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

Wilson and Secretary, Department of Social Services (Social services second review) [2020] AATA 1505 (28 May 2020)
Division:GENERAL DIVISION
File Number: 2019/2083
Re:Barry Wilson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:28 May 2020

Place: Brisbane
The Tribunal affirms the decision under review.
................................[SGD]....................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Austudy Allowance – basic rate or long term income support student rate – treatment of compensation payments – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Department of Social Security v Smith (1991) 30 FCR 56
Groth and Secretary, Department of Social Security [1995] FCA1708
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN No61
REASONS FOR DECISION
Member D Mitchell
28 May 2020
INTRODUCTION

Mr Barry Wilson (the Applicant) is seeking review of a decision of the Social Services and Child Support Division (SSCSD) of this Tribunal made on 28 February 2019[1] to affirm the decision of the Respondent that the Applicant was not entitled to the higher rate of Austudy during the period 9 March 2009 to 19 September 2010.
[1] Exhibit 1, T Documents, T2, pages 8-12, Decision of the SSCSD.
BACKGROUND
The Applicant was granted Newstart Allowance (NSA) with effect from 29 February 2008.[2] He reported employment income of $1,300 on or around 24 April 2008.[3]
[2] Exhibit 1, T Documents, T60, page 275, Centrelink mainframe screen captures.
[3] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 60, Centrelink Customer Record.
On 29 April 2008, the Applicant suffered a work related injury to his left shoulder[4] and claimed workers’ compensation on 3 May 2008.[5] The Applicant reported on 8 May 2008 that he should do light duties only because of his injury and reported employment income of $420.[6]
[4] Exhibit 1, T Documents, T12, page 102, Letter from WCQ to the Applicant – Work Related Impairment Assessment Rating attaching notice of assessment.
[5] Exhibit 1, T Documents, T32, page 155, Decision Statement and Notes of ARO as summarised at Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 65.
[6] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 10, Online Document Recording (ODR/DOC) Archive.
On 2 June 2008, the Respondent suspended the Applicant’s NSA as he had been granted compensation payments.[7]
[7] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 11, Online Document Recording (ODR/DOC) Archive.
On 10 June 2008, WorkCover Queensland (WCQ) confirmed the Applicant had been granted compensation of $484 per week (or $968 per fortnight) from 12 May 2008.[8]
[8] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 12, Online Document Recording (ODR/DOC) Archive.
As at 12 May 2008, the income cut-off for NSA was $821.84 per fortnight.[9]
[9] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 65, A guide to Australian Government Payments – 20 March – 30 June 2008.
Consequently, on 10 June 2008, the Respondent wrote to the Applicant advising that his NSA had been cancelled with effect from 12 May 2008 due to his regular compensation payments.[10]
[10] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 13, Letter to Applicant.
The Applicant had received NSA for 10 weeks and 3 days between 29 February 2008 and 11 May 2008.
On 11 June 2008, the Respondent raised a debt of $345.09 against the Applicant in relation to NSA paid to him for the period 12 May 2008 to 22 May 2008 on the basis that his income from compensation had not been taken into account in working out the amount of NSA to pay to him during that period.[11]
[11] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, pages 15-17, Online Document Recording (ODR/DOC) Archive and Centrelink Customer Records.
On 15 September 2008, WCQ suspended the Applicant’s worker’s compensation payments.[12] The Applicant contacted the Respondent on 17 September 2008 regarding re-claiming NSA.[13] He advised the Respondent that he would be appealing against the WCQ decision to suspend his compensation payments.[14]
[12] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 26, Online Document Recording (ODR/DOC) Archive.
[13] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 18 Online Document Recording (ODR/DOC) Archive.
[14] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 26, Online Document Recording (ODR/DOC) Archive.
On 22 October 2008, the Respondent advised the Applicant it had granted his NSA from 16 September 2008.[15] The rate of NSA was $449.30 per fortnight.
[15] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 20, Letter to Applicant.
On 11 December 2008, WCQ confirmed the Applicant was entitled to $9,967.98 in weekly compensation for the period 12 May 2008 to 15 September 2008.[16]
[16] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 24, Online Document Recording (ODR/DOC) Archive.
