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Administrative Appeals Tribunal of Australia |
Last Updated: 21 February 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
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Re |
Secretary, Department of Family and Community Services |
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And |
Max Lazarus
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Tribunal |
Dr J D Campbell, Member |
Decision
SOCIAL SECURITY - blindness - disability support pension - compensation affected payment - work place injury - two payments of compensation lump sum - preclusion period - special circumstances
Social Security Act 1991- ss 17(1), 17(2), 17(2B), 17(3), 17(5A), 1170(1), 1170(2), 1170(3), 1170(4), 1170(5), 1171(1), 1184K(1)
Re Beadle and Director General of Social Security (1984) 6 ALD 3
Beadle v Director General of Social Security (1985) 60 ALR 228
Groth v SDSS (1995) 40 ALD 545
SDSS v Smith (1991) 30 FCR 56
SDSS v Ellis (1997) 46 ALD 7
SDFACS v Edwards (2000) 105 FCR 220
7 February 2003 |
Dr J D Campbell, Member |
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1. In this matter, the Secretary, Department of Family and Community Services (the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 8 May 2002 which determined to disregard so much of the compensation received by Mr M Lazarus ("the Applicant") which would allow the preclusion period to end on 8 November 2004. This decision had set aside the decision by an authorised review officer ("ARO") dated 18 December 2001 that determined that a preclusion period would exist from 6 June 2001 to 6 September 2005. This latter decision had affirmed an earlier decision dated 22 June 2001 taken by an authorised delegate of the Respondent to impose a preclusion period from 6 June 2001 to 6 September 2005.
2. A hearing was held before the Tribunal in Sydney on 27 November 2002 at which the Applicant was represented by Mr G Lozynsky, an advocate from the Administrative Law Advocacy Team at Centrelink. Mr M Lazarus was self-represented and presented oral evidence to the Tribunal. Mr M Foley, a solicitor, attended as a friend to the Respondent.
3. The following material was introduced into evidence before the Tribunal:
Exhibit |
Description |
Date |
T1-T39 p1-p94 |
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 |
|
A1 |
Applicant's Statement of Facts and Contentions |
1 October 2002 |
R1 |
Respondent's Statement of Facts and Contentions |
8 October 2002 |
R2 |
Respondent's Statutory Declaration |
9 August 2002 |
ISSUES
4. The relevant issues in this matter are:
(a) whether, by reason of the receipt of lump sum compensation payments, the Respondent is precluded from receiving compensation affected payments from 6 June 2001 until 6 September 2005; and
(b) if so, whether there are special circumstances by reason of which the receipt of part or all of the lump sum compensation payment should be disregarded.
LEGISLATION
5. The relevant legislation is the Social Security Act 1991 ("the Act") and in particular sections 17(1), 17(2), 17(2B), 17(3), 17(5A), 1170(1), 1170(2), 1170(3), 1170(4), 1170(5), 1171(1), 1184K(1).
BACKGROUND
6. Mr Lazarus was born on 24 July 1969. Mr Lazarus was granted a Disability Support Pension ("DSP") (permanent blindness) on 16 January 1992. Mr Lazarus was injured while at work on 4 January 1999. As a result of his injury at work, Mr Lazarus lodged a Claim for Compensation on 23 December 1999. Mr Lazarus received a lump sum payment of $50,000 pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (NSW) on 30 August 2000 as a result of a consent agreement. Mr Lazarus received a further lump sum compensation payment on 5 June 2001 of $200,853.51 as a consequence of a court approved commutation of weekly payments of compensation. On 22 June 2001 Centrelink imposed a preclusion period from 6 June 2001 to 6 September 2005 and issued a notice, which included the recovery of a charge of $340.70, the latter being an amount equal to the quantum of DSP paid between 6 June 2001 and 21 June 2001. Solicitors acting for Mr Lazarus requested a review on 13 September 2001 and 23 September 2001 and on each occasion the original decision was affirmed (18 September 2001 and 29 September 2001 respectively). Solicitors acting for Mr Lazarus requested a review by an authorised review officer on 3 December 2001 and the decision was affirmed on 18 December 2001. On 14 March 2002 Mr Lazarus lodged an appeal with the SSAT, who on 8 May 2002 set aside the original decision and determined that the preclusion period would end on 8 November 2004.
