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

This matter concerned an application for a JobSeeker Payment by a claimant who had received a lump sum compensation payment. The Secretary, Department of Social Services, had imposed a compensation preclusion period (CPP) on the claimant's entitlement to the payment. The Administrative Appeals Tribunal was required to determine whether a CPP applied, its length, and whether special circumstances warranted reducing its duration, thereby affecting the claimant's eligibility for the JobSeeker Payment.

The Tribunal considered whether the lump sum compensation payment, which was partly in respect of lost earnings, triggered a CPP under the relevant provisions of the Social Security Act 1991 (Cth). It was not disputed that the payment qualified as compensation. The Secretary had recalculated the CPP, which was found to be 391 weeks, commencing on 24 November 2017 and ending on 25 May 2025. The central legal issue was whether the special circumstances of the case justified the exercise of the discretion under s 1184K of the Act to treat part of the lump sum compensation payment as not having been made, thereby shortening the CPP.

The Tribunal noted that "special circumstances" are those that are unusual, uncommon, or exceptional, making a case markedly different from the usual. Applying this to the facts, the Tribunal found that requiring the applicant to sell their home, as implied by the Secretary's approach, would be untenable for the young family and could lead to trauma and regression in a child's condition, based on the available medical evidence. Consequently, the Tribunal determined that the applicant's circumstances constituted special circumstances sufficient to warrant the exercise of the discretion under s 1184K.

The decision under review was set aside. The Tribunal substituted its own decision, finding that the applicant's circumstances amounted to special circumstances justifying a reduction of the CPP to 28 March 2020. Subject to satisfying all other requirements, the applicant's claim for JobSeeker Payment lodged on 28 March 2020 was to be granted.