On or around 22 December 2008, the Applicant undertook work and declared earnings of $176.00.[17]
[17] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 61, Centrelink Customer Record.
The Applicant’s NSA was paid up until 22 December 2008.[18] He was notified by the Respondent on 20 January 2009 that his NSA had been cancelled with effect from 23 December 2008 because the Respondent had not received his application for payment form.[19] The Applicant’s NSA was not recommended.[20]
[18] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 56, Centrelink Customer Record.
[19] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 27, Letter to Applicant.
[20] The Tribunal notes that it does not appear that the Applicant’s NSA was recommended. Likely because WCQ advised the Respondent on 14 January 2009 that the Applicants periodic compensation payments had recommenced on 22 December 2008 as seen at Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 25, Online Document Recording (ODR/DOC) Archive.
On 2 March 2009, the Applicant commenced full time studies.[21] On 9 March 2009 the Applicant contacted the Respondent regarding making a claim for Austudy. On 14 March 2009, the Respondent wrote to him confirming this contact.[22]
[21] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 32.
[22] Exhibit 1, T Documents, T13, page 103, Centrelink notice: Intention to claim a payment.
On 25 March 2009, WCQ advised the Respondent it had restored the Applicant’s compensation at the rate of $554.65 per week and would back pay the Applicant for the period of 16 September 2008 to 21 December 2008.[23]
[23] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 25, Online Document Recording (ODR/DOC) Archive.
On 25 March 2009, the Respondent raised a compensation charge of $3,180.97[24] on the basis that the NSA paid to the Applicant during the period 16 September 2008 to 22 December 2008 was no longer payable to him and were recoverable.[25]
[24] Exhibit 1, T Documents, T17, page 109, Debt information overview and ADX Debt explanation.
[25] Exhibit 1, T Documents, T17, page 110, Debt information overview and ADX Debt explanation; T60, pages 284-291, Centrelink mainframe screen captures.
The Respondent sent a notice to WCQ[26] and the Applicant[27] setting out that WCQ was required to refund the compensation charge of $3,180.97 and this amount was subsequently repaid to the Respondent.
[26] Exhibit 1, T Documents, T15, page 106, Centrelink notice: Compensation Recovery Notice. Note T15 states the recovery period is 16 September 2008 to 1 March 2009 however pursuant to T16 the Applicant only received NSA between 16 September and 22 December 2008.
[27] Exhibit 1, T Documents, T16, page 107, Centrelink notice: Deductions from compensation arrears payments.
On 27 April 2009, the Applicant advised the Respondent that his compensation had ceased and he had commenced his studies.[28]
[28] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 39, Online Document Recording (ODR/DOC) Archive.
The Respondent granted the Applicant’s claim for Austudy from 9 March 2009.[29] The Respondent advised the Applicant on 28 April 2009 that an arrears payment of $1,061.14 was being paid to him for the period 9 March 2009 to 17 April 2009 and that his regular Austudy payments would be at the (basic) rate of $371.40 per fortnight.[30]
[29] Exhibit 1, T Documents, T18, page 113, Centrelink notice: your Austudy payment for period 09.03.2009 to 17.04.2009.
[30] Exhibit 1, T Documents, T18, page 113, Centrelink notice: your Austudy payment for period 09.03.2009 to 17.04.2009.
The Applicant wrote to the Respondent on 29 December 2019, enquiring about his entitlement to be paid Austudy at the “Special rate for long term income support recipients”.[31]
[31] Exhibit 1, T Documents, T29, page147, Letter: from Applicant to Centrelink – long term income support rate of Austudy. A SFIC para 111.
On 29 December 2009, the Respondent determined the Applicant was not qualified for the higher rate of Austudy[32] because the Applicant had not received a relevant income support payment for 26 weeks of the 39 week period immediately prior to him commencing his study.
[32] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 32.
