Birt and Secretary, Department of Social Services (Social services second review)
[2018] AATA 2147
•10 July 2018
Birt and Secretary, Department of Social Services (Social services second review) [2018] AATA 2147 (10 July 2018)
Division:GENERAL DIVISION
File Number: 2017/4501
Re:Shellie Birt
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member C Edwardes
Date:10 July 2018
Place:Perth
The Tribunal affirms the decision under review.
..............[sgd]........................................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – FTB Part A – premature baby – medical conditions of child – Centrelink – notices and letters of entitlement – no application – lack of knowledge – payment of arrears – no special circumstances – circumstances of prevention – AAT1 decision affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 – s 21, s 224
A New Tax System (Family Assistance) (Administration) Act 1999 – s 32, s 109E,
s 109E(2)
Evidence Act 1995 (Cth) – s 160Interpretation Act 1901 (Cth) – s29
CASES
Angelakos and Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle and Director-General of Social Security (1984) 6 ALD 1
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Groth and Secretary, Department of Social Security (1995) 40 ALD 541; FCA 1708
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
10 July 2018
THE APPLICATION
This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 27 June 2017 (T2 5-11) (R1). The AAT1 decision affirmed a decision to reject the Applicant’s claim to pay arrears of family tax benefit (FTB) Part A for the period from 10 July 2013 to 30 June 2015.
The Tribunal has jurisdiction to hear this matter pursuant to section 128 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act).
The matter was heard in Perth on 26 June 2018. The Applicant attended in person and Mr Bishop from Mills Oakley appeared for the Respondent.
The Tribunal would like to thank both the Applicant and the Respondent for their assistance during the hearing.
BACKGROUND
The Applicant gave birth to her child in 2013. The birth of the child was premature.
The Applicant made a claim for FTB and Parenting Payment (single) on 18 April 2013 (T20 106) (R1).
This claim was approved and between April and July 2013 she received FTB of $314.02, comprising of FTB Part A of $169 .68.
The Applicant was also in receipt of a baby bonus, receiving $346.15 on a fortnightly basis from May 2013 to October 2013.
Centrelink wrote to the Applicant on a number of occasions between 29 April 2013 and 20 May 2013 outlining to her the need to take “reasonable action” so that she could receive more than the FTB Part A (T5-6 64-67) (R1).
The Applicant received a letter from Centrelink on 10 July 2013 advising that her FTB payments would be $173.74, at a FTB Part A rate of $55.16 (T7 68-70) (R1).
The correspondence from Centrelink on 10 July 2013 also includes the following:
Our records show that you have not taken reasonable steps to obtain child support for [the Applicant’s child], and as a result this may be affecting the amount of Family Tax Benefit Part A you are being paid (T7 69) (R1).
Further documents provided to the Tribunal show that Centrelink corresponded with the Applicant on numerous occasions in the form of entitlement letters (T8-12 71-83) (R1).
AAT1 states:
In July 2016 Miss Birt was alerted by a Centrelink officer to the fact that she received only the minimum rate of FTB Part A due to the lack of maintenance action. Miss Birt applied to be exempted from the requirement to take action and her request was subsequently granted by a social worker. Miss Birt sought back payment of FTB Part A from the time her payments were reduced in July 2013.
In February 2017 Miss Birt was paid arrears of FTB Part A … for the 2015/16 income year. Her request for arrears for the period since the rate reduction took effect was denied (T2 6) (R1).
The Applicant sought a review of this decision for the period 10 July 2013 to 30 June 2015. That application was not successful. On 9 March 2017, the Authorised Review Officer (ARO) stated:
I have found no special circumstances in your cases which prevented you from seeking a review within the required time frames. This means you may only be paid additional Family Tax Benefit from the start of the financial year that is prior to the one in which the department became aware you were entitled to a higher rate.
The exemption was granted, and the review was requested, in the 2016/2017 financial year and as such may only be back dated to the start of the 2015/2016 financial year which is 1 July 2015.
As such the department correctly paid you arrears of FTB Part A from 1 July 2015 only (T15 88-9) (R1).
