Tomeski and Department of Family and Community Services

[2000] AATA 776

DECISION AND REASONS FOR DECISION [2000] AATA 776

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1699

VETERANS' APPEALS  DIVISION       )          
           Re      MILAN TOMESKI  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES  
  Respondent

DECISION

Tribunal       Dr J D Campbell     

Date1 September 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.           
  [ Dr JD Campbell ]
  Member
CATCHWORDS
Social Security – Compensation Affected Payment – Preclusion Period – Repayment of Social Security Payments – Special Circumstances.

Social Security Act 1991, sections 17, 1165, 1166, 1184.
Beadle v Director General of Social Security (1985) 7 ALD 670.
Re Beadle v Director General of Social Security (1984) 6 ALD 1.
Re Secretary, Department of Social Security v Smallacomb (1991) 23 ALD 141.
Re Secretary, Department of Social Security v Hulls (1991) 22 ALD 570.
Groth v Department of Social Security (1995) 40 ALD 541.
Kulakov v Secretary, Department of Social Security (1991) 63 SSR 879.
Re Hajar v Secretary, Department of Social Security (1988) 16 ALD 716.
Re Secretary, Department of Social Security v Bolton (1989) 18 ALD 464.
Re Colaiacolo and Secretary, Department of Social Security (AAT 2109, 24 April 1985.)
Haidar v Department of Social Security (1998) 52 ALD 255.
Re Black and Secretary, Department of Social Security (1995) 83 SSR 1219.
Re Ferry and Secretary, Department of Social Security (AAT 11691, 13 March 1997).

REASONS FOR DECISION

1 September 2000   Dr JD Campbell, Member             

1. Mr Milan Tomeski ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 5 October 1999 which affirmed the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 18 March 1999, to impose a compensation lump sum preclusion period between 21 January 1995 and 2 February 1996 and to require the Applicant to repay the amount of $7410.80 made up of a social security payment (Job Search Allowance). This decision was reviewed and affirmed on 1 June 1999 by a delegate of the Respondent and on 14 July 1999 by an authorised review officer ("ARO").

2. A hearing was held before the Tribunal on 20 April 2000 at which the self represented Applicant presented oral evidence. The Respondent was represented by Mr Lozynsky, an advocate from the Administrative law section of Centrelink.

3. The following material was placed in evidence before the Tribunal:

Exhibit          Description  Date  
T1-T5 p1 – 104 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975.  
A1      Medical report from Dr Guirgis.     13 March 2000        
A2      Radiological report from Dr Kitchener.     17 February 2000   
A3      Neurological report from Illawara Neurolgical Services.          22 February 1999   
A4      Pathology reports (3).  
A5      Medical Report Dr Fisher.  31 January 2000    
A6      Dental Bill.     3 February 2000      
A7      Dental Report of Dr Hogg.  28 January 2000     
A8      United Dental Hospital appointment.       28 January 2000     
A9      Applicant's Statement of Medical Details & Treating Doctor's report for Disability Support Pension.       6 April 2000  
R1      Respondent's Statement of Facts & Contentions.        6 March 2000           

ISSUES:

1. The issue in this matter is whether special circumstances exist and whether, if such special circumstances are found to exist, it is appropriate to treat the whole or part of the compensation payment as not having been made.
   LEGISLATION:

2. The relevant legislation in this matter is The Social Security Act 1991 ("the Act") and in particular subsections 17(1) - (3), 1165 (2AA), 1165 (5), 1165 (8), 1165 (9), 1166 (1), 1166 (4C) and 1184(1).
   BACKGROUND:

3. The Applicant was injured at work on 20 March 1993 and commenced receiving weekly compensation payments until liability was ceased subsequent to 28 November 1994 by QBE Workers Compensation (NSW) Limited (T3, p11). The Applicant commenced receiving Job Search Allowance from 14 December 1994 (T19, p41). The Applicant's worker's compensation was settled on 10 February 1999 with a lump sum payment of $45,000 including $10,500 for medical costs (T13, T14). On 18 March 1999 the Applicant was informed by Centrelink that a preclusion period would be imposed from 21 January 1995 to 2 February 1996 and that an amount of $7410.80 would need to be repaid, this amount being equal to the amount of social security payments received during the preclusion period (T20). Upon request for review by the Respondent, this issue of repayment was addressed and affirmed on 1 June 1999 by the Compensation Management Section (T31) and again, in the light of new information, on 8 June 1999 (T35). The decision was further reviewed and affirmed by an authorised review officer on 14 July 1999 (T52) and by the Social Security Appeals Tribunal on 5 October 1999 (T2).
   APPLICANT'S EVIDENCE:

4. The Applicant told the Tribunal that as a result of his workplace injury in 1993, he experienced injury to his right hand and neck. As a consequence he had difficulty in grasping small objects with the fingers of his right hand (dominant limb). Further, for longer than a year he had been experiencing pins and needles in his right hand, which were worse at night. He felt that there was some diminution in sensation and he experienced difficulty picking up coins and pins. He stated that he was not having the same trouble with his left hand.