On 30 December 2009, the Respondent wrote a letter to the Applicant advising him he did not qualify for the higher rate of Austudy[33] outlining that the Applicant had commenced studies on 2 March 2009 but had only been in receipt of NSA for a total of 14 weeks (being between 16 September 2008 and 22 December 2008) in the 39 weeks preceding the date he commenced studies.[34]
[33] Exhibit 1, T Documents, T30, pages 148-149, Centrelink notice: Not eligible for higher rate of Austudy.
[34] Exhibit 1, T Documents, T30, page 148, Centrelink notice: Not eligible for higher rate of Austudy.
On 6 January 2010, the Applicant wrote a further letter to the Respondent seeking review of this decision and made the following points:[35]
(a)Since he was in receipt of NSA when he sustained his work related injury (on 29 April 2008), then the weekly compensation he was paid should be treated as income (rather than as a direct deduction).
(b)If he had been aware of this, he would have continued to declare his periodic compensation from WCQ as income.
(c)Had the injury not occurred, he would have continued receiving the NSA.
[35] Exhibit 1, T Documents, T31, pages 150-151, Applicants request for review of decision dated 29.12.2009, as summarised in Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraph 112.
On 3 February 2010, an Authorised Review Officer (ARO) affirmed the decision to pay the Applicant the basic (and not the higher) rate of Austudy.[36] A letter to that effect was sent to the Applicant dated 5 February 2010.[37]
[36] Exhibit 1, T Documents, T32, pages 155-161, Decision Statement and Notes of ARO.
[37] Exhibit 1, T Documents, T32, pages 152-161, Decision Statement and Notes of ARO.
On 19 September 2010, the Applicant’s Austudy was cancelled as he ceased being a full-time student.[38]
[38] Exhibit 1, T Documents, T60, page 296, Centrelink mainframe screen captures.
On 3 October 2018, the Applicant sought a first-tier review of the Respondent’s 2010 decision by the SSCSD of this Tribunal.[39] The SSCSD affirmed the decision under review on 28 February 2019.[40]
[39] Exhibit 1, T Documents, T55, page 251, Request for Statement.
[40] Exhibit 1, T Documents, T2, pages 8-12, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of the SSCSD decision by the General Division of this Tribunal by way of an application dated 12 April 2019.[41]
[41] Exhibit 1, T1, pages 1-7, Application for Review of Decision.
A Hearing was held by this Tribunal on 15 January 2020. At the Hearing, the Applicant was self-represented, appeared in person and gave evidence under affirmation.
ISSUES
The issue before the Tribunal is whether the Applicant was a long term income support student and eligible to be paid the higher rate of Austudy during the period 9 March 2009 to 19 September 2010.
To assess this issue, the Tribunal needs to consider whether the Applicant’s compensation payments had been correctly assessed and applied.
As at 9 March 2009, the basic single rate of Austudy was $371.40 per fortnight and the higher ‘long term’ rate was $451.10 per fortnight.[42]
[42] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 65, A guide to Australian Government payments – 1 January to 19 March 2009.
THE LAW
The relevant law in relation to this matter is found in the

Social Security Act 1991
(Cth) (the Act) and the Social Security (Administration) Act1999 (Cth) (the Administration Act). The following is a summary of the key requirements which relate to the Applicant.
To qualify for the higher rate of Austudy a person needs to show that they were in receipt of one of the payments specified in section 1067K of the Act for 26 weeks in the 39 weeks immediately prior to commencing studies. Section 1067K provides:
1067K Long term income support student
(1) A person is a long term income support student if the person:
(b) does not have a dependent child; and
(c) is either:
(i) undertaking study (whether as a full-time student or as a concessional study-load student) in respect of a course of education that the person has commenced after turning 21; or
(ii) a new apprentice and became a new apprentice after turning 21; and
(d) has, for at least 26 weeks in the period of 39 weeks that ended when the person commenced to undertake the study or became a new apprentice, been receiving one or more of the following:
(i) newstart allowance;
…
The 39 weeks immediately preceding when the Applicant commenced full time studies runs from 2 June 2008 to 1 March 2009.[43]
[43] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 2, paragraph 4.
