Vollebregt and Secretary, Department of Social Services (Social services second review)
[2018] AATA 11
•12 January 2018
Vollebregt and Secretary, Department of Social Services (Social services second review) [2018] AATA 11 (12 January 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2016/6419 &2016/6679
GENERAL DIVISION )Re: Wilhelmus Vollebregt
Applicant
And: Secretary, Department of Social Services
Respondentand
Re: Secretary, Department of Social Services
ApplicantAnd: Wilhelmus Vollebregt
RespondentCORRIGENDUM
TRIBUNAL: Senior Member D.J. Morris
DATE OF CORRIGENDUM: 27 July 2018
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.
1.At paragraph 30, the reference to ‘June 2005’ is changed to ‘June 2011’
[sgd]...................................................................
Senior Member
Division:GENERAL DIVISION
File Number(s): 2016/6419
Re:Wilhelmus Vollebregt
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
File Number(s): 2016/6679
Re:Secretary, Department of Social Services
APPLICANT
AndWilhelmus Vollebregt
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:12 January 2018
Place:Melbourne
The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 11 November 2016 and remits the matter to the Secretary with a direction that the end date of the lump sum preclusion period be recalculated on the basis that the amount of $110,000 be treated as not having been made.
………………[sgd]……………………………..
Senior Member
SOCIAL SERVICES – Lump Sum Preclusion Period – lump sum compensation payment – application for newstart allowance – meaning of special circumstances – waiver of lump sum preclusion period – special circumstances not present – decision set aside and remitted
Legislation
Acts Interpretation Act 1901 (Cth), ss 28, 29A
Social Security Act 1991 (Cth), ss 17, 1169, 1170, 1171, 1184KCases
Re Bus and Secretary, Department of Employment and Workplace Relations (2006) 90 ALD 212
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Sams and Secretary, Department of Social Services [2016] AATA 654
Secretary, Department of Employment and Workplace Relations v Barrington (2006) 43 AAR 68
Secretary, Department of Families and Community Services v Allan (2001) 66 ALD 147
Re Secretary, Department of Families, Housing, Community Services and Waters [2011] AATA 666REASONS FOR DECISION
Senior Member D. J. Morris
12 January 2018
Mr Wilhelmus Vollebregt seeks review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1). On 2 November 2016 AAT1 set aside a decision of an Authorised Review Officer (ARO) of the Department of Human Services (the Department). Centrelink is the service provider for the Department. The matter was sent back to the Department with a direction that part of a compensation payment made to Mr Vollebregt should be disregarded under section 1184K of the Social Security Act 1991 (the Act) and that his lump sum preclusion period should end on 2 May 2017. The Secretary of the Department of Social Services (the Secretary) also seeks a review of the same decision on the Secretary’s contention that the original decision-maker incorrectly imposed a lump sum preclusion period for the period from 19 October 2011 to 21 April 2020.
The two applications were heard together at a hearing on 19 September 2017. Mr Vollebregt represented himself, made submissions, gave evidence and was cross-examined by Mr Tim Noonan, representing the Secretary.
At the conclusion of the hearing, the Tribunal asked Mr Vollebregt to provide further information in relation to mortgage payments he had made in relation to a property previously owned by him and his former partner. The information provided was taken into account by the Tribunal.
Background
Mr Vollebregt was employed as a hotel manager at a resort in Alice Springs, where he had worked for some three years. He had a long history of working in the hospitality sector, for more than 30 years. He first suffered a work injury on 1 July 2008. The Tribunal had before it a medical report dated 1 March 2011 from Dr Philip Haynes, consultant occupational physician. Dr Haynes reported that on 28 February 2009 there was an incident at the resort when Mr Vollebregt was required to eject some guests from a hotel room. What unfolded from this second work injury was that he developed severe back pain with radiation to the left leg. He was admitted to Alice Springs Hospital and was there for five days. He returned to work, but was still suffering pain.