5. The Applicant described to the Tribunal that he had been experiencing low back pain for the last two years which radiated to his left hip and to behind his left knee. He believed this had nothing to do with his work accident, but while the condition is episodic, it appears to be getting worse. He is unable to walk on concrete for too long, although he can walk up to half a kilometre to the train. He is unable to drive a car (his father's), spends time reading, watching TV, washing the dishes, feeding the birds (18) and playing with the dogs. He is unable to do much shopping, and is unable to do gardening or lawn mowing. The Applicant also stated that he spends time with his neighbours and visits the clubs occasionally.

6. In further statements the Applicant indicated that he had been diagnosed with diabetes, for which he was receiving no treatment or medication. As regards other conditions, the Applicant indicated that he was still experiencing some difficulties with his dentures and also his neck causes pins and needles in his arm and occasionally locks. The Applicant stated that his various skeletal conditions are worse in cold weather and that he consumes three to four panadeine forte tablets a day on approximately three days a week when the pain is worse.

7. In commenting on his and his wife's financial circumstances, the Applicant stated that he used the lump sum compensation payment to pay off the house and make it a mortgage free asset. The Applicant stated that he has a health care card, is unable to afford private physiotherapy; does not owe any money in Australia, but owes approximately $12,000 to relatives and friends overseas. He has $200 - $300 in the bank. His wife is in good health and has a part-time cleaning job.

8. In response to questions asked in cross examination, the Applicant stated that he had no injury or medical condition prior to 1993; that he was dismissed from his job in May 1993; that all his new conditions (dental cyst, low back pain and bilateral carpal tunnel syndrome) came together in the last few years and are gradually getting worse. The Applicant also stated that his solicitor broke his leg on the day of settlement and the barrister was changed and that he received a somewhat lower lump sum settlement figure.

9. In discussing his financial affairs during cross examination, the Applicant indicated the approximate value of the mortgage free family home was $130,000 and that the approximate fortnightly income for the family (he and his wife) was $770, comprising Newstart allowance ($299.10), partial allowance of wife ($48), and wife's earnings ($430). The Applicant indicated that he received no other welfare assistance, and was experiencing difficulty in getting a job in his trade (electrical fitter).
   MEDICAL EVIDENCE:

10. The medical evidence contained within the Tribunal documents confirms that the Applicant:

    (a)does have bilateral carpal tunnel syndrome (T40, p76); and

    (b)does have a low back pain with radiation to left buttock and thigh (T40, p76) with associated disk space narrowing at the L4/5 and L5/S1 levels (Exhibit A2); and

    (c)has had a dental cyst removed and further dental attention (Exhibit A4); and

    (d)has a normal glucose tolerance test, showing no evidence of diabetes (Exhibit A4); and

    (e)has received a quotation for further dental work involving extractions (3), upper and lower dentures (T42); and

    (f)has had a functional capacities assessment in 1996, which recommended light work only.

11. The Tribunal documents indicate that the Applicant sought quotations for roof repairs in 1997 (T7, T28). Further the documents at T45, p84 indicate annual living expenses of $16,992 per annum as at 30 June 1999, with an outstanding debt of $660, for a stove
    SUBMISSIONS:

1. The Applicant contends that his medical expenses, health, employment and financial circumstances constitute special circumstances and that the whole of the compensation payment should be treated as not having been made. In making such a submission the Applicant nominates his declining health status as a significant issue, in that it is evident that he has and will continue to experience significant difficulty in securing employment. Similarly, the Applicant contends that his financial circumstances are particularly difficult and together with his health issues constitute special circumstances.