Part 3.14 of Chapter 3 of the Act deals with compensation recovery. Section 1160 of the Act sets out that the general effect of Part 3.14 is as follows:
(1)This Part operates in certain specified circumstances to do one or more of the following:
(a) reduce a person’s compensation affected payment;
(b) render a person’s compensation affected payment not payable;
(c) require the repayment of some or all of the person’s compensation affected payment;
because of the receipt of compensation by the person or the person’s partner.
(2)This Part applies whether or not there is any connection between the circumstances that give rise to the person’s qualification for the compensation affected payment and the circumstances that give rise to the receipt of compensation by the person or the person’s partner.
Section 1173 of the Act deals with the effect of periodic compensation payments on the rate of a person’s compensation affected payment, setting out:
1173 Effect of periodic compensation payments on rate of person’s compensation affected payment
(1) If:
a.a person receives periodic compensation payments; and
b.the person was not, at the time of the event that gave rise to the entitlement of the person to compensation, qualified for, and receiving, a compensation affected payment; and
c.the person receives or claims a compensation affected payment in relation to a day or days in the periodic payment period;
the rate of the person’s compensation affected payment in relation to that day or those days is reduced in accordance with subsection (2).
(2) The person’s daily rate of compensation affected payment is reduced by the amount of the person’s daily rate of periodic compensation.
(3) The reference in subsection (2) to a daily rate of periodic compensation is a reference to the amount worked out by dividing the total amount of the periodic compensation payments referred to in paragraph (1)(a) by the number of days in the periodic payments period.
(4) If:
(a) a person receives periodic compensation payments; and
(b) at the time of the event that gave rise to the entitlement of the person to compensation, the person was qualified for, and was receiving, a compensation affected payment; and
(c) the person receives or claims a compensation affected payment in relation to a day or days in the periodic payment period;
the periodic compensation payments are to be treated as ordinary income of the person for the purposes of this Act.
Section 17 of the Act defines ‘compensation affected payment’ to include NSA and Austudy.[44]
[44] Section 17(1) makes reference to (c) social security benefit. Section 23(1) of the Act defines social security benefit to include (aac) austudy payment and (a) newstart allowance.
Section 1175 of the Act provides that if the rate of a person’s compensation affected payment is reduced under Part 3.14, the reduction applies to the person’s rate as reduced under the ordinary income test Module or the assets test Module of the relevant Rate Calculator.
Section 1176 of the Act provides that if an instalment of a compensation affected payment payable to a person is reduced under section 1173 because of the receipt of periodic compensation payments, those payments are not to be regarded as ordinary income of the person for the purposes of a provision of this Act other than point 1071A-4.
Section 643 of the Act provides that a person’s rate of NSA is to be the rate worked out using the Benefit Rate Calculator B at the end of section 1068. Section 1068-G1 in particular sets out the effect of ordinary income on the maximum payment rate.
Section 8(1) of the Act defines ordinary income to mean income that is not maintenance income or an exempt lump sum. Note 2 provides that amounts received as a series of periodic compensation payments may result in reduction of the person’s rate of social security pension or benefit under Part 3.14: if this happens the amounts are not counted as ordinary income (see section 1176).
The income cut out figure for NSA at 12 May 2008 was $821.84 per fortnight.[45]
[45] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 65, A guide to Australian Government payments 20 March-30June 2008.
Section 1184K of the Act provides a discretion for a person’s compensation payments to be treated as not having been made. Section 1184K provides:
1184K Secretary may disregard some payments
(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.
…
Section 80 of the Administration Act outlines when the Respondent may cancel or suspend a social security payment. It provides:
Cancellation or suspension determination
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
a. who is not, or was not, qualified for the payment; or
b. to whom the payment is not, or was not, payable ……;
the Secretary is to determine that the payment is to be cancelled or suspended.
…
EVIDENCE AND SUBMISSIONS
The Tribunal commends the Applicant on the amount of effort he put into preparing for the Hearing of this matter. The Tribunal considers that the Applicant’s submissions with reference to his dossier of evidence showed two things, firstly his level of engagement with the review process and desire to have the correct decision made, regardless of what that decision may be, and secondly, that his interactions with Centrelink as the administering agency of the Respondent has been difficult and caused him a great deal of angst and frustration.