He was subsequently referred to Dr Owen Williamson at the Epworth Hospital in Melbourne. Dr Williamson performed L4/5 discectomy surgery and rhizolysis on 19 August 2009. This led to some initial relief, but the pain returned and worsened. Mr Vollebregt was then referred to Dr Matthew Green, a pain management specialist practising in Adelaide. Dr Green discussed the possible implanting of a dorsal cord spinal stimulator but Mr Vollebregt was not keen to proceed. He undertook physiotherapy and hydrotherapy. Dr Haynes concluded, after examining Mr Vollebregt and reviewing his medical history, that, applying the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition), Mr Vollebregt was assigned a 10 per cent whole person impairment, and reported that in his opinion the whole of the impairment is attributable to the work injury.
As a result of Dr Haynes’ report, QBE Workers Compensation (Aust) Ltd (QBE) on 6 June 2011 paid Mr Vollebregt $7,770.67. On 5 October 2011 QBE paid a lump sum compensation payment to Mr Vollebregt in the amount of $725,000.00 and advised the Department of that payment.
On 23 January 2012 the Department sent a letter to Mr Vollebregt at his Alice Springs address advising him about the effect his lump sum compensation payment had on his eligibility for future income support payments. The letter relevantly said:
…we have calculated that you have a preclusion period that starts on 19 October 2011 and ends on 21 April 2020. During this period you are not able to receive income support from Centrelink.
On the same day, the Department wrote in similar terms to Mr Vollebregt’s solicitors, Halfpenny Lawyers, advising of the lump sum preclusion period and the statutory formula used to calculate the period.
Mr Vollebregt was absent from Australia from 24 January 2012 to 7 May 2014, from 17 May 2014 to 25 September 2015 and from 3 October 2015 to 2 March 2016.
On 18 May 2016 Mr Vollebregt submitted a claim for newstart allowance, by lodging an application on-line. Newstart allowance is a social security encompassed by section 17(1) of the Act. On 20 May 2016 he contacted the Department regarding a review of the original decision made on 23 January 2012 to impose a lump sum preclusion period. The Department records before the Tribunal show that his newstart allowance claim was rejected on 27 July 2016 because he failed to attend an interview. However, prior to that, on 17 June 2016 an Authorised Review Officer (ARO) advised Mr Vollebregt by letter that the original decision regarding the lump sum preclusion period was affirmed.
The law
Section 1169 of the Act applies to people who have received lump sum compensation payments. It provides that a person cannot receive a compensation affected payment during a lump sum preclusion period. The definition of a compensation affected payment is set out in section 17(1) of the Act and, among other things, includes a “social security benefit”. Section 17(2) of the Act defines ‘compensation’ to include payment made wholly or partly in respect of lost earnings or capacity to earn resulting from a personal injury.
Section 1170 of the Act sets out how a lump sum preclusion period is calculated, including the applicable formula. The Secretary submitted that the calculation had been done correctly and that the period should be as originally calculated, that is from 19 October 2011 to 21 April 2020.
Mr Vollebregt disputed the mathematical calculation of the lump sum preclusion period applicable to him, but the formula set out in the Act is clear. He said he did not receive the letter of 23 January 2012 because he had departed Alice Springs the previous day for Sydney, on route to relocating to Bangkok. He told the Tribunal that he did receive correspondence from his solicitors relating to the payment of the lump sum, but said there was no mention of a preclusion period in that correspondence and the first he knew of this was on his return to live in Australia. He said the letter had gone to the Alice Springs postal address he formerly shared with his ex-partner, whom he said did not forward it on. His statements to the Tribunal do not square with the Departmental record dated 20 May 2016 which stated:
The customer advised he never received the department’s letter regarding the preclusion period. However, he was made aware by his lawyer that there would be a preclusion period. The customer advised he has $80,000 left. He also advised he spent $25,000.00 to visit is sick mother in Holland. I recommend S1184K be applied to disregard this amount which would reduce the preclusion period by 15 weeks. The decision after review is to refer to the ARO as I am unable to make a fully favourable decision.
