Andrews and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 139 (6 March 2009)

Last Updated: 12 March 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4995

GENERAL ADMINISTRATIVE DIVISION

)

Re

ANTHONY ANDREWS

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Date 6 March 2009

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..............[Sgd]................................
MEMBER

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – settlement of compensation claim – lump-sum compensation payment includes component referable to lost earnings and capacity to earn – imposition of preclusion period – special circumstances not established – no part of settlement treated as not having been received – preclusion period not shortened – decision under review affirmed

Social Security Act 1991 (Cth), ss 17, 1169, 1170, 1184K

Workers’ Compensation and Injury Management Act 1981 (WA)

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9

Re Davis and Secretary, Department of Family and Community Services (1999) 56 ALD 793

Director-General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281

Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541

Re Hajar and Secretary, Department of Social Security (1988) 16 ALD 716

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

Re Males and Secretary, Department of Family and Community Services [1999] AATA 863; (1999) 57 ALD 793

Re Nguyen and Secretary, Department of Family and Community Services [2004] AATA 249; (2004) 80 ALD 642

Re PGVK and Secretary, Department of Families, Housing, Community Services and

Indigenous Affairs [2008] AATA 381

Re Ryan and Secretary, Department of Families, Housing, Community Services and

Indigenous Affairs [2008] AATA 1126

Secretary, Department of Family and Community Services v Allan [2001] FCA 1160; (2001) 66 ALD 147

Re Secretary, Department of Family and Community Services and Jones [2003] AATA 505; (2003) 74 ALD 480

Re Secretary, Department of Family and Community Services and Peak [2003] AATA 1212; (2003) 79 ALD 734

Re Secretary, Department of Family and Community Services and Pearce [2003] AATA 972; (2003) 78 ALD 771

Re Secretary, Department of Family and Community Services and Rankin [1999] AATA 496

Re Secretary, Department of Family and Community Services and Spencer [2004] AATA 248; (2004) 80 ALD 484

Secretary, Department of Social Security v Smith (1991) 23 ALD 277

Re Secretary, Department of Social Security and VYS (1995) 40 ALD 745

Re Stavrakis and Secretary, Department of Family and Community Services [2003] AATA 212; (2003) 73 ALD 432

REASONS FOR DECISION

6 March 2009 Mr R G Kenny, Member

BACKGROUND

1. On 29 May 2006, Anthony Andrews, through his solicitor, consented to judgment being entered in the District Court of Western Australia for the lump-sum of $340,000 exclusive of compensation paid pursuant to the Workers’ Compensation and Injury Management Act 1981 (WA) (“the WA Act”), plus $20,000 for costs, plus proven disbursements. In total, the lump-sum amount before disbursements was $471,672.98. This was paid in response to his claim for damages, which alleged employer negligence resulting in a serious back injury (disc prolapse) on 8 August 2003. Following the injury, Mr Andrews received periodic compensation payments under the WA Act until 21 May 2004 amounting to $32,222.08. He also received income support payments, in the form of newstart allowance and disability support pension, under the Social Security Act 1991 (the Act) amounting to $24,725.20.
2. On 29 June 2006, a Centrelink delegate determined that, as a result of the receipt of a lump-sum payment, Mr Andrews was subject to a preclusion period from 22 May 2004 until 11 June 2010. The effect of that decision was that Mr Andrews was precluded from receiving certain forms of income support payments, including newstart allowance and disability support pension.
3. On various occasions from May 2007 to May 2008, Mr Andrews contacted Centrelink and requested a review of the decision concerning the preclusion period. The decision was formally affirmed by a Centrelink delegate on 9 May 2008, by an authorised review officer on 15 May 2008 and, in turn, by the Social Security Appeals Tribunal (“the SSAT”) on 18 September 2008. Mr Andrews now seeks review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).
   

