ROSEMARIE BEADLE v DIRECTOR-GENERAL OF SOCIAL SECURITY

Federal Court of Australia|1985-07-01|Before: Lockhart JJ

Administrative law - Appeal from Administrative Appeals Tribunal

Allowance for handicapped child - Payable frcm commencement of next allowance period after claimant became eliqible if cliaim lodged within six months or in special circumstances within such longer period as Director-General allows - What are special circumstances - Whether Director-General has discretion to refuse

ROSEMARIE BEADLE v DIRECTOR-GENERAL OF SOCIAL SECURITY DONNA ANN BLURTON v DIRECTOR-GENERAL OF SOCIAL SECURITY ELLEN PATRICIA CORBETT v DIRECTOR-GENERAL OF SOCIAL SECURITY ELIZA JOHNS v DIRECTOR-GENERAL OF SOCIAL SECURITY

CORAM: Bowen C.d., Fisher and Lockhart Jd. 7 dune 1985

ROSEMARIE BEADLE Appellant DIRECTOR-GENERAL OF SOCIAL SECURITY

JUDGES MAKING ORDER: Bowen C.J., Fisher and Lockhart JJ.

In appeal No. W.A.G. 66 of 1984 the appeal be dismissed.

In appeal No. W.A.G. 67 of 1984 the appeal be dismissed.

the decision of the Tribunal in relation to the appellant's child Allan Germaine Corbett he set aside;

There be no order as to costs of any of the apseals.

Settlement and entry of orders is dealt with in Order 36

CORAM: BOWEN C.J., FISHER and LOCKHART JJ. 7 June 1985

These are four appeals from the Administrative Appeals Tribunal, presided over by a Presidential Member, which involve consideration of the provisions of the Social Security Act 1947 ("the Act") relating to handicapped children. By consent the four appeals

Before dealing with each case, it, will be convenient to

The handicapped child's allowance is provided for by Part VIB of the Act. Sub-section 105H(1) contains definitions of "handicapped child" and "severely handicapped child". Section 1057 sets out

qualifications for handicapped child's allowance. It 1s as follows:

, "Lusd. Subject to this Part, where a ' has che custody, care and control of

handicapped child provides, in a private home that is the residence of that person and of that child,

child, care and attention in that child only marginally less than the care and attention that the need if he were a severely handicapped

(b) is, by reason of the provision of that care and attention, subjected to severe

Under s. 1050B where the Director-General grants a handicapped child's

allowance he shall inform the person, in 'writing, whether the

allowance has been granted to the person in pursuance of s. 1057

pursuance of section 1OS5JA - such rate as the Director-General, in his discretion, from time to time, determines, but not exceeding the rate specified in paragraph {a)."

Section 105R applies certain provisions of Part VI. It is as

"105R. Section 101 and sub-sections 102(1) and (2) apply in relation to a payment of handicapped child's allowance as if that allowance were a family allowance under Part VI."

Section 101 and sub-sections 102(1) and (2) are as follows:

"101. Subject to this Part, a family allowance is payable in respect of family allowance periods, being periods commencing on the fifteenth day of each month of the year and ending on the fourteenth day of the next succeeding month."

"102. (1) Subject to sub-section (2), a 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 27> 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.

(2) Where a family allowance is granted to a person by reason of that person having assumed the custody, care and control of a child who, immediately before that person assumed his custoady, care and control, was a child in respect of whom 4 family allowance was paid, the family allowance shall be payable from and including the date on which the claim for family allowance is lodged, but, where the claim is lodged within 6 months after the date on which the firstmentioned person assumed the custody, care and control of the child,

or, in special circumstances, within such longer period as the Director-General allows, the family allowance shall be payable from and including that date."

