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

The Administrative Appeals Tribunal (AAT) considered the case of Birt and the Secretary, Department of Social Services. The applicant, Ms. Birt, sought arrears of Family Tax Benefit (FTB) Part A from July 2013 to June 2015. Her FTB Part A payments had been reduced from July 2013 due to her failure to take reasonable action to obtain child support for her child, a requirement for receiving the maximum FTB Part A rate. While an exemption from this requirement was later granted, and arrears were paid from July 2015, her request for arrears from the earlier period was denied by an Authorised Review Officer (ARO) and subsequently affirmed by the AAT.

The central legal issue before the Tribunal was whether there were "special circumstances" that prevented Ms. Birt from requesting a review of the original decision within the 52-week timeframe stipulated by section 109E of the *A New Tax System (Family Assistance) (Administration) Act 1999* (Cth). Ms. Birt contended that she was under considerable stress following the premature birth of her child and that she was not aware of the requirement to take further steps to obtain the full FTB Part A entitlement. The Secretary argued that Ms. Birt was presumed to have received multiple letters from Centrelink outlining this requirement and that the Department had no obligation to proactively inform her of potential entitlements or changes in law.

The Tribunal affirmed the ARO's decision, finding that Ms. Birt had not demonstrated special circumstances that prevented her from seeking a review within the prescribed period. The Tribunal noted that Ms. Birt had been notified of the maintenance action requirement on multiple occasions, including in the initial claim form and subsequent letters. While acknowledging the stress associated with the birth of a premature baby, the Tribunal concluded that this stress did not rise to the level of "special circumstances" that would excuse the delay in seeking review. The Tribunal applied the principles established in previous AAT decisions, which generally require a high threshold for establishing special circumstances, and found that the evidence did not support such a finding in this case.

Consequently, the Tribunal affirmed the decision of the ARO, meaning that Ms. Birt was only entitled to arrears of FTB Part A from 1 July 2015, the start of the financial year in which the department became aware of her potential entitlement to a higher rate. The Tribunal's jurisdiction to hear the matter was pursuant to section 128 of the Administration Act.