The Applicant appealed to AAT1 on the 24 March 2017. AAT1 affirmed the decision of the ARO on the 27 June 2017 (T2 5) (R1).
AAT1 found:
On balance, the Tribunal finds there were no special circumstances which prevented Ms Birt from seeking review of her rate of FTB part A in the period from July 2013 to July 2016 and thus the decision to pay her arrears of FTB part A for the period from 10 July 2013 to 30 June 2015 is correct (T2 10) (R1).
On 31 July 2017, the Applicant applied to the General Division of the Tribunal for a second review of the decision for the following reasons:
Because centrelink claim to have sent me mail regarding my child support payments and failure to make contact with them would result in my payments decreasing.
My first appeal did not find there to be any special circumstances for me to receive back paments (sic)
I dont (sic) think it was made clear that at the time of these letters being sent by centerlunk (sic), I was in and out of King Edward Hospital for over 2 months, 3 times a day, to be with my [child] wjo (sic) was born 2 ½ months premature. Reading mail was the last thing on my mind when I was living day to day not knowing if my child woujd (sic) survive (T1 1- 4)(R1).
RELEVANT LEGISLATION AND ISSUES
The legislation that governs the review is contained in the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) and the Administration Act.
Section 21 of the Act states:
21When an individual is eligible for family tax benefit in normal circumstances
1An individual is eligible for family tax benefit if:
(a)the individual:
(i) has at least one FTB child; or
(ii) has at least one regular care child who is also a rent assistance child; and
(b)the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); and
(c)the individual's rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding section 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1, is greater than nil.
When individual satisfies this subsection
(1A)An individual satisfies this subsection if:
(a)the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991; and
(d)either:
(i) the individual is in Australia; or
(ii) the individual is temporarily absent from Australia for a period not exceeding 6 weeks and the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
Exception
2However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.
Clause 10 of Schedule 1 of the Act provides for rate calculation in respect to maintenance:
10Effect of certain maintenance rights
1The FTB child rate for an FTB child of an individual is the base FTB child rate (see clause 8) if:
(a)the individual or the individual's partner is entitled to claim or apply for maintenance for the child; and
(b)the Secretary considers that it is reasonable for the individual or partner to take action to obtain maintenance; and
(c)the individual or partner does not take action that the Secretary considers reasonable to obtain maintenance.
2(2) Subclause (1) does not apply to maintenance that is:
(a)a liability under an administrative assessment (within the meaning of the Child Support (Assessment) Act 1989 ); and
(b)not an enforceable maintenance liability (within the meaning of the Child Support (Registration and Collection) Act 1988 ).
Section 32 of the Administration Act states:
32 Notice of variation of determination
1The Secretary must give notice of any variation of a determination under this Subdivision to the claimant, stating the effect of the variation and that the claimant may apply for review of the decision involved in the manner set out in Part 5.
2The variation is not ineffective by reason only that the requirements of subsection (1) are not complied with.
Section 109E of the Administration Act provides:
109E Date of effect of certain decisions relating to payment of family tax benefit by instalment
1If:
(a)a person applies under section 109A for review of a decision (the original decision ) relating to the payment to the person of family tax benefit by instalment; and
(b)the application is made more than 52 weeks after the person was given notice of the original decision; and
(c)the Secretary or an authorised review officer decides, under subsection 109A(2), to vary the original decision or to set aside the original decision and substitute a new decision; and
(d)the decision of the Secretary or authorised review officer (the review decision ) will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;
the date of effect of the review decision is the first day of the period to which the original decision relates.
2The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under section 109A for review of the original decision within 52 weeks, determine that subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.
2AAIf:
(a)paragraphs (1)(a), (b), (c) and (d) apply; and
(b)the first day of the period to which the original decision relates is earlier than the first day (the cut-off day) of the income year before the income year in which the application referred to in paragraph (1)(b) was made;
then, despite subsection (1), the person cannot be paid any entitlement created or increased as mentioned in paragraph (1)(d) (including as a result of taking into account the FTB Part A supplement or the FTB Part B supplement) in relation to any day earlier than the cut-off day.