The questions of law raised before us concern the proper interpretation of sub-s. 102{1). As we have seen ss. 1057 and 1OS5SJA deal with eligibility. A person who has custody of a handicapped

child and provides in a private home constant care is qualified to

receive an allowance in respect of that child. The eligibility is that of the person having care of the child. A person may be eligible for an allowance in respect of more than one child. Sub-section 102(1) is concerned solely with the date from which the allowance is payable. Under para. 102(1)(a) the critical date is "the date on which the claimant became eligible to claim the ... allowance". In an ordinary case where the claim is lodged within 6 months after the date on which the claimant became eligible, the allowance will be payable

from the commencement of the next allowance period after that date

{see s. 101). The date on which the claimant became eligible will, no doubt, generally be capable of determination from the material in the

claim form. However, it may in some cases be necessary to request

further information such asa medical -- report where eligibility has

arisen from some particular condition of health. In providing a period of 6 months latitude the legislature appears to have recognized the need for some degree of flexibility in the case of the handicapped child's allowance. The commencing date for payment of most allowances under the Act appears to be related to lodgment of the claim. In the case of the handicapped child's allowance, it will be observed that, although payment of the allowance is conditional upon a claim being

lodged, payment will operate from date of eligibility, not from date

or lodgment of claim, where the claim is lodged within 6 months «_° =:

the date the claimant became eligible. Six months is the length of time Parliament was prepared to back date payment without any consideration by the Director-General. If the claim was not lodged within 6 months of becoming eligible, the payment would commence on the next allowance period after the date on which the claim was lodged, unless the Director-General extended the period of 6 months

The questions arising in the present appeals concern the

nature of the power given to the Director-General under para. 102(1)(a) to extend time. It is clear from sub-s. 102(1) that the result, if the Director-General extends time in the case of a claim lodged more than 6 months after the claimant became eligible, will be to open the way for para. 102(1)(a) to apply, providing for payment to be made from commencement of the next allowance period after the date the claimant became eligible and to prevent para. 102(1)(b) operating

to provide for payment from commencement of the next allowance period

after date of lodgment of the claim. The Diréctor-General is not by sub-s. 102(1) given power to fix the date of commencement of payment:

the section does that. Ail he can do is allow a longer period than 6 months for lodgment of the claim where special circumstances exist.

If he does so, then sub-s. 102(1)(a) operates to fix the date of payment instead of sub-~s. 102(1)(b). Nor does s. 102{1) give the Director-General power to fix the amount of the allowance. This 1s

provided for elsewhere (see e.g. 5s. 105L; cf s. 135 TJ).

We have engaged in this somewhat general and elementary

discussion of the effect of sub-s. 102(1) in order to make plain what is the context in which the Director-General 1s empowered to extend

The two main questions argued on the appeals were, first, what was meant by "special circumstances", and, secondly, whether in a case where special circumstances were found the Director-General had a residual discretion to allow or to refuse to allow the appropriate

As we have seen the Director-General in acting under sub-s. 102(1) is concerned with the period between the date a claimant became eligible and the time when the claim was lodged. The legislature has indicated that 6 months latitude is "sufficient in the normal case. The Director-General has power to fix a longer period in special circumstances. Presumably in this context special circumstances must

include events which would render the 6 months unfair or

inappropriate. For example, where the delay beyond 6 months was due

to the claimant's being misled by a departmental officer or was due to the negligence of a third party it night be thought the normal 6 months would be inappropriate; that special circumstances had been shown which warranted a longer period. More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether tHlese constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is

one for the Director-General bearing in mind the purpose for which the

power 15 given. The phrase "special circumstances", althouch lacking

precision, is sufficiently understood in our view not to rec 1_-

Although we have stressed that the Director-General 15s concerned with time, i.e. with special circumstances which may justify extending the 6 months fixed by the legislature in order to bring a delayed claim within sub-s. 102(1)(a), 1t is true that the result of the exercise of the power will be to give the claimant a retrospective payment, in erfect, a capital sum, which may be small or may be large. Can the Director-General, who is placed in the position of having regard both to liabilities imposed on the public purse and justice to the individual, have regard to such matters? Can the Director-General have regard to the fact that the Act is concerned generally with current payments to meet current expenses and' not with large capital payments in the nature of compensation or otherwise? Can the Director-General have regard to the fact that a tardy claimant has in the past incurred indebtedness for, say, an operation on the

handicapped child, which a retrospective capital sum would enable the

In our opinion, the Director~General would be entitled in an

appropriate case to take such matters into account in deciding whether there were special circumstances which would warrant his fixing a longer period than 6 months. However, the manner of taking them into

account and the weight to be given to them involve questions of some

difficulty. For example, the fact that the extension of the veriod would be substantial and would lead toa substantial capital sum

becoming payable, is not of itself a ground for holding =pecial

circumstances ao not) exX1ST. Rather ain the c weighty facts would be required to establish special circumstances. As we have noted the legislature has indicated 6 months latitude is the

Again, the fact that past indebtedness has been incurred, which it would be helpful for the claimant to have discharged, 15 not of itself a special circumstance excusing delay or reauiring time to be extendea. But it appears to us not to be so remote from the matters with which the legislation is dealing as to be a matter which it would be improper for the Director-General to take into account

along with other circumstances in determining whether special

The next question is whether the Director-General, where special circumstances are shown to exist, has a residual discretion to

allow or to refuse to allow the longer period to bring the claim

within time so that para. 102(1)(a) applies. In our opinion para.

