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

[2016] AATA 205

André and Secretary, Department of Social Services (Social services second review) [2016] AATA 205 (9 February 2016)

Division	GENERAL DIVISION
File Number	2015/3412
Re	Teresa André
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	9 February 2016
Date of written reasons	1 April 2016
Place	Adelaide

The Tribunal affirms the decision under review.

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Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Family Tax Benefit – Top-up payments – Whether applicant eligible for top-up payment – Whether effective claim made for Family Tax Benefit for the 2012/2013 financial year – Whether "special circumstances" exist that prevented the applicant from making a claim for Family Tax Benefit – Decision under review affirmed.

LEGISLATION

A New Tax system (Family Assistance) (Administration) Act 1999 (Cth), ss 5(1), 7(1) and (2), 10(2) and (2A)

CASES

Beadle and Director-General of Social Security (1984) 6 ALD 1

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another [1999] FCA 1774

Wilson and Director-General of Social Services [1981] AATA 88

SECONDARY MATERIALS

Centrelink e-reference policy document 007.36060

REASONS FOR DECISION

Senior Member R W Dunne

1 April 2016

INTRODUCTION

1. The respondent Secretary has requested written reasons for my decision, which I delivered orally on 9 February 2016.  The issue to be decided was whether the applicant, Ms André, made an effective claim for Family Tax Benefit (“FTB”) for the 2012/2013 financial year.  She lodged a claim for FTB for the 2012/2013 financial year with the respondent on 19 January 2015.

2. When the claim was rejected and the decision was affirmed by an Authorised Review Officer (“ARO”) and on review by the Social Security Appeals Tribunal (“SSAT”), Ms André applied to this Tribunal for further review of the SSAT decision.

3. At the hearing before me, the respondent was represented by Mr C Visser (from the Program Litigation and Review Branch, Department of Human Services) and Ms André represented herself.  I admitted into evidence the T-Documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

   [1] Exhibit 1.

   ISSUES FOR THE TRIBUNAL

4. The issues for the Tribunal are:

   (a)whether the applicant made an effective claim for FTB for the 2012/2013 financial year; and

   (b)whether there are “special circumstances” that prevented the applicant from making an effective claim for FTB in the required time limit.

   LEGISLATION

5. The legislation that is presently relevant is found within what is often referred to as the family assistance law, in particular, the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“Administration Act”). Subdivision A of Division 1 of Part 3 of the Administration Act, deals with the making of FTB claims. Under s 5 of the Administration Act, which is part of Subdivision A, the only way that a person can become entitled to be paid FTB is to make a claim in accordance with the Subdivision. Section 7 of the Administration Act explains that an individual can make a claim:

   (a)for payment of FTB by instalment; or

   (b)for payment of FTB for a past period.  (The reference to “past period” means a prior period in respect of which a person is entitled to make a claim for FTB.)

6. Section 10 of the Administration Act (which is also part of Subdivision A) contains restrictions on claims for payment of FTB for a past period. Section 10 relevantly reads:

   “10  Restrictions on claims for payment of family tax benefit for a past period

   …

   (2)A claim for payment of family tax benefit for a past period is not effective if:

   (a)the period does not fall wholly within one income year; or

   (b)the period does fall wholly within one income year (the relevant income year) but the claim is made after the end of:

   (i)     the first income year after the relevant income year; or

   (ii)     such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making the claim before the end of that first income year.

   (2A)The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.

   …”

   BACKGROUND

7. The applicant has four children and has been receiving FTB since 20 July 2007.  For the 2010/2011 financial year and the 2011/2012 financial year the applicant’s income was too high to receive any FTB.  For the 2013/2014 financial year she claimed and received FTB.  On 20 April 2012, the applicant increased her estimate of family income to $160,000.  As a result, the respondent sent her a notification letter that informed her that her FTB would be cancelled.  The letter also said that she should check her entitlement with the respondent at the end of the income year when her actual income is known.  On 19 January 2015, the applicant made a claim for the FTB top-up payment for the 2012/2013 financial year.  That claim was rejected.  On 29 January 2015, the applicant requested a review of that rejection by an ARO.  On 2 April 2015, the ARO reviewed and affirmed the decision under review and found that:

   ·the applicant did not make a claim for FTB for the 2012/2013 financial year by 30 June 2014;

   ·there was no evidence “special circumstances” existed to justify a claim extension; and

   ·the applicant could not be paid FTB for the 2012/2013 financial year.

8. In the SSAT decision, it was noted that 2012/2013 was the first financial year affected by a change to the legislation.  Previously, a person had up to two years to lodge their claim for FTB and lodge their income tax returns.  Changes were announced in the May 2013 Federal Budget, which reduced the period of time that a person had to lodge their claim and returns from two years to one.

