Maynard; Department of Family and Community Services [1999] AATA 18 (18 January 1999)

Last Updated: 9 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/980

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICS

Applicant

And DONNA MAREE MAYNARD

Respondent

DECISION

Tribunal Mr W.G. McLean, Member

Date 18 January 1999

Place Melbourne

Decision The Tribunal sets aside the decision under review and in substitution thereof decides that the following decisions made by the applicant are reinstated and affirmed: to cancel the sole parent pension paid to Ms Maynard and to impose a payment preclusion period from 17 February 1995 to 17 June 1999; to recover a total of $16,166.44 in sole parent pension made to Ms Maynard during the preclusion period.

(Sgd.) W.G. McLean

Member

CATCHWORDS

SOLE PARENT PENSION - compensation affected payments - recovery of amounts paid during preclusion period - claim for compensation payment to be not having been made due to special circumstances - decision set aside.

Social Security Act 1991 - s.17, s.1184

Applicant

Secretary, Department of Social Security v a'Beckett (1990) 21 ALD 79

Secretary, Department of Social Security v Hulls (1991) 22 ALD 570

Fowles v Secretary, Department of Social Security (1995) 38 ALD 152

Re Dezso and Secretary, Department of Social Security (1993) 75 SSR 1092

Secretary, Department of Social Security and McFetrish (AAT 12920, 7 May 1998; unreported)

Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690

Respondent

Bull v Attorney-General (NSW) (1913) 17 CLR 370

Re Da Silva and Secretary, Department of Social Security (AAT 11813, 29 April 1997; unreported)

Beadle v Director-General of Social Security (1985) 60 ALR 225

Secretary, Department of Social Security v Hulls (1991) 22 ALD 570

Re Ivovic and Director-General of Social Services (1981) 3 ALN N95

Commonwealth of Australia v Daniels (1994) 33 ALD 111

Secretary, Department of Social Security v Thompson (1994) 36 ALD 563

Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75

Re Reuben and Secretary, Department of Social Security (AAT 11879, 20 May 1997, unreported)

Violeta Najdovska and Secretary, Department of Social Security (AAT 13442, 30 October 1998, unreported)

Secretary, Department of Social Security v John Hill (1995) 39 ALD 667

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

18 January 1999 Mr W.G. McLean, Member

1. The Tribunal considered an application from the Secretary, Department of Family and Community Services (previously Department of Social Security) ("DSS") for the review of a decision of the Social Security Appeals Tribunal made on 22 July 1998. The SSAT decided to set aside the following decisions made by a delegate of DSS on 23 April 1998 and an Authorised Review Officer ("ARO") on 12 March 1998 and 7 May 1998 in respect of a Sole Parent Pension ("SPP") paid to Ms Donna Maree Maynard:

* to cancel SPP (now known as Parenting Payment) paid to Ms Maynard and to impose a payment preclusion period from 17 February 1995 until 17 June 1999;

* consequent upon the imposition of the payment preclusion period, to recover a total of $16,166.44 in SPP made to Ms Maynard during the preclusion period.

2. The SSAT decided to set aside the decisions and remit the matter back to DSS with directions that special circumstances exist sufficient to disregard the whole of the amount of the compensation paid to Ms Maynard.

3. The applicant was represented by Mr M. Todd, an officer from the Administrative Law Section of Centrelink, and Ms Maynard was represented by Ms E. Cooke of counsel. Ms Maynard and her solicitor, Mr N.D. Collins, both gave sworn oral evidence.

4. The Tribunal received into evidence the documents ("the T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 .

5. Ms Maynard was born in October 1967 and is now 31 years of age. She has two children, Dillon born January 1991 and Naomi born August 1993. Prior to the birth of her first child she worked as an unskilled process worker making coat hangers. She ceased work in June 1993 with the intention of remaining at home with the children until Naomi commences school in February 1999.

6. Ms Maynard was involved in a motor vehicle accident on 17 February 1995 in which she sustained serious injuries requiring her to be hospitalised for nearly three weeks, followed by a further seven weeks as an in-patient at the TAC Rehabilitation Centre. She continued treatment as an out-patient of the rehabilitation centre until she was discharged in August 1995.