102(1)(a) confers a power upon the Director-General to fix a longer

period than 6 months "in special circumstances". The existence of

special circumstances is a pre-condition to the power arising. But once special circumstances are found to exist the power must, not may,

It might be suggested that the expression "within such longer

period as the Director-General allows" gives the Director-General a discretion to fix a long or short period, indeed such period as he

thinks fit. The difficulty with this suggestion 1s that para.

102(1)(a) only applies if the claim is lodged within a partic usr period after eligibility arose. The sub-section allows 6 months Dut empowers the Director-General to allow a longer period. If, for example, the claim is lodged 18 months after eligibility arose. then it is not within 6 months. If the Director-General fixed, say, 12 months the claim would not be lodged within that longer period e21ther. Nothing less than a period equal to the actual delay would bring sub-s. 102{(1)(a) into operation. Consequently the Director-Seneral has no discretion to fix a shorter period. Indeed, in our view, ne has no residual discretion in relation to the exercise of the power once the pre-condition for its exercise laid down by the section has

ROSEMARIE BEADLE v DIRECTOR-GENERAL OF SOCIAL SECURITY

Mrs. Beadle lodged a claim for a" handicapped child''s

allowance on 9 November 1982. The Claim was granted and, in

accordance with para.102(1)(b), an allowance was paid from 15 November 1992, the commencement of the next allowance period. Mrs. Beadle then sought a decision that there were special circumstances under para.102(1)(a) justifying the allowance of a longer period than 6 months after the date of eligibility. Date of eligibility twas 15 February 1979, so, instead of 6 months after that date she needea the

longer period of approximately 3 years and 9 months up to 3 November

1982, the time when her claim was lodged, if she was to be brought

It appeared that she was for a substantial part of that

period ignorant of her rights, that she suffered financial hardship, that she had in addition to the handicapped child, Cherylyn, another child Ann-Marie who also suffered 1llness, that she was ina

bad domestic situation and that although she had contact with doctors

and hospitals she was not advised to apply for the allowance.

Both the delegate of the Director-General (on 14 September 1983) and the Administrative Appeals Tribunal on appeal (on 28 May 1984) held that "special circumstances" within sub-s.102(1)(a) had not

The appeal to us from the Administrative Appeais Tribunal lies to the Federal Court of Australia only on a question of law. To succeed the appellant needs to point to some error of law on the voart

of the Tribunal which would show its decision was wrong. We do not

consider any error of law has been shown. While we would place less

emphasis on one dictionary definition -of ""special", we are in broad agreement with the approach of the Tribunal and are in agreement with

DONNA ANN BLURTON v DIRECTOR-GENERAL OF SOCIAL SECURITY

Mrs. Blurton lodged a claim for a handicapped child's

allowance for Matthew on 10 Seotember 1982. The claim was aqranted

and, in accordance with para.102(1)(b), an allowance was paid from _!

September 1982, the commencement of the next allowance period. Mzrs. Blurton then sought a decision that there were special circumstances under para.102(1)(a) justifying the allowance of a longer period than 6 months after the date of eligibility. Date of eligibility was 1

September 1977 so instead of 6 months after that date she neecea the longer period of approximately 5 years up to 10 September 1982, the

time when her claim was lodged, if she was to be brought sicthin

In her application for the fixing of a longer period, Mrs. Blurton said she was at all times aware of the allowance but did not apply before 1982 because of family problems and because she had hoped that Matthew's condition would improve as he grew older. She also

referred to the constant medical treatment and supervision Matthew had

required from birth, to domestic problems, to her separation from her

husband and to the stress she had undergone in raising the children alone. She had a good deal of contact ~with the Department of Social Security and also with the Trades and Labour Council Social Welfare Department. She had not been advised to felain a handicapped child's

Both the delegate of the Director-General (on 7 September

and the Administrative Appeals Tribunal (on 28 May 1984) held

that "special circumstances" within para. 102(1)(a) had not been

On the appeal to us from the Tribunal, no error of law nas

been pointed out which would show that its aecision was wrong.

