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

This matter concerned an appeal by Mr Viscuso against a decision of the Secretary of the Department of Social Services regarding the application of the lump sum compensation preclusion period to his age pension entitlement. The dispute centred on whether an unpaid portion of a settlement amount constituted "special circumstances" that would allow for the waiver of the compensation preclusion period. The Administrative Appeals Tribunal (AAT) was required to determine this question.

The primary legal issue before the Tribunal was whether the fact that a portion of the settlement amount remained unpaid could be considered a "special circumstance" for the purposes of waiving the compensation preclusion period under the *Social Security Act 1981* (Cth). This involved interpreting the meaning of "special circumstances" in the context of the statutory formula for calculating the preclusion period.

The Tribunal reasoned that the statutory formula for calculating the compensation preclusion period already accounted for the timing and receipt of settlement payments. Therefore, the mere fact that part of the settlement had not yet been paid did not, in itself, create "special circumstances" that would justify waiving the preclusion period. The Tribunal concluded that the unpaid amount was a factor already addressed within the legislative framework.

Consequently, the Tribunal set aside the decision under review and substituted its own decision. This included cancelling Mr Viscuso's age pension from 21 April 2019, precluding him from receiving an age pension between 21 April 2019 and 28 March 2021, and ordering him to repay the Commonwealth $13,760.07, representing the age pension paid to him during that period.