Zappavigna and Secretary, Department of Family and Community Services

[2002] AATA 1315

DECISION AND REASONS FOR DECISION [2002] AATA 1315

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2002/1012

GENERAL ADMINISTRATIVE  DIVISION       )          
             Re     Bruno Zappavigna        
  Applicant
           And    Secretary, Department of Family and Community Services         
  Respondent

DECISION

Tribunal       Ms SM Bullock, Senior Member   
Date              6 December 2002

PlaceSydney

Decision      For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 affirms the decision under review.

..............................................
  Ms SM Bullock     
   Senior Member            
CATCHWORDS

SOCIAL SECURITY – Compensation Charge – Lump Sum Compensation Settlement – Whether Applicant in receipt of Sickness Benefit or Special Benefit – Whether compensation charge should be recovered

LEGISLATION

Social Services Act 1947 ss 115, 117, 129

Social Security Act 1947 s152

REASONS FOR DECISION

Ms S M Bullock, Senior Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of Senior Member SM Bullock.
Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  4 December 2002
Date of Decision  6 December 2002
Representative for Applicant     Self-Represented        

Representative for Respondent Ms R Quinn, Departmental Advocate

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2002/1012
BY MS S.M. BULLOCK, SENIOR MEMBER
ZAPPAVIGNA  and
SECRETARY, DEPARTMENT OF FAMILY and
COMMUNITY SERVICES
SYDNEY
FRIDAY, 6 DECEMBER 2002

MS BULLOCK:   This is the delivery of a decision in the matter of the Applicant, Bruno Zappavigna, and the Respondent, the Secretary, Department of Family and Community Services ("the Department").  The matter number is N2002/1012. 

This decision relates to an application for a review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Bruno Zappavigna, of a decision made by the Social Security Appeals Tribunal ("the SSAT"), which decided on 14 June 2002 to affirm a decision of an Authorised Review Officer of the Department, not to refund an amount of $23,562.32 which was a compensation charge to be recovered from Mr Zappavigna's compensation paid to him in 1982. 

This amount represented departmental benefits paid to Mr Zappavigna during the period 26 September 1978 until 22 April 1982. The Authorised Review Officer's decision affirmed a decision of a delegate of the Respondent Department which was made on 18 February 2002 which appears at T9 in the T Documents. A Hearing was held before the Tribunal in Sydney on 4 December 2002. Mr Zappavigna was self-represented and an accredited interpreter in the Italian language provided assistance during the entire hearing.

Also providing evidence with the assistance of the Italian interpreter was Mrs Catarina Zappavigna, Mr Zappavigna's wife, and a friend, Mr Giovanni Roperti. The Respondent, the Department, was represented by Ms Rachael Quinn, a Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") which comprised documents T1 through to T22 and a number of exhibits which I will detail.

Exhibit A1 is a letter to the Solicitors, Beston & Riordan, from Mr N. Cullen, Manager of the Compensation Recoveries Section of the Department. That letter was dated 8 December 1989.  Exhibit A2 was a letter to Mr Zappavigna from his Solicitors, Beston & Riordan.  That letter was dated 1 October 1982.  There are three exhibits from the Respondent.  Exhibit R1 was the Respondent's Statement of Facts and Contentions dated 30 October 2002.  Exhibit R2 was an extract from the Guide to Social Security Law and specifically page 3, which dealt with unemployment and Sickness Benefit during the period under review.  It was printed on 29 October 2002.  Exhibit R3 is a bundle of documents in relation to compensation for Mr Zappavigna which had various dates.

The issues in this matter relates to whether or not during the period 26 September 1978 until 22 April 1982 Mr Zappavigna was in receipt of Sickness Benefit and if so was the amount of Sickness Benefit correctly recovered under section 115 of the Social Services Act 1947. If the Tribunal found that the benefit paid was not Sickness Benefit but Special Benefit as asserted by Mr Zappavigna, then this Special Benefit amount would not have been recoverable.

The legislation which must be applied in making a determination in this matter falls under the Social Services Act 1947 ("the 1947 Act") which was in force at the time Mr Zappavigna was being paid the departmental benefit. Section 115 of the 1947 Act, prior to 1 August 1982, provided authority for the Department to recover Sickness Benefit during the period if compensation had been paid, in Mr Zappavigna's case the period 26 September 1978 until 22 April 1982, during which it is contended by the Department that he received Sickness Benefit or by Mr Zappavigna that he received Special Benefit.