7. From June 1993 to September 1995, Ms Maynard was totally financially dependent upon her husband. The marriage broke down in September 1995 and she was divorced in 1997. Following the marriage breakdown the respondent applied for and was granted SPP in September 1995. At all times the children have been in the care of Ms Maynard.

8. During Ms Maynard's period in hospital she was first advised that she could take legal action arising from the accident. On her discharge from hospital she consulted Mr Neil Desmond Collins, Solicitor, and instructed him to issue proceedings against the Transport Accident Commission ("TAC"). The parties negotiated until May 1997 and on 6 May 1997 the respondent's solicitor received a draft Release agreement from TAC. Following amendment of the draft Release agreement, the action was settled on 7 May 1997 and Ms Maynard received $182,000 in full settlement of all of her claims against TAC.

9. On 21 March 1995 DSS sent a preliminary notice under section 1172 of the Social Security Act 1991 ("the Act") and a letter to Ms Maynard in relation to her TAC compensation claim. The letters detail the responsibilities of TAC and Ms Maynard if weekly payments or a lump sum compensation payment is received by a person who is in receipt of a pension and advised Ms Maynard that in such a case some or all of the social security payments received may have to be repaid to DSS.

10. Ms Maynard received SPP from September 1995 until May 1997 and on 15 May 1997 DSS wrote to her about the effect that her compensation payment had made on the social security payments previously paid to her. The letter includes the following extract:

"I have been advised that you are entitled to a lump sum compensation payment of $182000.00. The economic loss amount of the lump sum is deemed to be $91000.00. The amount above which no pension is payable to a single person under the income test (currently $402.20 a week). The start date of the preclusion period is 17 February 1995. The preclusion period ends on 17 June 1999. The amount of social security payments you received during the preclusion period and required to be paid back to Social Security is $16166.44. If your preclusion period has not yet ended, social security payments cannot be paid to you.

I have therefore asked TRANSPORT ACCIDENT COMMISSION-COMMON LAW to repay $16166.44 to Social Security before they pay you the rest of your compensation payment. My authority to do this is contained in section 1179 of the Social Security Act 1991."

11. The parties do not dispute that DSS has properly and correctly calculated the abovementioned preclusion period in accordance with the Act or that the amount of $16,166.44 represents the total social security payments made to Ms Maynard during the preclusion period from the date of the accident on 17 February 1995 to 17 June 1999.

12. In April 1997 the respondent's solicitor, Mr Neil Collins, completed and sent to DSS a form entitled "Estimate of Social Security Charge/Preclusion" which is designed to help compensation claimants and their advisors understand the likely effect a proposed lump sum may have on future social security entitlement and recovery of past social security payments. In answer to a form note that states "If no periodic compensation payment was paid, the day lost earnings or lost capacity to earn ("economic loss") commenced", Mr Collins wrote the date 17 February 1995.

13. On 21 May 1997 TAC paid $16,166.44 to DSS in accordance with a recovery notice sent on15 May 1997 by DSS to TAC under s.1179 of the Act.

14. A Release agreement of 7 May 1997 provided by the respondent to TAC contains the following extracts:

"AND WHEREAS it is further declared and agreed that such payment is in respect of PECUNIARY LOSS AND PAIN AND SUFFERING DAMAGES.

AND WHEREAS it is further declared and agreed that the plaintiff has not suffered any past or present pecuniary loss and is not expected to suffer pecuniary loss until her youngest child commences primary school in 1999. The Plaintiff further Releases the Defendant and Transport Accident Commission from all actions suits claims or demands whatsoever which she now has or at any time hereafter may have in respect of pecuniary loss damages."

15. On 16 July 1997 the respondent's solicitor, Mr Collins, forwarded the following letter to DSS:

"re : Mrs. Donna Maree Maynard

Thank you for your Department's letter of the 18^th instant.

You will note from the last sentence of our letter to you dated 2^nd June, that our client's claim included "a token allocation for a farlow type claim".

In fact, our client suffered no pecuniary loss as she was not gainfully employed prior to the accident nor was she gainfully employed from the date of the accident until the date of settlement of her claim. Our client had no intention of being gainfully employed until her youngest child commenced primary school in 1999 which is beyond the exclusion period.

It was on this basis that settlement was effected and the Release was drawn, i.e. no actual pecuniary loss at any time during the period from the time of the accident until 1999.