(Emphasis added.)
Section 1184K(1) 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.
The Act does not define the phrase “special circumstances”, however the Tribunal and the courts have considered this term extensively.
The Secretary argued that it is a “fundamental principle” of the social security system that people who are unable to work owing to a compensable injury are prevented from receiving income support from both the social security and compensation systems for the same period. The Secretary contended that the rules are designed to ensure that persons who find themselves in this circumstance receive income support from those with primary responsibility to provide that support, such as insurers or statutory compensation schemes.
Mr Vollebregt’s submissions
Mr Vollebregt submitted that the lump sum preclusion period should be shortened for several reasons:
Legal costs
He argued that he did not receive the amount of $725,000.00 paid by QBE on 5 October 2011 because that lump sum was paid into his lawyers’ trust fund account and Halfpenny Lawyers deducted $22,000.00 in legal costs.
Payments in cash and kind to former partner
Mr Vollebregt told the Tribunal that the relationship with his former partner ‘ended in the middle of 2010.’ They had been in a de facto relationship for some 27 years. After the separation, he initially stayed with her in their jointly owned Alice Springs residence. He said that they agreed to stay in the same house until he had received the lump sum payment from QBE. They also agreed at that time that, on the receipt of this payment, they would divide the assets and he would move out. In July 2011 he married his current partner and they have two children, one born in 2012 and one in 2013.
He said that he ‘forfeited’ household contents, three motor cars and a motorcycle as part of a verbal agreement he had with his former partner in relation to the division of their joint assets. He told the Tribunal that he provided an interest-free loan to his former partner in the amount of $200,000.00. He also told the Tribunal he did some work in the garden of their shared residence in preparation for him leaving, to improve it for his former partner.
In his submissions, Mr Vollebregt cited the following as amounts that should be disregarded in the calculation of the lump sum preclusion period: $4,000.00 for household appliances after moving from the resort where he worked to his house in Alice Springs; $6,000.00 for a car loan; $27,000.00 for the transfer of three motor cars and one motorcycle into his former partner’s name; $3,500.00 for garden improvements; $50,000.00 for a credit card debt; $60,000.00 cash put into the account of his former partner; $95,000.00, being the residue of an interest free loan to his former partner of $200,000.00 of which $105,000.00 was recovered from her; $5,000.00 in legal fees to recover the residue of this private loan; $8,000.00 for ‘relocation costs’ and $50,000.00 for ‘forfeited purchase costs, mortgage payments and all furniture, etc.’ of the Alice Springs residence.
Other personal travel and related expenses
Mr Vollebregt said he relocated to live in Thailand in 2011 because ‘it was cheaper to live there than in Australia’. He had previously visited there as a tourist and met a Thai national, and they later married. He explained to the Tribunal that he undertook three trips to the Netherlands (his place of birth). The first trip was undertaken in October 2012 when he travelled with his wife and then three month old daughter to visit his mother after she had suffered an aneurysm. He explained to the Tribunal that he had to travel business class because his compensable back injury means he is unable to bend his knee. He told the Tribunal that QBE had accepted that he needed to travel business class in relation to other domestic flights he had undertaken for appointments with medical specialists.
He said he stayed in Holland for about a month on this initial visit, and oversaw the transfer of his mother from hospital into a care home. He told the Tribunal he made a second trip to Holland in December 2012 to care for his mother because he couldn’t get a care person owing to the Christmas break, and stayed until the end of January 2013. His wife and child accompanied him on this visit. In October 2013 he returned to the Netherlands, this time solo, owing to the unfortunate death of his mother. On that occasion he stayed for a month to attend to funeral arrangements and to clean out her house. Mr Vollebregt submitted that an amount of $20,000.00 should be disregarded in terms of shortening the preclusion period, associated with the costs of these visits. He told the Tribunal that in Thailand cash must be paid for international air travel and he had been unable to obtain a document detailing the cost of the flights, but he did provide itineraries. He said $20,000.00 is a modest estimate which reflects airfares and other associated travel costs, but he estimated the cost of the three visits to him was much greater.