If Mr Zappavigna is found not to have been in receipt of Sickness Benefit but Special Benefit, as he asserts, then there is no legislative provision during that relevant period for the Special Benefit to be recovered.  Subsection 115(4A) of the 1947 Act provides that         the Secretary of the Department may release the whole or part of a Sickness Benefit from repayment in the event of there being special circumstances

Section 117 of the 1947 Act deals with qualification for Sickness Benefit and in essence the Sickness Benefit is payable to a person if the Secretary is satisfied that he or she is incapacitated for work by reason of sickness or accident. Section 129 of the 1947 Act refers to the qualification for Special Benefit and provides relevantly that Special Benefit is not payable to a person to whom Sickness Benefit is payable.

I will detail some background matters in this particular application for review.  On 19 May 1974 Mr Zappavigna suffered an injury at work while employed at Telecom Australia.  His incapacity is recorded as "spondylitis", which is found at reference T4, page 10.  At some point in 1974 Mr Zappavigna commenced receiving weekly compensation payments in respect of his workplace injury.  These payments ceased at some time prior to September 1978.  At some time in 1981 Mr Zappavigna commenced an action for restoration of arrears of weekly compensation. He received a lump sum compensation amount of $29,287.68.  This was during the period 26 September 1978 until 22 April 1982, which is found at reference T5, page 12.

On 2 June 1982 a letter was sent from the then Department of Social Security to Telecom Australia advising that an amount of $23,562.32 was recoverable from Mr Zappavigna's compensation settlement and should be refunded to the Department under section 115 of the 1947 Act. That is found at reference T4 page 10. Later that month on 30 June 1982 Mr Zappavigna commenced receiving weekly compensation from Telecom and that again is found at T5, page 12.

On 21 September 1982 a letter was sent from Telecom to the solicitors acting for Mr Zappavigna indicating that an amount of $23,562.32 was to be paid to the Department from the compensation settlement (T5, page 12).  On 1 October 1982 Mr Zappavigna was sent a letter by his solicitors and that is found at Exhibit A2, which enclosed a copy of a letter from Telecom dated 21 September 1982, which is at T5, and also enclosed a letter from the Department of Social Security dated 2 June 1982 which is found at T4.  Mr Zappavigna was advised by this correspondence that any Sickness Benefit received after 23 April 1982 was repayable.  This advice was found to be an acceptable explanation by the solicitor. 

On 13 February 2002, some 20 years after the period under review, Mr Zappavigna sought a refund of the compensation charge plus interest. That is found at T7 page 15.  On 18 February 2002 an original decision-maker of the Department affirmed the decision under review, and that is found at T9, page 17.  On 18 March 2002 Mr Zappavigna sought further review on the basis he was paid Special Benefit during the period which was not legally recoverable from his compensation payment. That is found at T11, page 19.

On 9 April 2002 a letter was sent by a Centrelink delegate to Mr Zappavigna advising that the decision under review had been affirmed as he was in receipt of Sickness Benefit during 1982 and this was recoverable from his compensation payment. That is found at T12, page 20. On 24 April 2002 an Authorised Review Officer of the Department affirmed the decision under review on the basis that at the time of the original decision section 152 of the Social Security Act 1947 provided for both Sickness Benefit and Special Benefit to be recovered. This application of section 152 of the 1947 Act was not correct, as has been discussed by the SSAT and the Advocate appearing in this matter.

On 14 June 2002 the SSAT affirmed the decision under review on the basis that at the time of the original decision section 115 of the 1947 Act provided for Sickness Benefit to be recovered from compensation payments and Mr Zappavigna was in fact in receipt of Sickness Benefit. On 17 July 2002, Mr Zappavigna appealed to the Administrative Appeals Tribunal and that brings us to this matter before me.

Turning to the evidence provided by Mr Zappavigna, he stated that he came to Australia in 1968. He was not able to claim any benefits from the Department for six months. Mr Zappavigna told the Tribunal that after injuring his back in about 1974 in a motor vehicle accident coming home from work at what was then called the PMG, Postmaster-General's Department, now Telstra, that he did not return to work after that accident and has not worked since.  Mr Zappavigna told me that he was paid compensation for a period, he thought from 1976/77 although he noted that it was very hard for him to remember dates.