2ASubsection (2AA) does not apply in relation to a decision by the Secretary or by an authorised review officer on an application by a person under section 109A for review of the original decision if:
(a)as a result of the original decision, the person was entitled to be paid family tax benefit by instalment at a particular rate in respect of a period (the same-rate benefit period ) that consists of, or is included in, a particular income year (the relevant income year ); and
(aa)the original decision is not a decision made under subsection 105(4) (including because of the operation of section 105A) or 109A(2); and
(c)either:
(i) if the same-rate benefit period to which the original decision relates is the only same-rate benefit period for the person for the relevant income year – the person satisfies the FTB reconciliation conditions for the same-rate benefit period; or
(ii) if the same-rate benefit period to which the original decision relates is one of 2 or more same-rate benefit periods for the person for the relevant income year – the person satisfies the FTB reconciliation conditions for each of those same-rate benefit periods.
Note: To work out when the person satisfied the FTB reconciliation conditions, see section 32B.
3Subsection (2AA) does not apply in relation to a decision by the Secretary or by an authorised review officer on an application under section 109A for review of the original decision if:
(b)the application for review is made:
(i) because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income for a particular income year of any relevant person made on the basis of an income tax return for that person and that particular income year lodged in accordance with subsection (3A); and
(ii) within 13 weeks after the relevant person was notified by the Commissioner of the outcome of the review; or
(b)the application for review is made:
(i) because of a review, by the Child Support Registrar, of a previous decision by the Registrar about the child support entitlement of any relevant person; and
(ii) within 13 weeks after the relevant person was notified by the Registrar of the outcome of the review; or
(c)the following apply:
(i) under section 61A of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person mentioned in paragraph (1)(a) of this section, an FTB child of the person and a day;
(ii) the Secretary is satisfied the application for review is made because the person considers that section 61A of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day;
(iii) the application for review is made before the end of the first income year after the income year in which that FTB child turned 4 or of the further period (if any) allowed by the Secretary under paragraph 61A(2A)(a) of that Act ; or
(d)the application for review is made because of subsections 61A(1), (2) and (2A) of the Family Assistance Act not applying in relation to the person mentioned in paragraph (1)(a) of this section because of the operation of subsection 61A(3) of that Act; or
(e)the following apply:
(i) under section 61B of the Family Assistance Act, the Secretary disregarded clause 38A of Schedule 1 to that Act in relation to the person mentioned in paragraph (1)(a) of this section, an FTB child of the person and a day;
(ii) the Secretary is satisfied the application for review is made because the person considers that section 61B of that Act does not prevent that clause being taken into account in relation to that person, that FTB child and that day;
(iii) the application for review is made before the end of the first income year after the income year in which that FTB child turned 1, 2 or 5 (as the case requires) or of the further period (if any) allowed by the Secretary under paragraph 61B(3)(a) of that Act; or
(f)the application for review is made because of subsections 61B(1), (2) and (3) of the Family Assistance Act not applying in relation to the person mentioned in paragraph (1)(a) of this section because of the operation of subsection 61B(4) of that Act.
3A For the purposes of subparagraph (3)(b)(i), the income tax return of a person in respect of a particular income year (the base year ) must be lodged before the end of:
(a)the first income year after the base year; or
(g)such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the person from lodging the return before the end of that first income year.
3BThe further period under paragraph (3A)(b) must end no later than the end of the second income year after the base year.
4In subsection (3), a reference to a relevant person, in relation to the person first-mentioned in that subsection, is a reference:
(a)so far as paragraph (3)(b) is concerned – to any person (including the first-mentioned person) whose taxable income is relevant in determining the first-mentioned person's eligibility for, or rate of, family tax benefit; and
(b)so far as paragraph (3)(c) is concerned - to any person (including the first-mentioned person) whose entitlement to child support is relevant in determining the first-mentioned person's rate of family tax benefit.
(Original emphasis.)
