Alpi and Department of Family and Community Services [2002] AATA 85 (14 February 2002)

Last Updated: 18 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 85

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/767

GENERAL ADMINISTRATIVE DIVISION

Re: HAVANE ALPI

Applicant

And: SECRETARY TO THE

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal: Miss E.A. Shanahan, Member

Date: 14 February 2002

Place: Melbourne

Decision: The preclusion period, as calculated by the respondent, to run from 19 July 1994 to 25 September 2000, is affirmed.

(sgd) E.A. Shanahan

Member

SOCIAL SECURITY - compensation affected social security payments - preclusion period - discretion to treat compensation payments in whole or in part as not having been made - special circumstances

Social Security Act 1991 ss.17(1), (2), (3)(b), 1165(1A), (2AA), (5), (8), (9), 1184(1)

Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464

REASONS FOR DECISION

14 February 2002 Miss E.A. Shanahan, Member

1. The applicant seeks review of the decision of the primary delegate dated 27 November 1998 wherein the preclusion period, dating from 19 July 1994 to 25 September 2000, was imposed following the payment of compensation for injuries received in a motor vehicle accident on 19 July 1994. At the applicant's request the authorised review officer had affirmed the primary delegate's decision on 6 November 2000. The applicant appealed this decision to the Social Security Appeals Tribunal ("SSAT") who heard her application on 2 April 2001. Whilst the SSAT was satisfied that the preclusion period had been correctly calculated to run from 19 July 1994 to 25 September 2000, it found that it did not have jurisdiction to review the decision. As at that time, the applicant's claim for a disability support pension ("DSP") had been rejected on the basis that she was not medically qualified for that payment. Special circumstances were not argued. The SSAT had previously affirmed the decision that the applicant did not qualify for DSP on 22 March 2001. The applicant subsequently appealed the decision of 22 March 2001 to the Commonwealth Administrative Appeals Tribunal. On the basis of further medical evidence a consent agreement was reached that the applicant was medically qualified to receive DSP and that such payment would commence from 26 September 2000. The applicant then lodged an application for an extension of time, which was granted in August 2001, and proceeded with an application to this Tribunal for review of the decision determining the preclusion period.

2. At the hearing before this Tribunal the applicant was self-represented and gave her evidence in the Turkish language by telephone. She was assisted by a Turkish interpreter. The respondent was represented by Mr T. Baker, an advocate with Centrelink. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and also the decision of the District Court of New South Wales ("District Court"), Civil Jurisdiction, Herron J dated 27 November 1998.

Background to the Application

3. The applicant sustained a fracture of her left calcaneum on 19 July 1994, when she fell or was thrown from the front passenger seat of her then husband's motor vehicle and landed on the roadway. Following this injury she received social security payments which commenced on 20 September 1994. On 27 November 1998 the District Court, in a hearing before a judge alone (Heeron J), awarded the applicant damages totalling $212,498.00. His Honour specified exactly how these damages had been assessed. The amount for economic loss was $133,942.00. Using this sum in accordance with section 17(3)(b) of the Social Security Act 1991 ("the Act"), the preclusion period was calculated from 19 July 1994 to 25 September 2000. The applicant's social security payments were cancelled after 26 November 1998 and a compensation charge of $36,833.98 was recovered by the Department of Family and Community Services ("the Department"). This represented the social security payments made between 20 September 1994 and 26 November 1998.

4. The applicant received a payment of $154,404.00 from her compensation judgment. The Department was reimbursed $36,833.98 directly by the Transport Accident Commission ("TAC") and the Health Insurance Commission was reimbursed the sum of $21,250.00, also, directly by the TAC. The applicant used her net compensation payment to purchase a house in early 1999, expending approximately $140,000.00 on the purchase of the property, repairs and conveyancing costs. Her mother became ill with cancer and she returned to Turkey for a period of three months in 1999. This trip cost approximately $14,000.00. She had thus expended all of her judgment moneys before the end of 1999. She divorced her husband but before doing so had signed over the property into his name. They continue to live in the same property although her ex-husband occupies a caravan in the garden. Her marriage was arranged by her parents in Turkey. Her ex-husband is an older man and is a cousin. Since 1999, until she received DSP payment and back-payments as determined on 8 June 2001, she had survived in Australia with financial help of relatives.