Mr Zappavigna stated that he then went to the Department of Social Security to fill in a Special Benefit claim form because he was not working.  He had not previously sought any assistance from the Department.  Mr Zappavigna stated that he asked what benefit he should claim and he was told that Special Benefit was what was appropriate because then, if he claimed that benefit, he would not have to return any money he received from this benefit to the Department.  He was told that it was a Special Benefit because of his injuries.

Mr Zappavigna was told by a departmental officer that the relevant benefit for him to go on was Special Benefit.  He was told that he needed a doctor's report or certificate to say that he was unable to work.  Mr Zappavigna stated that he did in fact provide a medical certificate from his doctor, who he thought was Dr Kelly of Merrylands.  He stated that he was not asked to send in any further medical certificates or reports.  He did state that during the period he was on what he claimed to be Special Benefit he had appointments with the government doctor.

He believed he was on Special Benefit from 1976 or 1977 until 1982.  Mr Zappavigna stated that he had sometimes used the term "Special Sickness Benefit" and by that he meant exactly the same as when he referred to Special Benefit. They were interchangeable terms as far as he was concerned.  Mr Zappavigna stated that during the period he received this Special Benefit the type of payment never changed.  Mr Zappavigna was shown by Ms Quinn a document called a "Listing of USB Tax History Master File" which is found at T3, page 9. 

Mr Zappavigna identified himself on this document as Bruno Zappavigna of 108 Farnell Street, Merrylands for the period documented in T3 as 3 July 1981 until 19 May 1982.  He agreed again that it was his address. The listing also had another name, Bruno Zappavigna of a different address and Mr Zappavigna noted that the other address was not his nor had he lived there.  He noted that there is another person who does indeed hold the same name as him.  Mr Zappavigna has been concerned that perhaps he had been wrongly mixed up with the other Mr Bruno Zappavigna and that perhaps benefits attributed to the other Mr Zappavigna had been attributed to the Applicant.

The listing for the Applicant at page 9 of the T Documents has the initials in capital letters, and I quote, "SB".  Ms Quinn pointed out to the Tribunal and to Mr Zappavigna from a departmental policy document that at the relevant time SB, that is in capitals, SB, meant Sickness Benefit and not Special Benefit.  The Tribunal was referred to Exhibit R2, page 3, at point No 4. 

Mr Zappavigna was asked about a letter dated 2 June 1982 sent by the Department of Social Security to Telecom. That is found at T4, page 10. A copy of this letter had been sent to Mr Zappavigna by his solicitors on 1 October 1982, as noted in Exhibit A2. Mr Zappavigna did not recall this letter but noted that if his solicitor had sent the letter he would have read it. The departmental letter stated that, having noted that Mr Zappavigna's workers compensation claim had settled, there was an amount of $23,562.32 which was recoverable under section 115 of the 1947 Act. This is the section that applied to the recovery of Sickness Benefit.

Mr Zappavigna was asked about a further letter of 2 June 1982 from the Department of Social Security to Telecom which specifically referred to the Department's claim for $23,562.32, and this represented an amount of Sickness Benefit paid under the 1947 Act to the beneficiary.  That reference is found at T4, page 11. Mr Zappavigna stated that if he had read this he would have queried it.  He did not remember seeing this letter, however.  Mr Zappavigna stated that he had read his solicitor's letter wherein it was noted that Mr Buckley had advised that he, that is Mr Buckley, was satisfied with the explanation of the Department that the money repaid to that Department represented a payment of Sickness Benefit, a refund of a payment of Sickness Benefit made to Mr Zappavigna.

Mr Zappavigna stated that he tried to talk to Mr Buckley at the time about this as he thought that the Department's approach had been incorrect.  Mr Buckley only made excuses, by which Mr Zappavigna meant that he was too busy or he had a conference.  Mr Zappavigna told the Tribunal that he never actually told Mr Buckley that he was dissatisfied with the Department's actions.  It was then in February 2002 that Mr Zappavigna sought to have the $23,562.32 refunded plus interest.  He stated that he did this because he was looking through some papers at that time. 

