Beadle v Director-General of Social Security

a34	CATCHWORDS

Admlnlstratlve law - Appeal from Admlnistrative Appeals

Tribuml

- A1loc;ance for handicapped child - Payable frcm commencement

allowance perlod after clalmant became eliglble

If clalrn

lodged withln six months

o r in special circumstances within suca

loncer period

as Director-Gmeral allows - What are speclal

crcumstances - TbThether Director-General has discreclon to refuse

to flx period if speclal circumstances are shown.

Administrative AIspeals Tribunal Act

1975 5.44

Social Securitv Act 1975 ss.101.	102,	105H. i 05J , 105JA. 105JB.
105L, 105R.

ROSEMARIE BEADLE V DIRECTOR-GENERAL OF SOCIAL SECURITY

DONNA

ANN

BLURTON V DIRECTOR-GENERAL OF SOCIAL SECURITY

ELLEN PATRICIA CORBFIT

V DIRECTOR-GENERAL OF SOCIAL SECURITY

ELIZA J O H N 5 V DIRECTOR-GENERAL OF SOCIAL SECURITY

!	.-
I

W.A.G. 66 of 1984

W.A.G. 67 of 1984

W.A.G. 81 of 1984

W.A.G. 82 of 1984

CORAM:

Bowen C.J., Fisher and Lockhart JJ.

7 June 1985

Sydney

IN THE

FEDEIZ-AL COURT

OF AUSTRALIA )

)

!	AUSTRALIA	WESTERN	)	No. W.A.G.	66 of 1984
)

REGISTRY	DISTRICT	) )
GENERAL DIVISION	)

ROSEMARIE BEADLE

Appellant

DIRECTOR-GENERAL OF SOCIAL SECURITY

Respondent

IN THE FDERAL COURT OF AUSTRALIA )

)

WESTERN AUSTRALIA	1	No.	W.A.G.	67 of 1984
)
DISTRICT REGISTRY	)
)

DIVISION

GENERAL

DONNA ANN BLURTON

Appellant

DIRECTOR-GENERAL OF SOCIAL SECURITY

Respondent

. .

;

WESTERN AUSTRALIA	)	No. W.A.G. 81 of 1984
)
DISTRICT REGISTRY	) )
GENEFS-L DIVISION	l

ELLEN PATRICIA CORBETT

Appellant

I	DIRECTOR-GENERAL OF SOCIAL SECURITY Respondent

-2-

THE FEDERAL COURT OF AUSTRALIA

) )

WESTERN	AUSTRALIA	)	No. W.A.G. 82 of 1984
1

DISTRICT REGISTRY	)
)

DIVISION

GENERAL

)

ELIZA JOHNS

Appellant

DIRECTOR-GENERAL OF SOCIAL SECURITY

Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER: Bowen C.J.,

Fisher and Lockhart

JJ.

WHERE MADE:

Sydney

1985

7 June

THE COURT ORDERS THAT:

In appeal No. W.A.G.

66 of 1984 the appeal be dismlssed.

. 2.

In appeal

No. W.A.G. 67 of 1984 the appeal be dismissed.

3 .

appeal No. W.A.G. 81 of 1984

(a )

the appeal be allowed;

(b)

the decision

of the Tribunal in relation to the

appellant's child Allan Germaine Corbett be set

aside;

(c)

the matter

be remitted to the Tribunal to be

determlned in accordance with the reasons for

judqmenc herein.

appeal No. M.A.G. 82 of 1984

(a) the appal be allowed;

-3-

(b)

the decision of the Trlbunal be set aslde;

( c )

the

matter

remitted to the

Tribunai to be

determined

accordance with the reasons

for

judgment herein.

There be no

order as to COSES of any of the ap3eals.