In a farlow type claim , an applicant applies for compensation to show there is loss in capacity and ability to be gainfully employed in the future which may or may not ever be an actual loss.

From the above you will see in these particular circumstances, it is inappropriate to deduct the amount of $16,166.44 from our client's settlement and we would request that you review your decision and let us have your response as quickly as possible.

Yours faithfully,

COLLINS SOLICITORS"

16. Ms Maynard gave sworn oral evidence that she still suffers from the physical injuries received by her in a motor car accident on 17 February 1995 and that these injuries would prevent her at this time from carrying out the work she performed when she was last employed in 1993 which was prior to her accident. She is unable to sit for long periods of time or lift the heavy weights that were required to be lifted during her prior employment as a process worker, and she would need to be retrained in another vocation in order to return to work in early 1999 when her youngest child commences school. Ms Maynard's injuries also makes it uncomfortable for her to run and she can no longer play A grade basketball. She said that everything is a bit slower than it used to be.

17. Ms Maynard described her TAC compensation settlement amount as being for:

"The way I understood it was pain and suffering. And there was - the way understood it was for future loss of earnings, but it was - after my second child went to school. That is the way I understood it to be".

In response to a question by the Tribunal as to whether the compensation payment took into consideration a future loss of earnings after February 1999, Ms Maynard said "I think so, yes".

18. Mr N.D. Collins, the respondent's solicitor, gave sworn oral evidence in support of his affidavit sworn on 18 June 1998, which he said was basically provided to clarify the situation

"that in [the TAC] negotiations the highest that Ms Maynard's claim could be put was a potential loss of earning ability or a farlow type claim and that the discrepancy in the Release was as a result of TAC insisting on having a blanket form Release, but in this particular case, no means have been actually allocated to or provided for actual loss or even potential loss".

He said that Ms Maynard's main claim for compensation from TAC was for

"...general damages, pain and suffering, loss of enjoyment of life, those sort of matters. There was also a potential claim for - of a farlow type claim where she had lost the ability to earn income. However, it was uncertain as to whether she would, in fact, return to work and actually realise that loss given that she was a single mother with young children and the sort of work that she was likely to return [to] was unlikely to be any better, really, than she was receiving in welfare payments."

19. Mr Collins said that he discussed with Ms Maynard the TAC compensation Release before she signed it and that the settlement amount precluded claims in respect of pecuniary loss, pain and suffering and damages, but certainly in negotiations there was nothing allocated for actual loss of income. He said that the settlement was for pain and suffering and general type damages -

"but also included the fact that if at a later stage she wanted to return to work and found that she was unable to or was restricted in her ability to work, this Release would cover that situation, but [it] was a fairly nebulous sort of area at that time."

He said that around the time of settlement he also discussed with Ms Maynard that there was a possibility that DSS might want to have her SPP repaid as the result of the TAC compensation payment.

20. The applicant does not dispute the initial decision of the SSAT on 22 July 1998 that the lump sum payment to Ms Maynard is "compensation" and that the decisions by DSS to cancel SPP payment to Ms Maynard, to impose a preclusion period and to recover pension payments made to Ms Maynard during the preclusion period, were correct.

21. The applicant's appeal to the Tribunal for review of the SSAT decision is therefore related only to that part of the SSAT decision that finds that special circumstances exist sufficient to disregard the whole of the amount of compensation paid to Ms Maynard.

22. The respondent contends that the lump sum payment made to her is not a compensation affected payment within the meaning of s.17 of the Act. Also that there are special circumstances within the meaning of s.1184 of the Act and that the payment should be treated as not having been made.

23. The following relevant legislation is provided by the Act:

"17(1) compensation affected payment means:

(aa) an age pension; or

(a) a disability support pension; or

(b) a parenting payment; or

(c) a social security benefit; or

(da) * * * * *

(e) a disability support wife pension; or

(f) a carer payment; or

(fa) * * * * *

(g) a special needs disability support pension; or

(h) a special needs disability support wife pension; or

(i) mature age allowance; or

(j) mature age partner allowance; or

(k) a former payment type;

...

Compensation

17 (2) For the purposes of this Act, compensation means:

(a) a payment of damages; or

(b) a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or

(c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or

(d) any other compensation or damages payment;

(whether the payment is in the form of a lump sum or in the form of a series of periodic payments) that is:

(e) made wholly or partly in respect of lost earnings or lost capacity to earn; and

(f) made either within or outside Australia.

