Re Ivovic and Director - General of Social Services [1981] AATA 57; (1981) 3 ALN N95

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225

Re Krzywak and Secretary, Department of Social Security (1985) 15 ALD 690

Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464

Alver and Secretary, Department of Social Security (Decision No 8351, 30

Re Venables and Secretary, Department of Social Security (1988) 15 ALD 180,

Re Platel and Secretary, Department of Social Security (Decision No 8250, 17

Secretary, Department of Social Security and VXY (Decision No 8559, 3 March 1993)

Hutt v Piggot, Wood and Baker (Supreme Court of Tasmania, unreported, B20/1993, 28 May 1993)

Secretary, Department of Social and Daniels (Decision No 7883, 7 April 1992)

Secretary, Department of Social Security and Rodgers (Decision No 7911, 23 April 1992)

Re Kulakov and Secretary, Secretary, Department of Social Security (Decision No 7238, 14 August 1991)

Latour and Secretary, Department of Social Security (Decision No 4749, 28 September 1988)

Lintern and Secretary, Department of Social Security (Decision No 8479, 14 January 1993).

Solicitors for the Applicants: Legal Aid Commission (Ms J Burnstein)

D J GRIMES This is an application for a review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 22 March 1994 which varied a decision of the Delegate of the Secretary of the Department of Social Security ("The Department") dated 2 February 1994 that was affirmed by an Authorised Review Officer on 15 February 1994. The decision of the SSAT was to affirm the imposition of a preclusion period until January 1996 but to disregard part of the preclusion period so as to interrupt the preclusion period for four payments of disability support pension and wife's pension from the first day of the SSAT decision.

2. At the hearing before the Administrative Appeals Tribunal the applicant was represented by Ms J Burnstein of the Legal Aid Commission and the Department by Mr P Davies of the External Appeals Section. Oral evidence was given to the Tribunal by Mr and Mrs Black, their daughter Ms Sharyn Black and son Mr Peter Black. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 - T27) and documents tabled at the hearing.

3. The representative of the Department informed the Tribunal that the Department would not seek to overturn that part of the SSAT decision providing for four weeks payment, nor would it seek recovery of the monies paid as a result. The Tribunal is therefore asked to determine whether or not there are special circumstances warranting an exercise of the discretion contained in section 1184 of the Social Security Act 1991 ("the Act"). There is no dispute as to the correctness of the calculation of the preclusion period which operates from 30 May 1991 to 30 January 1996.

4. The general facts in this matter are not in contention. Mrs Black suffered an accident at work in 1985 when a trap-door she was standing on opened, causing her to fall into the cellar below. She sustained an injury to her back which has left her with a permanent injury, despite surgery in 1987. From 1985 to 1991 Mrs Black was paid weekly compensation payments. On 29 May 1991 Mrs Black received a lump sum compensation payment of $300,000. After costs, the net amount received by Mrs Black was $219,000.

5. On 2 June 1992 Mr Black applied for job search allowance. The Department notified the applicants that, as a result of Mrs Black's lump sum compensation payment, a preclusion period applied preventing payment of social security benefits until January 1996. This was the first time the applicants became aware of such a period.

6. In a letter of 6 August 1992, an officer of the Department notified the applicants that there were no special circumstances to allow for the exercise of the discretion provided for in Section 1184 of the Act. This decision was affirmed by an authorised review officer on 19 August 1992 and by the SSAT on 17 May 1993.

7. Mr Black, who has not worked since 1990, was diagnosed as having asbestosis and applied for a disability support pension on 31 January 1994. Mrs Black subsequently applied for a wife's pension on 2 February 1994. There is no dispute that Mr Black qualifies for the disability support pension because of his medical condition. He was, however, refused payments on the basis of the preclusion period arising from his wife's compensation payment. Similarly, Mrs Black was refused a wife's pension. Again the initial decision maker and authorised review officer determined that no special circumstances existed to warrant disregarding all or part of the preclusion period. The determination of the SSAT is an unusual decision, in that it varied the preclusion period to allow for an immediate payment of four weeks benefits, but essentially affirmed the decision that the preclusion period apply until January 1996.