The Tribunal considers that the Applicant provided honest and considered responses to all questions asked. This matter is one that turns on the application of the law. The facts show that during the period in question and the years leading up to it the Applicant had experienced a number of personal and health related challenges. It is not necessary to detail the full extent of those challenges in this decision, however it should be said that it was clear that the Applicant regularly put the needs of his parents and children before his own and as a result, his own health and ability to complete his study were adversely affected.
The Tribunal has reviewed and considered the material put before it and notes that the Applicant raised a number of issues in his written submissions both to this Tribunal and to other organisations in relation to the conduct of officers of the Respondent and processes followed in relation to his interactions with them. While in no way discounting the Applicant’s concerns, these issues are not matters that fall within the jurisdiction of this Tribunal. At the Hearing the Applicant expressed he now understood this and agreed that those other issues were not issues that could be addressed by this Tribunal.[46]
[46] Transcript, page 6.
The Applicant recommenced study on 2 March 2009 and claimed Austudy payments, as such the 39 week period that is considered to determine whether he should be paid higher than the basic rate of Austudy runs from 2 June 2008 to 1 March 2009. During this period the Applicant was at various times claiming and receiving NSA and periodic compensation payments.
At Hearing the Applicant took the Tribunal through his understanding of the social security legislation, making reference to a preclusion period being applied and contended that the Respondent did not apply Part 3.14 of the Act in suspending or cancelling his NSA correctly. The crux of the Applicant’s contentions was that he does not think his compensation payments were correctly treated by the Respondent.
The Respondent contended that the Applicant could not be paid the higher rate of Austudy payments as in the relevant 39 weeks period the Applicant had not been in receipt of any of the payments specified in section 1067K(1)(d) of the Act for the required 26 weeks.[47]
[47] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 78-79.
The Respondent contended that this was the case as the Applicant’s NSA was cancelled from 12 May 2008 following his receipt of periodic compensation of $484.00 per week or $968 per fortnight from that date.[48] Further although the Applicant received NSA for 14 weeks from 16 September 2008 to 22 December 2008 these payments were subsequently recovered following the restoration of the Applicant’s compensation on the basis that he was not at that time eligible for NSA.[49]
[48] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 79.
[49] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 81-82.
The Respondent agreed with the Applicant that his periodical compensation payments were to be considered in line with section 1173 of the Act and treated as ordinary income. The Respondent contended, however, that on the basis of the rate of periodical compensation payments received by the Applicant he had no entitlement to NSA. The Respondent submitted that the initial rate of the Applicant’s periodical compensation payments was $484.00 a week or $968.00 per fortnight and were increased to $554.65 per week or $1,109.30 per fortnight,[50] these amounts were in excess of the relevant income cut off amounts for NSA, meaning that the Applicant was not entitled to receive NSA.[51]
[50] It is noted that there was some confusion created around the rates of the Applicant’s periodical compensation payments by the Centrelink notes, however it was agreed at Hearing that the figures set out above were correct.
[51] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraphs 78-92.
When asked at Hearing, at what point is NSA cancelled, the Respondent told the Tribunal that NSA is ordinarily cancelled straight away when a person gets a full-time job, however:[52]
If someone gets compensation from the WorkCover authority, similarly there’s a discretion to be exercised; if the payment is such that the rate is nil then there is an option to suspend or cancel. That is section 80 of the Administration Act. Usually, however, any suspension is only for limited period of time an eventually payments will be cancelled, usually after a 12 week period. If somebody, for example, is only working on a casual basis, then they may be kept on record as if they have a NSA but it is actually paid at a nil rate for up to 12 weeks after which payments are automatically cancelled.
[52] Transcript, pages 36 and 37.
CONSIDERATION
Was the Applicant eligible to be paid the higher rate of Austudy during the period 9 March 2009 and 19 September 2010?
It is clear to the Tribunal that the Applicant was in receipt of NSA at the time he sustained his workplace injury on 29 April 2008 and up until 2 June 2008 when the Respondent suspended it. The Applicant’s NSA was subsequently cancelled on 10 June 2008 with effect from 12 May 2008.
