Q. v. Director-General of Social Security No. V82/454 1 July 1983

Drake v. Minister for Immigration & Ethnic Affairs (1979) 2 ALD 60.

The Tribunal affirms the decision of the Delegate of the Director-General dated 14 September 1983.

This is an application to review a decision by the Director-General of Social Security.

2. The decision was one that a handicapped child's allowance for the applicant's child Cherylyn was payable from 15 November 1982 but not from an earlier date.

3. A handicapped child's allowance is one form of family allowance under the Social Security Act 1947 ("the Act"). Sub-section 102(1) of the Act reads:

family allowance granted to a person

(other than an institution) shall be

payable -

(a) if a claim is lodged within 6

months after the date on which the

claimant became eligible to claim

the family allowance, or, in

special circumstances, within such

longer period as the Director-

General allows - from the

commencement of the next family

allowance period after that date;

or

(b) in any other case - from the

commencement of the next family

allowance period after the date on

which the claim for family

allowance is lodged".

4. Mrs. Beadle lodged a claim for a handicapped child's allowance on 9 November 1982. The claim was granted and an allowance was paid from 15 November 1982, the commencement of the next allowance period after the date on which the claim was lodged. What Mrs. Beadle now seeks is a review of a decision that there were no "special circumstances" justifying payment from an earlier date.

5. The circumstances surrounding the family situation and the payment of the allowance were not the subject of any serious dispute. Cherylyn was born on 14 April 1974. In January 1979 her health began to cause her mother worry. She began to have high temperatures, to wet her bed and to soil and wet her clothes during the day. Mrs. Beadle saw her family doctor who, after a time, referred her to Princess Margaret Hospital where there was a diagnosis of eneuresis due to recurrent urinary tract infections. Mrs. Beadle's personal and domestic situation was an unhappy one. She was iltreated by her husband from whom she separated early in 1979. Maintenance payments were irregular and she was obliged to obtain part-time work. In addition to supporting herself and her children, she was trying to maintain mortgage payments on the house occupied by the family.

6. A report from Princess Margaret Hospital dated 1 March 1983 shows a constant history of attendances at the hospital from 1979 onwards. Mrs. Beadle herself was in hospital in August 1979 as a result of a gastric diverticulum. She was subject to stress by reason of the marital relationship and also health problems associated with Cherylyn and her other child. Her financial position was at times quite desperate and she was forced to sell furniture and personal items.

7. While her position has improved somewhat, it is apparent that, in her own words, Mrs. Beadle is "still struggling".

8. Mrs. Beadle said that she was aware, at any rate from the time that she was taking Cherylyn to Princess Margaret Hospital, that there was such a thing as a handicapped child's allowance but she thought that it was only available to children "who are visibly, physically, handicapped or mentally handicapped". Although she discussed her situation generally with a social worker at the hospital, there was no suggestion that a handicapped child's allowance might be payable for Cherylyn. It only occurred to her that one might be payable when she was told so by a woman whose daughter had a similar health problem. She then made enquiries at Princess Margaret Hospital and as a result applied for an allowance. Her family doctor did not mention the possibility that she might qualify for an allowance; indeed he was 'amazed' when Mrs. Beadle told him that one had been granted.

9. Counsel for the parties were agreed that if there were special circumstances an appropriate date for commencement of the allowance would be 15 February 1979. However it was the respondent's submission that nothing had been shown to justify an earlier payment.

10. The question of what is meant by "special circumstances" in sub-s.102(1) has been considered by the Administrative Appeals Tribunal in a number of decisions. We do not think it necessary to refer to all the decisions; those given in 1983 and 1984 are set out in a schedule attached to these reasons. Some matters were decided after the hearing of the present application.

11. It is necessary to dispel a misconception in the minds of some, as appears from the material furnished to this Tribunal. Whatever "special circumstances" may mean and whatever the relevance of the applicant's state of mind as to the existence of such an allowance and its possible operation in the particular case, there is nothing to justify the notion that ignorance of even the existence of such a thing as a handicapped child's allowance will preclude the operation of sub-s.102(1) para. (a). There seems to be an idea, even in the minds of some concerned with the administration of the Act, that a person who is aware of the existence of the allowance, but has not thought it applicable in the particular case, is in a better position than a person who is not even aware that the allowance existed. How this misunderstanding came about we are not sure but it should be removed. It seems to have stemmed from a misunderstanding of decisions of the Tribunal that ignorance of the relevant provisions of the Social Security Act does not constitute special circumstances. This is a matter referred to later in these reasons.

12. An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

13. The question must be asked - in relation to sub-s.102(1), what is the context in which circumstances are to be adjudged special or not special? In any event they must be sufficiently special to warrant an exercise of the Director-General's discretion to allow payment of the handicapped child's allowance from a date earlier than the period of 6 months identified by the sub-section. Does that mean that there must be something special in the circumstances of the family at the time for which the allowance is sought? Does it mean that there must be something special in the circumstances in which and in the time at which the application was made? In our view, while some explanation for the delay in making the application is called for, the existence of "special circumstances" is to be determined from all the circumstances surrounding the application and the time at which it was made. Several recent decisions of the Tribunal have found "special circumstances" in the entirety of the situation presented rather than in any one circumstance. See for instance Lawrence, Puccini and Damalas, all mentioned in the attached schedule.