17 (3) For the purposes of this Act, the compensation part of a lump sum compensation payment is:

(a) 50% of the payment if the following circumstances apply:

(i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and

(ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise, on or after 9 February 1988; or

(ab) 50% of the payment if the following circumstances apply:

(i) the payment represents that part of a person's entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and

(ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and

(iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise, on or after 9 February 1988; or

(b) if those circumstances do not apply - so much of the payment as is, in the Secretary's opinion, in respect of lost earnings or lost capacity to earn.

...

1184 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."

24. The parties agree that the SPP and parenting payments made by the applicant to the respondent are compensation affected payments for the purposes of s.17(1) of the Act. They also concur that Ms Maynard's financial circumstances are not extreme and that her responsibilities as a single parent with the responsibility for two young children is not unusual, uncommon or exceptional for a person in receipt of SPP.

25. The respondent disagrees with the following contentions of the applicant:

* the TAC compensation payment made to Ms Maynard included an element for future pecuniary loss and is therefore compensation as defined by s.17(2) of the Act;

* that s.17(3) of the Act requires that 50% of the compensation payment made by TAC to Ms Maynard is to be treated as compensation for the purposes of the Act;

* that Ms Maynard's health is not unusual, uncommon or exceptional in relation to other recipients of pensions;

* the evidence does not support a finding of special circumstances that allows the disregarding of the entire compensation payment made to Ms Maynard.

26. The applicant is of the view that the TAC compensation Release reference to the respondent not being expected to suffer pecuniary loss until her youngest child commences primary school in 1999 clearly shows that there was consideration of future loss of earnings or capacity to earn. Also that this view is supported by Mr Collins' letter to DSS dated 16 July 1997 concerning a token allocation of the compensation claim for a farlow type claim in respect of a loss of capacity and ability to be gainfully employed in the future.

27. The respondent's submission is that the purpose for which the compensation payment was made is set out in the Release agreement and in an affidavit of Mr Collins and it was not the intention of the parties to the Release to compensate Ms Maynard for loss of earnings or for loss of capacity to earn. The Release signed by the applicant on 7 May 1997 states that the payment is in respect of "pecuniary loss", which includes both loss of earnings and loss of capacity to earn an income. It is contended by the respondent that this is a standard clause which is included in all TAC Release documents and that it was included at the request of TAC to avoid the possibility of any future claims which could have been made in respect of loss of earnings in the period after 1999.

28. The actual intention of the Release, according to the respondent, is set out in the next paragraph of the Release and clearly states that the monies were not intended to cover loss of earnings before 1999 (refer extract from Release agreement previously recited in paragraph 14 these Reasons for Decision). This clause states that monies were not intended to cover loss of earnings or loss of earning capacity before 1999.

29. The respondent submitted that during negotiations leading up to the settlement of the TAC claim, her solicitor and counsel made it clear to TAC that Ms Maynard was not seeking compensation for loss of earnings during the period February 1995 to February 1999 or for loss of capacity to earn. Ms Maynard was at home with the children in February 1995 and intended to stay out of the workforce at least until February 1999 when her younger child is due to commence school. An affidavit from the respondent's solicitor indicates that the compensation settlement confirms

"that there was no claim for past loss of income nor was there any potential claim for future loss of income until at least 1999 when the youngest child of Ms Maynard was due to commence school".

The affidavit also declares "that no compensation was claimed or paid for loss of earnings past or future", which appears to be somewhat incongruous with the oral evidence.

30. The respondent contends that although Ms Maynard's motor vehicle accident in February 1995 left her with permanent physical disabilities, these disabilities do not affect her capacity to earn a living in the future at a wage that would inevitably be higher than her previous factory wage in 1993. She is confident that she will have a place in the workforce after her youngest child starts school in 1999 and that she will be able to earn more than she previously earned as a process worker.

31. The respondent also alleges that Ms Maynard's injuries have had a profound effect on her child bearing capacity, have ended her very active sporting career, increased the demands of caring for her two children and burdened her with ongoing pain and discomfort.

32. It is further contended by the respondent that the receipt of both the lump sum compensation amount and the SPP is not a cause of "double dipping" as the TAC lump sum payment did not include provision for income support.