EVIDENCE OF MR LAZARUS
7. Mr Lazarus told the Tribunal that he became legally blind in 1983, completed school in 1987 and worked as an apprentice greenkeeper with Canterbury Council until 1995, thereafter as a senior greenkeeper with the New Brighton Golf Club. Mr Lazarus stated that he had occasional problems while working, often associated with the time of the day when following a line while spraying. Mr Lazarus stated that he first received the Disability Support Pension (permanent blindness) at the age of 27, there being a period when he was unaware of such entitlement. Mr Lazarus indicated that he was unable to read anything, experienced some difficulties with train travel, but had no problems with caring for his own personal hygiene and undertakes tasks around the house, including activities in the kitchen, mowing but no whipper snippering.
8. In 1999, while working at New Brighton Golf Club, Mr Lazarus injured his back and leg when he fell into a trench. Following attempts by his employer to place him in suitable employment, Mr Lazarus' employment was terminated because he could not be usefully employed. Mr Lazarus applied for compensation in December 1999 and on 30 August 2000 an award was entered by consent for the payment of $50,000 in relation to sections 66 and 67 of the Workers Compensation Act 1987 (NSW). Mr Lazarus indicated that he used this money to pay off a mortgage and undertake some home renovations. Mr Lazarus indicated that he had taken a mortgage in 1999/2000 and was able to cope with the repayment schedule while still at work.
9. Later in the year 2000 Mr Lazarus stated that the family moved from Wattle Grove to Bargo, where they purchased a five bedroom house on a five acre property for $415,000. Mr Lazarus told the Tribunal that the relocation was undertaken to assist in the care of his four children who suffer from asthma, more so in winter. Mr Lazarus indicated that the balance of the mortgage on the Bargo property was less than $200,000 at the time of the hearing.
10. Mr Lazarus indicated that there was no economic component in his first lump sum compensation payment (pain and suffering in relation to permanent injuries) of $50,000, and that he continued to receive a weekly compensation payment of $465.00 gross ($370.00 net) from the insurance company, until June 2001 when he received a lump sum compensation payment of $200,853 as a consequence of a court approved commutation of the weekly periodic payments. Mr Lazarus stated that this money was expended against the mortgage ($100,000) aside loan ($20,000), a Toyota Land Cruiser ($60,000) and maintenance/home office ($20,000).
11. Mr Lazarus indicated that he was advised of a compensation payment preclusion period, although initially he felt there had been some confusion.
12. Mr Lazarus indicated that all his lump sum payments have been expended as detailed: that his current assets include a home at Bargo (no idea of value, but has added carport and undertaken some concreting at the back); household assets and a motor vehicle. Mr Lazarus indicated that his liabilities included the mortgage (less than $200,000) and that he has no other debts.
13. In addressing the issue of income, Mr Lazarus stated that:
* his wife earns $52,000 - $54,000 a year as a teacher;
* he earns $292.00 gross ($250.00 net) a week undertaking casual work for his brother (since 8 January 2002);
* he receives a mobility allowance of $64.30 per fortnight; and
* his wife receives a family assistance payment of $171.64 per fortnight for his family of four children aged 8, 6, 4, and 2.
14. In addressing the issue of household expenditure, Mr Lazarus stated that monthly household expenses approximated $4,200 including:
* mortgage payment of $1,400 per month;
* other expenses as detailed at T31.
15. Mr Lazarus also confirms the issues raised in his statutory declaration of 9 August 2002 (Exhibit R2), in which he indicated that he had commenced working for his brother in a part-time casual administrative position for 18 hours per week since 8 January 2002, for which he receives $250.00 net a week. Such employment, although casual, does restrict Mr Lazarus' flexibility and indeed his ability to care for the children, if they have to be admitted to hospital on account of their asthma.