He further stated that he had been waiting since 1982 for the Department to correct its error, that is the error of taking the money out of his compensation payment.  Mr Zappavigna stated that he trusted the Department to find this error and then rectify it. Mr Zappavigna acknowledged that the Department would not necessarily have known of his dissatisfaction over its officers' actions during the last 20 years because he had not advised the Department prior to February 2002 of his grievance.  The Department should have known, Mr Zappavigna stated, because it should have kept all of the documents such as his original claim form, medical reports and such like.  The disposal of documents policy after a certain time was explained to Mr Zappavigna.  He also acknowledged that he had not himself kept documents after all this time. 

Mr Zappavigna was asked about whether or not he had any special circumstances such as any physical or mental health problems, any financial difficulties which he could put forward to support him having special circumstances and hence the enactment of the discretionary provisions to refund a part of the whole of a Sickness Benefit which had been recovered.  Mr Zappavigna stated that his special circumstance was that he was unable to work and he just wanted the matter to end.

I turn now to the evidence of Mrs Catarina Zappavigna.  Mrs Zappavigna stated that she married her husband in 1970.  She believed that Mr Zappavigna claimed benefits from the Department in 1985 or 1987 but stated that she has great difficulty remembering such matters. She is a family woman and does not remember things very well.  Mrs Zappavigna stated that she was with her husband and her husband's friend, Mr Giovanni Roperti, when Mr Zappavigna was filling out a claim form. There was no interpreter present at this time but Mr Roperti understood English.

Mrs Zappavigna stated that she does not speak English well but she understood the heading at the top of the claim for which her husband had completed. She informed the Tribunal that the heading on the claim form was "Special Sickness Benefit".  Furthermore, she told me that her husband also had explained to her that he was claiming Special Sickness Benefit.  Mrs Zappavigna stated that her husband claimed this benefit because he had no other means of financial support. He was unable to work because of his injuries.

Mrs Zappavigna did not remember her husband attaching a medical certificate to the claim for but she did recall that during the time that Mr Zappavigna was receiving benefits he saw a number of government doctors.  She also recalled that he did receive review forms from the Department in relation to that benefit during the period 1978 until 1982.  Mr Zappavigna remembered her husband receiving $30,000.00 from worker's compensation and then having to pay approximately $23,000.00 to the Department.  Mr Zappavigna told her at the time that he should not have had to repay it because when he filled in the claim form he was told by a departmental officer that he would not have to repay any money.

When Mr Zappavigna did repay the approximate $23,000.00 to the Department he did not do anything to complain to the Department because, Mrs Zappavigna stated, he was waiting for the Department to repay the money.  He had left it to the government, she stated, to decide that an error had been made. 

I now turn to the evidence of Mr Giovanni Roperti.  Mr Roperti is a friend of Mr Zappavigna and has been his friend for some 25 or 30 years.  He was present at Mr Zappavigna's home to help him fill in a claim form perhaps in 1978, he thought.  Mr Roperti's initial recollection was that the claim form may have been filled in 1983 and 1984.  He, like Mrs Zappavigna, does not have a good memory, he told the Tribunal.  Initially Mr Roperti stated that the claim form he helped Mr Zappavigna complete was for "Sick Benefit".  Later in his evidence he said that it was "Special Sickness Benefit" asking the Tribunal and the Departmental Advocate, "Aren't they all the same?"

Mr Roperti told the Tribunal that it was slightly difficult for him to complete the form but he did understand what was meant.  Mr Roperti did not think that Mr Zappavigna had a medical certificate to hand in but he did not really remember.  Mr Roperti stated that Mr Zappavigna was claiming the benefit because he could not work because he was too ill.   Mr Zappavigna told Mr Roperti that he would not have to repay any of the benefit he received from the department.  Mr Roperti did not go with Mr Zappavigna when he handed in the claim form. 

I now deal with the submissions made by both Mr Zappavigna and by the Department.  Mr Zappavigna submitted that he filled out a Special Benefit claim form, and accordingly he should not have to repay that benefit to the Department.  When he discovered that he did have to repay money to the Department, he trusted that Department to discover its error.  He wanted the Department to realise its mistake and return to him $23,562.32. 

