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

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by the Secretary, Department of Social Services, against a decision regarding a claim for Special Benefit. The core dispute revolved around whether the respondent's expenditure was unavoidable and reasonable, and crucially, whether a lump sum compensation payment received by the respondent's spouse should be taken into account when assessing eligibility for Special Benefit.

The AAT was required to determine the application of the "long term available funds test" in the context of the respondent's financial circumstances. Specifically, the Tribunal had to consider whether the lump sum compensation payment to the respondent's spouse constituted available funds that should reduce or negate the entitlement to Special Benefit, and whether the respondent's expenditures were of a nature that would permit the Special Benefit to be granted despite the presence of such funds.

The Tribunal noted that the discretion vested in the Secretary by section 729(2) of the relevant legislation is exceptionally broad, allowing for a flexible response to individual circumstances. While the Tribunal did not make a final determination on the merits of the claim, it indicated that the Secretary might consider exercising this discretion in favour of the respondent, suggesting that the circumstances might warrant a flexible approach to the application of the available funds test.

The AAT set aside its previous determination made on 8 May 2020. In substitution, it determined that the respondent's claim for Special Benefit made on 26 September 2019 should be rejected.