16. Mr Lazarus also indicated that he has been provided with various workplace modifications by CRS Australia, with the equipment moving with him if he changes employer. He indicates that he is seeking work through the Northcott Society, as his current income is insufficient to meet family requirements.
17. Mr Lazarus also detailed how employment with his brother had lowered the family assistance payment ($339.00 down to $172.00 per fortnight), childcare rebate was reduced associated with an increase in childcare payments of about $100.00 per week. Mr Lazarus said that he also lost the family health care card and associated pensioner benefits.
18. Mr Lazarus also indicated to the Tribunal that his blindness does cause increased family burdens, in that his inability to drive places a particular onus on his wife and friends for transport needs for him and the children Mr Lazarus also indicated to the Tribunal that the family did receive some outside assistance in the form of a Christmas hamper.
MEDICAL EVIDENCE
19. In a report dated 24 November 1999, Dr G Mahony, a Consultant Orthopaedic Surgeon, opined that Mr Lazarus had experienced injuries to his left knee and lumbar spine with some suggestion of nerve root irritation (T4, p21, 22). Apart from an assessment report also dated 24 November 1999, there are no further medical reports relating to these injuries before the Tribunal.
20. A low vision assessment report undertaken by Ms L Madden at the Royal Blind Society on 9 November 1998 indicated that the Respondent had a visual activity with glasses of 6/90 right eye and 6/72 left eye for distance vision and N32 near vision, without glasses.
SUBMISSIONS
APPLICANT
21. The Applicant submitted that in light of the particular circumstances in this matter, namely, the Respondent's blindness, his subsequent payment of DSP, his injury at work, two lump sum payments of compensation and the imposition of a preclusion period, that nothing had been done that was inconsistent with the Act.
22. In addressing issues of special circumstances the Applicant acknowledged the Respondent's blindness, the variable asthmatic condition of the four children, the move to Bargo, and the financial circumstances of the family. In all of those nominated circumstances, the Applicant did not consider that any or combination of all amounted to special circumstances in that they were neither unusual, uncommon nor exceptional.
23. The Applicant, in noting the reasoning of the SSAT in their decision dated 8 May 2002 raised the issue that section 17(2B) of the Act had been repealed on 20 September 2001 and that if the preclusion period relating to the receipt of multiple lump sum compensation payments had been worked out without reference to that section, the preclusion period would have ended on 8 November 2004. The Applicant submitted that the SSAT had failed to consider section 1171 of the Act, which was introduced into the Act at the same time as section 17(2B) was repealed namely 20 September 2001. As the new section 1171 has the same effect as the repealed section 17 (2B), the Applicant contends that the SSAT's reasoning was not correct.
RESPONDENT
24. Mr Lazarus contends that his circumstances constitute special circumstances in that:
(a) the condition for which he receives DSP namely blindness, is different to and unrelated to the injuries for which he received lump sum compensation payments;
(b) he continues to suffer from the effects of his compensation related injuries;
(c) his disability of blindness is a severe barrier to his obtaining employment in the open labour market, with his current employment with his brother being casual;
(d) as a consequence of the casual employment, the family received an overall loss of income through the reduction of the rates of payment of certain Commonwealth benefits;
(e) during the period of unemployment, prior to obtaining his casual employment, such circumstances caused considerable domestic issues;
(f) the family faces special disadvantage by reason of the Applicant's blindness and by their place of residence in an isolated area; and
(g) the younger two children suffer from severe asthma and have required him to stay with them during periods of overnight hospitalisation, causing in turn a loss of income.
25. The Respondent further contended that, while recognising that he has problems because of his blindness, the decision to relocate to Bargo was for the betterment of the family and the children especially, and that he has worked arduously to ensure the family received an appropriate standard of living.
CONSIDERATION AND FINDING
26. In addressing the issues raised in this matter, the Tribunal makes the following finding of facts:
(a) the Respondent was granted a DSP (permanent blindness) on 16 January 1992;
(b) the Respondent was injured at work on 4 January 1999;
(c) the Respondent received two lump sum compensation payments, namely:
(i) $50,000 on 30 August 2000 for pain and suffering; and
(ii) $200,853.51 on 5 June 2001 (commutation of weekly periodic compensation payments).