2. The Respondent submitted that the Applicant's circumstances do not in themselves, either singly or together constitute special circumstances in that they are neither uncommon, unusual or exceptional. Further the Respondent contends that the financial circumstances cannot be described as exceptional or unusual and that the earlier decision should be affirmed.
   CONSIDERATIONS AND FINDINGS:

3. The Tribunal in preliminary comment notes that there were no arguments between the parties that the length of the preclusion period had been incorrectly calculated and that as a result of the preclusion period, the Applicant had to repay a sum of $7410.80, being an amount of social security payment (Job Search Allowance) received by the Applicant during the preclusion period. The Tribunal in considering this issue further notes that the lump sum compensation payment amount was $45,000 and that at all relevant times the Applicant was a member of a couple, and had received social security payments (Job Search Allowance) after cessation of liability by the insurer in 1994. The Tribunal took into account:

• that the Applicant received a compensation affected payment, namely a social security benefit (subsection 17(1) of the Act); and

• that the Applicant received a lump sum compensation payment (subsection 17(2) of the Act); and

• that the compensation part of the lump sum compensation payment is 50 per cent of the payment, namely $22,500 (subsection 17(3) of the Act) ; and

• the Applicant is a member of a couple (subsection 1165 (2AA) of the Act); and

• the Applicant had a lump sum preclusion period of 54 weeks commencing the day after his last payment (30 January 1995) and continuing until 2 February 1996 (subsection 1165 (5), (8), (9) of the Act); and

• the Applicant received another determining that the Applicant repay $7410.80, being the lesser part of the lump sum and the compensation affected payment (subsection 116 (1), (4C) of the Act).

The Tribunal finds that the preclusion period has been correctly calculated and that the Applicant owed to the Commonwealth an amount of $7410.80.

1. In considering the Applicant's circumstances, the Tribunal notes and accepts as findings of fact that the Applicant has some residual symptoms from his workplace injury in 1993 and that these essentially relate to pain in the neck and tingling and numbness in the right hand. The Tribunal also finds that the Applicant has a degenerative condition of the lumbo sacral spine involving episodic pain with referral to the left hip and thigh. The Tribunal cannot however confirm a diagnosis of diabetes, for the evidence from the glucose tolerance test does not indicate the disease. The Tribunal does confirm that the Applicant has had difficulties with his teeth, requiring attention for a dental cyst and still requiring attention for extractions and dentures. The Tribunal also notes that the Applicant has a Health Care card. The Tribunal finds that the Applicant does have a bilateral carpal tunnel syndrome with the right causing more difficulty than the left.

2. The Tribunal in assessing the Applicant's health impairments notes that he has made application for a disability support pension, an application in which he may or may not be successful in the light of his age, his various disabilities and what limitations they impose on his workability. The Tribunal notes the functional capacity assessment report of June 1996, but places little reliance on it in relation to the Applicant's capacity to work, as other disabilities have occurred in the intervening time between then and now. In essence, the Tribunal summarises the Applicant's health status as being one which may or may not result in the Applicant qualifying for a disability support pension. If the Applicant is successful, he would join a class of social security recipients, who as a group are not uncommon or unusual, with the Tribunal needing to take the extra step and examine the Applicant's disabilities and the effects they have on both his lifestyle and ability to work.

3. In examining the Applicant's lifestyle it is evident to the Tribunal that his main symptom is pain, that this is multi-sighted and episodic. Next it is acknowledged that the Applicant does have difficulties in relation to both wrists but more importantly has difficulty in picking fine objects with his right hand. The Tribunal notes the range of activities that the Applicant is able to do and the level of medication taken and concludes that while the Applicant's various disabilities do cause him some limitations in everyday activity, they are not in the Tribunal's view, exceptional, uncommon or unusual and as such do not in the Tribunal's view constitute special circumstances.

4. In making such a finding the Tribunal has relied upon the facts as nominated in this matter and further has taken note of earlier cases which have defined and determined what constitutes special circumstances. These are as follows.
   In Beadle v Director-General of Social Security (1985) 7 ALD 670, the Federal Court noted that it was in broad agreement with the position adopted by the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where the Tribunal states the following:

   "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 that 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."

In Re Secretary, Department of Social Security and Smallacombe (1991) 23 ALD 141, the Tribunal failed to acknowledge any special circumstances by saying:

"Special circumstances is unlikely to exist, in isolation of any other factor at least, simply by reason of the application of a legislative provision. Even where the effect of a legislative provision may be harsh or unjust, the Tribunal is bound by the clear intention of Parliament."

In Secretary, Department of Social Security v Hulls (1991) 22 ALD 570, it was stated:

"To shorten the preclusion period in this case is to frustrate the objective of the legislation in the absence of any circumstances in which it would be reasonable to do so. In Lintern and Secretary, Department of Social Security (1993) 72 SSR 1041, the Tribunal noted that public money should not be used to improve or give gain to social security recipients."

