date on which the applicant first contacted Centrelink about the benefit if certain conditions are satisfied. The Social Security Appeals Tribunal agreed those conditions were satisfied in this case, and I have no reason to doubt that conclusion. But there is no provision for backdating the payment beyond that date that is applicable in this case. In particular, I note that cl 11(2) of Sch 2 to the Social Security (Administration) Act 1999 is not available. That clause deals with a situation where an applicant becomes incapacitated as a result of medical condition and is prevented by that condition from making the application. There is no evidence that the applicant’s medical condition was a factor in the delay.

15.     There was some suggestion the applicant may have been operating under a misapprehension about her entitlement to DSP as a result of what she had been told by other people, including Centrelink officers. If that is so, it is unfortunate but I do not propose to make any findings in this regard because the legislation does not permit the payments to be commenced any earlier in any event.

Conclusion

16.     The decisions under review are affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ..................................[Sgd]...................................................
  Michael Buckingham, Associate

Date of Hearing  30 April 2008
Date of Decision  19 May 2008
Solicitor for the Applicant          Self represented 
Solicitor for the Respondent     Departmental advocate