Burgess and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr Burgess against a decision by the Secretary of the Department of Social Services regarding the cancellation of his disability support pension and the rejection of his carer payment. The dispute centred on the application of a compensation preclusion period following a lump sum payment for a workplace injury, and whether special circumstances warranted a reduction in that period. The case was heard by Dr I Alexander, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Burgess's circumstances qualified as "special circumstances" under the relevant social security legislation, thereby allowing for a discretionary reduction of the compensation preclusion period. This required the Tribunal to determine if Mr Burgess's pathological gambling disorder, which commenced after his injury and led to the depletion of his compensation funds, constituted an unusual or different factor that rendered the standard application of the preclusion period unfair or unjust. The Tribunal also considered whether the gambling could be characterised as a mere "lifestyle choice" as contended by the respondent.

The Tribunal reasoned that the concept of "special circumstances" is broad and requires an individual assessment of each case on its merits, considering factors such as individual hardship, need, fairness, and reasonableness. Drawing on judicial interpretations, the Tribunal understood "special" to mean something different from the usual or ordinary, and that special circumstances could arise from events or factors that make the operation of the statute unfair or unintended. The Tribunal accepted Mr Burgess's evidence, supported by a clinical psychologist's report, that he suffered from pathological gambling, which he used as a maladaptive coping mechanism for PTSD stemming from his workplace injury. This diagnosis, coupled with the significant financial consequences of the gambling, was found to constitute special circumstances.

Consequently, the Tribunal set aside the original decision and substituted a new decision. It determined that Mr Burgess's compensation preclusion period should be reduced, concluding on 30 June 2020, approximately 12 months from the date of the hearing.