Re JA Parkyn and Director-General of Social Security [1984] AATA 223 (21 June 1984)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: J.A. PARKYN
And: DIRECTOR-GENERAL OF SOCIAL SECURITY
No. W83/74
Social Security

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
The Hon. G.D. Clarkson QC (Senior Member)
I.A. Wilkins
Dr. J.G. Billings

CATCHWORDS

Social Security - handicapped child's allowance - delay beyond six months in making application - meaning of "special circumstances".

Social Security Act 1947 secs. 102, 105D, 105J, 105JA, 105K, 105KA, 105L, 105LA, 105M, 105R

Beadle (W83/79 28 May 1984)

Colussi (S83/4 18 April 1984)

HEARING

CANBERRA
21:6:1984

ORDER

The decision of the Tribunal is to affirm the decision under review.

DECISION

On 16 March 1983 the applicant applied for a Handicapped Child's Allowance in respect of her son, Steven. The allowance was granted with effect from 15 April 1983.

On 9 May the applicant applied for what was described as "arrears" of Handicapped Child's Allowance. This claim was rejected by the respondent. The matter was then referred to a Social Security Appeal Tribunal which on 8 August 1983 notified the applicant that it would recommend that the appeal be disallowed. This was done and the original decision affirmed whereupon the applicant appealed to this Tribunal.

At the time of the hearing the applicant was 26 years of age. As a child she had lived with her family in small isolated railway communities, her father being employed by the Commonwealth Railways. She finished first year at the Norseman High School before leaving school. Thereafter she was employed in Norseman as a waitress, a cook and in a supermart.

When 20 years of age, she formed a relationship with a Mr. Franke, a linesman engaged in erecting power lines on mining sites. Soon after the liaison was formed the couple moved to Leonora and then Leinster for two years. Leinster is an isolated mining settlement about 150 kms. north of Leonora in the Goldfields.

In 1977 the applicant became pregnant and went to Bunbury to stay with the parents of her de facto husband, and her son Steven was born at St. John of God Hospital, Bunbury, on 19 October 1977 after a difficult pregnancy and an induced birth.

The child suffered brain damage at birth and was transferred to Princess Margaret Hospital and diagnosed there as suffering from cerebral palsy.

Thereafter the applicant returned to Leinster and from time to time travelled to Perth in order that Steven might receive out-patients treatment at Princess Margaret Hospital. When Steven was 9 months old he had an operation on his eyes and subsequent operations on a heel and both knees.

When Steven was 12 months old, the family left Leinster to reside in Bunbury. The applicant was then pregnant again and her second child was born in Bunbury where the family lived for 12 months.

When Steven was 2 years old the family moved for a further 7 months to Teutonic Bore, a small community between Leonora and Leinster. Subsequently the family returned to Leinster and then went to Kambalda and Norseman to live.

In October 1981 the applicant's third child was born in Kalgoorlie.

In January 1982 the applicant and her children returned to the Bunbury area to live, although Mr. Franke continued to work away from Bunbury.

In about November 1982 the parties separated and the applicant continued to live in Bunbury whilst her de facto husband returned to Kalgoorlie.

At this time the applicant applied to the respondent's regional office at Bunbury for a supporting parent's benefit. In the course of discussion with officers of the Department, the applicant learned of the existence of the handicapped child's allowance. The parties were reconciled at Christmas 1982 and as mentioned earlier, the claim for an allowance was made in the following March.

During all this time the task of caring for Steven was that of the applicant who took him on regular visits every six months to Princess Margaret Hospital. Steven required regular physiotherapy including leg and back exercises which until he was 12 months old took about one hour per day. Since then physiotherapy, occupational therapy and speech therapy have been given by the applicant to Steven for up to three hours or more per day.

When the applicant was living near a hospital, additional therapy was given there. For this purpose for instance, the applicant used to travel from Kambalda to Kalgoorlie and from Collie to Bunbury.

There is no doubt that the applicant has worked unsparingly to help Steven and has provided equipment to help his progress, such as a balancing beam and a trampoline. He has also been taken to regular swimming exercises.

In the present case the application for backpayment of the allowance was lodged some 5 1/2 years after eligibility first arose and it is accepted by both parties that if the commencing date for payment is to be backdated for that period, it is necessary in terms of s.102(1)(a) that special circumstances exist. The evidence and submissions were directed to this issue.

Mr. Smith who appeared for the applicant presented a persuasive case. His argument was that the phrase "special circumstances" should not be given a restricted meaning. What was "special" was not to be judged by what was "special" to claimants for the allowance, but "special" in relation to the community at large.

He further argued that the relevant "circumstances" were not only those related to the making of the claim or the delay in making it but circumstances within a wider field including the nature of the benefit sought. We understood his argument to be that in the context of considering all claims for all entitlements which might exist in the community, the number of persons whose claims for handicapped child allowance are delayed for more than six months on account of ignorance of entitlement is comparatively small, and therefore more easily to be seen as special than when considering that number only in relation to the number of applicants for handicapped child allowance or the number of such applicants whose claims are delayed for six months or more.

