Price and Department of Family and Community Services

[2001] AATA 177

DECISION AND REASONS FOR DECISION [2001] AATA 177

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/339

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      JEFFREY JAMES PRICE            
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date9 March 2001

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that so much of the compensation payment be disregarded in order for the preclusion period to be reduced so that no compensation charge is due to Centrelink.           

(Sgd)         DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
SOCIAL SECURITY - compensation charges - error by Centrelink in providing quote for the preclusion period - whether Centrelink obliged to check information on their computers when calculating quote - whether special circumstances existed.

Social Security Act 1991  ss 1184
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

9 March 2001          Deputy President DP Breen, Presidential Member                  

1. This was an appeal against a decision of an Authorised Review Officer on 20 August 1999. That decision affirmed a determination that a compensation charge of $23,649.60 was owing to the Commonwealth and only exercised the discretion under Section 1184 of the Social Security Act 1991 to reduce the end of the preclusion period from 24 August 2000 to 6 August 2000.   The decision was affirmed by the Social Security Appeals Tribunal on 2 December 1999.

2. The matter was heard by me in Gladstone on 11 December 2000.  Mr R McQuinlan, Department Advocate represented the respondent while both Mr and Mrs Price spoke to the Tribunal.  The "T" Documents were taken into evidence.

3. Mr Price was injured at work in both 1987 and 1990 and was finally put off work due to his asthma and a general unfitness for work in 1994.  He received sickness payments from his employer for two to three months.  He received Workers' Compensation Payments until 20 June 1996 and then went on a disability support pension.

4. Mr Price was a plaintiff in a class action against his employer with respect to his work-related injuries.  A mediation session was held on 9, 10 and 11 June 1999.  Mr Price had, through his solicitors, obtained quotes for all of the expenses which would have to be repaid to organisations such as the Health Insurance Commission, Workers' Compensation and Centrelink.  Mr Price said there was great pressure on the plaintiffs to settle their cases at the mediation or to face contesting them in a long and bitter battle through the Courts.  He had his solicitors negotiate a settlement which included funds to repay all of the amounts which would be owing.

5. When Mr Price first went on sickness benefits he made sure that Centrelink was given all the information they required and was kept up-to-date with respect to any changes.  On 31 May 1999, Mr Price's solicitors filled in an application form seeking a quote as to the preclusion period which would apply and any subsequent repayments which would have to be made.  The solicitors failed to include information on the form as to the Workers' Compensation Payments which Mr Price had received.  Although Centrelink had the correct information on file, they acted only on the information on the form and informed the solicitors that the preclusion period would run from 30 March 1987 to 13 February 1994 and that there would be no compensation charge owing.  Mr Price agreed to settle his claim with his employers on the basis of the quote he was given by Centrelink.

6. In August 1999, when the solicitors officially informed Centrelink of the compensation settlement, Centrelink officially calculated the preclusion period referring to the information in their computers. They informed Mr Price that since he had been receiving Workers' Compensation Payments until 20 June 1996, the preclusion period would now run from 21 June 1996 to 6 April 2000 and a compensation charge of $23,649.60 was now due. An Authorised Review Officer reviewed the matter on 20 August 1999 and determined that in fact the preclusion period should have run until 24 August 2000, but exercised his discretion under Section 1184 of the Social Security Act so that the preclusion period ended on 6 April 2000 as previously advised.  Mr Price did not object to the fact that a person who has received compensation for economic loss should be precluded from receiving social security benefits as well.  His point of appeal was that he would have settled his claim for an amount which included what he had to repay to Centrelink if he had known it was owing.  He did not feel that it was fair that Centrelink could adjust their claim after all his avenues against his employer were exhausted.

7. Subsection 1184(1) of the Social Security Act 1991 is as follows:

   "(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."

1. There is no legislative definition of "special circumstances" but the phrase has been considered judicially on a number of occasions.  In the case of Re Beadle and Director-General of Social Security (1984) 6 ALD 1, it was held that the circumstances in question must be "unusual", "uncommon" or "exceptional" in order to be considered "special".

2. One would certainly hope that the disregarding of relevant information within Centrelink's possession when giving advice is an "unusual", "uncommon" or "exceptional" occurrence for Centrelink.  Mr Price had provided all of the relevant information to Centrelink when he applied for his disability pension.  Although the solicitors forwarded an incomplete form to Centrelink when seeking the quote, Centrelink failed to check their computer to ensure that they had the complete information required.

3. Not only would this be a quick and easy procedure, it would assist in ensuring that Centrelink's clients are receiving accurate information about matters which can be quite complex.  It would be quite a different matter if Centrelink had never been provided this information and only had the solicitor's incomplete form to work from.  This is clearly not the case here.  Mr Price acted in full reliance on the quotation given to him when negotiating what he appreciated to be his one and only chance at settlement.  He was detrimentally affected as a result of that reliance.

4. In the Tribunal's view this is a sufficiently "unusual", "uncommon" or "exceptional" case in which it is appropriate to exercise the discretion under Section 1184 of the Act.

5. For the above reasons the Tribunal sets aside the decision under review and in substitution therefor determines that so much of the compensation payment be disregarded in order for the preclusion period to be reduced so that no compensation charge is due to Centrelink.

   I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

   Signed:         Emma Oettinger
     Associate

   Date/s of Hearing  11.12.00
   Date of Decision  9.3.01
   Rep. for the Applicant              Applicant and his wife
   Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate