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

This matter concerned an appeal by the Applicant, Ms Chen, against a decision of the Secretary of the Department of Social Services regarding the application of a compensation preclusion period. The dispute centred on whether the preclusion period should commence at an earlier date than that determined by the Department, and whether special circumstances existed to alter the application of the relevant legislation. The decision was made by Dr Damien Cremean, Senior Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether the Social Security Act 1991 (Cth) (the "1991 Act") provided any mechanism to backdate the commencement of the compensation preclusion period to a date prior to 5 February 2016. Secondly, the Tribunal had to consider whether the circumstances of the Applicant's case were "special" within the meaning of section 1184K of the 1991 Act, such that the standard application of the preclusion period should be modified.

The Senior Member affirmed the Department's decision, finding that the 1991 Act contained no provision that would permit the preclusion period to commence earlier than 5 February 2016, as stipulated by section 1169. The Tribunal emphasised that it could not create law contrary to the express provisions of an Act of Parliament. Furthermore, the Tribunal found that the Applicant had not presented any evidence or arguments to demonstrate that her circumstances were "special" in the manner required by legal authorities, concluding that the mere fact that the amount to be repaid was substantial or perceived as unfair did not constitute special circumstances. The Applicant's contentions were rejected in their entirety.