Mr. Smith went on to point to a number or other factors which he argued combined in the present case to constitute special circumstances. One was the comparative lack of security which the applicant and her children have when the father and mother of the children are not married but living in a de facto marriage relationship.

Another was the unusual degree of isolation in which the applicant had lived, first as a child on the trans Australian railway line, then living in small isolated communities with her de facto husband, and then separated from him when he went alone to isolated areas in the course of earning his living.

Both the isolation of the communities in which the family lived and the separation of the applicant and her children from her de facto husband reduced her opportunities for learning of social security benefits. She had little access to information and discussion, usually available in larger centres, because of the small number of people with whom she had contact and the limited opportunities for any such contact resulting from the fact that she, without the father's assistance, had to care for the children.

The resulting isolation was exacerbated by the demands on her time made by the two younger children and the constant treatment given to Steven and time spent by the applicant in assembling and dis-assembling the special equipment necessary for Steven's exercises and on taking him on a round trip of 15 kms. when in the Bunbury area to a heated swimming pool.

There is a further factor which we regard as important in the present case and that is the applicant's evidence as to the uses to which the backpayments would be put if received by her.

It is fair to say that because of the applicant's tireless efforts, Steven has made considerable progress.

Soon after birth he was recognized as severely handicapped with cerebral palsy. His condition has improved through his mother's continued efforts to the stage where he is now at school and only one year behind his normal age group. The applicant is justifiably proud of this improvement which is largely attributable to her unremitting efforts. She described the position as follows:

"If I had not kept up the work and done all the work that I

have done, he would not be anywhere near what he is like
now, starting school. If I had just let him go, he would
have been very severely handicapped. He probably would have
been like that all his life; whereas, because I have given
him so much therapy, he has got a chance in life, and I can
see some good prospects coming along for him, if the treatment
is kept up."

"How has he responded to all the work you are putting in,
in terms of physiotherapy and occupational therapy?---Very
well. He is really improving. He is coming along. The more
therapy he has the better it is for him.

In fact, last year he was able to go to pre-primary for
periods. Is that right?---Yes.

This year, through special arrangement, the Eaton school
you have actually been able to get him in. Is that right?
---Yes; they kept him in pre-school for two years and they
have put him into school this year.

So, although he is a year behind that is all he is and they
are willing to at least try him?---At grade one, yes.

Do you think that is any reward for the work you have put
in?---Yes, definitely.

How does it make you feel about continuing with the
programmes?---It makes me want to do more with him."

The applicant described some of the equipment used and the use to which she

would put any money received as follows:

"Perhaps you can tell me at the moment, when you are giving
him physiotherapy, what do you have to do in terms of
equipment and that sort of thing?---We have a balancing beam
that just sits in the lounge room and everybody trips over
it. He has to learn to walk along that without falling off.
He has to play "catchie" with a ball; you have to draw
hopscotch for him to do hopscotch; he just has to kneel, walk
around on his knees and different things to do.

As far as the occupation therapy is involved - - - ? - - -
I have to sit at the kitchen table and he pastes and draws.

Who has to set up the equipment for his pasting and drawing?
---Me.

If you were to receive the arrears of $4500, how would you
use that money?---I would like to do something about building
a room on so that I could set up all his equipment and maybe
get some decent equipment, proper equipment, just so that
I could walk in and out and maybe sometimes when he wants to,
he could go in himself and walk along the beam and play
with the ball, use the trampoline and things like that. When
it is raining he cannot go out and use the trampoline, which
is one of his main physio equipment; when it is raining he
cannot go swimming.

What would you do in relation to a pool if you - - - ? - - -
I would like to put a pool in at home so that I could spend
all year round with him, as I can see a great deal of
improvement in him since he has been swimming all the time."

One of the questions which arises in the present case is whether the

obviously beneficial use to which any moneys received as a result of this application would be put is relevant. The answer involves the proper construction of the relevant provisions of the Social Security Act.

First, it should be noted that whilst a family allowance (s.105) or a double orphans pension (s.105G) shall be applied to the maintenance, training and advancement of the child in respect of whom it is granted, no similar requirement exists in respect of a handicapped child's allowance.

Handicapped child's allowance is provided for in Part VIB of the Social Security Act. An allowance may be paid in respect of a severely handicapped child or of a handicapped child. As to the severely handicapped child, a person who meets the criteria listed in s.105J "is qualified to receive a handicapped child's allowance in respect of that child".

As to a handicapped child as distinct from a severely handicapped child, s.105JA provides that the Director General "may grant" a handicapped child allowance to a person in respect of a handicapped child "if the Director General is satisfied" that the person meets the criteria laid down in that section.

The entitlement to an allowance thus created by s.105J or s.105JA is to an allowance at the rate prescribed by secs. 105L and 105LA and provision is also made for circumstances in which an allowance once obtained may become not payable for a period (s.105K) or not affected by temporary absence from home (s.105KA) or subject to deduction (s.105M). The circumstanced are also defined in which an allowance ceases to be payable (secs. 105Q, 105QA, 105QB).