Expenditure in Thailand
Mr Vollebregt made submissions that certain other costs should be regarded as “unexpected or exceptional” and should be taken into account in re-calculating the lump sum preclusion period. He told the Tribunal that he paid 2.4 million Thai baht for a sin sod, a dowry paid in Thailand to the parents of a bride. He said that he knew there would be such a payment, but not the amount. He estimated that this equated at the time to around $75,000 in Australian dollars.
Mr Vollebregt told the Tribunal he relocated to Thailand to meet and marry a Thai wife to look after him and that the sin sod payable under Thai custom varies according to the age of the bride, whether she has been previously married and a number of other factors. He said that he had incurred additional unexpected expenditure in Thailand after being hospitalised for pancreatitis and in relation to the medical costs for the birth of his two children. He said these costs should be considered in the calculation of the lump sum preclusion period.
Return from Thailand
Mr Vollebregt said that the costs associated with him, his wife and two children relocating from Thailand to Australia, should also be taken into account in the calculation of the period. This included visa costs in relation to bringing his wife to Australia so she could become a permanent resident of this country. The move was precipitated by political unrest in Thailand which led to a coup d’état. This submission has little merit, because his original decision to move abroad and his subsequent decision to return, while I accept possibly motivated by political events at that time, were both personal decisions which I do not categorise as exceptional or out of the ordinary; they were discretionary decisions Mr Vollebregt consciously made.
The Secretary’s contentions
Mr Noonan submitted that Mr Vollebregt should have been aware of the lump sum preclusion period because of the letter sent to him at his postal address on 23 January 2012 and a similar letter sent to Halfpenny Lawyers, his solicitors, on the same date. The Department sent a further letter, which was before the Tribunal, to Mr Vollebregt on 12 April 2012 in relation to the calculation of the preclusion period. The letter encouraged Mr Vollebregt to contact the Department regarding the effect of the preclusion period and to return a signed acknowledgement of that letter.
The Secretary cited previous decisions of the Tribunal relating to property settlements and lump sum preclusion periods. In Bus and Secretary, Department of Employment and Workplace Relations (2006) 90 ALD 212 (Bus), Senior Member Handley held, at paragraph [29], that the depletion of a lump sum compensation payment to purchase a house consequent on a marital property settlement was a ‘special circumstances’ that enlivens the discretion provided for in section 1184K(1):
Within two years of settlement, Mrs Bus and her husband separated, she entered into Family Court proceedings and the net result was that in exchange for her husband assuming responsibility for a mortgage to his mother, he acquired the former matrimonial home. As a consequence of that outcome, Mrs Bus was obliged to obtain a home of her own to house herself and the children.
And at [30]:
Purchase of a home, per se, might not be thought as a special circumstance, but it is, surely, when one does not have a place to live and is responsible for the care of children. That purchase substantially eroded the monies invested. It was a purchase which was not foreseen when the preclusion period was calculated. The failure to recognise the depletion of the invested funds, for that purchase, in her special circumstances would be an injustice.
The Secretary also cited a Tribunal decision in Zhang and Secretary, Department of Social Services [2015] AATA 668 where Member Perton stated, at [25]:
In the Tribunal’s experience, it is not unusual for relationships to fall apart following serious injury and a lengthy loss of income. Mr Zhang indicated that the marriage had already effectively ended before the compensation award. A payout to the estranged or ex-partner following the compensation award as part of the divorce settlement is not unusual. Accordingly, the Tribunal is not satisfied that the $60,000.00 paid to the ex-wife should be classified as special circumstances.