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT

OF AUSTRALIA )

AUSTRALIA	WESTERN	)	No. W.A.G.	66 of 1984
1

REGISTRY	DISTRICT	)
)
GENERAL DIVISION	)

ROSEMARIE BEADLE

Appellant

DIRECTOR-GENERAL OF SOCIAL SECURITY

Respondent

IN THE FEDEZAJ; COURT OF AUSTRALIA )

AUSTRALIA	WESTERN	)	No. W.A.G. 67 of 1984
)

REGISTRY	DISTRICT	)
)

DIVISION

GENERAL

DONNA ANN BLURTON

Appellant

DIRECTOR-GENERAL OF SOCIAL SECURITY

Respondent

IN THE FEDERAL COURT OF AUSTRALIA )

)

WESTERN	AUSTRALIA	)	No. W.A.G. 81 of 1984
)

DISTRICT REGISTRY	)
)
GENERAL DIVISION	1

ELLEN PATRICIA CORBETT

Appellant

DIPECTOR-GENERAL OF SOCIAL SECURITY

Respondent

THE FEDERAL COURT OF AUSTRALIA

) )

WESTERN AUSTRALIA

)	No. W.A.G. 82 of 1984

DISTRICT REGISTRY

)

DIVISION

GENERAL

)

ELIZA JOHNS

Appellant

DIRECTOR-GENEXAL OF SOCIAL SECURITY

Respondent

CORAM:

BOWEN C.J., FISHER and LOCKHART JJ.

7 June 1985

REASONS FOR JUDGMENT

THE COURT

These are four appeals from the Administrative Appeals

Tribunal, presided over by

a Presidential Member,

which

involve

consideration of the provisions

of the

- Social Security Act

1947 ("the

Act") relating to handicapped children.

By~onsent

the four appeals

-	_	i-
-

have been heard together.

. .

Before dealing with each case,

it. will

be convenient to

discuss the provlsions of the leqlslation.

The handicapped child's allowance is provided for

by Part VIB

of the Act. Sub-section

105H(1) contains definltions of "hanalcapped

I	child"	and	"severely	handicapped	chlld"	.	Section l 05J secs out
l

I	quallfications for handicapped child's allowance. It is as follows:
I I

"~L~SJ.

Sublect to thls Part, where

2 person who

has che custody, care and

control of a severely

handlcapped child provides, In a prlvate home that

is the residence of that person and of that child,

constant care and attention in respect of that

child,

that

person

quallfied

receive

handicapped child's allowance in respect of that

chl Id.

Section 105JA sets out alternatlve qualificatlons. It 1s as follows:-

"105JA

The Director-General

m y

grant

handicapped child's allowance in respect of a handicapped child to a person having the custody,

care

and

control

the

chlld

the

Director-General is satisfied that the person

(a)

provldes, in

a private home that is the

residence of that person and of that

child, care and attention in respect

that chlld only marginally less than the

care and attention that the child would

need if	he were a severely handicapped
child;

(b)	is, by reason of the provision of that care and attention, subjected to severe financial hardship."

Under S. 105JB where the Director-General grants a handicapped child's

. . .

allowance	he	shall	inform	the	person,	in-:writing.	whether	the
-

allowance has been granted to the person in pursuance of

105J

- _ .

(severely handicapped) or

S. 105JA (handicapped).

Section 105L fixes the rate. I t - i s as follows:

"105L. The rate of a handlcapped child's allowance

In respect of a child

is -

(a) where the allowance has been cranted

pursuance	of	section	105J	- $85 per
month; or

(b)	where the allowa!xe has been granted in

pursuance of secclon 105JA - such rate as

the Director-General. in his discretion,

from tune to time, determines, bur; not

exceeding the rate specified in paragraph

(a).

Section 105R applies certain provisions of Part

VI.

It is as follows:

"10SR. Section

101 and sub-sections 102(1) and ( 2 )

apply in relation to a payment

handicapped

child's allowance as if that allowance were a

family allowance under Part

VI."

Section 101 and sub-sections 102(1) and ( 2 ) are as follows:

"101.