The Applicant was in receipt of periodical compensation payments from WCQ for the period 12 May 2008 to 15 September 2008 when these payments were suspended. WCQ restored the Applicant’s periodical compensation payments on 22 December 2009 and back paid him for the suspended period. The Applicant’s periodical compensation payments continued until being stopped on 27 April 2009.
The Applicant was in receipt of NSA during the time his periodical compensation payments from WCQ were suspended (being between 16 September 2008 and 22 December 2008) and the amounts paid to him by the Respondent during that time were recovered when WCQ reinstated and back paid his payments.
Consequently, for the purposes of determining the Applicant’s ongoing entitlement to or rate of NSA from 12 May 2008 when his periodical compensation payments commenced, it is not in contention that he was receiving a compensation affected payment (being NSA) at the time of his injury.
As such the income test concession provided for by section 1173(4) of the Act applies to the Applicant. This treats the Applicant’s periodical compensation payment amounts as ordinary income for the purposes of establishing his entitlement to NSA, rather than reducing his entitlement on a dollar for dollar basis.
It is not appropriate for a person to receive social security payments as well as income from employment or periodical compensation payments unless that income is below the maximum income rate. As such it is appropriate that the Applicant’s rate of NSA during that period was reduced accordingly.
The effect of section 1175 of the Act is that any reduction in a person’s compensation affected payments as a result of section 1173(4) is calculated under the ordinary income test Module of the relevant rate calculator. In the present case, the relevant rate calculator for NSA is set out in section 1068 of the Act.
The Applicant raised questions regarding the operation of the definition of ordinary income in section 8 of the Act and section 1176 of the Act, which he says mean that his periodical compensation payments should not be assessed as ordinary income.
The Tribunal can see the Applicant’s point of view; however, the rules of statutory interpretation operate so that specific provisions prevail over general provisions. As such sections 1173 and 1175 of the Act operate to reduce a person’s rate of social security payments or benefits by applying the person’s rate of periodical compensation payments as either ordinary income or as a dollar for dollar offset when calculating the relevant rate of the social security payment or benefit. Section 8 of the Act notes that section 1173 may result in a reduction to a person’s rate of social security pension or benefit and that section 1176 precludes the payments from being considered as ordinary income other than in relation to considering alibility for a health care card.
As such the Tribunal considers that the rate of the Applicant’s NSA between 12 May 2008 and 27 April 2009 (the period for which he received periodical compensation payments) should be calculated pursuant to the Benefit Rate Calculator B of section 1068 of the Act with the Applicants periodical compensation payments being considered as ordinary income for the purposes of the calculation.
The Tribunal notes that a person’s rate of NSA is reduced by their ordinary income up until a point where their income reaches a cut-off level. Being their income is at a level that reduces their entitlement to NSA to zero.
At 20 March 2008, the income cut-off for NSA was $821.84 per fortnight.[53]
[53] Exhibit 2, Secretary’s Statement of Facts & Contentions, Annexure ST1, page 65, A guide to Australian Government payments – 1 January to 19 March 2009.
Based on the evidence before the Tribunal at all material times that the Applicant was being paid or entitled to be paid periodical compensation payments, the amounts of those payments exceeded the NSA income cut-off threshold. The Applicant’s periodical compensation payments were paid at the rate of either $968.00 or $1,109.30 per fortnight.
As such during the period 12 May 2008 and 27 April 2009 the Applicant was not entitled to receive a NSA payment based on the income test rate calculation as applied pursuant to sections 1173 and 1175 of the Act.
The issue for the Tribunal to consider at this point is whether as a result, the Applicant’s NSA should have been suspended or cancelled and whether this would have made a material difference to whether the Applicant would have been receiving NSA for at least 26 weeks during the period 2 June 2008 to 1 March 2009 for the purposes of section 1067K of the Act.