Furthermore, Mr Zappavigna noted that the Department had made many mistakes in this matter.  He referred to the Department having destroyed documents.  He noted that the Department may have mixed him with another man whose name was also Bruno Zappavigna.  He was concerned that the other Mr Zappavigna may have received his benefits and he may have incorrectly received or been attributed to receiving the other man's benefits.

Mr Zappavigna noted that it was the Department's responsibility to realise its error.  He was adamant that he received Special Benefit during the time and accordingly, the government was not allowed to recover that benefit. 

Ms Quinn representing the Respondent provided the Tribunal with a Statement of Facts and Contentions which is contained at Exhibit R1.  In her oral submissions, Ms Quinn submitted that Mr Zappavigna was in receipt of Sickness Benefit during the period 26 September 1978 until 22 April 1982.

Ms Quinn noted Mr Zappavigna's evidence that the type of benefit he had received during this period had not changed.  Mr Zappavigna had also confirmed his correct address in the document T3 and that the initials SB referred to in that document meant Sickness Benefit.  The reference for this was an extract from the Guide to Social Security Law contained at Exhibit R2, page 3.  The legislation current at the time under consideration by this Tribunal was the Social Services Act 1947.

Ms Quinn submitted that section 117 of the 1947 Act dealt with the qualification for Sickness Benefit and Mr Zappavigna's circumstances at that time met the requirements for section 117 of the 1947 Act. Ms Quinn referred the Tribunal to section 129 of the 1947 Act which stated that if a person was able or qualified to receive Sickness Benefit, then the person was not qualified for Special Benefit. Ms Quinn noted that for Sickness Benefit there is a requirement to provide medical certificates, which Mr Zappavigna did.

Mr Zappavigna also attended government doctors during the period.  Ms Quinn noted that Special Benefit is most usually a temporary benefit only payable for 13 weeks.  To support the Respondent's contention that Mr Zappavigna was receiving Sickness Benefit during the period under review, Ms Quinn referred the Tribunal to a letter between the Department and Telstra, this letter is dated 2 June 1982 and appears at T4, and another letter between Mr Zappavigna and his solicitors dated 1 October 1982, this is Exhibit A2.

The letter of 2 June 1982 specifically refers to Sickness Benefit. Ms Quinn submitted that it was most unlikely that this letter was a mistake given that the letter also referred to section 115 of the 1947 Act. Ms Quinn also referred to the letter dated 21 September 1982 from the Department to Mr Zappavigna's solicitors, that letter is contained at T5, page 12. This letter refers to money owed to the Department of Social Security. Mr Zappavigna's solicitors had referred to the letter of September 1982 in their letter to Mr Zappavigna of 1 October 1982. The solicitor had explained to Mr Zappavigna that they accepted the Department's explanation of the reason for repayment or refund from Mr Zappavigna's compensation to the Department.

Ms Quinn submitted that the solicitors did not challenge the refund in 1982 but it was now being challenged by Mr Zappavigna some 20 years later.  Ms Quinn referred to the oral evidence of Mrs Zappavigna and Mr Roperti.  Ms Quinn submitted that those witnesses did not, on their own evidence, have a good recollection of events over 20 years ago.

Ms Quinn noted that Mrs Zappavigna spoke of a Special Sickness Benefit which does not exist.  Ms Quinn was not suggesting that Mrs Zappavigna was being untruthful but just that Mrs Zappavigna's memory was poor.  Ms Quinn noted, however, that Mrs Zappavigna recalled that her husband had attended a number of appointments with government doctors during the period.  Mrs Zappavigna had also recalled that her husband filled in review forms during the relevant period.

Ms Quinn noted Mr Roperti's evidence that he also found it difficult to remember events over 20 years ago.  Mr Roperti had initially stated that Mr Zappavigna was claiming a Sick Benefit which he later changed to Special Sick Benefit.  Looking at these matters on the balance of probabilities, considering the documentary evidence as well as the oral evidence to the Tribunal, Ms Quinn contended that it was more probable than not that Mr Zappavigna was receiving Sickness Benefit.

Ms Quinn acknowledged that documents had been destroyed by the Department in the normal course of document cull procedures.  She submitted, however, that the absence of documents affected both Mr Zappavigna and the Respondent, as Mr Zappavigna did not have his documents either.  Despite this the documentation that was available, that is from the solicitor and between the employer and the Department clearly indicated on Ms Quinn's submission that Mr Zappavigna was in receipt of Sickness Benefit.