Some of these matters are effected by reference to the operation of sections in other parts of the Act. See e.g. s.105K which refers to Part VI - family allowances.

This procedure of enacting by reference to the operation of other sections or parts is used in s.105R to specify the date from which an allowance, eligibility of which has been established, is to commence.

The original application in this case was made on 23 March 1983. At that time s.105R read:

"105R. Sections 98, 99, 100, 101, sub-sections 102(1) and
(2) and section 104A apply in relation to -

(a) a claim for handicapped child's allowance;

(b) a payment of handicapped child's allowance; and

(c) a person to whom handicapped child's allowance is payable,
as if that allowance were a family allowance under Part VI."

On 24 October 1983 which was after the decision under review was made but

before the hearing before this Tribunal s.105R was repealed and a new section substituted which reads:

"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."

The other matters dealt with in the former section, relating to a claim for

an allowance and to a person to whom an allowance is payable are now dealt with in Part VIIIA which was inserted by the October 1983 amending Act.

The change to s.105R seems to have been part of a re-arrangement of provisions and not a substantive amendment. Whichever version of s.105R is relevant in the present case the effect of it is to use subsec.102(1) and (2) in Part VI to determine the commencing date for payments of an allowance eligibility for which has already been determined.

These subsections read:

"S.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 (other
than an institution) 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 first-mentioned 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."

A similar process of incorporation by reference is employed in respect to

double orphans pension. See s.105D and Part VIIIA of the Social Security Act.

The relevant provision here is para. 102(1)(a) which by s.105R of the Act is applied "in relation to a payment of handicapped child's allowance as if that allowance were a family allowance . . .".

What s.102 does is to presuppose that eligibility for an allowance exists and to fix the date from which such an allowance is payable.

In both para. (1)(a) and subsec. (2) of that section some words are necessarily implied to give full effect to the final words "after that date". So, for instance it is necessary to read para. (1)(a) as saying "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 (after that date), as the Director-General allows - from the commencement of the next family allowance period after that date." That is, it is necessary to treat the words underlined as implied otherwise there is no "date" - when the period exceeds 6 months - to which the phrase "after that date" can refer.

When the section, which is concerned with the commencing date of a payment, is so read it seems to follow that the "special circumstances" to which each sub-section of s.102 refers are any such circumstances as are relevant to the fact that in a given case a period of 6 months or more expired between eligibility arising and the application being made. As is pointed out in Beadle (W83/79 28 May 1984, Toohey J. Mr. I.A. Wilkins, Dr. J.G. Billings) the "Special circumstances" relate to the "longer period" to which paragraph (a) of subsec. 102(1) refers.

This view seems to accord with that expressed by Jennings (Deputy President) in a recent decision.

In Colussi -v- Director-General of Social Security S83/4 18 April 1984, after quoting subsec. 102(1) the Deputy President continued:

"The question for the Director-General exercising his
discretion under this provision must be "why did the
applicant fail to lodge a claim within 6 months after
the date on which (she) became eligible?"

There is another point which should be made and that is that even if

"special circumstances" relevant to the delay are shown, that is not the end to the matter. It is then necessary for the Director-General in the exercise of his discretion to "allow" a backdating of the allowance for the "longer period".

This is a wide administrative discretion to be exercised for the purposes of the legislation but no restriction is otherwise placed on its exercise. Factors which may not have been relevant to the first enquiry regarding the circumstances of the delay may well be relevant to the exercise of the Director General's discretion.

It is difficult to see, for instance, how the purposes to which the backpayments would be applied can be relevant to an enquiry regarding the delay in the initial application although such purposes could well be relevant when the Director-General is exercising his discretion whether or not to allow backdating of payments.

We do not however completely exclude the possibility of relevance in all cases of delay. For present purposes it is sufficient to say that in this case the use to which the money would be put if granted does not help to answer the question why the applicant failed to claim within six months after eligibility arose.

With some regret we find ourselves unable to say that special circumstances exist here.

It is true that the applicant has spent much time in small isolated places like Leinster and Teutonic Bore and that her isolation has been heightened by the demands of her children and the periodic absence of her de facto husband, but there is no combination of circumstances which could suggest that the applicant was excluded to any material degree from the society in which she lived, or misled as to her entitlement. She finished first year at high school and has no language or literacy problems. She has lived in some of the larger country centres in the southern part of Western Australia including Bunbury and Collie and in Kambalda within a reasonable distance of Kalgoorlie. We agree with the assessment of the applicant's counsel that anyone talking to the applicant would appreciate she is a person who is quite able to cope with the pressures and problems of everyday life.

Unfortunately her entitlement to an allowance was not brought to her notice for some years after Steven's birth. The view consistently adopted by the Tribunal is that mere ignorance of the existence of the legislation is not of itself sufficient to constitute special circumstances and we propose to follow that view.

For these reasons we affirm the decision under review.