Benstead and Secretary, Department of Social Services (Social services second review) - [2023] AATA 1108

Benstead and Secretary, Department of Social Services (Social services second review) [2023] AATA 1108 (10 May 2023)
Division:GENERAL DIVISION
File Number(s): 2022/3924
Re:Amanda Benstead
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:10 May 2023
Place:Sydney

The reviewable decision is set aside and substituted with a decision that the relevant date is extended to 28 October 2021 on the basis of special circumstances. The matter is remitted to the Secretary for calculation and payment of FTB.
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Mr S Evans, Member
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – Family Tax Benefit – claim
lodged out of time – whether Tribunal should exercise discretion to allow claim out of time – whether "special circumstances" existed – whether “special circumstances” prevented lodgement of claim on time – whether pandemic restrictions are special circumstances - decision under review set aside and substituted.
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Cases
Beadle and Director-General of Social Security [1984] AATA 176
Hooker and Secretary, Department of Social Services [2015] AATA 732
Mousawi and Secretary, Department of Social Services [2021] AATA 850
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
Secretary, Department of Social Services and Hollis [2015] AATA 941
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones [2012] FCA 639
Singleton and Secretary, Department of Social Services [2019] AATA 766
REASONS FOR DECISION
10 May 2023
INTRODUCTION