14. There is a line of decisions of the Tribunal treating unawareness of the relevant provisions of the Act as not constituting special circumstances. Those decisions are collected by the Tribunal in Vasilellis v. Director General of Social Security (unreported decision delivered 23 December 1983). Some of those cases have relied, by way of analogy, on decisions concerned with the expression "reasonable cause" in Limitation Act legislation. In particular, reliance has been placed on the dicta of Cozens-Hardy M.R. in Roles v. Pascall and Sons (1911) 1 KB 982 at p 985:

"Then is it a 'reasonable cause' for a

man not giving a notice that he is not

aware of the Act of Parliament at all?

In my opinion it is not".

15. But 'reasonable cause' and 'special circumstances' are by no means the same concept. To apply decisions bearing on one to cases concerned with the other may well obscure the inquiry that the legislation demands. It must be remembered too that decisions on Limitation Act provisions are usually concerned with whether a claim may be made or an action brought. Sub-section 102(1) does not establish a time after which claims are excluded; it is concerned with the circumstances in which the allowance payable may ante-date the claim. It invites the question whether there are special circumstances by reason of which the handicapped child's allowance should be paid to a date earlier than the 6 months period mentioned in sub-s.102(1).

16. As just mentioned, the "special circumstances" contemplated by sub-s.102(1) para (a) do not relate to the granting of the allowance itself. Paragraph (b) of the sub-section ensures that whenever a claim is lodged payment will be made not later than the commencement of the next family allowance period. It follows that the special circumstances must relate to the "longer period" to which para. (a) refers.

17. In our view a relevant circumstance is the state of the applicant's awareness of the relevant provisions of the Act at and prior to the time of the application. This is not because of any notion of reasonable cause. Nor does it involve any criticism of an applicant for tardiness in making an application. It simply means that there may be something special in the circumstances that led to the making of the application when it was made.

18. If an applicant had some general awareness of the existence of a handicapped child's allowance but no appreciation of its application to his or her child, the experience of the Tribunal would indicate that, of itself, there is nothing "special" about that circumstance. It is fair to say that, in the majority of cases where a claim is not made within 6 months of eligibility, some general awareness is the norm. The situation of a mother who consults her general practitioner, who is referred to Princess Margaret Hospital, who is seen by a social worker and by a representative of the Department of Social Security, but who takes some time to appreciate that her child is handicapped as opposed to simply being unwell over a time, is a regular occurrence. So too, it would appear, is the situation of the mother who is aware of the handicapped child's allowance but who thinks it is available only to children "who are visibly, physically handicapped or mentally handicapped" (Mrs. Beadle's words).

19. On the other hand there may be something in the situation of a particular applicant, related to general level of understanding, knowledge of English or isolation that makes the circumstances unusual. Being misled by an officer of the Department or by some other responsible person as to availability of such an allowance might also constitute special circumstances. Thus in Q. v. Director-General of Social Security (unreported decision delivered 1 July 1983) the Tribunal directed that a handicapped child's allowance be paid for a "longer period" in terms of sub-s.102(1) because inter alia "... the Welfare Department did not simply fail to inform the applicant about her entitlement to a family allowance for B but failed to do so in circumstances in which she might reasonably have believed that, if she were entitled to it, the Department would have informed her of that" (at p.7). We mention these matters by way of illustration and not in any sense by way of definition.

20. It seems to us that the financial position of the applicant will not ordinarily constitute special circumstances of itself. Very many of those who seek the handicapped child's allowance are in straitened financial circumstances. That is not to say that some quite unusual expense incurred on behalf of the handicapped child during the period under consideration is not capable of constituting special circumstances. In a particular case it may do so.

21. But it is not helpful to focus too closely on each particular circumstance of the applicant and ask whether it is special. Of itself it is unlikely to be special for there would be many in a similar situation. The question is whether, when the relevant circumstances of the applicant are looked at in their entirety, they may fairly be described as unusual, uncommon or exceptional so as to warrant payment of the allowance earlier than the date from which it would ordinarily be paid.

22. The matter is now before this Tribunal for review:

"The question for the determination of

the Tribunal is not whether the decision

which the decision-maker made was the

correct or preferable one on the

material before him. The question for

the determination of the Tribunal is

whether that decision was the correct or

preferable one on the material before

the Tribunal" (Drake v. Minister for

Immigration and Ethnic Affairs (1979) 2

ALD 60 at p 68).

23. We are conscious of the difficulties under which Mrs. Beadle has laboured but we are unable to find, in the circumstances surrounding her application for a handicapped child's allowance, anything "special" in the sense in which we think the legislature intended the term.

24. Mrs. Beadle's understanding of the availability of the handicapped child's allowance, like that of many other parents, was incomplete. This was not due to any lack of knowledge of the English language, isolation or any other factor of a particular nature. Her financial position was poor but there was no evidence of any particular expenditure incurred or other relevant obligation assumed during the earlier period for which the allowance was sought. This is not to say that the absence of such circumstances is conclusive; but their absence is relevant. Neither in the circumstances to which we have just referred nor in the entirety of Mrs. Beadle's situation was there anything that fairly answers the description "special circumstances".

25. This case and others emphasise the need for Parliament to give consideration to the language of sub-s.102(1) so that criteria are adopted which are capable of ready understanding and application to meet the legislative policy the provision is aimed at achieving.

26. We would affirm the decision of the delegate of the Director-General dated 14 September 1983.