Hocking and Department of Family and Community Services [2000] AATA 789 (7 September 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 789

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/67

GENERAL ADMINISTRATIVE DIVISION )

Re SCOTT CAMERON HOCKING

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 7 September 2000

Place Adelaide

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Disability Pension - weekly compensation payments precluding applicant from pension - whether special circumstances - availability of rehabilitation services - medical problems - financial considerations

Social Security Act 1991 s.1184

Re Secretary, Department of Social Security and Ellis (1997) 43 ALD 41

Re Groth and Secretary, Department of Social Security (AAT 10061, 10 March 1995)

REASONS FOR DECISION

7 September 2000 Senior Member J.A. Kiosoglous MBE

1. This is an application by Mr Scott Hocking (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 27 January 2000 (T2) which affirmed the decision of an authorised review officer (ARO) dated 1 December 1999 (T16) affirming the delegate's decision of 18 October 1999 (T5) to apply a direct deduction on the rate of periodic compensation being received, resulting in the applicant being ineligible for Disability Support Pension (DSP).

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T18), together with four exhibits, two lodged by the applicant (Exhibits A1-A2) and two lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant. The applicant was represented by Mr C. Roberts, of counsel and the respondent was represented by Ms C. Hunt, a departmental advocate.

3. The issue before the Tribunal is whether or not there are special circumstances sufficient to exercise the available discretion pursuant to section 1184 of the Social Security Act 1991 (the Act) to treat all or part of the applicant's compensation payments as not having been made so as to qualify him for DSP.

history of the application

4. The applicant was injured on 19 December 1995 at work and has been in receipt of weekly compensation payments. In or about November 1999 he received such payments at the rate of $626.48 per fortnight and currently receives $644.64.

5. The applicant applied for DSP on 14 October 1999 (T3), and his application was rejected on 18 October 1999 (T5) on the basis that the weekly compensation payments would be treated as a direct deduction from his DSP payments.

6. On 1 December 1999 this decision was affirmed by an ARO (T12). It was further affirmed by the SSAT on 27 January 2000 (T2), who stated (inter alia) in its reasons for decision:

"...

The Tribunal then considered, in Mr Hocking's case, whether there were similarities or significant factors that could be aligned with findings that were found in the aforementioned case [Secretary, Department of Social Security v Ellis]. While Mr Hocking is finding he is under financial pressure, it could not be said that he is suffering any of the "financial hardship" as was found in SDSS v Ellis nor, could he be said to be in a "quite desperate financial circumstance".

..."

applicant's evidence

7. The applicant told the Tribunal that he damaged his knee quite severely in a workplace accident, which has been extremely painful, requiring extensive physiotherapy and eventual operations. He has required a further five or six operations, and has had very severe ongoing problems, particularly due to lymphoedema. He stated that if his lymphoedema is not kept under control, he may lose his leg.

8. He stated that he takes methadone for his knee pain and Zoloft for depression. He receives approximately $280 net per week from WorkCover, which is the 80% rate. He told the Tribunal that he has had to fight WorkCover to remain at 80%. At the time of the accident he was actually netting more than at the time of WorkCover assessment, such that there has been a substantial drop in income.

9. He told the Tribunal about the numerous attempts he has made to find work, and stated that once employers learnt he was on WorkCover, they "didn't want to know". He detailed the jobclubs and vocational assessments that WorkCover has organised, but stated that they were of little benefit. He stated that he has been offered an office manager traineeship if he can qualify for DSP. He also stated that Employment National are not interested in helping him unless he has a "number" (is on a benefit), and that the Commonwealth Rehabilitation Service (CRS) also requires a Centrelink number or pension card. He agreed, in cross-examination, that CRS indicated they were prepared to assist if WorkCover referred him, and that he has not pursued that option yet. He stated that given the dealings he has had with WorkCover, he is not confident that they would help at all in this regard. He does not yet have a medical clearance to register for such rehabilitation. He was also concerned that if he was referred by WorkCover to CRS, WorkCover would reduce his payments to 50%.