Section 224 of the Administration Act provides:
224 Notice of decisions
1If a notice of a decision of an officer:
(c)affecting a person's entitlement to be paid family assistance under the family assistance law; or
(d)affecting a person's conditional eligibility for child care benefit by fee reduction; or
(e)affecting a weekly limit of hours, a CCB %, a schooling %, eligibility for the special grandparent rate or a rate under section 81 of the Family Assistance Act applicable to a person; or
(caa)about the amount of child care rebate applicable in respect of a person and a child for a week under Subdivision AAB of Division 4AA of Part 3; or
(ca)about the amount of child care rebate applicable in respect of a person and a child for a quarter under Subdivision AA of Division 4AA of Part 3;
is:
(f)delivered to a person personally; or
(g)left at the address of the place of residence or business of the person last known to the Secretary; or
(h)sent by prepaid post to the address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the family assistance law, to have been given to the person.
2Notice of a decision of an officer affecting or about a matter referred to in paragraph (1)(a), (b), (c) or (ca) may be given to a person by properly addressing, prepaying and posting the document as a letter.
3If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post, unless the contrary is proved.
Section 29 of the Interpretation Act 1901 (Cth) provides:
29Meaning of service by post
1Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
2This section does not affect the operation of section 160 of the Evidence Act 1995 .
Section 160 of the Evidence Act 1995 (Cth) provides:
160Postal articles
1It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.
2This section does not apply if:
(a)the proceeding relates to a contract; and
(b)all the parties to the proceeding are parties to the contract; and
(c)subsection (1) is inconsistent with a term of the contract.
3In this section:
"working day" means a day that is not:
(a)a Saturday or a Sunday; or
(b)a public holiday or a bank holiday in the place to which the postal article was addressed.
Note: Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency.
(Original emphasis.)
The Tribunal is assisted by the policy document the Family Assistance Guide (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons not to do so (refer to Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634).
ISSUE FOR DETERMINATION
The issue for determination is whether the Tribunal is satisfied that there were special circumstances which prevented the Applicant from requesting a review in the 52 weeks following the decision by Centrelink of 10 July 2013 to reduce the rate of FTB.
EVIDENCE
The Tribunal received the following evidence:
·Exhibit A1 – Applicant’s Statement of Facts, Issues and Contentions dated 11 October 2017.
·Exhibit R1 – Tribunal documents (T1-T20, pp 1-135).
·Exhibit R2 – Secretary’s Statement of Facts and Contentions dated 19 October 2017.
·Exhibit R3 – Secretary’s List of Authorities dated 19 October 2017.
·Exhibit R4 – Annexure A – Claim forms completed by the Applicant dated 18 April 2013.
The Tribunal adjourned for 15 minutes to enable Mr Bishop to read Exhibit A1, as he was not aware of that document.
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
The Respondent makes the following contentions:
Rate of FTB
35There is no dispute that the applicant was entitled to FTB in respect of [the Applicant’s child] and has been in receipt of those payments.
36The applicant was notified of the requirement to take reasonable maintenance action (or obtain an exemption) in order to obtain the maximum rate of FTB Part A as follows:
(a)in the claim form completed by the applicant on 18 April 2013 (Annexure A);
(b)in the letter to the applicant of 29 April 2013 (T5, pp 64-65);
(c)in the letter to the applicant of 20 May 2013 (T6, p 66-67); and
(d)in the letter to the applicant of 10 July 2013 (T7, pp 68-70).
37The applicant contended in her evidence before the AAT (tier one) and in her statement of facts, issues and contentions that she was under considerable stress during April to June 2013 following the birth of her [child] due to her [child]’s health complications. She has stated variously that she did not receive the letters of 29 April 2013, 20 May 2013 and 10 July 2013, or, that if she did she is not sure that she read them. The applicant contends she was not aware she was required to take any further steps to obtain the full entitlement to FTB Part A (R2 5).
