Woods and Secretary, Department of Family and Community Services
[2002] AATA 277
•22 March 2002
DECISION AND ORAL REASONS FOR DECISION [2002] AATA 277
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/27
GENERAL ADMINISTRATIVE DIVISION )
Re MARY WOODS
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Date22 March 2002
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision to treat so much of the compensation payment as not having been made, as is necessary to ensure that the preclusion period will be reduced to the period 2 August 2001 to 2 April 2002.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – lump sum –whether applicant is subject to a compensation preclusion period – if preclusion period was properly calculated – "special circumstances" – whether discretion available in section 1184K of the Act may be exercised in the applicant's favour
Social Security Act 1991 section 1184K
Secretary, Department of Social Security and Anderson (AAT 11920, 30 May 1997)
Secretary, Department of Family and Community Services and Szoke [2001] AATA 353
ORAL REASONS FOR DECISION
22 March 2002 Senior Member WJF Purcell
This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 3 January 2002, which affirmed the decision of an Authorised Review Officer of 22 November 2001, to impose upon the applicant a compensation preclusion period for Age Pension from 2 August 2001 to 5 June 2002.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with an exhibit tendered by the applicant. The applicant, who gave oral evidence, was represented by Mr de Rohan and called Dr M Arnold, her treating General Practitioner, by way of telephone link up. Mr Kilderry represented the respondent (the Department).
The applicant, who is 62 years of age, was involved in a motor vehicle accident in May 1991 and suffered, consequently, a work accident in 1997 for which she was receiving compensation, in the form of weekly payments, from her employer's insurer for 3 years prior to the settlement of her compensation claim on 17 July 2001.
On 30 August 2000, the applicant received an interim payment of $18,701.21 and on 17 July 2001, settled the balance of her claim, including $26,900.00 to redeem liability to pay periodic compensation, for a total amount of $31,859.01.
The applicant had been informed that as a result of settlement, she would be precluded from benefit, and she was referred to a financial adviser who saw her on 12 July 2001. On the basis that she would receive $31,859, the financial adviser conferred with the Departmental officer and the preclusion period was calculated at 28 weeks.
On 1 August 2001, the applicant's weekly compensation payments ceased, and on the same day the Department calculated a preclusion period of 44 weeks from 2 August 2001 to 5 June 2002, based on the total of the 2000 and 2001 payments of $50,560.22 and a letter was forwarded on 2 August 2001. She received the lump sum compensation payment on about 2/3 August 2001.
The applicant says that she had calculated that on the basis of the financial adviser's advice, her lump sum would last for 28 weeks at a budgeted rate of $600 per week. She says that she continued under this impression until she received correspondence from the Department, forwarded on by Australia Post to her new address, in October 2001. The documentary evidence discloses that the applicant was in contact with the Department on 1 August 2001 regarding her application for Age Pension, and subsequently on 10 August 2001 regarding the amount of the compensation lump sum and the length of the preclusion period.
The applicant has been treated for some years for depression and pain, and had been taking the anti-depressant, Tryptanol, for a period of time. She gave oral evidence as to her medical problems, her unexpected medical conditions, which have arisen and required surgery subsequent to August 2001, and about the expenditure of the two lump sum payments. She is a poor historian and it was most difficult to ascertain from her somewhat disjointed evidence, the sequence of events. I do not consider however, that there was any attempt on her part to mislead the Tribunal nor to exaggerate her health and monetary problems.
It is not possible in these brief reasons to outline all the details of the expenditure of funds; suffice it to say that because of the injuries suffered in 1991 and subsequently in 1997, the applicant's ability to earn has been severely reduced; and that the sequence of injuries, combined with availability of only reduced hours of work from 1995 onwards, has meant that she has been forced to sell her home, and to move twice to rented accommodation, thereby incurring removal fees and further rental and bond assurance costs.
The applicant outlined in evidence that since she received the net payout of $18,000 in August 2001 she has expended $11,000 on the following items:
Trip to Sydney $2,000
Vet's fees for pet 1,000
Jewellery 1,200
Moving – bond & rent 1,400
Clothes, make up, etc 2,000
Ring (now in pawn shop) 950
Son's birthday present 1,000
Xmas presents 1,200
Gas 250
In addition, in October 2001 she prepaid her rental to January 2002. She has outstanding credit card debts of $2,500 and $3,000, a total of $5,500, and by 31 December 2001, her bank account balance was 31 cents.