10. He stated that ideally, he wants to get back into the workforce, and that receipt of DSP would assist in his efforts to secure employment.

11. He told the Tribunal about his separation from his wife in 1999, and stated that the accident was a significant contributing factor. The sudden split also caused financial problems, and he had to use the $15,000 settlement monies for setting up a new place with whitegoods and furniture. He further detailed his financial situation to the Tribunal, showing expenditure of approximately $300 per week.

12. He stated that he does not currently have the facilities or furniture to have his children over for contact visits at his house, and these have to take place at his parents' place. This causes complications and is not ideal, because his parents have their own health problems.

13. He stated that he is only seeking the minimum rate of DSP, so that he can avail himself of the training, rent assistance and health care card benefits associated with DSP.

applicant's submissions

14. Mr Roberts submitted, on behalf of the applicant, that the fact that the applicant may need to have his leg amputated was a special circumstance, and that the mobility restrictions limited his employability. He cited the concerns about WorkCover reducing the applicant's payments to 50% and noted the benefits that could flow by granting the applicant the minimum entitlement.

15. He submitted that it is an unusual circumstance for someone to suffer for this long and through bad timing, to receive weekly compensation payments at a rate lower than the person's income as at the time of injury. He noted the problems with the applicant's parents and contact visits, and that the injury had contributed to the marriage break-up. This also had the consequence of the applicant spending over 50% of his weekly income on rent alone.

16. He referred the Tribunal to Re Secretary, Department of Social Security and Ellis (1997) 43 ALD 41, in particular, in support of his submissions.

respondent's submissions

17. Ms Hunt submitted, on behalf of the respondent, that there are other avenues the applicant can pursue to obtain training, and that the inability to obtain the training he wants currently is not a special circumstance due to other available options.

18. She submitted that the applicant's medical condition is not special as he receives compensation for that injury. She further submitted that his circumstances are no different to other people on low incomes, and that his compensation payments are significantly higher than the allowance received by people on DSP. She also submitted that were the Tribunal to, in effect, grant the applicant DSP, he would be receiving extra concessions over and above that which other people are eligible to receive.

discussion and findings

19. The Tribunal notes that it is not in dispute that the respondent has correctly applied the legislation in so far as effecting a direct deduction of the compensation payments from any eligibility the applicant may have to DSP. This Tribunal has made comment in previous decisions as to the unfair results that can often be obtained by the fact that income is treated differently to compensation payments in relation to the Act. The Tribunal is not in the business of forming legislative policy however, and so finds that the legislation has been properly applied in the current case.

20. The issue remaining is whether or not there are special circumstances so as to warrant treating part or all of the compensation payments as not having been made, thereby rendering the applicant eligible for DSP. The applicant was in fact only asking for a portion of his payments to be treated as not having been made so as to enable him to receive the minimum rate of DSP, whilst thereby gaining the associated benefits.

21. The Tribunal appreciates the applicant's position, but it cannot start from a preferred outcome and reason backwards. The starting point must remain whether or not there are special circumstances in existence, and if so, the question arises as to what extent the compensation monies should be disregarded.

22. As the Tribunal expressed at the hearing of this matter, it is sympathetic to the applicant's situation. It is clear that he has made laudable efforts to obtain employment or appropriate training. He has been met with many obstacles in his efforts to be rehabilitated. He also has continuing medical problems, which, as Mr Roberts submitted, have progressed way beyond expectations, to the point where amputation of his leg is a real risk. He has also faced a considerable financial burden resulting from the separation from his wife, which in part, he attributed to his medical problems. This has also had an effect upon his ability to have contact visits with his children at his home.

