Wheeler and Department of Family and Community Services

[2001] AATA 38

DECISION AND REASONS FOR DECISION [2001] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/593

GENERAL ADMINISTRATIVE  DIVISION       )      
           Re      GRAHAM RONALD WHEELER
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date24 January 2001

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
SOCIAL SECURITY - compensation preclusion period - whether "special circumstances" existed to permit waiver - whether Centrelink provided misleading information.

Social Security Act 1991 ss 1184

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

24 January 2001     Deputy President DP Breen, Presidential Member                  

1. This was an appeal against a decision of the Social Security Appeals Tribunal made on 1 June 2000 which affirmed a decision of an Authorised Review Officer to recover the sum of $15,735.21 in sickness allowance and to preclude the applicant from receiving income support payments until 19 June 2000.

2. The matter was heard by me in Rockhampton on 7 December 2000.  Mr Graham Wheeler, the applicant, represented himself.  Mr N Foster, Departmental Advocate, represented the respondent.  Mr Wheeler gave oral evidence at the hearing and the following documents were taken into evidence.

• Exhibit 1            "T" Documents

• Exhibit 2            Statement of Graham Ronald Wheeler dated 5.12.00

1. Mr Wheeler suffered a number of workplace injuries over a three year period.  He received weekly workers' compensation payments until September 1997.  He then applied for social security payments on the advice of his doctor.  He was told at this stage, by a person in the Human Resources Department where he worked, that he could claim against his insurance through the superannuation fund.  Mr Wheeler chose not to do this but to seek social security benefits.  At the request of Centrelink he pursued a review of the decision to cut off his workers' compensation.  The original determination of that matter was eventually upheld.

2. On 31 October 1997, Centrelink wrote to Mr Wheeler (Document T9).  This letter said, inter alia:

   "If you get back payment of weekly compensation or a lump sum compensation payment, some or all of the social security payment paid to you may have to be paid back to us.
   Any compensation you get may also stop you from getting social security payments in the future.
   This means that before you agree to settle your compensation claim, you or your solicitor should contact us to find out if you will have to pay back any money."

1. Mr Wheeler alleged that this was not sufficient notice as to his future liability to Centrelink as the letter only said that he "may" have to pay money back.  Further, given that he had just been told to seek review of the WorkCover decision, he thought that the letter related solely to WorkCover payments.  He said that if he had known this amount would have to be paid back he would either have asked for more in his settlement or he would have relied on his income protection payments through his superannuation fund.

2. Mr Wheeler did not challenge the actual calculation of the repayment or the preclusion period.  Therefore, the only issue for the Tribunal is whether Mr Wheeler received misleading information from Centrelink and, if so, whether that constitutes "special circumstances" allowing part or all of the preclusion period to be effectively waived under Section 1184 of the Social Security Act 1991.

3. For circumstances to be considered "special" they must be "unusual", "uncommon" or "exceptional" [see Re Beadle and Director-General of Social Security (1984) 6 ALD1].

4. It is the Tribunal's view that the first paragraph of the letter sent to Mr Wheeler on 31 October 1997 could have made it a little clear that the lump sum compensation referred to was in settlement of his personal injuries claim.  However, the Tribunal is also of the view that the letter as a whole put Mr Wheeler on sufficient notice that any compensation he received could impact on his entitlement to social security payments and cause him to incur a liability to Centrelink.  While perhaps the word "shall" should have been used rather than the word "may", the third paragraph in particular makes it clear that before any settlement is agreed to, the extent of any repayment required should be investigated.

5. Therefore, it is the Tribunal's finding that while the letter could have been clearer, any misunderstanding which resulted from it cannot be regarded as a circumstance which is sufficiently "uncommon", "unusual" or "exceptional" so as to justify a shortening or abolition of the preclusion period.

6. Compensation settlements are designed to compensate an individual for pain and suffering but also to compensate for economic loss up until the date of settlement and economic loss likely to be suffered after settlement.  Social security payments made to people who are unable to work while awaiting a personal injury settlement are also designed to compensate for economic loss up until the date of settlement.  To not recover the social security payments from Mr Wheeler would be to pay him twice for that pre-settlement period and that would be an outcome unintended by the legislation.

7. For the above reasons the Tribunal affirms the decision under review.

   I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

   Signed:         Denise Burton         
     Secretary

   Date/s of Hearing  7.12.00
   Date of Decision  24.1.01
   Rep. for the Applicant              Applicant appeared in person
   Solicitor for the Respondent    Mr N Foster, Departmental Advocate