5. The applicant had been given the opportunity to have the hearing heard in Mildura where she lives. This offer was declined. She preferred to give her evidence by telephone with the assistance of an interpreter. There is evidence in two documents in the form of a letters from her general practitioner, that the applicant's English is quite good. However, all evidence was taken in Turkish.

6. The only issue before this Tribunal is whether or not there are special circumstances in existence which make it appropriate, reasonable and just to treat the whole or part of the amount of compensation as not having been made. The applicant did not argue any special circumstances and the respondent was unable to identify any special circumstances. The applicant's argument was essentially that she had been awarded the sum of $212,498.00 and, as that was her money, she should not have to repay any moneys to the Commonwealth of Australia.

Evidence before the Tribunal

7. At the commencement of the hearing the applicant requested that the Tribunal explain to her the effect of the District Court's decision. This was done in relatively simple terms and also the effect of the Act in relation to compensation. The nominated payments were outlined. The applicant insisted that, in her opinion, the then Department of Social Security was not entitled to deduct or abscond with $38,000.00 from her (trans, pp.5, 9, 11, 12). She asked the Tribunal on what basis the Department was able to deduct this money and, once more, the Tribunal explained the effect of the Act. The applicant regarded the payment of the sum of money in question by the TAC to the Department as embezzlement. She then stated she would appeal to other appeal channels and discontinued the hearing by hanging up the telephone.

8. The Tribunal was unable to ascertain whether or not the applicant had been able to read the District Court's judgment in her own language. The interpreter advised that he felt she did not understand the judgment or that his Honour, Judge Herron, had nominated specific sums of money for past loss of income and future loss of income.

9. Mr Baker, for the respondent, advised that he was unaware of any special circumstances applying to the applicant and the subject of special circumstances had not been raised in any of the T documents before the Tribunal. Mr Baker also addressed in detail the calculation of the preclusion period in accordance with section 1165(1A) of the Act, which states:

1165(1A) If:

(a) a person receives or claims a compensation affected payment; and

(b) the person is not a member of a couple; and

(c) the person receives a lump sum compensation payment (whether before or after the person receives or claims the compensation affected payment) . . .

no compensation affected payment is payable to the person for the lump sum preclusion period as calculated.

Note 1: For new lump sum preclusion period see subsections (5) to (8).

Note 2: A series of lump sum payments can be taken to be one lump sum compensation payment under subsection 17(2B).

The Tribunal was satisfied that the correct calculations had been made and that the preclusion period ran from 19 July 1994 to 25 September 2000. Whilst the applicant has been granted DSP on the basis of her medical conditions, a painful left foot and severe depression, there is authority that medical qualification for DSP is not in itself sufficient to constitute special circumstances (Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464). The applicant did not refer to any particular hardship or any other factors that might equate with special circumstances. In fact, the applicant gave no evidence as to her current status.

10. The T documents contain a treating doctor's report (T31) from Dr S. Bradley of Mildura who was of the opinion that the applicant suffered a major depressive illness and had recently commenced anti-depressants. Dr Bradley also noted a strong family history of psychiatric illness. She reported in her letter of 5 April 2001 that the applicant was then pregnant but that her ex-husband was not the father of her child. Dr Bradley strongly doubted that the applicant would be able to cope with a child. There is no report in the T documents relating to any psychiatric treatment in the past or any psychiatrist's opinion. In the absence of such evidence the Tribunal is unable to decide if the pregnancy and the psychiatric illness could amount to special circumstances. It is also noted that over the past few years the applicant has frequently terminated discussions with Centrelink staff and frequently changed her mind regarding a proposed course of action.

11. In view of the absence of evidence of any special circumstances and, in particular, the paucity of evidence obtained from the applicant, who terminated the hearing of her own evidence, the Tribunal finds that the preclusion period as calculated was correct and that the compensation charge of $36,833.98 was correctly raised by the Commonwealth of Australia.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd) Catherine Thomas

Clerk

Date of Hearing: 31 October 2001

Date of Decision: 14 February 2002

Solicitor for the Applicant: Nil -- IN PERSON

Solicitor for the Respondent: Nil -- Mr T. Baker, Advocate with Centrelink