ISSUES AND LEGISLATION

4. Where a person receives compensation monies which include a component referable to lost earnings or lost capacity to earn, provision is made in the Act for the imposition of a period during which certain income support payments are precluded. Mr Andrews does not dispute the application of the relevant provisions of the Act concerning the imposition of and the calculation of the duration of the preclusion period imposed upon him. These provisions are set out in ss 17, 1169 and 1170 of the Act and require the number of weeks of the preclusion period to be calculated by applying the formula:

compensation part of lump sum

income cut-out amount

5. Centrelink determined that the compensation part of Mr Andrews’ lump-sum was $219,725.45 and the income cut out amount was $693.88. Application of the formula led to a preclusion period of 316.6 weeks, which equates to the period from 22 May 2004 until 11 June 2010.
6. The issue raised by Mr Andrews relates to the operation of s 1184K(1) of the Act which makes provision for disregarding part or all of the lump-sum payment. This will result in the shortening of the applicable preclusion period. It reads:

“s1184K 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”.

EVIDENCE

Mr Andrews

7. Mr Andrews gave the following evidence. After all the relevant expenses had been taken out of his lump-sum settlement payment, including the repayment of the $24,725.20 he had received from Centrelink, Mr Andrews was left with approximately $340,000, which he deposited into his bank account.
8. He was living in Western Australia with his wife and children in 2003 when he was injured. Up until then, he was fit and healthy, consumed alcohol infrequently, rarely gambled, had no history of illicit drug taking and had only taken prescription drugs for ailments such as headaches or infections. He worked in the mining industry which had a “zero” policy in relation to drugs and alcohol. This was enforced through frequent testing. He earned approximately $1,600 per week and his wife was entrusted with the family’s finances.
9. After the accident, he spent some three weeks in hospital where he underwent two surgical procedures on his injured spine. He described these as being unsuccessful and as leaving him with almost constant, severe pain. He has taken medication for pain relief since then. Initially, for two months, this was morphine in the form of MS Contin, which made him feel nauseous. His doctor changed the medication to OxyContin, which is similar in its pain relief capacities to morphine. Despite this, he was not free of pain. He had difficulty sleeping and he became depressed. His weight increased. He took a drug overdose on 1 February 2004, on 24 February 2004, on 23 March 2004 and on 20 April 2004. On the first occasion, he was initially treated at the Fremantle Hospital before being moved to Perth’s Armadale Hospital, where he was taken on the other occasions of overdose. Mr Andrews and his family then moved to Queensland and stayed, initially, with his parents in Charters Towers. He again overdosed on 21 November 2004 and was taken to the Charters Towers Hospital. He referred to this as his first real attempt to commit suicide because, on this occasion, he had also cut his wrist. His evidence was that this was brought on by the level of back pain he was experiencing.
10. Mr Andrews and his wife have been separated since October 2005, when she and the children left Charters Towers. This caused a worsening of Mr Andrews’ feelings of depression. He began to have panic attacks and his pain continued at a level where he began to use illicit drugs. These included cannabis, but mainly comprised amphetamines in the form of “speed” to which he was introduced by a friend. His use of speed escalated and he also used some prescription drugs. These included additional OxyContin, morphine, Valium and sleeping pills. He said that 98% of this drug usage involved speed. The drugs were obtained in Charters Towers and Townsville from “black market” dealers who were aware that he was to receive a financial settlement and who extended credit to him. He said, initially, that, at the time of the settlement, he had only one drug debt of $5,000 to $6,000. Mr Andrews was referred to a written statement, dated 27 January 2009, where he wrote that he owed $30,000 for drugs at that time. In attempting to explain the difference, Mr Andrews said that the amount of the debt would have increased to that level about a month after receiving his lump-sum settlement.
11. While he was living in Charters Towers, Mr Andrews’ general practitioner was Dr Kevin Zischke. He was also treated by Townsville-based pain specialist Dr Roger Watson. Mr Andrews told Dr Zischke of his drug usage and also revealed his habit to Dr Watson, who merely advised him to “be careful”.
12. Mr Andrews began to engage in gambling on poker machines when he was filling in time in Townsville waiting for drug dealers to supply him with drugs. Subsequently, he would go to a club, pub or the casino to consume alcohol and to play the machines. He continued to have trouble sleeping and would stay at the casino well into the morning. He increased his daily ATM withdrawal limit to $1,600 and used this money for the poker machines. He would also attend his bank in person to make larger withdrawals. He realised that his bank balance was diminishing but continued with his drug usage, alcohol consumption and gambling. He did not receive any professional advice on managing his financial affairs. It was not referred to by his lawyer although this was recommended to him by his mother. He could not recall any Centrelink letters that provided any such recommendations.