8. In evidence to the Tribunal, Mrs Black said she had been incapacitated with the back injury she sustained in 1985. In addition to her back problems, the stress of her family's financial circumstances since discovering the existence of the preclusion period in June 1992 has added depression, insomnia and an itching skin complaint to her health problems. The New South Wales Housing Department has issued a termination order on the applicants as a result of their failure to pay rent, adding to their stress.

9. Mr Black has severe health problems, suffering a deteriorating lung condition caused through exposure to asbestos in his years as a carpenter. He qualifies for disability support pension on medical grounds. Mr Black has not worked since he was retrenched in 1990 and is now not fit to work. In evidence Mr and Mrs Black said that at the time she received her compensation payment Mr Black's condition had not been diagnosed and the progressive nature of the disease was not known to them. Mrs Black gave evidence that her husband now did not expect to not be able to return to the workforce. Mr Black attends the Dust Diseases Board who monitor the progress of his condition. He has no knowledge of any compensation which he may be entitled to receive as a result of his asbestosis.

10. Mrs Black stated that at the time of settlement her solicitor did not inform her of the effects of her lump sum compensation payment on social security benefits. The applicants only received knowledge of it when Mr Black applied for job search allowance in June 1992, and by that time a considerable proportion of the funds had been expended.

11. The Blacks have lived in a Housing Department home for 25 years and intended to live out their days in this house. Over the years Mr Black has carried out considerable improvements and maintenance on the building. The rent of the house was initially $160 per week but has been reduced to $54 per week because of their lack of income. They have been issued with a termination notice and have not yet sought advice on how this may be delayed or withdrawn.

12. Mrs Black has applied for work in her previous employment but has been unsuccessful, largely she believes because of her back problem. She at present is working part-time in a patisserie with great difficulty, earning about $70 per week, but has difficulty coping with even this.

13. The Tribunal had before it a statement of expenditure of the compensation monies received by Mrs Black (exhibit A1).

"A. AMOUNT RECEIVED: $300,000

DATE OF RECEIPT: 29 MAY 1981

B. EXPENDITURE

ITEM AMOUNT DATE

1. Legal & Medical Expenses $ 81,000 05.91

2. Cars (see note (a)) $ 22,742 06.91 - 02.94

3. Credit Union Loan $ 8,000 06.91

4. New Trailer $ 584

5. Repairs to ute $ 2,300 15.02.92

see note (b)

6. B.B.Q. (Gas) $ 350 09.92

7. Loans to children

- Sharon $ 21,000 06.91

- Peter $ 21,000 08.91

- Ian $ 6,000 10.91

See note (c)

8. Rent at $160.00 per week $ 16,640 05.91 - 05.93

9. Rent at $54 per week $ 3,132 05.93 - 06.94

10. Living Expenses at $340 $ 53,040 05.91 - 05.94

per week not including rent

11. Dentist $ 9,000 03.92

(see note (d))

12. Washing Machine $ 1,200 06.91

(see note (e))

13. Microwave $ 800 08.91

(see note (f))

14. Television $ 900 02.92

(see note (g))

15. Kitchen cupboards $ 400 05.92

16. Paint house (interior) $ 500 04.92

17. Lounge $ 2,200 06.03.91

(see note (h))

18. Vacuum Cleaner $ 299 23.06.91

(see note (i))

19. Air conditioning $ 1,200 21.01.92

(see note (j))

20. Eye glasses $ 800 26.06.91

(see note (k))

21. Dining Room Suite $ 3,450 01.92

(see note (i))

22. Refrigerator $ 475 09.91

(see note (m))

23. Income Tax '92 - '93 $ 984 07.91

24. Bed (see note (n)) $ 587 15.07.92

25. Radio $ 599 22.07.92

26. Holiday $ 5,000 11.91

(see note (o))