The applicant further contends:
41The Secretary contends that the applicant has not provided any evidence to rebut the presumption of presumed service of each of the letters referred to in paragraph 36. The Secretary contends, therefore, that the applicant is presumed to have received the letters of 29 April 2013 and 20 May 2013 advising of the requirement to take maintenance action, as well as the notice of the decision to pay FTB Part A at a reduced rate dated 10 July 2013.
42The applicant argued at the AAT (tier one) that the Department should have made her aware that she might be entitled to a higher rate of payment and that the Department’s failure to do so was a special circumstance.
43The Secretary submits that it has no obligation to advise a recipient or potential recipient of an entitlement to family assistance payments or of a change in the law in relation to the entitlement to those payments. The Secretary notes the below decisions of the Administrative Appeals Tribunal:
(a)Secretary, Department of Social Services and Field [2015] AATA 903 (paragraphs 24, 26, 28-30);
(b)Secretary, Department of Social Services and Cannon [2015] AATA 1028 (paragraph 17);
(c)Secretary, Department of Social Services and Hollis [2015] AATA 941 (paragraph 43);
(d)Andre and Secretary, Department of Social Services [2015] AATA 20 (paragraph 16);
(e)Secretary, Department of Social Services and McNamara [2016] AATA 689 (paragraph 45);
(f)Secretary, Department of Social Services and Burrell [2017] AATA 299 (paragraph 23) (R2 6).
The Secretary submits the following in respect to the issues of notification:
46The Secretary contends that in accordance with section 32 of the FA Admin Act a notice was issued to the applicant on 10 July 2013 advising that her rate of FTB Part A was affected by her failure to take reasonable maintenance action in respect of [the Applicant’s child]. That notice advised applicant that if reasonable action was taken to seek child support, she might receive more FTB: ‘…To receive more than the minimum rate of Family Tax Benefit Part A for a child from a previous relationship, you will need to take reasonable steps to obtain child support by applying for a child support assessment with the Child Support Agency…’ (T7, p 69)
47The 10 July 2013 notice relating to the applicant’s payment of FTB, was unambiguous in notifying the applicant that a decision had been made to pay her FTB at a certain rate and that a higher rate may be payable if she took reasonable action to seek child support (R2 7).
In respect to what constitutes a notice, the Secretary contends the following:
48The Secretary contends that the notice regarding the FTB rate issued to the applicant on 10 July 2013 was a valid notice of decision.
49The 10 July 2013 notice notified the applicant of her appeal rights if she was not satisfied with the decision. Relevantly, it stated:
‘…if you think our decision is wrong, phone or come in to see us. We will check the facts and explain the decision…..Remember if you do not ask for the decision to be reviewed within 52 weeks of being told about it, any change to that decision, or any back payment can only take effect from the date you ask…’
50In Secretary, Department of Family and Community Services v. Rogers 104 FCR 272, Justice Cooper considered the requirements of a valid notice of decision (there, in relation to a pension). He stated at para 33 and 35:
That involves two elements; the fact that a decision has been made and the content of the decision. The subsections make no reference to any requirement that the notice contain reasons or sufficient information for the recipient of the notice to understand the main reason for the decision and so be in a position to know whether or not to exercise the person’s right to seek a review. Nor, in my view, do any principles of procedural fairness require that such a requirement be read into the provisions of s. 299.
51The Secretary contends that the requirement that a notice be intelligible does not introduce a requirement that reasons for the decision communicated by it be given. Nor does it require that sufficient information be given as to the basis upon which the decision was made to enable the recipient to decide whether to seek review of the decision.
52In Austin v. Secretary, Department of Family and Community Services 92 FCR 138, Justice Drummond found that a notice regarding a Newstart payment was constituted either by:
‘a clear statement by the Secretary that a decision has been made fixing the rate of payment of Newstart Allowance at a particular figure or that a decision has been made cancelling or suspending Newstart Allowance, as opposed to information from which an interference to one or other of those effects might be drawn, is, in my opinion, required before a communication can constitute a ‘notice’ within s. 660K.’