13. Mr Andrews left Charters Towers in December 2007 and moved to the Gatton area. He lives in Laidley and attends his general practitioner, Dr Paul Triggs, in Gatton. He lives in a house with Catherine O’Brien for whom he is the carer. He receives a carer allowance from Centrelink for this in the amount of $105.60 per fortnight. He gives this money to Ms O’Brien to contribute to household expenses. He is able to assist Ms O'Brien with household tasks at times when he is less affected by his pain. These include cooking, cleaning and shopping. Apart from the $105.60 per fortnight, he pays no rent and is provided some meals by her. He has also supplemented this with food vouchers from local community services.
14. Mr Andrews stopped regular use of illicit and additional prescribed medication when his money ran out. He has used speed on four occasions since leaving Charters Towers and his last time was at Christmas 2008 when a friend gifted him some. He also uses marijuana on a weekly basis and finds this of assistance in easing pain. He said that there were no real difficulties in ceasing speed as it did not have the same addictive qualities as opiates. He described a psychological rather than the physical withdrawal associated with cessation of opiate drugs.
15. Mr Andrews purchased a motor vehicle for $55,000 and a house in Greenvale for $100,000 shortly after receiving his settlement payment. Greenvale is a mining town and he hoped that, one day, he might be able to return to work in the mining industry. He furnished the house and lived there for a few months. When the remainder of his money had been used by March 2007, he sold both the car and house, realising $32,000 and $85,000, respectively. He spent most of this money on drugs, alcohol and gambling. Apart from ATM withdrawals, Mr Andrews was not able to identify many particular amounts which he paid to others. However, they included sums of $26,000, $30,000 and $32,000 which he paid for drugs, and $10,000 paid to a friend whose car he had damaged before the settlement monies were paid. They also included an amount of $9,000 to purchase a car some time in 2007 for his then girlfriend and which was “written off” by her two days later. Currently, his only significant asset is a 1998 model car, which was gifted to him by his parents in December 2008. He thought it was worth about $5,000.
16. In a statement of financial circumstances completed by Mr Andrews on 24 April 2008, he declared that he was “homeless” at that time and living in the streets with no income and only $1.50 to his name. In evidence, he conceded that he was living at Ms O’Brien’s at the time and receiving the carer allowance. He explained the discrepancy by stating that he was upset when he was completing the form. Mr Andrews said that he had been sleeping in parks prior to moving to Ms O’Brien’s house in December 2007. He was in Gatton at that time and obtained vouchers for food and medication from LINC, the Centrelink agency there.
17. Mr Andrews said he was not advised by his lawyer that he would be liable to a preclusion period, was unsure whether Centrelink had advised him of this in 2006, and only became fully aware of it in 2007 when he sought to have it removed. However, he also said that he became aware of it when his income support payment ceased. This was in July 2006, and he conceded that he may have received a letter from Centrelink with such advice at that time.
18. Other conditions from which Mr Andrews suffers include Tourette syndrome and epilepsy. The former was diagnosed when he was a child and manifests itself with uncontrolled twitching, changes in facial expressions and involuntary vocalisation. He was trialled with various medications for this condition but, after an adverse reaction to this when he was 15 years old, he has taken no such medication since. His first epilepsy seizure occurred in February 2008. When first treated, he had several grand mal seizures daily until the correct medication type and dosage were settled. He continues to take phenytoin but experiences a seizure approximately monthly. He said that he is alerted by warning symptoms of the onset of these seizures. There is also material before me which suggests that Mr Andrews has suffered from depression.
19. Mr Andrews said that the only medications he now takes regularly are OxyContin for his pain and phenytoin for epilepsy. The reason for this was that the cost of filling prescriptions is prohibitive and he only takes those that he really needs. He must pay the full prescription price as he has no health card to reduce the costs. He said that two applications to Centrelink for such a card have not been successful. For the first, he was advised by Centrelink that he had not applied for the correct card. For the second, he was asked by Centrelink to provide further information about his financial circumstances and he did not provide this at that time. A third application with all the relevant information is currently being processed. He cannot afford even the medications OxyContin and phenytoin, and has been managing in recent times by obtaining vouchers from community organisations. In a strategy worked out by Dr Triggs in relation to OxyContin, Mr Andrews is required to attend his local pharmacy each morning where he is provided with two OxyContin tablets. One of these is taken under supervision at the pharmacy and the second he takes with him to ingest that evening. He said that he had been advised by LINC in Gatton and the Laidley community support group that they were unable to provide him with vouchers indefinitely.
20. Mr Andrews would like to be able to obtain employment but could not perform anything physically demanding because of his back pain which would also prevent work which involved sitting or standing for long periods. He said that his Tourette syndrome and epilepsy would also inhibit him in obtaining work.