The Secretary submitted that the expenditure itemised by Mr Vollebregt to be taken into account to shorten the lump sum preclusion period should, with one exception, not be so taken into account because the expenditure was not exceptional, out of the ordinary, or unforeseen. The Secretary stated that the legal costs that Mr Vollebregt’s solicitors deducted from his lump sum payment amount to some 3 per cent of the total amount and could not be said to be exceptional.
The Secretary submitted that it is open to the Tribunal to find that the amount of $95,000, and subject to proof of payment of $5,000 in legal fees, that amount as well (a total of $100,000), should be disregarded in the calculation of the compensation payment. This is on the basis that there was documentation relating to this funds transfer and that the circumstances of Mr Vollebregt’s former partner not repaying this private loan were unforeseen and unusual.
Consideration
The Tribunal considered the two lump sum amounts that Mr Vollebregt received. The first of these, as mentioned above, was $7,770.67 based on 10 per cent whole person impairment as assessed by Dr Haynes and paid by QBE in June 2005. The second was the amount of $725,000.00 paid by QBE to Mr Vollebregt’s solicitors in October 2011. Section 1171(1) of the Act states that if a person receives two or more lump sums in relation to the same event that gave rise to an entitlement of the person to compensation, and at least one of the payments was made wholly or partly in respect of lost earning or lost capacity to earn, the multiple payments are to be aggregated into one lump sum payment and the date of receipt is to be taken to be the day on which the person received the last of the multiple payments. These two payments are in that statutory category. Therefore, Mr Vollebregt is taken to have received $732.770.67 on 5 October 2011.
Section 1170(1)(a) of the Act sets out that the lump sum preclusion period is the period that 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. The period ends, under section 1170(1)(b) of the Act at the end of the number of weeks worked out under subsections 1170(4) and (5) of the Act.
Section 1170(4) of the Act sets out the formula to be used applying the income cut-out amount. Income cut-out amount is defined in section 17(1) and 17(8) of the Act. Before the Tribunal was the calculation that the income cut out amount was $823.80. Applying section 1170(4) of the Act, $366,355.83 (i.e. 50 per cent of the aggregated lump sum payment) divided by $823.80 equates to a period of 8.55 years which, rounded down to the nearest whole number is 8 years and 28 weeks. The Tribunal finds that the start day of the lump sum preclusion period is 19 October 2011 and the end date is 7 May 2020.
Was Mr Vollebregt notified of the lump sum preclusion period?
There was evidence before the Tribunal that the Department wrote to both Mr Vollebregt and his solicitors on 23 January 2012. I accept Mr Vollebregt’s evidence that he had left Alice Springs the day before that date and he told the Tribunal that his former partner did not pass the letter on. However, the Department had sent the letter to his recorded address and, importantly, had also advised his solicitors in similar terms. Section 28A and 29 of the Acts Interpretation Act 1901 are relevant here in terms of deemed service by post. Mr Vollebregt did not dispute that the letter had been sent to him: he said his former partner had not forwarded it, and he did not believe his solicitors had told him. I am afraid that the responsibility lies here with Mr Vollebregt. On his evidence he was preparing to leave Alice Springs permanently to move to Thailand. He told AAT1 that his relationship with his former partner had deteriorated and she did not forward letters addressed to him on. In the light of this, it would have been prudent management for him to arrange with the post office for mail addressed to him to be forwarded. That he did not do so is his personal responsibility. I also consider that it would be unlikely that Halfpenny Lawyers did not either forward on the Department letter they received relating to their client, or at the very least convey to him the tenor of its contents. I also note from the note by the Department officer of a conversation with Mr Vollebregt that he was apparently made aware by his lawyers that there would be a preclusion period, even if the precise length of that period was not conveyed. Taking all this into account, the Tribunal finds that Mr Vollebregt was notified of the lump sum preclusion period around the end of January or early February 2012.
Should all or part of the compensation payment Mr Vollebregt received be disregarded because of special circumstances?