33. In support of claimed special circumstances, the respondent contends that Ms Maynard had difficulty understanding the complex legal issues and her "social conditioning" constitutes special circumstances. Her lawyers say that they attempted to advise her of the impact that her compensation payment could possibly have on her pension if the Release was differently interpreted. However, it was submitted that Ms Maynard believed that the compensation did not cover loss of earnings and given her general social circumstances she did not absorb the legal advice. It was also submitted that Ms Maynard's innocent inability to absorb her lawyers' advice puts her in a position of a person who has not received appropriate advice.

34. Both the applicant and respondent referred the Tribunal to the following extensive list of authorities. The relevancy of the considerations, determinations and findings provided by these authorities is valued and the relevancy of these matters will be taken into consideration by the Tribunal in reaching a decision in respect of this matter.

Authorities relied upon by the applicant

Secretary, Department of Social Security v a'Beckett (1990) 21 ALD 79

Secretary, Department of Social Security v Hulls (1991) 22 ALD 570

Fowles v Secretary, Department of Social Security (1995) 38 ALD 152

Re Dezso and Secretary, Department of Social Security (1993) 75 SSR 1092

Secretary, Department of Social Security and McFetrish (AAT 12920, 7 May 1998; unreported)

Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690

Authorities relied upon by the Respondent

Bull v Attorney-General (NSW) (1913) 17 CLR 370

Re Da Silva and Secretary, Department of Social Security (AAT 11813, 29 April 1997; unreported)

Beadle v Director-General of Social Security (1985) 60 ALR 225

Secretary, Department of Social Security v Hulls (1991) 22 ALD 570

Re Ivovic and Director-General of Social Services (1981) 3 ALN N95

Commonwealth of Australia v Daniels (1994) 33 ALD 111

Secretary, Department of Social Security v Thompson (1994) 36 ALD 563

Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75

Re Reuben and Secretary, Department of Social Security (AAT 11879, 20 May 1997, unreported)

Violeta Najdovska and Secretary, Department of Social Security (AAT 13442, 30 October 1998, unreported)

Secretary, Department of Social Security v John Hill (1995) 39 ALD 667

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

35. The Tribunal agrees with the parties that the SPP amounts received by Ms Maynard from DSS totalling $16,166.44 are compensation affected payments pursuant to s.17(1) of the Act.

36. It is the submission of the respondent that the TAC compensation payment paid in May 1997 was not made wholly or partly in respect of lost earnings or lost capacity to earn and this is supported by an affidavit provided by Ms Maynard's solicitor, Mr Collins. The fact that Ms Maynard discontinued her employment in 1993 and was not earning a remuneration from employment when she claimed a SPP from the applicant in 1995 also tends to support this submission. Against the respondent's contentions, it is clear from Mr Collins' letter to DSS dated 16 July 1997, that Ms Maynard's compensation claim included "a token allocation for a farlow type claim". Mr Collins' letter explains that

"in a farlow type claim, an applicant applies for compensation to show there is a loss in capacity and ability to be gainfully employed in the future which may or may not ever be an actual loss."

37. The Release agreement entered into between Ms Maynard and TAC in May 1997 indicates that Ms Maynard is not expected to suffer pecuniary loss until her youngest child commences primary school in 1999 which supports Mr Collins' abovementioned letter of 16 July indicating that Ms Maynard's claim for compensation included a token allocation for a "farlow type claim" concerning her ability to be gainfully employed in the future.

38. The sworn oral evidence of both Ms Maynard and her solicitor, Mr Collins, is that the TAC compensation settlement took into consideration Ms Maynard's possible future loss of earnings and/or capacity to earn an income when she proposes to return to work in 1999 when her youngest child commences school.

39. In the matter of Fowles and Secretary, Department of Social Security (1995) 38 ALD 152 the Tribunal considered the following relevant passage contained in the Second Reading Speech by the then Minister introducing the virtually identical forerunner to s.17(3) of the Act. In the course of her speech on 13 April 1988 at p1497 of Hansard, Mrs Kelly stated:

"This bill contains measures to improve the administration and integrity of compensation recovery provisions. Where a person receives personal injury compensation that makes up for lost income the Social Security Act provides that pension or benefit may be reduced or recovered. This is one way in which social security expenditures are directed to those most in need.