Ms Carol Hughes

21. Ms Hughes is a clinical social worker at the Laidley Hospital. Mr Andrews was referred to her for ongoing counselling after he moved to Laidley. She confirmed that Mr Andrews has been in receipt of vouchers for food and medication from the community centre in Laidley and the LINC agency in Gatton. She believed that the allocation of these vouchers to Mr Andrews would not continue indefinitely.

Dr Paul Triggs

22. Dr Triggs provided a report dated 21 January 2009. He referred to Mr Andrews being opiod dependent and listed his conditions as laminectomy and also Tourette syndrome and grand mal epilepsy. He noted that Mr Andrews attends Alcohol, Tobacco and Other Drug Services (“ATODS”), an agency of Queensland Health which provides counselling for his dependency. He also listed the following as the medications he has prescribed for Mr Andrews: Celebrex, clindamycin, diazepam, Maxolon, OxyContin, phenytoin, Somac and Zoloft.

Dr Peter Morero

23. Dr Morero, in his report dated 1 May 2008, noted that Mr Andrews was then being treated for opiate dependence. He referred to previous high dosages of OxyContin. Dr Morero was aware of the previous intravenous and other drug use by Mr Andrews and noted that this had ceased and that Mr Andrews wanted to decrease his use of all opiate drugs as well. Dr Morero had reduced the dosage of OxyContin marginally but said that he was still taking quite high doses to minimise withdrawal symptoms. Dr Morero expressed the opinion that Mr Andrews would not be capable of undertaking work of a kind that he had previously done and that work such as that in an office, in sales or in using a computer would take significant retraining. His assessment of Mr Andrews was that he appeared to be genuine in his desire to cease using pain killers.

Other evidence

24. Reports from Fremantle Hospital, Armadale Hospital and Charters Towers Hospital record admissions for drug overdosages as described above. The last report, from Charters Towers Hospital, confirms that Mr Andrews had cut his wrist on that occasion. It also records an incident where Mr Andrews “put his head through plate glass” at the hospital. Both his wrist and head wounds required suturing.
25. In evidence was a letter, dated 2 November 2004, written by Mr Andrews’ lawyer to Centrelink. It attached a Charge/Preclusion Form and requested that Centrelink provide details of any charge amount or preclusion period which might apply in the event that Mr Andrews received a lump-sum settlement of his injury claim. The Form estimates a settlement sum of $300,000. However, the component of the Form which is to be completed by Centrelink is not filled out. Mr Hamilton, for the respondent, expressed the opinion that no information about a preclusion period or any estimate of the amount of monies to be repaid to Centrelink was provided to Mr Andrews by Centrelink until after he had consented to the settlement.
26. In evidence were file-notes by Centrelink officers, including one which refers to oral advice given to Mr Andrews about the preclusion period on 28 June 2006. Those notes also include an exchange between an officer and Mr Andrews’ solicitor on 28 June 2006 indicating that the settlement monies had not yet been paid to Mr Andrews by that date. Also in evidence was a copy of a letter sent to Mr Andrews on 3 July 2006, which advises that Centrelink payments would cease because of the settlement and that the preclusion period was to be imposed. A further file-note, dated 19 July 2006, indicates that information concerning the preclusion period was sent to Mr Andrews’ solicitor on that date.
27. Other Centrelink memos in evidence show that the carer allowance was paid to Mr Andrews from 21 December 2007 and also that Mr Andrews contacted Centrelink on 17 May 2007 advising that he was suffering financial hardship at that time and seeking to challenge the preclusion period.