Claims for family tax benefit (FTB) are required by legislation to be made within a year of the end of the relevant income year. Amanda Benstead (the Applicant) lodged her claim for FTB for the 2019/20 income year on 28 October 2021.[1] Consequentially, the Applicant’s claim was refused by the Department of Social Services (the Secretary).[2]
[1] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) [3]; T5/65
[2] T6/66
The decision was reviewed by an Authorised Review Officer (ARO) who decided that the Applicant was also not eligible for a ‘special circumstances’ extension.[3] The Applicant sought review of the ARO’s decision and the Social Services and Child Support division of the Tribunal (AAT1) which affirmed the ARO’s decision on 13 April 2022 (the reviewable decision).[4] The Applicant now seeks review at the General Division of the Tribunal.[5]
[3] T8/72
[4] T2/6
[5] T1/1
For the reasons which follow, I have decided to set aside the reviewable decision.
LEGISLATION AND POLICY
The legislation relevant for this matter is contained within the A New Tax System (Family Assistance) (Administration) Act 1999 (the FA Admin Act).
Subsection 5(1) of the FA Admin Act provides that the only way a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision.
Section 7 of the FA Admin Act sets out how an individual may claim FTB:
How to claim
(1) An individual or approved care organisation (a claimant) may make a claim:
(a)for payment of family tax benefit by instalment; or
(b)for payment of family tax benefit for a past period; or
(c)in the case only of a claimant who is an individual – for payment of family tax benefit by single payment/in substitution because of the death of another individual.
Form etc. of claim
(2) To be effective:
(a) a claim must:
i. be made in a form and manner; and
ii. contain any information; and
iii. be accompanied by any documents required by the Secretary; and…
Subsection 10(2) of the FA Admin Act in turn provides that:
(10)(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.
The effect of subparagraph 10(2)(b)(i) of the FA Admin Act is that for a claim of FTB for the 2019/2020 income year to be effective, the claim can be made at any time between 1 July 2020 to 30 June 2021 (the relevant period), but must be made on or before 30 June 2021 (the relevant date).
Subparagraph 10(2)(b)(ii) of the FA Admin Act provides an exception to the requirement to submit in accordance with 10(2)(b)(i) if there are special circumstances which prevented a claimant from making a claim by the relevant date.
ISSUES TO BE DETERMINED
It is not in dispute that the Applicant lodged her claim for FTB for the 2019/20 income year on 28 October 2021 or that she was required by operation of the FA Admin Act to have done so by 30 June 2021.
The Applicant contends that special circumstances prevented her from lodging a claim by the relevant date and the Tribunal should exercise its discretion to extend the time to claim in accordance with 10(2)(b)(ii).
The Applicant explained why the special circumstances provision should be exercised in an email dated 28 March 2022. She writes that she had difficulty completing the claim form and was unable to access in person support at her Centrelink (the Agency) office. She wrote in part:
Services usually provided by Centrelink were not provided during [the COVID-19 related] lockdown, specifically in person visits to a branch. It was because of this that I was unable to provide the information within the allocated time frame. I could not access anyone over the phone, and the branches were shut because of lockdown.
I had a [miscarriage] and medical termination in May [2021]. The details were for a backdated period, a 49 page [claim] form that I didn’t understand the questions, and my ADHD contributed to not being able to complete the forms, I was having panic attacks trying to complete it. I was also advised that the claims would be backdated so didn’t know it was urgent to lodge, until April when the reminder was sent to finalize. A manual form was required because the online system wasn’t able to accept dates prior to current period, and the two prior attempts from February 2020 and May 2020 were cancelled on the online system, also claim cancelled 24 June 2021 …[6]
[6] T10/85
The exercise of the discretion of the special circumstances provision in 10(2)(b)(ii) of the FA Admin Act has been considered previously by the Tribunal. In Hooker and Secretary Department of Social Services Senior Member Toohey set out a two-part test for applying the special circumstances provisions:
In order for the time for making a claim to be extended, the Secretary (and so the Tribunal) must be satisfied, firstly, that circumstances existed that were special and, secondly, that those special circumstances prevented the claimant from making his or her claim within time
…
…In the case of a late claim for FTB, the special circumstances must prevent a person from making a claim on time. That is a more stringent, two-part test.[7]
[7] [2015] AATA 732, [14], [19]
This approach has been adopted in other decisions by the Tribunal and it is appropriate to be applied in this matter.[8] Accordingly, the questions to be determined are:
(i)whether special circumstances existed; and if so
(ii)whether the special circumstances prevented lodgement of the Applicant’s FTB claim by 30 June 2021 and the time for lodgement should be extended.
[8] See Secretary, Department of Social Services and Hollis [2015] AATA 941 [30]-[31]
DID SPECIAL CIRCUMSTANCES EXIST
The expression ‘special circumstances’ is not defined in the FA Admin Act but has been considered extensively by the courts and this Tribunal. In Beadle and Director-General of Social Security, the Tribunal stated that:
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.[9]
[9] [1984] AATA 176, [13]
In Secretary of the Department of Families, Housing Community Services and Indigenous Affairs v Jones the Federal Court observed that ‘special circumstances’ is ‘sufficiently understood as including events or things that render the operation of the statute in a particular case as unfair, unintended or unjust’ and set out that ‘what is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists.’[10]
[10] [2012[ FCA 639, [51]
[10] T10/78
Evidence
In statements provided in March and September 2022, the Applicant details her personal circumstances preceding and during the relevant period. She separated from her spouse in October 2019 after 20 years of marriage.[11] Shortly after separating she was made redundant and no longer able to afford to treat Attention-Deficit Hyperactivity Disorder (ADHD) she had earlier been diagnosed with. In June and July of 2020 both her family pets were euthanised. In March 2020 she lost another job - on this occasion due to COVID-19. In July 2020 she was required to move home with three weeks’ notice. During the relevant period, the Applicant was a single parent raising her 6 year-old son which required home schooling during the pandemic lockdowns. It was her evidence that the multiple difficulties she faced left her in ‘survival mode’ throughout 2020 and 2021, barely coping and unable to fulfil some of her responsibilities.[12]
[11] T10/78
[12] September 2022 Statement
The Applicant has provided evidence relating to her heath conditions including that she was diagnosed with ADHD and Generalised Anxiety Disorder in 2017.[13] In a report dated 23 September 2022 consultant psychiatrist Dr Sajeeva Jayalath confirms the Applicant first saw him in May 2017 and that her treatment had included medication which improved her ability to concentrate, organise activities and reduce careless mistakes.[14]
[13] T10/78
[14] ST4/204
In late 2019 the Applicant could no longer afford to see Dr Jayalath and her condition was subsequently untreated. In May 2021 the Applicant miscarried and required a medical termination, which Dr Jayalath considers would have exacerbated her ADHD symptoms. In the report, he writes that the Applicant’s mental health conditions would have been particularly acute during the relevant period:
It is more than likely that untreated ADHD symptoms and the stressful life situation - being a co-parent, not having sufficient support and having to look after a child during lockdown, whilst studying full time and working, and financial hardship - impacted her ability to complete the backdated family tax benefit claim for year 2019-2020. In addition, her history of IVF treatment and recurrent miscarriage, and the recent termination of pregnancy in May 2021 would have contributed to her worsened symptoms, as hormone levels both during and after pregnancy increase symptoms of ADHD.[15]
[15] ST4/205