Settlements of lump sum compensation particularly in the workers compensation jurisdiction are being manipulated to obscure the economic loss component and to avoid recovery of social security payments. To prevent this abuse the minister announced on 8 February 1988 that for future personal injury settlements made by agreement or by consent order, 50% of lump sum compensation will be deemed to be in respect of economic loss. This bill gives effect to that proposal. Where, on the other hand, a court has made an order after a contested hearing specifying the economic loss component, the secretary to the department will continue to have regard to the characterisation given to the award by the court."

40. Based upon all of the evidence, which is at the least inconsistent at times, the Tribunal finds that the compensation amount received by Ms Maynard was a lump sum payment made partly in respect of lost capacity to earn pursuant to s.17(2) of the Act. The Tribunal also finds that the compensation part of the lump sum payment paid by TAC to Ms Maynard is 50% of the payment pursuant to s.17(3) of the Act. The Tribunal, therefore, concurs with the SSAT finding that DSS made the correct decision to cancel SPP paid to Ms Maynard, to impose a preclusion period from 17 February 1995 until 17 June 1999 and to recover a total of $16,166.44 in SPP made to Ms Maynard during the preclusion period.

41. Ms Maynard owns her unencumbered home and is at present receiving a social security family payment of $177.55 per fortnight. She also receives a maintenance payment of $50.00 per week from her ex-husband and has $7000-$8000 remaining from her 1995 TAC compensation payment. Although Ms Maynard finds her present financial situation difficult to manage, it is admitted that she is not impoverished and does not suffer severe financial hardship.

42. The evidence has been considered by the Tribunal in order to ascertain if there are special circumstances in this case. In Beadle v Director-General of Social Security (1984) 6 ALD 1, the Tribunal said:

"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."

The matter of Beadle v Director-General of Social Security (1985) 60 ALR 225 was subsequently heard by the Full Federal Court and it was held that:

"It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase 'special circumstances', although lacking precision, is sufficiently understood in our view not to require judicial gloss."

43. The Tribunal is of the view that Ms Maynard still suffers pain and physical limitations arising from the injuries incurred by her in the motor vehicle accident in February 1995 and these incapacities make it more difficult to care for her two young children. However, the severity of her present physical incapacities are not regarded by the Tribunal to be severe enough to make her circumstances unusual, uncommon or exceptional from the usual run of cases involving persons with injury-related disabilities who are receiving social security benefits.

44. The Tribunal appreciates the fact that Ms Maynard faced complex legal issues associated with her compensation claim against TAC and in understanding the terms of her related Release/settlement agreement in May 1997. However, Ms Maynard engaged legal experts to advise her and to assist her to understand these issues, including the impact that the lump sum compensation payment could have on her social security entitlements. Her lawyer, Mr Collins, assisted with the preparation of the Release agreement and advised her regarding the negotiated lump sum compensation payment.

45. It is the respondent's submission that her lawyers attempted to advise her of the impact that the compensation payment could possibly have on her pension, however Ms Maynard's "social conditioning" contributed to her reduced capacity to absorb her lawyer's advice. The Tribunal had the opportunity of observing and speaking with Ms Maynard during the hearing when she gave her sworn oral evidence and it is the Tribunal's view that Ms Maynard possesses a reasonable understanding of the issues involved in this matter and could certainly comprehend and respond normally to relevant questions put to her.

46. The Tribunal finds that it was not unjust, unreasonable or otherwise inappropriate for the applicant to determine that there is no evidence of special circumstances in Ms Maynard's case that would enable DSS to treat the whole or part of her compensation payment as not having been made, pursuant to s.1184 of the Act.

47. The Tribunal sets aside the decision under review and in substitution thereof decides that the following decisions made by the applicant are reinstated and affirmed:

* to cancel the SPP paid to Ms Maynard and to impose a payment preclusion period from 17 February 1995 to 17 June 1999;

* to recover a total of $16,166.44 in SPP made to Ms Maynard during the preclusion period.

I certify that this and the fifteen (15) preceding pages are a true copy of the decision and reasons for decision herein of Mr W.G. McLean, Member

Signed: Judith Holt

Associate

Date of Hearing 3 December 1998

Date of Decision 18 January 1999

Applicant Mr M. Todd, Centrelink

Counsel for the Respondent Ms E. Cooke

Solicitor for Respondent Yuncken & Yuncken