SUBMISSIONS

28. Mr Andrews was not represented by a lawyer. However, Ms Hughes spoke on his behalf. She submitted that Mr Andrews’ circumstances were special when the full range of matters that have occurred to him were taken into account. This included the constant pain from his back; the need to take additional drugs to relieve his pain; the fact that he underwent two surgical procedures on his back; his suicidality; his other health problems of depression, Tourette syndrome and epilepsy; an absence of a health care card; an inability to obtain work; the separation from his wife and children; as well as his financial situation.
29. Mr Hamilton submitted that Mr Andrews’ behaviour after receiving his settlement payout was entirely a matter of choice which he made and which was reckless in nature. He submitted that his choice to use drugs and alcohol and to gamble excessively meant the money was not available to carry him through the preclusion period. He submitted that it was not appropriate for public monies to be expended to serve that purpose. He submitted that the change in Mr Andrews’ pattern of behaviour was more related to the departure of his wife than to a need to take additional drugs for pain relief. He submitted that there was no evidence of addiction in a clinical sense and that this was supported by his ability to cease the drug use when his money ran out. He submitted that Mr Andrews is not living in straitened circumstances as he has a roof over his head, contributes to the running of the household of Ms O’Brien with his fortnightly carer’s allowance and has been able to access his pain relief and epilepsy medication.

CONSIDERATION

30. As noted above, it has been conceded by Mr Andrews that the provisions of the Act by which a formula is applied to compensation payments in order to calculate the length of a preclusion period have been properly applied. That was also Ms Hughes’ position. I am satisfied that these concessions are properly made and that the preclusion period has been correctly calculated at 22 May 2004 until 11 June 2010.
31. The purpose of those provisions has been the subject of judicial comment. They have been described as operating as a:

“... fair balance of the interests of the recipient of the payment with the competing interests of others in the community whose needs must be met as far as possible from a finite budget allocation for social security measures” [1].

32. Similarly, they have been described as a safeguard against “double dipping” in that:

“People should not receive social security payments for loss of earnings where they have received compensation for that same loss of earnings from another source” [2].

33. Those considerations must be kept in mind when determining, for the purposes of applying s 1184K(1) of the Act, whether or not special circumstances arise in a given case. The issue of special circumstances arises in various parts of the Act. In the context of other aspects of the Act, it was observed that what is required is:

“... something to distinguish ... [the] ... case from others, to take it out of the usual or ordinary case ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary” [3].