27. The Tribunal acknowledges the following statutory framework which details the following:
* section 94 of the Act which nominates the requirements necessary to qualify for DSP, which include the presence of particular physical intellectual or psychiatric impairments, an assessment of these impairments to be 20 points or greater and a continuing inability to work;
* section 95 of the Act nominates that permanent blindness subject to particular age and residential criteria, is a disability which satisfies the qualification for DSP;
* section 17(1) of the Act includes a DSP as a compensation affected payment;
* section 17(2) of the Act defines compensation to include a payment made under a scheme of insurance or compensation or a payment made in settlement of a claim for damages or a claim under such an insurance scheme or where a payment is in the form of a lump sum or in the form of a series of periodic payments that have been made wholly or partly in respect of lost earnings or lost capacity to earn;
* section 17(2B) of the Act details that either a person receives more than one lump sum whether simultaneously or at different times in relation to one or more injuries arising from the same event and that at least one of the payments is made wholly or partly in respect of lost earnings or lost capacity to earn. This section was repeated on 20 September 2001 by Act No 71, 2001 (Family and Community Services Legislation/Simplification and other Measures) Act 2001;
* section 17(3) of the Act defines the compensation part of a lump sum compensation payment in the following terms:
17(3) For the purposes of this Act, the compensation part of 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 judgement 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 or 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 judgement 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".
* section 17(5A) nominates the event that gives use to a person's entitlement to compensation:
"17(5A) For the purposes of subsection (2B) of this section and Part 3.14, the event that gives rise to a person's entitlement to compensation for a disease, injury or condition is:
(a) if the disease, injury or condition was caused by an accident - the accident; or(b) in any other case - the disease, injury or condition first becoming apparent;
and is not, for example, the decision or settlement under which the compensation is payable."
* section 1168(1) states:
"Subject to subsections (4), (5), (6) and (7), if:
(a) a person or a person's partner receives a series of periodic compensation payments; and(b) the person receives or claims a compensation affected payment for the periodic payment period; and
(c) the person was not, at the time of the event that gave use to the entitlement of the person, or the person's partner to the compensation, receiving a compensation affected payment referred to in paragraph (6);
the rate of the person's compensation affected payment is to be reduced in accordance with this section, for the periodic payments period.
...
Note 2. If a person, or a persons' partner, was, at the time of an event that gave use to the entitlement of the person or the persons' partner, to compensation, receiving a compensation affected payment, the compensation is treated as ordinary income
..."
* section 1170 of the Act defines the lump sum preclusion period:
"Lump sum preclusion period
1170(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:
(a) begins on the day following the last day of the periodic payments period or, where there is more than one period payments period, the day following the last day of the last periodic payments period; and(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
1170(2) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:
(a) begins on the first day on which the person's periodic compensation payment is a reduced payment because of that choice; and(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
1170(3) If neither of subsection (1) and (2) applies, the lump sum preclusion period is the period that:
(a) begins on the day on which the loss of earnings or loss of capacity to earn began; and(b) ends at the end of the number of weeks worked out under subsection (4) and (5).
1170(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:
compensation part of lump sun income out amount
1170(5) If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number."
[History: section 1170 inserted by Act No 71, 2001, by section 3 Schedule 1(19)]
* section 1171 of the Act is concerned with separate lump sum compensation payment and provides:
"Deemed lump sum payment arising from separate payments
1171(1) If:
(a) a person receives 2 or more lump sum payments in relation to the same event that gave rise to an entitlement of the person to compensation (the multiple payments); and
(b) at least one of the multiple payments is made wholly or partly in respect of lost earnings or lost capacity to earn;
the following paragraphs have effect for the purposes of this Act and the Administration Act;
(c) the person is taken to have received one lump sum compensation payment (the single payment) of an amount equal to the sum of the multiple payments;
(d) the single payment is taken to have been received by the person:(i) on the day on which he or she received the last of the multiple payments; or
(ii) if the multiple payments were all received on the same day, on that day.