Also in evidence is a report dated 2 September 2022 by consultant psychologist Stephanie Martingago who has been treating the Applicant since 2015. Ms Martingago understands that the Applicant was struggling with the ‘aftermath of her redundancy, her diagnosis of ADHD, and a family death around the same time.’[16]
[16] ST3/203
Regarding her claim for FTB, the Applicant’s evidence was that she commenced an online FTB claim which she sought to complete progressively between January and June 2021. Consistent with having commenced a claim in early 2021, the reviewable decision records the Applicant commenced an online FTB claim on 24 March 2021 which expired on 24 June 2021.[17] The expiration of an FTB claim on 24 June 2021 is also confirmed by a notification in the Applicant’s Centrelink App confirming that an online claim for FTB had been cancelled.[18]
[17] T2/8
[18] T10/84
The Applicant experienced difficulty completing the online application owing to the nature of the information she needed to provide, the length of the application, her general circumstances and particularly her ADHD, which was detrimental to her concentration, focus and ability to complete some tasks. She was also required to upload documents which she claims were not being accepted by the online platform.
Were the circumstances special?
Experiencing a mental health condition, the death of a pet, loss of a job, moving house, the breakdown of a marriage or looking after a child as a single parent are not uncommon or unusual circumstances. I accept that the circumstances outlined by the Applicant are not in themselves special and do not constitute special circumstances even in combination. I also note that some of the factors the Applicant has identified – such as her separation and first being made redundant - occurred as far back as in 2019.
The Applicant’s experience was that her circumstances were worsened by the COVID-19 pandemic. The Secretary contends that the impact of the pandemic on the Applicant’s ability to lodge a claim for FTB is not special as the challenges posed by the pandemic were general in nature and experienced by many who were required to lodge a claim for FTB by 30 June 2021.
What constitutes special circumstances requires a broad approach taking into account the considerations relevant to each particular case.[19] The evidence strongly supports that at the time the Applicant was isolated, suffering an untreated medical condition and faced a series of difficult demands which were made more challenging by the pandemic. In my view, the nature of the Applicant’s health condition and the difficulties she had concentrating and organising activities owing to her ADHD are such that pandemic related restrictions had a disproportionate impact on the Applicant compared to others in a similar position.
[19] Riddell v Secretary, Department of Social Security (1993) 42 FCR 443, 450
Having regard to the totality of the Applicant’s circumstances, I am satisfied that they were sufficiently unique and complex to be considered special.
DID THE CIRCUMSTANCES PREVENT LODGEMENT?
I now turn to the question of whether the special circumstances prevented the Applicant from lodging her FTB claim by the relevant date.
The Applicant contends that she intended to attend a Centrelink branch to finalise her FTB claim. She was advised by her local Centrelink branch that due to COVID-19 related restrictions Centrelink was not assisting with completing FTB claims at the time. She reports being informed by Centrelink staff she would need to make an appointment to do so at a later date.
When the Applicant successfully lodged a completed FTB claim on 28 October 2021, she did so by attending a Centrelink branch where she was able to access in person assistance. Completing the application reportedly took a total of four hours over two days.[20]
[20] T10/85
The Secretary argues that the Applicant cannot rely on the closure of Centrelink branches as she could have made an effective claim at any time between 1 July 2020 and 30 June 2021.[21] The Secretary’s Statement of Facts, Issues and Contentions acknowledges that COVID-19 restrictions came into place on 18 March 2020 and stricter restrictions were implemented from 23 March 2020. The restrictions were eased as of 28 April and continued to be eased throughout April through to June 2020.[22] It is submitted that the Agency’s branches were essential services which remained open during and throughout the various ‘shutdowns’. The Secretary does not specifically address the issue of any or what pandemic related restrictions were in place generally or at individual Centrelink branches throughout 2021.
[21] RSFIC, [37]
[22] RSFIC, [38]
Absent evidence to the contrary, I accept that the Applicant was told that she would be unable to complete her application in person at a Centrelink branch owing to pandemic restrictions. I make this finding as the Applicant successfully lodged her completed FTB claim approximately two weeks after NSW’s most severe pandemic restrictions were lifted on 11 October 2021.[23]
[23] NSW Health (7 October 2021) NSW on the Road to Reopening <>
In considering the impact of the pandemic, the Secretary directs me to the matter of Mousawi and Secretary, Department of Social Services where Senior Member Morris stated in relation to the pandemic and special circumstances:
I do not conclude that Mrs Mousawi’s comments about difficulties placed on her family finances by the COVID-19 pandemic were other than general in nature. Without saying they are not genuine statements, these are difficulties that have affected many people who are in receipt of social security assistance (and indeed many who are not) and in the absence of specific submissions that there was something special or, ‘out of the ordinary’, which might place Mrs Mousawi in a special circumstance … that might enliven the discretionary power to waive some or all of the debt, these provisions are not relevant.[24]
[24] [2021] AATA 850, [95]
In Mousawi, the applicant argued that the pandemic had been financially difficult and should be taken into consideration when deciding if she was required to repay a debt which had arisen due to overpayment of benefits. To my mind the current matter is markedly different and more specific to the Applicant than what was outlined in Mousawi. In the Applicant’s case, I am satisfied that her personal circumstances placed her in a position where she required in person assistance from Centrelink to complete her FTB claim. The pandemic related restrictions in place appear to have prevented her from obtaining such assistance.
In relation to the Applicant’s submission that she was unable to complete her claim without assistance, the Secretary notes that she had successfully lodged online claims for Parenting Payment Single and Pensioner Education Supplement in February 2021 and March 2020 respectively.[25] She was also able to contact the Agency by phone on seven occasions between 1 July 2020 and 20 June 2021[26] and commenced full-time study at TAFE on 5 February 2021.[27]
[25] RSFIC, [42]
[26] RSFIC, [39]
[27] RSFIC, [45]
The Secretary appears to argue that the Applicant’s full-time study during the relevant period indicates she was in fact able to perform complex or demanding tasks during the relevant period and her circumstances were not sufficient to prevent her from completing the FTB claim. However, the Applicant has provided correspondence between her and her TAFE lecturer from March and May 2021 in which she states she will not meet some course requirements. She also gave oral evidence of having faced difficulties completing these courses due to pressures brought about by the pandemic.
Having regard to Dr Jayalath’s report in which he outlines the impact of the Applicant’s ADHD on her ability concentrate, I am satisfied that having untreated ADHD made completing the 49-page FTB application form a significantly more difficult proposition than applying for the Pensioner Education Supplement and Parenting Payment Single. Similarly, I do not consider the Applicant’s engagement in full-time study sufficiently demonstrates she would be able to complete her application for FTB without assistance.
As the Secretary submits, it was open for the Applicant to lodge her FTB claim online. Indeed, the Applicant commenced an online application for FTB which was cancelled 13 weeks later on 24 June 2021. To my mind this demonstrates that she intended to lodge online and had left herself sufficient time to do so before the relevant date. Having successfully applied for Parenting Payment Single and Pensioner Education Supplement she had every reason to be confident that she would be able to do the same when claiming FTB.