53In Rowe and Secretary, Department of Family and Community Services [2004] AATA 1160, dealing with the issue of notice of a decision, the Tribunal at para 9 held:
“’n this regard, I have relied on the judgments of the Federal Court in Austin v Secretary, Department of Family and Community Services (1999) 57 ALD 330 and Secretary, Department of Family and Community Services v Rogers (2000) 65 ALD 185 in finding that there is no obligation of the Secretary to do more than communicate the making of a decision. The Secretary does not have to explain the reasons for the decision although this would be desirable. The effect of a letter from the Secretary advising a particular rate triggers the opportunity for the recipient of the allowance to query the calculation and, if necessary, start a procedure to seek variation of the original decision. This entitlement is what sections 78 and 109 protect by giving the recipient the ability to obtain a correction.’
54The Secretary contends that consistent with the approach in the authorities mentioned above, objectively viewed, the 10 July 2013 letter constituted notice that a decision that had been made to pay FTB at a certain rate and that a higher rate may be payable if reasonable maintenance action were to be taken. The Secretary contends that is so even if the fact of the determination had not been expressly stated (R2 7-8).
The Secretary makes the following submissions in respect to special circumstances:
65Section 109E(2) of the FA Admin Act provides that if the Secretary is satisfied there are special circumstances that prevented a person from making an application under section 109A(1) for review of the original decision within 52 weeks, subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.
66The Tribunal in Hooker and Secretary, Department of Social Services [2015] AATA 732 (‘Hooker’) considered s.10(2)(b)(ii) of the FA Admin Act,Senior Member Toohey said as follows (at [14] and [19]):
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.
67The decision of Hooker was cited with approval by Deputy President Humphries in Secretary, Department of Social Services and Hollis [2015] AATA 941 (‘Hollis’) as follows (at [30] and [31]):
However, Dr Hollis needs to show more than the circumstances she faced were special.
68In accordance with the reasons for decision in Hollis and Hooker, the Secretary submits that in order for s 109E(2) of the FA Admin Act to apply and for the time for requesting a review to be extended, the Secretary (and in turn the Tribunal) must be satisfied of two things:
(a)first, that circumstances existed in the present matter were special; and
(b)secondly, that those special circumstances prevented the applicant from requesting a review of the decision to reduce her FTB rate within 52 weeks of 10 July 2013.
69What constitutes ‘special circumstances’ is not defined, however the Tribunal in Re Beadle and Director-General of Social Security stated that while the circumstances need not necessarily be unique, “they must have a particular quality of unusualness that permits them to be described as special”.3
70In Groth v Secretary, Department of Social Security [1995] FCA 1708, Kiefel J observed (at [12] that special circumstances:
Would require something to distinguish…[the] case from others, to take it out of the usual or ordinary case…it would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
71The applicant contends that special circumstances existed that prevented her from requesting a review within 52 weeks of the decision to reduce her rate of FTB. The applicant states that immediately following [the] birth, her [child] was admitted to intensive care with health complications. The applicant states that she spent much of her time visiting her unwell [child] at King Edward Memorial Hospital from [the] birth … until [the child] was discharged on 22 June 2013. The applicant contends that this was a particularly emotional and stressful time for her, and opening and responding to her mail was far from her mind.
72The Secretary accepts that it is open to the Tribunal to conclude that the circumstances affecting the applicant from [the birth] to 22 June 2013 were special. However, the Secretary contends that these circumstances did not prevent the applicant from seeking a review within 52 weeks of the relevant decision.
73In particular the Secretary notes that as at the date of the notification of the decision (10 July 2013) the Applicant and her [child] were home from hospital and the Department’s records note that the applicant had contacted the Department on at least four occasions in relation to various matters following [the Applicant’s child]’s birth and prior to the 10 July 2013 notification letter (T20, pp 107-111). In particular the Secretary notes that the Department’s records indicate that on 13 May 2013 the applicant advised the Department by phone that she was entitled to receive child support and had contacted the Child Support Agency (T20 p 109).