We are in broad agreement with the approach of the Tribunal and are in agreement with its conclusion. We would dismiss the

ELLEN PATRICIA CORBETT v DIRECTOR-GENERAL OF SOCIAL SECURITY

Miss Corbett lodged claims for two handicapped children Mary Rose Anderson and Allan Germaine Corbett on 9 November 1981. The claims were granted on 30 November 1982 and in accordance with para.102(1)(b) allowances were paid in respect of each child from 15 November 1981, the commencement of the next allowance period after

Miss Corbett then sought a decision that there were special circumstances under para.102(1)(a) justifying the allowance of a © wt

longer period than 6 months after the date "of. eligibility in each

case. Eligibility in respect of Allan-is*said to have existed since

January 1978 and in respect of Mary since January 1980.

Miss Corbett is a woman of Aboriginal descent. On 8 December 1982 she stated that she had been aware of the existence of handicapped child's allowance but had not claimed it earlier because she hoped the children would improve and because she did not have

anyone to assist her to fill in the forms; on 4 January 1983 she

stated she had not claimed the allowance before because she had not

14, known 1t existed; and on 10 March i-=:i she stated that she did know about the existence of handicapped chiid's allowance but did not claim

earlier due to uncertainty about how to lodge such claims and the

stress of her situation, the father of her children being 1lliterate, unemployed and at times violent towards her. At times she had to

The Social Security Avopeals Tribunal (on 17 May 1983) and the Delegate of the Director-General (on 25 May 1983) rejected her application seeking to show special circumstances under para.102(1)(a). The Administrative Appeais Tribunal (on 3 July 1984) affirmed the decision rejecting Miss Corbett's application concerning Allan but set aside the decision rejecting her application concerning Mary Rose and in substitution for that decision determined that the period for lodgment after the date of eligibility be extended to 9 November 1981, the date of lodgment of the claim.

In arriving at this result the Tribunal took two. steps.

First it concluded that the applicant's circumstances in relation to

the lodging of the two claims were "special circumstances". Secondly, it interpreted para.102(1)(a) as conferring a s@€parate discretion to extend time. This discretion it considered should be exercised favourably to the applicant in respect of Mary Rose and unfavourably

in respect of Allan. A major factor in its consideration was the short period involved in respect of Mary Rose and the very much longer

As will have been seen from the general discussion oz s.102

earlier in these reasons, we are or opinion that for an applicant in respect of acclaim there is one decision only to be made, namely. whether there are special circumstances which would warrant the fixing of a longer period than 6 months so as to bring her application within time under para.102(1)(a). We are of opinion that the Tribunal erred in law in holding that there were special circumstances but that there was a yvresidual discretion which should be exercised unfavourably to the applicant by refusing to extend the period in respect of Allan. This is not to say we think the Tribunal should have extended tne

period in respect of Allan. As we have indicated we consider that,

where the period between the time the claimant became eligible and the time the claim was lodged exceeds six months, the general policy of the Act is for the grant of allowance to be governed by para.102(1)(b). This is so unless special circumstances are shown for

extending the period of six months to a longer period so as to bring

the application within time under para.102(1)(a). Where, as in

Allan's case, the delay is lengthy, almost four years, it would require

weighty reasons indeed to show special circumstances warranting the

fixing of such a_ lengthy period. But this". is a matter for the Tribunal to determine, approaching the- matter in the manner we have suggested. We are of opinion that we should send this particular matter back to the Tribunal. In taking this course we do not wish it to be assumed that we are expressing a tacit opinion about the result

which should be achieved. That is a matter for the Tribunal applying

the interpretation we have placed on s.102 in these reasons.