1171(2) A payment is not a lump sum payment for the purposes of paragraph (1)(a) if it relates exclusively to arrears of periodic compensation."
[History: section 1171 inserted by Act No. 71, 2001, by section 3 Schedule 1(19)]
28. In addressing the facts as nominated against the statutory framework as outlined, the Tribunal makes the following observations:
(a) the Respondent was in receipt of a DSP prior to the injury at work which led to two lump sum compensation payments, the last of which was paid on 5 June 2001 and which related to a commutation of periodic weekly compensation payments being paid for loss of earnings or lost capacity to earn;
(b) the Respondent, while in receipt of a DSP (permanent blindness), could continue to receive periodic weekly compensation payments, as such payments would be treated as ordinary income, with his DSP (permanent blindness) not being subject to a rate reduction as DSP (permanent blindness) is not subject to the income or assets test;
(c) the Respondent was in receipt of a DSP (permanent blindness) and pursuant to section 17(1) of the Act, such a payment is considered to be a compensation affected payment and as such is subject to the compensation provisions of Part 3.14 of the Act;
(d) the Respondent, pursuant to section 1171(1) of the Act did receive two lump sum compensation payments, with the second payment being received on 5 June 2001, and together they amounted to $253,853.51;
(e) that the primary determination to impose a preclusion period was taken on 22 June 2001 and the authorised review officer's affirmation of that decision was taken on 18 November 2001, with section 17(2B) of the Act being repeated and section 1171 of the Act inserted by Act No..71, 2001 (Family and Community Services Legislation/Simplification and Other Measures) Act 2001;
(f) with the repeated section of the Act and the newly enacted section 1171 of the Act having a similar purpose and effect, no detriment or benefit flowed to the Respondent by virtue of the legislative changes to the Act;
(g) that the compensation part of the lump sum is 50 per cent of the lump sum compensation figure of $250,853.51, namely $175,426.75; that the denominator pursuant to section 1170(4) of the Act is $562.75, with a resultant preclusion period.
(h) that the preclusion period commences 6 June 2001 (pursuant to section 1170(1) of 222 weeks and concludes on 6 September 2005.
29. In the light of the reasoned observations made, the Tribunal concludes that the preclusion period should commence on 6 June 2001 and cease on 6 September 2005, with any payments of compensation affected payments to the Respondent during this period becoming recoverable by way of a charge over the compensation lump sum. The Tribunal observes that a charge of $340.70 was calculated and received by the Applicant.
30. The Tribunal, having determined that the Respondent's preclusion period has been correctly established and calculated, turns to a consideration of section 1184K(1) of the Act which provides:
"1184K(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."
31. The Tribunal observes that the issue of what constitutes special circumstances has been the subject of much consideration. In Re Beadle and Director General of Social Security (1984) 6 ALD Toohey J stated at 3:
" 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 on 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. "
32. The Tribunal further notes the comments of the Full Federal Court in Beadle v Director General of Social Security (1985) 60 ALR 228:
" Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate. For example, where the delay beyond six months was due to the claimant's being misled by a departmental officer or was due to the negligence of a third party it might be thought the normal six months would be inappropriate: that special circumstances had been shown which warranted a longer period. More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. 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."
33. Similarly in Groth v SDSS (1995) 40 ALD 545, the Federal Court, in dismissing an appeal against a finding of the Tribunal, made the following comment at 545:
"The Tribunal held that Mr Groth's circumstances are not out of the ordinary when regard is had to those subject to the provisions of Part 3.14 which, as I have said, means simply that the section can be seen to have the same effect on him as it does to other persons qualified to receive such a pension. It went on to find that his circumstances and those of his family although difficult, did not constitute hardship and they could not be said to be different from other pension recipients. There is, I consider, no error disclosed in the reasoning to this conclusion. In reality, as the Deputy President noted, the difficulty in which Mr Groth is placed results from the level of pension, set by the legislation and not because it has special consequences for him."