74The applicant received regular letters in the 52 weeks that followed 10 July 2013 (to 9 July 2014) indicating her rate of FTB payment and advising of her appeal rights, as well as the implications of the 52 week period in which review should be sought (T8, T9, T10,T11, T12). She failed to take any action in respect of the rate of FTB being paid to her within 52 weeks (and indeed for 155 weeks). The Secretary contends that there existed no special circumstances which prevented her from doing so.
75The Secretary agrees with the AAT (tier one) decision at paragraph 35 that the fact that the applicant was not conscious that she was not receiving the maximum rate of FTB Part A is not of itself a special circumstance and would be common to matters concerning s 109E.
76In the event that the Tribunal finds that there were special circumstances in this case, the Secretary contends that the circumstances did not actually prevent the applicant from seeking a review of the decision to reduce her rate of FTB within 52 weeks” (R2 9-11).
(Original emphasis.)
The Applicant contends:
[In 2013]… I gave birth to my [child] …….. [Child] was born at 27 weeks (2 1/2months premature).
[The child] was immediately taken to ICU ward at King Edward Memorial Hospital (KEMH) where [the child] remained until 22 June 2013.
[The child]… was kept in an incubator for the first month of … life and was kept on oxygen and fed through feeding tubes for the first two months of … life.
I was discharged from KEMH a day after … [the child] was born and resided at my parents home … until late December 2014.
For every day that my [child] was in KEMH I visited … 3 times a day religiously on occasions I would sleep in my car until my next visit because I was either overly tired or was lacking the funds to put fuel in the car.
On at least 5 occasions that I remember, I woke up at my parents house in an emotional state suffering terrible anxiety, and severe panic attacks worrying about my [child]. On these occasions I drove to KEMH regardless of the time just to be with my child.
From the [the Birth] I was an emotional wreck. My life during this time is a complete blur.
I lived everyday from April to June 2013 not knowing if my [child] would survive or not. One day [the child] would be progressing and medical staff were able to remove oxygen and feeding tubes and next minute I was being called from a doctor at KEMH asking me to come in to the hospital as … condition was deterring (sic).
Anyone who has been in a similar situation or has a child of their own would agree with me that opening mail or corresponding to mail , whether it be Centerlink (sic) or anyone else was the last thing on my mind. To be honest I couldn’t tell you if I actually did read these letters or not.
Centerlink (sic) state that on the 10 July 2013 I was sent a letter advising me that my FTB rate would be reduced to $173.74 from the 22 July 2013 if I did not take reasonable maintenance action.
As I’ve stated several times before and as records with Centerlink (sic) would show, I have always contacted Centerlink (sic) or attended the Morley branch if I was requested too regarding any issue. I have never deliberately ignored any correspondence from Centerlink (sic) relating to an issue that requires me to take action.
It was only in July 2016 when I called Centerlink (sic) regarding a considerable deduction in my Parenting payment that I was alerted by a Centerlink (sic) officer that I was only receiving the minimum rate of FTB. I was advised a Social Worker would be in contact with me regarding this issue. When I received telephone correspondence from this Social Worker (approx. 7 days later) I was asked to bring into the Morley Branch a copy of … [the Applicant’s child’s] Birth Certificate and a Stat Dec from myself, which I did the very next day.
(So this can be recorded, my Parenting payment was reduced from $693.20 to $427.20 on two occasions, because Centerlink (sic) failed to update …. Immunisation Records as being up to date. There for on both occasions I attended the Morley Branch with a copy of … Medical Immunisation Records from … Medical Center and a copy of her Birth certificate to rectify this situation)
In February 2017 the Social Worker who was dealing with my case paid me the arrears of FTB Part A of … for the 2015/2016 income year. I was advised that she needed approval from someone on a higher level to approve the money I was owed from 2013/2014 and she would be in touch.
It was at least 2 months before I heard anything back regarding the back pay of my FTB and to be honest if it wasn’t for me making regular contact with Centerlink (sic) about this situation I probably wouldn’t have heard anything for a long while.
I made at least 6 telephone calls to Centerlink (sic) and the Social Worker on her direct line only to leave a message on each occasion. No one got back to me regarding this issue.