23. What the Tribunal must consider, is whether or not these circumstances are uncommon, unusual or exceptional. This is where the Tribunal encounters some difficulty. The applicant has considerable health problems, but he is in receipt of compensation in respect of these problems. As Ms Hunt submitted, the payments he receives are well in excess of what people on DSP are entitled to receive. On occasions, the Tribunal has still been prepared to consider special circumstances in such situations. The Tribunal was referred in this regard to Re Ellis where a distinction can be made between that case and the present matter. In Re Ellis, Deputy President Barnett was clearly mindful of the "unacceptable hardship" (at page 44) suffered by the four young children in Ms Ellis' care. The financial situation in that case was described as "desperate".

24. In the present application, the applicant is in straightened financial circumstances, but the Tribunal cannot see how his financial situation is uncommon or unusual as compared to other people on low incomes, who are forced to be very careful with their money, and with the choices they make. In this regard, the Tribunal is mindful of the comments by Deputy President Forgie in Re Groth and Secretary, Department of Social Security (1995) 37 ALD 717 at p800 (inter alia):

"...

... There is nothing in Mr Groth's circumstances that mean that the operation of section 1168, without the implementation of the ameliorating provisions of section 1184, produces an unjust or unreasonable result when the purpose and operation of that scheme is taken into account. Unfortunately, his circumstances are not out of the ordinary when regard is had to those subject to the provisions of Part 3.14. He must be very careful financially and the choices he and his family have are severely curtailed both by their limited finances and their poor health. Difficult as their circumstances are, however, they are not special when considered in light of others in a similar situation and in light of the object of the Act...

..."

25. The Tribunal notes that Re Groth went on appeal ((1995) 40 ALD 541) but that the Federal Court did not disturb the Tribunal's decision. Mr Roberts sought to distinguish Re Groth because, in the present case, the applicant is not seeking more money, and is only seeking a notional entitlement. Even a notional entitlement has associated benefits however, which, either directly or indirectly, cost the taxpayer. Health care cards, access to rehabilitation services and rent relief are not services without some associated cost.

26. The applicant is in receipt of compensation payments pursuant to a South Australian legislative scheme. He has had problems with the governing organisation (WorkCover) and with the insurance company responsible for his particular case. He conceded, in cross-examination, however, that he has not approached WorkCover or his insurer about either the work place trial he mentioned in evidence, or about whether they would be prepared to fund his involvement with CRS. There is a question outstanding in this regard, as to whether his payments would be reduced to from 80% to 50% if he qualified for rehabilitation services, although if this were to happen, he would apparently become eligible for some form of DSP.

27. This Tribunal cannot ignore the policy intentions of the legislature. Clearly, before Federal Social Security monies are paid or allowances given to a person in compensation matters that arise pursuant to a state scheme, the Commonwealth expects that a person will exhaust the available State resources. The State of South Australia has an obligation pursuant to its legislative scheme in this case, to provide rehabilitative services to the applicant as appropriate. Under the Workers Rehabilitation and Compensation Act 1986 (SA), a worker has a right to request specific forms of rehabilitation, and may legally challenge any aspect of a rehabilitation plan or program under which obligations are imposed on threat of discontinuing WorkCover payments. The fact that the applicant is having difficulties with WorkCover cannot be considered to be a special circumstance, as there are many other people in similar predicaments who would attest to having problems with WorkCover.

28. Taking into account all the circumstances of this case, the Tribunal is not satisfied that they are special so as to warrant the exercise of its discretionary power pursuant to section 1184 of the Act. It appreciates that the applicant is in a difficult position, and is having problems obtaining suitable training and rehabilitation. It is not unreasonable or inappropriate however, to expect him to exhaust other available avenues by which he can obtain such training and rehabilitation before having such granted to him by the use of the ameliorating provisions of section 1184 of the Act.

decision

29. For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 9 August 2000

Date of Decision 7 September 2000

Counsel for the Applicant Mr C. Roberts

Solicitor for the Applicant Welfare Rights

Counsel for the Respondent Ms C. Hunt

Solicitor for the Respondent Centrelink