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 Kiefel J considered the meaning of the phrase “special circumstances”. Her Honour said at [545]:
The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case [Beadle v Director-General of Social Security] (at ALR 229 ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s 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.
Mr Vollebregt has spent his lump sum compensation payment on a variety of things. A significant portion of it went as a result of his agreement with his former partner to divide their joint assets. Some of it went on his personal decision to relocate to Thailand, to remarry and establish himself there. Some of it went on expenses connected with the illness and demise of his mother in Holland. Some of it was spent on medical expenses he incurred in Thailand for the birth of his two children and for medical care for conditions unconnected with his compensable injury. Some of it was spent on other personal and family expenses.
Mr Vollebregt submits that the amount he spent on legal costs in relation to his compensation claim should be taken into account in shortening the preclusion period. The legal costs deducted by his solicitors made up, on his evidence, $22,000.00, which is around three per cent of the total compensation payment. I consider that these expenses were not disproportionate to the amount of the compensation received and in fact these costs are much lower than other similar matters which have come before the Tribunal. For instance in Secretary, Department of Families, Housing, Community Services and Waters [2011] AATA 666 the amount of legal costs was 16 per cent of the settlement. In Sams and Secretary, Department of Social Services [2016] AATA 654 the amount of legal costs was 41 per cent of the settlement. Legal costs could be relevant to exercising the discretion under section 1184K(1) in cases where such costs appear objectively to be disproportionate to the amount of payment received, taking into account the nature of such payments as compensation for lost earnings (noting the Federal Court decision in Secretary, Department of Workplace Relations v Barrington (2006) 43 AAR 68), but that is not the case here. The legal costs were relatively modest.
In terms of the breakdown in his long-term domestic partnership, Mr Vollebregt made clear in his evidence to the hearing that he and his partner separated at “the end of 2010, beginning of 2011”. He said that he formed his plan to go to Thailand in 2010 because “I needed someone to look after me…no Australian woman would take an [injured] man on.” He said that his personal relationship with his former partner ended in 2010 and by then they were living under the same roof but he was sleeping in a separate room.
Mr Vollebregt’s evidence to the hearing was consistent with what he said in an email of December 2013 to a lawyer, Mr Andrew Barnes, about when his relationship ended and what financial arrangements had been worked out between them. Importantly, Mr Vollebregt stated:
We agreed to stay in the same house until the money was paid from QBE, then we’d divide assets and I would move out.
It is clear to me that this was a plan in the making for at least a period of over a year before the lump sum payment was made. It may be distinguished from the facts in Bus, quoted above, in that, unlike the facts in Mrs Bus’s case, the end of the partnership was not unexpected, or unforeseeable. On the contrary I do not therefore consider that these financial arrangements constitute special circumstances. Mr Vollebregt and his former partner agreed to what appears to be a very civil split of assets and, indeed, his account to the Tribunal of improvements to the garden at Alice Springs gives a flavour of his conduct in this regard. But this was not an unexpected cost to Mr Vollebregt, nor was it out of the ordinary, for domestic assets to be fairly split when a marriage-like relationship ends.
Although there is not complete documentation about the $200,000.00 interest free loan Mr Vollebregt made to his former partner, I am persuaded by the bank statements and other evidence that this loan was indeed made and I accept there was a disagreement between the two about repayment, which led to a “loss” to Mr Vollebregt of $95,000.00. There was no evidence of legal fees incurred in this particular matter. To the contrary, an email dated 5 June 2017 from Eileen Terrell, solicitor, when asked to provide details of costs incurred states:
I do not have any documents – you simply sent me an email telling me she had paid up and that you did not need me anymore. Prior to that it was just emails between us.
