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

This matter concerned an appeal by an applicant regarding a preclusion period applied to their Newstart allowance following a compensation payment for personal injury. The Secretary of the Department of Social Services was the respondent. The Administrative Appeals Tribunal (AAT) was tasked with determining whether special circumstances existed in the applicant's case and, if so, what amount should be reduced from the compensation payment calculation to establish the preclusion period.

The primary legal issue before the Tribunal was to determine if "special circumstances" existed that would justify excluding certain expenditures from the calculation of the lump sum compensation payment. The Tribunal was required to approach the applicant's claim de novo, meaning it was not bound by previous decisions, and consider the circumstances as they stood at the date of its determination. The underlying principle of the preclusion period, as outlined in the Social Security Guide, is that individuals compensated for loss of income should use that compensation for their living expenses rather than receiving taxpayer-funded income support for the same period.

The Tribunal considered the discretion afforded to the Secretary under section 1184K(1) of the Act, which allows for the disregard of whole or part of a compensation payment in special circumstances. While acknowledging the lack of a precise legislative definition for "special circumstances," the Tribunal relied on existing judicial guidance. The Tribunal ultimately determined that the preclusion period should be 145 weeks, rounded down from 145.16 weeks, commencing on 11 May 2017 and ending on 19 February 2020. The decision under review was set aside, and a new preclusion period was determined accordingly.