Subject to this Part, a family allowance is

payable in respect of family allowance periods,

being periods commencing on

the fifteenth day of

each month of the year and ending on the fourteenth

day of the next succeeding month."

"102. (1)

Subject to sub-section

( 2 ) , a family

allowance

granted

person

(other

than

institution) shall be payable

(a)

a claim 1s lodqed within

6 months

after the date on which the claimant

became

eligible

claim

the

family

allowance, or, in-special circumstances,

within

such

longer

-p-$iod as

the

. -

Director-General

allows :-L- from

the

commencement of the next family allowance

period after that

date;.'or-

person by reason of that person having assumed the

in any other case - from the commencement the date on whlch the claim for family allowance is lodged.

(b)

( 2 )

Where a famlly allowance is granted to a

custody,

care

and

control

child

who.

immediately before that person assumed hls custaiy,

care and control, was a child in respect of whom 9

family allowance was paid, the family allowanc?

shall be payable from and including the date on

which the claim for famlly allowance is lodqed,

but, where the claim

1 s lodged within

monchs

after the date on which the firscmentioned person assumed the custody, care and conr - ro l of the child.

or, In speclal circumstances, wlthln such longer

perlod as che Director-General allows, the family

allowance shall be payable from and Including that

date.

The questions

law raised before us concern the proper

interpretation of sub-S.

102(l).

A s we have seen

ss. 105J and 1053A

deal with eligibllity.

A person who has custody

of a handicapped

child and provides in a private home constant care is

qualified to

receive an allowance in respect

of that child. The eligibllity

that of che person having care

of the child. A person may be ellgible

for an allowance in respect

of	more than one child. Sub-sectlon

102(1) is concerned solely with the date from which the allowance is

payable. Under para. 102(l)(a) the critlcal date is “the date on

which the claimant became eliglble to claim the

... allowance”. In an

ordinary case where the claim is lodged within 6 months after the date on which the claimant became eligible, the allowance will be payable

from	the commencement of the next allowance period after that date

(see S. 101). The date on which the claimant became eligible will, no doubt. generally be capable of determination from the material in the

claim form. However, it may in some cases be necessary to request	’ -A-
. -

further information such as a

medical--ryport

where eligibility has

-. -

_ .

arisen from some particular condltion

of health. In providing

period of 6 months latitude the legislature appears to have recognized

the need for some degree of flexibility in the case

of the handicapped

child’s allowance. The commencing date for payment of most allowances

under the Act appears to be related to lodgment

of the claim. In the

case of the handicapped chrla‘s allowance, it wlll be observed that, although payment of the allowance

is conditional upon a clalm bemq

lodged, payment will operate from dace

ellqlbllity, not from date

of lodgment of cl?.int.

where the clam 1 s lodged withln 6 months -__.

the date the claimant became eliqlble. Six months is the lensck

tune

Parliament

was

prepared

back

date

payment

without

any

consideration by

the Director-General.

If the claim was not lociqed

within 6

months of becoming eligible, the payment would cominence

the next allowance period after

the date on which

the clam was

lodged, unless the Director-General extended the period of	6 months
under para. 102(l)(a).

The questions arising in the present appeals concern the

nature

the

power

given

the

Director-General

under

para.

102(l)(a) to extend time. It is clear from

sub-S. 102(1) that the

result, if the Director-General extends time in

the case of a

clam

lodged more than

6 months after the ciaimant became eligible, will be

to open the way for para. 102(l)(a) to apply, providing for payment to

be made from commencement of the next allowance period after the date

the claimant became eligible and to prevent para. 102(l)(b) operating

to provide for payment from commencement of the next allowance period

- "1.

after date of lodgment of the claim.

The

Dir-6ctor-General is not by

. -

sub-s. 102( 1) given power to fix the

date"of commencement of payment:

- -

the section does that. All

he can do is allow a longer period than 6

months for lodgment of the claim where special circumstances exlst.

he does

so. then sub-s. 10Z(l)(a) operates to flx the date of

payment instead of sub-s. 102(l)(b).