So far as Miss Corbett's application in respect of Mary Rose

is concerned, there 1s no appeal before us; accordingly we make no

A claim was lodged by a Dr. D.M. Greer for Mrs. Johns seeking a handicapped child's allowance in respect of her son Paul Johns. This appears to have been lodged about March 1982 and to have been disallowed about 10 May 1982. A duplicate claim was Ilicdaed in June 1982 with additional information provided by the applicant and medical information by a Dr. C.M. Chang. The applicant appealed in July 1982 against the rejection of her claim. It seems a report from Professor W.B. MacDonald, Professor of Paediatrics at Princess Margaret Hospital, resulted in a new determination that Paul was a handicapped child. Mrs. Johns was informed on 26 November 1982 and an allowance of $20 per month was granted from 15 March 1982, seemingly, the commencement of the next allowance period after lodgment of the claim.

Mrs. Johns appealed, maintaining "Paul was severely handicapped. On 28 June 1983 a delegate-- of the Director-General decided that Paul was severely handicapped and that Mrs. Johns should

receive allowance on this basis from 15 March 1982.

Mrs. Johns then sought a decision that there vere special circumstances under para.102({1)(a) warranting a longer pezfiod than six months since the date of eligibility for lodging her claim, namely, a period from either 27 April or 4 May 1977 up to lodarent in March

The evidence was that Mrs. Johns was an Aboriginal voerson anc was the mother of twelve children. At various times she had other

children in her care. The family lived in Katanning. Her husband was

a casual farm worker but for the past nine years had been unable to

work due to a heart condition and had been on an invalid pension.

Paul, the son, was born on 7 July 1968. When he was eight he

had meningitis and was taken to Princess Margaret Hospital for treatment. An operation was performed on his right ear in June 1977. In evidence Mrs. Johns described the problems Paul was experiencing

as: hearing loss, eyesight problems, speech problems, a "floppy"

Neither Mrs. Johns nor her "husband had regular schooling. Mrs. Johns could read and write a little. The family was in financial need. Paul needed warm bedclothes, a new mattress, carpet on the floor to keep the home warmer and occupational equipment to assist his

The family frequently had to visit hospitals in Perth and to seek help from the Department of Community - Welfare and from doctors. No-one appears to have suggested that Mrs. Johns might claim a handicapped child's allowance in respect "of Paul. Medical evidence

made it clear that for many years Mrs. Johns had been eligibile for

The Administrative Appeals Tribunal came to the conclusion

that there were special circumstances in the case of Mrs. Johns,

within para.102(1)(a). It then procesded to exercise what it saw as a

residual discretion under para.102(1)(a). It stated:

benefit of Paul." It pointed out, amongst other things, that the Act was one which in general was concerned with income supolements. It rejected Mrs.

Johns' claim for the fixing of the longer period and affirmed the

In our opinion, the Tribunal was in error in dealing with the application of para.102(1)(a) in two. separate steps, finding first that special circumstances existed and then exercising a residual

discretion as to whether a longer period should be fixed.

As we have indicated, the legislature has indicated in bites -

para.102(1)(a) that six months is the latitude "allowed in the ordinary

case between eligibility and the lodging of a claim, otherwise para.102(1)(b) will apply. The qualification provided in para.102(1)(a) is for a longer period of delay after eligibility in making a claim where special circumstances exist. To justify a delay

of almost five years as compared with six months weighty

considerations showing special circumstances would be called for. It is at this point that the purpose of the Act to provide income supplements is relevant. Paragraph 102(1)(a) is not a device for

vroviding capital assistance graded to meet needy cases, though in a

modest way it may sometimes operate so as to afford :1

assisvance where special circumstances justify the delay which has occurred so as to warrant the longer period being fixed to cover the lodqment of the claim, notwithstanding that it takes place more than six months after

Since in our view the Tribunal has erred in law in 1ts approach, we feel bound to send the matter back to the Tribunal to be decided in accordance with the interpretation of sub-s.102(1), which

We are not by what we have said to he taken as indicating any

view as to what the result of the Tribunal's determination should be.

These four appeals have been heard together. The appellants have been successful in two of them and the Director-General in two. he ese

In the circumstances, we consider we should make no order as to costs in any of the appeals. Appeals Nos. WAG 66 and WAG 67 of 1984 will be dismissed. Appeals Nos. W.A.G. 81 and 82 of 1984 will be allowed and in each of these two cases the decision of the Tribunal to the extent

it was challenged on appeal will be set aside and the matter will be

remitted to the Tribunal for determination in accordance with these

reasons for judgment. lca, wl nis ac the LX nieceding paces cre a true ce PY of {1 varsois for poagment berain of the Cour ALG Mel, Accociate

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