34. That observation is equally applicable to s 1184K(1) of the Act. Accordingly, there must be something about Mr Andrews’ situation which makes it unusual or uncommon such that it distinguishes it from the ordinary or usual case[4].
35. Mr Andrews’ evidence was that he was not given advice by his solicitor about the preclusion period. That is supported by the Form, noted above, which reveals an attempt by the solicitor to obtain that information before the consent order was made but no information in response. Mr Hamilton conceded there was no Centrelink documentation which demonstrated that Mr Andrews had been made aware of the preclusion period prior to his consenting to the settlement. The solicitor’s letter of request was dated some 18 months prior to the Court’s consent order. Perhaps, the solicitor could have followed up with a further request but there is no evidence before me in relation to that. There have been cases where a legal adviser’s failure to properly advise a person in Mr Andrews’ position has given rise to an exercise of discretion under s 1184K(1) of the Act[5]. Generally, however, this will not be the case on the basis that it is a matter between client and solicitor[6]. Further, if the recipient of the lump sum is made aware of the preclusion period at the time of, or shortly after, the receipt of the settlement monies, the significance of an absence of earlier advice is lessened[7].
36. Mr Andrews has not been consistent in his evidence about being made aware of the preclusion period. At one point in his evidence, he said that this was in 2007 when he sought to have it removed. However, he also said that it was when his income support payment ceased in July 2006. As noted above, a Centrelink officer’s file-note refers to oral advice to Mr Andrews of the preclusion period on 28 June 2006, and the letter to Mr Andrews on 3 July 2006 clearly advised him of the preclusion period. Mr Andrews conceded that he may have got this letter of advice. The Centrelink officer’s file-note also shows that he had not received his monies at that time. A further file-note indicates that information concerning the preclusion period was sent to Mr Andrews’ solicitor on 19 July 2006. On the evidence before me, I am satisfied, on the balance of probabilities, that Mr Andrews was aware of the preclusion period within a few weeks of the Court Order and before he received his lump-sum payment.
37. I have concerns about other aspects of Mr Andrews’ evidence.
38. Mr Andrews is recorded in the reasons published by the SSAT as saying that he sold his car and house between May and October 2007 and still owned them when he approached Centrelink on 17 May 2007 to have the preclusion period waived. This led the SSAT to infer, correctly on that evidence, that he was again reminded of the length of the preclusion period before he gained access to the monies from the sale of his car and house. In his evidence before me, he denied that and said that he sold the car and house in March or April 2007. No documentary evidence was provided to support the dates of disposal or, indeed, that they were purchased at all.
39. Mr Andrews gave evidence concerning the level of his drug debt as at the time of receiving his settlement monies. He said, initially, that, at that time, he had only one drug debt of $5,000 to $6,000 because his drug use occurred mainly after his settlement. His written statement, dated 27 January 2009, stated that he owed $30,000 for drugs at that time. His unconvincing explanation was that the amount of the debt would have increased to the higher level in the month after his settlement.
40. Reference is made above to the statement of financial circumstances completed by Mr Andrews on 24 April 2008. He conceded that information provided there about “living on the streets”, being “homeless” and being without income was incorrect because he was living at Ms O'Brien’s at the time and receiving the carer allowance. Again, his explanation that he was “upset” when providing that incorrect information is unconvincing.
41. Mr Andrews suffers constant pain, which precludes him from obtaining employment. Those consequences, and the need to undergo surgery, are directly related to the injuries for which he was compensated. It is not an unusual or uncommon consequence that the compensated condition would lead to those outcomes such that the discretion under s 1184K(1) of the Act would be enlivened[8]. He suffers from Tourette syndrome but receives no treatment for this condition. He has suffered from epilepsy since February 2008 but this, in the main, has been stabilised with appropriate medication. Depression was noted in treating doctors’ reports completed on 2 June 2004, by Dr Bede Rogers and, on 27 January 2005 and 28 April 2005, by Dr Zischke. However, this condition is not identified in the later reports of Dr Triggs or Dr Morero. Both Dr Rogers and Dr Zischke expressed the opinion that the condition was secondary to Mr Andrews’ back condition. If Mr Andrews has depression, it is associated with the condition for which Mr Andrews was compensated and it is not an uncommon or unusual consequence of his experiencing pain.
42. Hospital reports confirm that Mr Andrews was admitted to hospital in early 2004 and in December 2004. His belief was that only the last of these involved an attempt to commit suicide and that is recorded in the report from Charters Towers Hospital. There is no psychiatric evidence before me that Mr Andrews remains a suicide risk. Dr Zischke refers to self harm in the past but it is not referred to by Dr Rogers, Dr Morero or Dr Triggs.
43. Access to a health care card would substantially assist Mr Andrews in obtaining his medication without the need to rely on vouchers. He has a claim for this presently under consideration by Centrelink. His claim has been rejected on two occasions. A file-note, dated 26 October 2006, records the first rejection being based on Mr Andrews’ income at that time. Mr Andrews’ later claim was not processed because Mr Andrews did not provide relevant information requested by Centrelink. Whether his current claim will be granted or not is unknown. However, his income circumstances have changed and it would seem that he has now provided Centrelink with relevant information such that it will lead to his being provided with the card.
44. Mr Andrews’ separation from his wife and children in October 2005 has had a significant impact on him. It was after this that he began to increase his use of drugs which escalated further after he received his settlement payment. However, separation of spouses is not at all uncommon in Australian society and does not take Mr Andrews’ circumstances out of the ordinary.
45. While financial hardship is a relevant consideration in this matter, it will not generally constitute a special circumstance unless the financial hardship goes beyond straitened circumstances and is truly exceptional[9]. No documentary evidence, such as bank statements, was provided by Mr Andrews about his financial situation. His evidence is that he now has none of his settlement monies left. However, he has the benefit of the carer allowance and his accommodation needs are met. He has been able to sustain himself through the benevolence of community organisations and his financial situation will improve in the event that the health care card is made available to him. He also has a motor vehicle, which he considered to be worth $5,000. His situation does not equate with being beyond those of straitened circumstances.
46. There have been cases where financial hardship brought about through the influence of a psychiatric condition on a person’s conduct has been found to satisfy the terms of s 1184K(1) of the Act. With many of these, there existed a psychiatric condition which compelled the gambling, or led to a state of intoxication during which the gambling occurred[10]. There is no evidence that Mr Andrews has suffered from alcohol abuse or alcohol dependence. Nor is there any evidence of any underlying pathological basis for his continuation of gambling.
47. Mr Andrews’ drug usage has been described by Ms Hughes as an addiction. There is no medical evidence that Mr Andrews was addicted to illicit drugs such as speed. However, both Dr Morore and Dr Triggs refer to Mr Andrews’ opiate dependence and some fraction of his settlement was spent on additional amounts of OxyContin. However, in his evidence, he described 98% of his drug usage as being related to speed. Given that he also obtained from drug dealers other prescription drugs as well as marijuana, I am satisfied that his opiate dependence played only a minimal role in his desire to consume opiate drugs such as OxyContin. In any event, his evidence was that he paid some $88,000 to drug dealers, which would mean that the majority of the expenditure of his settlement monies was through gambling.
48. I accept as correct Mr Hamilton’s submission that Mr Andrews’ alcohol consumption and gambling, as well as almost all of his drug taking, constitute a reckless exercise of choice by him and I am satisfied that his engagement in those activities does not amount to a special circumstance under s 1184K(1) of the Act[11].
49. When considering the discretion in s 1184K(1) of the Act, all relevant circumstances are to be taken into account[12]. Of relevance in this matter is the inconsistent nature of some aspects of Mr Andrews’s evidence as noted above and the absence of any supporting documentation in relation to his expenditure, such as bank statements and transfer papers relating to the purchase and sale of property and motor vehicles. I am satisfied that there are no circumstances, either individually or in conjunction with each other, that are special such as to meet the requirements of s 1184K(1) of the Act.