27. Christmas Weddings and Birthdays

$ 4,000 91-94

28. Clothing $ 3,000 91-94

29. Linen $ 500 91-92

TOTAL: $271,682

SIGNED: (Sgd) (Sgd)

V W BLACK J A BLACK

DATE: 31.8.94

NOTES TO STATEMENT OF EXPENDITURE OF COMPENSATION

RECEIVED BY MRS J BLACK

(a) CARS PURCHASES SALES DATE

Paid out loan for Lazer $20,742 24.06.91

traded in Lazer and $15,000 30.02.92

purchased Ford Fairmont $35,000 30.02.92

Sold Ford Fairmont $22,000 11.93

Purchased Selica $16,000 11.93

Sold Selica $12,000 02.94

TOTAL $71,742 $49,000

Net Expenditure: $22,742

(b) Repairs to Ute

The Ute is a 1968 Valiant and these repairs were necessary to keep

the car going. This is the only car we own at present and we estimate

that its market value is approximately $2000.

(c) Loans to Children

We lent money to the children to enable each of them to pay off

loans they had taken for the purchase of a car. The children have since

sold these cars and are not in a position to repay the money.

(d) Dentist

These expenses were incurred by both of us. Mr Black had to have

extensive work done to his teeth to have them crowned. He had

previously put this off for about twenty years because of the expense

involved. Mrs Black had a new set of dentures, had also put this off

because of expense involved.

(e) Washing Machine

We purchased a new washing machine to replace the old one which was

about years old and not worth repairing.

(f) Microwave

This was new and the first time Mrs Black had owned a microwave.

(g) Television

This was a new one to replace the old one.

(h) Lounge

A new lounge suite to replace the old and last us for the remainder

of our lives.

(i) Vacuum Cleaner

A new one to replace the old one that had broken down.

(j) Air Conditioning

Installed following Mrs Black's operation to make her recovery

period more comfortable.

(k) Eye Glasses

For both Mr and Mrs Black, had to pay full price because we have no

health insurance.

(l) Dining Room Suite

New to replace former old one.

(m) Refrigerator

Second hand to replace old one.

(n) Bed

Following back operation Mrs Black had to purchase a "Good Back Bed"

specially designed for people with back injuries.

(o) Holiday

Travelled by motor car to Victoria to visit Mrs Black's sister who

she had not seen for seven years. Spent two weeks with her then motored

to Queensland to visit Mr Black's cousin for three weeks. Mostly stayed

with relations. This was our first holiday in ten years and was taken a

few months after Mrs Black's back operation.

(Sgd) (Sgd)

Mr V M Black Mrs J A Black"

14. The Tribunal notes that some items of expenditure make up a considerable portion of the funds, apart from the $81,000 on legal and medical costs.

15. Mr and Mrs Black spent a considerable amount buying and selling cars with unfortunate results. They purchased a Ford Fairmont in February 1992 for $35,000, having paid out a $20,947 loan on a previously purchased Ford Laser in 1991. In 1993 the Fairmont was sold at a considerable loss and they subsequently purchased a Toyota Celica for $16,000 and sold it at a loss as well. The purchase and sale of cars cost a net $22,742 over this period. The Tribunal notes that the SSAT was unable to obtain an explanation as to how the $12,000 received upon sale of the Celica in February 1994 was spent.

16. A total of $48,000 was provided to their children Sharyn, Peter and Ian in 1991 to finalise loans on cars. Evidence was given by Mr and Mrs Black and Sharyn and Peter Black that there were verbal agreements to repay the money but no agreement as to when it would be paid. None of these children are able to assist their parents other than by occasional handouts of $10 or $20 and all have yet to repay the loans.