Nor does

102(1)

give the

Director-General power to

fix the amount of the allowance.

T h ~ s

1 s

provided for elsewhere (see

e.g. S . 105L; cf S . 135 TJ).

We have engaged in this somewhat qeneral and elernenizsry

dlscussion of :he

effect of sub-s. 102(13 in orcier to make plain what

is the contest m whlch the Director-General is	empowered to extend
tme.

The two maln questions argued on the appeals were, first,

what was meant by "special circumscances",

and, secondly, whether in a

case where special circumstances were found the Dlrector-General had a

residual alscretion to allow

or to refuse to allow the approprlate

"longer period" than

6 months.

As we

have seen the Director-General in acting under

sub-S.

102(1) is concerned with the period between the date a claimant became

eligible and the time when the claim was lodged. The legislature has

indicated that

6 months latitude is sufficient in the normal case.

The Director-General has power to

fix a longer period in special

circumstances. Presumably in this context special circumstances must

include

vents

which

would

render

the

6 months

unfair

inappropriate.

For example, where thk delay beyond 6 months was due

-z -+L

to the clalmant's being misled by a departmental officer

o r was due to

the negllgence of a third party

migkit-be thought the normal

months would be inappropriate; that special circumstances had been

shown which warranted a longer period. More difficult would be

questions of

ignorance, illiteracy, isolation, illness and the like.

It would depend upon the circumstances of the partlcular case whether

tgese

constituted

special

circumstances.

not

think

possible to lay down precise limits or precise rules. The matter

one for the Director-General bearing in mind the purpose for which

t e

power 1s given.

The phrase "special clrcumstances", althouch lackinu

I '

preclsion, is sufllciently underscood in our vlew not to

r e -

:--

~udicial

gloss.

Although concerned with time, i.e. with special circumstances which may

have

stressed

that

the Director-General 1s

I u s c i f y

extending the

6 months fixed by the leglslature in order to bring

delayed claim within sub-S. 102(l)(a),

It is true that the result

the exercise of the power will

be to give the claimant a retrospective

payment, in effect,

a capital sum, whlch may be small or may > P larqe.

Can the Director-General, who is placed in the position of having

regard both to liabilities imposed on the public purse and justice to

the indivldual, have regard to

such matters? Can the Director-General

have regard to the fact that the Act is concerned generally with

current payments to meet current expenses and

' ot with large capital

payments

the

nature

compensation

otherwise?

Can

the

Director-General have regard to the fact that a tardy claimant has in

the

past

incurred

indebtedness

for, say, an operation

the

handicapped child, which a retrospective capital

sum would enable the

- -G.\-

. --

clamant to discharge?

. rZ - ~

- -

In our opinion, the Director-General would be entitled

In an

appropriate case to take such matters into account in deciding whether

there were special circumstances which would warrant his fixing a

longer period than 6 months. However, the manner of taking them mto account and the weight to be given to them involve questions of some difficulty. For example, the fact that the extension of tne period

would be substantial and would lead to a substantlal capital sum

becomlng payable, is not

itself a ground for holdinq zpeclal

, .

9 .

clrcumscances m not exlsr;. Rather In the CBCE of lengthy delay

weighty facts would be requlred to establish speclal circumstances.

we have noted the legislature has indicated	6	months latltude is the
norm.

Agaln. the fact that past indebtedness has been incurred,

which it would be helpful for the claimant to have discharged,

1 s not

of itself

a speclal circumstance excusing delay or requiring time to

be estendea. But

appears to us not to be

so remote from the

matters wlth whlch the legislation is dealing as to be a matter whlch

it would be improper for the Director-General to take into account

along with circumstances existed.

other

circumstances

determlning

whether

speclal

The nest question is whether the Director-General, where

special circumstances are

shown to exist, has a residual discretion to

allow

or to refuse

allow the longer period to bring the clalm

within time

so that para. lOZ(l)(a)applies. In our opinion para.

