Lewis and Secretary to the Department of Family and Community Services [2002] AATA 939 (16 October 2002)

Last Updated: 18 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 939

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1346

GENERAL ADMINISTRATIVE DIVISION

Re: SUZANNE CHRISTINE LEWIS

Applicant

And: SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 16 October 2002

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - lump sum compensation - preclusion period - whether special circumstances exist to treat all or part of the payment as not having been made

Social Security Act 1991 s1184(1)

Director-General of Social Services v Hales (1983) 47 ALR 281

Groth v Secretary, Department of Social Security (1996) 40 ALD 541

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

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

REASONS FOR DECISION

16 October 2002 G.D. Friedman, Member

1. This is an application by Suzanne Christine Lewis (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 18 September 2001. The SSAT affirmed a decision of an authorised review officer of Centrelink dated 24 May 2001 that a compensation preclusion period would apply from 23 June 2000 to 1 July 2004, and that no special circumstances existed to warrant disregarding all or part of the lump sum settlement received by the applicant.

2. On 2 July 2002 the Tribunal directed that the matter proceed on the basis of written submissions and that a hearing would not be held. The material before the Tribunal comprised the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T39), one exhibit (Exhibit A1) tendered on behalf of the applicant, a written submission dated 31 July 2002 by the applicant and a written submission dated 26 June 2002 on behalf of the Secretary to the Department of Family and Community Services (the respondent).

BACKGROUND

3. On 4 June 1987 the applicant was injured in a motor vehicle accident on her way to work. She suffered neck, back and shoulder pain and underwent surgery in 1998. In June 1998 the applicant received weekly compensation payments from 27 May 1998 to 22 June 2000. On 14 October 1999 the applicant settled her claim for damages in the amount of $27,905 and on 7 March 2001 she received a common law settlement of $205,000 which included a component for future loss of earnings.

4. The applicant was in receipt of disability support pension (DSP) for the period 28 August 2000 to 6 March 2001. On 20 March 2001 Centrelink calculated that the applicant was subject to a compensation preclusion period from 23 June 2000 to 1 July 2004, based on her lump sum compensation. Centrelink sought recovery of $6286.45 being the amount of DSP paid to the applicant during part of the preclusion period. On 24 May 2001 an authorised review officer of Centrelink affirmed the decision. On 2 August 2001 the applicant applied to the SSAT for review of the decision and following the decision of the SSAT the applicant lodged an application with the Tribunal on 19 October 2001.

EVIDENCE

5. In a written submission dated 31 July 2002 the applicant told the Tribunal that she believed that special circumstances exist to treat her compensation payment as not having been made. She stated that after the motor vehicle accident she returned to work for six months, but because of severe pain she was unable to continue. Later she obtained employment as a law clerk in various solicitors' offices in Melbourne. She said that at that time she was a single parent and had responsibility for the care of her elderly parents. She said that her father died in 1995 and her mother in 1997, and after selling their house she received $45,000 and decided to move to the United Kingdom to live with her daughter.

6. On her return to Australia about one year later, the applicant had no accommodation, no money and no job. She said that she became depressed. Eventually she obtained employment as a conveyancing clerk, but the pain in her neck became more severe, and surgery in 1998 helped to ease the pain. The applicant stated that she has residual pain and restricted movement in her neck and left arm.

7. The applicant told the Tribunal that when she received the compensation payment she purchased an automatic motor vehicle. She said that she was due to be evicted from her rented accommodation, so she purchased a town house for $242,500 with the settlement money and her savings. She said that her solicitor did not advise her against the purchase, and had assured her that the preclusion period commenced from the date of the accident in 1987.

8. The Tribunal was told that the applicant is unemployed and is suffering financial problems. She said that she has applied unsuccessfully for a number of positions but feels that she is unable to work full-time. She stated that she has debts including an amount owing on her credit card ($5000), body corporate fees, council and water rates, motor vehicle registration and insurance, plus normal living expenses. In support of her application she explained that she is approaching the end of her working life, she believes that it would be unfair to expect her to exhaust all her own resources before becoming eligible for social security benefits, and she is likely to require future medical treatment. She also stated that the purchase of the property was necessary because of her past difficulties, her solicitor gave her incorrect advice, she is receiving treatment for depression and anxiety, and her uncertain future is exacerbating her medical condition.

CONSIDERATION OF THE ISSUES

9. Section1184(1) of the Social Security Act 1991 (the Act) provides:

1184(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.

10. In its written submission the respondent told the Tribunal that financial hardship must go beyond straitened circumstances to constitute special circumstances (Director-General of Social Services v Hales (1983) 47 ALR 281). The respondent submitted that at the time of the settlement of the compensation claim the applicant was informed of the preclusion period and the consequences of exhausting the settlement money. Therefore, the respondent contended, the exercise of the discretion in accordance with s1184(1) of the Act was not warranted as special circumstances did not exist.

11. In reaching its decision the Tribunal takes into account the written material including the submissions made by the parties. Section 1184(1) of the Act allows the decision-maker to consider the particular circumstances of each case. There must be something to distinguish the case from others, or to make it stand out from the usual or ordinary (Groth v Secretary, Department of Social Security (1996) 40 ALD 541). In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal held that special circumstances must be unusual, uncommon or exceptional. In Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464 the Tribunal held that the fact that a person's state of health is such that the person may be medically qualified to receive DSP is not of itself sufficient to constitute special circumstances.

12. The Tribunal accepts that events in the applicant's life have led to financial difficulties including the requirements of ongoing medical treatment for injuries arising from the motor vehicle accident in 1987. The Tribunal also accepts that the applicant has made a genuine attempt to seek suitable employment. However, the Tribunal accepts the submission made on behalf of the respondent that the applicant was aware of the consequences of expending her settlement money during the preclusion period and she chose to use all her available funds to purchase a property rather than seeking alternative accommodation. The Tribunal concludes that the applicant is receiving appropriate medical treatment and is capable of obtaining some form of part-time or temporary employment to assist her financial position.

13. After considering all relevant matters and viewing the applicant's case in its entirety, the Tribunal is not satisfied that the matters raised by her, including the state of her financial or medical situation, are such as to make her circumstances unusual, uncommon or exceptional. Her circumstances while difficult are not special circumstances. Therefore, the exercise of the discretion under s1184(1) of the Act to disregard the compensation received in whole or in part, is not appropriate in this instance.

DECISION

14. The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd) Olympia Sarrinikolaou

Clerk

Date of hearing: Nil - decision on papers

Date of decision: 16 October 2002

Advocate for applicant: Self-represented

Advocate for respondent: Mr T. Baker, Centrelink