34. Further in SDSS v Smith (1991) 30 FCR 56, the Federal Court per Von Doussa J at 61-62 stated:
"It is contended on the appellant's behalf that 'the circumstances of the case' could be confined to matters which arise external to the operation of the scheme. An example of such a matter given in argument is where the payment by way of compensation is not received by the plaintiff because of a defalcation by an agent to whom the money is paid on his behalf. I do not think a distinction can meaningfully be drawn between matters external to the operation of the scheme and matters which are the product of the strict application of ss152 and 153. The facts peculiar to a particular person cannot be considered in isolation from the operation of the provisions of ss 152 and 153. The operation of those sections in the light of the facts surrounding the person concerned is part of the circumstances of the case. The circumstances of a particular case will give rise relevantly to an unreasonable or unjust result only if the operation of Part XVII, apart from the ameliorating provisions of s156, produces that result."
35. In SDSS v Ellis (1997) 46 ALD 7, the Federal Court made the following comment when considering the issue of entitlement to a compensation affected pension arising independently to that giving use to weekly compensation payments:
"In my view, the Tribunal was entitled to take into account a whole host of facts in the factual matrix of considering whether it was appropriate, in the special circumstances of the respondent's case, to exercise the discretion conferred by s 1184(1). One such circumstance was the fact that her entitlement to SPP arose independently of the work-caused injury which resulted in her entitlement to workers' compensation payments. When that factor is taken into account, it can be seen that the respondent cannot be described as 'double dipping'. It is also relevant to the decision of how much, if any, of the workers' compensation payments are to be disregarded. The Social Security Appeals Tribunal and the Tribunal decided that it would be appropriate to disregard so much of the workers' compensation payments as would put the respondent in the same position as if she had earned those payments by way of wages. The Tribunal cannot be said to have focused on that factor to the exclusion of all others. Its primary findings were that there was 'unacceptable hardship' and 'quite desperate' financial circumstances The Tribunal was, in my opinion, quite entitled to take into account the absence of any relationship between the entitlement to SPP and the work-caused injury as part of an overall assessment whether there were special circumstances. I do not consider that the Tribunal erred in law in the manner contended."
36. The issue raised in Ellis and Smith (supra) was further commented on by the Federal Court in SDFACS v Edwards (2000) 105 FCR 220 with Drummond J at 229 stated:
"Far from saying that the absence of a causal relationship between pensionability and compensability is irrelevant to the task of considering whether to apply s 1184(1), sub-section (2) acknowledges that it is a relevant consideration but by itself, is not sufficient to require the benefit of s 1184(1) to be given to the pensioner, at least when the question arises as to whether a pensioner should be left with pension unaffected despite the spouse's receipt of compensation. In Secretary, Department of Social Security v Smith (1991) 30 FCR 56, von Doussa J held that it was a consideration of relevance to the exercise of the discretion under a precursor of s 1184(1) that the supervening incapacity for work that attracted pension payments was unrelated to the earlier injury that attracted compensation."
37. The Tribunal in addressing the matters raised as constituting special circumstances does note that the Respondent's blindness, being the issue that related to the Respondent receiving a compensation affected payment, namely the DSP and the work related injury which gave rise to the lump sum compensation payments are unrelated. This alone in the Tribunal's review is insufficient to constitute special circumstances, as it is clear that the Act intends that the Compensation Recovery Provisions in Part 3.14 of the Act should be applied to such a situation, unless there are circumstances arising from implementation which creates circumstances for the Applicant which arise from his condition of blindness and are of such of nature as to be uncommon, unusual or exceptional.
38. The Tribunal, in recognising the special nature of the DSP (permanent blindness, as regards the necessary qualifications as opposed to the detailed qualifications required for section 94 DSP, concludes that for special circumstances to exist, unfairness to the individual must occur as a consequence of the operation of the Act as prescribed, to the extent that such unfair outcomes must be uncommon, unusual or exceptional, and in so doing create significant or unacceptable hardship for the Respondent.
