The Applicant contentions are summarised as follows:
[2]
a) the compensation ordered by the Personal Injury Commission should not be included in the calculation of the preclusion period;
>
> b) disability support pension - permanent blindness is not a 'compensation affected payment' for the purposes of the Act; and
>
> c) if the pension is a compensation affected payment it should have been suspended and not cancelled.
[3]
Before determining whether there is a preclusion period, I must address the Applicant's first two contentions.
The Applicant contends that Centrelink was incorrect in determining there is a preclusion period or, in the alternative, the quantum of that preclusion period.
I have already set down subsection 17(1) of the Act, which states that disability support pension is a 'compensation affected payment'. This subsection does not distinguish between disability support pension and disability support pension - permanent blindness. There are no other legislative provisions that support the Applicant's contention that the recipients of disability support pension who are permanently blind are not in receipt of a compensation affected payment.
I have also carefully considered the Guide; there is no reference in the Guide that even suggests that disability support pension paid to a person who is permanently blind is not properly characterised as a compensation affected payment.
I accept the Act dictates that a person who is permanently blind is manifestly qualified for disability support pension[15] and the Act dictates different rates of payments when a person is permanently blind.[16] However, these provisions simply relate to qualification and the rate of payment. These provisions, in and of themselves, do not mean that a permanently blind recipient of disability support pension is not in receipt of a compensation affected payment.
I conclude that disability support pension - permanent blindness is a compensation affected payment for the purposes of subsection 17(1) of the Act. My conclusion is consistent with the decisions of the AAT in Morgan and Department of Family and Community Services[1999] AATA 168 and Yell and Secretary, Department of Social Services Australia[2023] AATA 2451.
I next considered the contention that the compensation ordered by the Personal Injury Commission should be excluded from the calculation of the compensation preclusion period.
I have already determined that the compensation payment made by GIO Insurance included a component for lost earnings. As outlined above, section 1171 of the Act requires that if a person receives separate payments arising from a single event their compensation payments are the sum of those multiple payments provided that any of those payments were not in respect to arrears of a periodic compensation.
Therefore, Centrelink was correct to apply section 1171 of the Act and treat the two compensation payments as a single lump sum. It follows that the application cannot succeed on this ground.
Application of the applicable divisor to the formula set down in subsection 1170 of Act means that Centrelink correctly imposed a preclusion period of 109 weeks for the period 11 August 2022 to 11 September 2024.
[4]
Should all or part of the compensation payment be treated as not having been made?
[5]
The Applicant contends that all or part of the preclusion period should be waived pursuant to section 1184K of the Act.
I make the following findings on the basis of the Applicant's submissions, medical evidence and his, and his daughter's, testimony at hearing.
I accept the Applicant's evidence regarding his current and historical financial circumstances. From the GIO Insurance settlement he repaid $25,104.40 to Centrelink, reflecting the disability support pension paid to him during the preclusion period. He also was required to contribute $22,000 to Medicare. After payment of all legal fees the applicant received $142,895.60.[17] As at 9 April 2025 Centrelink records indicate that he has savings of $164,148 and managed investments of $135,566.
The Applicant explained that prior to the compensable event he was second in charge of a charitable organisation and lead a team. He attempted to secure alternate work, but eventually an employment provider deemed him unemployable. His vision continues to deteriorate and he cannot even read documents as he once did. This is affecting his mental health as well.
The Applicant is in receipt of age pension and reported that he receives a part pension from his superannuation. The Applicant and his wife live in their own home over which there is a mortgage of between $75,000 to $100,000. At hearing the Applicant reported that monthly repayment are about $650 and "not a big deal". He does not intend to use the lump sum to clear the mortgage as he relies on these savings to meet his daily expenses. He reported that after meeting all necessary costs he and his wife are usually short about $1,000 per month. They make the shortfall up from their savings and receive financial support from their children.
The Applicant was asked specifically at hearing about costs associated with his disability. He reported that he regularly receives acupuncture treatment and supplements. He reported that he also requires assistive technology and mobility aids. He estimates that the costs associated with his disability are about $5,000 per annum. Further, his ophthalmologist had suggested procedures to stimulate his retina cells, but he does not know the cost of such procedures. He had previously travelled to Canada to receive treatment (at a cost of about $15,000 each trip) which he reported was very beneficial. He can no longer afford to undertake this treatment.
The Applicant and his wife were in receipt of New Zealand payments, based on their period of residency in that country.[18] As a result of his disability support pension being cancelled, his and his wife's New Zealand payments were also cancelled and a debt raised in the amount of NZD$635.28. A debt was also raised in his wife's name. Repayment of the debt has been placed on hold until the outcome of this review is known.
At hearing the Applicant explained that he is now in receipt of age pension; as a consequence of the cancellation of his disability support pension upon the preclusion period ending he was no longer qualified for disability support pension. This has impacted on him financially, primarily because the age pension is subject to the income and asset test. He also testified that because his disability support pension was cancelled his wife was no longer entitled to carer payment and now must wait to be eligible for age pension.