._ ';..A-

102(l)(a) confers

a power upon the Director-General to fix a longer

- -

- .

period than

6 months

"in special circumitances". The existence of

special clrcumstances is

a pre-condition to the power arising. But

once special circumstances are found to exist the power must, not may,

be exercised.

It mlght be suggested that the espression "within such longer

period a=

the Director-General allows" qives the Dlrector-Gener3l a

discretlon to

fis a long or

shorc period, indeed such period as he

thinks	fit.	The difflculty	vlth	thls	suqgestlon	1 s thar;	para.
.. .

10.

102(l)(a) only applies if the clalm

1 s

lodged within

a par~:s~-:.r

perlod after eligibillty arose. The sub-section allows

6 monr;hs >UT

empowers the Director-General to allow a longer period. If, for example, the claim is lodged 18 months after eligibility arose. then

it is not within

months. If the Director-General fixed.

say, 12

months the claim would not be lodged within that lonqer perloa exther.

Nothing less than

a period equal to the actual delay would

brmg

sub-S.

102(l)(a) into operation. Consequently the Director-Gsneral

has no discretion to fix a shorter period. Indeed, in our V ~ P W , ne

has no residual discretion in relation to the exercise of the power

once the pre-condition for its exercise laid down

by the section has

been fulfilled.

We turn now to the particular cases.

ROSEMARIE BEADLE

V DIRECTOR-GENERAL OF SOCIAL SECURITY

I	(No. W.A.G. 66 of 1984)

.- -

Mrs.

Beadle

lodged

claim

for

a--handicapped child’s

_ - -

allowance

on 9 November 1982. The claim

was granted and, in

accordance wlth para.l02(l)(b).

an allowance was paid from 15 November

1982, the commencement of the

next allowance period. Mrs. Beadle then

sought a

decision

that

there

were

speclal

circumstances

under

para.lOZ(l)(a) justifying the allowance

longer period Lhan

months after the date

of eligiblllty. Date of ellgibilitp

vas 15

February 1979, so, instead of 6

months after that dace she needea the

longer perlod of approximately 3 years and 9 months

up to 9 November

1982, the

time when her claim was lodged,

if she was

to be brouant

11.

within para.l@Z!l)(a)

It appeared that she was

for a substantial part of that

period ignorant

of her rights, that she suffered financial hardship,

that she

another child Ann-Marie who also suffered illness, that she was in a

bad domestic sltuation and that although she had contact with doctors

had

addition

the

handicapped

child,

Cherylyn,

and hospicals she was not advised to apply for the allowance.

Both the delegate of

the Director-General (on l4 September

1983) and

the Administrative Appeals Tribunal on appeal (on

28 May

1984) held that ”special circumstances” within sub-s.l02(1)(a) had not

I	been shown.

The appeal to us from the Administrative Appeals Tribunal

lies to the Federal Court of Australia only on a question of law.

succeed the appellant needs to point

to some error of

law on the part

of the Tribunal which would show its--decision was wrong. We do not

I L%---“

consider any error of law has been

shown.

While we would place less

emphasis on one dictionary definition -of%pecial”,

are in broad

agreement wlth the approach of the Tribunal and are in agreement with

Its conclusion. We would dismiss the appeal.

DOMNA ANN BLURTON V DIRECTOR-GENERAL OF SOCIAL SECURITY

(No. W.A.G. 67 of 1984)

Mrs. Blurton

lodged a claim for

handicapped

chlld’s

allowance for Matthew on

10 S,?pcember 1982.

The clalm was uranted

12.

snd, in accordance wlth parz.lOZ(l)(b),

an ailowance ~ 7 a s pald from

September 1982, the commencement of

the nexr: allowance perlod.

V r s .