   EVIDENCE OF APPLICANT

9. In giving her evidence, Ms André said that she is part of a family farming business and she receives income from that business.  She said that she did not recall receiving the letter from the respondent dated 20 April 2012 in relation to her FTB being cancelled.  She was not aware that her income from the farm in the 2012/2013 financial year had reduced, such that she may have been eligible to receive FTB payments.  She also said that she was unaware that she had been taken off the Centrelink register as her income exceeded the level entitling her to FTB.  Her accountant did not process her claim as she had expected.  She was also unaware that individuals only had 12 months after the end of a financial year in which to lodge a past period claim for FTB, because this was a new policy.  She also thought that insufficient information had been given to FTB recipients about the change in the part period claim policy.  She was also unaware from the respondent’s letter dated 20 April 2012 that she could check her FTB entitlement at the end of the income year when her family’s actual income was known.

   CONSIDERATION

   Did the applicant make an effective claim for Family Tax Benefit for the 2012/2013 financial year?

10. The process and the time limits for claiming FTB have changed many times over the years. The Administration Act is beneficial legislation, providing “a payment that assists with the cost of raising children”.  Originally, in 1999, the time limit to lodge a FTB claim for a part period was one year.  This was amended in 2003 to allow a further 12 months for FTB claimants to lodge a tax return and still be eligible to receive their entitlements.  On 1 July 2013, the time limit was again changed and reduced to 12 months, but the discretion to extend the time limit was re-introduced.

11. Under subparagraph 10(2)(b)(i) of the Administration Act, a claim for payment of FTB for a past period is not effective if the period falls wholly within one income year (“relevant income year”), but the claim is made after the end of the relevant income year. In Ms André’s case she made a claim for an annual lump sum payment of FTB for the 2012/ 2013 financial year on 19 January 2015. In these circumstances she has not made an effective claim for FTB for that financial year.

    Are there “special circumstances” that prevented the applicant from making a claim for FTB in the required time limit?

12. The term “special circumstances” is not defined in the Administration Act, nor is it defined in the Social Security Act 1991. It is therefore necessary to apply the ordinary meaning of the words used. Included in the various definitions provided by the Macquarie Dictionary (Revised Third Edition) are “extraordinary; exceptional”. In my view, these are words which would generally be taken to be synonymous with “special” in the context of which the word is used in the Administration Act.

13. Although it is necessary to be careful not to substitute the words of a Statute with other words when interpreting the words used, this Tribunal provided some guidance in Beadle and The Director-General of Social Security, when it said:

    An expression such as “special circumstances” is, by its very nature, incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances of 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.[2]

    [2] (1984) 6 ALD 1 at p. 3.

14. Ms André gave evidence.  I am satisfied that she was an honest witness who gave her evidence to the best of her recollection.  I accept that she was unaware of the change in the law whereby it was required that she lodge her claim for FTB for the 2012/2013 financial year within 12 months of the relevant financial year, rather than within two years as it had been the situation previously.

15. I am satisfied that on or about 20 April 2012 the Department of Human Services sent her a notification letter that told her that it could not pay her FTB because her and/or her partner’s income was too high.  On the basis of Ms André’s evidence, I am satisfied that she was unaware of this letter and/or was not advised that the law had changed.

16. As a matter of general principle, ignorance of the law is no excuse for a person’s failure to comply with it.  In addition, there is no legal obligation on the Secretary or any Government Department to advise potential claimants of changes in the law which may adversely affect them.[3]

    [3] Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another [1999] FCA 1774.

17. Ms André gave evidence that she had forwarded her signed return to her accountant in time for it to be lodged in time, but the accountant did not process it automatically as she had expected.  I do not consider that a mistake or delay by Ms André’s accountant can be properly regarded as a “special circumstance” to entitle her to receive the extension to the FTB.

18. There have been other recent decisions of this Tribunal that have found that “special circumstances” do not exist in cases that are similar to Ms André’s case.  Those cases are:

    Hooker and Secretary, Department of Social Services [2015] AATA 732 (decided on 21 September 2015);

    Secretary, Department of Social Services and Cannon [2015] AATA 1028 (decided on 13 October 2015);

    Secretary, Department of Social Services and Field [2015] AATA 903 (decided on 25 November 2015); and

    Grasso and Secretary, Department of Social Services [2015] AATA 1017 (decided on 23 December 2015).

    CONCLUSION

19. To summarise, I am not satisfied that there were “special circumstances” in Ms André’s case that prevented her from making a claim for FTB for the 2012/2013 financial year, which means that she was not eligible for FTB for that financial year.  I appreciate that this decision will be very disappointing to, and frustrating for, Mr and Ms André.

    DECISION

20. For the reasons outline above, the Tribunal affirms the decision under review.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated   1 April 2016

Dates of hearing	4 and 9 February 2016
Applicant by Phone	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Department of Human Services Program Litigation and Review Branch