The medical evidence before me indicates that the Applicant suffers from severe visual dysfunction from retinitis pigmentosa,[19] with a date of onset being 9 September 1999.[20] He also suffers from depression.[21] I accept the Applicant's evidence that his wife suffers from anxiety and must attend counselling. Additionally, he was not well after his injury and this placed her under a lot of pressure.
I had regard to the relevant case law, including the AAT decision of Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] AATA 99 (Topp) where Senior Member Taylor determined that permanent blindness may not be sufficient to justify the exercise of the discretion in section 1184K of the Act.[22] However, if the blindness was not related to the compensable injury, the additional costs arising from that disability will not be met by the compensation payments. Therefore, if the former recipient of disability support pension - permanent blindness has no other income or assets their blindness, together with other considerations, may give rise to a finding of special circumstances.[23] I understand Topp to enunciate the principle that blindness together with other factors, including no other income or assets to meet the costs associated with the person's disability, may result in a finding of special circumstances.
The Applicant relies on the matter of Hanrahan and Secretary, Department of Family and Community Services[2002] AATA 1128 (Hanrahan 1). Like Mr Hanrahan, the Applicant was diagnosed with retinitis pigmentosa; therefore, their blindness was not caused by the compensable event.[24] The Tribunal determined that blindness is a disability that imposes particular costs upon an individual[25] and that a strict interpretation of the statutory requirements would mean that the Applicant's necessary costs would interfere with his independence and so special circumstances existed.[26] In the decision of Hanrahan and Secretary, Department of Employment and Workplace Relations[2007] AATA 1417 (Hanrahan 2) the Tribunal determined that Mr Hanrahan was disadvantaged when compared to other disability support pension recipients because the compensable event resulted in him no longer receiving the pension,[27] that he was provided incorrect information from Centrelink, his expenses exceeded his income[28] and there were other factors[29] that led to the finding that in their totality, his circumstances were special to warrant deciding that the whole of Mr Hanrahan's compensation payments are to be treated as not having been made.
I am not persuaded that the totality of Applicant's circumstances give rise to a finding of special circumstances. It is not apparent that the Applicant's circumstances are consistent with those of Mr Hanrahan. Instead, they can be distinguished. Whilst his evidence was such that his expenses exceed his income and so he must draw on his compensation funds, he still has significant funds available to him. Putting aside the fact that he did not provide corroborating evidence as to his overall financial position including that his expenses exceed his income or that he is in receipt of financial support from his children, the Applicant is in receipt of age pension and has significant liquid assets (aside from his managed investments). The financial investment summary provided by the Respondent[30] indicates that the Applicant and his wife's combined assets are below the pension asset threshold for homeowners.[31] Therefore, he is in receipt of the full rate of age pension. Whilst I acknowledge that the costs associated with his disability are about $5,000 per annum and that, through no fault of his own, the compensable event meant that he no longer entitlement to receive disability support pension upon the preclusion period ending I am not satisfied that this is sufficient to exercise the discretion.
Taking all these factors into account I am not persuaded that the Applicant's current financial and personal circumstances amount to special circumstances so as to warrant the exercise of the discretion contained in section 1184K of the Act. Therefore, there are no grounds upon which all or part of the compensation payments as not having been made.
[6]
Should the pension have been suspended or cancelled?
[7]
The Applicant contends that the disability support pension should have been suspended and not cancelled.
Again, there is no legislative provision that supports the Applicant's contention. Certainly, if considering subsection 80(1) of the Administration Act in isolation, such a discretion exists. However, subsection 80(2) is clear; subsection 80(1) does not apply if the payment has been cancelled by the operation of another provision of social security law.
The relevant provisions in this matter are sections 93 and 94 of the Administration Act, which result in 'automatic' cancellations; that is, there exists no discretion to suspend a payment rather than cancel it.
It is apparent that Centrelink accept that the Applicant did comply with his reporting requirement in notifying Centrelink of the change to his circumstances.[32] At hearing the Applicant stated that he did not receive the letter dated 30 May 2022. Whether the Applicant did or did not notify of his receipt of a compensation affected payment has no practical effect in this case; it would simply change the date of the cancellation and not the cancellation.
Sections 93 and 94 of the Administration Act both dictate that the payment must be cancelled, they simply state that the date of cancellation is different. Even if I were to determine that the Applicant did notify Centrelink of receipt of the compensation payment within the notice period, it would simply mean that the payment would be cancelled at best at either the end of the disability support pension instalment period when the change occurred or at the end of the notification period.
I have determined that there is no scope in this matter to suspend the Applicant's disability support pension. This finding is consistent with Ryan J's conclusion in MacDonald v Secretary, Department of Family and Health and Community Services and Indigenous Affairs [2009] FCA 1142:[33]
[8]
In this case, Mr MacDonald's DSP ceased to be payable upon its automatic cancellation pursuant to s 93 of the Administration Act by force of his having given notice of a specified event or change of circumstances. There was no scope for the Secretary to have determined, pursuant to s 80(1) of the Administration Act, that Mr MacDonald's DSP was to be suspended because s 80(2) expressly provides that: (2) Subsection (1) does not authorise the Secretary to make a determination if: (a) the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and (b) the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.