39. In addressing the outcomes in this matter the Tribunal details the following considerations:
(a) the Respondent suffers from blindness and this impairment causes barriers to mobility, employment and domestic/parenting flexibility. Further the cause of and existence of the blindness in unrelated to the work related injury that gave rise to the compensation payments. Further the Respondent as a consequence of his work related injury has and continues to experience difficulty in securing desirable employment;
(b) the Respondent received $250,000 in lump sum compensation and employed such money to secure appropriate family accommodation in a rural area, purchased a motor vehicle appropriate to conveying a family of six, reduced the amount owing by way of mortgage and had undertaken the necessary renovations and improvements necessary for appropriate habitation;
(c) the Respondent and his family financial circumstances have improved in terms of net assets, but income and expenditure analysis reveal a situation where there is a minimal surplus, if any, on an annual basis, despite an annual gross income in the order of $75,000 approximately (wife $52-54,000 gross, Respondent $15,184 gross, mobility allowance and family assistance $6,134);
(d) the financial circumstances described have to take into account expenditure associated with child care, health problems, with the two younger children suffering from severe asthma, travel costs to the work of the Respondent, together with the casual nature of his employment, mortgage repayment and general living costs for a family of six, with two working parents.
40. The Tribunal, in considering all the matters raised in this appeal, concludes, that for the following reasons, special circumstances are not found to exist:
(a) while the non payment of DSP during the preclusion period creates a financial detriment to the Respondent, this should be balanced in part by the Respondent's capital asset accumulation, as a result of him and his partner's decision to invest the lump sum compensation money in the way that they have elected to do;
(b) that while no criticism is intended by the Tribunal of the way in which the Respondent and his wife have elected to spend the lump sum compensation payments, it must be observed that these investment decisions have been taken by the Respondent and his wife in the full knowledge of the Respondent's disability, the existence of a preclusion period and their overall financial circumstances;
(c) that implementation of the Compensation Recovery Provisions in Part 3.14 of the Act have not, even in the circumstances of the Respondent's blindness, created a financial situation which could be considered exceptional or uncommon or unusual, in that the Tribunal observes that while the Respondent and his family have difficulty in balancing month by cash flow, this does not constitute financial hardship;
(d) that the medical condition of asthma which affects the four children and more so the younger two and which has required overnight hospitalisation attendance in that past is neither uncommon or unusual and as such does not constitute a special circumstance;
(e) that the Respondent, was aware despite some earlier contrary advice from the Applicant, that a preclusion period would be imposed by the Applicant and that any expenditure of the lump sum compensation payment was made with that knowledge;
(f) that the reasoning of the SSAT was in error, when it relied upon the repealof section 17(2B) of the Act without considering the effect of the enactment of section 1171 of the Act, both activities undertaken concurrently with the passage of the Family and Community Services Legislation (Simplification and Other Measures) Act No 71, 2001;
(h) that when all circumstances nominated are considered together, there is in the Tribunal's view no resultant outcome, which would permit the Tribunal to conclude that the Respondent's circumstances are exceptional, unusual or uncommon. Further the particular issue of his blindness not creating circumstances which could be considered special, either alone or in combination, with other circumstances, in the light of the Compensation Recovery Provisions in Part 3.14 of the Act being implemented has been explored by the Tribunal, with the Tribunal concluding that such implementation has not created circumstances in which the Respondent has been treated unfairly, or indeed treated in a manner which has created an unusual, uncommon and exceptional outcome.
41. For the reasons nominated in this decision the Tribunal finds that special circumstances do not exist in this matter.
DETERMINATION
42. The Tribunal determines that the decision under review be set aside and in substitution therefor determines that :
(a) special circumstances are not found to exist; and
(b) the Respondent is prevented fro receiving compensation affected payments during the preclusion period, commencing 6 June 2001 and ceasing on 6 September 2005.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed:
Associate
Date of Hearing 27 November 2002
Date of Decision 7 February 2003
Representative for the Applicant Self
Advocate for the Respondent George Lozynsky
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