Donaldson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 74 (12 January 2010)

Last Updated: 4 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 74

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4227

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Kenneth Donaldson

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date 12 January 2010

Date of Written Reasons 3 February 2010

Place Sydney

Decision

For the reasons given orally at the hearing of this application on 12 January 2010, the Tribunal affirms the decision of the Social Security Appeals Tribunal of 30 July 2009.

...................[sgd].....................
Ms N Bell, Senior Member

CATCHWORDS - Social Security - extension of time - disability support pension - lump sum compensation payment - preclusion payment - special circumstances

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 2002 (Cth)

REASONS FOR DECISION

Ms N Bell, Senior Member

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons for them were stated orally. After service upon Kenneth Donaldson and the Secretary of a copy of the decision that was in fact made, Mr Donaldson, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision. Accordingly, the following written reasons, based on the extempore reasons given on 12 January 2010 are provided here.
2. Mr Donaldson has been in receipt of a disability support pension since 2002. On 8 December 2005, Mr Donaldson was injured in an accident for which he was awarded $76,006.85 damages by the District Court of New South Wales on
   30 April 2009 to be paid by Woolworths Ltd. Of that amount, $25,000 was identified by the court as being for economic loss.
3. Mr Donaldson is appealing Centrelink’s recovery, from the awarded damages, of $7,817.74 that had been paid to Mr Donaldson in the form of a disability support pension during the preclusion period from 8 December 2005 until 12 July 2006.
4. Under section 1169 of the Social Security Act 2002, a person cannot receive both a social security payment and a lump sum compensation amount for the same period.
5. Section 1170 of the Act prescribes a formula for the calculation of the period for which a social security payment may not be paid. That is the preclusion period. The formula operates by dividing the compensation part of the lump sum, in this case, $25,000, by the income cut out amount, that is, the maximum amount a person may earn before a social security payment is no longer payable. In this case, that income cut out amount was $788.75.
6. Accordingly, Mr Donaldson’s receipt of $25,000 in compensation for economic loss is to be divided by the weekly cut off amount to obtain the number of weeks for which no social security payment may be made. The resulting figure is 31. That is 31 weeks, being 8 December 2005 until 12 July 2006, for which Mr Donaldson was precluded from receiving a social security payment.
7. Section 1178 of the Act provides for the Secretary to recover any social security payments made to a person during a preclusion period. Mr Donaldson was paid a disability support pension during that 31 week period amounting to $7,814.74.
8. The Tribunal also notes that Mr Donaldson has benefited from the court judgment identifying $25,000 as economic loss. Had Mr Donaldson settled his civil claim and not had a judgment from the court, section 17(3) of the Act would prescribe that Centrelink would use 50 % of the total compensation amount, being $38,003.43, to calculate the preclusion period.
9. Centrelink was empowered, under section 1178 of the Act, to recover the amount of disability support pension paid to Mr Donaldson ($7,814.74) directly from Woolworths’ insurer, and did so. This is so, notwithstanding that Centrelink had no involvement in Mr Donaldson’s court case, even though you invited them to attend, and even though the court made no allowance in its verdict for any amount that you might have to pay back to Centrelink.
10. Section 1184K of the Act provides for a discretion to shorten a preclusion period if appropriate in the special circumstances of a case. Special circumstances are circumstances that are unusual or out of the ordinary.
11. Mr Donaldson gave evidence that he has had several injuries that have caused him to require different types of painkillers and medication. He suffers from urinary tract weakness and irregular sleeping patterns as well as having difficulty negotiating stairwells, maintaining concentration and performing day to day tasks.
    Mr Donaldson resides in a ‘basement type situation’ at his mother’s house for which he pays board. He is currently receiving the disability support pension and has no other income. Mr Donaldson stated that he has no debts.
12. Mr Donaldson’s circumstances feature difficulties that are unfortunately not uncommon when a person has been injured and is in receipt of a disability support pension.
13. Mr Donaldson lives with the symptoms of the injuries that he sustained and other conditions. However, Mr Donaldson lives in his mother’s house, he has no debt, and although Mr Donaldson struggles with the effects of his injuries and other conditions, these circumstances cannot be said to be out of the ordinary or unusual. They are not, within the meaning of the Act, ‘special’. For that reason, I have no basis on which to exercise the discretion to shorten the preclusion period.
14. For those reasons, I affirm the decision of the Social Security Appeals Tribunal.
    

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell

Signed:..........................[sgd].................................................

Associate: Lloyd Doherty

Date of Hearing 12 January 2010

Date of Decision 12 January 2010

Date of written reasons 3 February 2010

Representative for the Applicant Unrepresented

Representative for the Respondent Mr Mark Nicoletti, Centrelink Legal Services