[9]
I conclude that Centrelink correctly cancelled the Applicant's disability support pension pursuant to section 93 of the Administration Act.
(b) that relates only to arrears of periodic compensation
[23]
(1) Subject to subsection (2), if a person receives both periodic
[24]
compensation payments and a lump sum compensation payment,
[25]
(a) begins on the day following the last day of the periodic
[26]
payments period or, where there is more than one periodic
[27]
payments period, the day following the last day of the last
[28]
(b) ends at the end of the number of weeks worked out under
[29]
(2) If a person chooses to receive part of an entitlement to periodic
[30]
compensation payments in the form of a lump sum, the lump sum
[31]
(a) begins on the first day on which the person's periodic
[32]
compensation payment is a reduced payment because of that
[33]
(b) ends at the end of the number of weeks worked out under
[34]
(3) If neither of subsections (1) and (2) applies, the lump sum
[35]
(a) begins on the day on which the loss of earnings or loss of
[36]
(b) ends at the end of the number of weeks worked out under
[37]
(4) The number of weeks in the lump sum preclusion period in relation
[38]
to a person is the number worked out using the formula:
[39]
(5) If the number worked out under subsection (4) is not a whole
[40]
number, the number is to be rounded down to the nearest whole
[41]
1171 Deemed lump sum payment arising from separate payments
[42]
(a) a person receives 2 or more lump sum payments in relation to
[43]
the same event that gave rise to an entitlement of the person
[44]
(b) at least one of the multiple payments is made wholly or
[45]
partly in respect of lost earnings or lost capacity to earn;
[46]
the following paragraphs have effect for the purposes of this Act
[47]
(c) the person is taken to have received one lump sum
[48]
compensation payment (the single payment) of an amount
[49]
(d) the single payment is taken to have been received by the
[50]
(i) on the day on which he or she received the last of the
[51]
(ii) if the multiple payments were all received on the same
[52]
(2) A payment is not a lump sum payment for the purposes of
[53]
paragraph (1)(a) if it relates exclusively to arrears of periodic
[54]
(1) For the purposes of this Part, the Secretary may treat the whole or
[55]
if the Secretary thinks it is appropriate to do so in the special
[56]
(a) a person or a person's partner receives or claims a
[57]
(c) the set of circumstances that gave rise to the claim for
[58]
compensation is not related to the set of circumstances that
[59]
gave rise to the person's or the person's partner's receipt of,
[60]
the fact that those 2 sets of circumstances are unrelated does not
[61]
alone constitute special circumstances for the purposes of
[62]
(1) If the Secretary is satisfied that a social security payment is being,
[63]
(a) who is not, or was not, qualified for the payment; or
[64]
(b) to whom the payment is not, or was not, payable (other than
[65]
the Secretary is to determine that the payment is to be cancelled or
[66]
Note: Division 3AA is about compliance with participation payment
[67]
obligations for persons who are not declared program participants.
[68]
(2) Subsection (1) does not authorise the Secretary to make a
[69]
(a) the payment of a social security payment to a person has
[70]
been cancelled or suspended by the operation of another
[71]
(b) the determination would take effect at or after the time at
[72]
which the cancellation or suspension referred to in
[73]
93 Automatic cancellation - recipient complying with
[74]
(a) a person who is receiving a social security payment is given a
[75]
(b) the notice requires the person to inform the Department of
[76]
the occurrence of an event or change of circumstances within
[77]
a specified period (the notification period); and
[78]
(c) the event or change of circumstances occurs; and
[79]
(d) the person informs the Department of the occurrence of the
[80]
event or change of circumstances within the notification
[81]
(e) because of the occurrence of the event or change of
[82]
(i) the person ceases to be qualified for the social security
[83]
(ii) the payment would, but for this section, cease to be
[84]
(f) the social security payment is not cancelled before the end of
[85]
the instalment period for the person that is current when the
[86]
(g) if the social security payment is cancelled during the
[87]
instalment period (the first period) following the instalment
[88]
period in which the event or change of circumstances occurs,
[89]
the payment is payable to the person until the end of the
[90]
instalment period in which the event or change occurs, and is
[91]
(h) if the payment is not cancelled during the first period, the
[92]
payment is payable to the person until the end of the
[93]
notification period, and is then cancelled by force of this
[94]
94 Automatic cancellation - recipient not complying with
[95]
(a) a person who is receiving a social security payment is given a
[96]
(b) the notice requires the person to inform the Department of
[97]
the occurrence of an event or change of circumstances within
[98]
a specified period (the notification period); and
[99]
(c) the event or change of circumstances occurs; and
[100]
(d) the person does not inform the Department of the occurrence
[101]
notification period in accordance with the notice; and
[102]
(e) because of the occurrence of the event or change of
[103]
(i) the person ceases to be qualified for the social security
[104]
(ii) the social security payment ceases to be payable to the
[105]
the social security payment is cancelled, by force of this
[106]
subsection, on the day on which the event or change of
[107]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
[108]
[3] The Tribunal acknowledges that, due to the Applicant's vision impairment, it would have been preferable that the Respondent provided the relevant documents via an e-reader rather than by paper file.