The Tribunal notes that section 80 of the Administration Act provides that if the Secretary is satisfied that a social security payment is being, or has been, paid to a person: who is not, or was not, qualified for the payment; or to whom the payment is not, or was not, payable, the Secretary is to determine that the payment is to be cancelled or suspended.[54] As such it was open to the Respondent to either suspend or cancel the Applicant’s NSA from 12 May 2008 when NSA was no longer payable to him (as his eligible rate of NSA was zero). The Tribunal accepts the Respondent’s submission that even if the Applicant’s NSA was suspended, rather than cancelled on 10 June 2008, it would have likely have been cancelled after a maximum 12 week suspension. The Tribunal considers this position to be consistent with the principles of certainty for both the Respondent and Applicant in relation to eligibility and operation of social security benefit payments.
[54] Section 80(1) of the Administration Act.
In this situation, the Applicant may have been considered to still be eligible to receive NSA although suspended for approximately 9 weeks of the relevant 26 week period, however he was not receiving or entitled to receive a NSA payment during that period.
While the Applicant received NSA for the period between 16 September 2008 and 22 December 2008, these payments were recovered by the Respondent in full as the Applicant’s periodical compensation payment was back paid for the period. The Applicant’s NSA was only reinstated by the Respondent on the basis that he was not receiving periodical compensation payments. As such the Tribunal, does not consider it could be said that the Applicant was in receipt of or entitled to receive NSA during this period.
The Tribunal therefore finds that the Applicant was not receiving or entitled to receive an amount greater than zero of NSA during any period between 2 June 2008 and 1 March 2009 and it was reasonable for his NSA to be cancelled with effect from 12 May 2008 or at a date not more than 12 weeks after that date. Consequently, the Applicant did not meet the requirements of section 1067K of the Act, in that he was not in receipt of NSA payment for 26 weeks of the relevant 39 week period and could not be considered to be a long term income support student at the time he commenced his study or became eligible to receive Austudy.
The Tribunal acknowledges that throughout the decision-making process, up until the provision of the Respondent’s Statement of Facts, Issues and Contentions relating to these proceedings it was confusing as to what tests were being applied and when, by the officers of the Respondent. It is the Tribunal’s view however that the end outcome was the correct outcome.
Further the Tribunal finds that no preclusion period applied to the Applicant during the period between 12 May 2008 and 27 April 2009. Despite some of the references in the evidence before the Tribunal referring to a preclusion period, a preclusion period did not apply – rather the Applicant’s eligibility to NSA ceased based on the rate of periodical compensation payments he received.
Are special circumstances present to treat the Applicant’s periodical compensation payments as having not been made?
As the Tribunal, has found that Applicant’s periodical compensation payments were correctly dealt with by the Respondent, it must consider whether there are any special circumstances that would make it appropriate to treat part or all of the Applicant’s compensation payment as not having been received.
What does ‘special circumstances’ mean?
Section 1184K of the Act provides a discretion to treat all or part of the compensation payment as having not been made where special circumstances exist.
The Act does not provide a definition of special circumstances. However, the general proposition, established by relevant Federal Court decisions, make it clear that ‘special’ means something different from the usual or ordinary.
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal held at page 3:
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 which 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 Ivovic and Director-General of Social Services (1981) 3 ALN No61 at N95, the Tribunal stated at pages N96-N97:
Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances” …., the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case … In the exercise of the discretion …., the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the …. Act.
In Groth and Secretary, Department of Social Security [1995] FCA1708, the Federal Court stated at paragraph [12]:
The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss …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. … 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 ….
Von Doussa J remarked in Department of Social Security v Smith (1991) 30 FCR 56 at 61 that the Compensation Recovery Scheme is intended to operate to provide “a fair balance of the interests of the recipient of the payment with the competing interests of others in the community whose needs must be met as far as possible from a finite budget allocation for social security measures.”
Do special circumstances exist?
The Applicant told the Tribunal that he was not trying to “double dip”, it is not about him trying to receive two payments at one time. He would have never accepted a WCQ payment and a Centrelink payment at the same time. He has never intentionally done that – so it is not about “double dipping” for his section 1184K situation. He said it was more about eligibility for something, that he has struggled with. [55]
[55] Transcript, page 26.