I feel I have done everything that has ever been asked of me from Centerlink (sic), I have never ignored any letter/telephone call from Centerlink (sic) and have always made regular contact with them.
It is stated that back pay will not be granted unless a “Special Circumstance” occurs which prevents me from seeking a review in the 52 weeks following the decision on 10 July 2013 to 9 July 2014 to reduce my FTB rate.
My [child] being born 2 ½ months premature and remaining in hospital until 22 June 2013, than having to attend either PMH or KEMH for ongoing check ups as well as only recently being advised that [the child] will have open heart surgery in early 2018 to close a hole in [the child’s] heart are definitely reasons that can be classed as “Special Circumstances” and if Centerlink didn’t agree with my reasons for not replying to mail they sent, then why did they back pay me the … in the first place???
At the end of the day I am only trying to get the money that is rightfully my [child]. I have no one paying me any child support and am currently seeking employment to improve myself. … is currently attending … Primary School which is a private school, so anything that can help me financially is appreciated and respectfully used” (A1).
(Original emphasis.)
Under cross examination the Applicant stated:
·she did not remember receiving notices and letters from Centrelink relating to the need for her to take further action in order to obtain more than FTB Part A;
·her child was born premature and the Applicant’s time initially was totally consumed with attending hospital to look after her child;
·she doesn’t claim she never received the notices, just given all the issues she was confronting at the time, she simply cannot remember receiving such advice from Centrelink;
·her child is currently booked in at the Perth Children’s Hospital to mend a hole in her heart; and
·since her child was born, the Applicant has had to focus on a number of ongoing medical conditions.
The Applicant came across as honest and truthful and as a mother who cares for the health of her child.
CONSIDERATION
Section 109E(2) of the Administration Act states:
The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under section 109 A for review of the original decision within 52 weeks, determine that subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.
The Applicant claims her circumstances at the time following her child’s birth were special. She was consumed with the health issues confronted with her child and did not know what was happening around her.
The Tribunal cannot imagine what was going through her mind at the time, in the fog of the circumstances she suddenly found herself in.
The Tribunal accepts she simply did not know at the time that she had received the notices and letters from Centrelink relating to FTB Part A.
Special circumstances, is not a term defined by the legislation, it is however discussed in a number of cases.
In that regard, the Tribunal notes the summary of this case law:
Beadle and Director-General of Social Security (1984) 6 ALD 1 at [p3 paragraph 2] where the Tribunal stated:
... 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...
Groth and Secretary Department of Social Security [1995] FCA 1708 where the Federal Court stated at [12]:
... The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss...it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry l have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied...”
Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 where the Federal Court stated at [33]:
... There is less risk of overstatement if the words “unusual” or “uncommon” are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case...
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 where Deputy President Forgie stated in part at [80]:
...“special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances … that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it ... He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement ... The system of administration of the Social Security Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act ...
The Tribunal notes the case law, which represent an overview of the law in relation to this issue.
Having reviewed the evidence before it, the Tribunal accepts that the circumstances in which the Applicant found herself were indeed stressful and a major distraction.
There is no evidence however, before the Tribunal to suggests that the circumstances of the Applicant “are out of the ordinary” such that they fall within the term “special circumstances”
Whilst the Tribunal is sympathetic to the predicament the Applicant finds herself in, the evidence before the Tribunal does not fall into the category of being circumstances that are unusual, uncommon, exceptional, markedly different, special or out of the ordinary that they represent “special circumstances” as that expression is understood to mean.
Accordingly, the Tribunal finds there were no “special circumstances” to prevent the Applicant, other than lack of knowledge, to make suitable inquiries.
DECISION
For the reasons outlined above, the Tribunal affirms the decision under review.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
....................[sgd]...................................................
Administrative Assistant Legal
Dated: 10 July 2018
Date of hearing: 26 June 2018 Applicant: In person Representative for the Respondent: Christopher Bishop Solicitors for the Respondent: Mills Oakley
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