Blurton then sought a decision that there were special circumstances under para.l02(l)(a) justifying the allowance of a lon9er period than

6 months after the date of eligibllity. Date

ellgibllitp

WBF

September 1977 so

instead of 6 months after that date she neecea

the

longer perlod of approximately

years up to 10

September 1982, che

time when her clalm was lodged, if she was to be brought	wl;:?m
para.lOZ(l)(a).

In her application

for the flxing of a longer perlod, Mrs.

Blurton said she was at all times aware

the allowance but did not

apply before 1982 because of family problems and because she had hoped

that Matthew's condition would improve as

he grew

older. She also

referred to the constant medical treatment and supervision Matthew had

required from birth, to domestlc problems, to

her separation from her

husband and to the stress she had undergone in raising the children

alone. She had

a good deal of contact -with the Department of Soclal

L C ' .

Security and also with the Trades and Labour 'Council Social Weifare

Dqxirtment.

She had not been advised

to &laim

a handicapped child's

allowance.

Both the delegate of the Dlrector-General

(on 7 September

1983) and the Administrative Appeals Tribunal

(on 28 May 1984) held

that "speclal circumstances" within para. 102(l)(a) had noc	b e n
shown.

On the appeal

to us from the Tribunal, no error of law nas

13.

been polnted out whlch would show that its ceclslon was wrong.

We are in broad agreement wlth the approach of the Trlbunal

and are in agreement with its conclusion. We would dismiss	the
appeal.

ELLEN PATRICIA CORBETT

V DIRECTOR-GENERAL OF SOCIAL SECURITY

I	(No. W.A.G. 81 OF 1984)

Miss Corbett lodged claims for two handicapped children Mary Rose Anderson and Allan Germaine Corbett

on 9

November 1981. The

claims were granted on

November 1982 and in accordance wlth

para.lOZ(l)(b) allowances were paid In respect of each child from 15

November 1981, the commencement	of the next allowance period after
lodgment of the claim.

Miss Corbett then sought a decislon that there were special

circumstances

under

para.lOZ(l)(a)

pstifying

the allowance of a

- ---:.G>-.

longer period than

6 months after the date -of. eligibllity in each

- _ . .

case. Eliglbility in respect

of Allan.ls---sald to have existed since

January 1978 and in respect

of Mary since January 1980.

Miss Corbett is a woman of Aboriginal descent. On 8 December

handicapped child's allowance but had not claimed it earlier because

she hoped the chlldren would improve and because she dla not have

1982

she

stated

that

she

had

been

aware

the

existence

anyone to assist her to fill in the forms; on

4 January 1983 she

i	staced she had not claimed the allowance before because she had nor:
i
I

14.

known it existed; and on

10 March i-::

she s m w d thzc she did. know

about the existence

of handicapped child's allowance but did not

clam

earlier due to uncertainty about

how to lodge such claims and the

stress of her situation, the father

of her chlldren beinu llllterate,

unemployed and at times violent towards her. At times she had to

leave home.

The Social Security Appeals Tribunal (on

17 May 1983) and the

Delegate of the

Director-General

(on 25 May 1983) rejected her

application

seeking

sh w

special

circumscances

under

para.lOZ(l)(a). The Adminlstrative Appeals Tribunal

(on 3 July 1984)

affirmed the decision rejecting Miss Corbett's application concerning

Allan but set aside the decision rejecting her application concerning

Mary Rose and in substitution for that decision determined that the

period for lodgment after the date of eligibility be extended to

November 1981, the date

of lodgment of the claim.

In arriving at this result the Tribunal took two steps.

First it concluded that the applicant's circumstances in relation to

- --;.-:-.

the lodging of the two claims were "special- circumstances". Secondly,

it interpreted para.lOZ(l)(a) as conferring a separate discretion to

extend

time.

This

discretion

considered

should.

exercised

favourably to the applicant in respect

Nary Rose and unfavourably

in respect

of Allan. A major factor in its consideration was the

short period involved in respect	of Mary Rose and the	very much longer
period in respect of Allan.