The Applicant told the Tribunal about his difficult family and health situation from 2007 to 2009 which included his father being ill and passing away, legal issues of which he engaged in the legal process to overcome, caring for his mother, struggling while trying to meet his family commitments and study and work part time, injuring himself at work, difficulties with the worker’s compensation process and dealing with Centrelink, caring for a special needs child and trying to be the best father he could be to his children. The Applicant contended that he should not be penalised for having a workplace injury and his NSA should not have been cancelled.
The Applicant confirmed that the following summary by Member Juhasz in relation to his circumstances during the relevant period was an accurate reflection at [21]:[56]
[The Applicant] described considerable setbacks he experienced in his life at around the time of the original decision. He had suffered a workplace injury just as he was attempting to return to study and supplement his study with earned income. He had weekend care of his daughter and his son who has physical and intellectual disabilities. His father passed away in early 2008 after having been in a traffic accident in 2007 placing him under significant emotional stress. He has since been diagnosed with bipolar effective disorder and depression which also affected him throughout this period…..
[56] Exhibit 1, T Documents, T2, pages 11-12, Decision of the SSCSD.
The Respondent contended that the Applicant’s circumstances did not constitute special circumstances to the extent that the discretion contained in section 1184K of the Act should be exercised in relation to the periodic compensation paid to him. The Respondent submitted they agreed with the findings of the SSCSD at [23] that provided:[57]
The compensation preclusion period was applied with reference to WorkCover payments made to assist [the Applicant] whilst he was not in work and unable to work due to injury. The Tribunal cannot find that an inability to receive the higher rate of Austudy was a result that was necessarily so unfair, unintended or unjust to place [the Applicant’s] circumstances out of the ordinary. The Tribunal sympathises with [the Applicant’s] circumstances and the effort he took to educate himself late in life however in considering all relevant matters that section 1184K does not apply.
[57] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 119-121.
Having considered the evidence before it, the Tribunal agrees with the sentiment of the SSCSD. The Tribunal acknowledges the difficulties that the Applicant faced and worked through over a number of years leading up to 2008 and during the review processes and considers that the Applicant’s attitude towards his situation and commitment to his family are commendable. While the Tribunal sympathises with the Applicant’s circumstances, it does not consider that they constitute special circumstances to the extent that something unfair, unintended or unjust occurs by the Applicant not being paid the higher rate of Austudy for the period 9 March 2009 to 19 September 2010. Further to find special circumstances in this matter would be inconsistent with and frustrate Part 3.14 of Chapter 3 of the Act which deals with compensation recovery.

For the purposes of section 1184K of the Act, the Tribunal does not consider it appropriate to treat the whole or part of the Applicant’s compensation payment as having not been made or not been liable to be made in the present circumstances.
Other considerations
Matters were bought to the Tribunals attention by the Respondent and the Applicant in relation to limitations as to when arrears may be payable to a person who seeks review of decisions relating to the payment of social security benefits.[58] As the Tribunal has found that the decision to pay the Applicant the basic rate of Austudy during the period 9 March 2009 to 19 September 2010 was correct, no arrears payments arise. As such it is not necessary for the Tribunal to consider the limitations that may arise in relation to the payment of arrears.
[58] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11-13, paragraphs 122-143; Exhibit 3, Applicant’s Statement of Facts and Contentions, pages 22-23, paragraphs 157-168.
CONCLUSION
For the reasons set out above the Tribunal finds that the Applicant did not:
(a)receive and was not entitled to receive a rate above zero of NSA during the period 12 May 2008 and 27 April 2009 as a result of the rate of periodical compensation payments he received from WCQ and that it was not appropriate to exercise the discretion in section 1184K of the Act to treat his periodical compensation payments as having not been made; and
(b)satisfy the requirements of section 1067K of the Act and cannot be considered to have been a long term income support student when he recommenced his study on 3 March 2009. Consequently, the Applicant was not entitled to receive a rate, above the basis rate of Austudy for the period 9 March 2009 to 19 September 2010.
The Tribunal affirms the decision under review.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..............................[SGD]................................
Associate
Dated: 28 May 2020

Date of hearing: 15 January 2020

Applicant: In Person

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Services Australia

[2020] AATA 1505

28 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	15 January 2020
Applicant:	In Person
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Services Australia