In Singleton and Secretary, Department of Social Services the Tribunal considered it was not enough for a claimant to ‘merely show that the special circumstances made it difficult or challenging for the tax returns to be lodged within the required time frame’ but that:
The special circumstances must have been such that they served as an insurmountable block, hindrance, or impediment to the lodgement taking place within the required timeframe.[28]
[28] [2019] AATA 766, [42]
I am satisfied that the combination of the Applicant’s personal circumstances and untreated ADHD frustrated the Applicant’s genuine attempt to complete the online claim. Realising she needed assistance, the Applicant sought in-person assistance from Centrelink, which was unavailable due to pandemic restrictions in place at that time. The evidence supports a finding that the circumstances presented an ‘insurmountable block’ to the Applicant lodging the claim by the relevant date.
For the reasons I have outlined, I find that special circumstances existed which prevented the Applicant from making an application for FTB by the relevant date. The correct and preferable decision is that the discretion provided by subparagraph 10(2)(b)(ii) of the FA Admin Act be exercised to extend the period for lodging an effective claim.
DECISION
The reviewable decision is set aside and substituted with a decision that the relevant date is extended to 28 October 2021 on the basis of special circumstances. The matter is remitted to the Secretary for calculation and payment of FTB.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of

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Associate
Dated: 10 May 2023

Date of hearing: 2 March 2023

Applicant: In person

Solicitors for the Respondent: Mr T Chang, Services Australia

Date of hearing:	2 March 2023
Applicant:	In person
Solicitors for the Respondent:	Mr T Chang, Services Australia