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

This matter concerned an application for Newstart allowance by the Applicant, which was rejected by the Secretary, Department of Social Services. The dispute centred on whether a preclusion period, typically applied when a person receives a lump sum compensation payment, should apply to the Applicant, and if so, whether special circumstances warranted its removal or reduction. The decision was made by Dr Damien Cremean, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether special circumstances existed in the Applicant's case that would justify disregarding the preclusion period, and if so, whether it was appropriate to exercise the discretion to lift all or part of that period. The Tribunal was required to interpret the meaning of "special circumstances" within the context of social security legislation and consider the guidance provided by the *Guide to Social Security Law*.

The Tribunal reasoned that the Applicant's circumstances, including a significant injury from a car accident followed by a lymphoma diagnosis, surgery, chemotherapy, and the subsequent development of a hernia, constituted special circumstances. These events were found to be uncommon and unusual, distinguishing his case from the ordinary. The Tribunal noted that the Respondent's submission that the Applicant did not perceive significant unfairness was contrary to the Applicant's explicit statement that he considered the decision unfair, which was the very reason for seeking review. The Tribunal concluded that it was appropriate to exercise its discretion to lift the preclusion period, but only in part and from a specific date.

The Tribunal set aside the decision under review and substituted a new decision. It ordered that the preclusion period should not apply to the Applicant from 10 September 2019 until the date it would otherwise have ceased by law. This date was chosen as it was when the Applicant received the initial decision and was considered to be destitute and "crushed."