As will have been seen f r m the general discussion of 5.102

15.

earlier In these reasms, WE are of oplnicjn that for an applicant In

respect of a claim

there

one

declsion

only

made,

namely.

whether there are special circumstances

which would warrant the fixing

of a longer perlod than

6 months so as to brlnq her application withln

time under para.l02(l)(a). We are

of opinion that the Tribunal

erred

in law in holding that there were special circumstances but that there

was a residual dlscretion which should be exercised unfavourably to

the applicant by refusing to extend the period in respect of Allan.

Thls is not to say we

thmk the Trlbunal should have extended

:ne

period

respect

Allan.

have

indicated

consider

thac,

where the period between

the time the claimant became eligible and the

time the claim was lodged exceeds six months, the general policy of

the

Act

for the

grant

allowance

bg verned

para.lOZ(l)(b).

This is so unless special circumstances are shown for

extending the period of six months to a longer period

so as to bring

the

appllcation

within

time

under

para.l02(l)(a).

Where,

as in

Allan's case,the delay is lengthy, almost four

years, it would require

weighty reasons indeed to show special circumstances warranting the

. ..4-L*-

L- -.

fixlng

of such a lengthy period. But thisC-.is

matter for the

L..> --

Tribunal to determine, approaching the- matter in the manner we have

- .

suggested. We are of opinion that we should send this particular

matter back to the Tribunal. In taking this' course we do not wish it

to be assumed that

we are expressing a tacit opinion about the result

whlch should be achieved. That is a matter for the Tribunal applylng

the interpretation we have placed on

5.102 in these reasons.

4	S o	far	as	Miss	Corbett's	application	in	respect	of	Mary	Rose
I

-:oncernea,

there

1 s no

appeal

before

us;

accordlngly

make

16,

order in regard to it.

ELIZA J O H N 5 V DIRECTOR-GENERAL OF SOCIAL SECURITY

[No. W.A.G. 82 of 1984)

!	A	claim	was	lodged	by	a	Dr. D.M.	Greer	for	Mrs.	Jonns eeklng
I

a handicapped

child’s allowance ir. respect of

her son Paul Johns.

This appears to have been lodged about March 1982 and

have been

disallowed about

10 May 1982.

A duplxcate claim was

lodoed In June

1982 wlth additional information proviaed by the applicant and medical

information by a Dr. C.M. Chang.

The appllcant appealea in

July 1982

against the rejection

of her claim. It seems a report from Professor

W.B. MacDonald,

Professor

of Paediatrics

Princess

Margaret

Hospital, resulted in a new determlnation that Paul was a handicapped

child. Mrs.

Johns was informed on 26 November 1982 and an allowance

of $20 per month was granted from

15 March

1982, seemingly, the

commencement of the next allowance period after lodgment

of the claim.

L-.-&<

Mrs.

Johns

appealed,

maintaining

-Paul was

severely

handicapped. On 28 June 1983 a delegak-e-.

of the Director-General

decided that Paul was severely handicapped and that Mrs.

Johns should

receive allowance on this basis from

15 March 1982.

Mrs.	Johns then sought a declsion that there vere special

circumstances under para.lOZ(l)(a) warranting a longer pec-lod thar.

s1x

months slnce the date

of eligibility for lodqmg her cl?-:rn,

namelv, a

period from either 27 April or

4 Nsy 1977 up to 1odg:ent in Yarch

1982, a period

of nearly five years.

I I

17.

'The evidence was that Hrs. Johns was

an Aborlqinal ?erson ~ i x

was the mother of twelve children. At varlous times she

had

other

children in her care. The family lived in Katanning. Her husband was

a casual farm worker but for the past nine years had been unable to

work due to

a heart condition and had been

on an invalid penslon.

Paul, the son, was born on

7 July 1968. When he was

elght he

had meningitls and was taken to Princess Margaret Hospltal for

treatment. An operation was performed on his right

ear In Zune 19;7.