In a separate email Ms Terrell does quote her hourly rate and there is evidence that Mr Vollebregt had lodged funds with her firm to undertake some legal work, because he requested the return of the balance when his wife agreed to the part repayment, but there is a dearth of documentary detail about the actual legal costs he incurred. Accordingly, I do not add the contended figure of $5,000.00 to that amount. I find that this reneging on the loan was indeed an unexpected cost which was not contemplated by Mr Vollebregt when he and his former partner divided their assets and a cost which fairly could be characterised as being out of the ordinary and having a significant and detrimental financial effect on him. The Tribunal finds that this amount of $95,000.00 should be disregarded in calculating the compensation preclusion period.
In terms of Mr Vollebregt’s decision to move to Thailand, it was clear from his frank evidence to the Tribunal that this was a personal decision. The various costs of relocation, marrying his now wife, living in Thailand and the family medical expenses there, and the costs associated with his return to Australia with her are not costs which enliven the discretion provided for in section 1184K(1) of the Act to shorten the preclusion period. They were all the result, on Mr Vollebregt’s evidence, of personal decisions he made, not things over which he reasonably could say were out of his control, out of the ordinary or unforeseen.
In terms of the decline in health and death of Mr Vollebregt’s mother in Holland, the Secretary contended that the travel and associated costs incurred by him should be regarded as being part and parcel of the normal vicissitudes of life. I have carefully considered this particular contention. I conclude that some allowance should be made for the additional costs for Mr Vollebregt’s travel on the basis that his mother’s sudden decline in health was unexpected and unforeseen and that, as QBE had previously accepted, there was an unavoidable additional cost component for business class travel because of the nature of Mr Vollebregt’s compensable injury. I do not, however, accept that the travel costs of Mr Vollebregt’s wife and child on two occasions to the Netherlands should feature in this particular consideration; their accompanying him was a personal, family decision. His wife did not travel with him in a caring capacity (and nor did he contend this). His injury and other health conditions did not prevent him travelling alone on one of these visits. I have decided that an amount of $15,000.00 as a total figure for the three visits, taking into account travel and other costs, should be taken into account in the calculation of the preclusion period.
At the hearing, Mr Vollebregt remarked that he had essentially included a large number of expenditure items he had incurred over the last several years in his submissions as a sort of “catch all”. The Tribunal must make the point that the basis of the law relating to lump sum preclusion periods is to stop people “double dipping”.
In Secretary, Department of Family and Community Services v Allan [2001] FCA 1160, Heerey J said, at [1]:
The basic policy, understandably enough, is that there should not be “double dipping”. People should not receive social security payments for loss of earning where they have received compensation for that same loss of earnings from another source.
Mr Vollebregt received a large lump sum in compensation for his work-caused injury, the purpose of which was to support him because of him being unable to work. He has made various decisions in relation to the disposition of these funds which have significantly depleted them. The Tribunal finds that these decisions were either not unforeseen, out of the ordinary or unexpected (such as the division of assets after a relationship’s end which was long planned before the lump sum payment), or were discretionary decisions entirely within his own personal control, such as moving abroad for a period, remarrying and certain family costs.
The Tribunal finds that the discretion provided for in section 1184K of the Act for the Secretary to disregard all or part of the aggregated lump sum compensation payment received by Mr Vollebregt, is enlivened in the unexpected reneging by his former partner on a private loan which led to an unforeseen loss to him of $95,000.00 and in the special travel costs associated with travel relating to a sick and dying parent in Europe where some of those special costs have a direct connexion with Mr Vollebregt’s compensable injury, in the amount of $15,000.00.
DECISION
The Tribunal sets aside the decision of AAT1 of 11 November 2016 and remits the matter to the Secretary of the Department of Human Services with a direction that the end date of the compensation preclusion period be recalculated on the basis that the amount of $110,000 be treated as not having been made.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the written reasons for the decision of Mr D. J. Morris
[sgd]........................................................................
Associate
Dated: 12 January 2018
Date of hearing: 19 September 2017 Applicant: In person Advocate for the Respondent: Mr Tim Noonan
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