Beadle v Director-General of Social Security

(1985) 7 ALD 670

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(Judgment by: Bowen CJ, Fisher, Lockhart JJ)

Beadle
versus Director-General of Social Security

Court:

Judges: Bowen CJ
Fisher
Lockhart JJ

Subject References:
Social security
Handicapped child's allowance
Payable from date of eligibility if claim 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 to extend period where special circumstances are shown

Legislative References:
Administrative Appeals Tribunal Act 1975 - section 44
Social Security Act 1947 - section 101; section 102; section 105 H; section 105 J; section 105 JA; section 105 JB; section 105 L; section 105 R

Judgment date: 7 June 1985

Sydney

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Judgment by:
Bowen CJ
Fisher
Lockhart JJ

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 have been heard together.

Before dealing with each case, it will be convenient to discuss the provisions of the legislation.

The handicapped child's allowance is provided for by Pt VI B of the Act. Sub-section 105 H (1) contains definitions of"handicapped child" and"severely handicapped child". Section 105 J sets out qualifications for handicapped child's allowance. It is as follows:

105 J Subject to this Part, where a person who has the custody, care and control of a severely handicapped child provides, in a private home that is the residence of that person and of that child, constant care and attention in respect of that child, that person is qualified to receive a handicapped child's allowance in respect of that child.

Section 105 JA sets out alternative qualifications. It is as follows:

105 JA The Director-General may grant a handicapped child's allowance in respect of a handicapped child to a person having the custody, care and control of the child if the Director-General is satisfied that the person -

(a)

provides, in a private home that is the residence of that person and of that child, care and attention in respect of that child only marginally less than the care and attention that the child would need if he were a severely handicapped child;

(b)

is, by reason of the provision of that care and attention, subjected to severe financial hardship.

Under s 105 JB 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 105 J (severely handicapped) or s 105 JA (handicapped).

Section 105 L fixes the rate. It is as follows:

105 L The rate of a handicapped child's allowance in respect of a child is -

(a)

where the allowance has been granted in pursuance of section 105J -$85 per month; or

(b)

where the allowance has been granted in pursuance of section 105JA- 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 Pt VI. It is as follows:

105 R 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-ss 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 monthof 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 - 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 custody, care and control, was a child in respect of whom a 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 105 J and 105 JA 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 six 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 as a medical report where eligibility has arisen from some particular condition of health. In providing a period of six 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 lodgement 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 of lodgement of claim, where the claim is lodged within six months after the date the claimant became eligible. Six months is the length of time parliament was prepared to backdate payment without any consideration by the Director-General. If the claim was not lodged within six 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 six months under para 102(1)(a).

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 six 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 lodgement of the claim. The Director-General is not by sub-s 102(1) given power to fix the date of commencement of payment: the section does that. All he can do is allow a longer period than six months for lodgement 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 is provided for elsewhere (see, eg s 105 L; 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 is empowered to extend time.

The two main questions argued on the appeals were, first, what was meant by"special circumstances", and, second, 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"longer period" than six months.

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 six 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 six months unfair or inappropriate. For example, where the delay beyond six months was due to the claimant's being misled by a departmental officer or was due to the negligence of a third party it might be thought the normal six 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 these 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 is given. The phrase"special circumstances", although lacking precision, is sufficiently understood in our view not to require judicial gloss.

Although we have stressed that the Director-General is concerned with time, ie with special circumstances which may justify extending the six months fixed by the legislature in order to bring a delayed claim within sub-s 102(1)(a), it is true that the result of the exercise of the power will be to give the claimant a retrospective payment, in effect, 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 claimant to discharge?

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 six 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 period would be substantial and would lead to a substantial capital sum becoming payable, is not of itself a ground for holding special circumstances do not exist. Rather in the case of lengthy delay weighty facts would be required to establish special circumstances. As we have noted the legislature has indicated six months latitude is the norm.

Again, the fact that past indebtedness has been incurred, which it would be helpful for the claimant to have discharged, is not of itself a special circumstance excusing delay or requiring time to be extended. 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 circumstances existed.

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 six 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, be exercised.

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 is that para 102(1)(a) only applies if the claim is lodged within a particular period after eligibility arose. The sub-section allows six months but 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 six months. If the Director-General fixed, say, 12 months the claim would not be lodged within that longer period either. Nothing less than a period equal to the actual delay would bring sub-s 102(1)(a) into operation. Consequently the Director-General has no discretion to fix a shorter period. Indeed, in our view, he 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 been fulfilled.

We turn now to the particular cases.

Rosemarie Beadle v Director-General of Social Security (No WAG 66 of 1984)

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 1982, 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 six months after the date of eligibility. Date of eligibility was 15 February 1979, so, instead of six months after that date she needed the longer period of approximately three years and nine months up to 9 November 1982, the time when her claim was lodged, if she was to be brought within para 102(1)(a).