In evidence Mrs. Johns described the problems

Paul was experienclna

as: hearing

loss,

eyesight problems, speech problems, a "floppy"

foot, short-windedness and difficulties at school.

Neither Mrs. Johns nor her 'husband 'had regular schooling.

Mrs. Johns could read and write

a little. The family was in financial

need.

Paul needed warm bedclothes, a new mattress, carpet on

the

floor to keep the home warmer and occupational equipment to assist his

. I

=-.

The family frequently had to vis3l'hospitals in Perth and to

- ..

seek help from the Department

of Community. Welfare and from doctors.

No-one appears to have suggested that Mr-s. Johns might claim

handicapped chlld's allowance in respect'of Paul. Medical evidence

made it clear that for many years Mrs. Johns had been eligibile for

such an allowance.

The Administratlve Appeals Tribunal came to

the conclusion

that there were special circumstances

the case of Mrs. Johns,

18.

v;r;:?in para.lOZ(l)(a). It then proc34eci CO exerclse what it saw as a residual discretion under para.lOZ(l)(a). It stated:

"...the granc of a retrospective payment cannot

change what is past. Moreover,

the retrospectlve

payment which would amount to several thousand

dollars could not be pald to the applicant upon

the footing that she applied it only

for

the

benefit of Paul.

It polnted out, amonqst ocher thinqs, that the Act was one which in

general was concerned with income supplements. It rejected

Mrs.

Johns' claim

for

the fixing of the longer period and affirmed

the

decislon under review.

In our opinion, the Tribunal was In error in dealing with the

application of para.l02(l)(a)

in two separate steps, finding first

that special circumstances existed and then exercising a residual

discretion as to whether

a longer period should be fixed.

As	we have indicated, the legislature has indicated in

l < -4,.

.W.?

para.l02(l)(a) that six months is the

latitudeallowed in the ordinary

- .

case between eligibility and the lodgrnb

a claim, otherwise

para.l02(l)(b)

will

apply.

The

qualificatlon

provided

para.l02(l)(a)

for a longer period of delay after eligibility in

maklng a claim where special circumscances exist. To justify a delay

almost

five considerations shor3ing speclal circurnscances would be called for.

years

compared

with

six months

weighty

is at this point that the purpose

of the Act

to provide income

supplements is relevant. Paragraph 102(l)(a) is not a device

f o r

I	provlding capital assistance graded	to meet needg cases, though	l n a
i

19.

modest way it may sometimes operate so as to afford ::.“,e

1ss1ci’zr:e

where special circumstances justify the delay

whlch has occurred SO as

to warrant the longer period being flxed to cover the lodgment

of the

claim, notwlthstanding that it takes place more than six months after

eliglbllity.

Since in our

view the Tribunal has erred In law in

ICS

approach, we feel bound to send

the matter back to the Trlbunal to

decided

accordance

with

the mcerprezation of sub-s.l02(1), whlch

we have expressed in these reasons.

We are not by what

we have sald to be taken

as lndlcatlnq any

view as to what the result of the Tribunal’s determination should be.

GENERAL

These four appeals have been heard together. The appellants have been successful in two

of them and the Director-General in

two.

L- .L.

In the circumstances, we consider we should make no order as to costs

in any

of the appeals. Appeals Nos. WAG 66&nd

WAG 67 of 1984 will be

dismissed. Appeals Nos. W.A.G.

81 and 82 of 1984 will be allowed and

in each of these two cases the decision of

t‘he Trlbunal to the extent

it was challenged on appeal will be set aside and the matter will

remitted to the Tribunal for determination in accordance wlth these

reasons for judgment.

! c e .

.-L ,::IS z-t : Lhe

/ y :,:ccedlng

p;:

2 t w e cc?;] af . ‘ K

,-e:s.a I:

k r

J L I ~ ~ E X X lacran c:^ :!X

Cad:.:

[1985] FCA 234

7 Jun 1985