17. Sharyn Black gave evidence to the Tribunal that in 1991, she received a loan of $21,000 from her parents in order to finance a car loan of $25,000. She stated that she was to repay the loan but has yet to do so. The Laser purchased with the $21,000 was subsequently sold for $6,000, and the monies received used to pay other debts. Ms Black told the Tribunal that she is unable to assist her parents. Since November 1993 she has been unemployed. She currently receives job search allowance of $358 per fortnight and has no assets. She shares a three bedroom house with another person but cannot assist her parents with accommodation.

18. Peter Black, the applicants' son, also gave evidence to the Tribunal. In 1991 he received a loan of $21,000 from his parents to repay a car loan of $28,000. The car purchased was subsequently sold for $14,500. Another vehicle was then purchased for $10,000. None of the money received from the sale of the car was used to repay the loan from his parents. Mr Black gave evidence that he is similarly unable to financially assist his parents. He has not worked since February 1994 and is currently receiving job search allowance. He lives in a three bedroom house with his wife who is expecting a child, and his younger brother Ian. His wife earns a casual income of $50 - $180 per week, and Ian contributes to the household expenses but does not pay rent.

19. Expenditure on household equipment such as television, radio, microwave etc totalled $12,844. The Tribunal notes that some of this expenditure was made after the applicants became aware of the preclusion period.

20. During the period May 1991 to May 1994 weekly living expenses were listed as $340 per week, excluding rent, but this has now been considerably reduced.

21. The applicants have no income, apart from the $70 per week Mrs Black can earn and very occasional help from their children. They owe six months rent and have received assistance from the Salvation Army. Mr Black gave evidence that the only assets he and his wife have are the ute, furnishings and household items and his tools of trade which he estimated to be worth $7,000 - $8,000.

22. The Tribunal notes that bank statements were presented to the SSAT and that the applicants were uncertain about accounting for some expenditure. When questioned by this Tribunal as to some $7,000 of expenditure in November and December 1993 (referred to in the SSAT decision) neither applicant could recall the purpose of the expenditure.

23. The Tribunal is aware that in the absence of bank statements the estimates of expenditure are not exact, but on the figures presented in evidence almost $30,000 is unaccounted for by the applicants. A substantial proportion of this appears to be unaccounted for in the years since the preclusion period was known.

24. The issue in this application is whether there are special circumstances in this case to warrant the Tribunal treating the whole or part of the compensation as having not been made so as to disregard all or part of the preclusion period, and enable the payment of Mr Black's disability support pension and Mrs Black's wife's pension.

25. There is no dispute before the Tribunal as to the correctness of the calculation of the length of the preclusion period following Mrs Black's receipt of $219,000 net compensation payment.

26. The applicant's submission is that the preclusion period should be reduced pursuant to an exercise of discretion confirmed by section 1184 of the Act. That section provides:

"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."

27. The Act does not provide a definition of "special circumstances" for the purpose of section 1184. However, it has been the subject of considerable deliberation in both this Tribunal and the Federal Court. Discussing the phrase "special circumstances" in the context of section 115(4A) of the Social Security Act 1947 the Tribunal in Re Ivovic and Director - General of Social Services [1981] AATA 57; (1981) 3 ALN N95 stated:

"Whilst it would be unwise, if not impossible, to attempt to lay

down any precise delineation of what amounts to 'special circumstances'

for the purpose of s 115(4a) ...., the use of the word 'special' is, we

think, intended to allow the decision-maker the fullest opportunity to

consider the special circumstances of each case ...."

28. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal said (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 which 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."

29. On appeal (Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225) the full court of the Federal Court of Australia said (at 230):

"While we would place less emphasis on one dictionary definition of

'special', we are in broad agreement with the approach of the

Tribunal and are in agreement with its conclusion."