In relation to whether or not there were special circumstances as contemplated under subsection 115(4A) of the 1947 Act, Ms Quinn submitted that there were no special circumstances present in the legislative sense.  Accordingly, Ms Quinn submitted that the decision under review should be affirmed.

I now turn to my findings, or the decision I have made in this matter.  I have reached a decision taking into account the oral and documentary evidence and the legislative requirements which I must adhere to.  Mr Zappavigna provided evidence to the best of his recollection of events 20 years ago, as did Mrs Zappavigna, his wife, and his friend, Mr Roperti.

The difficulty for all concerned in this matter is that the full documentary records are not available.  There is nothing improper or sinister in this.  It is just that after 20 years most of the Department's records have been destroyed as part of the usual, or normal, record disposal program.  Also at that time the Department's records and payments were not computerised.  Similarly, Mr Zappavigna does not have all of his records either.

Mr Zappavigna is adamant that he was paid Special Benefit during the relevant period and that he received this benefit because he was too ill to work.  Mr Zappavigna's evidence was that he was told he was being paid Special Benefit because it meant that he would not have to repay any of that money back to the Department in the event he received compensation.

There are a number of difficulties with Mr Zappavigna's argument, in my view.  Mr Zappavigna was being paid the benefit because he was too ill to work.  He submitted a medical certificate with the claim and had a number of appointments with government doctors during the relevant period.  While Mr Zappavigna's evidence was that he did not fill out any review forms it is my view, that is the Tribunal's view, that the appointments with the government doctors represented a review process.

Furthermore, Mrs Zappavigna's evidence was that her husband sent in review forms during the relevant period.  Mrs Zappavigna's evidence was that her husband's claim was for Special Sickness Benefit.  No such benefit existed or exists.  Mr Roperti originally thought he had helped Mr Zappavigna fill out a Sick Benefit claim form but later changed his evidence to the fact that Mr Zappavigna filled out a claim form for a Special Sick Benefit.

Considering the qualification for Sickness Benefit as set out in the relevant legislation at the time and given the evidence provided by the witnesses to the Tribunal, I consider that Mr Zappavigna would have been qualified for Sickness Benefit.  There has been no evidence presented to me which would support Mr Zappavigna being qualified for Special Benefit at that time.

Furthermore, when looking at what records are available, and I note the letter to Telecom from the Department of Social Security at T4, the letter to Mr Zappavigna from his solicitor's at Exhibit A2, the letter from Telecom to Mr Zappavigna's solicitors and considering the list of payment history for what was termed SB at T3, the Tribunal finds that there is contemporaneous proof of payment of Sickness Benefit by specific reference to that benefit and legislative reference to recovery of Sickness Benefit under the 1947 Act.

Although the documentation is incomplete, I still find there is substantial documentary evidence to support the fact that Mr Zappavigna was in receipt of Sickness Benefit and not Special Benefit.  The combination of the oral evidence from Mr and Mrs Zappavigna and from Mr Roperti, combined with the available documentary evidence allows me to be reasonably satisfied that it is more probable than not, in fact it is almost certainly the case, that Mr Zappavigna was in receipt of Sickness Benefit during the relevant period.

I have considered whether or not there might be any special circumstances which would enable me to exercise the discretion contained within subsection 115(4A) of the relevant Act.  Mr Zappavigna stated that he cannot work but he was compensated for this.  There is no evidence which was presented to me of other circumstances which could be considered "special" in the legislative sense, and as discussed in the many relevant cases.

Accordingly, the Tribunal finds that there is insufficient evidence to support Mr Zappavigna's contention that he was in receipt of Special Benefit. The Tribunal has decided that as Mr Zappavigna has been found to be in receipt of Sickness Benefit during the relevant period, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision under review is affirmed.

This means that the amount of $23,562.32 was correctly refunded to the Department.  I realise that this decision will disappoint Mr Zappavigna but I have looked very carefully at this matter, at the evidence and applying the relevant legislation.  I am sorry that I have been unable to find any way to be able to assist Mr Zappavigna, but I must apply the law to the information and evidence that is before.  That is my decision.