In Groth v Department of Social Security (1995) 40 ALD 541, Keifal J at p545 states:

"…for present purposes it is sufficient to observe that it would require something to distinguish (this case) from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary."

1. Further and more specifically the Tribunal has given consideration to earlier cases in which the issue of health has figured significantly. In Re Secretary, Department of Social Security v Bolton (1989) 18 ALD 464, it was found that ill health alone was not enough to be considered a special circumstance. In both Black and Secretary, Department of Social Security (1995) 83 SSR 1219, and Ferry and Secretary, Department of Social Security (AAT 11691, 13 March 1997), ill health or incapacity to work was not regarded as a special circumstance and more particularly the lump sum was intended to provide for a restricted working situation and that disposal of a lump sum in a short period of time, when aware that a preclusion period would occur, was not appropriate. Again in Bolton (supra) a decline in an individual's health unrelated to the compensible event was not considered paramount and no special circumstances were found to exist. Finally in Haidar v Department of Social Security (1998) 52 ALD 255, Hill J held that regard cannot be given to events which happen after the preclusion period if they are totally unrelated to the issue of whether the Applicant should receive the compensation affected payments.

2. In summary it is the Tribunal's finding that the Applicant's health conditions do not constitute special circumstances. The Tribunal in reaching such a summary conclusion notes that the Applicant has access to Medicare for medical and dental treatment, including physiotherapy and dentures, particularly as the Applicant is a holder of a Health Care Card. That access to such service is governed by priority of need does not in any way make the Applicant's circumstances different to the next person. Further the Tribunal notes that nearly all of the Applicant's medical and dental conditions have eventuated after the preclusion period.

3. In considering the Applicant's financial circumstances, the Tribunal, in reviewing the Applicant's evidence and that contained within the Tribunal's documents makes the following findings of fact:

• The Applicant and his wife have an unencumbered house property valued at $125 - $130,000.

• Current annual income for the Applicant (Newstart Allowance) and his wife (part-time employment and part Newstart Allowance) is of the order of $20,000.

• Current annual expenses as detailed by the Applicant, including $2,600 per annum property maintenance is of the order of $17,000 (reliance on the Applicant's statement of 30 June 1999).

• Current debts at 30 June 1999 included $600 for a stove and $12,000 owed to relatives and friends overseas.

1. The Tribunal further notes that the Applicant has wished to effect repairs to a leaking roof since 1997 in the order of $6,000 (approximately) and that he wished to avail himself of private dental therapy and physiotherapy. The Tribunal, while acknowledging his desires and noting the nature of the debt to relatives and friends overseas, is of the view that the Applicant's financial situation, while tight, is more than manageable. The Tribunal, in observing that the Applicant used his lump sum to pay of the home mortgage, which indeed may have been a sound financial decision, concludes that the Applicant, while having to watch his expenditures, is not in financial distress and certainly cannot be considered to be other than in tightened circumstances. The Tribunal finds that the Applicant's financial circumstances are not uncommon, unusual or exceptional and does not consider that they constitute special circumstances.

1. The Tribunal in arriving at such a finding has given consideration to the  Applicant's evidence and findings established in earlier cases, namely:
   In Kulakov and Secretary, Department of Social Security (1991) 63 SSR 879 and in Re Colaiacolo and Secretary, Department of Social Security  (AAT 2109, 24 April 1985), it was considered that the factor of financial hardship alone is not sufficient to amount to special circumstances unless it is "exceptional" and not merely "straitened". In Re Hajar and Secretary, Department of Social Security (1988) 16 ALD 716, it was considered inequitable for an individual to claim financial hardship when owning an unencumbered valuable asset.

2. In summary it is the Tribunal's finding that the Applicant's financial circumstances lack the character of what is required to constitute special circumstances as they are found by the Tribunal to be ordinary, if somewhat tightened, and in no way fitting the description of unusual, uncommon or exceptional.

3. Finally, the Tribunal in considering all the Applicant's circumstances as a whole finds that while the Applicant is experiencing a difficult period in his life, the circumstances as nominated do not enjoy the character of being unusual, uncommon or exceptional. Accordingly the Tribunal finds that special circumstances are not found to exist. It therefore follows that the Tribunal cannot exercise any discretion under subsection 1184(1) of the Act and the Applicant's preclusion period remains unchanged.
   DETERMINATION:

4. The Tribunal affirms the decision under review.

I certify that the preceding 29 paragraphs are a true copy of the reasons for the decision of:

Dr J D Campbell, Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  20 April 2000
Date of Decision  1 September 2000
Self represented Applicant
Advocate for the Respondent  G. Lozynsky