30. In Re Krzywak and Secretary, Department of Social Security (1985) 15 ALD 690 the Tribunal referred to a number of factors which, it said, appeared relevant to the exercise of discretion in that case, namely, "financial hardship, legislative changes, incorrect legal advice, ill health." This Tribunal recognises that these factors do not constitute an exhaustive list of considerations in the exercise of the discretion. Rather they are useful guidelines in the consideration of matters arising under section 1184 (see Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464). It has been the opinion of the Tribunal in the past that rather than focus on each particular circumstance of the applicant and ask whether it is special, it is preferable that the relevant circumstances of the applicant be examined in their entirety and then determined whether they may be described as "unusual, uncommon or exceptional" (Re Beadle (supra)). This Tribunal is in agreement with the decision in Re Ivovic (supra) that it must be "...prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate".

31. The applicant submitted that in this case a number of special and unusual circumstances were present and sufficient to warrant exercise of the discretion conferred by section 1184 of the Act. These are: lack of knowledge and inadequate legal advice as to the preclusion period, lack of financial counselling, ill health, financial hardship and the nature of the expenditure of the lump sum.

32. The applicants submitted that Mrs Black was not notified of the Social Security implications of her compensation payment at the time of settlement and was only made aware of the preclusion period when Mr Black sought job search allowance in June 1992. By this time it is claimed some $170,000 of the $219,000 had been spent. Alver and Secretary, Department of Social Security (Decision No8351, 30 October 1992) was cited as an example where the Tribunal had considered misleading or inadequate legal advice amounted to special circumstances. In Alver the Tribunal did not find that legal advice had been misleading but that the applicant had been left with an inadequate knowledge of the social security system not entirely his fault.

33. The Tribunal has consistently otherwise taken the view that lack of legal advice, and incorrect legal advice does not constitute special circumstances for the purpose of section 1184 of the Act (see Re Venables and Secretary, Department of Social Security (1988) 15 ALD 180, Re Platel and Secretary, Department of Social Security Decision No 8250, 17 September 1992 and Bolton (supra) ).

34. There is no evidence to suggest that incorrect advice was given to the applicants by their solicitor at the time of settlement of Mrs Black's compensation claim. Rather the evidence suggests that she was not advised that, as a result of receiving a lump sum, she and her husband may be precluded in the future from receiving social security benefits for a period. The Tribunal notes that at the time of settlement the applicants did not expect Mr Black to be reliant on social security payments.

35. The Tribunal does note the frequency with which the arguments concerning lack of legal advice or incorrect advice about the preclusion period is raised as an issue in appeals of this type and notes with approval the sentiments expressed by the Tribunal in Secretary, Department of Social Security and VXY (Decision No 8559, 3 March 1993):

"in the days of severe limits on the availability of legal aid, it

may be unrealistic to expect applicants for disability support pension

or similar payments to the Department, to commence proceedings against

their solicitors. Perhaps it may be a good idea if more did so. That

might encourage those practising in compensation and personal injury

areas to ensure that they keep up with amendments to the Social Security

Legislation."

36. This Tribunal notes that in Hutt v Piggot, Wood and Baker (unreported, Supreme Court of Tasmania B20/1993, 28 May 1993) such action was taken successfully by a poorly advised applicant.

37. Through their representative, the applicants submitted that their problems were compounded by the fact that at no point in time did either Mr or Mrs Black receive any financial counselling that could have assisted them in investing the lump sum so that it would serve to maintain them for the remainder of the preclusion period. The Tribunal notes, however, that such financial counselling was suggested by the SSAT in its reasons for decision but not taken up.

38. The Tribunal cannot accept the applicants' contention that this factor contributes to their special circumstances. The applicants were aware of the preclusion period by mid 1992 and that their remaining funds at this time would have to support them until 1996.

39. It is the applicants' claim that part of the reason for expenditure of so much of the compensation monies was the belief that Mr Black would be able to return to work. However, this had been prevented by the unexpected deterioration of his medical condition which was unrelated to the payment of compensation.

40. In Secretary, Department of Social and Daniels (Decision No 7883, 7 April 1992) special circumstances were found because of lack of causative effect between the applicant's unemployment and the compensated incapacity. The Tribunal notes that Mr Black has not worked since 1990, which was prior to the compensation settlement. This circumstance was known to the applicants when spending the compensation monies and his continuing unemployment was not entirely unforseen.