The applicant said in evidence that at all times, until the SSAT handed down its decision on 3 January 2002, she had been convinced that the Department would take account of her submissions and reduce the preclusion period. Her application was unsuccessful, and she applied to this Tribunal for a review, and on 21 February 2002 she attended a preliminary conference at the Tribunal, where the Departmental representative advised her to contact Welfare Rights who might be able to represent her. She subsequently took an overdose of her anti-depressant, Tryptanol. She took 14 tablets – her normal dose being 2 tablets.
The applicant denied, in evidence, that this was a suicide attempt. She said, in effect, that she just "snapped". She felt "closed in", and just wanted to "go", and when she took the drug she felt a high and was very agitated. She says that she thought the Tryptanol would enable her to have a sleep and forget everything. She says that she suffered no ill effects, but consulted her treating General Practitioner, Dr Arnold, as soon as she could.
Dr Arnold gave evidence that he saw the applicant on 26 February 2001. She had been using Tryptanol for a number of years to treat depression, and to assist in pain relief. He has taken her off Tryptanol. The "drying out" period has now finished, and he has changed her medication to Zoloft, which she will commence within the next day or two. He considers that the stress she was suffering in relation to this matter with the Department is the major stressor, and that is why he understood today's appeal was proceeding. He considered that a change in medication, combined with the relief of the applicant's present financial stressor, would assist in her recovery. Dr Arnold said that when he saw her on 26 February 2002, she was in a distraught state and he referred her to the Acute Crisis Intervention Service at the Queen Elizabeth Hospital. He continues to have ongoing concerns regarding her mental health.
The applicant contends that the following facts should be taken into account in relation to "special circumstances" pursuant to section 1184K of Social Security Act 1991 (the Act):
she has none of the compensation monies left, and is in immediate financial hardship;
she has attempted to offset unexpected expenses during the preclusion period by selling her assets, including her car and jewellery;
she has had unexpected illness requiring hospitalisation on five occasions during part of the preclusion period, which has markedly affected her ability to find work and has caused additional medication expenses; and
she has been treated for some time by her doctor with anti-depressants.
It is the applicant's contention that her despair and hopelessness over her financial position, and her circumstances generally arising out of the preclusion period which gave rise to the overdose, might lead the Tribunal to conclude that her circumstances are "special" as in the case of Secretary, Department of Social Security and Anderson (AAT 11920, 30 May 1997), and that the discretion available in section 1184K of the Act might be exercised in her favour.
Section 1184K 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.
(2) If:
(a)a person or a person's partner receives or claims a compensation affected payment; and
(b) the person receives compensation; and
(c)the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person's or the person's partner's receipt of, or claim for, the compensation affected payment;
the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1)."
The Department contends that there are no "special circumstances" which would make it appropriate for the Tribunal to disregard some or all of the compensation payment. The applicant, it maintains, is in an impoverished state because of her failure to make financial provision for the lump sum preclusion period. Although she took advice from a financial counsellor on 12 July 2001, it was recommended that she contact Centrelink to confirm the actual preclusion period. By letter dated 2 August 2001 she was advised of the correct preclusion period, and the fact that she did not make appropriate financial provision for herself is not a "special circumstance" for the purposes of section 1184K of the Act.
The Department contends, finally, that the applicant's treatment for depression does not in itself amount to "special circumstances" and it relies on the matter of Secretary, Department of Family and Community Services and Szoke [2001] AATA 353.
In my view, the applicant has been so worn down by the series of misfortunes that have befallen her, that by mid-February 2002 she was at the end of her tether. That is not to say that some of her present misery has not arisen from her clear inability to manage her meagre finances. I consider however, that the despair and hopelessness which has overcome her, and led to her taking an overdose are circumstances that, in accordance with the decision in Anderson, are sufficiently special for the discretion available in section 1184K of the Act to be exercised in her favour.
For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision to treat so much of the compensation payment as not having been made, as is necessary to ensure that the preclusion period will be reduced to the period 2 August 2001 to 2 April 2002.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 22 March 2002
Date of Decision 22 March 2002
Counsel for the Applicant Mr M de Rohan
Solicitor for the Applicant Legal Services Commission
Counsel for the Respondent Mr R Kilderry
Solicitor for the Respondent Advocacy & Administrative Law Team
1
1
0