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, C, another child A who also suffered illness, that she was in a 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 [(1984) 6 ALD 1] held that"special circumstances" within sub-s 102(1)(a) had not been shown.

The appeal to us from the Administrative Appeals 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 part 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 its conclusion. We would dismiss the appeal.

Donna Ann Blurton v Director-General of Social Security (No WAG 67 of 1984)

Mrs Blurton lodged a claim for a handicapped child's allowance for M on 10 September 1982. The claim was granted and, in accordance with para 102(1)(b), an allowance was paid from 15 September 1982, the commencement of the next allowance period. Mrs Blurton then sought a decision that there were special circumstances under para 102(1)(a) justifying the allowance of a longer period than six months after the date of eligibility. Date of eligibility was 1 September 1977 so instead of six months after that date she needed the longer period of approximately five years up to 10 September 1982, the time when her claim was lodged, if she was to be brought within para 102(1)(a).

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 M's condition would improve as he grew older. She also referred to the constant medical treatment and supervision M 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 claim a handicapped child's allowance.

Both the delegate of the Director-General (on 7 September 1983) and the Administrative Appeals Tribunal [(1984) 6 ALN N58] held that"special circumstances" within para 102(1)(a) had not been shown.

On the appeal to us from the Tribunal, no error of law has been pointed out which would show that its decision was wrong.

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

Ellen Patricia Corbett v Director-General of Social Security (No WAG 81 of 1984)

Miss Corbett lodged claims for two handicapped children M and A 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 lodgement of the claim.

Miss Corbett then sought a decision that there were special circumstances under para 102(1)(a) justifying the allowance of a longer period than six months after the date of eligibility in each case. Eligibility in respect of A is said to have existed since January 1978 and in respect of M 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 known it existed; and on 10 March 1983 she stated that she did know about the existence of handicapped child'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 illiterate, unemployed and at times violent towards her. At times she had to leave home.

The Social Security Appeals 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 Appeals Tribunal [(1984) 6 ALD 335] affirmed the decision rejecting Miss Corbett's application concerning A but set aside the decision rejecting her application concerning M and in substitution for that decision determined that the period for lodgement after the date of eligibility be extended to 9 November 1981, the date of lodgement 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". Second, it interpreted para 102(1)(a) as conferring a separate discretion to extend time. This discretion it considered should be exercised favourably to the applicant in respect of M and unfavourably in respect of A. A major factor in its consideration was the short period involved in respect of M and the very much longer period in respect of A.

As will have been seen from the general discussion of s 102 earlier in these reasons, we are of opinion that for an applicant in respect of a claim there is one decision only to be made, namely, whether there are special circumstances which would warrant the fixing of a longer period than six 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 residual discretion which should be exercised unfavourably to the applicant by refusing to extend the period in respect of A. This is not to say we think the Tribunal should have extended the period in respect of A. 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 A'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 M is concerned, there is no appeal before us; accordingly we make no order in regard to it.

Eliza Johns v Director-General of Social Security (No WAG 82 of 1984)

A claim was lodged by a Dr D M Greer for Mrs Johns seeking a handicapped child's allowance in respect of her son P. This appears to have been lodged about March 1982 and to have been disallowed about 10 May 1982. A duplicate claim was lodged 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 P 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 lodgement of the claim.

Mrs Johns appealed, maintaining P was severely handicapped. On 28 June 1983 a delegate of the Director-General decided that P 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 were special circumstances under para 102(1)(a) warranting a longer period 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 lodgement in March 1982, a period of nearly five years.

The evidence was that Mrs Johns was an Aboriginal person and was the mother of 12 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.

P, 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 P was experiencing as: hearing loss, eyesight problems, speech problems, a"floppy" foot, short-windedness and difficulties at school.

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

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 P. Medical evidence made it clear that for many years Mrs Johns had been eligible for such an allowance.

The Administrative Appeals Tribunal came to the conclusion that there were special circumstances in the case of Mrs Johns, within para 102(1)(a) [(1984) 6 ALN N79]. It then proceeded to exercise what it saw as a residual discretion under para 102(1)(a). It stated:"... the grant of a retrospective payment cannot change what is past. Moreover, the retrospective payment which would amount to several thousand dollars could not be paid to the applicant upon the footing that she applied it only for the benefit of P." It pointed out, amongst other things, that the Act was one which in general was concerned with income supplements. It rejected Mrs Johns' claim for the fixing of the longer period and affirmed the decision under review.

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 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 providing capital assistance graded to meet needy cases, though in a modest way it may sometimes operate so as to afford some assistance where special circumstances justify the delay which has occurred so as to warrant the longer period being fixed to cover the lodgement of the claim, notwithstanding that it takes place more than six months after eligibility.

Since in our view the Tribunal has erred in law in its 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 have expressed in these reasons.

We are not by what we have said to be taken as indicating any view as to what the result of the Tribunal's determination should be.

General

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