DECISION

50. The Tribunal affirms the decision under review.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member.

Signed: ...................[Sgd]..........................................................

Matyas Kochardy, Research Associate

Date of Hearing 28 January 2009

Date of Decision 6 March 2009

Applicant was assisted by Ms Carol Hughes

For the Respondent Mr Robert Hamilton, Departmental Advocate

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[1] Secretary, Department of Social Security v Smith (1991) 23 ALD 277 at 281-282 per von Doussa J.
[2] Secretary, Department of Family and Community Services v Allan [2001] FCA 1160; (2001) 66 ALD 147 at 148 per Heerey J.
[3] Groth v Secretary, Department of Social Security ([1995] FCA 1708; 1995) 40 ALD 541 at 545 per Kiefel J.
[4] Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 at 18.
[5] Re Secretary, Department of Social Security and VYS (1995) 40 ALD 745.
[6] See Re Hajar and Secretary, Department of Social Security (1988) 16 ALD 716.
[7] See Re Ryan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 1126.
[8] See Re PGVK and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 381.
[9] Director-General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281 at 321 and see Re Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690 at 700.
[10] Re Secretary, Department of Family and Community Services and Spencer [2004] AATA 248; (2004) 80 ALD 484; Re Nguyen and Secretary, Department of Family and Community Services [2004] AATA 249; (2004) 80 ALD 642; Re Secretary, Department of Family and Community Services and Pearce [2003] AATA 972; (2003) 78 ALD 771; Re Males and Secretary, Department of Family and Community Services [1999] AATA 863; (1999) 57 ALD 793 at 795 [26].
[11] See Re Secretary, Department of Family and Community Services and Rankin [1999] AATA 496; Re Secretary, Department of Family and Community Services and Peak [2003] AATA 1212; (2003) 79 ALD 734; Re Secretary, Department of Family and Community Services and Jones [2003] AATA 505; (2003) 74 ALD 480; Re Stavrakis and Secretary, Department of Family and Community Services [2003] AATA 212; (2003) 73 ALD 432 at 436; Re Davis and Secretary, Department of Family and Community Services (1999) 56 ALD 793; and Re Ryan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 1126 at [23].
[12] Re Davis and Secretary, Department of Family and Community Services (1999) 56 ALD 793.