41. Similarly, Mrs Black, as a result of the physical effects of her injury and the psychological stress of their dire financial straits, has very limited working capacity. At present she earns only $70 per week part-time. In Mrs Black's case the physical disability she has is the result of the injury for which she was compensated.

42. In the Tribunal's opinion, Mrs Black's ill-health of itself, cannot be said to constitute special circumstances. Whilst the Tribunal recognises that the applicants' current financial difficulties are unaided by Mrs Black's restricted working capacity, it is also satisfied that the lump sum payment was clearly intended to provide for such a situation.

43. Similarly, it is the Tribunal's view that Mr Black's incapacity to work cannot be regarded as special circumstances. Evidence was heard from the applicants that it was never envisaged that Mr Black would not be able to earn an income. In the Tribunal's opinion, however, it is reasonable to have expected Mr Black's continuing unemployment. At the time of receiving the compensation settlement Mr Black was unemployed, and had been so since 1990. Although a diagnosis of asbestosis had yet to be made, he was not in good health. On his own evidence, his age narrowed his employment prospects in an already difficult job market.

44. The applicants submitted that they were in a state of severe financial hardship and that such circumstances in themselves warranted a finding of special circumstances.

45. The present financial circumstances of the applicant are serious. They have $70 per week in income, owe rent and are receiving assistance from charities. There is no evidence of further debts. The applicants do not owe their home, and despite the purchase of a number of motor vehicles, now only own a twenty-six year old utility. Of those items purchased with the compensation monies and listed in exhibit A1, only the cars appeared to have been sold. These circumstances arise primarily from the expenditure of large amounts of the compensation monies on cars, a holiday, household furnishings, loans to their children, household and living expenses. The applicants concede that their current financial hardship is to a certain extent the product of their own management.

46. The Tribunal notes that at the time of hearing no approaches had been made to the Department of Housing regarding their rental situation or the Dust Diseases Board regarding possible compensation for Mr Black.

47. The applicants submitted that the bulk of the expenditure of compensation monies occurred before the applicants had knowledge of the preclusion period. In their submission it was not extravagant but a necessary expenditure on household items and living expenses.

48. The Tribunal notes that some of the expenditure was discretionary and could be described as unwise. A sum of $48,000 was loaned to the applicants' children to pay for cars with little hope of recovery. The two children who gave evidence to the Tribunal showed no capacity or desire to repay the loans and the third child who is employed is similarly not forthcoming. The applicants themselves bought an expensive car, later sold at a considerable loss, before purchasing a second car which was similarly sold at a loss. Weekly living expenses for two people were listed as $340 per week without rent until the financial state became obvious. No details of bank statements were presented to the Tribunal and on the financial record provided, almost $30,000 is unaccounted for. Asked about the expenditure of $7,000 in November and December 1993 when cheques of $1,000 and $2,000 were withdrawn, the applicants could not remember what these were for.

49. The Tribunal has consistently considered the reasonableness of the person's expenditure of compensation payments in determining special circumstances. In particular substantial loans to family members, monies spent on travel and cars, general extravagance have been considered to mitigate against special circumstances (see for example, Re Ivovic (supra), Secretary, Department of Social Security and Rodgers, Decision No 7911, 23 April 1992; Re Kulakov and Secretary, Secretary, Department of Social Security, Decision No 7238, 14 August 1991; Latour and Secretary, Department of Social Security, Decision No 4749, 28 September 1988; Lintern and Secretary, Department of Social Security, Decision No 8479, 14 January 1993).

50. The Tribunal acknowledges that the applicants are in a difficult financial situation. However, the circumstances leading to such hardship are not irrelevant. In considering the entirety of the applicants' circumstances, the Tribunal is mindful of the nature of the expenditure, and the context in which that expenditure occurred.

51. The Tribunal accepts that the applicants were unaware of the existence of a preclusion period at the time of receiving Mrs Black's compensation monies in 1991, and remained so until Mr Black claimed job search allowance in mid 1992. Whilst the Tribunal is mindful that a substantial proportion of the lump sum settlement had been spent prior to this date (approximately $235,000 including legal and medical costs), there were clearly funds remaining. There is no evidence to suggest that by mid 1992, the applicants were not aware that their remaining funds were to support them until January 1996. In particular, the Tribunal notes that at August 1992, there was some $33,000 remaining in a term deposit. This sum however, had been exhausted by April 1993, some eight or none months later. The evidence before this Tribunal demonstrates that little action was taken to amend spending habits after learning of the preclusion period. Whilst the Tribunal recognises that the sum of $33,000 may not be considered adequate if intended to support a couple for three years, it nevertheless has difficulty accepting that it was unable to provide for the applicants beyond April 1993.

52. Although there is a detailed financial statement before the Tribunal, there is significant sums that cannot be accounted for by the applicants. In particular, the Tribunal notes that the sale of the applicants' Celica motor vehicle netted $12,000 in February 1994. This sum, however, appears to have been spent by the time of the SSAT hearing in March 1994, and the applicants could provide no explanation as to the expenditure. The evidence also indicates that approximately $7,000 was withdrawn in large sums in late 1993, but again the applicants were unable to provide the Tribunal with an explanation as to the nature of the expenditure. On the evidence presented to it, there is a total sum of almost $30,000 unaccounted for by the applicants.

53. The Tribunal notes a large proportion of the compensation monies was loaned to the applicant's three children to purchase vehicles which they no longer own. It appears that none of the loans have been repaid. Evidence was heard from two of the applicants' children who asserted that they were unemployed and unable to financially assist their parents. The applicants' third son, Ian, did not give evidence. He is employed as a refrigeration mechanic, and has yet to repay the $6,000 loan. It is unclear to the Tribunal why the applicants are unable to recover the $6,000 even on a graduated basis.

54. Whilst the Tribunal recognises the beneficial nature of the social security legislation, and particularly the purpose for which section 1184 was inserted, it is also mindful of the policy behind the implementation of the preclusion period provisions, namely to prevent what is commonly known as "double dipping". The preclusion period provisions were intended to ensure that that a claimant's living expenses for a period were provided for by a portion of the compensation monies received for an injury resulting in incapacity, rather than by public monies. As has been noted in the past by the Tribunal (Re Ivovic, supra) the inclusion of a "special circumstances" provision, does of itself recognise that there are instances when it is inappropriate to strictly enforce such a preclusion period.

55. The applicants sought, in particular, to rely on the decision of the Tribunal in Alver to support their contention of special circumstances. It is noted however, that the Tribunal in that instance recognised that "...previous decisions of the Tribunal have tended to take a hard line where someone through extravagance or thoughtlessness, brought about their own dilemma..." but these were distinguishable in that in Mr Alver's case there had been "...no great binge or spending spree without a thought for tomorrow". The majority of the settlement monies in Alver were used to discharge debts. In this Tribunal's opinion the facts of this case do not fit comfortably within the findings of Alver.

56. In examining the totality of the applicants circumstances the Tribunal does not believe it to be one in which a finding of special circumstances would be appropriate. The applicants financial situation is indeed serious, but the Tribunal is required to look at the entirety of the case, and in this instance cannot ignore the fact that after mid 1992, the applicants had knowledge of the fact that their remaining settlement monies were to provide for them until January 1996, yet continued to spend their remaining funds in such a way that cannot be considered prudent by this Tribunal. On the evidence before it, the Tribunal is satisfied that the applicant's financial hardship has not been caused by any unusual circumstances or circumstances beyond their control, but is a product of their own decision to use the compensation monies as they desired. The Tribunal therefore finds that there are no special circumstances in this case to warrant disregarding all or part of the lump sum compensation payment.

57. For the reasons given, the Tribunal affirms the decision under review.